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Traffic Stop – Duration; Frisk – “Armed and Presently Dangerous”

State v. Jon Paul A. Fernandez, 2010AP1394-CR, District 2, 10/12/11

court of appeals decision (1-judge, not for publication); for Fernandez: Jefren E. Olsen, SPD, Madison Appellate; case activity

Concededly lawful traffic stop (operating without headlights) wasn’t unreasonably prolonged by warrant checks, arrest of passenger on warrant for unpaid forfeiture, and then search of car incident to that arrest, before the traffic ticket was issued, ¶11 (“Absent any indication of unreasonable delay, we view the order of events as nothing more than the officers’ attempt to control the scene.  We therefore conclude that the traffic stop was pending and Fernandez was lawfully seized when the search of his person and pockets occurred.”) State v. Gammons, 2001 WI App 36, ¶¶11-13, 241 Wis. 2d 296, 625 N.W.2d 623 and similar authority, distinguished, ¶11 n. 4 : “However, none of these cases involved the arrest of a passenger based on a lawful warrant check.  In each of these cases, the purpose of the initial traffic stop had concluded prior to the challenged search and no additional suspicious factors had come to the officer’s attention during the initial traffic stop.”

The court’s analysis is teased out in footnote 5:

Based on our conclusion that Murphy was entitled to order Fernandez out of the vehicle while conducting the traffic stop and did not unlawfully detain him pending the completion of the traffic stop, we need not address Fernandez’s contention that his continued detention “cannot be justified as a necessary part of the officers’ search of the car incident to [Melissa’s] arrest because that search was unlawful” under Arizona v. Gant, 556 U.S. 332 (2009).

This analysis is based on the following sequence of events, ¶11: traffic stop; discovery of warrant; arrest; pat-down; citation. More pertinently still, Fernandez was ordered out of the car and required to submit to the pat-down precisely because the car was to be searched, ¶4. Thus, the pat-down was occasioned by the claimed need to perform a search incident to the arrest – and, because the arrested passenger was by then in the squad car, the search-incident rationale would fail under Gant. That is, issuance of the citation was delayed, therefore Fernandez’s detention was delayed, in order to perform an unlawful search. Except that this occurred all of 5 weeks before Gant was released, therefore that case doesn’t apply, State v. Dearborn, 2010 WI 84. Fernandez nonetheless advanced a creative argument that even in light of Dearborn, the search-incident was unlawful; the court should have reached the argument instead of dismissing it as irrelevant. It might be that the delay, even to perform an unlawful act, was so incremental that it can’t be characterized as unreasonable. But that is different from saying it is altogether irrelevant.

Frisk of Fernandez, based on officer’s generalized belief that traffic stops are inherently dangerous, was unsupported by reasonable suspicion that Fernandez was armed and presently dangerous:

¶16      As Fernandez notes, the stop did not occur in a high crime area and it was not related to a criminal investigation such that an officer would suspect that the car’s occupants had engaged in any criminal behavior, the arrest was made on a civil warrant for failure to pay a forfeiture, and at the time of the pat-down search there were three officers on the scene.  Moreover, Murphy testified that all of the vehicle occupants—and Fernandez specifically—were cooperative.

¶17      Fernandez argues that Murphy failed to articulate a particularized suspicion that a weapon was present but rather was acting in conformity with his common policy of frisking persons during traffic stops.  While we recognize the danger presented during a temporary seizure and the increased risk that accompanies an arrest, we agree with Fernandez that Murphy lacked the specific and articulable facts necessary to support an inference that Fernandez might have been armed and dangerous.  Notably absent from Murphy’s testimony was any indication that Fernandez, or any of the individuals, engaged in any suspicious behavior, either in demeanor or actions.[6]  We therefore conclude that the pat-down search of Fernandez’s person was not reasonable under the circumstances.

Court “guided by” (¶14) State v. Kyles, 2004 WI 15, ¶¶11-17, 269 Wis. 2d 1, 675 N.W.2d 449.

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