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Search of detained passenger was legal because police had probable cause to arrest him

State v. Antwan D. Hopson, 2014AP1430-CR, District 2, 3/25/15 (not recommended for publication); case activity (including briefs)

Even though Hopson was not formally under arrest at the time police searched him in a manner that exceeded the allowable scope of a frisk, the search was legal because the police had probable cause to arrest Hopson for possession of marijuana.

¶9        We find [State v.] Mata [230 Wis. 2d 567, 602 N.W.2d 158 (Ct. App. 1999)] to be on point as [Officer] Saeger had probable cause to search Hopson based on a reasonable belief under the totality of the circumstances that it was more than a possibility that Hopson possessed marijuana. Hopson had a criminal history that included marijuana charges. A K-9 officer [sic] trained in the detection of drug odors had detected drugs inside a vehicle where Hopson was a passenger. Hopson had recently been sitting in an area surrounded by what officers recognized as “marijuana shake.” Based on these circumstances, there was a reasonable belief that Hopson possessed marijuana, which would make him guilty of a crime, and Saeger had probable cause to arrest Hopson at the time of the search in question. As the search was supported by probable cause, it is immaterial whether it exceeded the scope of a Terry search. See Mata, 230 Wis. 2d at 573-74. …

The fact Hopson wasn’t formally placed under arrest at the time of the search doesn’t matter. If there is probable cause to arrest, a search of the suspect may precede the formal arrest, State v. Tullberg, 2014 WI 134, ¶¶52-56, 359 Wis. 2d 421, 857 N.W.2d 120. (¶¶5-6). See also Rawlings v. Kentucky, 448 U.S. 98, 111 (1980), and State v. Swanson, 164 Wis. 2d 437, 450-51, 475 N.W.2d 148 (1991).

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