State v. Johnnie Austin, 2011AP2953-CR, District 1, 8/14/12
court of appeals decision (1-judge, ineligible for publication); case activity
Continued detention of Austin, following an indisputably proper stop for illegal parking, was supported by reasonable suspicion:
¶14 This court disagrees; the trial court properly found Officer Tisher’s continued detention of Austin reasonable. If, during a valid traffic stop, an officer becomes reasonably suspicious of an individual, the officer need not automatically terminate the encounter, State v. Malone, 2004 WI 108, ¶24, 274 Wis. 2d 540, 683 N.W.2d 1; indeed, if the officer becomes aware of additional circumstances giving rise to an inference that the driver has committed or is committing a crime from that prompting the initial stop, the officer may extend the stop for further investigation, seeState v. Colstad, 2003 WI App 25, ¶19, 260 Wis. 2d 406, 659 N.W.2d 394. This is exactly what occurred in Austin’s case. Officer Tisher observed Austin staring at his steering wheel during their conversation, and noticed that his hands were shaking when he handed his identification to her. SeeState v. Sumner, 2008 WI 94, ¶38, 312 Wis. 2d 292, 752 N.W.2d 783 (a suspect’s unusual nervousness is a legitimate factor to consider in evaluating an officer’s reasonableness during a search or seizure). In addition, Tisher stopped Austin in a dangerous neighborhood with a known history of drug and weapon offenses. Under these circumstances, it was appropriate for Tisher to continue to detain Austin. Furthermore, as the State correctly points out, once Austin was ordered out of his car, he told Tisher that he had a gun inside. Thus, at that point, Officer Tisher had reasonable suspicion that Austin had committed a crime as well as probable cause to search the vehicle for the weapon. See Colstad, 260 Wis. 2d 406, ¶19.
Sentencing Discretion – Expungement, § 973.015(1)(a)
The sentencing court properly exercised discretion in rejecting discretion, ¶¶18-23, based on the following comments:
If he does stay out of trouble in the future, it’s not going to be that much of a problem for him. If he does get into trouble, it’s very important that everybody know that’s been there and that people should be aware of that.
While the defendant is correct that an expungement does not affect DOJ records, the public has to pay for a search of DOJ records, whereas the Wisconsin Circuit Court Access website is available to the public (and prosecutors) at no cost. Consequently, the court finds that to grant an expungement on the basis that the conviction is discoverable through a search of DOJ records would place an unnecessary burden on the public and frustrate the court’s intent that the conviction “is something that society should be aware that it was there.” It would also interfere with future prosecutions, since evidence of an expunged conviction is not admissible to attack the credibility of a witness.