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Case No: 2006AP31
Issue: Informants; Search Incident to Arrest; Suppression of Evidence
Holding: Information provided by a confidential informant was insufficient to create reasonable suspicion. The tip neither demonstrated a basis of knowledge nor allowed for much corroboration. There was also no valid consent to search because the detention extended beyond the permissible scope of the traffic stop and police lacked reliable information to support further detention.
A confidential informant told police that Kolk would be transporting Oxycontin to Madison. The informant provided a description of Kolk and his automobile. Officers set up surveillance, observed Kolk leave his residence and drive, possibly in the direction to Madison. They stopped Kolk for speeding, gave him a written warning, and asked to search the vehicle. The officer frisked Kolk and found a bottle of pills he identified as oxycodone. Officers arrested Kolk because he did not have a prescription for the drugs, searched the vehicle incident to arrest and found more drugs. At trial, Kolk moved to suppress the evidence; both Kolk and the State focused on the frisk as the key moment in the encounter and contested issues of reasonable suspicion, danger to the officer, the permissible scope of the pat-down search, and consent. However, the appellate court did not find it necessary to examine the issues of danger to the officer or the scope of the pat-down search because neither reasonable suspicion nor consent was present.
The court found that the information from the confidential informant was insufficient to create reasonable suspicion. It distinguished the reliability of the information the police received from that of State v. (Roosevelt) Williams, 2001 WI 21, 241 Wis. 2d 631, 623 N.W.2d 106. The court noted that unlike (Roosevelt) Willliams, in Kolks case the police were only able to corroborate: 1) Kolks identity; 2) what kind of vehicle he drove, and 3) the fact that he would drive it, possibly on the way to Madison. The court found the information was both more widely available and less significant than that in (Roosevelt) Willliams. The tip neither demonstrated a basis of knowledge nor allowed for much corroboration. The court held that under all of the facts and circumstances, the information possessed by the police was of insufficient reliability to justify Kolks continued detention.
The State responded that the informant provided predictive information that strengthened the reliability of the tip. The court disagreed noting that the predictive information essentially amounted to the prognostication that Kolk would drive his vehicle in a direction that would not preclude his being headed to Madison. It distinguished Kolks case from Alabama v. White, where officers observed a woman drive at a predicted time, take the most direct route toward a motel the tipster predicted, and stopped her just short of that motel. 496 U.S. 325 (1990). The court noted that the Supreme Court upheld that stop but called the case close. The court felt that Kolks stop fell on the opposite side of that close line.
As an alternate basis for the pat-down, the State argued that Kolk voluntarily consented, which lead to the discovery of the drugs. To examine this issue the court highlighted the distinction between State v. (Lawrence) Williams, (consent held valid) 202 WI 94, 646 N.W.2d 834 to State v. Jones, (consent held invalid) 2005 WI App 26, 693 N.W.2d 104. The court explained that in (Lawrence) Williams the officer by his words and actions, created a situation in which a reasonable person would believe that he or she was free to leave, whereas in Jones, the defendants detention continued after the business of the traffic stop was concluded. The court found that Kolks case was more aligned with the facts of Jones. In conclusion, the court held that it would be a legal fiction to conclude that Kolk was not detained when the officer asked for consent to search him and his vehicle. The traffic stop had ended, but Kolks detention had not; and given the lack of reliable information supporting further detention, the stop and its attendant searches were unlawful.
Case No: 2005AP3087
Issue: Miranda; Waiver
Holding: An officers response to Hambly that his arrest was related to three cocaine sales to an informant was not the functional equivalent of interrogation. Despite invoking his Miranda rights, Hambly waived his right to counsel because he initiated further conversation and the waiver was knowingly and intelligently made.
Hambly was convicted of delivery of cocaine. On appeal he sought to suppress his statements to the police by arguing that his request for counsel was not honored and that he was subjected to the functional equivalent of an interrogation.
