State v. Timm

1

State of Wisconsin, Plaintiff-Respondent, v. Wayne L. Timm, Defendant-Appellant.

No. 2023AP351-CR

Court of Appeals of Wisconsin, District IV

January 19, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.

APPEAL from a judgment and orders of the circuit court for Clark County No. 2016CF29, TODD P. WOLF, Judge. Affirmed.

NASHOLD, J. ^[1]

¶1 Wayne Timm appeals a circuit court judgment convicting him of misdemeanor theft and property damage charges after he entered pleas of no contest. Timm also appeals the court's order denying his postconviction motion seeking to withdraw his pleas, and the court's subsequent order denying his motion to reconsider the postconviction order.^[2] Timm argues that his judgment of conviction should be reversed because the court erroneously denied his motion to suppress evidence derived from a search of his vehicle, and he argues that the court erroneously denied his postconviction motion seeking a hearing on the issue of whether his trial counsel was ineffective. I reject Timm's arguments and affirm.

BACKGROUND

¶2 In February 2016, the State filed a criminal complaint in Clark County alleging that Timm was involved in various burglaries that occurred in Clark County in April and May of 2015. Timm moved to suppress evidence derived from a vehicle stop that occurred in April 2015 in neighboring Marathon County. During that stop, law enforcement conducted a search of Timm's vehicle and discovered clothing and "burglarious tools." Based in part on evidence discovered in the vehicle search, law enforcement obtained a warrant to install a GPS tracking device on Timm's vehicle. The GPS data collected led law enforcement to a remote area where they found evidence, such as empty money bags, linked to the Clark County burglaries.

¶3 A suppression hearing was held on December 21, 2016. During the hearing, the County offered the testimony of Chief Shawn Bauer and Officer Travis Schuld of the Village of Spencer police department.

¶4 Chief Bauer testified to the following. Bauer became familiar with Timm when he arrested Timm for burglary in Marathon County in 2010. At some point during his investigations of Timm, Bauer interviewed Timm and Timm's brother, and during the interview, "one of the two brothers, I can't recall [which], ... made mention that they've been involved in burglaries in the past and that they weren't going to stop doing this activity." Bauer also learned that Timm had previously been arrested for burglary in Marathon County in 2006.

¶5 In early 2015, Bauer learned that Timm had been released from prison, and that Timm was driving a white Pontiac. Around April 2015, Bauer became aware that burglaries were occurring in Marathon County and Clark County. Based on Timm's history of involvement in burglaries, and based on his understanding that "burglars are known to keep doing that type of activity," Bauer suspected that Timm was involved in the local burglaries, and he instructed the officers in his department to "[k]eep an eye out for the white Pontiac" that Timm was driving.

¶6 Officer Schuld, a deputy in Bauer's department, testified to the following. Around April 2015, Schuld was instructed to "keep an eye out for a white Pontiac Grand Prix" based on possible involvement with burglaries in the local area. At approximately 11:40 p.m. on April 19, 2015, Schuld encountered Timm's white Pontiac in Marathon County. Using radar, Schuld determined that the vehicle was going 31 miles per hour, which was above the posted 25 miles-per-hour speed limit. Schuld initiated a traffic stop based on the speeding violation. Schuld was aware that burglaries in the local area had been occurring at around the time of night that the stop occurred.

¶7 During the stop, Schuld shined a flashlight into Timm's vehicle. On the back seat, the officer observed a tire iron with what "looked like a flat end used to pry stuff open."^[3] The tire iron was partially covered by a pair of jeans. According to Schuld, it was unusual to see a tire iron on the seat of a vehicle.

¶8 Upon making contact with Timm, Schuld informed Timm that he had been stopped for speeding, took possession of Timm's driver's license, and instructed Timm to remain seated in the vehicle. Schuld contacted dispatch and ran Timm's license information, and subsequently learned that Timm was "on probation for burglary and had a history of burglary charges."

¶9 Based on the circumstances, Schuld decided to conduct a search of Timm's vehicle. The officer asked Timm for consent to search, and, according to Schuld, Timm consented. During the search, Schuld found clothing and a canvas bag containing "burglarious tools," namely, "pry bars and also a bulk cutter."

