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Reasonable Suspicion – Frisk – Minor Traffic Violation

State v. Jose C. McGill, 2000 WI 38, 234 Wis. 2d 560, 609 N.W.2d 795, affirming unpublished decision
For McGill: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether the officer had reasonable suspicion to believe McGill armed and dangerous, and therefore to frisk him, following a routine traffic stop.

Holding: Judged by the requisite objective test, the frisk was justified, given that: the driver didn’t stop immediately; after pulling over, the driver got out and began walking away; the driver was unusually nervous; the driver smelled of intoxicants and illegal drugs; the driver “twitched and acted nervous with his hands; the officer was alone, it was nighttime in a poorly lighted spot, ¶¶27-33.

The court stresses, ¶29, “that he was unusually nervous — beyond the level of nervousness that the officer normally observed in individuals he stopped.” See also State v. Vandenberg, 2003-NMSC-030, ¶¶28-31 (frisk upheld where driver “more nervous than most people who are stopped for a routine traffic offense”; but, court “caution(s) that while nervousness may be a relevant factor in the calculus, we do not consider nervousness alone sufficient to justify a frisk for weapns”).


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