Officers approached Hambly and asked him to come to the police station to talk about several drug transactions that he was involved in. Hambly replied that he did not want to talk to the officers. An officer arrested Hambly, handcuffed him, and escorted him to the squad car. As they approached the squad, Hambly said he wanted to talk to an attorney.
While sitting in the vehicle, Hambly told the officer that he did not know why he was under arrest. The officer responded that they believed he sold cocaine to an informant on three occasions. Hambly then said he wanted to talk to the detective to find out what his options were. Hambly was read his Miranda rights and signed a waiver form. He subsequently made incriminating statements during an interview with an officer.
Hambly moved to suppress because his incriminating statement was made in response to police interrogation, in custody, and after invoking his right to counsel. He argued that the officers statement that Hambly was under arrest because they believed he sold cocaine to an informant was the functional equivalent of interrogation. To answer this question, the court applied a five-part test from State v. Bond. 2000 WI App 118, 614 N.W.2d 552. In Bond the court determined: 1) the officers words were not normally attendant to arrest and custody, 2) the officer had specific knowledge such that he should have known his words were reasonably likely to elicit an incriminating response, 3) an impartial observer would perceive the officers intent to be to elicit a response, 4) the officers words were provocative and anything but offhand, 5) the officer spoke directly to the defendant.
The court distinguished Hamblys situation from Bond and held that the officers explanation that Hamblys arrest was related to three cocaine sales to an informant was not the functional equivalent of interrogation.
The court then addressed Hamblys contention that upon his request for an attorney, all interrogation should have immediately ceased. The court noted that the right to counsel can be waived and applied a two-part test the U.S. Supreme Court established in Oregon v. Bradshaw. 462 U.S. 1039, 1045 (1983). First, it considered whether the accused initiated further dialogue in a way evincing a willingness and a desire for a generalized discussion about the investigation. Second, it determined whether, under the totality of the circumstances, subsequent events demonstrate a knowing and intelligent waiver of the right to have counsel present during questioning.
The appellate court agreed with the district court that Hambly initiated the conversation after he had invoked his right to counsel. It then held that he knowingly and intelligently waived his right to counsel.
In conclusion, the court first held that Hamblys inculpatory statement did not stem from the functional equivalent of interrogation. Secondly, Hambly waived his right to counsel because he initiated further conversation and the waiver was knowingly and intelligently made.
Case No: 2005AP2767
Issue: Issue Preclusion; Administrative Hearings; Probable Cause to Arrest
Holding: Issue preclusion did not apply because the issue of probable cause to arrest was not actually litigated during the judicial review of an administrative hearing.
Nytsch was arrested for operating a motor vehicle while intoxicated and for operating a motor vehicle with a prohibited alcohol concentration. The arresting officer provided Nytsch with a Notice of Intent to Suspend his driving privileges for six months.
Nytsch requested and received an administrative suspension
hearing. Section 343.305(8)(b) sets fourth the issues the DOT
hearing examiner may address at the administrative hearing. One
issue is whether probable cause existed for the arrest. The DOT
examiner found probable cause and suspended Nytschs driving
Nytsch sought judicial review of the administrative suspension. The City of Sheboygan Assistant City Attorney was assigned to represent the interests of the DOT at the judicial review hearing. However, when the review court asked about the status of the judicial review the city attorney stated, Well, obviously we are not a party to the administrative suspension, so I dont have any information on what happened. Nytsch requested the court resolve the issues in his favor and to vacate the administrative suspension. The judicial review court vacated the administrative suspension because the City presented no evidence on the issues set forth in § 343.305(8)(b)2.
Subsequently, Nytsch filed a motion to suppress evidence based on lack of probable cause to arrest. He argued that the doctrine of issue preclusion prevented litigating the issue of probable cause because that issue had already been considered and decided in both the administrative suspension and the judicial review hearing. Issue preclusion is designed to limit the relitigation of issues that have been contested in a previous action by the same or different parties.
