COURT OF APPEALS

DECISION

DATED AND FILED

October 26, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

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. 

Appeal No. 2020AP96-CR Cir. Ct. No. 2018CF760

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

FRANK K. MILES, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee

County: GLENN H. YAMAHIRO, Judge. Affirmed. 

Before Brash, C.J., Donald, P.J., and Dugan, J.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Frank K. Miles, Jr., appeals from a judgment, 

entered on his guilty pleas, convicting him of possession of a firearm by a felon 
No. 2020AP96-CR

2

and fifth offense operating while intoxicated (OWI). Miles contends the circuit 

court erroneously denied his suppression motion, which was premised on a claim 

that Miles was illegally seized and searched. We conclude that the circuit court 

did not err, so we affirm the judgment.

BACKGROUND

¶2 According to the criminal complaint, City of Greenfield Police 

Officer David Meyer was dispatched to a subject with gun complaint at a bar 

called Drift Inn on February 5, 2018. P.A.L. reported that he and his girlfriend, 

S.L.H., had been watching two men playing video gambling machines. The two 

men got up and said they would not be back for twenty minutes. P.A.L. went to 

use one of the machines, but then the men returned. The men and P.A.L. began 

arguing. P.A.L. said, “What are you going to do, call the cops?” One of the men 

pulled out a silver handgun, pointed it at P.A.L., and said, “This is your cops.” 

The two men then fled the bar.

¶3 P.A.L. said that the man with the gun fled in a silver Cadillac. 

S.L.H. obtained a number from the car’s snow-covered license plate; she believed 

it to be 888-XGP. The Drift Inn’s bartender said that one of the two men involved 

in the altercation was a regular named Frank. Through some investigation, Meyer 

discovered documentation of a recent police contact with Miles and the silver 

car—actually a Lincoln, registered to Miles’s wife, with the license plate 888-

WXP—at a location adjacent to the Drift Inn. Meyer looked up Miles’s 

description, which was a “close” match to the description of the suspect given by 

P.A.L. A photo array was developed. P.A.L. identified Miles in the array, 

although he was not fully confident in his choice. In looking up Miles’s 

description, Meyer also learned that Miles had a prior felony conviction. 
No. 2020AP96-CR

3

¶4 On February 12, 2018, Meyer sat in his squad car and monitored 

Miles’s home from the road, intending to arrest Miles for the Drift Inn incident. 

When Meyer saw the silver car pull into the driveway, he initiated a traffic stop. 

He activated his lights and parked his car at the end of the driveway. Meyer

observed the driver reaching around the car. The driver—Miles—then got out of 

the car. As Meyer took Miles into custody, the officer noticed that Miles was 

slurring his speech and smelled strongly of alcohol and marijuana. At some point, 

Meyer’s dispatcher informed him that Miles was subject to a .02 blood-alcohol 

limit due to prior convictions. Miles was arrested for the firearm incident and 

operating with a prohibited alcohol concentration. Meyer then searched the car 

incident to arrest and found a silver Ruger .357 Magnum in the center console.

¶5 The State charged Miles with two counts of possession of a firearm 

by a felon—one for the bar incident and one for the day of the arrest—and one 

count of operating a motor vehicle while intoxicated as a fifth or sixth offense. 

Miles moved to suppress “all evidence seized pursuant to an illegal search of his

vehicle and any other derivative evidence.” He claimed that there was no 

reasonable suspicion or probable cause to justify the traffic stop; even if the stop 

was justified, his warrantless arrest was improper; and even if the arrest was 

proper, the search of the vehicle was unconstitutional, both as an invalid search 

incident to arrest and as a warrantless search conducted within the curtilage of 

Miles’s home. The circuit court held a motion hearing at which only Meyer 

testified. Following the hearing, the circuit court denied the suppression motion. 

Miles then pled guilty to one count of possession of a firearm by a felon and 

operating while intoxicated as a fifth offense. The other possession charge was 
No. 2020AP96-CR

4

dismissed and read in, as were charges from three other cases.

1

 The circuit court 

imposed consecutive sentences totaling eight and one-half years of imprisonment. 

Miles appeals.

DISCUSSION

¶6 The only issue on appeal is whether the circuit court erred when it 

denied Miles’s suppression motion. Review of an order denying a motion to 

suppress evidence is preserved notwithstanding Miles’s guilty pleas. See WIS.

