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COA denies IAC claims re failure to move for suppression and to cross-examine officer effectively

State v. Antwan Eugene Gill, 2022AP654-Cr, 4/6/23, (1-judge opinion, ineligible for publication), case activity (including briefs)

Gill was convicted for possession of THC and for operating a vehicle with a detectable amount of THC in his blood.  He argued that his trial lawyer was ineffective for failing to move for suppression of the results of field sobriety and blood tests and for failing to exploit inconsistences between an officer’s testimony and his report and squad-cams footage.  The court of appeals rejected both claims.

An officer spotted Gill driving at 84 mph in a 70 mph zone at 4:00 a.m. on a Friday morning and stopped him. Turns out Gill’s license had been revoked. When his passenger rolled down her window, the officer smelled a faint and transient odor of burned marijuana. After writing the citations for operating without a license and a warning for speeding, the officer returned to the car and saw a roach in the cupholder between Gill and his passenger.

When the officer patted down Gill, he smelled the faint odor of alcohol. While searching the vehicle the officer discovered a partially consumed bottle of whiskey within reach of the driver’s seat. The officer also told a second officer that besides finding a roach he “didn’t smell anything except cigarettes and air freshener, but he was going to put Gill through FSTs. Then the first officer found a second rolled cigarette that smelled of marijuana in the driver’s side door.

FSTs showed that Gill exhibited signs of impairment. He consented to a blood draw which revealed a detectable amount of delta-9 THC. Plus, one of the cigarettes in Gill’s car also tested positive of THC.

Gill claimed that his trial lawyer should have moved for suppression because the officer lacked reasonable suspicion to expand the scope of the stop to administer FSTs. The court of appeals held that the motion would have failed because by speeding and driving without a license Gill had shown risk-taking behavior and nonconformity with the law. The time of the stop (4:30 a.m.) added to the officer’s reasonable suspicion.  (Opinion, ¶30) (citing as examples State v. Adell , 2021 WI App 72, ¶25, 399 Wis. 2d 399, 966 N.W.2d 115; State v. Post, 2007 WI 60, ¶36, 301 Wis. 2d 1, 733 N.W.2d 634).

But in Gill’s case, the officer also detected the odor of marijuana and observed signs of recent use. Opinion, ¶31 (citing Adell, ¶25 and State v. Secrist, 224 Wis. 2d 201, 210-211, 589 N.W.2d 387 (1999)). And don’t forget the open bottle of whiskey within arm’s reach of the driver’s seat. Opinion, ¶32. That’s more evidence of nonconformity with the law.

The court of appeals held that the totality of these circumstances gave the officer reasonable suspicion to believe that Gill operated a vehicle with a detectable amount of THC in his blood and thus reasonably expanded the stop to perform FSTs. Accordingly, counsel did not perform deficiently by failing to file a suppression motion.

The court of appeals also rejected Gill’s second IAC claim. Allegedly, trial counsel should have cross examined the officer more vigorously, highlighting inconsistencies in his testimony. For example, the officer initially testified that he saw the saw the second cigarette by the passenger floorboard. Then he refreshed his recollection with his police report from 4 years earlier and clarified that he found it in the armrest of the driver’s side door. Also, the officer told his colleague that he only smelled cigarettes and air freshener in the car but the squad-camera footage showed him reacting to the smell of marijuana that he attributed to the passenger’s breath.

These inconsistencies did not trouble the court of appeals because they weren’t relevant to the two charges of which Gill was convicted: possession of THC and operating with a detectable amount of a restricted controlled substance in his blood. Thus, Gill was not prejudiced by trial counsel’s failure to cross-examine the officer on these matters. (Opinion, ¶¶46-48).


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