COURT OF APPEALS

DECISION

DATED AND FILED

October 8, 2024

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. 2023AP1385-CR Cir. Ct. No. 2021CF3574

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

KAHREEM RASHAH WILKINS, SR.,

DEFENDANT-RESPONDENT.

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

DANIELLE L. SHELTON, Judge. Reversed. 

Before White, C.J., Donald, P.J., and Geenen, J.

¶1 DONALD, P.J. The State of Wisconsin appeals from an order 

granting Kahreem Rashah Wilkins, Sr.’s motion to suppress. Contrary to the trial 

court, we conclude that the police lawfully approached Wilkins’s SUV and 
No. 2023AP1385-CR

2

engaged him in conversation. Therefore, we reverse the trial court’s order 

suppressing the evidence. 

BACKGROUND

¶2 Wilkins was charged with one count of possession of a shortbarreled shotgun/rifle and three counts of possession of a firearm by a felon. The 

charges were based on evidence obtained after police conducted a warrantless 

search of Wilkins’s SUV. 

¶3 Wilkins moved to suppress the evidence. At a post-briefing hearing, 

the State presented testimony from Officer Josue Ayala and moved into evidence 

video footage from his body camera.

1

 

¶4 Officer Ayala testified that on August 20, 2021, he was on bicycle 

patrol with three other officers. As the officers were patrolling the Garden Homes 

Neighborhood around 2:00 a.m., they observed a black Yukon SUV parked with 

its engine running.2 Inside the SUV were two occupants: Wilkins, who was in the 

front driver’s seat, and Wilkins’s nephew, who was in the front passenger’s seat. 

¶5 As Officer Ayala rode past the driver’s side of the SUV, he 

immediately smelled the odor of burnt marijuana coming from the partially 

opened driver’s side window. Officer Ayala stopped his bicycle directly outside 

of the driver’s door, one officer stopped behind Officer Ayala, and the other two 

 

1

 We note that the video footage does not capture the initial contact between Officer 

Ayala and Wilkins. Officer Ayala testified that he manually activated his camera once he felt 

safe to do so. 

2

 According to Officer Ayala, the Garden Homes Neighborhood has “a high amount of 

shootings, shots fired, ShotSpotters, [and] drug dealing.” 
No. 2023AP1385-CR

3

officers stopped on the passenger side of the vehicle. Officer Ayala testified that 

these were the positions they would normally take when conducting a traffic stop 

or making contact with a vehicle or person. 

¶6 As soon as Officer Ayala pulled his bicycle next to the driver’s side 

door, Wilkins looked at him, and they started talking through the partially opened 

window. Within approximately ten seconds of speaking with Wilkins, Officer 

Ayala noticed a gun resting in plain view on Wilkins’s lap. Officer Ayala also 

observed a green residue suspected to be marijuana on the right side of the driver’s 

floorboard. Officer Ayala testified that he was able to see inside the vehicle 

because the area was well lit by streetlights. 

¶7 Officer Ayala told Wilkins that he saw the gun and asked if Wilkins 

had a concealed carry permit. Wilkins informed the officer that he did not have a 

permit and stated that he was working on getting “things” expunged from his 

record. Wilkins admitted that he had a conviction for bail jumping and confirmed 

it was a felony. Wilkins explained that the gun was for protection, not robbing 

people. Wilkins denied smoking marijuana. While conversing with Officer 

Ayala, Wilkins smoked a cigarette. 

¶8 Based on Wilkins’s possession of a firearm as a convicted felon, 

Officer Ayala removed Wilkins from the SUV and arrested him. The officers then 

searched the vehicle. The search produced two more firearms: a loaded semiautomatic handgun behind the center console, and a sawed-off shotgun inside a 

duffel bag in the third-row seating/rear cargo area. Officer Ayala also recovered a 

small amount of marijuana residue on the front driver’s floorboard. The residue 

tested positive for THC, but due to the small amount was not able to be weighed. 
No. 2023AP1385-CR

4

No burnt marijuana was found inside the SUV or in the immediate vicinity of the 

SUV. 

