State v. Sutton
State v. Sutton
Opinion of the Court
¶ 1. Damon Keith Sutton appeals the judgment entered on his guilty plea to unlawfully possessing three grams or fewer of a prohibited drug, Ecstasy (3,4-methylenedioxymethamphetamine) with intent to deliver. See Wis. Stat. § 961.41(lm)(hm)l. His sole claim on appeal is that the circuit court erred in not granting his motion to suppress.
I.
¶ 2. There are no disputed facts material to this appeal. The only person to testify was the police officer, Amy Bartol, who discovered the drug following her search of the van Sutton was driving after she and her partner stopped him for not wearing a seat belt. The circuit court's findings of fact tracked her testimony. The lawfulness of the stop is not at issue on this appeal.
¶ 4. After getting Sutton's license and registration, Officer Bartol and her partner returned to their squad car, which was parked some fifteen to twenty feet behind Sutton's van. As her partner checked Sutton's documents, Officer Bartol watched the van. She explained that this was a normal "safety" procedure: "one person runs the information while the other one keeps a direct eye on the vehicle and all occupants in the vehicle." She could not see through the van's back windows, however, because they were small and tinted. Thus, she said that she could not "see Mr. Sutton from where I was seated." She did, however, see the van make "two distinct rocking motions, north and south." She told the circuit court why this concerned her: "Due to my training and experience I know this movement to be a, one of someone who may be trying to retrieve or conceal a weapon. This caused me to fear for my safety and my partner's safety."
¶ 5. The officers then returned to the van and did a quick pat-down search of Sutton for weapons. He was
II.
¶ 6. As noted, the facts here are not contested. Our review of the circuit court's legal conclusion upholding the search is de novo. See State v. Harris, 206 Wis. 2d 243, 250, 557 N.W.2d 245, 248 (1996).
¶ 7. Whether a law-enforcement officer may "conduct a protective search" of a car is "decide[d] on a case-by-case basis, evaluating the totality of the circumstances, whether an officer had reasonable suspicion to justify a protective search in a particular case." State v. Buchanan, 2011 WI 49, ¶ 9, 334 Wis. 2d 379, 389, 799 N.W.2d 775, 780 (quotation marks and quoted source omitted). "[R]easonable suspicion" is a "commonsense" concept that implicates "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Ornelas v. United
¶ 8. Based on her testimony, Officer Bartol had a legitimate reason to be concerned that there might be a gun or other weapon in the van because it seems highly unusual, and did to Officer Bartol, for the large conversion van to make two, large and distinct "rocking motions" when the driver had just been stopped by a marked squad car, and asked by one of the officers about his probation or parole status. The minimal intrusion of looking into the van was more than outweighed by the need for the officers to assure themselves that there was no gun or other weapon in the van, especially because Sutton was not under arrest and could freely return to the van. See State v. Williams, 2010 WI App 39, 23, 323 Wis. 2d 460, 473, 781 N.W.2d 495, 502 (Officers had "an immediate safety interest in
¶ 9. There are three prerequisites for application of the plain-view doctrine:
(1) the evidence must be in plain view; (2) the officer must have a prior justification for being in the position from which she discovers the evidence in "plain view"; and (3) the evidence seized in itself or in itself with facts known to the officer at the time of the seizure, [must provide] probable cause to believe there is a connection between the evidence and criminal activity.
Buchanan, 2011 WI 49, ¶ 23, 334 Wis. 2d at 398-399, 799 N.W.2d at 785 (quotation marks and quoted sources omitted; brackets in Buchanan). Here, although the opaque cylinders were "in plain view," the pills were not. Moreover, Bartol could not tell by touch what was inside the cylinders without opening them. See State v.
¶ 10. "Probable cause" requires an assessment of "whether, under the totality of the circumstances, given all the facts and circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Sveum, 2010 WI 92, ¶ 24, 328 Wis. 2d 369, 390-391, 787 N.W.2d 317, 327 (quotation marks and quoted sources omitted). This "is not a technical, legalistic concept but a flexible, common-sense measure of the plausibility of particular conclusions about human behavior." Id., 2010 WI 92, ¶ 24, 328 Wis. 2d at 391, 787 N.W.2d at 328 (quotation marks and quoted sources omitted). Officer Bartol explained why she believed the opaque cylinders held illicit drugs:
• She had previously been involved "[b]etween five and six times" in the arrest of someone for having prescription drugs for which the person did not have a prescription.
• "The pills are generally transported in a clear orange with white cap prescription bottle containing no information on it or they are contained in a container in which people believe that police will not think is a prescription."
¶ 11. Officer Bartol did not have "probable cause to believe there [was] a connection between the [opaque cylinders] and criminal activity." See Buchanan, 2011 WI 49, ¶ 23, 334 Wis. 2d at 399, 799 N.W.2d at 785 (quotation marks and quoted sources omitted). She thus had to get a search warrant, if she could, before she opened them. Accordingly, we reverse.
Judgment reversed.
A person may appeal an order denying a motion to suppress even though that person has pled guilty. Wis. Stat. § 971.31(10).
The circuit court relied on State v. Pallone, 2000 WI 77, 236 Wis. 2d 162, 613 N.W.2d 568, which was overruled prospectively by State v. Dearborn, 2010 WI 84, ¶¶ 27, 50, 327 Wis. 2d 252, 267-268, 277-278, 786 N.W.2d 97, 105, 110, some three weeks after the circuit court held the suppression hearing and denied Sutton's motion. The State, however, does not argue that Pallone is applicable, and we agree that it is not because the officers in Pallone had probable cause to believe that the
Case-law data current through December 31, 2025. Source: CourtListener bulk data.