State v. Loper

1

State of Wisconsin, Plaintiff-Respondent, v. Melanie A. Loper, Defendant-Appellant.

No. 2022AP725-CR

Court of Appeals of Wisconsin, District IV

July 7, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from a judgment of the circuit court for Waupaca County No 2019CF331: TROY NIELSEN, Judge. Affirmed.

Before Kloppenburg, Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM

¶1 Melanie "Malakai" Loper^[1] appeals the judgment of conviction, entered on his guilty plea, of possession of methamphetamine. Loper argues that the circuit court erred in denying his motion to suppress evidence obtained from the search of his vehicle during a traffic stop. Specifically Loper argues that the arresting officer conducted a warrantless search of Loper's vehicle without probable cause. We conclude that the officer had a reasonable belief that Loper's vehicle likely contained drug-related contraband based on the circuit court's credibility determinations and factual findings as to the totality of circumstances, namely: Loper's nervousness during, and furtive movement shortly after, the officer's initial contact with Loper; along with the officer's observation when she subsequently returned to Loper's vehicle and asked him to step out of his vehicle, of a syringe cap and a sandwich-type bag underneath where Loper had been sitting items that the officer knew, through her training and experience, are associated with drugs. Accordingly, we conclude that the officer had probable cause to search Loper's vehicle, and we affirm.

BACKGROUND

¶2 The State charged Loper with possession of methamphetamine and operating without a license following a traffic stop in October 2019. Loper filed a motion to suppress evidence obtained during the traffic stop and search of his vehicle.^[2]

¶3 The circuit court held a hearing on Loper's suppression motion. At the hearing the officer who initiated the stop and searched Loper's vehicle testified, and the officer's dash cam video was offered to, and accepted into evidence by, the circuit court. The following facts are taken from the officer's testimony at the suppression hearing and the officer's dash cam video.

¶4 In October 2019, the officer stopped a vehicle driven by Loper for a cracked tail lamp and loud muffler and, while making the stop, observed that the registration on Loper's vehicle was expired. When the officer approached the vehicle and talked to Loper through the passenger side window, Loper appeared "nervous" and was "moving around." The officer asked Loper if he had his license and if there was anything illegal in the vehicle. Loper answered no to both questions.

¶5 The officer went back to her squad car to perform a license check and ran Loper's identifying information through the state dispatch. The officer learned that Loper did not have a valid driver's license and had a warrant out of Winnebago County for contempt of court in a retail theft case. While the officer was running Loper's information, the officer observed Loper "moving around quite a bit" in the vehicle. The officer returned to Loper's vehicle and asked him to stop moving around. The officer said to Loper, "When I tell you to sit tight it means sit tight, okay, don't be digging around." The officer did not see Loper make "other furtive movements" thereafter.

¶6 The officer returned to her squad car and obtained verification of the status of Loper's license and warrant. The officer also requested a backup officer ("the backup officer"). After the backup officer arrived on the scene, the officer returned to Loper's vehicle a third time and asked Loper to step out of the vehicle.

¶7 When Loper got out of the driver's seat, the officer observed an orange syringe cap and a crumpled sandwich-type bag on the driver's seat where Loper had been sitting. While the officer did not remember whether the bag was a clear plastic bag or a brown bag, the kind of bag that the officer saw was, in her experience, likely to contain drugs. Based on the officer's training and experience, both the syringe cap and the kind of bag that the officer saw are associated with drug use.

¶8 The officer then arrested Loper "on the warrant" and, together with the backup officer, searched the vehicle. In the course of the search, the backup officer found a loaded syringe in the driver side door which contained methamphetamine.

¶9 In its ruling, the circuit court made the following factual findings: Loper was nervous and made a furtive movement after his initial contact with the officer, which led the officer to ask Loper to stop moving; and the officer subsequently saw a syringe cap and a sandwich-type bag on the driver's seat underneath where Loper had been sitting. The court also credited the officer's testimony that the syringe cap and bag that she saw are associated with drugs. The court determined that, considering these facts taken together, there was probable cause to search Loper's vehicle for drug-related contraband. Accordingly, the court denied Loper's motion to suppress the evidence seized from the vehicle.

