State v. Dartanian Lemont Lewis, 2013AP454-CR, District 1, 1/28/14; court of appeals decision (not recommended for publication); case activity
Lewis was a passenger in a car stopped for safety belt violations. During the stop he was frisked, leading to the discovery of cocaine. He argued the frisk was improper because § 347.48(2m)(gm) prohibits police from taking an individual into physical custody solely for failing to wear a safety belt. The court of appeals holds that, assuming Lewis was in “physical custody” when he was asked to step out of the car, it was not based solely on the seat belt violation, but also on Lewis’s behavior that lead the police to suspect he might have a weapon. (¶20). Further, the frisk was lawful under, e.g., State v. Johnson, 2007 WI 32, ¶23, 299 Wis. 2d 675, 729 N.W.2d 182, because Lewis’s behavior also formed a sufficient basis for police to reasonably believe he may have had a weapon:
¶16 … Officer Robinson testified that when he approached and tapped on the passenger’s side window, rather than roll down the window and acknowledge the presence of a police officer, Lewis immediately placed his hands in his pockets. Lewis then put one of his hands back in his pocket after Officer Robinson asked him to remove it. After Officer Robinson asked Lewis to step out of the car, Lewis again “reached for his jacket pocket” and “manipulated it slightly on his … left breast.” Lewis’s behavior reminded Officer Robinson, in his experience as a police officer, of a “security check that a person that’s carrying a firearm … will check to make sure that that firearm is in the place that you put it.” Officer Molina also testified that during the course of the traffic stop he observed Lewis reach or motion for his chest area a few times and that he felt Lewis was doing “some type of possible security index check” or had a “possible weapon.” Officer Robinson also described Lewis’s behavior during the traffic stop as “generally non-responsive verbally,” and noted that Lewis was breathing heavily and appeared nervous.
Nor did the police unreasonably exceed the scope of the stop by asking Lewis if he had contraband in the vehicle because Lewis had already exhibited multiple behaviors that suggested to Officer Robinson that Lewis may be armed and dangerous. (¶19).
