State v. Robert F. Hart, 2001 WI App 283
For Hart: John Deitrich
Issue: Whether the need to transport in a police vehicle a person, who is not in custody, is itself an exigency justifying a pat-down search for weapons.
¶17. … With five members of the court declining to adopt a per ser rule, the law in Wisconsin is that the need to transport a person in a police vehicle is not, in and of itself, an exigency which justifies a search for weapons.
¶18. In light of the supreme court’s rejection in Kelsey C.R. of a ‘search incident to a squad car ride’ exception, more specific and articulable facts must be shown to support a Terry frisk. Morgan, 197 Wis. 2d at 209. The record in this case offers no specific or articulable facts that would make a police officer reasonably fear for his or her safety. This was a routine traffic stop; it is not like those cases where an officer has confronted a person who is acting nervous or uncooperative, who is in a high-crime area late at night, or who has companions in the car. We conclude that the marijuana pipe may not be admissible as the result of a Terry search.
¶19. Before continuing this opinion, we must note that a routine pat-down of a person before a police officer places the person in a squad car is wholly reasonable. We recognize that police policy mandates pat-downs for the general safety of the officer. Nevertheless, evidence gleaned from such a search will only be admissible in court if there are particularized issues of safety concerns about the defendant.
For additional cases re: placing someone in squad isn’t necessarily justification in and of itself for frisk, see, State v. Askerooth, fn. 8, MN SCt No. C6-02-318, 6/17/04.
Authority for the idea that the police may not, “as a matter of routine, … order a detained motorist to sit in the back of a police cruiser”: State v. Berrios, TN Crim App 04-03042, 3/3/06 (refusing to extend Pennsylvania v. Mimms, which allows officer to order occupants out of car upon traffic stop to “routine, suspicionless frisks”).