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Reasonable Suspicion – Basis – Unusual Nervousness and Behavior, as Ground to Extend Routine Traffic Stop

State v. Philip R. Bons, 2007 WI App 124, PFR filed 4/24/07
For Bons: Vladimir M. Gorokhovsky

Issue: Whether a concededly proper traffic stop (for speeding) was extended without sufficient cause when the officer, after issuing the ticket and returning the license, asked to search the car.

Holding:

¶15  We conclude that Ramstack could have formed a reasonable suspicion that Bons was engaged in illegal activity, in addition to the traffic violations, when he extended the traffic stop. Ramstack saw a shot glass sitting on the console of the vehicle in close proximity to the driver’s seat. Bons appeared unusually nervous and he rolled up the windows and locked the doors when Ramstack asked him to exit the vehicle. This behavior, coupled with the presence of the shot glass on the console, gave Ramstack reasonable suspicion that Bons had been committing or was about to commit a crime involving alcohol, see Wis. Stat. § 346.935 (open container prohibition), and therefore provided Ramstack with the justification to extend the traffic stop to investigate further.

Bons was known to be driving without a license, but apparently no attempt was made to take him into custody for that offense, so the search can’t be justified as search incident to arrest. And, although the citations had been processed and Bons’s DL returned (¶6), Bons had a compelling argument that the entire transaction was too seamless for the court to deem the traffic stop concluded and the successful request to search part of a severable, consensual encounter. See generally State v. Reginald Jones, 2005 WI App 26, keeping in mind that Bons’s lack of valid DL meant he couldn’t simply drive away. And so, the only way to uphold the consent-based search is to say that it was based on continuing lawful detention. The shot glass was probably the deciding factor, though the court doesn’t say so explicitly. (Nervousness is an overworked factor, see, e.g., State v. Christopher E. Betow, 226 Wis.2d 90, 593 N.W.2d 499 (Ct. App. 1999); and just how is that locking your car generates suspicion—to the contrary, such behavior is a critical demonstration that you’re exercising your right to and expectation of privacy as to the car’s contents? Guess what the court would be saying if Bons had left the car door wide open and the contents exposed to view.)

 

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