The assistant city attorney responded that Nytschs request for judicial review did not raise the issue of probable cause but only highlighted his family issues. The trial court granted Nytschs motion so he could drive a little longer and dismissed the case.
On review, the appellate court noted that for issue preclusion to apply an issue must have been litigated in a previous action and be necessary to the judgment. The court concluded that the question of whether the arresting officer had probable cause to arrest Nytsch was not actually litigated during the judicial review hearing. It noted that no testimony was taken or evidence introduced during the hearing. Because the question of probable cause to arrest was not actually litigated, the City is not precluded from litigating that issue on the merits. The appellate court held that the circuit court erred in granting Nytschs motion to suppress and in dismissing the case. Accordingly, it reversed and remanded the case.
Case No: 2005AP658-CR
Issue: Homicide by Negligent use of a Vehicle
Holding: The court of appeals concluded that the State presented sufficient evidence for the jury to find the defendant guilty of homicide by negligent use of a vehicle.
Schutte was driving her car, with three passengers, on a rural, two-lane highway that was icy and slippery in places. On a curve in the highway, Schuttes car crossed the centerline and collided with another vehicle, killing all three passengers. As a result, she was charged with three counts of homicide by negligent operation of a vehicle under Wis. Stat. § 940.10(1). Schutte provided several different accounts of what she was doing just before the collision. In some, she claimed that she was changing a compact disc; in others, she claimed that she had leaned down to pick up a French fry. Additionally, there was evidence that Schutte had smoked marijuana before the collision occurred. At the scene, Schutte told a firefighter and officer that she had smoked marijuana earlier in the day. She later told another officer and the coroner that she had smoked marijuana that evening, admitting to one that she had taken a few hits while driving. Schutte also admitted taking twice as much as the recommended dose of cold syrup containing codeine earlier in the day.
At trial, the defense presented a number of witnesses who testified to the snowy, slippery road conditions on the night of the collision. An accident reconstruction expert called by the defense opined that the collision occurred after Schutte lost control of her vehicle due to slippery conditions. Despite this evidence, a jury found Schutte guilty of all three counts as charged. Schutte appealed her convictions on a number of grounds.
Sufficiency of the Evidence
First, Schutte challenged the sufficiency of the evidence presented by the State to convict her of homicide by negligent operation of a vehicle under Wis. Stat. § 940.10(1). She contended that sustaining her conviction would render Wis. Stat. § 940.10 a strict liability offense, authorizing felony punishment for any driver who loses control of a vehicle resulting in a fatal accident. Schutte argued that a mechanistic view that crossing of the center line constitutes criminal negligence would irrationally extend felony liability to accidents that resulted from unexpected health or mechanical emergencies. Schutte asked the court to clarify the line between those circumstances where a fatal vehicle accident, though unquestionably tragic, is a matter to be addressed in the civil courts applying traditional negligence principles, and those situations where a motorists conduct is sufficiently egregious to be punished as criminal negligence. She maintained that the collision was an accident that did not involve the particularly egregious circumstances for which prosecutions under Wis. Stat. § 940.10(1) are reserved.
In rejecting Schuttes challenge to the sufficiency
of the evidence, the court of appeals engaged in a lengthy discussion
of what the State is required to prove in order to establish a
violation of Wis. Stat. § 940.10(1). After closely
examining the applicable statute and relevant case law, the court
concluded that to sustain a conviction of § 940.10(1), the State must
satisfy jurors beyond a reasonable doubt that the defendant engaged in
conduct, which under all of the circumstances present, the defendant
should have realized created a substantial and unreasonable risk of
death or great bodily harm to another person. The court pointed
out that a defendant may avoid criminal liability if he or she can
establish that the risk of life-threatening consequences was not a
substantial one, or if it was, that the circumstances rendered the risk
not unreasonable. Here, the court held that the State met its
As the court acknowledged, a violation of a traffic
statute, standing alone, does not necessarily prove that a defendant
engaged in criminally negligent conduct. Therefore, in order to
convict Schutte of violating Wis. Stat. § 940.10, the State needed to
establish something more than the mere fact of Schuttes car crossing
the highway centerline. Here, the something more was the
circumstances under which Schutte was driving her car. The State
summarized her conduct as: Schutte drove too fast for conditions on an
obviously treacherous road during obviously dangerous weather
conditions, took her eyes off the road, drove with one hand while
eating or reaching for an object or passing an object around, and
crossed the centerline of the road at a high rate of speed. In
light of these facts, the court held that the State produced sufficient
evidence to sustain the jurys guilty verdict.
