Justia.com Opinion Summary: A state trooper pulled defendant Deandre Buchanan's vehicle over when it was traveling in excess of the posted speed limit. The trooper saw Buchanan make a movement indicating he was putting an item out of sight beneath the driver's seat and observed that Buchanan was visibly nervous. The trooper also discovered Buchanan had an arrest record for violent crimes and drug trafficking. The officer then did a protective search of Buchanan and his vehicle and discovered plant material in the car. The officer seized the item, which was marijuana. Buchanan was convicted for possessing marijuana with intent to deliver. The court of appeals affirmed. Buchanan appealed, arguing the evidence he sought to suppress in the trial court was seized in violation of the federal and state constitutional provisions barring unreasonable search and seizure. The Supreme Court affirmed, holding (1) the initial protective search of Buchanan and his vehicle was valid; and (2) the piece of marijuana plant that the state trooper discovered on the car floor during the protective search was in plain view and there was probable cause to justify seizing it. Therefore there was no basis for suppressing the evidence.
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2011 WI 49
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
09AP2934-CR
State of Wisconsin,
Plaintiff-Respondent,
v.
Deandre A. Buchanan,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 329 Wis. 2d 712, 790 N.W. 2d 543
(Ct. App. 2010 – Unpublished)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
June 29, 2011
April 19, 2011
Circuit
Trempealeau
John A. Damon
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner there were briefs by
Tyler
William Wickman and
Dallenbach
&
Anich,
S.C.
and
oral
argument by Tyler William Wickman.
For the plaintiff-respondent there was a brief by Thomas J.
Balistreri, assistant attorney general with whom on the brief
was J.B.
Van Hollen,
Thomas J. Balistreri.
attorney
general,
and
oral
argument by
2011 WI 49
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2009AP2934-CR
(L.C. No.
2009CF13)
STATE OF WISCONSIN
:
IN SUPREME COURT
State of Wisconsin,
FILED
Plaintiff-Respondent,
JUN 29, 2011
v.
A. John Voelker
Acting Clerk of Supreme
Court
Deandre A. Buchanan,
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals.
¶1
N.
unpublished
PATRICK
court
of
CROOKS,
J.
This
appeals
opinion1
is
that
a
Affirmed.
review
affirmed
of
an
Deandre
Buchanan's conviction for possessing marijuana with intent to
deliver.
The question we address in this case is whether the
evidence Buchanan unsuccessfully sought to suppress was seized
in violation of the federal and state constitutional provisions
barring unreasonable search and seizure.
The threshold question
is whether the initial protective search of Buchanan and his
vehicle was valid; if it was valid, we must also address whether
1
State v. Buchanan, 2009AP2934-CR,
(Wis. Ct. App. Aug. 10, 2010).
unpublished
slip
op.
No.
2009AP2934-CR
the piece of marijuana plant that the Wisconsin State Trooper
discovered on the car floor during the protective search was in
plain
view
and
seizing it.2
whether
there
was
probable
cause
to
justify
The United States Supreme Court has held that
protective searches, or "frisks," must be based on a reasonable
suspicion
that
the
officer
is
in
immediate
suspect may have ready access to a weapon.
danger
because
a
In this case, the
trooper who stopped Buchanan testified that he saw Buchanan make
furtive movements that indicated that he may have been hiding
something beneath the driver's seat, and that he noticed that
Buchanan's hands were shaking as if he were very nervous.
He
testified that he learned facts from accessing a computer in his
police
car
and
contacting
dispatch
about
Buchanan's
arrest
record, which included a recent drug delivery arrest and arrests
for armed robbery, false imprisonment and murder.
The trooper
called for backup and, after the backup officer arrived, then
frisked Buchanan and the area inside the car within the driver's
reach.
2
A field test of the plant stem was positive for the
presence of THC.
According to information in the record, the
trooper
subsequently
asked
Buchanan
whether
he
had
any
additional marijuana, and Buchanan responded that he had "a bag"
in his sock and "a couple of pounds" in the trunk.
The
marijuana was recovered from the trunk. That seizure is not
directly before us; its validity turns on the validity of the
prior searches.
We note that the validity of the initial protective
searches of Buchanan and his vehicle does not depend on the
doctrine of plain view.
2
No.
¶2
the
2009AP2934-CR
The State and Buchanan disagree about whether under
totality
of
the
circumstances,
the
observed
conduct
and
arrest record on which the trooper relied constitute "specific
and articulable facts which, taken together with the rational
inferences from those facts"3 create a reasonable suspicion that
the person with whom he is dealing is armed and dangerous and a
protective
search
is
justified
for
the
officer's
safety.
