State v. Kahreem Rashah Wilkins, Sr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 8, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals 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

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 short-
barreled 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.”

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No. 2023AP1385-CR

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 semi-
automatic 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.

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No. 2023AP1385-CR

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

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No. 2023AP1385-CR

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)).

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No. 2023AP1385-CR

¶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).

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No. 2023AP1385-CR

¶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

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No. 2023AP1385-CR

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.

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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)

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,1 especially 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.

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No. 2023AP1385-CR(D)

¶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.

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No. 2023AP1385-CR(D)

¶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

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No. 2023AP1385-CR(D)

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.

5