COURT OF APPEALS
DATED AND FILED
March 17, 2011
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. No. 2009CM283
STATE OF WISCONSIN
IN COURT OF APPEALS
STATE OF WISCONSIN,
SAMUEL Q. HOCKING,
APPEAL from a judgment and an order of the circuit court for
Columbia County: ALAN J. WHITE, Judge. Affirmed.
Following his conviction for possession of a
switchblade knife, contrary to WIS. STAT. § 941.24(1), Samuel Hocking appeals
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2009-10).
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
the circuit court’s order denying his motion to suppress the knife as evidence. A
police officer took the knife from Hocking during a temporary detention, but the
officer did not immediately recognize the knife to be an illegal switchblade. The
officer then left the scene, forgetting that he was carrying the knife. Upon later
realizing that the knife was illegal, the officer cited Hocking for its possession.
Hocking argues that the circuit court erred in concluding that the suppression
motion should be denied because the knife was, viewed objectively, contraband at
the time the officer lawfully took possession of it. The court’s order denying
suppression and the judgment of conviction that followed are affirmed.
Relevant facts are not in dispute, and there are no credibility
determinations at issue. Several officers were dispatched to a disturbance at a
tavern. Observing Hocking fighting in the tavern, an officer restrained Hocking.
This included temporarily placing Hocking in handcuffs. The same officer asked
Hocking if he had any weapons. Hocking replied that he had a knife in one of his
pockets. The officer located a knife in Hocking’s pocket and removed it, then put
the knife in his own pocket “for safekeeping.”
After investigating the disturbance, the officer released Hocking,
without issuing him a citation. Instead of returning the knife to Hocking, it
“stayed with me at that time, and I forgot to return it” to Hocking, the officer
testified at the suppression hearing. After the officer returned to the police station
following the incident, he recalled that he still had the knife. The officer conferred
with other officers about the knife, and realized for the first time that it was a
switchblade, namely a knife that is illegal to possess because it has a blade that
opens by pressing a button, spring, or other device. Police first issued Hocking an
ordinance citation for possession of a switchblade, but later voided that in favor of
a criminal charge, for reasons not relevant to this appeal.
The knife outwardly resembles a common lock-blade knife.
However, with manipulation it operates as a switchblade. The knife has a sliding
switch on its side that functions as a “safety,” so that when one pushes a small
silver button near the back of the knife, the blade swings out automatically.
STANDARD OF REVIEW AND LEGAL STANDARDS
Our standard of review and the framework for our analysis are well
We review a motion to suppress applying a two-step
standard of review. First, we will uphold the trial court’s
factual findings unless they are clearly erroneous. Then,
we review the application of constitutional principles to
those facts de novo. The Fourth Amendment protects
against unreasonable searches and seizures. Under both the
United States and Wisconsin Constitutions, a warrantless
search is per se unreasonable, and evidence derived from it
will be suppressed, subject to certain exceptions. These
exceptions are jealously and carefully drawn, and the
burden rests with those seeking exemption from the warrant
requirement to prove that the exigencies made that course
State v. Robinson, 2009 WI App 97, ¶9, 320 Wis. 2d 689, 770 N.W.2d 721
Turning to the specific standards that apply to evidence seized
during the course of a warrantless temporary detention under Terry v. Ohio, 392
U.S. 1 (1968), “[w]hile a Terry frisk is not a general evidentiary search, an officer
is not required to look the other way when [the officer] inadvertently discovers
evidence of a crime during the course of a legitimate protective frisk.” State v.
McGill, 2000 WI 38, ¶40, 234 Wis. 2d 560, 609 N.W.2d 795. Warrantless seizure
and inspection of potential evidence
is justified when the officer is lawfully in a position to
observe the evidence, the evidence is in plain view of the
officer, the discovery is inadvertent, and “[t]he item seized
in itself or in itself with facts known to the officer at the
time of the seizure, provides probable cause to believe there
is a connection between the evidence and criminal
Id. (citations omitted). If a stop and frisk is lawful, then seizure of evidence of a
crime on probable cause during the course of the stop and frisk is fully justified.
Id. (citing 4 Wayne R. LaFave, SEARCH AND SEIZURE, § 9.5(d), at 283 (3d ed.
Also relevant is case law regarding how courts are to treat the
subjective motivations of police officers in most Fourth Amendment contexts.
“An action is ‘reasonable’ under the Fourth Amendment, regardless of the
individual officer’s state of mind, ‘as long as the circumstances, viewed
objectively, justify [the] action.’” Brigham City, Utah v. Stuart, 547 U.S. 398,
404 (2006) (quoting Scott v. United States, 436 U.S. 128, 138 (1978)); see also
Whren v. United States, 517 U.S. 806, 813 (1996) (court “unwilling to entertain
Fourth Amendment challenges based on the actual motivations of individual
officers”). Under this view, “evenhanded law enforcement is best achieved by the
application of objective standards of conduct, rather than standards that depend
upon the subjective state of mind of the officer.” Horton v. California, 496 U.S.
128, 138 (1990).