Buchanan asks us to reverse the decision of the court of appeals
on the grounds that the ruling contravenes the holdings in two
of this court's cases——one that focused on a driver's furtive
movements and another that focused on a suspect's arrest record—
—both of which held that the evidence in question was not enough
to justify a protective search.
In the circumstances present in
those cases, State v. Johnson and State v. Eason, this court
deemed
the
evidence
suspicion.4
discovery
The
of
insufficient
State
the
asks
arrest
us
to
to
establish
affirm,
information
arguing
put
the
reasonable
that
the
officer's
observations into a different context and, in effect, altered
the inferences he could rationally draw from those facts.
3
Michigan v. Long, 463 U.S. 1032, 1049 (1983).
4
See State v. Johnson, 2007 WI 32, ¶3, 299 Wis. 2d 675, 729
N.W.2d 182 (finding insufficient support for a protective search
where the suspicion was based only on the fact that the officer
saw the driver "make a strong furtive movement bending down as
if he was reaching . . . underneath the seat") and State v.
Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625 (finding
insufficient support for reasonable suspicion for a no-knock
entry where the only particularized evidence consisted of the
suspects' arrest records and ultimately adopting a good-faith
exception that rendered the evidence of the search admissible).
3
No.
¶3
2009AP2934-CR
We hold that under the totality of the circumstances
in this case, the trooper's observation of Buchanan's furtive
movements
and
visible
nervousness,
a
record
of
arrests
for
violent crimes, and a drug delivery arrest that had occurred
nearby a short time before the stop constitute "specific and
articulable
facts
which,
taken
together
with
the
rational
inferences from those facts,"5 create reasonable suspicion and
justify
a
protective
protective
search
search
was
for
therefore
the
officer's
justified.
safety.
The
The
subsequent
discovery of contraband was made in the course of the search
while the item was within plain view; because there was a basis
for a protective search, the trooper had a right to be in a
position to view it.
The trooper's recognition of the smell and
appearance of the marijuana, together with the other suspicious
circumstances, provided probable cause to believe that it was
contraband
therefore
and
no
that
basis
he
for
could
validly
suppressing
obtained as a result of these actions.
seize
the
it.
evidence
There
that
is
was
We consequently affirm
the court of appeals.
I.
¶4
BACKGROUND
A Wisconsin State Trooper was on duty on a stretch of
Interstate 94 in Trempealeau County on the evening of March 4,
2009.
At about 9:30 p.m., he saw Buchanan driving west on the
interstate and exceeding the speed limit by about ten miles an
hour.
The trooper pulled out behind him and signaled for him to
5
Long, 463 U.S. at 1049.
4
No.
pull
over.
The
trooper
later
testified
the
at
2009AP2934-CR
suppression
motion hearing that when he turned on the siren and lights,
including
a
spotlight
Buchanan's
car,
the
that
vehicle
illuminated
began
the
weaving,
interior
and
he
saw
of
"the
driver was moving his shoulder and his arm up and down," and it
looked "like he was stuffing something either underneath the
seat or under his foot area."
Buchanan then slowed and pulled
to the side of the road.
¶5
The trooper observed when he approached the vehicle
and spoke to Buchanan that Buchanan's "hands were shaking" and
he appeared "very nervous."
The trooper returned to his police
car, ran a check on Buchanan's driver's license, and requested
that dispatch "run a criminal history on him."
received
license
responses,
number
and
via
computer,
his
request
to
to
both
The trooper then
his
dispatch.
entry
The
of
the
responses
informed him "of a pending drug charge from a couple of weeks
prior
from
dispatch
District
advised
6
[him]
of
the
that
State
Patrol,
[Buchanan]
had
Eau
Claire,
multiple
and
violent
arrests in the past such as murder, armed robbery and false
imprisonment."
The
trooper
testified
that
the
message
he
received via computer gave him sufficient information to know
that "[Buchanan] had a recent delivery charge of marijuana on
his criminal history in Wisconsin in that same area" and that
the other charges "were from North Dakota and Minnesota."
He
had no information about the disposition of the charges.
¶6
minutes.
