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State v. Lewis O. Floyd, Jr., 2015AP1294-CR, petition for review granted 1/9/2017

Review of a published court of appeals decision, 2016 WI App 64; case activity (including briefs)

Issues (from petition for review):

Whether an officer’s justification to search is objectively reasonable where the suspect is not observed doing or saying anything suspicious, but cooperating in circumstances that the officer believes are suspicious?

Whether counsel provided ineffective assistance by failing to present additional evidence to show Floyd did not provide valid consent to the search?

The first issue seems to boil down to whether the presence of air fresheners gives an officer reasonable suspicion to search a car in a high crime area. The petition for review explains:

In this case, the officer initiated the stop because he observed that the car’s registration was suspended. (25:4). It is uncontested that during the stop: Floyd was cooperative; Floyd did not give inconsistent or unbelievable information to the officer; Floyd did not act nervous or make furtive movements; the officer did not smell or see any controlled substance; the officer did not see any drug paraphernalia; and the officer did not have any indications of weapons. (25:4-5, 13, 14, 18). (PFR at 6).

What the officer did see was air fresheners on the vents in the car. But Floyd notes that SCOW has already rejected the idea that the presence of air fresheners alone can support reasonable suspicion. See State v. Malone, 2004 WI 108, 274 Wis. 2d 540, 683 N.W.2d 1, which lists facts in addition to the presence of air fresheners to establish reasonable suspicion. Specifically, in Malone, the occupants gave inconsistent accounts of their travel plans (which included going to a rave), the driver and passenger kept putting their hands into their pockets contrary to police instructions, and the occupants had prior drug related offenses. See also Charity v. State, 132 Md. App. 598, 753 A.2d 556 (Md. App. 2000)(presence of 72 air fresheners and inconsistent answers on travel plans between driver and passenger was insufficient to form a reasonable suspicion).

As for the second issue, another officer at the scene of Floyd’s stop reported that the officer who searched Floyd never asked for consent to pat him down. The first officer told Floyd that he was going to be patted down. Trial counsel failed to present this evidence at the hearing on the motion to suppress the drug evidence during the search.

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