¶9 After hearing argument from counsel, the trial court granted the 

defense’s motion to suppress the evidence in a written decision. First, the trial 

court found that Officer Ayala’s testimony that he smelled a strong odor of burnt 

marijuana was incredible. The court thus found that the officers did not have 

reasonable suspicion to stop Wilkins’s vehicle and investigate the odor of 

marijuana. In addition, the court found that the police encounter was not

consensual because “four police officers, while in full uniform, stopped their fully 

marked Milwaukee Police Department bicycles, equipped with emergency red and 

blue lights, surrounded the [SUV], and without justification leaned into 

[Wilkins’s] windows with flashlights to peer inside....” 

¶10 The State now appeals.

DISCUSSION

¶11 On appeal, the State challenges the trial court’s finding that Officer 

Ayala’s testimony that he smelled a strong odor of burnt marijuana was incredible. 

According to the State, the evidence elicited at the suppression hearing supports 

that Officer Ayala smelled burnt marijuana and was “thereby authorized to 

approach and speak to Wilkins through the partially open window.” In the 

alternative, the State contends that Officer Ayala “could properly speak to Wilkins 

at the window of his vehicle as part of a consensual police/citizen encounter on a 

public street.” 

¶12 Even if we assume the trial court properly found that Officer Ayala 

did not smell burnt marijuana, we agree with the State that the officers lawfully 
No. 2023AP1385-CR

5

approached Wilkins in his SUV and engaged him in conversation as part of a 

consensual encounter.

¶13 The Fourth Amendment of the United States Constitution and 

article 1, section 11 of the Wisconsin Constitution provide the right to be free from 

unreasonable searches and seizures. Wisconsin courts generally construe our state 

constitutional protections in the same way as the United States Supreme Court has 

interpreted the Fourth Amendment. State v. Young, 2006 WI 98, ¶30, 294 Wis. 2d 

1, 717 N.W.2d 729. 

¶14 “[A] person has been ‘seized’ within the meaning of the Fourth 

Amendment only if, in view of all of the circumstances surrounding the incident, a 

reasonable person would have believed that he [or she] was not free to leave.” 

County of Grant v. Vogt, 2014 WI 76, ¶20, 356 Wis. 2d 343, 850 N.W.2d 253 

(quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). The test of 

whether a person is free to leave is objective, and “considers whether an innocent 

reasonable person, rather than the specific defendant, would feel free to leave 

under the circumstances.” Vogt, 356 Wis. 2d 343, ¶¶25, 30. This is a “highly 

fact-bound inquiry.” State v. VanBeek, 2021 WI 51, ¶29, 397 Wis. 2d 311, 960 

N.W.2d 32 (citation omitted). 

¶15 Not every police-citizen interaction, however, implicates the Fourth 

Amendment. Id., ¶26. “Law enforcement officers may approach citizens on the 

street, put questions to them, and ask for identification without implicating the 

Fourth Amendment ‘as long as the police do not convey a message that 

compliance with their request is required.’” Id. (citing Florida v. Bostick, 501 

U.S. 429, 434 (1991)). 
No. 2023AP1385-CR

6

¶16 When determining whether a person has been seized, we apply a 

mixed standard of review. Vogt, 356 Wis. 2d 343, ¶17. We will uphold the trial

court’s “findings of fact unless they are clearly erroneous, but the application of 

constitutional principles to those facts presents a question of law subject to de 

novo review.” Id. (emphasis added). 

¶17 The State contends that under the facts of this case a reasonable 

person would have felt free to end the encounter up until the point that Officer 

Ayala saw the gun on Wilkins’s lap. Once Officer Ayala saw the gun, this 

provided reasonable suspicion of criminal activity to investigate the legality of the 

firearm. Conversely, Wilkins contends that he was seized when the officers 

“effectively surround[ed]” his vehicle because a reasonable person would not have 

felt free to leave. 

¶18 We agree with the State. When the officers approached Wilkins, he 

was sitting in a parked SUV with the engine running on a well-lit public street. 