The
trooper
radioed
for
backup
and
waited
a
few
When asked on direct examination what he planned to
5
No.
search
when
he
returned
to
Buchanan's
car,
he
2009AP2934-CR
stated,
"Not
planning on doing any searching of the vehicle, I was planning
on doing a frisk of the vehicle to ensure there was no weapons
in the vehicle."
officer
arrived
Within ten minutes of the initial stop, an
as
backup,
and
the
trooper
returned
to
Buchanan's vehicle with the officer and asked Buchanan to get
out of the car.
frisk
as
"[a]
He then frisked Buchanan; he described the
short,
anywhere
where
weapons
weapon.
He
testified
cursory
are
pat-down
commonly
that,
using
of
the
hidden."
a
waist
He
flashlight,
area,
found
he
no
then
"returned to [Buchanan's] vehicle and conducted a cursory frisk
of the driver's lunge area6 under the seat and center console
area."
He found no weapons, but he did see "a piece of green
plant material" visible on the car floor and he "smell[ed] an
odor of raw marijuana in the vehicle."
6
A field test of the
There are two types of searches in which one encounters
the concept of the "lunge area" or "grab area":
a protective
search and a search incident to a lawful arrest. The objectives
differ slightly, but the concept of a search limited in scope is
common to both, and both focus on the area within the reach of
the person being detained——the area within which he or she could
"lunge." (Compare State v. Sykes, 2005 WI 48, ¶20, 279 Wis. 2d
742, 754, 695 N.W.2d 277 ("The scope of a search incident to
arrest is confined to 'the area from within which [the suspect]
might gain possession of a weapon or destructible evidence[.]'
We have understood this to mean the area immediately surrounding
the arrestee.") with State v. Guy, 172 Wis. 2d 86, 94-95, 492
N.W.2d 311 (1992) ("The constant refrain in these [protective
search] cases has been that the need for police to protect
themselves can justify a limited frisk for weapons.") and
Johnson, 2007 WI 32, ¶¶26, 37 n.13 ("The sole justification for
the [protective] search is the protection of the police officers
and others nearby.").
6
No.
2009AP2934-CR
plant was positive for THC, the active ingredient in marijuana.
The trooper informed Buchanan that he would be doing a further
search of the vehicle at that point.
Additional marijuana was
discovered in the vehicle, and Buchanan was subsequently charged
with
possession
with
(tetrahydrocannabinols)
intent
contrary
to
to
deliver
Wis.
THC
Stat.
§ 961.41(1m)(h)(3) (2007-08).7
¶7
Buchanan moved to suppress the marijuana seized in the
search on the grounds that there was an insufficient basis for
reasonable
suspicion
for
a
protective
search
and
that
the
protective search was a violation of Buchanan's constitutional
protections against unreasonable search and seizure.
Buchanan
specifically argued that the furtive movements, nervousness, and
the arrest record were not sufficient to establish reasonable
suspicion.
The Trempealeau County Circuit Court, the Honorable
John A. Damon presiding, denied Buchanan's motion.
entered a plea of no contest and was convicted.
Buchanan
He appealed the
circuit court's denial of his motion to suppress pursuant to
Wis. Stat. § 971.31(10).8
The court of appeals affirmed on the
grounds that the protective search was supported by reasonable
7
All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
8
Wis. Stat. § 971.31 (10) states, "An order denying a
motion to suppress evidence or a motion challenging the
admissibility of a statement of a defendant may be reviewed upon
appeal from a final judgment or order notwithstanding the fact
that the judgment or order was entered upon a plea of guilty or
no contest to the information or criminal complaint."
7
No.
suspicion
that
Buchanan's
Buchanan
furtive
nervousness
was
armed
movements
Buchanan
prior
displayed,
and
to
the
2009AP2934-CR
dangerous;
the
stop,
pending
it
the
drug
cited
unusual
delivery
charge, and the arrests for murder, false imprisonment and armed
robbery.9
Buchanan petitioned this court for review, which we
granted.
¶8
Buchanan
This
review
challenges
presents
the
questions
of
constitutionality
fact
of
the
and
law.
trooper's
protective search of him and of the area within reach of the
driver's
seat
contraband.
in
Such
his
vehicle
limited
that
led
searches,
to
often
the
discovery
referred
to
of
as
"frisks" are "measures to determine whether the person is in
fact carrying a weapon and to neutralize the threat of physical
harm."
State v. Kyles, 2004 WI 15, ¶1, 269 Wis. 2d 1, 675
N.W.2d 449 (citing Terry v. Ohio, 392 U.S. 1, 24 (1968)).
Whether
the
facts
satisfy
the
constitutional
requirement for performing a protective search for
weapons——that
an
officer
must
have
reasonable
suspicion that a person may be armed and dangerous to
the officer or others——is a question of constitutional
law for this court to decide.