Improper Jury Instruction
Schutte next asked the appellate court to reverse her conviction based upon an improper jury instruction. During closing arguments, defense counsel told the jury that the State had to prove which of Schuttes alleged tasks while driving caused the accident, i.e. reaching for a French fry, a CD, or passing some other object. In response to the States objection, the trial court advised the jury that defense counsels statement was an incorrect statement of the law. It then instructed the jury, based on State v. Johannes, 229 Wis. 2d 215, that a jury generally does not have to agree on the way a defendant participated in a crime but only must agree that the defendant committed the crime. The court continued to quote the Johannes decision, eventually reading the following statement: [A]s we have previously stated, the criminally negligent act in this case was when Johannes drove across the highways centerline. The defense took issue with this particular statement, claiming that the instruction amounted to a judicial endorsement of a finding of guilt based on the mere fact that Schuttes vehicle crossed the center line. The appellate court disagreed and held that the curative instruction did not incorrectly state the law regarding the States burden of proof and the proper application of the unanimity requirement to the evidence adduced at trial.
The Marijuana Evidence
Finally, Schutte contended that the trial court erred by allowing the State to present testimony regarding her use of marijuana prior to the collision. She argued that the evidence was not relevant but, even if it was, its probative value was substantially outweighed by the danger of unfair prejudice. Specifically, she argued that because the toxicology expert could not tie the level of THC in Schuttes blood to a specific level of impairment it could not be said that the THC evidence made it more probable that she was driving in a criminally negligent fashion. Schutte suggested that admission of this evidence invited jurors to speculate as to the impact of her marijuana use, without the benefit of expert testimony to guide them. The court of appeals disagreed. Although the toxicology expert could not tie the THC to a specific level of impairment, the expert testified to several effects that all directly relate to a persons ability to drive. According to the court, Schuttes marijuana use was part and parcel of the circumstances under which Schutte was driving that jurors were instructed to consider when determining whether her conduct was criminally negligent. The evidence was highly probative of the central issue in the prosecution, and its probative value was not substantially outweighed by the danger of unfair prejudice. As such, the trial court did not err in admitting the evidence.
Case No: 2005AP2560-CR
Issue: Collateral Attack; Right to Counsel
Holding: A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding only on the ground that the defendant was denied the constitutional right to counsel. The defendant must make a prima facie showing that he/she was deprived of the right to counsel.
Hammill appealed an OWI, fifth offense, conviction. He argued: 1) the circuit court erroneously counted for penalty enhancement purposes a prior Barron County OWI conviction in which he was deprived his right to counsel; 2) his counsel was ineffective by arguing the wrong legal standard regarding the collateral attack of his Barron County conviction; and 3) the court erroneously counted a Village of Cameron OWI conviction for penalty enhancement purposes because the Village did not have subject matter jurisdiction to convict him.
Barron County Conviction
The court noted that a defendant may collaterally attack a prior conviction in an enhanced sentence proceeding only on the ground that the defendant was denied the constitutional right to counsel. State v. Hahn, 2001 WI 118, ¶25. To succeed, the defendant must bring forth evidence to make a prima facie showing that the defendant was deprived of the constitutional right to counsel. State v. Ernst, 2005 WI 107, ¶2. Hammill was unable to obtain a transcript of the proceeding due to the destruction of the court reporters notes and did not remember what occurred at that proceeding. Because Hammill failed to make a prima facie showing, the court rejected this collateral attack.