There was no evidence presented that the officers activated the emergency lights 

on their bicycles, used forceful language, displayed their firearms, or placed a 

hand on Wilkins or his nephew. Moreover, the officers did not position their 

bicycles in front of the SUV, which would have prevented Wilkins from pulling 

forward and driving away. See id., ¶41 (holding that there was no seizure because 

the defendant “still could have driven away”). “While it is true that ‘most citizens 

will respond to a police request, the fact that people do so, and do so without being 

told they are free not to respond, hardly eliminates the consensual nature of the 

response.’” State v. Williams, 2002 WI 94, ¶23, 255 Wis. 2d 1, 646 N.W.2d 834 

(citation omitted). 
No. 2023AP1385-CR

7

¶19 Wilkins notes that the officers were in “full uniform” and “armed.” 

We do not find these facts remarkable. As the United States Supreme Court has 

observed:

Officers are often required to wear uniforms and in many 

circumstances this is cause for assurance, not discomfort. 

Much the same can be said for wearing sidearms. That 

most law enforcement officers are armed is a fact well 

known to the public. The presence of a holstered firearm 

thus is unlikely to contribute to the coerciveness of the 

encounter absent active brandishing of the weapon. 

United States v. Drayton, 536 U.S. 194, 204-05 (2002). Here, there was no 

evidence presented that any of the officers displayed a firearm or had their hands

on a firearm. 

¶20 Wilkins also notes that Officer Ayala used a flashlight to illuminate 

the inside of the SUV. We are not convinced, however, that using a flashlight to 

illuminate the inside of a vehicle transforms a consensual encounter into a seizure. 

See e.g., United States v. Lawhorn, 735 F.3d 817, 820 (8th Cir. 2013) (stating that 

“[t]he act of shining a spotlight on a person’s car typically does not constitute a 

seizure”); United States v. Douglass, 467 F.3d 621, 624 (7th Cir. 2006) (rejecting 

an argument that the defendant was seized where the officers stood with 

flashlights on each side of the defendant’s car because the defendant “still could 

have declined to answer their questions and driven away”).

¶21 Lastly, United States v. Smith, 794 F.3d 681 (7th Cir. 2015), which 

Wilkins relies on, is distinguishable. In Smith, two bicycle patrol officers, who 

were armed and wearing full uniforms, were investigating some gunshots when 

they saw Smith as he was about to enter a dark alley alone. Id. at 683-84. Rather 

than engaging with Smith “on the more open and presumably illuminated street,” 

the officers waited for Smith to enter the alley. Id. at 684-85. The officers then 
No. 2023AP1385-CR

8

rode past Smith into the alley, made a U-turn to face him, and positioned their 

bicycles to obstruct Smith’s path forward. Id. at 685. An officer then approached 

Smith with his hand on his gun and immediately asked Smith if he had a weapon. 

Id. at 683. The officers considered Smith a suspect in the shooting incident. Id. at 

686-87. The Seventh Circuit held that Smith was seized as “a reasonable person 

in Smith’s situation would not have felt at liberty to ignore the police presence and 

go about his business.” Id. at 685. 

¶22 In contrast, here, Wilkins was sitting with his nephew in a large 

SUV with its motor running on a well-lit public street when the officers 

approached. The officers, who were on a routine patrol, did not position their 

bicycles to block the SUV’s path forward. Compare also with United States v. 

Burton, 441 F.3d 509, 510-11 (2006) (holding that police officers seized a car 

where one of the officers placed his bicycle in front of the car and the others 

placed their bicycles on either side of the car). Additionally, there was no 

evidence presented that any of the officers had their hands on their firearms. 

¶23 Therefore, under all of the circumstances of this case, we conclude 

that the police officers’ initial interaction with Wilkins was a consensual encounter 

and not a seizure implicating his Fourth Amendment rights. Wilkins was free to 

refuse to speak to the officers and leave. See Vogt, 356 Wis. 2d 343, ¶30. 

Accordingly, we reverse the trial court’s order granting suppression. 

By the Court.—Order reversed. 

Not recommended for publication in the official reports.
No. 2023AP1385-CR(D)

¶24 GEENEN, J. (dissenting). This case is straightforward, and the 

facts pertinent to the Majority opinion are accurately summarized. However, I 

cannot agree that a reasonable person would have believed that he or she was free 

to leave when four uniformed and armed police officers on marked bicycles 

surrounded the doors to a running vehicle parked on a city street in a high-crime 

area at around 2:00 a.m. In my view, these circumstances constitute a seizure 

because no reasonable person would believe they could simply drive away or exit 

the vehicle and leave.