We are not bound by a
circuit court's or court of appeals' decision on this
question of law, but we benefit from the analyses of
these courts.
Id., ¶7.
If the protective search was unconstitutional because
there was not the requisite reasonable suspicion to support it,
the evidence ultimately seized as a result of the search must be
suppressed.
"Evidence
obtained
9
as
a
direct
result
of
an
State v. Buchanan, 2009AP2934-CR, unpublished slip op., ¶8
(Wis. Ct. App. Aug. 10, 2010).
8
No.
unconstitutional
exclusion."
search
or
seizure
plainly
subject
to
Segura v. U.S., 468 U.S. 796, 804 (1984).
II.
A.
¶9
is
2009AP2934-CR
ANALYSIS
THE PROTECTIVE SEARCH
The question before us is whether there was reasonable
suspicion
to
support
the
trooper's
decision
to
conduct
a
protective search of Buchanan and his car.
Courts "decide on a
case-by-case
totality
basis,
evaluating
the
of
the
circumstances, whether an officer had reasonable suspicion to
justify a protective search in a particular case."
Wis. 2d 1, ¶5.
Kyles, 269
We have made the following observation about the
quantum of evidence necessary to establish reasonable suspicion:
Although it is not possible to state precisely what
the
term
reasonable
suspicion
means,
it
is
a
"commonsense nontechnical conception(s) that deal[s]
with 'the factual and practical considerations of
everyday life on which reasonable and prudent men, not
legal technicians, act.'" What is certain is that
reasonable suspicion is "a less demanding standard
than probable cause."
The information necessary to
establish reasonable suspicion can be less in both
content and reliability than the information needed to
establish probable cause.
In other words, the
required showing of reasonable suspicion is low, and
depends upon the facts and circumstances of each case.
Eason, 245 Wis. 2d 206, ¶19 (citations omitted).
¶10
trooper
While
on
We begin by reviewing what occurred just before the
made
the
traffic
decision
to
enforcement
conduct
duty,
the
the
protective
trooper
had
search.
observed
Buchanan's car traveling in excess of the posted speed limit.
The trooper testified that when he pulled onto the road behind
Buchanan's car and activated his vehicle's lights to initiate
9
No.
2009AP2934-CR
the stop, he observed that Buchanan had started moving his arm
and shoulder as if he were placing something beneath his feet
while driving, which appeared to be the reason that the car
began weaving in the lane as it slowed to pull over.
had not been weaving before.
The car
The trooper testifed that Buchanan
had appeared "very nervous" after the stop and his hands were
shaking noticeably.
The trooper returned to his vehicle, and
there he obtained additional information from two sources about
Buchanan's prior police contacts.
The trooper planned to return
to Buchanan's vehicle to complete the traffic stop and issue
Buchanan
a
speeding
citation.
In
determining
the
constitutionality of the initial protective search, we consider
the
facts
the
trooper
approaching
and
inferences,
support
knew
whether
a
about
those
the
facts,
reasonable
driver
together
suspicion
that
he
with
would
be
rational
Buchanan
was
armed and a threat to the officer's safety.
¶11
First, the trooper had seen the driver make a movement
that could reasonably be understood to indicate that the driver
was putting an item out of sight beneath the driver's seat, and
as the driver did so, the car had weaved in the lane before
pulling off to the side of the road.
In Johnson, this court
considered whether there was reasonable suspicion to justify a
protective
resolved.
reasonable
search
that
occurred
after
Johnson, 299 Wis. 2d 675, ¶45.
suspicion
in
that
case
10
was
the
traffic
stop
was
The basis offered for
solely
the
observed
No.
"furtive movement" of the driver.10
2009AP2934-CR
Id. at ¶¶7, 18.
In that
case, the officer had no further reason to initiate a protective
search.
As we stated in Johnson, "Depending upon the totality
of the circumstances in a given case, a surreptitious movement
by a suspect in a vehicle immediately after a traffic stop could
be a substantial factor in establishing that officers had reason
to believe that the suspect was dangerous and had access to
weapons."
Id. at ¶37.
The question is thus whether the furtive
movement by Buchanan is a substantial factor in establishing
reasonable
suspicion.
Nothing
in
bars
Johnson
us
from
considering such a movement together with other factors.
¶12
contact
Second,
with
the
Buchanan
"very nervous."
trooper
that
had
observed
Buchanan
was
in
visibly
his
initial
shaking
and
As we have previously noted, "[O]ur cases hold
that unusual nervousness is a legitimate factor to consider in
evaluating the totality of the circumstances."
