COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 3, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
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No. 96-1319-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
BRENDAN MICHAEL TIGHE,
Defendant-Respondent.
APPEAL from an order of
the circuit court for St. Croix County:
ERIC J. LUNDELL, Judge. Affirmed.
CANE, P.J. The State appeals the trial court’s order
granting Brendan Tighe’s motion to suppress evidence of drugs found in his
vehicle because the stop was not based upon a reasonable suspicion of unlawful
activity. The facts are
undisputed. At approximately 3:45 p.m.,
trooper Dennis Lewis was parked two miles west of Somerset Village while
observing slow moving traffic traveling east on State Highway 64 toward a
concert. His police car was parked at
an angle to the roadway and was partly concealed from eastbound traffic by a
wooded area. He was about thirty feet
from the passing traffic lane.
As Lewis observed a
vehicle pass, he saw a rear passenger smoking a cigarette while leaning over
and concealing it in his hand. He saw
the person put the cigarette to his mouth and then put it back down. Based upon the appearance of the cigarette
and the manner in which the cigarette was being held and smoked, Lewis believed
the cigarette was marijuana. He then
followed the car with a truck between them as they traveled toward Somerset
where the concert was to be held. Lewis
testified that as the traffic traveled eastbound at no more than ten miles per
hour, he had his window down and could smell the odor of burning marijuana
coming from in front of him. Lewis was
approximately three to four car lengths behind the car with the suspected
marijuana.
After observing what he
believed to be a marijuana cigarette and smelling burning marijuana, Lewis
stopped the car and saw the two rear passengers “moving around a lot” and
appear to be hiding something. When
Lewis approached the stopped car and spoke to the driver, he did not detect any
odor of marijuana. However, upon
opening the rear door closest to Tighe, Lewis found a marijuana cigarette on
the floorboard carpet. Lewis arrested
all the occupants and then continued the search finding a tin with four
unburned cigarettes, a small bag of marijuana and a pipe, and baggies of
mushroom substance.
Concluding that the
trooper did not have a reasonable suspicion of unlawful activity, the trial
court granted Tighe’s motion to suppress the seized evidence. The trial court
observed that although the trooper honestly thought that he saw a passenger
smoking marijuana and smelled marijuana while on the highway, the suspicions of
unlawful behavior were not reasonable.
The court noted that on the day of the concert, the officer could
probably smell marijuana between the cities of Houlton and Hudson and therefore
it was unreasonable to conclude that the marijuana odor came from the suspected
vehicle.
To execute a valid
investigatory stop, Terry[1]
and its progeny require that a law enforcement officer reasonably suspect, in
light of his or her experience, that some kind of unlawful activity has taken
or is taking place. State v.
Richardson, 156 Wis.2d 128, 139, 456 N.W.2d 830, 834 (1990). Such reasonable suspicion must be based on specific
and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion.
Id. These facts
must be judged against an objective standard:
would the facts available to the officer at the moment of the seizure
warrant an officer of reasonable caution in the belief that the action taken
was appropriate? Id. This test applies to the stopping of a
vehicle and detention of its occupants.
Id. The focus of
an investigatory stop is one of reasonableness, and the determination of
reasonableness depends on the totality of the circumstances. Id.
Essentially, the State
relies on two facts: a young male
appeared to be smoking something in cupped hands while leaning forward in a car
and, later, while the officer followed the car with a truck between them, an odor
of marijuana could be detected coming from in front of his police car. The trial court rejected this information as
a reasonable basis for the stop. This
court agrees.
The trooper could not
see whether the cigarette was commercially prepared or hand-rolled. He merely saw a passenger lean forward and
smoke a cigarette with cupped hands.
That alone is insufficient to support a basis to stop the car. The only
additional fact is the smell of marijuana detected while following the car. However, the officer conceded that this
occurred while on the open road with a large number of cars ahead of him and a
truck between them. The trooper could
not say the smell of marijuana came from the car occupied by Tighe. Suspecting that a passenger in a car is
smoking what might be a marijuana cigarette because of the manner in which it
is smoked and then later smelling marijuana on the open road coming from
somewhere in front of the officer on a crowded highway is simply not a
sufficient reason to stop the car. The
law does not authorize a police officer to stop a car based on mere suspicion.
By the Court.—Order
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.