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Reasonable Suspicion – Frisk – Scope of Search

State v. Jose C. McGill, 2000 WI 38, 234 Wis. 2d 560, 609 N.W.2d 795, affirming unpublished decision
For McGill: Steven P. Weiss, SPD, Madison Appellate

Issue1: Whether seizing an object from the suspect’s pocket exceeded the permissible scope of a Terry frisk

Holding: Because the object’s size, shape and feel were consistent with a pocket knife; and the suspect lied to the officer about the nature of the object ,and was nervous and kept reaching for his pocket knife despite being told not to, the officer had a reasonable belief that the object might be weapon and could take it out of the suspect’s pocket. ¶¶35-37. (The fact that the officer handcuffed the suspect before frisking him didn’t prevent the seizure. ¶¶38-39.)

Issue2: Whether opening a foil-wrapped container exceeded the scope of a permissible Terry frisk.

Holding: If there is probable cause to connect the item to criminal activity, the officer may inspect it; here, once the officer removed the object from the suspect’s pocket, he knew it was packaged in way common to illegal drugs and this, coupled with smelling intoxicants and marijuana on the suspect and the suspect’s suspicious actions, provided probable cause to further inspect the package by opening it.

Compare, U.S. v. Holmes, DC Cir No. 05-3171 (seizing car key from pocket from pocket exceeded permissible scope of frisk, given that it was neither a weapon nor apparent contraband).

 

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