2d
1,
¶54.
typical,
but
"Nervousness
unusual
during
nervousness
a
of
routine
a
Kyles, 269 Wis.
traffic
suspect
may
stop
is
indicate
wrongdoing." State v. Sumner, 2008 WI 94, ¶33, 312 Wis. 2d 292,
752 N.W.2d 783.
¶13
The
third
piece
of
information
the
trooper
had
to
consider at that point was the information he had obtained via
10
Johnson, 299 Wis. 2d 675, ¶34 ("[T]he State contends that
Johnson's movement in the interior of the car was a sufficiently
compelling factor to justify Stillman's protective search of
Johnson's car. The State asserts that the court of appeals
improperly concluded this single factor, by itself, was not
enough to establish reasonable suspicion." (emphasis added)).
11
No.
computer
arrests
concerning
for
drug
imprisonment.
an arrest
Buchanan's
delivery,
arrest
murder,
record,
armed
2009AP2934-CR
which
robbery
included
and
false
As with the "furtive movement," it is clear that
record by itself
would
not,
without
more,
support
reasonable suspicion, but here it is considered in addition to
other factors.
In Eason, we considered the weight to be given
to arrest records.
In that case, the question was whether the
arrest records of two individuals sufficed as the "particular
facts [that] must be shown to establish reasonable suspicion" to
justify the issuance of a no-knock warrant.
206, ¶¶20-21.
Eason, 245 Wis. 2d
We noted that
in the absence of any other particularized evidence,
and some link between [the defendant's] arrests for
obstruction and the possible destruction of evidence,
this approach [combining the fact of three prior
arrests for obstructing police with an officer's
statements about the likelihood of destruction of
evidence] is not sufficient to establish reasonable
suspicion [to support a no-knock warrant].
Id., ¶23.
The totality of the circumstances presented here, in
contrast,
includes
a
combination
of
violent
crimes
(armed
robbery, false imprisonment and murder charges) and a recent
drug
delivery
particularized
arrest
evidence
observed by the trooper.
in
a
of
nearby
Buchanan's
county,
as
conduct
and
well
as
demeanor
In considering the evidence required
12
No.
2009AP2934-CR
to establish reasonable suspicion for a no-knock warrant,11 we
held
in
Eason
that
absent
other
particularized
evidence,
reasonable suspicion was not established by an arrest record; we
did
not
hold
that
an
arrest
record
is
not
relevant
calculation of the totality of the circumstances.
to
a
Where there
was no "other particularized evidence," we held that without
knowledge of the disposition, time and location of the arrests,
"[t]he arrests . . . provide little guidance" in the reasonable
suspicion determination.
Id., ¶22.
11
We note that Eason (which recognized a good-faith
exception to the exclusionary rule, allowing evidence in that
case that would otherwise have been excluded due to a flawed
warrant) concerned a no-knock warrant for a home, not a
protective search of a driver and vehicle following a traffic
stop.
Eason therefore involved a situation in which there was
the heightened protection that the United States Constitution
affords a person's home, given that "physical entry of the home
is the chief evil against which the wording of the Fourth
Amendment is directed."
United States v. U.S. Dist. Court for
E. Dist. of Mich., S. Div., 407 U.S. 297, 313 (1972).
The
question presented in Eason was not about a warrant——the basis
for the warrant itself was not in question——but about whether
there was justification for the added intrusiveness of a noknock entry.
See South Dakota v. Opperman, 428 U.S. 364, 367
(1976) (noting that "[the] Court has traditionally drawn a
distinction between automobiles and homes or offices in relation
to the Fourth Amendment. . . . [W]arrantless examinations of
automobiles have been upheld in circumstances in which a search
of
a
home
or
office
would
not."
(internal
citations
omitted)(emphasis
added)).
That
is
not
to
say
that
constitutional protections have no application to autos.
The
Supreme Court stated that a vehicle search was unreasonable
where "police could not reasonably have believed either that
[the arrested person] could have accessed his car at the time of
the search or that evidence of the offense for which he was
arrested might have been found therein . . . ."
Arizona v.
Gant, 129 S. Ct. 1710, 1719 (2009).
13
No.
¶14
records
Other
when
jurisdictions
considering
have
whether
explicitly
in
the
2009AP2934-CR
included
totality
arrest
of
the
circumstances there is reasonable suspicion for a belief that a
person is a threat to law enforcement personnel or is concealing
weapons.