¶10 Following the circuit court's denial of the motion to suppress, Loper entered a guilty plea to possession of methamphetamine and the State agreed that the charge of operating without a license would be dismissed and read-in. Loper appeals.^[3]

DISCUSSION

¶11 The sole issue on appeal is whether the officer had probable cause to conduct a warrantless search of Loper's vehicle. We conclude that the officer had a reasonable belief that drug-related contraband would likely be found in Loper's vehicle based on the circuit court's credibility determinations, factual findings, and the evidence supporting those findings, namely: Loper's nervousness during, and furtive movement shortly after, the officer's initial contact with Loper; along with the officer's observation when she subsequently returned to Loper's vehicle and asked him to step out of his vehicle, of a syringe cap and a sandwich-type bag on the seat underneath where Loper had been sitting, items that she knew, through her training and experience, are associated with drugs. Accordingly, the officer had probable cause to search the vehicle.

Applicable Standard of Review and Legal Principles

¶12 An appellate court reviews a motion to suppress evidence under a two-step analysis. State v. Eason, 2001 WI 98, ¶9, 245 Wis.2d 206, 629 N.W.2d 625. We uphold the circuit court's findings of fact unless they are clearly erroneous. State v. Blatterman, 2015 WI 46 ¶16, 362 Wis.2d 138, 864 N.W.2d 26. We then independently determine whether those facts satisfy constitutional principles. Id.

¶13 The Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution protect the right to be free from unreasonable searches and seizures. State v. Young, 2006 WI 98, ¶18, 294 Wis.2d 1, 717 N.W.2d 729. Warrantless searches are per se unreasonable under the Fourth Amendment to the United States Constitution, but there are several exceptions. State v. Matejka, 2001 WI 5, ¶17, 241 Wis.2d 52, 621 N.W.2d 891; see also Katz v. United States, 389 U.S. 347, 357 (1967).^[4] Pertinent here, there is an "automobile exception" to the general rule requiring warrants for searches, based on the United States Supreme Court's recognition "that the unique nature of automobiles sets them apart from other areas protected from warrantless searches under the Fourth Amendment." State v. Marquardt, 2001 WI.App. 219, ¶26, 247 Wis.2d 765, 635 N.W.2d 188. Under the automobile exception, a warrantless search of a vehicle does not offend the Fourth Amendment if: (1) there is probable cause to search the vehicle; and (2) the vehicle is readily mobile. Id., ¶¶31-33.

Loper does not dispute that the vehicle he was driving was readily mobile; therefore, the only issue on appeal is whether the officer had probable cause to search the vehicle.

¶14 As to the element of probable cause, "[p]olice may conduct a warrantless search of a car if they have probable cause to believe that the car contains contraband." State v. Jackson, 2013 WI.App. 66, ¶8, 348 Wis.2d 103, 831 N.W.2d 426. Probable cause is "a flexible, common-sense standard. It merely requires that the facts available to the officer would warrant a [person] of reasonable caution in the belief[] that the contraband was likely to be in the place searched." State v. Tompkins, 144 Wis.2d 116, 124, 423 N.W.2d 823 (1988) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (internal quotation marks omitted)). "What is required is more than a possibility, but not a probability, that the conclusion is more likely than not." Tompkins, 144 Wis.2d at 125.

¶15 Probable cause also "must be viewed in light of the knowledge and experience of the person conducting the search" and "contemplates the totality of the circumstances at the time of the search." State v. Lefler, 2013 WI.App. 22, ¶8, 346 Wis.2d 220, 827 N.W.2d 650. In looking at the facts before the officer, "[t]his court has always stressed the reasonableness factor. Is it reasonable to believe in the circumstances that particular evidence or contraband may be located at a place sought to be searched?" Tompkins, 144 Wis.2d at 125.

Analysis

¶16 We now turn to the question of whether the totality of circumstances supported a reasonable belief that contraband would likely be found in Loper's vehicle such that the officer had probable cause to search the vehicle. As stated the totality of circumstances before the officer, as found based on testimony credited by the circuit court, was as follows: Loper...