STAT. § 971.31(10) (2019-20).2 A circuit court’s decision on a motion to suppress 

is reviewed in two steps. See State v. Roberson, 2019 WI 102, ¶66, 389 Wis. 2d 

190, 935 N.W.2d 813. First, we will uphold the trial court’s findings of historical 

fact unless clearly erroneous. See State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d 

358, 752 N.W.2d 748. A factual finding is clearly erroneous if it is contrary to the 

great weight and clear preponderance of the evidence. See id. We then review 

de novo whether those facts warrant suppression. See State v. Hampton, 2010 WI 

App 169, ¶23, 330 Wis. 2d 531, 793 N.W.2d 901.

I. Reasonable Suspicion for the Stop

¶7 Miles contends that Meyer lacked reasonable suspicion to conduct a 

traffic stop. The temporary detention of a person during a traffic stop constitutes a 

seizure under the Fourth Amendment. See State v. Gaulrapp, 207 Wis. 2d 600, 

 

1

 The charges in the three other Milwaukee County Circuit Court cases were felony bail 

jumping in case No. 2018CM2354, resisting or obstructing an officer in case No. 2019CM1980, 

and a refusal to submit a sample for a chemical test for intoxication following an arrest in case 

No. 2018TR4193.

2

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2020AP96-CR

5

605, 558 N.W.2d 696 (Ct. App. 1996). Thus, an investigatory stop is subject to

the constitutional requirement of reasonableness. See State v. Post, 2007 WI 60, 

¶12, 301 Wis. 2d 1, 733 N.W.2d 634. When conducting an investigatory stop, 

officers must have reasonable suspicion, grounded in specific articulable facts and 

reasonable inferences therefrom, that a particular person has violated the law. See

State v. Gammons, 2001 WI App 36, ¶6, 241 Wis. 2d 296, 625 N.W.2d 623; see 

also Berkemer v. McCarty, 468 U.S. 420, 439 (1984). 

¶8 Miles contends that he was seized at the moment Meyer activated his 

lights and parked his car behind Miles but, at that moment, Meyer lacked 

reasonable suspicion because he “had no knowledge of who was inside the 

Lincoln when he conducted the traffic stop[.]” Thus, Miles argues, Meyer “acted 

on an ‘inchoate and unparticularized suspicion or hunch’” rather than reasonable 

suspicion, and an inchoate hunch is insufficient to pass constitutional muster. 

¶9 It is true that Meyer did not know who was driving the Lincoln at the 

moment he initiated the traffic stop. What he did know was that Miles was a

suspect in the prior week’s Drift Inn incident; during that incident, Miles fled in a 

silver car; the license plate of that car, as provided by S.L.H., was substantially

similar to the actual license plate of a silver Lincoln registered to Miles’s wife; 

Miles and the Lincoln appeared in another incident report for a location near the 

Drift Inn; and Meyer was currently observing the Lincoln pull into the driveway of 

the Miles home. The circuit court stated, and we agree, that it was a reasonable 

inference that the spouse (Miles) of a registered vehicle owner (Miles’ wife) may 

be driving that vehicle; this is particularly true where, as here, there is relatively 

recent documentation of the spouse doing just that. Thus, there were specific, 

articulable facts from which Meyer could reasonably infer that Miles had 
No. 2020AP96-CR

6

committed a crime and it was further reasonable to initiate the traffic stop to 

investigate whether Miles was currently in the target vehicle. 

¶10 Further, when Miles opened the car door, which turned on the 

interior light, Meyer observed nothing that might have dissipated his reasonable 

suspicion, such as a person of a different gender. See, e.g., State v. Newer, 2007 

WI App 236, ¶8, 306 Wis. 2d 193, 742 N.W.2d 923 (“If an officer comes upon 

information suggesting that [an] assumption is not valid in a particular case ... 

reasonable suspicion would, of course, dissipate.”). Based on the foregoing, we 

conclude that the traffic stop was supported by reasonable suspicion and, thus, the 

circuit court properly declined to suppress evidence on that basis.

II. Probable Cause for Arrest

¶11 Miles next argues that, even if the traffic stop was supported by 

reasonable suspicion, Meyer still lacked probable cause to arrest him. 

“Warrantless arrests are unlawful unless they are supported by probable cause.” 

State v. Blatterman, 2015 WI 46, ¶34, 362 Wis. 2d 138, 864 N.W.2d 26. The 

State bears the burden of showing it had probable cause for the arrest. See id. 

“Probable cause for arrest exists when the totality of the circumstances within the 

arresting officer’s knowledge would lead a reasonable police officer to believe that 

the defendant probably committed a crime.” State v. Kutz, 2003 WI App 205, 

¶11, 267 Wis. 2d 531, 671 N.W.2d 660. “In determining whether probable cause

exists, the court applies an objective standard[.]” Id., ¶12.

