State v. Smiter

• Decision Date: 28 June 2022
• Docket Number: 2021AP534-CR,2021AP533-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Tracy Smiter, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent, v. Tracy Smiter, Defendant-Appellant.

Nos. 2021AP533-CR, 2021AP534-CR

Court of Appeals of Wisconsin, District I

June 28, 2022

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEALS from judgments of the circuit court for Milwaukee County: Nos. 2017CF3107, 2018CF968 JONATHAN D. WATTS, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and White, J.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 Tracy Smiter appeals from two judgments of conviction entered upon guilty pleas, for three counts of possession with intent to deliver narcotic drugs and one count of felony bail jumping. Smiter argues that the trial court erred when it denied his motion to suppress evidence. Upon review, we affirm.

BACKGROUND

¶2 This case begins with a police encounter with Smiter in July 2017, which resulted in a criminal complaint in Milwaukee County Circuit Court case No. 2017CF3107 charging Smiter with possession with intent to deliver a controlled substance three grams or less of heroin. Smiter was taken into custody while sitting in a Jeep Compass in a Walgreens parking lot on West Capitol Drive in Milwaukee. The police seized a plastic bag from his driver's door map pocket; testing showed that the recovered plastic bag contained multiple types of drugs.^[1]

¶3 In February 2018, Smiter was charged in Milwaukee County Circuit Court case No. 2018CF968 after Smiter's arrest for allegedly arranging to sell and deliver heroin and cocaine to a Drug Enforcement Administration Task Force Officer. Smiter was charged with: (1) possession with intent to deliver a controlled substance, ten to fifty grams of heroin, as a second or subsequent offense, as a party to a crime; (2) possession with intent to deliver a controlled substance, one gram or less of cocaine, as a second or subsequent offense, as a party to a crime; and (3) felony bail jumping.

¶4 In June 2018, Smiter moved to suppress the evidence from the July 2017 encounter. The trial court conducted a suppression hearing on October 25, 2018.^[2] The court heard testimony from two Milwaukee Police Department officers: Peter Hauser and Evan Domine, as well as a Wisconsin State Public Defender's Office (SPD) investigator.

¶5 At the suppression hearing, Officer Hauser testified that he was on bicycle patrol with four other officers when they patrolled a Walgreens parking lot on West Capitol Drive in Milwaukee, a location that in his experience had been "notorious for drug dealing." He stated that Officer Domine approached a Jeep Compass on the passenger's side. He identified Smiter in court as the driver of the Jeep Compass.

¶6 Officer Hauser further testified that he pulled up on the driver's side of the jeep and observed that the driver's door was slightly open and the vehicle was occupied. He testified that Officer Domine told him that the occupants of the vehicle were going to be coming out of the vehicle, "which indicated to me that he observed an illegal item inside of the vehicle." After the driver's side door was fully opened, Officer Hauser could see the plastic bag in the map pocket in the door and he could "clearly see a green plant substance that [he] suspected to be marijuana." The plastic bag was recovered in the search of the vehicle; it contained "four smaller baggies that contained suspected marijuana, suspected heroin and suspected cocaine."

¶7 Officer Hauser reviewed police body camera video footage from the incident on the stand. He testified during cross-examination that the bicycle squad checked in with people they encountered on patrol, something he understood to be consensual encounters because the people were free to go in other words, that he was not making a stop.

¶8 Officer Domine testified that he was on routine patrol with the bicycle squad in the Walgreens parking lot, which was "considerably one of the higher traffic lots for narcotic sales" and where he had previously participated in narcotics-based arrests. He recalled that the patrol made contact with all of the vehicles in the lot. He observed the Jeep Compass in question with occupants inside for one or three minutes, observing that no one had exited or entered the vehicle. He believed he made contact with the Jeep "to see how it was going."