Ineffective Assistance of Counsel
The court noted that to establish a claim of ineffective assistance of counsel, a defendant must show both that the trial counsels performance was deficient and that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 697 (1984). Hammill argued that his counsel was ineffective because it argued that his previous waiver of counsel was insufficient under the standard of State v. Bangert, 131 Wis. 2d 246 (1986), rather than the more exacting standard of Pickens v. State, 96 Wis. 22d 549 (1980). The court rejected this claim because the alleged error is unlikely to have changed the outcome. It noted that the Pickens standard was argued at the postconviction stage and the previous court nonetheless found a valid waiver.
Village of Cameron Conviction
Hammill argued that the Village of Cameron lacked subject matter jurisdiction to convict him. The State responded that Hammills challenge is barred by State v. Hahns bright-line rule that during an enhanced sentence proceeding, a prior conviction may only be challenged based on a violation of the constitutional right to counsel. 238 Wis. 2d 889. Hammill replied that Hahn did not specifically address whether a void judgment could be used to enhance a sentence. The court disagreed and held that Hahn is a broad, bright-line rule. Since Hammills challenge to the conviction was not based on a denial of his right to counsel, it is barred by Hahn.
Case No: 2005AP1013-CR
Issue: Fourth Amendment Seach and Seizure
Holding: An initially valid stop turned into an illegal seizure due to the duration and nature of the encounter. Consequently, Luebeck's consent to search was invalid.
The State appealed from a trial court order suppressing drug evidence found during a consent search of Luebecks vehicle. The court of appeals affirmed the suppression of the evidence because Luebecks consent to search was invalid as the result of an illegal seizure.
An officer stopped Luebeck for lane deviation.
The officer detected an odor of intoxicants and Luebeck admitted that
he came from a bar. The officer asked Luebeck and his passenger
for identification. Both had valid DLs and neither had any
outstanding warrants. The officer asked Luebeck to perform field
sobriety tests. Luebeck passed the field sobriety tests and blew a .02
in a preliminary breath test (PBT).
The officer told Luebeck that he was going to issue
him a warning for the lane deviation and then release him. The
officer requested Luebecks passenger take a PBT because the officer
preferred that someone with no alcohol or less alcohol drive the
vehicle. Luebeck did not object. Before approaching the
passenger, the officer asked for consent to search Luebeck. He
agreed and the search produced nothing. The officer asked to
search the vehicle and Luebeck responded, Go ahead. The search
produced a baggie of marijuana. Luebeck was arrested and charged
with one count of possession of marijuana.
The question presented on appeal was whether Luebeck was still seized within the meaning of the Fourth Amendment when he gave consent to search his vehicle.
The State argued that, under State v. Gaulrapp, one or two consent questions that do not unreasonably extend the traffic stop in scope or duration are permissible. Gaulrapp held that When there is justification for a [Terry v. Ohio,
392 U.S. 1 (1968)] stop, it is the extension of a detention past the
point reasonably justified by the initial stop, not the nature of the
questions asked, that violates the Fourth Amendment. Gaulrapp,
207 Wis. 2d at 609. The court expressly distinguished Gaulrapp,
from other cases that involve prolonged detention after the officers
concluded or should have concluded that the justification for the
initial stop did not warrant further detention. Gaulrapp,
207 Wis. 2d at 608. The court noted that unlike Gaulrapp,
Luebeck was detained for over twenty minutes, his drivers license was
held by police, no citation or warning for lane deviation had yet been
issued, he passed all of the field sobriety tests and his preliminary
breath test indicated a blood alcohol content below the legal limit,
yet he was being questioned about his passengers ability to drive in
The court agreed with the trial courts application of State v. Jones to the current case. Jones
held that a search authorized by consent is wholly valid unless that
consent is given while an individual is illegally seized. 278 Wis. 2d
774, ¶9. The court stated for purposes of Fourth Amendment
analysis, under Jones the court must apply an objective
test as to whether, under the totality of the circumstances, a
reasonable person would have believed that he or she was not free to
leave and the trial court correctly applied this standard.