For
example,
it
has
been
held
that
reasonable
suspicion to justify a strip search by jail officials may arise
from factors such as "the nature of the offense, the arrestee's
appearance and conduct, and the prior arrest record." Kelly v.
Foti,
77
F.3d
819, 821
(5th
Cir.
1996)
(citations
omitted).
"[I]ndividualized suspicion sufficient to warrant a strip search
of the arrestee in [the eight circuits that have invalidated
blanket strip search policies against nonviolent misdemeanants]
is based on factors such as the nature of the offense, the
arrestee's appearance and conduct, and any prior arrest record."
Amaechi v. West, 87 F. Supp. 2d 556, 565 (E.D. Va. 2000), aff'd
and remanded, 237 F.3d 356 (4th Cir. 2001) (citing to cases from
the 2d, 4th, 5th, 6th, 7th, 8th, and 9th circuits).
¶15
An additional fact known to the court concerns the
trooper's manifestation of concern for his safety.
The trooper
testified that before returning to Buchanan's car, he called for
backup.
He waited until a backup officer arrived and only then
returned to the car with the second officer.
14
This provides
No.
2009AP2934-CR
evidence of his stated concern for his safety.12
"[A] court
may . . . consider a police officer's fear or belief that his or
her safety or that of others [is] in danger as part of the
totality
of
the
circumstances"
reasonableness of a frisk.
when
determining
the
State v. Kyles, 2004 WI 15, ¶34, 269
Wis.2d 1, 675 N.W.2d 449.
¶16
about
Buchanan
the
argues
disposition
that
of
without
those
additional
criminal
information
charges,
it
unreasonable to suspect that he was armed and dangerous.
State
counters
information,
previous
it
that
when
provided
observations
the
trooper
additional
about
the
received
context13
furtive
the
is
The
arrest
for
the
two
movement
and
the
12
The trooper testified that his reason for being cautious
was that in his experience, people who deal drugs are more
likely to be armed and dangerous than those who possess drugs
for personal use:
"A lot of people when they deal drugs they
carry weapons with them, [there's] just personal use of
different types of drugs, and then there's delivery charges of
drugs, [Buchanan] had a recent delivery charge of marijuana on
his criminal history in Wisconsin in that same area."
13
Buchanan argues that "[t]he State's argument implies that
anytime a person has a pending drug charge, law enforcement has
reasonable suspicion the person may be armed and dangerous and
thus subject to a frisk when otherwise legally stopped." Pet'r
Reply Br. at 7. However, the State specifically disavowed such
a position:
"The previous arrests had little weight in and of
themselves in the absence of any information about the facts of
the offenses or their disposition." Resp. Br. at 18.
Rather,
the State argues that what is significant here is the
juxtaposition of the arrest record information with the previous
conduct:
"The
newly acquired
information and
the new
significance of previously known information 'gave meaning to
[Buchanan's] surreptitious attempt to place something beneath
his seat.'" Id. at 20.
15
No.
nervousness,
and
when
added
drawn
up,
from
the
them
specific
did
2009AP2934-CR
facts
support
and
the
inferences
fairly
reasonable
suspicion.
Stated differently, the State's position is that the
additional particularized evidence is what distingushishes this
case from Eason.
¶17
As this court has noted:
Our protective search or "frisk" jurisprudence has
consistently emphasized that the totality of all
circumstances present and known to the officer must be
taken into account to assess the legality of the
procedure. Naturally, some factors will be of greater
import
than others
in the reasonable
suspicion
calculus in a particular case.
Sumner, 312 Wis. 2d 292, ¶ 23.
¶18
In this case, the factors, considered together, create
reasonable suspicion that the item Buchanan was seen putting
under the seat or reaching to retrieve when pulled over could
have been a weapon.
The factors, considered together, create
reasonable suspicion that the officer faced danger in returning
to the car to face a driver who was extremely nervous and who
had been arrested for murder, delivery of drugs, armed robbery,
and false imprisonment.
The trooper was not required to ignore
that information.
As we have frequently noted, traffic stops
are
law
dangerous
for
enforcement,
and
permitting
a
limited
search is a reasonable way to balance the competing interests
involved:
"The constant refrain in these [protective search]
cases has been that the need for police to protect
themselves can justify a limited frisk for weapons.
See, e.g., Maryland v. Buie (officers have an interest
in self-protection which can justify a protective
16
No.
2009AP2934-CR
sweep);
Michigan
v.