¶12 “While the information must be sufficient to lead a reasonable

officer to believe that the defendant’s involvement in a crime is ‘more than a 

possibility,’ it ‘need not reach the level of proof beyond a reasonable doubt or 

even that guilt is more likely than not.’” Id., ¶11 (citation omitted). Whether the 
No. 2020AP96-CR

7

evidence is sufficient to demonstrate probable cause is a question of law, which 

we review de novo. See id., ¶13. 

¶13 Miles asserts that he was arrested the moment Meyer ordered him

out of the car at gunpoint, and that the timing of the arrest is important because it 

limits the facts this court can consider in the probable cause analysis. See State v. 

Young, 2006 WI 98, ¶23, 294 Wis. 2d 1, 717 N.W.2d 729. Miles believes that 

Meyer lacked probable cause because the officer did not know at the particular

moment of arrest that Miles was driving the car.

¶14 However, the identity of the person driving the vehicle on 

February 12, 2018, is irrelevant to whether there was probable cause to believe

that Miles had unlawfully possessed a firearm on February 5, 2018. Even if 

Meyer had not directly encountered Miles on February 12, the “quantum of 

evidence” within police knowledge on that date was objectively adequate to 

establish probable cause for the possession charge. See State v. Howes, 2017 WI 

18, ¶28, 373 Wis. 2d 468, 893 N.W.2d 812 (citation omitted). 

¶15 The facts previously discussed herein as supporting reasonable

suspicion for the stop, see supra, ¶9, also support the probable cause 

determination. In addition to those facts, Meyer also knew that P.A.L. had 

tentatively identified Miles from a photo array; that although P.A.L. was not 

certain in his identification, the Drift Inn bartender had identified a regular named 

Frank as part of the confrontation; and that Miles had at least one prior felony 

conviction. Based on the totality of the information available, then, Meyer had 

probable cause to arrest Miles for the February 5 incident. Thus, the circuit court

properly declined to suppress evidence on that basis. 
No. 2020AP96-CR

8

III. The Vehicle Search

¶16 Finally, Miles argues that the search of his vehicle following his 

arrest was unlawful for two reasons. First, Miles claims the search violated the 

search-incident-to-arrest rule established in Arizona v. Gant, 556 U.S. 332, 343-44 

(2009). Second, Miles believes the search was impermissible because it was 

conducted within the curtilage of his home. 

A. Search Incident to Arrest

¶17 “[W]arrantless searches are per se unreasonable unless they fall 

within a well-recognized exception to the warrant requirement.” State v. Foster, 

2014 WI 131, ¶32, 360 Wis. 2d 12, 856 N.W.2d 847. “When a defendant 

challenges evidence that has been obtained through a warrantless search, the State 

bears the burden to establish that the search was justified by a recognized

exception to the warrant requirement.” State v. Prado, 2020 WI App 42, ¶11, 393 

Wis. 2d 526, 947 N.W.2d 186, aff’d, 2021 WI 64, ¶5, 397 Wis. 2d 719, 960 

N.W.2d 869. One recognized exception to the warrant requirement is a search 

incident to a lawful arrest. See id.; see also Birchfield v. North Dakota, 136 S. Ct. 

2160, 2174 (2016).

¶18 In Chimel v. California, 395 U.S. 752, 762-63 (1969), the United 

States Supreme Court explained that because a search of a person incident to 

lawful arrest was reasonable, there was also reasonable justification for searching 

an area within the arrestee’s immediate control. In New York v. Belton, 453 U.S. 

454, 460-63 (1981), the Supreme Court, intending to give law enforcement a clear 

principle to rely on, concluded that the passenger compartment of a vehicle was 

searchable incident to a lawful arrest under Chimel. The Wisconsin Supreme

Court adopted the Belton interpretation in State v. Fry, 131 Wis. 2d 153, 170, 388 
No. 2020AP96-CR

9

N.W.2d 565 (1986). Subsequent to Fry, then, the law in Wisconsin was that after 

a lawful arrest, “police may search the contents of an automobile while the 

defendant is at the scene” without violating Fourth Amendment protections. See

State v. Dearborn, 2010 WI 84, ¶25, 327 Wis. 2d 252, 786 N.W.2d 97.

¶19 In 2009, the United States Supreme Court in Gant rejected the 

interpretation of Belton that our supreme court had relied on in Fry. See

Dearborn, 327 Wis. 2d 252, ¶26. It explained that Chimel authorized police to 

search a vehicle incident to arrest “only when the arrestee is unsecured and within 

reaching distance of the passenger compartment at the time of the search.” See 

Gant, 556 U.S. at 343. The Court further concluded, however, “that 

circumstances unique to the vehicle context justify a search [of an otherwise 

inaccessible vehicle] incident to a lawful arrest when it is ‘reasonable to believe 

evidence relevant to the crime of arrest might be found in the vehicle.’” See 

Dearborn, 327 Wis. 2d 252, ¶26 (brackets in Dearborn) (quoting Gant, 556 U.S. 

at 343). 

