State v. Buchanan

• Decision Date: 29 June 2011
• Docket Number: No. 2009AP2934–CR.,2009AP2934–CR.
• Citation: 799 N.W.2d 775,2011 WI 49,334 Wis.2d 379
• Parties: STATE of Wisconsin, Plaintiff–Respondent,v.Deandre A. BUCHANAN, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

334 Wis.2d 379

799 N.W.2d 775

2011 WI 49

STATE of Wisconsin, Plaintiff–Respondent,

v.Deandre A. BUCHANAN, Defendant–Appellant–Petitioner.

No. 2009AP2934–CR.

Supreme Court of Wisconsin.

Argued April 19, 2011.Decided June 29, 2011.

For the defendant-appellant-petitioner there were briefs by Tyler William Wickman and Dallenbach & Anich, S.C. and oral argument by Tyler William Wickman.For the plaintiff-respondent there was a brief by Thomas J. Balistreri, assistant attorney general with whom on the brief was J.B. Van Hollen, attorney general, and oral argument by Thomas J. Balistreri.N. PATRICK CROOKS, J.

[334 Wis.2d 382] ¶ 1 This is a review of an unpublished court of appeals opinion ¹ that affirmed Deandre Buchanan's conviction for possessing marijuana with intent to deliver. The question we address in this case is whether the evidence Buchanan unsuccessfully sought to suppress was seized in violation of the federal and state constitutional provisions barring unreasonable search and seizure. The threshold question is whether the initial protective search of Buchanan and his vehicle was valid; if it was valid, we must also address whether the piece of marijuana plant that the Wisconsin State Trooper discovered on the car floor during the protective search was in plain view and whether there was probable cause to justify seizing it.² THE UNITED STATES supReme cOUrt has held thAt protective searches, or “frisks,” must be based on a reasonable suspicion that the officer is in immediate danger because a suspect may have ready access to a weapon. In this case, the trooper who stopped Buchanan testified that he saw Buchanan make furtive movements that indicated that he may have been hiding something beneath the driver's seat, and that he noticed that Buchanan's hands were shaking as if he were very nervous. He testified that he learned facts from accessing a computer in his police car and contacting dispatch about Buchanan's arrest record, which included a recent drug delivery arrest and arrests for armed robbery, false imprisonment and murder. The trooper called for backup and, after the backup officer arrived, then frisked Buchanan and the area inside the car within the driver's reach.

¶ 2 The State and Buchanan disagree about whether under the totality of the circumstances, the observed conduct and arrest record on which the trooper relied constitute “specific and articulable facts which, taken together with the rational inferences from those facts” ³ create a reasonable suspicion that the person with whom he is dealing is armed and dangerous and a protective search is justified for the officer's safety. Buchanan asks us to reverse the decision of the court of appeals on the grounds that the ruling contravenes the holdings in two of this court's cases—one that focused on a driver's furtive movements and another that focused on a suspect's arrest record—both of which held that the evidence in question was not enough to justify a protective search. In the circumstances present in those cases, State v. Johnson and State v. Eason, this court deemed the evidence insufficient to establish reasonable suspicion.⁴ The State asks us to affirm, arguing that the discovery of the arrest information put the officer's observations into a different context and, in effect, altered the inferences he could rationally draw from those facts.

¶ 3 We hold that under the totality of the circumstances in this case, the trooper's observation of Buchanan's furtive movements and visible nervousness, a record of arrests for violent crimes, and a drug delivery arrest that had occurred nearby a short time before the stop constitute “specific and articulable facts which, taken together with the rational inferences from those facts,” ⁵ create reasonable suspicion and justify a protective search for the officer's safety. The protective search was therefore justified. The subsequent discovery of contraband was made in the course of the search while the item was within plain view; because there was a basis for a protective search, the trooper had a right to be in a position to view it. The trooper's recognition of the smell and appearance of the marijuana, together with the other suspicious circumstances, provided probable cause to believe that it was contraband and that he could validly seize it. There is therefore no basis for suppressing the evidence that was obtained as a result of these actions. We consequently affirm the court of appeals.

