Aug. 17, 2009 – A suspect’s “furtive-type” movements, among other circumstances suggestive of a threat to a police officer’s safety, can be the basis for a protective search, the Wisconsin Court of Appeals held on Aug. 11

In State v. Bailey, 2008AP003153, the court of appeals looked to the suspect’s repeated motions conveying a “persistence” to hide something from police as one factor to distinguish the case from State v. Johnson, 2007 WI 32, in which a single furtive movement was not enough to justify a protective search.

Tinted windows violation

Milwaukee Police Officer Joseph Honzelka stopped Dennis Bailey in a car suspected of having excessively tinted windows. As Honzelka explained the reason for the stop, a second officer, Jeffrey Novack, observed Bailey make three to five distinct and repeated kicks with his right foot as if he was attempting to hide something under the driver’s seat.

Bailey voluntarily exited the vehicle so that the police could test the windows with a tint meter. Novack walked to the front passenger side of the vehicle and saw a white plastic bag under the driver’s seat, partially exposed. Novack thought the bag might contain a weapon. When Novack asked Bailey what was in it, Bailey answered “candy.”

Novack removed the opaque bag from under the seat and felt a hard object inside that he thought was a gun or something hiding a gun. When he opened the bag, Novack found two clear bags containing cocaine and a small digital scale. The police also confirmed that the front and rear windows of the vehicle were in violation of the city’s tint ordinance.

At a suppression hearing, Honzelka testified to 10 years of experience as a police officer and that he had written 30 to 40 citations a month for illegally tinted windows. He explained that he first noticed the tint violation on the front passenger side window, and then the other windows as the car passed by.

Novack testified to 11 years of experience as a police officer. He explained that the traffic stop occurred in a high crime area and that Bailey’s foot movements were consistent with those of other suspects he had observed trying to hide a gun. Specifically, Novack testified that he had previously made this type of observation 20 to 50 times and had recovered a gun in 10 to 15 of those times. Further, he said he had retrieved guns from vehicles in this particular area.

  The trial court found the officers’ testimony credible and that Honzelka was able to identify excessive tinting based on his experience. The court found that Honzelka had the authority to pull over a vehicle for an ordinance violation and that he had reasonable suspicion to find Bailey’s car in violation.

Finding the stop appropriate, the trial court found that the search was proper under the circumstances of Bailey’s furtive-types of movements and Novack’s knowledge and experience.

Search upheld

In an opinion authored by Judge Kitty Brennan, the court of appeals rejected Bailey’s argument that police could only frisk his person when the stop involves a minor equipment violation even where there are “furtive movements.”

A warrantless investigatory stop is permissible if the officer has reasonable suspicion based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion,” the court noted, quoting Terry v. Ohio, 392 U.S. 1 (1968).

Applying a totality of the circumstances test that considers the officer’s training and experience, the trial court concluded that the initial traffic stop and the search of the car satisfied the Terry standard. The court of appeals observed that Bailey had not presented evidence to contradict the police testimony. Accordingly, the trial court’s findings withstood scrutiny under the “clearly erroneous” standard of review, the court of appeals found.

The court of appeals rejected Bailey’s comparison to Johnson in which police thought they saw Gary Johnson attempting “to conceal contraband or weapons” during a traffic stop. An officer reported that a portion of Johnson’s head and shoulders disappeared from view, leading police to believe he was reaching underneath the front seat. The Wisconsin Supreme Court held that Johnson’s “head and shoulders” movement did not give the officer reasonable suspicion to search Johnson’s person and car.

Four “key distinctions” set this search apart from Johnson, the court of appeals found. First, the court said that “Bailey made not one, but three to five, furtive type movements with his right foot which the trial court found were attempts to hide something.”

“While the number of acts by itself may not be determinative of a reasonable basis, his persistence in the gesture is a specific, articulable measure of his strong intent to hide something from the view of the police officer who was stopping him,” the court reasoned.

The court of appeals also noted that when Bailey was given a chance to explain what was in the bag, Novack reasonably doubted Bailey’s answer, creating “yet another articulable suspicion to support the inference that Bailey was trying to hide a gun.”

Bailey’s stop occurred in a high crime area and Novack’s experience recovering guns under similar circumstances were the other two distinctions. “In Johnson the police offered no testimony as to experience with recovering guns in the same type of situation or describing the area as one of high crime,” the court remarked.

Further, the court said that the police in Johnson were “looking for guns or contraband.” The court said, “Their uncertainty as to the focus of their search undercut their claim to a specific basis for believing a search was necessary for their protection.”

The court noted that Bailey had not been arrested or handcuffed at the time of the search and that upon resolution of the equipment violation stop, he would be free to return to his vehicle while the police were on the scene. Consequently, the court found that Novack’s concern for officers’ safety was reasonably based on specific and articulable facts and inferences.

State v. Alexander

Further support for Bailey’s search is found in State v. Alexander, 2008 WI App 9, the court said.

In Alexander, an officer pursuing a car for a red light violation observed furtive movement involving the glove compartment. Pat down searches of the car’s occupants uncovered no gun, but the officer noticed items usually found in the glove compartment on the driver’s seat. A search of the glove compartment produced a gun. Under these circumstances, the court of appeals upheld that search.

The elements of Alexander in common with Bailey’s search include the officer’s genuine safety concern, the location within a high crime area, the repetitive furtive movements, and the officers’ focus on ensuring no weapon was within reach before resolving the vehicle violation.

  Bailey argued that his search was illegal under Arizona v. Gant, 129 S. Ct. 1710 (2009), holding that police may search a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

The court of appeals distinguished Bailey’s search from that in Gant by pointing out that no arrest had occurred before the search. Further, the court noted again that Bailey was close to his car and would have been released after the tinting citation had been issued.

Bailey’s case conformed to the protective searches authorized by Michigan v. Long, 463 U.S. 1032 (1983), the court found. Long permits police to search those areas of a vehicle in which a weapon may be placed or hidden when an officer reasonably believes the suspect is dangerous and may gain immediate control of weapons.

Further, the court of appeals said, Long expressly allows an officer to seize contraband other than weapons found during a legitimate Terry search of the vehicle’s interior.