State v. Gammons, 00-0377-CR.

Citation241 Wis.2d 296,625 N.W.2d 623,2001 WI App 36
Decision Date11 January 2001
Docket NumberNo. 00-0377-CR.,00-0377-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Christopher GAMMONS, Defendant-Appellant.
CourtCourt of Appeals of Wisconsin

On behalf of the defendant-appellant, the cause was submitted on the briefs of Keith A. Findley of the Criminal Appeals Project, Frank J. Remington Center, University of Wisconsin Law School, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jennifer E. Nashold, assistant attorney general.

Before Dykman, P.J., Roggensack and Johnston, JJ.1

¶ 1. DYKMAN, P.J.

Christopher Gammons appeals from a judgment convicting him of possession of cocaine with intent to deliver. After a police officer stopped the vehicle in which he was a passenger, police eventually found drug evidence that led to his conviction. Gammons argues that the officer lacked a reasonable suspicion to stop the vehicle. He also argues that, even if the officer had a reasonable suspicion to stop the vehicle, the officer exceeded the permissible scope of the stop by continuing to detain the vehicle, asking questions about identification and drugs, and asking to search the vehicle. The State contends that the officer's continued detention of the vehicle and his questions were permissible because he reasonably suspected drug activity at the time of the detention and questioning. We conclude that the officer exceeded the permissible scope of the investigation when he continued to detain the vehicle after the driver told him there were no drugs in the vehicle and that he could not search it. We therefore reverse.

I. Background

¶ 2. On July 17, 1998, Officer John Fahrney stopped a vehicle driven by Tommy Farr because it did not have a rear license plate. Gammons and a third man, Stephen Baskin, were passengers. After Fahrney stopped the vehicle and approached it, he noticed that it had a temporary registration sticker. Fahrney asked all three men for identification. He then ran a driver's license check on Farr and warrant checks on Gammons and Baskin.

¶ 3. Fahrney also asked Farr if there were any drugs in the vehicle, and Farr responded that there were not. Fahrney asked permission to search the vehicle, and Farr refused. Fahrney then told Farr that he would get a police dog to sniff around the vehicle and detect any drugs that were present, after which Farr told Fahrney that he could search the vehicle. At the suppression hearing, Fahrney testified as follows:

A. I obtained Mr. Farr's driver's license information and ran a driver's license check on him. And asked him if there were any drugs in the vehicle.
Q. And what was his response?
A. He said no.
Q. And then what occurred?
A. I asked him if he would allow me to search the inside of the vehicle for drugs.
Q. And what was his response?
A. He said no.
Q. And then what did you do at that point?
A. I advised him I would be getting my police dog out of the car to walk around his vehicle and explained to him if the dog detected any narcotics inside the vehicle he would indicate as such, and if that happened, then I would search his vehicle.
Q. And what happened after that?
A. He then told me to go ahead and search his vehicle.

Farr also testified that he and Fahrney had this conversation.

¶ 4. Additional officers arrived on the scene, and the police ordered Gammons out of the vehicle. Officer John McMahon patted down Gammons and found marijuana on Gammons' person. Gammons struggled with McMahon or other officers before or during the pat down, and the police also found cocaine in the area outside the vehicle where Gammons had been positioned.

¶ 5. Gammons was charged with possession of cocaine with intent to deliver within one thousand feet of a school in violation of WIS. STAT. §§ 961.41(1m)(cm)1 and 961.49(1)(b)6 (1997-98),2 obstruction of an officer in violation of WIS. STAT. § 946.41(1), and possession of THC in violation of § 961.41(3g)(e), all as a habitual offender under WIS. STAT. § 939.62(1)(a) and (b). Gammons moved to suppress all evidence seized by the police on the night of the stop. The trial court denied the motion, and Gammons pleaded guilty to the possession with intent to deliver charge. The trial court entered a judgment of conviction, and Gammons appeals.