¶20 Miles argues that it was unreasonable to believe evidence of 

possession of a firearm by a felon would be found thin his vehicle at the time of 

the stop, claiming Meyer was operating on “stale information” from the week 

prior. He notes that during the Drift Inn incident, he allegedly had the gun on 

him—no one claimed he had retrieved it from his vehicle. Thus, Miles contends, 

it was “illogical” to assume that the firearm remained with him indefinitely and 

even more illogical to assume that the gun remained in Miles’s vehicle 

indefinitely. 

¶21 The circuit court explained “there were facts that [Meyer] had 

knowledge of with regard to the February 5th allegations” and that Meyer
No. 2020AP96-CR

10

observed Miles “reaching around prior to getting out of his vehicle. There was a 

basis here to reasonably conclude that the defendant was someone who may 

regularly travel with a firearm or have it in his vehicle.” We agree. Miles

previously used the Lincoln to transport himself and the gun to the Drift Inn. 

Further, Miles’s furtive movements upon being stopped made it appear as though 

he might be hiding something and Meyer could reasonably believe that thing 

happened to be the gun Miles was known to carry. Thus, the search of the vehicle 

incident to arrest for possession of a firearm by a felon was not contrary to Gant,

and the circuit court properly declined to suppress evidence on that ground.3

B. Search Within the Curtilage

¶22 Finally, Miles argues that the search of his vehicle was unreasonable 

because it occurred within the curtilage of his home, to which the protections of 

the Fourth Amendment also apply. See State v. Dumstrey, 2016 WI 3, ¶23, 366 

Wis. 2d 64, 873 N.W.2d 502.

¶23 There does not appear to be a specific circuit court ruling with 

respect to the curtilage,

4

although it appears the circuit court may have believed 

the question was moot upon a finding of probable cause. In any event, we are also

not persuaded that any search occurred within the curtilage of Miles’s home. 

 

3

 Miles also argues that, relative to his “OWI arrest,” there was no reason to believe that 

that alcohol or drugs might be found in the vehicle; Meyer had not observed any impaired 

driving, nor had he smelled any alcohol or marijuana coming from the vehicle, and a small 

container from Miles’s pocket that smelled like marijuana was empty. Because we conclude that 

the search of the vehicle was lawful as the felon-in-possession arrest, we need not consider 

whether the search was justified relative to the OWI charge. In any event, there was no OWIrelated evidence recovered, and Miles was not charged with any drug crimes.

4

 It appears that the curtilage issue was not part of the original motion to suppress but 

was raised in Miles’s reply brief to the State’s response to the suppression motion.
No. 2020AP96-CR

11

Curtilage is the land immediately surrounding a house “to which extends the 

intimate activity associated with the sanctity of a man’s home and the privacies of 

life[.]” See State v. Artic, 2010 WI 83, ¶93, 327 Wis. 2d 392, 786 N.W.2d 430 

(citations and internal quotation marks omitted). “The curtilage is defined by 

factors that determine ‘whether an individual reasonably may expect that an area

immediately adjacent to the home will remain private.’” Id. (citation omitted).

We apply four factors, identified by the United States Supreme Court, in 

determining whether an area constitutes curtilage: 

the proximity of the area claimed to be curtilage to the 

home, whether the area is included within an enclosure 

surrounding the home, the nature of the uses to which the 

area is put, and the steps taken by the resident to protect the 

area from observation by people passing by.

See United States v. Dunn, 480 U.S. 294, 301 (1987); see also Dumstrey, 366 

Wis. 2d 64, ¶32.

¶24 While Miles acknowledges the four Dunn factors, he relies on only 

one: proximity. He tells us, without pointing to any evidence so establishing, that 

his driveway was “directly abutting his house.” Proximity alone does not suffice. 

Here, there is no indication that the driveway was enclosed or otherwise designed 

to protect the area from observation and, indeed, we know that Meyer was 

observing the driveway from the road. There is also no indication that the 

driveway was used for anything other than parking, which “courts seem 

overwhelmingly to hold ... constitutes a use associated with neither an intimate

activity of the home nor a privacy of life.” Dumstrey, 366 Wis. 2d 64, ¶41. Miles 

has failed to establish that the search occurred in a constitutionally protected area. 

Therefore, suppression is not warranted.

By the Court.—Judgment affirmed.
No. 2020AP96-CR

12

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.