Long
("Our
past
cases
indicate . . . that protection of police and others
can justify protective searches when police have a
reasonable
belief
that
the
suspect
poses
a
danger...."); Pennsylvania v. Mimms ("What is at most
a mere inconvenience cannot prevail when balanced
against
legitimate
concerns
for
the
officer's
safety."); Adams v. Williams ("The purpose of this
limited search is not to discover evidence of crime,
but to allow the officer to pursue his investigation
without fear of violence . . . ").
Guy, 172 Wis. 2d at 94-95 (citations omitted)(emphasis added).
See also State v. Young, 2006 WI 98, ¶21, 294 Wis. 2d 1, 717
N.W.2d 729 and State v. Waldner, 206 Wis. 2d 51, 60-61, 556
N.W.2d 681 (1996).
As the United States Supreme Court stated,
[W]e stress that a Terry investigation . . . involves
a police investigation "at close range," when the
officer
remains
particularly
vulnerable
in
part
because a full custodial arrest has not been effected,
and the officer must make a "quick decision as to how
to
protect
himself
and
others
from
possible
danger . . . ."
In such circumstances, we have not
required that officers adopt alternate means to ensure
their safety in order to avoid the intrusion involved
in a Terry encounter.
Long, 463 U.S. at 1052 (citations omitted).
¶19
under
A holding that reasonable suspicion can be established
circumstances
that
include
a
furtive
movement,
unusual
nervousness, and a troubling arrest record for violent crimes
and drug trafficking is consistent with this court's precedent.
It is significant under a totality of the circumstances analysis
that all of these factors were included here.
¶20
The trooper who stopped Buchanan was at the point of
returning to the vehicle to approach the driver as part of a
continued traffic stop.
There is no allegation that the traffic
17
No.
2009AP2934-CR
stop was prolonged beyond the time necessary to complete the
investigation of the violation.
¶45.
See Johnson, 299 Wis. 2d 675,
Under the totality of the circumstances, it was reasonable
for
the
trooper
to
suspect
that
Buchanan
was
armed
and
dangerous.
B.
¶21
As
THE TROOPER'S DISCOVERY OF CONTRABAND
noted
above,
the
Buchanan or in the vehicle.
piece
of
search.
plant
material
trooper
found
no
weapon
on
However, he did observe and seize a
he
saw
while
doing
the
protective
Buchanan argues that the piece of plant material was
not in plain view and that the situation is "akin to having
something
moved,
under
but
it
a
car
will
seat"
not
vehicle and leaning down."
be
in
seen
that
"[n]othing
without
first
Pet'r Br. at 41.
needs
to
entering
be
the
The State argues
that the evidence was properly seized because it was in plain
view during the trooper's protective search and was visible "as
soon as he bent over and looked down."
¶22
In
Guy,
we
considered
the
Resp. Br. at 25.
seizure
of
a
baggie
of
cocaine that was found in the course of a protective search or
frisk of the defendant.
We described the analysis as follows:
Having concluded that Officer Zarse constitutionally
frisked the defendant, we now turn to the subsequent
seizure of the cocaine. After feeling a soft bulge
that felt like it could have been cocaine or
marijuana, Officer Zarse put her hand into the
defendant's
pocket
and
pulled
out
the
baggie
containing cocaine. The scope of a Terry search must
be limited to a pat-down "reasonably designed to
discover
guns,
knives,
clubs,
or
other
hidden
instruments for the assault of the police officer."
Consequently, because what Zarse felt did not feel
18
No.
2009AP2934-CR
like a weapon, she exceeded the lawful scope of a
Terry search when she reached into the defendant's
pocket. However,
[a]ssuming the object discovered in the pat-down
does not feel like a weapon, this only means that
a further search may not be justified under a
Terry analysis.
There remains the possibility
that the feel of the object, together with other
suspicious circumstances, will amount to probable
cause that the object is contraband or some other
items subject to seizure, in which case there may
be a further search based upon that probable
cause.
Guy, 172 Wis. 2d at 100 (emphasis added).
¶23
"This
court
has
frequently
stated
the
rule
that
objects falling within the plain view of an officer who has a
right to be in the position to have the view are subject to
valid seizure and may be introduced in evidence."
State v.
Bell, 62 Wis. 2d 534, 540, 215 N.W.2d 535 (1974).
In Guy, we
proceeded
the
with
the
analysis
by
setting
forth
three
conditions that must be met in order for the plain view doctrine
to apply:
(1) the evidence must be in plain view; (2) the
officer must have a prior justification for being in
the position from which she discovers the evidence in
"plain view"; and (3) the evidence seized 'in itself
or in itself with facts known to the officer at the
time of the seizure, [must provide] probable cause to
believe there is a connection between the evidence and
criminal activity.'