¶10 Timm did not testify during the suppression hearing. According to his later postconviction submissions, Timm wanted to testify but his trial counsel told him he could not, and if he had been allowed to testify, he would have said that he did not consent to the search of his vehicle.

¶11 In its closing argument, the State argued that the vehicle search was supported by probable cause to believe that Timm's vehicle would contain evidence of a crime, based on the department's knowledge of Timm's history of burglaries and Officer Schuld's observation of the tire iron. The State also argued that, regardless of whether there was probable cause, the search was lawful because it was consensual. The circuit court determined that the search was lawful based on Timm's consent and denied Timm's suppression motion on that basis. The court did not address whether the search was supported by probable cause.

¶12 In 2019, Timm pled no contest to two misdemeanor theft charges and three misdemeanor property damage charges, and the circuit court entered a judgment of conviction. In 2022 Timm filed a postconviction motion seeking to withdraw his no-contest pleas, arguing, among other things, that his trial counsel was ineffective because counsel refused to permit Timm to testify in his defense at the suppression hearing. The circuit court denied Timm's postconviction motion without granting him an evidentiary hearing. Timm appeals.

DISCUSSION

¶13 Timm contends that the circuit court erred by: (1) denying his suppression motion, and (2) denying his postconviction motion without granting him an evidentiary hearing.

I. Suppression Motion

¶14 This court follows a "two-step inquiry" in reviewing an order granting or denying a motion to suppress evidence. State v. Howes, 2017 WI 18, ¶17, 373 Wis.2d 468, 893 N.W.2d 812 (quoted source omitted). "First, we will uphold the circuit court's findings of fact unless they are clearly erroneous," and a finding "is clearly erroneous if it is against the great weight and clear preponderance of the evidence." State v. Anderson, 2019 WI 97, ¶20, 389 Wis.2d 106, 935 N.W.2d 285. "Second, we review the application of constitutional principles to those facts" de novo. Id.

¶15 "The right to be secure against unreasonable searches and seizures is protected by both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Wisconsin Constitution." State v. Dearborn, 2010 WI 84, ¶14, 327 Wis.2d 252, 786 N.W.2d 97. "A warrantless search is presumptively unreasonable unless an exception to the warrant requirement applies." State v. Prado, 2021 WI 64, ¶38, 397 Wis.2d 719, 960 N.W.2d 869. One such exception exists "[w]hen police have probable cause to believe that a vehicle contains evidence of a crime." State v. Pozo, 198 Wis.2d 705, 710, 544 N.W.2d 228 (Ct. App. 1995). "The quantum of evidence required to establish probable cause to search is a 'fair probability' that contraband or evidence of a crime will be found in a particular place." State v. Hughes, 2000 WI 24, ¶21, 233 Wis.2d 280, 291, 607 N.W.2d 621.

¶16 As noted above, although the State argued during the suppression hearing that the search of Timm's vehicle was supported by probable cause, the circuit court did not address this argument and instead determined that the search was lawful under a different exception to the warrant requirement: consent. See State v. Artie, 2010 WI 83, ¶29, 327 Wis.2d 392, 786 N.W.2d 430 ("One well-established exception to the warrant requirement is a search conducted pursuant to consent."). Timm raises various challenges with respect to the consent determination. Timm also argues that the court erroneously denied his suppression motion because the search of his vehicle was not supported by reasonable suspicion. Because I conclude that the vehicle search was supported by the requisite level of suspicion and therefore lawful under the Fourth Amendment, I do not address the consent issue. See Barrows v. American Family Ins. Co., 2014 WI.App. 11, ¶9, 352 Wis.2d 436, 842 N.W.2d 508 (2013) ("An appellate court need not address every issue raised by the parties when one issue is dispositive.").

¶17 Before turning to the parties' arguments on reasonable suspicion, I pause to address an unexplained discrepancy between the parties' arguments before the circuit court and those on appeal. Before the circuit court, the State argued that the warrantless search of Timm's vehicle was lawful because it was supported by probable cause-which, as noted above, is generally the level of suspicion required to support a warrantless search of a vehicle. In contrast, Timm argued that the stop was not supported by probable cause. However, in Timm's appellant's brief, he contends without explanation that the State need only meet the lower standard of reasonable suspicion, rather than probable cause. The State appears to likewise apply the reasonable suspicion standard. As explained below, the parties' reliance on the reasonable suspicion standard...