COURT OF APPEALS

DECISION

DATED AND FILED

June 20, 2023

Samuel A. Christensen

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. 2022AP357-CR Cir. Ct. No. 2019CF5378

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

TERRANCE WALTER GATES,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County: 

DANIELLE L. SHELTON, Judge. Reversed and cause remanded.

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). 
No. 2022AP357-CR

2

¶1 PER CURIAM. The State of Wisconsin appeals an order of the 

circuit court granting Terrance Walter Gates’s motion to suppress evidence. Upon 

review, we reverse the circuit court and remand the matter for further proceedings.

BACKGROUND

¶2 On December 5, 2019, the State charged Gates with one count of 

being a felon in possession of a firearm. According to the criminal complaint, 

Milwaukee police responded to “a report of subjects with firearms” at a Milwaukee 

residence. While waiting for additional officers, police noticed a gray vehicle 

parked in front of the residence. The vehicle pulled away after a few minutes and 

the officers followed. After one block, the vehicle pulled over and the occupants 

immediately exited. The passenger—Gates—initially walked away from the 

officers, but was ultimately stopped and searched. When an officer felt a firearm 

on Gates, he fled, and the officers located a firearm in Gates’s flight path. Another 

officer who responded to the scene ultimately located Gates, who was subsequently 

arrested and charged.

¶3 Gates filed a motion to suppress, alleging that police violated his 

Fourth Amendment rights because they lacked reasonable, particularized suspicion 

to stop him and pat him down. 

¶4 At a hearing on the motion, Milwaukee Police Officer Juan Medel

testified that on December 4, 2019, he and his partner Officer Kyle Labensky were 

dispatched to a residence at 3:15 a.m. in response to a “gun complaint” from a caller 

who said that individuals were “carrying long guns,” or “rifles, or shotguns, or any 

other weapons” at that address. Medel testified that he knew that particular 

residence had frequent late-night “after set[s],” or parties after the bars closed.

Medel further testified that because the “nature of the call” involved “long guns,”
No. 2022AP357-CR

3

he and Labensky were dispatched as a backup squad. Medel stated that while 

waiting for the primary squad to arrive, he and Labensky saw a car without 

registration plates, parked in front of the residence, pull away. Medel stated that 

they decided to conduct a traffic stop, but before they could activate their squad 

lights, the car turned the corner and pulled over less than a block away. The driver 

and the passenger—Gates—got out of the car. Medel testified that because of 

concern for long guns, he and his partner approached the car to look for weapons. 

Medel stated that while the driver of the vehicle walked towards the officers, Gates 

initially walked away from vehicle after exiting. Medel stated that he found Gates’s 

behavior suspicious because “he clearly saw us pull up behind him” and “now he’s 

walking away from us,” while the driver of the vehicle approached the officers and 

volunteered that he did not have any weapons on him. Medel stated that he asked 

Gates whether he had any weapons on him, explained why he was in the area, and

asked if Medel could search him. Gates denied having a weapon and allowed Medel 

to frisk him. Medel stated that when he reached Gates’s ankle, he felt a “bulge,” at

which point Gates took off running. Officers recovered a firearm from Gates’s 

flight path and Gates was ultimately apprehended. 

¶5 Labensky testified that he and Medel were dispatched to the residence 

after a call that multiple subjects were coming and going from the residence with 

firearms. Labensky testified consistent with Medel, and stated that he and Medel 

planned to conduct a traffic stop based upon the vehicle’s lack of registration, but 

did not have an opportunity to do so because the vehicle pulled over right away. 

Labensky testified that the officers decided to conduct a field interview when the 

driver and Gates exited the vehicle. Labensky stated that he immediately explained 

the officers’ presence and asked the driver if he could conduct a pat down. Labensky 

stated that the driver was cooperative and while conducting the pat-down, he heard 
No. 2022AP357-CR

4

Medel shout that Gates had a gun. Labensky further testified that Gates then fled 

on foot. 

¶6 The circuit court found the officers’ testimony credible and initially 

denied Gates’s motion to suppress the firearm, but ordered additional briefing 

addressing whether “the frisk” was “reasonable . . . under the circumstances” before 

deciding whether to suppress the officers’ statements. Following additional 

briefing, the circuit court issued a written order suppressing both the gun and the 

officers’ testimony. Relying on Florida v. J.L., 529 U.S. 266 (2000), the circuit 

court found that the State had not met its burden to show that Medel had reasonable 

suspicion for the investigatory stop and protective frisk of Gates. Later, the circuit 

court held an additional hearing in which it made a supplemental “Oral Ruling” to 

“clarify the record.” The circuit court then discussed California v. Hodari D., 499 

U.S. 621 (1991), and found that the seizure “occurred without reasonable 

suspicion.” The circuit court then granted the “motion to suppress anything that 

was discovered after the seizure.” This appeal follows.

DISCUSSION

¶7 On appeal, the State argues that the circuit court erroneously granted 

Gates’s motion to suppress. We review a circuit court’s decision on a motion to 

suppress evidence using a two-step standard. See State v. Lonkoski, 2013 WI 30, 

¶21, 346 Wis. 2d 523, 828 N.W.2d 552. We will uphold the circuit court’s findings 

of fact unless they are clearly erroneous, and we review independently the 

application of the facts to the constitutional principles. See id. “A circuit court’s 

findings of fact are clearly erroneous when the finding is against the great weight 

and clear preponderance of the evidence.” Royster-Clark, Inc. v. Olsen’s Mill, Inc., 

2006 WI 46, ¶12, 290 Wis. 2d 264, 714 N.W.2d 530.
No. 2022AP357-CR

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¶8 The Fourth Amendment to the United States Constitution and article I, 

section 11 of the Wisconsin Constitution protect an individual’s right to be free from 

unreasonable searches and seizures. State v. Young, 2006 WI 98, ¶18, 294 

Wis. 2d 1, 717 N.W.2d 729. However, police may “stop and briefly detain a person 

for investigative purposes if the officer has a reasonable suspicion supported by 

articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks 

probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. 

