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Defense win! Trial counsel ineffective for omitting winning argument from suppression motion

State v. Rosalee M. Tremaine, 2016AP1963-CR, 2/27/20, District 4, (1-judge opinion, ineligble for publication); case activity (including briefs)

An officer stopped Tremaine for a traffic violation and called another car to bring some warning forms. While the officer was filling them out, another officer arrived with a dog. The first officer handed Tremaine the forms, but did not allow her to leave. Then the third officer conducted a sniff, which led to a search of Tremaine’s purse revealing marijuana and a pipe. Defense counsel filed a suppression motion, but made the wrong argument. The court of appeals now finds him ineffective.

Defense counsel’s motion contended that the delay caused by waiting for the warning forms violated the 4th Amendment. Tremaine claimed that defense counsel missed the winning argument–i.e. the stop ended once the first officer delivered the warning to her. At that point, the reason justifying the initial stop ceased to exist. Her continued detention for a dog sniff was not “reasonably related in scope to the purpose of the stop.” See State v. House, 2013 WI App 111, ¶¶5, 10, 350 Wis. 2d 478, 837 N.W.2d 645; State v. Jones, 2005 WI App 26, ¶¶2-4, 7 & n.4, 278 Wis. 2d 774, 693 N.W.2d 104.

The circuit court held that trial counsel did not perform deficiently because the “missed” argument would have failed based on State v. Arias, 2008 WI 84, ¶39, 311 Wis. 2d 358, 752 N.W.2d 748. Arias held that a 78-second dog sniff conducted during a traffic stop did not unreasonably prolong the stop. But the court of appeals explained that Arias is limited to ongoing stops, not to the extension of an already completed stop like the one in Tremaine’s case. Opinion, ¶18.

After the purpose of the initial stop has concluded, the continued seizure of a person, regardless of duration, is unlawful, unless it is justified by reasonable suspicion or some other independent legal ground. See House, 350 Wis. 2d 478, ¶¶6-10. Thus, to the extent that the circuit court read Arias as permitting brief seizures after completed stops, it did so in error. Opinion, ¶18 (footnotes 6 and 7 omitted).

¶20 In short, because Tremaine’s continued detention to conduct the dog sniff was unlawful, the evidence obtained as a result of the dog sniff would have been suppressed had a motion been properly raised. See State v. Gammons, 2001 WI App 36, ¶24, 241 Wis. 2d 296, 625 N.W.2d 623. As a result, Tremaine’s trial counsel was ineffective for not raising this issue. Had Tremaine’s counsel made the proper argument, the only evidence against her would have been suppressed and there is at least “‘a reasonable probability that … [she] would not have pleaded guilty and would have insisted on going to trial.’” See Cooper, 387 Wis. 2d 439, ¶29 (quoting Hill, 474 U.S. at 59).

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