¶25 Because I conclude that a seizure occurred, I must also review the 

circuit court’s determination that there was no reasonable suspicion to justify the 

seizure. The circuit court found that Officer Ayala’s testimony that he 

immediately smelled burnt marijuana before approaching Wilkins’s SUV was not 

credible, and as a consequence, there was no reasonable suspicion to support 

Wilkins’s seizure. Searching the record for evidence that supports this finding, 

which I must do, I conclude that it is not against the great weight and clear 

preponderance of the evidence.

¶26 I would affirm the circuit court. Accordingly, I respectfully dissent.

I. Wilkins was seized.

¶27 The Majority correctly summarizes the applicable legal principles. 

Majority, ¶¶13-16. The test for whether a person is “seized” is whether, under the 

totality of the circumstances, a reasonable person would have believed that he or 
No. 2023AP1385-CR(D)

2

she was not free to leave. County of Grant v. Vogt, 2014 WI 76, ¶20, 356 Wis. 2d 

343, 850 N.W.2d 253.

¶28 These are the circumstances in this case: It was around 2:00 a.m. in 

a high-crime area of Milwaukee; the vehicle, a large SUV, was parked on a city 

street with its engine running; four uniformed and visibly armed police officers on 

marked bicycles positioned themselves around the SUV, two on the driver’s side 

and two on the passenger’s side; the position taken by the police officers is the 

same one used when they initiate a traffic stop. 

¶29 No reasonable person I can imagine would feel free to drive away 

under these circumstances. A reasonable person would be concerned that driving 

away could be viewed as violating a traffic law or a law regarding fleeing or 

endangering an officer,1especially considering that Officer Ayala testified that he 

was close enough to the SUV to see an amount of green residue on the driver’s 

floorboard by Wilkins’s feet that was so insubstantial that it could not be weighed.

¶30 Similarly, no reasonable person would believe they could exit the 

vehicle and leave the scene. Police officers were blocking both the driver and 

front passenger door, and if the neighborhood did indeed have a high rate of drug 

deals and shootings as Officer Ayala testified, getting out of the vehicle after it has 

been approached and surrounded by four police officers could, perhaps 

reasonably, be viewed as threatening. 

 

1

 Given the size of the SUV, the positioning of the police officers, and their proximity to 

the SUV, a reasonable person would be concerned that driving off would actually endanger the 

officers’ safety.
No. 2023AP1385-CR(D)

3

¶31 While it is true that the cases relied upon by Wilkins do not precisely 

mirror the facts presented in the instant case, see, e.g., United States v. Smith, 794 

F.3d 681 (7th Cir. 2015), the existence of a case factually identical to the one 

being considered on appeal is not the test. I am not persuaded that driving away or 

exiting the SUV were realistic or reasonable options considering the totality of the 

circumstances presented in this case, or that an actual reasonable person living in 

the real world would feel free to leave under these circumstances.2

II. The circuit court’s findings are not against the great weight and 

clear preponderance of the evidence.

¶32 Because I conclude that Wilkins was seized, I must also review the 

circuit court’s determination that there was no reasonable suspicion to justify the 

seizure. In this case, the circuit court essentially found that Officer Ayala did not 

immediately smell burnt marijuana coming from the SUV before approaching it, 

and therefore, he lacked reasonable suspicion to seize Wilkins.

¶33 In resolving a motion to suppress evidence, “[a]ll issues of fact 

arising out of such motion shall be tried by the court without a jury.” WIS. STAT. 

§ 971.31(4). When a circuit court sits as the fact-finder, its findings are entitled to 

great deference. State v. Moore, 2023 WI 50, ¶8, 408 Wis. 2d 16, 991 N.W.2d 

412. Findings of fact made by the circuit court may be upset on appeal only if 

“they are against the great weight and clear preponderance of the evidence.” State 

v. McGill, 2000 WI 38, ¶17, 234 Wis. 2d 560, 609 N.W.2d 795. 

