State v. Bailey

• Decision Date: 11 August 2009
• Docket Number: No. 2008AP003153-CR.,2008AP003153-CR.
• Citation: 773 N.W.2d 488,2009 WI App 140
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Dennis E. BAILEY, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

773 N.W.2d 488

2009 WI App 140

STATE of Wisconsin, Plaintiff-Respondent, v. Dennis E. BAILEY, Defendant-Appellant.

No. 2008AP003153-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 2, 2009.

Opinion Filed August 11, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeffrey W. Jensen of Law Offices of Jeffrey W. Jensen of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Michael J. Losse, assistant attorney general.

Before FINE, KESSLER and BRENNAN, JJ.

¶ 1 BRENNAN, J

Dennis E. Bailey appeals from a judgment entered after he pled guilty to one count of possession of a controlled substance, cocaine, with intent to deliver, as a second or subsequent offense and one count of felony bail jumping, contrary to WIS. STAT. §§ 961.41(1m)(cm)4., 961.48 and 946.49(1)(b) (2007-08).¹ Bailey challenges the trial court's order denying his motion seeking suppression. Bailey argues that the City of Milwaukee police officer had no authority to stop his vehicle for unlawfully tinted windows. He argues that the subsequent search of his vehicle was not justified by reasonable suspicion. Because we conclude that City of Milwaukee police officers are authorized to enforce city ordinances promulgated under the traffic code and that the officer had reasonable suspicion to justify the search of Bailey's vehicle, we affirm.

BACKGROUND

¶ 2 On April 15, 2007, Milwaukee Police Officer Joseph Honzelka, while on routine patrol, parked on his motorcycle at the intersection of North 45th Street and West North Avenue. At about 7:25 p.m., Honzelka observed a vehicle with the front passenger window having darkened tint greater than the limit set by ordinance. Honzelka pulled over the vehicle and told the sole occupant/driver, Bailey, that he was stopping him for a tint violation.

¶ 3 Meanwhile, Milwaukee Police Officer Jeffrey Novack had arrived on the scene, as Honzelka's backup. Novack stood behind Honzelka at Bailey's driver's window, while Honzelka explained the reason for the stop. Novack observed Bailey make three to five distinct and repeated kick motions with his right foot as if he was attempting to hide something under the driver's seat. Honzelka informed Bailey that he was going to test the windows with a tint meter and requested that Bailey exit the vehicle and step to the rear so he could conduct the tint test. Bailey did and consented to a pat down of his person for the officer's safety. Honzelka and Bailey then moved from the back of the vehicle to the sidewalk side of the car to get out of "harm's way, traffic-wise." Novack then walked to the front passenger side of the vehicle and saw a white plastic bag under the driver's seat, partially exposed. Novack indicated he thought the bag may contain a weapon. When Novack asked Bailey what was in the bag, Bailey answered "candy."

¶ 4 Novack entered the vehicle, removed the bag from under the seat and felt a hard object inside. When Novack opened the bag, he found two clear bags containing a white, chunky substance believed to be cocaine and a small digital scale. Bailey was placed in custody. Honzelka performed the tint test on the windows and confirmed that both the front and rear windows of the vehicle were in violation of the tint ordinance, only allowing 11.8 percent of light through the driver's side front window.² Honzelka issued a citation for the tint violation.

¶ 5 Bailey was charged with possession with intent to deliver a controlled substance, cocaine (more than forty grams) as a second or subsequent offense. He was also charged with felony bail jumping relating to a 2007 child abuse charge. Bailey pled not guilty to both and filed a motion seeking to suppress the evidence obtained during the traffic stop, asserting that the warrantless stop was illegal.

¶ 6 The trial court held a hearing on the suppression motion on June 8, 2007. Honzelka and Novack testified. Honzelka testified that he had ten years of experience as a City of Milwaukee police officer and that last year he had written thirty to forty citations a month for illegal tint violations. He was working general traffic patrol when he observed Bailey's vehicle from a distance of about twenty to thirty feet. He first noticed the tint violation on the front passenger side window, then, as the vehicle passed by, he observed it on the rear passenger window and finally the rear windshield. Although it was 7:25 p.m., dusk, when he observed Bailey's vehicle, he testified that it is actually easier to spot the tint violations at that time of day. He stopped Bailey's vehicle because the tinting was darker than the legal tint.

