|
COURT OF APPEALS DECISION DATED AND FILED July 14, 2009
David
R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
|
Appeal No. |
|
|||
|
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
|
DISTRICT III |
|||
|
|
|
|||
|
|
|
|||
|
State of
Plaintiff-Respondent, v. Chris A. Hoffman,
Defendant-Appellant. |
||||
|
|
|
|||
APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. Chris Hoffman appeals an order denying his postconviction motion to vacate his conviction for possession of methamphetamine as a repeater. He argues that physical evidence and his statements should have been suppressed because he was unreasonably detained, he involuntarily turned over the methamphetamine to a police investigator, and the trial court improperly applied the doctrine of inevitable discovery. He also argues ineffective assistance of trial counsel based on his attorney’s failure to call a witness at the suppression hearing, and misleading the court by suggesting Hoffman was involved in an earlier counterfeit drug transaction. Finally, he contends he is entitled to the return of $136 seized as contraband. We reject these arguments and affirm the order.
¶2 Hoffman was a backseat passenger in a car driven by Michael Zimmerman when the car was stopped by police. Drug enforcement officers had arranged a controlled buy of methamphetamine from Zimmerman for $200. Zimmerman had sold counterfeit methamphetamine earlier that day. After the officers stopped the car, they placed its three occupants in separate squad cars. Zimmerman told an investigator that Hoffman had in his possession in the back seat a white film canister containing methamphetamine. Investigator Dietzen searched the car and found an empty film canister along with two packets of Sudafed, a primary ingredient of methamphetamine. A police drug dog at the scene sniffed the canister and indicated the presence of narcotics. Zimmerman also told the investigators Hoffman had burned his hand when anhydrous ammonia escaped while Hoffman was “cooking” methamphetamine. Hoffman had a bandage on his hand. Hoffman conceded he attempted to cook methamphetamine and purchased Sudafed earlier that day. After some discussion about whether Hoffman would be going to jail that night, and Hoffman’s concession that his probation officer would likely put a probation hold on him because of prior incidents, Hoffman turned over the methamphetamine that was hidden in his cap.
¶3 Hoffman was lawfully detained by the police. The car and driver had been involved in a
prior counterfeit drug deal and arrangements had been made for a second
controlled purchase. The police
reasonably stopped the car and detained its occupants. During the approximately thirty-minute
detention, Zimmerman’s statements implicating Hoffman and the confirmation of
the film canister containing drugs and the burn on Hoffman’s hand provided the
officers with probable cause to arrest Hoffman.
The stop and inquiry were reasonably related in scope to the
justification for the stop. See Berkemer
v. McCarty, 468
¶4 We need not determine whether Hoffman voluntarily turned over
the methamphetamine because the evidence supports application of the doctrine
of inevitable discovery. Under that
doctrine, the State must prove by the preponderance of the evidence it is
reasonably probable the evidence would have been discovered by lawful means;
police already had leads making the discovery inevitable before the allegedly
unlawful police conduct occurred; and police were actively pursuing these leads
at the time of the allegedly unlawful police conduct. State v. Lopez, 207
¶5 Hoffman argues his statements should have been suppressed
because he was not given his Miranda warnings.[1]
To the extent the argument relates to
the search and seizure of the methamphetamine, the inculpatory statements are
irrelevant because the police had sufficient probable cause to arrest Hoffman
without considering his own statements.
To the extent Hoffman directly challenges admissibility of his
statements, the issue is not properly before this court. A no contest plea constitutes a waiver of
nonjurisdictional defects and defenses.
¶6 Hoffman argues his trial counsel was ineffective for failing
to call Zimmerman to testify at the suppression hearing. We conclude Hoffman was not prejudiced by
that decision. See Strickland v. Washington,
466
¶7 Likewise, Hoffman’s counsel’s suggestion that Hoffman may have participated in the earlier counterfeit drug sale does not undermine our confidence in the outcome. Hoffman’s participation in the earlier sale was not necessary to establish probable cause to arrest him and perform a custodial search. Although Zimmerman’s postconviction testimony made clear that Hoffman was not present during the earlier sale, Zimmerman did not disclaim any involvement by Hoffman. Furthermore, he conceded he may have told investigators during the traffic stop that Hoffman was involved. Whether Hoffman was actually involved in both transactions is not the question. Rather, if Zimmerman told investigators that Hoffman was involved, the police had sufficient grounds to arrest Hoffman and perform a custodial search.
¶8 Finally, the $136 found on Hoffman was properly seized as contraband. The officers’ testimony at the suppression hearing, as corroborated by Zimmerman’s testimony at the postconviction hearing, establishes the cash represented Hoffman’s proceeds from the earlier drug deal where he was a participant, even if he was not present. The cash transactions involving the purchase of Sudafed and disbursal of the profits were sufficiently established to support the finding that the cash constituted contraband.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).