II. Analysis

[1, 2]

¶ 6. A traffic stop is a form of seizure triggering Fourth Amendment protections from unreasonable searches and seizures. State v. Guzy, 139 Wis. 2d 663, 675, 407 N.W.2d 548 (1987). The police must have a reasonable suspicion, grounded in specific articulable facts and reasonable inferences from those facts, that an individual is violating the law. Id. We first determine whether the initial interference with an individual's liberty was justified, and then consider whether subsequent police conduct was reasonably related in scope to the circumstances that justified the initial interference. Terry v. Ohio, 392 U.S. 1, 19-20 (1968); State v. Griffith, 2000 WI 72, ¶ 26, 236 Wis. 2d 48, 613 N.W.2d 72. We uphold the trial court's findings of fact unless they are clearly erroneous. State v. Young, 212 Wis. 2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997). Whether the circumstances of a stop or detention meet constitutional standards, however, is a question of law that we review de novo. Id.

¶ 7. Gammons first argues that, because the vehicle bore a temporary license sticker, Fahrney lacked a reasonable suspicion to stop it.3 We disagree. In State v. Griffin, 183 Wis. 2d 327, 329, 515 N.W.2d 535 (Ct. App. 1994), we held that "the absence of a registration plate, and reasonable inferences that can be drawn from that fact, constitute[] reasonable suspicion sufficient to justify an investigatory stop of a motor vehicle." In Griffin, the defendant's vehicle bore a "license applied for" sign. Id. at 329-30. We reasoned that, without stopping the vehicle, the officers in Griffin had no way of knowing whether the defendant was in violation of vehicle registration laws. Id. at 333-34.

¶ 8. While the temporary license sticker in this case may be a better indicator of registration than the "license applied for" sign in Griffin, the trial court found that at the time of the stop, Fahrney did not see the temporary sticker. Therefore, like the officers in Griffin, Fahrney had no way of knowing whether Farr was in compliance with vehicle registration laws without stopping the vehicle.

¶ 9. Gammons seems to suggest in his brief that Fahrney could not have had a reasonable suspicion to stop the vehicle because he "could have" seen the temporary sticker if he had looked more closely. But what Fahrney could have seen is not the test. The trial court found that Fahrney did not initially see the sticker. This finding was not clearly erroneous because it is supported by evidence in the record. See State v. Hampton, 217 Wis. 2d 614, 622, 579 N.W.2d 260 (Ct. App. 1998)

. At the time that Fahrney stopped the vehicle, it was dark, and Fahrney testified that he did not see the sticker until after he stopped the vehicle. Baskin testified that the sticker, though orange with dark lettering, was only about eight to ten inches long by three to four inches high.

¶ 10. Gammons next argues that when Fahrney approached the vehicle and saw the temporary sticker, any suspicions of illegal activity were dispelled, and he no longer had a basis to detain Gammons and the other men. Therefore, Gammons argues, all of the subsequent police questioning and conduct, including Fahrney's extraction of Farr's consent to search the vehicle, exceeded the permissible scope of the stop.

[3]

¶ 11. During an investigative detention, whether the intrusion is reasonable depends on whether the police conduct is reasonably related to the circumstances justifying the initial police interference. Terry, 392 U.S. at 19-20; Griffith, 2000 WI 72 at ¶ 26. "[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500 (1983). "The scope of the detention must be carefully tailored to its underlying justification." Id. The State has the burden to show that any seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope. Id.

[4]

¶ 12. The supreme court has concluded that "when a passenger has been seized pursuant to a lawful traffic stop, the seizure does not become unreasonable . . . simply because an officer asks the passenger for identification during the stop." Griffith, 2000 WI 72 at ¶ 65. In Griffith, the court identified several reasons why a police officer may need to investigate the identity of passengers during the course of a traffic stop. Id. at ¶¶ 45-48. For example, police may need to determine whether anyone other than the driver in the vehicle is licensed to drive, or they may need to identify potential witnesses to unlawful conduct. Id. at ¶¶ 47-48.

¶ 13. Fahrney did not violate Gammons' Fourth Amendment rights by requesting his driver's license and running a check on him. As the Griffith court explained, such questions and actions are reasonably related in scope to the purpose of a traffic stop, and no further justification is required. Griffith, 2000 WI 72 at ¶ 45.

¶ 14. The question of whether Fahrney could permissibly ask Farr and the others about drugs and to search the vehicle is a closer one, and so we next examine in some detail the principal cases on which Gammons and the State rely. The State relies primarily on State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996), arguing that police may extend a stop and ask questions unrelated to the justification for the stop.

¶ 15. In Gaulrapp, two police officers stopped the defendant for a defective muffler. Gaulrapp, 207 Wis. 2d at 603. One of the officers asked the defendant if he had any drugs or weapons in the vehicle, and he...

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