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Defense win! Cop didn’t have reasonable suspicion to keep detaining driver who didn’t smell like weed

State v. Noah D. Hartwig, 2022AP1802, 3/30/23, District 4; (one-judge decision; ineligible for publication) case activity (including briefs)

On an early evening in January, an officer noticed an unoccupied car parked in the lot of a public boat launch. She observed a purse in the vehicle and contacted dispatch to see if she could find out anything about the car; she said he was concerned that its erstwhile operator might need some assistance on the cold and icy night. While the officer was waiting in her squad for dispatch to respond, Hartwig arrived in the parking lot driving his Jeep. A female passenger got out of the jeep and into the mysterious car. The officer turned on her emergency lights and approached the vehicles.

When the officer reached the passenger-side door of the woman’s car, the woman rolled down the window. The officer said she could smell marijuana coming either from the car or from the woman’s person. But the woman denied ever having smoked weed. The officer wondered whether something that had happened in Hartwig’s jeep was the source of the odor. She went back to her squad and requested that an officer with a drug dog be dispatched to the scene. It would not show up for about 20 minutes.

In the meantime, the officer approached Hartwig’s vehicle and spoke with him. He was smoking a cigarette, and the officer could not smell any hint of marijuana on or about him. He also gave a non-suspicious account of what he and the woman were doing at the boat launch: she had come to visit him at his parents’ house, where he was living, and there were were too many cars in the driveway for hers to fit, so he picked her up in the lot and gave her a ride to and from his residence. When the dog showed up, it hit on both vehicles. Hartwig moved to suppress any evidence derived from the stop and the dog sniff.

The circuit court granted Hartwig’s motion. First, it held that Hartwig was detained once the officer turned on her emergency lights and approached the vehicles, as a reasonable person would not believe he or she could leave the scene. But, the court said, the officer did not at this point have any reasonable suspicion to detain Hartwig:

[T]he court did not find it suspicious that, “in the middle of winter,” the woman hurriedly went from the Jeep to her car to start her car. The court determined that, at that point, before the officer went to talk to the woman, the officer had no reasonable suspicion to detain Hartwig. The court noted that there was no evidence that the parking lot was an area of known drug activity. The court said that, absent that kind of evidence, “dropping somebody off to their car is not reasonable suspicion of a crime in progress or having been committed.”

(¶12). Moreover, the court said, even ignoring the lack of reason to detain Hartwig initially, the officer also unlawfully extended the stop. The court reasoned that whatever suspicion the officer could reasonably have after smelling the marijuana on the woman dissipated as to Hartwig when: Hartwig didn’t smell of anything illegal; he gave a reasonable explanation of his presence in the lot; and he handed over a valid license on request, which when checked revealed no problems. (¶¶13-14). The officer should have let Hartwig go at this point, said the circuit court. The court of appeals sees things pretty much the same way:

I assume, without deciding, that the officer properly engaged in a bona fide community caretaker function when the officer initially detained both the woman and Hartwig. I also assume, without deciding, that the officer had, in addition, reasonable suspicion to extend the initial stop to investigate Hartwig after the officer smelled the odor of marijuana through the open window of the woman’s car and the woman both denied ever using marijuana and gave a potentially dubious explanation as to why she parked in the lot. However, as the circuit court explained, the officer lacked reasonable suspicion to further detain Hartwig when: Hartwig provided the information the officer requested including an explanation of why the woman parked in the lot that mirrored the explanation given by the woman which Hartwig had not overheard; the running of Hartwig’s license and information revealed no concerns; and the officer did not smell the odor of marijuana from Hartwig or his Jeep. That is, at that point the officer lacked reasonable suspicion that Hartwig had committed or was about to commit a crime and was obligated to let him go.

(¶21). The court also rejects the state’s argument that the 20 minutes was a “reasonable” amount of time to wait for the drug dog, noting that “there is no evidence that the officer needed the 20 minutes to run Hartwig’s license and information and learn that there were no new concerns that might warrant continuing with the stop.” (¶24).

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