The court of appeals held that under the totality of
the circumstances any reasonable person in Luebecks position would
have believed that he or she was not free to leave or terminate the
encounter with the police. Consequently, Luebecks consent to
search was invalid.
Case No: 2005AP1372-CR
Issue: Constitutionality of §940.25(1)(am), Causing Injury by Intoxicated Use of a Motor Vehicle (great bodily harm)
Holding: Wis. Stat. §940.25(1)(am) & (2)(a) do not violate Gardner's constitutional rights. The statutes do not violate due process, the Eigth Amendment, or create a "status offense."
Gardner crashed his motor vehicle into a tree and severely injured his passenger. He told officers he must have fallen asleep at the wheel and consented to a test of his blood. No alcohol was detected, but substantial amounts of cocaine and the metabolites of cocaine were found.
Gardner appealed his conviction for injury by intoxicated use of a motor vehicle by claiming that §940.25(1)(am) & (2)(a)
are unconstitutional. He argued that the statutes violate due
process by creating presumptions of guilt and shifting the burden of
proving innocence to the defendant. He also asserted that it was
improper for the legislature to enact the statute without requiring the
State to prove a causal connection between the controlled substance in
the blood and the injury.
I. Presumption Argument
The court agreed with the States argument that the statute does not create any presumptions; rather, the statute simply defines a criminal offense and an affirmative defense to that offense.
The court noted that §940.25(1)(am)
has two elements which the state must prove: 1) the defendant operated
a vehicle with a detectable amount of a restricted controlled
substance in his or her blood; and 2) the defendants operation of the
vehicle caused great bodily harm to the victim. Section 940.25(2)(a)
creates an affirmative defense that absolves the defendant of liability
if he or she can prove that great bodily harm would have occurred even
if he or she had been exercising due care and had not had a detectable
amount of a controlled substance in his or her blood.
II. Status Offense/Eighth Amendment
The court rejected Gardners contention that the statutes create an impermissible status offense. See State v. Bruesewitz, 57 Wis. 2d 475, 479-80, 204 N.W. 2d 514 (1973) (Eighth Amendment prohibits making it a crime to be addicted to narcotics . . . Criminal liability [cannot] be based on the mere status of addiction.) The court held that Gardners claim of a status offense does not apply as §940.25(1)(am) penalizes conduct (operating with a restricted controlled substance in ones blood and causing great bodily harm), not status.
Gardner asserted it was improper for the legislature to enact the statute without requiring the State to prove a causal connection between the controlled substance in the blood and the injury. He argued that some drugs stay in ones system long after their effects wear off.
The court responded that the legislature
criminalized a specific act driving with any amount of a restricted
controlled substance in ones blood, where the driving causes great
bodily injury to another human being. Thus, the only causal
connection required is that the operation of the vehicle caused the
injury. In support of its position, the court cited State v. Caibaiosai,
122 Wis. 2d 587, 594, 363 N.W. 2d 574 (1985). In that case, the
court held that homicide by intoxicated use of a vehicle does not
require a causal connection between the defendants intoxication and
the death, it requires only a causal connection between the operation
of a vehicle and the resulting injury. Id.
The Gardner court concluded that the legislatures
failure to require the State to prove a direct link between the
presence of a restricted controlled substance and the resulting injury
is not fatal to the legality of the statute.
IV. Affirmative Defense
Finally, the court rejected Gardners contention that the affirmative defense § 940.25(2)(a) improperly transfers the burden of proof from the State to the defendant. The Court held that the statute does not shift the burden to the defendant to prove he or she is innocent. Rather, it requires a defendant to prove that despite the fact that the State has satisfied the elements of the offense, he or she cannot be held legally responsible under the statute.
