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Terry Frisk

State v. Samuel J. Jacobs, 2012AP728-CR, District 2,10/31/12

court of appeals decision (1-judge, ineligible for publication); case activity

Frisk resulting in seizure of marijuana upheld where detective, investigating reported drug activity, stopped a vehicle on the pretense a headlight was out and, after questioning the driver (Jacobs) for several minutes, discerned that Jacobs had become unusually nervous in that he began “moving from one foot to the other foot,” causing the detective to fear for his safety.

¶8        Based on the totality of circumstances known to Milbach when he searched Jacobs, Milbach’s belief that his safety was in danger was reasonable.  The circuit court articulated one factual finding to justify Milbach’s search of Jacobs—that Jacobs’ demeanor changed “from being unnervous to nervous.”  This finding is supported by the record. Milbach testified that Jacobs’ demeanor had altered significantly enough in the short period of time that he had spoken with the other officer that Milbach thought Jacobs might be having a medical episode.  He described a “marked change” in Jacobs’ demeanor from “typical” nervousness to shifting from foot to foot and exhibiting behavior “outside of the norm” of what he had displayed earlier.

¶9        We believe additional, undisputed facts further support the reasonableness of the search.  See Morgan, 197 Wis. 2d at 210-11 (court of appeals as part of a de novo review of the reasonableness of a search can consider additional factors outside circuit court’s factual findings).  Milbach testified that he was concerned for his safety, and, based upon his past experiences, suspects who displayed demeanor similar to that Jacobs displayed after speaking with the other officer had subsequently been found to have concealed weapons.  Further, it was dark out and Jacobs was wearing a large overcoat that could conceal a weapon.  Lastly, the nature of the criminal activity the task force was investigating at the time related to second-shift employees at Jacobs’ workplace “either using controlled substances or selling them” during their break, which would provide Milbach additional reason to be concerned about potential weapons.

Just to recap: the “marked change” in Jacobs’ behavior, from “typical” nervousness attending a traffic stop to fear-inducing conduct, was that he began “moving from foot to foot,” after intrusive questioning went on for several minutes, ¶3. That’s it. Maybe there’s more in this Record, but that’s all the court recites. Jacobs wasn’t, that is, plunging his hands in and out of his pockets, he was shifting his weight back and forth. Did he have prehensile toes, capable of wielding a weapon? Would that have even mattered, considering that his feet were undoubtedly shod? Speaking of weight, there’s the detective’s experience: during 16 years as a sheriff’s deputy and 26 years in Air Force security, the detective had “probably … five to six times” recovered a concealed weapon where the suspect was exhibiting behavior such as Jacobs’, id. (The State, for whatever it’s worth, says the detective had put in 17 years with the sheriff’s department, Resp. Br., p. 7.) It’s not clear whether and to what extent his years of service with different agencies overlapped, but obviously the minimum total is 26 years. So, over a stretch of 26 years, possibly longer, involving perhaps hundreds of contacts with different individuals, on no more than a handful of occasions did the detective recover a weapon after the suspect did something like shift his weight back and forth. The same “probably” could be said where a suspect blinked rapidly; or blinked slowly; or avoided eye contact; or made intense eye contact; or … you get the drift. To a hammer, everything looks like a nail. Or a bit of marijuana, which is what was recovered.

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