I. BACKGROUND

¶ 4 A Wisconsin State Trooper was on duty on a stretch of Interstate 94 in Trempealeau County on the evening of March 4, 2009. At about 9:30 p.m., he saw Buchanan driving west on the interstate and exceeding the speed limit by about ten miles an hour. The trooper pulled out behind him and signaled for him to pull over. The trooper later testified at the suppression motion hearing that when he turned on the siren and lights, including a spotlight that illuminated the interior of Buchanan's car, the vehicle began weaving, and he saw “the driver was moving his shoulder and his arm up and down,” and it looked “like he was stuffing something either underneath the seat or under his foot area.” Buchanan then slowed and pulled to the side of the road.

¶ 5 The trooper observed when he approached the vehicle and spoke to Buchanan that Buchanan's “hands were shaking” and he appeared “very nervous.” The trooper returned to his police car, ran a check on Buchanan's driver's license, and requested that dispatch “run a criminal history on him.” The trooper then received responses, via computer, to both his entry of the license number and his request to dispatch. The responses informed him “of a pending drug charge from a couple of weeks prior from District 6 of the State Patrol, Eau Claire, and dispatch advised [him] that [Buchanan] had multiple violent arrests in the past such as murder, armed robbery and false imprisonment.” The trooper testified that the message he received via computer gave him sufficient information to know that “[Buchanan] had a recent delivery charge of marijuana on his criminal history in Wisconsin in that same area” and that the other charges “were from North Dakota and Minnesota.” He had no information about the disposition of the charges.

¶ 6 The trooper radioed for backup and waited a few minutes. When asked on direct examination what he planned to search when he returned to Buchanan's car, he stated, “Not planning on doing any searching of the vehicle, I was planning on doing a frisk of the vehicle to ensure there was no weapons in the vehicle.” Within ten minutes of the initial stop, an officer arrived as backup, and the trooper returned to Buchanan's vehicle with the officer and asked Buchanan to get out of the car. He then frisked Buchanan; he described the frisk as “[a] short, cursory pat-down of the waist area, anywhere where weapons are commonly hidden.” He found no weapon. He testified that, using a flashlight, he then “returned to [Buchanan's] vehicle and conducted a cursory frisk of the driver's lunge area ⁶ under the seat and center console area.” He found no weapons, but he did see “a piece of green plant material” visible on the car floor and he “smell[ed] an odor of raw marijuana in the vehicle.” A field test of the plant was positive for THC, the active ingredient in marijuana. The trooper informed Buchanan that he would be doing a further search of the vehicle at that point. Additional marijuana was discovered in the vehicle, and Buchanan was subsequently charged with possession with intent to deliver THC (tetrahydrocannabinols) contrary to Wis. Stat. § 961.41(1m)(h)(3) (2007–08).⁷

¶ 7 Buchanan moved to suppress the marijuana seized in the search on the grounds that there was an insufficient basis for reasonable suspicion for a protective search and that the protective search was a violation of Buchanan's constitutional protections against unreasonable search and seizure. Buchanan specifically argued that the furtive movements, nervousness, and the arrest record were not sufficient to establish reasonable suspicion. The Trempealeau County Circuit Court, the Honorable John A. Damon presiding, denied Buchanan's motion. Buchanan entered a plea of no contest and was convicted. He appealed the circuit court's denial of his motion to suppress pursuant to Wis. Stat. § 971.31(10).⁸ The court of appeals affirmed on the grounds that the protective search was supported by reasonable suspicion that Buchanan was armed and dangerous; it cited Buchanan's furtive movements prior to the stop, the unusual nervousness Buchanan displayed, the pending drug delivery charge, and the arrests for murder, false imprisonment and armed robbery.⁹ Buchanan petitioned this court for review, which we granted.

¶ 8 This review presents questions of fact and law. Buchanan challenges the constitutionality of the trooper's protective search of him and of the area within reach of the driver's seat in his vehicle that led to the discovery of contraband. Such limited searches, often referred to as “frisks” are “measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” State v. Kyles, 2004 WI 15, ¶ 1, 269 Wis.2d 1, 675 N.W.2d 449 (citing Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

Whether the facts satisfy the constitutional requirement for performing a protective search for weapons—that an officer must have reasonable suspicion that a person may be armed and dangerous to the officer or others—is a question of constitutional law for this court to decide. We are not bound by a circuit court's or court of appeals' decision on this question of law, but we benefit from the analyses of these courts.

Id., ¶ 7. If the protective search was unconstitutional because there was not the requisite reasonable suspicion to support it, the evidence ultimately seized as a result of the search must be...