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Reasonable Suspicion, Drug Use

State v. Joseph E. Jenamann, 2010AP1825-CR, District 4, 11/24/10

court of appeals decision (1-judge, not for publication); for Jenamann: Matthew Allen; State BiC; Jenamann Resp; Reply

Continuing detention, following routine traffic stop for loud muffler and after Jenamann passed sobriety tests, was unlawful:

¶12      The only suspicious factors suggesting drug activity were bloodshot, glassy eyes, shakiness, and a nervous suspect.  Traffic stops involving more suspicious facts than exhibited here have been found insufficient to establish reasonable suspicion of illegal drug activity.  See, e.g., State v. Gammons, 2001 WI App 36, ¶21, 241 Wis. 2d 296, 625 N.W.2d 623 (suspect vehicle was stopped in “drug-related” area; stop occurred at 10:00 p.m.; suspect vehicle was from Illinois; an investigating officer had personal knowledge of prior drug activity on the suspect’s part; and the suspect appeared nervous and uneasy); State v. Betow, 226 Wis. 2d 90, 95-97, 593 N.W.2d 499 (Ct. App. 1999) (suspect’s wallet had a picture of a mushroom on it; the stop occurred late at night; the suspect appeared nervous; the suspect was returning to Appleton from Madison; the investigating officer thought the suspect’s story about what he had been doing in Madison sounded implausible).

¶13      Accordingly, we conclude that once Jenamann passed the PBT and Updike had determined that Jenamann was not operating his motor vehicle under the influence of an intoxicant, Updike had no basis to further detain him.  At that point, the Fourth Amendment required Updike to terminate the stop and allow Jenamann to continue on his business.  When Updike did not do so, the stop was transformed into an unlawful detention, and any drug evidence obtained by police after that point was obtained in violation of Jenamann’s Fourth Amendment rights and was properly suppressed.

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