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State v. Andre L. Thompson, 2010AP3146-CR, District 1, 6/28/11

court of appeals decision (1-judge, not for publication); for Thompson: Gregg H. Novack; case activity

Traffic Stop – Ordering Driver Out of Car

¶6        Thompson contends that the circuit court erred in concluding that the officer did not violate Thompson’s Fourth Amendment rights by ordering Thompson to get out of his car following the traffic stop.  This is how Thompson puts it in his brief:  “Mr. Thompson specifically argues that the Milwaukee Police Department had no legal right to order him from his vehicle.”  It is settled, however, that once a police officer makes, as it is conceded here, a lawful traffic stop, the officer may order the driver out of the car.  Pennsylvania v. Mimms, 434 U.S. 106, 110–111 (1977) (expired license plate).[3] Here, unlike the situation in State v. Betow, 226 Wis. 2d 90, 93–95, 593 N.W.2d 499, 501–502 (Ct. App. 1999), on which Thompson relies, the officer did not detain Thompson for further investigation of whether Thompson had violated a law other than speeding; rather, as permitted by Mimms, the officer directed Thompson to the back of Thompson’s car, and Thompson volunteered that he was armed.  The officer did not search or frisk Thompson until Thompson said that he had the pistol.  The officer did not violate Thompson’s rights.

Doesn’t often get more clear-cut than that. (Not only do the police have clearly established authority to order the driver out of the car during a traffic stop, they have the same authority with respect to passengers: “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop,” Maryland v. Wilson, 419 U.S. 408, 415 (1997). There might, in some given case, be an argument that the exercise of this authority unnecessarily prolonged the stop, but Thompson apparently had no such argument on his facts.)

Expungement – Discretion

Discretion in rejecting expungement under § 973.015 properly exercised, though Thompson had no prior record, was cooperative with the arresting officer, was a member of the Army Reserve, and without expungement would be barred from work in his chosen field (pharmacy technician).

¶10      In light of the extreme deference we owe to sentencing determinations, see State v. Mosley, 201 Wis. 2d 36, 43, 547 N.W.2d 806, 809 (Ct. App. 1996) (“The defendant bears the burden of showing that there was some unreasonable or unjustifiable basis for the sentence imposed.”), we cannot say that the circuit court erroneously exercised its discretion in determining that the seriousness of carrying a concealed fully-loaded gun outweighed the positive aspects of Thompson’s life and character.  Further, the circuit court’s comment that it would, “if I believe it’s appropriate,” order the expungement, negates Thompson’s contention that the circuit court had an improper inflexible preconceived policy.  See State v. Martin, 100 Wis. 2d 326, 327, 302 N.W.2d 58, 59 (Ct. App. 1981) (trial court’s statement that it would never grant straight probation to a person convicted of a drug offense was improper).[4]

As recited in footnote 4, the trial court’s observation that CCW is “not going to be tolerated in our community” has literally been supplanted by soon-to-be-enacted 2011 Senate Bill 93. The court of appeals thus sagely reserves the possibility of a different result: “Thus, it may very well be that the community-interest calculus identified by the circuit court during its March 25, 2010, sentencing will be soon changed.  We express no view, however, whether a motion for sentence modification based on that changed public-interest calculus should or could be granted.  See State v. Ralph, 156 Wis. 2d 433, 438, 456 N.W.2d 657, 659 (Ct. App. 1990) (‘A trial court may modify a sentence even though no new factors are presented.’).  That will have to await circuit court action and appellate review on a full Record,” id.

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