State v. Deandre A. Buchanan, No. 2009AP2934-CR, review granted 1/11/11

decision below: unpublished; for Buchanan: Tyler William Wickman; case activity

Issue (formulated by On Point):

Whether, during the course of a routine traffic stop, the police developed reasonable suspicion to believe Buchanan armed and dangerous so as to perform a “protective search” of his car.

The court relied on the following to show reasonable suspicion to believe Buchanan armed and dangerous, during an otherwise routine stop for speeding:

• “furtive movements” that could have represented efforts to conceal weapons or contraband;
• Buchanan’s pending drug charge (the court stressing the assumed “link between dangerous weapons and the drug trade;
• Buchanan’s criminal history, which included arrests for murder and armed robbery;
• Buchanan’s “unusual nervousness.”

While this list seems impressive, there may be less than meets the eye. The furtive gesture? A single up-and-down movement of Buchanan’s shoulder (COA brief, p. 10). Unusual nervousness? Well, his hands were shaking; anyone can display nervousness when stopped by the police, besides which, how do you measure one person’s nervousness against others’, let alone throwing race into the calculus (id., p. 11). Interesting, though, that the court would grant review on what appears to be a routine search and seizure case. Perhaps it is the idea that the situation is so routine – minor speeding stop on an interstate ends in a criminal arrest – that attracted the court’s attention.

More: The court posts this description of the case:

…

The key issue here is whether case law supports the arresting officer’s decision to use the petitioner’s arrest history as part of the basis for performing a protective search following a routine traffic stop.

Specifically, Buchanan asks the Supreme Court to review two issues:

1. Under the totality of the circumstances, did (the state trooper) have an objectively reasonable suspicion that Mr. Buchanan was armed and dangerous?
2. Did the trial court err in concluding that the marijuana stem found in Mr. Buchanan’s vehicle was in “plain view?”

…