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"Police officers investigating possible crimes may conduct limited warrantless searches if they reasonably believe a person may have access to a weapon," says Van Hollen. "Here, the search not only protected the officers, but also helped solve a homicide."
MADISON - In a decision released earlier today, the Wisconsin Court of Appeals concluded that Milwaukee police officers acted lawfully when they searched a chair inside a city residence during a 2007 homicide investigation. The search yielded a loaded handgun—the weapon used by Jacquese Franklin Harrell in that homicide.
Attorney General J.B. Van Hollen, whose office represented the State of Wisconsin on appeal, praised the decision. "Police officers investigating possible crimes may conduct limited warrantless searches if they reasonably suspect that a person may have access to a weapon," explained Van Hollen. "Here, the search not only protected the officers, but also helped solve a homicide."
Milwaukee police suspected Harrell in the October 20, 2007 early-morning shooting of Victoria Jackson. They went to a residence where Harrell was house-sitting and asked to speak with him. Rather than be seen answering police questions in public, Harrell asked to go back inside the house with the officers. Before allowing Harrell to seat himself, officers checked the first of two chairs for possible weapons. A search of the first chair turned up suspected cocaine. A search of the second chair revealed the handgun used to kill Jackson. It was loaded.
Harrell argued on appeal that the search of the second chair violated his federal constitutional right to be free from unreasonable searches and seizures. The Wisconsin Court of Appeals rejected Harrell's argument and found no constitutional violation. From the Wisconsin Court of Appeals' opinion:
Terry v. Ohio, 392 U.S. 1, 27–28 (1968), recognized that under the Fourth Amendment's ban against unreasonable searches and seizures, a law enforcement officer may search a person to ensure the officer's safety if the officer has reason to believe that the person may have committed a crime and that the person may be “armed and dangerous.” “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id., 392 U.S. at 27. Although Terry does not permit officers to enter houses without authorization in order to investigate suspicious activity, State v. Stout, 2002 WI App 41, ¶15, 250 Wis. 2d 768, 780–781, 641 N.W.2d 474, 479, it does permit them to protect themselves from threats of immediate danger once they are lawfully in a house, id., 2002 WI App 41, ¶24, 250 Wis. 2d at 786–787, 641 N.W.2d at 482 (“These safety concerns may arise wherever an officer legitimately encounters an individual, whether in a public place or in a private residence or hotel room.”). Thus, if officers have a “reasonable suspicion” that a person may have access to a weapon, a limited search is permitted. Id., 2002 WI App 41, ¶26, 250 Wis. 2d at 788, 641 N.W.2d at 482. This is especially true, somewhat paradoxically, in the home, where “unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary's ‘turf.'” Maryland v. Buie, 494 U.S. 325, 333 (1990). Thus, the police may lawfully search an area from where an arrestee might grab a weapon, but not beyond it. Chimel v. California, 395 U.S. 752, 763, 768 (1969). Given Terry's recognition of the need for officer safety, this analysis also applies where the officers are lawfully in the home and are reasonably concerned that the person to whom they are talking can do them harm, even though he or she has not yet been arrested. See Terry, 392 U.S. at 27; Stout, 2002 WI App 41, ¶¶24–26, 250 Wis. 2d at 786–788, 641 N.W.2d at 482.
Harrell does not dispute that the officers went to where they believed Harrell was staying because they suspected that he was involved in the Jackson shooting. Thus, the two aspects of Terry were satisfied: (1) the officers suspected that Harrell had committed a violent crime; and (2) reasonable prudence dictated that they keep Harrell from having possible access to a gun. Although he asserts that the officers were not lawfully in the house, the trial court found that by virtue of Harrell's house-sitting status, he could and did give them permission to continue their questioning of him inside the house. Those findings are not clearly erroneous. See State v. Pickens, 2010 WI App 5, ¶39, 323 Wis. 2d 226, 244–245, 779 N.W.2d 1, 10 (Ct. App. 2009) (common dominion authorizes person to give consent for search).
The Wisconsin Court of Appeals also concluded that Harrell's trial counsel rendered constitutionally effective assistance at Harrell's trial.
According to Wisconsin Department of Corrections records, Jacquese Franklin Harrell remains incarcerated at the Waupun Correctional Institution.
The Wisconsin Court of Appeals' decision in State of Wisconsin v. Jacquese Franklin Harrell, No. 2009AP2831-CR, appears on the court's website:
The Milwaukee County District Attorney's Office prosecuted Harrell in Milwaukee County Circuit Court. Assistant Attorney General Warren D. Weinstein represented the State of Wisconsin in the Wisconsin Court of Appeals.