### 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2020AP96

- CR Cir. Ct. No. 2018CF760 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I

S TATE OF W ISCONSIN ,

P LAINTIFF - R ESPONDENT ,

V .
F RANK K. M ILES , J R .,

D EFENDANT - A PPELLANT .

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 f

or the limited purposes specified in W IS . S TAT . R ULE 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 felonNo. 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.

BA CKGROUND

¶ 2 According to the criminal complaint, City of Greenfield P olice
O fficer 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 r egular 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

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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 Mi les into custody, the office r noticed that Miles was slurring his speech and smelled strongly of alcohol and mar iju ana. At some point, Meyer’s dispatcher informed him that Miles was subject to a .02 blood

- alcohol
l imit 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 count s 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 searc h 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 wasNo. 2020AP96

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4 dismissed and read in , as were charges from thr ee 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 suppressi on motion. Review of an order denying a motion to suppress evidence is preserved notwithstanding Miles’s guilty pleas. See W IS

. S TAT

. § 971.31(10) (2019

- 20). 2 A circuit court’s decision on a motion to suppress is reviewed in two steps. See State v. Rob erson , 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 traf fic 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

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5 605, 558 N.W.2d 696 (Ct. App. 1996). Thus, an investigatory stop is subject t o the constitutional requirement of reasonableness

. See State v. Post , 2007 W I 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 A p p 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, a t 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 tha n reaso nable 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 ca r ; the license plate of th at car , as provided by S.L.H., was substantially similar to the actual license plate of a silver Lincoln registered to Miles’s wife;
M iles and the Lincoln appeared in another incident report for a location near the
D rift Inn; and Meyer was currently observing the Lincoln pull into the driveway of
the Miles home. T h e circuit court stated, and we agree, that it was a reasonable
inference that the spouse (Miles) of a registered vehicle owne r (Miles’ wife) may be driving that vehicle; this is particularly true where, as here, there is relatively
recent documentation o f the spouse doing just that. Thus, there were specific,
articulable facts from which Meyer could reasonably infer that Miles hadNo. 2020AP96

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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 d oor, 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 A pp 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 a nd, 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 l acked probable cause t o 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.
“Pr obable 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 Ap p 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 de fe ndant’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 theNo. 2020AP96

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7 evidence is sufficient to demonstr ate 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 t h e timing of the arrest is important because it
limits the facts this court can consider in the probable cause analysis

. S ee State v. Young , 2006 WI 98, ¶23, 294 Wis. 2d 1, 717 N.W.2d 729 . M iles believes that Meyer lacked probable cause because the officer did not know at th e particular

moment of arre st that Miles was driving the car.

¶ 14 However, t he identity of the person driving the vehicle on February 12, 2018, i s irrelevant to whether there was probable cause to believe
that Miles had unlawfully possessed a firearm on February 5, 2 018. E ven 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 support ing 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 identi fi ed a regular named Frank as part of the confrontation ; and tha t Miles had at least one prior felony
conviction . Based on the totality of the information available , then, Meyer had probable cause to arrest M iles for the February 5 incident

. Thus, t he circuit court properly declined to suppress evidence on that basis

.No. 2020AP96

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8 III. The Vehicle Search

¶ 16 Finally, M iles 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
bear s the burden to establish that the search was justified by a recognized exception to the warrant requirement.” S tate 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 ex ception to the warrant requirement is a search
incident to a lawful arrest

. See id. ; see also Birchfield v. North Dakota , 136 S. C t. 2160, 2174 (2016).

¶ 18 In Chimel v. California , 395 U.S. 752 , 762

- 63 (1969) , the United
State s 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, 4 60

- 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 interpretatio n in State v. Fry , 131 Wis. 2d 153 , 170, 388No. 2020AP96

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9 N.W.2d 565 (19 86 ). 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 F ourth Am endment 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 Dearb orn , 327 Wis. 2d 252, ¶26. It explained that Chimel authorized police to
search a vehicle incident to arrest “only when the arrestee is un secured 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, h owever, “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 mig ht 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 t hin hi s 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, Mile s 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 [Meye r] had knowledge of with regard to the February 5th allegations” and that MeyerNo. 2020AP96

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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 a gree. M iles previously used the Lincoln to transport himself and the gun to the Drift In n. 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 Amendm ent 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 a lcohol or drugs might be found in the vehicle; Meyer had not observed any impaired driving, nor had he sm elled 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 OWI

related 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

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11 C urtilage is the land immediately surrounding a house “to which extends the
intimate activity a ssociated 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
de termining whether an area constitutes cu rtilage :

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 ob servation 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 pointi ng to any evidence so establishing, that
his driveway was “ directly abutting his house.” Proximity alone does not suffice. Here, ther e 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 t he search occurred in a constitutionally protected area

. Therefore, s up pression is not warranted.

By the Court.

— Judgment affirmed.No. 2020AP96

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12 This op inion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.