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Reasonable Suspicion Issues – Frisk – Minor Traffic Violation – Passenger

State v. Jeff S. Mohr, 2000 WI App 111, 235 Wis.2d 220, 613 N.W.2d 186
For Mohr: Eileen A. Hirsch, SPD, Madison Appellate

Issue: Whether the frisk of a passenger, some 25 minutes after a routine traffic stop, was supported by reasonable belief that the person was armed.

Holding: The frisk was unlawful; because it “occurred approximately twenty-five minutes after the initial traffic stop, the most natural conclusion is that the frisk was a general precautionary measure, not based on the conduct or attributes of Mohr.” ¶15.

The stop for a minor traffic violation resulted in a warning. Nonetheless, the officer got permission from the driver to search the car. That led to one passenger (not Mohr) being arrested for underage drinking. Mohr was then told to get out. He appeared drunk, but apparently had committed no crime and was not, so far as the opinion indicates, subject to arrest. He refused to sit in a squad car and was otherwise uncooperative, but not belligerent. After a few minutes, he was handcuffed and frisked; the officer recovered some marijuana. In ordering suppression, the court expresses concern “that an increasing number of appeals present situations in which police officers routinely ask permission to do drug and weapon searches of motor vehicles following stops for minor traffic infractions.” ¶17. Does this concern represent increased sensitivity to the idea that minor stops are being used as pretexts (especially considering that this case was initially recommended for non-publication)? Even if “pretext” isn’t a basis for suppression, clearly pretextual police action may be subject to greater scrutiny than the ordinary case. Compare, State v. Washington, Ind App No. 02A03-0703-CR-124, 10/22/07 (“this court has expressed its concern over ‘the increasingly common practice of police stopping vehicles for minor traffic offenses and seeking consent to search with no suspicion whatsoever of illegal contraband[.]’”).

See also U.S. v. Wilson, 6th Cir No. 06-6339, 10/29/07 (minor traffic offense, passenger’s “extreme nervousness” not enough to support belief armed/dangerous, though driver’s behavior might have been enough; court rejecting “automatic companion” rule for frisks).

 

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