¶ 7 Novack testified that he had eleven years of experience as a City of Milwaukee police officer and knew that the location of this stop was a high crime area. He saw Honzelka leave the parking lot to make the traffic stop and followed. They did not have a pre-arranged plan. He saw Bailey kick three to five times with his right foot under his seat while Bailey was talking to Honzelka. He knew that a lot of guns and drugs were often kept in cars. The movements that Bailey was making with his foot were consistent with what Novack had seen in the past. Novack assumed Bailey was trying to hide a gun based on his experience. He had made this same type of observation twenty to fifty times in the past and had recovered a gun in ten to fifteen of those times. He testified that he has recovered approximately fifty to seventy guns out of vehicles in his career and ten to fifteen guns out of vehicles from this particular area.

¶ 8 When Novack saw part of the bag in plain view under Bailey's seat in the same area that Bailey had kicked, he asked Bailey what was in it. Bailey answered, "candy." Novack did not believe Bailey would attempt to hide candy. When Novack slid the bag out and felt it, he testified it was bigger than he thought, was opaque and contained a hard object approximately three to five inches wide and three inches high, which he believed could be a gun. He felt several other smaller hard objects in the bag. When he opened the bag, the larger hard object turned out to be a digital scale, which he seized along with the cocaine.

¶ 9 Bailey did not testify at the hearing. At the conclusion of the hearing, the trial court allowed the parties to file briefs. On June 29, 2007, the parties were brought back to the courtroom to receive the trial court's ruling on the suppression motion. The trial court found the officers' testimony credible and that Honzelka was "able to identify what tint is too dark and what tint is too light based upon his experience." The trial court found that Honzelka had authority "to pull over a vehicle for ordinance violations, including equipment violations." Finally, with regard to the traffic stop, the trial court found that Honzelka "did have a reasonable suspicion to find that the defendant did a[sic] violate City of Milwaukee ordinance regarding the tint based upon his experience in the field."

¶ 10 Regarding the search of the vehicle, the trial court then ruled:

Based upon all of that then, the court will find that the stop itself was appropriate with regard to the search itself. That officer — the second officer did observe the bag being kicked under the seat, furtive-types of movements. He did testify that he has observed a number of guns in this — actually in this neighborhood with similar types of actions occurring.

The court will find that he did have a reason to take the plastic bag out from underneath the seat. And upon doing that, he did appropriately feel the bag to see if it did contain a weapon and did subsequently find the materials within the bag.

So the court will find that the search of the bag was appropriate also. And I will then deny the defense's motion to suppress the items found within that bag.

¶ 11 Subsequent to the ruling on the suppression motion, Bailey entered into a plea bargain with the State. He pled guilty to both counts and was sentenced to nine and a half years on the drug count consisting of three and a half years of initial confinement, followed by six years of extended supervision. On the bail jumping count, he was sentenced to a total of two years, with one year of initial confinement followed by one year of extended supervision to be served concurrently. Judgment was entered. Bailey now appeals.

DISCUSSION

I. TRAFFIC STOP

¶ 12 Bailey challenges the traffic stop of his vehicle on two grounds. He contends that: (1) a City of Milwaukee police officer lacks authority to stop a vehicle for an administrative code equipment violation; and (2) the trial court erroneously exercised its discretion in finding the police officer credible when he testified that he could determine excessive window tint with his naked eye. Bailey's lack of authority argument is based on two statutes, WIS. STAT. §§ 349.02(2) and 110.075.

¶ 13 Bailey argues that WIS. STAT. § 349.02(2) prohibits the traffic stop of his vehicle because it does not explicitly authorize a stop for an administrative code equipment violation. Excessive tinting of vehicle windows is prohibited by WIS. ADMIN. CODE § TRAN. 305.32 (May 2004), and not a statute, and therefore he argues that a police officer has no authority to enforce it. Next Bailey argues, based on WIS. STAT. § 110.075, that only a state patrol or Department of Transportation ("DOT") officer may enforce equipment violations. Finally, as to his attack on the trial court's exercise of discretion, he asserts, without argument, that it was unreasonable for the trial court to find that a police officer was able to discern excessive tinting with his naked eye. We reject Bailey's arguments and affirm.

¶ 14 "The interpretation of a statute is a question of law which we review de novo." Grosse v. Protective Life Ins. Co., 182 Wis.2d 97, 105, 513 N.W.2d 592 (1994). "Whether a statute is...