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COURT OF APPEALS DECISION DATED AND FILED May 1, 2003 Cornelia G. Clark Clerk of Court of Appeals |
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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 from a judgment and an order of the circuit court for Rock County:� Daniel T. Dillon, Judge.� Affirmed.�
����������� Before Vergeront, P.J., Deininger and Lundsten, JJ.�
�1������� PER CURIAM. Davis Garner appeals an amended judgment convicting him of one count of possession of cocaine as a second offense and one count of possession of THC as a habitual criminal.� He also appeals an order denying his motion for postconviction relief.� Garner claims the evidence against him should have been suppressed because the police lacked reasonable suspicion to detain him and exceeded the permissible scope of a subsequent pat-down search for weapons.� We disagree and affirm for the reasons discussed below.
BACKGROUND
�2������� At the suppression hearing, the arresting officer testified that he responded to a citizen tip that a black male dressed in black overalls and riding a black bicycle had been seen on a certain street corner engaged in a transaction with someone in a passing car involving a white substance.� The officer knew the informer as a concerned citizen who had made prior reliable calls regarding drug activity.� The officer was also aware that the location described was known to both the police and the community as a drug area which had experienced a wide range of disturbances involving armed subjects, including gunfire.
�3������� The officer arrived at the scene and saw a black male on a dark-colored bicycle nearly up against the passenger side of a car that was stopped in the street.� When the officer approached, the car drove off and the man on the bicycle pedaled away.� The officer followed and made contact with the cyclist, who turned out to be Garner.� The officer instructed Garner several times that he wanted to see Garner�s hands, but Garner kept putting them back into his pockets.
�4������� Officer Garner testified he felt concerned for his safety and, therefore, patted Garner down for weapons, working down from Garner�s shoulders.� The officer felt a bulge in Garner�s right front pocket of his jeans area, and squeezed it to see whether it was a weapon.� Upon squeezing the object, the officer said he formed the opinion that the object was a plastic baggie, likely filled with marijuana.� The officer asked what was in Garner�s pocket, and Garner told him keys.� The officer then reached into Garner�s pocket and retrieved a plastic baggie filled with marijuana.� Another search incident to Garner�s subsequent arrest revealed individually packaged rocks of crack cocaine.
�5������� After being charged with possession of THC and cocaine, Garner moved to suppress the evidence obtained during the investigatory stop.� The trial court denied the motion, as well as a postconviction motion for reconsideration of the suppression issue, and Garner appeals.
STANDARD
OF REVIEW
�6������� When we review a suppression motion, we will defer to the trial court�s credibility determinations and will uphold its findings of fact unless they are clearly erroneous.� See State v. Oswald, 2000 WI App 3, �47, 232 Wis. 2d 103, 606 N.W.2d 238; State v. Eckert, 203 Wis. 2d 497, 518, 553 N.W.2d 539 (Ct. App. 1996).� We will independently determine, however, whether the facts establish that a particular search or seizure violated constitutional standards.� See State v. Richardson, 156 Wis. 2d 128, 137-38, 456 N.W.2d 830 (1990).�
DISCUSSION
Investigatory
Stop
�7������� The reasonable suspicion necessary to detain a suspect for investigative questioning must be based on specific and articulable facts, together with rational inferences drawn from those facts, sufficient to lead a reasonable law enforcement officer to believe that criminal activity may be afoot, and that taking action would be appropriate.� See Terry v. Ohio, 392 U.S. 1, 21-22 (1968).� �The question of what constitutes reasonable suspicion is a common sense test.� Under all the facts and circumstances present, what would a reasonable police officer reasonably suspect in light of his or her training and experience?�� State v. Jackson, 147 Wis. 2d 824, 834, 434 N.W.2d 386 (1989).
�8������� The officer here was able to articulate numerous facts in support of his suspicion that Garner might be involved in drug activity, including that a citizen had reported seeing a person matching Garner�s description make a transaction involving white powder, and the officer himself had observed Garner engaged in a conversation with a driver from the passenger side of a stopped car.� We agree with the trial court that it was reasonable for the officer to detain Garner to investigate the officer�s suspicion that Garner was involved in selling drugs to passing motorists.
Pat-Down
Search
�9������� The legality of the initial protective search turns on whether the officer had a reasonable basis to suspect that Garner might be armed and dangerous.� See State v. McGill, 2000 WI 38, ��17-21, 234 Wis. 2d 560, 609 N.W.2d 795.� The officer�s suspicion that Garner was engaged in drug dealing and his observation that Garner�s hands kept returning to his pockets, coupled with the officer�s knowledge that there had been past gunfire incidents in the area, provided a reasonable basis for the officer to perform a protective pat-down search for weapons.
�10����� Garner claims that the officer exceeded the permissible scope of the pat-down search by squeezing the bulge he felt in Garner�s pocket.� Unlike the situation in Minnesota v. Dickerson, 508 U.S. 366 (1993), however, the officer here testified that he had not yet determined whether Garner had a weapon when the officer manipulated the object in Garner�s pocket.� Rather, it was only by squeezing the baggie that the officer both satisfied himself that it was not a weapon and concluded that it was most likely a bag of marijuana.� The trial court credited the officer�s testimony, and we defer to its credibility determination.� Therefore, there is no factual basis to conclude that the officer exceeded the permissible scope of the pat-down search.
����������� By the Court.�Judgment and order affirmed.
����������� This opinion will not be published.� Wis. Stat. Rule 809.23(1)(b)5 (2001-02).