Guy, 172 Wis. 2d at 101-02 (quoting State v. Washington, 134
Wis.2d 108, 121, 396 N.W.2d 156 (1986).
¶24
In
this
case,
the
trooper
testified
that
after
he
conducted "a short, cursory pat-down of the waist area, anywhere
19
No.
2009AP2934-CR
where weapons are commonly hidden," he "returned to the vehicle
and conducted a cursory frisk of the driver's lunge area under
the seat and center console area."
At that point, he testified,
"I found no weapons, but as soon as I looked down I observed a
piece of green plant material right underneath the ashtray."
¶25
In response to questions, the trooper clarified that
by "underneath," he did not mean that the plant material was
obscured
from
view
and
confirmed
that
"[t]here
was
no
manipulation done of anything in the vehicle," and that he could
see the plant material on the car floor just by "bending over
and looking in there."
When asked if the plant piece was "in
plain view with the flashlight," he answered, "Yes."
He also
stated that he "could smell an odor of raw maijuana in the
vehicle."
He seized the piece of plant material and conducted a
field test, which indicated the presence of THC.
¶26
Applying the test set forth above, we first address
whether the contraband was in plain view.
it was.
The evidence is that
The trooper testified that "as soon as [he] looked down
[he] observed" the plant stem.
There was no contrary testimony,
and Buchanan concedes that "[the trooper] did not need to move
anything."
Pet'r Br. at 41.
We next address the question of
whether the trooper had "a prior justification for being in the
position from which [he] discover[ed] the evidence."
We have
already resolved that question in the State's favor above.
The
final question is whether "facts known to the officer at the
time of the seizure [provide] probable cause to believe there is
a
connection
between
the
evidence
20
and
criminal
activity."
No.
2009AP2934-CR
Buchanan argues, on this point, that "[a] green plant stem alone
is insufficient to give an officer probable cause to believe
that criminal wrongdoing existed to justify seizing the object."
Pet'r
Br.
at
sufficient
43.
The
experience
State
to
responds
identify
that
the
the
had
material
plant
trooper
as
marijuana by its appearance and smell, and that identification
provided
probable
cause
for
him
to
seize
it.
evidence in the record that contradicts this.
the
relevance
experience:
of
the
officer's
prior
There
is
no
In Guy, we noted
drug
interdiction
"Zarse had found drugs in over 100 searches. That
experience would help an officer know how drugs are stored and
Guy, 172
recognize the feel of a baggie containing bindles."
Wis. 2d at 102.
The trooper in this case similarly testified
that he had been doing drug interdiction patrols since he became
a police officer about five years earlier and had made "probably
over a hundred drug arrests."
¶27
The requirements for the application of the plain view
doctrine are met on these facts.
circumstances,
valid
contraband
protective
was
search,
suppression is not required.
In this not uncommon set of
discovered
but
under
in
the
these
course
of
a
circumstances,
As the United States Supreme Court
stated in Michigan v. Long, "If, while conducting a legitimate
Terry
search
of the
interior
of
the
automobile,
the
officer
should . . . discover contraband other than weapons, he clearly
cannot
be
Amendment
required
does
circumstances."
to ignore
not
the
require
contraband,
its
Long, 463 U.S. at 1050.
21
and
the
Fourth
suppression
in
such
No.
III.
¶28
2009AP2934-CR
CONCLUSION
We hold that under the totality of the circumstances
in this case, the trooper's observation of Buchanan's furtive
movements
and
visible
nervousness,
a
record
of
arrests
for
violent crimes, and a drug delivery arrest that had occurred
nearby a short time before the stop constitute "specific and
articulable
facts
which,
taken
together
with
the
rational
inferences from those facts"14 create reasonable suspicion and
justify
a
protective
protective
search
search
was
for
therefore
the
officer's
justified.
safety.
The
The
subsequent
discovery of contraband was made in the course of the search
while the item was within plain view; because there was a basis
for a protective search, the trooper had a right to be in a
position to view it.
The trooper's recognition of the smell and
appearance of the marijuana, together with the other suspicious
circumstances, provided probable cause to believe that it was
contraband
therefore
and
no
that
basis
he
for
could
validly
suppressing
obtained as a result of these actions.
the court of appeals.
By the Court.—Affirmed.
14
Long, 463 U.S. at 1049-50.
22
seize
the
it.
evidence
There
that
is
was
We consequently affirm
No.
1
2009AP2934-CR
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