 

2

 Studies demonstrate that the mythical “reasonable person” who exists only in judicial 

decisions does not generally reflect what real, everyday people think and how they act when 

approached by law enforcement officers. County of Grant v. Vogt, 2014 WI 76, ¶71 & nn. 5-6, 

356 Wis. 2d 343, 850 N.W.2d 253 (Abrahamson, J., dissenting) (collecting studies). This case 

presents an example of the world of legal decisions failing to reflect the real world. See id. 
No. 2023AP1385-CR(D)

4

¶34 Appellate courts cannot “‘reweigh the evidence or reassess the 

witnesses’ credibility[.]’” State v. Young, 2009 WI App 22, ¶17, 316 Wis. 2d 

114, 762 N.W.2d 736 (citation omitted). Instead, reviewing courts must “‘search 

the record for evidence that supports findings the [circuit] court made, not for 

findings it could have made but did not.’” Id. (citation omitted). If more than one 

inference can be drawn from the credible evidence, “the reviewing court must 

accept the inference drawn by the trier of fact[,]” and when there is a dispute about 

a fact, “the [circuit court] is the ultimate arbiter of the credibility of the witnesses.” 

Cogswell v. Robershaw Controls Co., 87 Wis. 2d 243, 250, 274 N.W.2d 647 

(1979). 

¶35 I conclude that the record supports the circuit court’s findings. 

Although the circuit court mistakenly found that the green residue found on the 

driver’s floorboard did not test positive for THC, all of its other findings are 

supported by the record and are adequate to support its order granting the motion 

to suppress. The circuit court disbelieved that Officer Ayala immediately smelled 

burnt marijuana coming from the SUV because there was no evidence 

corroborating Officer’s Ayala’s testimony. 

¶36 For example, it found that there was no paraphernalia or burnt 

marijuana inside the SUV. The State argues that this could be because Wilkins 

and his nephew consumed all of the marijuana and discarded the remnants of their 

joint or blunt somewhere before parking the SUV, or they could have been 

smoking marijuana through hollowed out cigarettes. The State’s explanation is, at 

best, a permissible inference that the circuit court could have drawn but did not. 

The same is true with respect to the State’s argument that the circuit court should 

have found that the presence of an air freshener in the SUV was corroborative 
No. 2023AP1385-CR(D)

5

evidence because marijuana users sometimes use air fresheners to mask the smell 

of marijuana. 

¶37 In sum, the State argues that the circuit court should have made 

various inferences that would have explained the absence of corroborating 

evidence. It did not do so, and it instead concluded that the lack of corroborating 

evidence damaged Officer Ayala’s credibility. On this record, the circuit court’s 

finding that Officer Ayala did not immediately smell burnt marijuana coming from 

Wilkins’s SUV before he approached it was not against the great weight and clear 

preponderance of the evidence.3

¶38 I would affirm the circuit court’s order granting Wilkins’s motion to 

suppress. Accordingly, I respectfully dissent.

 

3

 Although not necessary to my analysis, a central premise giving rise to this appeal may 

no longer be true, namely, that the odor of marijuana (burnt or unburnt) is “unmistakabl[y the] 

odor of a controlled substance[.]” State v. Secrist, 224 Wis. 2d 201, 218, 589 N.W.2d 387 

(1999). Justice Dallet summarized the relevant issues in her dissent in State v. Moore, 2023 WI 

50, ¶¶28-32, 408 Wis. 2d 16, 991 N.W.2d 412 (Dallet, J., dissenting). This issue continues to be 

litigated, with the Minnesota Supreme Court holding last year that the odor of marijuana, on its 

own, is insufficient to create probable cause to conduct a warrantless search of a vehicle. State v. 

Torgerson, 995 N.W.2d 164 (Minn. 2023). This case involves reasonable suspicion, a lower 

standard than probable cause, and the smell of marijuana indisputably can still signal the 

possibility of criminal activity, but if the illegal substance (i.e., marijuana) cannot be 

differentiated from a legal substance (e.g., hemp) by appearance or smell, it is difficult to 

understand what would make a suspicion of criminal activity reasonable, absent any other 

relevant factors.