WisBar News: Supreme court clarifies role of arrest information in 'protective search' case:

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  • Supreme court clarifies role of arrest information in 'protective search' case

    Joe Forward

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    Supreme court clarifies role of arrest 
information in protective search case July 5, 2011 – Police can use arrest information, without knowing case dispositions, as a factor in determining whether someone could be armed and dangerous, the Wisconsin Supreme Court recently clarified.

    When making an auto stop, police officers must have reasonable suspicion that a driver is armed and dangerous before they can lawfully conduct a “protective search,” that is, search the areas within the driver’s reach or “lunge area.”

    In 2009, police stopped Deandre Buchanan and noticed him making “furtive movements” and exhibiting “unusual nervousness.” In addition, a brief background check revealed that Buchanan was recently arrested for drug delivery, and previously arrested for armed robbery, false imprisonment, and murder.

    The officer called for back-up, then conducted a protective search. He found a piece of green plant material that turned out to be marijuana. Ultimately, Buchanan was convicted for possessing 200 grams of THC or less with intent to deliver.

    On appeal, Buchanan argued that police did not have a reasonable suspicion he was armed and dangerous, and the marijuana was not in plain view when the officer seized it. Thus, Buchanan argued the search violated his right to be free of unreasonable searches and seizures.

    However, in State v. Buchanan, 2011 WI 49 (June 29, 2011), the supreme court clarified that police officers may consider arrest information (without knowing case disposition) as a factor in determining whether a person could be armed and dangerous.

    “As with the ‘furtive movement,’ it is clear that an arrest record by itself would not, without more, support reasonable suspicion, but here it is considered in addition to other factors,” wrote Judge N. Patrick Crooks, who authored the unanimous decision.

    The court clarified that in State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625, it held that an arrest record alone cannot establish a reasonable suspicion, “but we did not hold that an arrest record is not relevant to a calculation of the totality of the circumstances.”

    “In this case, the factors, considered together, create reasonable suspicion that the item Buchanan was seen putting under the seat or reaching to retrieve when pulled over could have been a weapon,” Justice Crooks wrote.

    The court also rejected Buchanan’s argument that the marijuana was seized illegally because it was not in plain view when the officer seized it.  

    Attorneys

    Tyler William Wickman of Dallenbach & Anich, S.C., represented Deandre Buchanan. Assistant Attorney General Thomas J. Balistreri represented the state.

     

    By Joe Forward, Legal Writer, State Bar of Wisconsin