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Reasonable Suspicion: Vehicle “Frisk”; Probable Cause: Plain View, Opaque Container

State v. Damon Keith Sutton, 2012 WI App 7 (recommended for publication); for Sutton: Maayan Silver; case activity

Reasonable Suspicion – “Frisk,” of Vehicle

Reasonable suspicion supported “protective search” of Sutton’s van following routine traffic stop: While the officer ran a document check, Sutton remained in the van. The officer discerned “distinct rocking motions,” which the officer’s training and experience informed her represented “someone who may be trying to retrieve or conceal a weapon.”

¶8        Based on her testimony, Officer Bartol had a legitimate reason to be concerned that there might be a gun or other weapon in the van because it seems highly unusual, and did to Officer Bartol, for the large conversion van to make two, large and distinct “rocking motions” when the driver had just been stopped by a marked squad car, and asked by one of the officers about his probation or parole status.  The minimal intrusion of looking into the van was more than outweighed by the need for the officers to assure themselves that there was no gun or other weapon in the van, especially because Sutton was not under arrest and could freely return to the van.  See State v. Williams, 2010 WI App 39, 23, 323 Wis. 2d 460, 473, 781 N.W.2d 495, 502 (Officers had “an immediate safety interest in verifying” that there was not a weapon in the car because a person stopped but not under arrest “‘will be allowed to return’” to the car.) (quoted source omitted). Cf. Arizona v. Gant, 556 U.S. 332, ___, 129 S. Ct. 1710, 1723 (2009) (“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”); State v. Smiter, 2011 WI App 15, ¶18, 331 Wis. 2d 431, 439, 793 N.W.2d 920, 924 (Ct. App. 2010) (Police officers could search the interior of a car for evidence of the crime for which passenger was first arrested, even though the passenger could not have returned to the car.). Once Officer Bartol was lawfully looking in the van, she could also look at what was in plain sight—here, the opaque blue vials—without first getting a search warrant, but we agree that she should not have opened them.

Standard of review, “protective search” of car, recited, ¶7.

Probable Cause – Plain View – Opaque Container 

Opaque vials, discerned during a protective search of Sutton’s vehicle, were themselves in “plain view” but not, given their opacity, their contents. Because the officer did not have probable cause to associate the vials with criminal activity, she could not open them without a search warrant.

¶10      “Probable cause” requires an assessment of “whether, under the totality of the circumstances, given all the facts and circumstances … there is a fair probability that contraband or evidence of a crime will be found in a particular place.”  State v. Sveum, 2010 WI 92, ¶24, 328 Wis. 2d 369, 390–391, 787 N.W.2d 317, 327 (quotation marks and quoted sources omitted).  This “is not a technical, legalistic concept but a flexible, common-sense measure of the plausibility of particular conclusions about human behavior.”  Id., 2010 WI 92, ¶24, 328 Wis. 2d at 391, 787 N.W.2d at 328 (quotation marks and quoted sources omitted).  Officer Bartol explained why she believed the opaque cylinders held illicit drugs:

•           She had previously been involved “[b]etween five and six times” in the arrest of someone for having prescription drugs for which the person did not have a prescription.

•           “The pills are generally transported in a clear orange with white cap prescription bottle containing no information on it or they are contained in a container in which people believe that police will not think is a prescription.”

The cylinders here, however, were opaque, not clear, so Officer Bartol could not see what was inside, and thus, as noted, she did not have “plain view” of the pills. Further, her other experience—that pills can be transported “in a container in which people believe that police will not think is a prescription” applies to any opaque tube, box, carton, jug, can, urn, and the like.  That is too slippery a criterion to permit the warrantless search of a container that could not, by its size or shape, hold a weapon.  CfDenk, 2008 WI 130, ¶¶59–60, 315 Wis. 2d at 27–28, 758 N.W.2d at 786–787 (Officers could search inside of hard, opaque eyeglass case dropped by passenger because:  (1) it could have held “a small weapon, such as a knife or a razor blade,” and (2) it could also have held evidence of the crime for which the officers arrested the driver.).  Further, Sutton was, as we have seen, entirely within his rights not to tell Officer Bartol where he had been, so his refusal to answer that question is not part of the probable-cause calculus.

State v. Pallone, 2000 WI 77, 236 Wis. 2d 162, 613 N.W.2d 568 (officers could conduct warrantless search of passenger’s duffle bag because they had probable cause believe to believe it contained evidence material to crime for which driver arrested), distinguished, ¶11 n. 2.

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