COURT OF APPEALS DECISION DATED AND FILED March 17, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
2009AP677-CR |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Travis D. McClain,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before
Neubauer, P.J.,
¶1 PER CURIAM. In this traffic-stop case, Travis D. McClain appeals from a judgment entered upon his no-contest pleas to possession with intent to deliver cocaine and resisting an officer. We disagree with McClain that the police officer exceeded the permissible scope of the stop and that the trial court improperly denied his suppression motion. We affirm.
¶2 City of
¶3 Batwinski then asked McClain to exit the vehicle so as to show him which of the brake lamp’s two components was out. No backup officer had yet arrived. Batwinski asked if he first could do a weapons pat-down. McClain consented. A hard object in McClain’s coat pocket proved to be a roll of quarters. With McClain’s further consent, Batwinski continued the weapons pat-down, detecting what in his experience felt like a baggie of crack cocaine in McClain’s right pants pocket. When Batwinski asked if it was crack, McClain fled. He eventually was apprehended, subdued and taken into custody. Batwinski found a gram scale and baggie of crack cocaine where McClain had been on the ground.
¶4 McClain filed a motion to suppress, challenging the search that led to the discovery of the cocaine.[1] The trial court observed that the cocaine was found pursuant to the arrest, not the pat-down. It concluded that requesting McClain to exit his vehicle to show him the violation was “an appropriate part of the traffic stop,” and denied the motion. McClain appeals.
¶5 When reviewing a trial court’s denial of a motion to suppress,
we first examine the court’s findings of historical fact under the clearly
erroneous standard, and then review de novo the application of constitutional
principles to those facts. State
v. Eason, 2001 WI 98, ¶9, 245
¶6 A traffic stop constitutes a seizure. State v. Arias, 2008 WI 84, ¶29, 311
¶7 McClain argues that Batwinski had no further legal basis to
detain him. He invokes State
v. Jones, 2005 WI App 26, 278
¶8 When a stop is justified at its inception, it is the
extension of a detention past the point reasonably justified by the initial
stop, not the nature of the questions asked, that violates the Fourth
Amendment. State v. Gaulrapp, 207
¶9 McClain asserted in his motion to suppress that a short in his brake light caused it to “come on and off continuously.” Batwinski testified that he asked McClain to get out of the car to show him which of the light’s components was not working. Having no backup, Batwinski asked to do a pat-down for weapons because McClain’s “nervous” and “fidgety” demeanor, hand movements toward his right pocket and history of a drug offense caused Batwinski to look at the situation “more [from] an officer safety perspective.”
¶10 McClain dismisses Batwinski’s stated reason as a pretext to search. He argues that, if the officer truly had safety concerns, it was “rather odd” that he would prolong the encounter by having McClain get out to observe a defective tail light he already was aware of. The trial court, too, commented that to an extent Batwinski created his own potentially unsafe situation. Nonetheless, the court accepted Batwinski’s judgment and found the pat-down permissible in view of all the circumstances, including McClain’s express consent. Whether to give credence to the officer’s testimony was a matter for the trial court. See State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345 (“When the circuit court acts as the finder of fact, it is the ultimate arbiter of the credibility of the witnesses and the weight to be given to each witness’s testimony.”).
¶11 We conclude that Batwinski’s request that McClain step out of
the car was directly related to the purpose of the initial stop. His concomitant request to perform a pat-down
furthered the valid public concern of protecting his personal safety. See
Arias,
311
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] McClain’s written motion to suppress also challenged the legality of the stop, but he abandoned that claim at the suppression hearing.