Ohio, 392 U.S. 1, 30 (1968)). The Fourth Amendment’s protections require that 

police have more than an “inchoate and unparticularized suspicion or ‘hunch[.]’” 

Terry, 392 U.S. at 27. “[W]hat constitutes reasonable suspicion is a common sense 

test: under all the facts and circumstances present, what would a reasonable police 

officer reasonably suspect in light of his or her training and experience.” State v. 

Young, 212 Wis. 2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997).

¶9 The State asserts that under the totality of the circumstances, the 

investigatory stop was reasonable and that the officers had the authority to extend 

the stop after Gates fled. The State further contends that the circuit court’s amended 

decision ignored pertinent facts and that the circuit court misapplied the law related 

to investigatory stops and protective frisks. We agree.

¶10 In rendering its ultimate decision, the circuit court found that the 

officers had reasonable suspicion and “the ability to stop [the] car” based on the lack 

of proper registration plates, but found that the officers lacked the reasonable 

suspicion to stop and frisk Gates. Because the car pulled over and the driver and 

Gates got out before officers activated their lights, the officers did not make a traffic 

stop; instead, they decided to conduct a field interview based upon the 911 call and 

the occupants’ behavior. As Gates walked away from the officers, Medel 

approached him, explained his presence, and asked Gates if he could pat him down 
No. 2022AP357-CR

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for weapons. Gates complied, but when Medel felt the gun under Gates’ sock, Gates 

fled. Accordingly, we agree with the State that Gates was seized when Medel 

conducted the investigatory Terry stop by ordering Gates to stop for temporary 

questioning and conducting a protective frisk for weapons. Terry, 392 U.S. at 21-

24, 30. Our inquiry, therefore, is whether Medel had reasonable suspicion that Gates 

was committing a crime before the seizure based on the totality of circumstances.

We conclude that he did.

¶11 At the suppression hearing, the circuit court found both officers 

credible and made multiple findings of fact to initially deny Gates’s motion to 

suppress the gun. However, the circuit court’s subsequent written decision omitted 

many of its initial factual findings. Relying on J.L., the circuit court found that the 

officers relied only on an anonymous 911 call when they stopped and seized Gates. 

The record does not support the circuit court’s finding that the officers solely, or 

even primarily, relied upon the 911 call. Rather, we conclude that the facts of this 

case are more akin to those of State v. Nimmer, 2022 WI 47, 402 Wis. 2d 416, 975 

N.W.2d 598, where the supreme court relied on the totality of the circumstances to 

conclude that officers had reasonable suspicion to stop and seize Nimmer. Id., ¶3.

There, officers on patrol arrived at an address within about a minute of receiving a 

ShotSpotter report that shots had been fired at that location. Id., ¶27. When they 

arrived at the address provided, only one person, Nimmer, was outside the address. 

Id. When Nimmer saw the officers, he speedily tried to walk away from them and 

began moving strangely. Id., ¶34. Police suspected that Nimmer was trying to 

conceal something. Id., ¶37. Relying on all of the facts available to the officers at 

the time of the stop, our supreme court concluded that reasonable suspicion 

supported the stop. Id., ¶37.
No. 2022AP357-CR

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¶12 Like in Nimmer, the facts taken together support the officers’ 

reasonable suspicion to stop and detain Gates. Indeed, the circuit court even found 

as much at the suppression hearing, but later amended its decision when it omitted

most of its initial factual findings. While the officers responded to a 911 call 

regarding firearms, the officers initially followed Gates because of a traffic law 

violation. The driver of the vehicle pulled over after one block, and both occupants 

immediately exited the car and headed in different directions. The officers found 

Gates’s behavior particularly suspicious because the driver of the vehicle 

approached the officers and offered that he had “nothing” on him, while Gates 

attempted to avoid the officers. Based on the totality of these circumstances, the 

officers’ reasonable suspicion that Gates was committing a crime and was likely 

armed resulted not solely from the anonymous 911 call; rather, it evolved from 

Gates’ increasingly suspicious behavior, in conjunction with the officers’ safety 

concerns based on the location, the late hour, and the dimly lit scene.

¶13 We also agree with the State that the circuit court erroneously relied 

on Hodari D. when it found that that “the police lacked reasonable suspicion for an 

investigative stop” because officers could not consider Gates’s flight as part of the 

“reasonable suspicion calculus.” The facts of that case are distinguishable from the 

case at bar. In Hodari D., the Supreme Court explained that a fleeing suspect who 

did not acquiesce to officers was not seized until he was apprehended and submitted 

to police authority. Id., 499 U.S. at 629. Here, however, Medel lawfully seized 

Gates before Gates fled. Indeed, Medel explained his presence, asked Gates if he 

could frisk him, and Gates agreed. The seizure, as stated, was based on reasonable 

suspicion under the totality of the circumstances. As noted, based on the totality of 

these circumstances, the officers’ reasonable suspicion that Gates was committing 

a crime and was likely armed evolved from Gates’ increasingly suspicious behavior, 
No. 2022AP357-CR

8

in conjunction with the officers’ safety concerns based on the location, the late hour, 

and the dimly lit scene.

¶14 For the foregoing reasons, we agree with the State that the circuit court 

erred both legally and factually when it granted suppression of the officers’ 

testimony and the gun. We reverse the order granting suppression and remand the 

matter for further proceedings.

By the Court.—Order reversed and cause remanded for further 

proceedings.

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

RULE 809.23(1)(b)5.