State v. Kenneth F. Johnston, 2012AP2427-CR, District 3, 4/16/13; court of appeals decision (1-judge, ineligible for publication); case activity
The search of Johnston’s car was supported by probable cause to believe there were open intoxicants in the car:
¶17 In this case, before [Officer] Wojcik searched the vehicle for open intoxicants, Wojcik smelled the odor of intoxicants emanating from the driver-side door. Wojcik knew, based on Johnston’s preliminary breath test, that Johnston had not consumed any alcohol recently. At this point, it was reasonable for Wojcik to infer that Johnston was not the source of the alcohol odor. Wojcik also knew that, despite not having consumed alcohol recently, Johnston was sweating and was acting peculiar by not looking at Wojcik. Finally, Wojcik knew there was an open case of beer in the back seat and some of the cans were missing from the beer case. Common sense dictates that an open can of beer emits an odor of alcohol.
That there may have been innocent explanations for Johnston’s peculiar behavior, the odor of intoxicants, and the partially empty case of beer in the back seat is irrelevant (¶18), for “an officer is not required to draw a reasonable inference that favors innocence when there also is a reasonable inference that favors probable cause.” State v. Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182, 738 N.W.2d 125. And, the scope of the search, which included a look under the seats, was reasonable under United States v. Ross, 456 U.S. 798, 825 (1982) (“[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search”) (¶19).
The search under the driver’s seat revealed marijuana and a pipe, prompting an admission from Johnston he’d smoked marijuana five hours earlier. (¶10). That explained the “peculiar” behavior and the .00 PBT and resulted in the charge of operating with a restricted controlled substance. (¶¶1, 11).
