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Frisk – Auto; Plain View

State v. Deandre A. Buchanan, 2011 WI 49, affirming unpublished CIA decision; for Buchanan: Tyler William Wickman; case activity

Frisk – Auto

Frisk of Buchanan, following routine traffic stop for speeding, was supported by reasonable belief that he was armed and dangerous.

¶3   We hold that under the totality of the circumstances in this case, the trooper’s observation of Buchanan’s furtive movements and visible nervousness, a record of arrests for violent crimes, and a drug delivery arrest that had occurred nearby a short time before the stop constitute “specific and articulable facts which, taken together with the rational inferences from those facts,”[5] create reasonable suspicion and justify a protective search for the officer’s safety.  The protective search was therefore justified. …

¶18  In this case, the factors, considered together, create reasonable suspicion that the item Buchanan was seen putting under the seat or reaching to retrieve when pulled over could have been a weapon.  The factors, considered together, create reasonable suspicion that the officer faced danger in returning to the car to face a driver who was extremely nervous and who had been arrested for murder, delivery of drugs, armed robbery, and false imprisonment.  The trooper was not required to ignore that information.  As we have frequently noted, traffic stops are dangerous for law enforcement, and permitting a limited search is a reasonable way to balance the competing interests involved …

¶19  A holding that reasonable suspicion can be established under circumstances that include a furtive movement, unusual nervousness, and a troubling arrest record for violent crimes and drug trafficking is consistent with this court’s precedent.  It is significant under a totality of the circumstances analysis that all of these factors were included here.

The court’s discussion more or less indicates that considered in isolation none of the 3 identified factors (furtive gesture, unusual nervousness, criminal history) would be enough; but, each being legitimately considered, in combination they support reasonable suspicion. The court also notes, “There is no allegation that the traffic stop was prolonged beyond the time necessary to complete the investigation of the violation,” ¶20.

Plain View

While properly engaged in a “protective search” of Buchanan’s car, involving “a cursory frisk of the driver’s lunge area under the seat and center console area” (¶24), the officer’s discovery of plant material was in plain view, and could be seized.

¶26  Applying the test set forth above, we first address whether the contraband was in plain view.  The evidence is that it was.  The trooper testified that “as soon as [he] looked down [he] observed” the plant stem.  There was no contrary testimony, and Buchanan concedes that “[the trooper] did not need to move anything.”  Pet’r Br. at 41.  We next address the question of whether the trooper had “a prior justification for being in the position from which [he] discover[ed] the evidence.”  We have already resolved that question in the State’s favor above.  The final question is whether “facts known to the officer at the time of the seizure [provide] probable cause to believe there is a connection between the evidence and criminal activity.”  Buchanan argues, on this point, that “[a] green plant stem alone is insufficient to give an officer probable cause to believe that criminal wrongdoing existed to justify seizing the object.”  Pet’r Br. at 43.  The State responds that the trooper had sufficient experience to identify the plant material as marijuana by its appearance and smell, and that identification provided probable cause for him to seize it.  There is no evidence in the record that contradicts this.  In Guy, we noted the relevance of the officer’s prior drug interdiction experience:  “Zarse had found drugs in over 100 searches. That experience would help an officer know how drugs are stored and recognize the feel of a baggie containing bindles.”  Guy, 172 Wis. 2d at 102.  The trooper in this case similarly testified that he had been doing drug interdiction patrols since he became a police officer about five years earlier and had made “probably over a hundred drug arrests.”

¶27  The requirements for the application of the plain view doctrine are met on these facts.  In this not uncommon set of circumstances, contraband was discovered in the course of a valid protective search, but under these circumstances, suppression is not required.  As the United States Supreme Court stated in Michigan v. Long, “If, while conducting a legitimate Terry search of the interior of the automobile, the officer should . . . discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.”  Long, 463 U.S. at 1050.

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