Case No: 2005AP472-CR
Issue: Collateral Attack of Prior OWI, Constitutional Right to Counsel During Refusal Proceeding
Holding: Because an OWI refusal hearing is a civil proceeding, no constitutional right to counsel attaches.
Krause was convicted of his fifth OWI offense in March 2003. One of his prior OWI offenses was a September 2000 refusal based revocation for failing to submit to a chemical test under the implied consent law. As part of a plea agreement, Krause was convicted of the refusal and the OWI charge was dismissed.
The State and Krause agreed that a refusal
revocation qualifies as a prior offense for sentencing purposes.
However, Krause sought to collaterally attack the September 2000 OWI
offense because Krauses court-appointed lawyer did not request a
refusal hearing. On appeal, Krause argued that if he had received
proper representation at the refusal hearing he would have known to
challenge the refusal to avoid having it count in future OWI
prosecutions. He asserted that the ineffective assistance of his
counsel was equivalent to no assistance at all and violated his Sixth
Amendment right to counsel. Under Wisconsin law, a defendants
ability to collaterally attack a prior conviction is limited to
circumstances where the defendants constitutional right to counsel was
violated. State v. Hahn, 2000 WI 118.
The court reasoned that to mount a collateral attack, Krause would have to establish that the Sixth Amendment right to counsel attaches in a civil proceeding. Krause had no constitutional right to counsel at the refusal hearing because it is civil, not criminal, in nature. The court held that Krause did not have a constitutional right to counsel upon which to base his collateral attack.
Case No: 2005AP573-CR
Issue: Protective Search of a Vehicle, Terry Stop
In this non-OWI case, the court held that the record did not support a sufficient specific and articulable basis for an objectively reasonable belief that Johnson was armed and dangerous. Thus, the protective search of Johnson's vehicle was unlawful. Johnson's conviction for possession of cocaine with intent to deliver was reversed and the cause remanded.
During a traffic stop for an emissions suspension, two police officers observed Johnson lean forward in the vehicle and testified that it was consistent with efforts to try and conceal contraband or weapons. Johnson produced paperwork indicating that the vehicle had passed emissions. The officers searched Johnson and his passenger for weapons for officer safety. The police then informed Johnson that they were going to search his vehicle and Johnson did not object. The officers found a baggie of marijuana under the drivers seat. They arrested Johnson, searched him, and found cocaine in his pocket.
Under Terry v. Ohio, 392 U.S. 1 (1968), a narrowly drawn authority exists to permit a reasonable search for weapons for the protection of the police officer. The reasonableness of a protective search for weapons is an objective standard based upon specific reasonable inferences which he [or she] is entitled to draw from the facts in light of his [or her] experience.
The U.S. Supreme Court in Michigan v. Long, 463 U.S. 1032, 1049 (1983), expanded the scope of a search for weapons during a Terry vehicle stop to include a search of the passenger compartment of the vehicle. (See also: State v. Moretto, 144 Wis. 2d 171, 182, 423 N.W.2d 841 (1988)).
The Johnson court focused on whether the totality of the
circumstances created a reasonable suspicion to justify a protective
search for weapons in Johnson's vehicle. It stated: courts are to
decide on a case-by-case basis, evaluating the totality of the circumstances,
whether an officer had reasonable suspicion to effectuate a protective search
for weapons in a particular case.
The court reasoned that the officers pulled Johnson over for a traffic violation rather than a crime. Johnson produced the proper emissions documentation. The officers had no prior contacts with Johnson that would suggest that he would be armed or dangerous. While it was dark out, the streetlights provided adequate illumination of the vehicle. The State did not argue that the location of the stop was a high crime area. Finally, Johnson made no other suspicious movements in the car and was otherwise cooperative and complied with the officers' directions. Thus, the facts did not support an objective basis for a reasonable suspicion that Johnson was armed.