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COA holds reasonable suspicion supported Act 79 search that may have led to burglary arrest

State v. Wayne L. Timm, 2023AP351, 1/19/24, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

The police thought Timm might be responsible for a string of burglaries in the area, and so were looking out for his vehicle. When an officer spotted it one night, he pulled it over for going 31 in a 25. Shining his flashlight into the car, the officer saw the flat end of a tire iron such as could be used to pry things open; the iron was partly covered by a pair of jeans. He searched the vehicle and discovered more potentially “burglarious” tools. Based in part on this evidence, the police secured a GPS warrant for Timm’s car. The GPS tracking led to the discovery of evidence connecting him to specific burglaries. He moved to suppress the search of his car; when that was denied, he entered a plea.

On appeal, Timm contends the vehicle search was no good for two reasons. He says first that the officer lacked the requisite degree of suspicion to search his car. Further, he argues he didn’t consent to the search, despite the lower court’s finding that he did. As to this second claim, Timm contends his trial lawyer was ineffective for not calling him as a witness at the suppression hearing; he says that if he had testified, things might have come out in his favor.

The court of appeals resolves the case by holding that the officer did, in fact, know enough facts to search with or without consent. The first step is to nail down just what sorts of facts were needed: enough to make up probable cause, or just reasonable suspicion? Per the court the parties don’t clearly come down one way or the other. Usually a vehicle search in these circumstances would require probable cause. But, says the court, because the officer knew Timm was on probation, the proper standard was reasonable suspicion. (¶¶18-19); see generally 2013 Wis. Act 79; State v. Anderson, 2019 WI 97, 389 Wis. 2d 106, 935 N.W.2d 285.

As to that: collectively, the police knew that Timm had been convicted for burglary twice and was on probation for burglary; that either he or his brother had, years earlier, told police they would not stop; that recent burglaries had happened after Timm got out of prison; that he was stopped at 11:40 p.m.; and that his car had a tire iron in the back seat. (¶¶22-24).

So, again: the police knew that Timm had been a burglar, that burglaries had happened when he (along with virtually anyone else) could have committed them, and that he had a tire iron in his car when stopped a bit before midnight. If that seems like a good enough reason to search his car, ask yourself what Timm could have done on the day, week, month or year of this stop to drive his car without giving state agents the legal authority to detain him while they rifled through his personal effects? Per the court, the tire iron–an item that many if not most motorists drive around with, if not in the back seat–“tips the scales.” (¶24).

Because the court of appeals decides the search was justified by reasonable suspicion, it doesn’t need to engage much Timm’s consent/ineffective assistance claim. (¶33). However, it suggests that even if Timm could show his trial counsel ought to have won on the vehicle search, he can’t show prejudice because he can’t show that would have changed his decision to plead. (¶¶34-35).

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