Thus, in “probable cause analysis, the subjective intent of the officer
plays no role in the totality of the circumstances that a court considers in
determining whether there is probable cause to arrest.” State v. Kramer, 2009 WI
14, ¶31, 315 Wis. 2d 414, 759 N.W.2d 598 (citing Whren, 517 U.S. at 813); see
also State v. Malone, 2004 WI 108, ¶23, 274 Wis. 2d 540, 683 N.W.2d 1
(officer’s “subjective motivation may have been to pursue suspected narcotics
trafficking, but his subjective motivations play no part in our analysis”); McGill,
234 Wis. 2d 560, ¶¶23-24 (in determining whether a protective frisk was
warranted, court considered facts known to the officer which the officer did not
use in his “subjective analysis of the situation”).
When applying an objective standard, the question is not what might
have been in the mind of the officer at the time of an alleged Fourth Amendment
violation, but instead what a “reasonably prudent” officer would have done under
the circumstances. See State v. Johnson, 2007 WI 32, ¶21, 299 Wis. 2d 675, 729
N.W.2d 182 (citing Terry, 392 U.S. at 27).
Hocking concedes that his temporary detention and the initial seizure
of his knife were both lawful under Terry. His contention is that from the moment
Hocking was no longer temporary detained, the lawful seizure of his knife ended,
and the officer was without authority to continue to possess his knife, because the
officer had not yet discovered that the knife was contraband. This contention is
without merit, because it ignores the objective standard that applies in this context.
It cannot reasonably be argued, and Hocking does not argue, that a
reasonably prudent officer would take possession of a weapon, whether it is a
knife or a firearm, and then return that weapon to its owner, without at least briefly
inspecting the weapon to determine whether it constituted contraband. Separately,
there was uncontradicted testimony at the suppression hearing suggesting that the
illegal status of the knife was readily ascertained by officers at the police station.
Therefore, a reasonably prudent officer in these circumstances would have taken
the simple step of inspecting the knife and in doing so would have determined that
the officer had probable cause to seize it as a switchblade, while still possessing it
under authority of the Terry detention, the lawfulness of which is not contested.
This was not a container that might hold contraband; the knife was readily
discernable contraband lawfully in the hands in the police. See United States v.
Rodriguez, 601 F.3d 402, 408 (5th Cir. 2010) (once shotgun properly seized on
temporary basis, illegal statuses as sawed-off and having an obliterated serial
number “became apparent and it was then subject to permanent seizure as
Hocking relies in part on the language of WIS. STAT. § 968.25,
which together with § 968.24 are the “stop and frisk” statutes that effectively
Hocking relies particularly on the phrases emphasized here in
When a law enforcement officer has stopped a
person for temporary questioning pursuant to s. 968.24 and
reasonably suspects that he or she or another is in danger of
physical injury, the law enforcement officer may search
such person for weapons or any instrument or article or
substance readily capable of causing physical injury and of
a sort not ordinarily carried in public places by law abiding
persons. If the law enforcement officer finds such a weapon
or instrument, or any other property possession of which
the law enforcement officer reasonably believes may
constitute the commission of a crime, or which may
constitute a threat to his or her safety, the law enforcement
officer may take it and keep it until the completion of the
questioning, at which time the law enforcement officer shall
either return it, if lawfully possessed, or arrest the person
However, this statute does not add to the analysis. The statute does
not purport to adjust the “reasonably prudent officer” standard established in the
case law, under which a reasonably prudent officer would not have considered the
knife to have been “lawfully possessed” by Hocking. The phrase in WIS. STAT.
§ 968.25 that is highlighted above, by its own terms, does not apply to require
return of unlawfully possessed property.
Hocking asserts that only facts “known to the officer at the moment
of the intrusion, and not facts determined subsequently” may be “considered to
determine if a search or seizure is lawful.” This is not the law. Probable cause is
an objective standard. As a general rule, the subjective intentions of arresting
officers are immaterial in judging whether their actions were reasonable for Fourth
See Devenpeck v. Alford, 543 U.S. 146, 153 (2004);
Whren, 517 U.S. at 814. Therefore, it does not matter that the officer testified at
the suppression hearing that he “forgot” to return the knife, implying that he
should have returned it to Hocking at the time officers decided to release Hocking
from temporary detention. Under the objective view, a reasonably prudent officer
would not have returned the knife without first inspecting it and discovering its
Hocking cites United States v. Place, 462 U.S. 696 (1983), for the
proposition that a temporary property seizure made under authority of Terry, as
supported by reasonable suspicion, may violate the Fourth Amendment when
police take too much time in attempting to develop the probable cause they seek to
However, this case does not involve temporarily seized containers
suspected to contain contraband, as in Place. Id. at 700-01. This case involves
temporarily seized contraband, which a reasonably prudent officer would have
recognized as such while still in lawful possession of the contraband.
For these reasons, the circuit court made no clearly erroneous factual
findings, and it is evident that the Fourth Amendment does not require suppression
of the knife as evidence.
Accordingly, the court’s judgment and order are
By the Court.—Judgment and order affirmed.
This opinion will not be published.
See WIS. STAT. RULE