¶9 Officer Domine further testified that while he was on the passenger's side of the vehicle looking inside, he "observed a bag of green-leafy substance on the driver's side of the vehicle." Based on his experience in hundreds of narcotics investigations, he believed that it was a "bag full of narcotics." He stated that he "would have notified the officers on the driver's side that I made an observation of something, then they should remove the driver." In reviewing the police body camera video footage from that day, Officer Domine testified that when he first pulled up to the vehicle, he was mounted on his bicycle, but he dismounted and "walked over to the driver's side of the vehicle" after he observed the drugs and alerted the other officers to remove the vehicle's occupants. Officer Domine reviewed photos of the crime scene and acknowledged that the plastic bag looked like it was in different positions in two of the exhibit photographs, although both depicted the plastic bag in the map pocket.

¶10 Finally, the SPD investigator testified that he found a similar Jeep Compass for sale and took a series of photos of the vehicle with a person in the driver's seat to show what would be visible within the vehicle from outside the passenger's side door at various angles. He testified that in his experience the driver's legs obscured a line of sight to the map pocket in the driver's side door. The State questioned the investigator about what information he had about positioning of the steering wheel and seat as well as the size and position of the person in the driver's seat, and whether those factors would affect visibility. The investigator agreed he did not have that information about Smiter's vehicle and the facts and circumstance of the incident.

¶11 The trial court then made its findings and conclusions on the record. It summarized that Officer Hauser stated he patrolled the parking lot, checking on various vehicles, but did not see anything until he heard Officer Domine tell everyone to get out of the Jeep Compass. Officer Hauser indicated he did not see contraband until the door was opened when Smiter exited. The court then concluded that based on Officer Hauser's testimony alone there would not be enough to find reasonable suspicion; however, it then considered his testimony in conjunction with Officer Domine's testimony. The trial court stated:

[Officer Domine] indicates that they're in the lot for a minute or two.

He sees people sitting in the Jeep Compass. He's the first person to arrive on the passenger's side, and he talks about seeing the green-leafy substance in the bag on the driver's side.

. . . But he testifies that he's approximately 7 feet up in the air, and he has the vantage point to observe the entire front compartment of the vehicle.

[The Assistant District Attorney] asked him how much could you see, and he said, quote, not much.

He then indicated that he could see the top portion of the baggy, and he could see the green-leafy substance.

[Smiter's counsel] cross-examined him. He indicated, right, he saw no puffs, any kind of smoke coming from the vehicle; he observed no odor.

There were two adults in the vehicle.

He told the defendant to get out. Both he and Officer Hauser conceded that the narcotics that were found were clearly in different positions.

. . .

Again, he indicated he had an unobstructed view of the front half of the vehicle.

¶12 The trial court then reviewed the SPD investigator's testimony, acknowledging that his exhibits showed "just how challenging it would be to see what's in that driver's side pocket from the perspective of the passenger's window." However, the trial court found that the "linchpin" of the case was that the court found "Officer Domine credible when he could see it, he couldn't see much, although he could see the top portion of the bag." The court agreed with the State's argument that when Officer Domine "walked around the vehicle and appears to bend down that we're seeing a corroboration of that testimony when he walked around to the driver's side door to observe what he reasonably believed was contraband." The trial court therefore denied Smiter's motion to suppress.

¶13 In November 2018, Smiter moved the court to reconsider the suppression motion and to reopen testimony. The trial court conducted a second hearing on December 19, 2018. Officer Hauser and Officer Domine were recalled as witnesses. The focus of the second hearing was on the crime scene photographs and the positioning of the plastic bag of drugs in different exhibits. Officer Hauser testified that when reviewing the photos, the plastic bag of suspected drugs were in different positions in the map pocket. Officer Domine testified that he did not remember taking photographs at the crime scene, although he acknowledged he may have done so because it was reported he was the photographer in the police report. Officer Domine also testified that when he considered the two photos in question, the bag in the second photo looked like it was flipped over so you could see the rest of the drugs not visible in the first photo. During cross-examination by the State, Officer Domine reviewed body camera video footage that showed him moving the bag to look at the contents.

¶14 In March 2019, the trial court issued an order denying the ...