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State v. Floyd

Court of Appeals of Wisconsin, District II

July 6, 2016

State of Wisconsin, Plaintiff-Respondent,
v.
Lewis O. Floyd, Jr., Defendant-Appellant.

         APPEAL from a judgment and an order of the circuit court for Racine County, No. 2013CF982 ALLAN B. TORHORST, Judge.

          Before Reilly, P.J., Gundrum and Hagedorn, JJ.

          GUNDRUM, J.

         ¶1 Lewis Floyd, Jr., appeals his judgment of conviction, arguing the circuit court erred in denying his motion to suppress evidence of illegal drugs discovered on him during a traffic stop. He contends the arresting deputy unlawfully (1) extended the stop beyond the time necessary to issue various citations and (2) searched Floyd's person without his voluntary consent.[1] Floyd also appeals the denial of his postconviction motion, asserting his trial counsel performed ineffectively by failing to call as a witness at the suppression hearing another officer at the scene to testify that the deputy did not ask Floyd if he could search him but told Floyd he was going to do so. Floyd contends that if this officer had been called to the stand, the circuit court would not have found Floyd's consent to the search to have been voluntary and the evidence of illegal drugs would have been suppressed. For the following reasons, we affirm.

         Background

         ¶2 Based upon evidence discovered during a traffic stop, the State charged Floyd with two counts of possession with intent to deliver a controlled substance, as second and subsequent offenses, and two related counts of bail jumping. Floyd moved to suppress the evidence. The Racine County Sheriff's deputy who conducted the traffic stop was the only witness to testify at the hearing on the motion, and his relevant testimony is as follows.

         ¶3 Around 6:45 p.m. on July 23, 2013, the deputy stopped Floyd's vehicle due to the registration being suspended. During the deputy's two-to-three-minute initial contact with Floyd, Floyd informed the deputy he had neither a driver's license nor insurance, but provided his Wisconsin identification card, from which the deputy eventually determined Floyd's address was in Kenosha. During this initial contact, the deputy also observed "air fresheners in every vent of the vehicle as well as hanging off the rear view mirror." Based on his six years of training and experience as a law enforcement officer-in which the majority of his duties for five and one-half years consisted of performing traffic stops-the deputy suspected "there might be some criminal activity going on in the vehicle" because "[u]sually the air fresheners or the amount of them are-is an agent that is used to mask the smell of narcotics." The deputy knew the area of the stop to be a "high crime area" with "large quantities" of drug and gang activity, and further suspected possible criminal activity because of the time of day, the windows of Floyd's vehicle were tinted, and Floyd was alone in the vehicle. There was both vehicular and pedestrian traffic in the area at the time of the stop.

         ¶4 After observing the air fresheners, the deputy returned to his squad and prepared three citations for Floyd related to the suspended registration and lack of insurance and a driver's license, and contacted dispatch to request a canine unit or alternatively a "cover" squad. No canine unit was available, but a City of Racine police officer was sent to the scene.

         ¶5 After about five or six minutes, the deputy reinitiated contact with Floyd. Still in possession of the three citations and Floyd's identification card, the deputy asked Floyd to exit the vehicle, which Floyd did, so that the deputy could explain the citations to him. According to the deputy, at that point Floyd was "not free to leave" because the deputy still had to explain the citations to him and return his identification. The deputy confirmed at the hearing that he could have explained the citations to Floyd while Floyd remained seated in the vehicle, however, he had Floyd exit the vehicle "to make sure that he did not drive away":

I wanted to obviously make sure that he understood I was not going to allow him to drive away from the scene. He did not have a valid driver's license. Whether or not he needed a ride, I would give him a ride to somewhere, if he wanted to walk from there, but I was not going to allow him to drive away from the scene.

         ¶6 As Floyd exited the vehicle, the deputy asked him if he had "any weapons or anything on him that could hurt" the deputy, to which Floyd responded that he did not. The deputy "asked him then if I could search him for my safety and he said yes, go ahead." During the search, the deputy located illegal drugs that led to the charges in this case.

         ¶7 The circuit court found the deputy had observed air fresheners "all over the place, " and in the deputy's experience "air fresheners are utilized by people with drugs to mask odors that the drugs may emit in a closed space." The court concluded the deputy had reasonable suspicion to extend the traffic stop beyond just addressing the citations because of the air fresheners, as well as "the tinted windows, the time of the day, that Mr. Floyd was alone in his vehicle, he's from Kenosha." The court further found that the deputy "[a]sked him to get out of the vehicle and Mr. Floyd in fact consented to a search of his person." Regarding the deputy having Floyd exit the vehicle, the court stated:

Whether the purpose of getting Floyd out was to make sure he couldn't drive the vehicle away, clearly because he wasn't licensed or the vehicle wasn't registered, or whether he could have let Floyd sit in it and watched him or observed him for a period of time to make sure he didn't drive away, as you submit those sequences out, the second one is ridiculous. Officers should take the person out of the vehicle, should make him walk away, should not let the vehicle be driven.

         The court denied Floyd's suppression motion.

         ¶8 Floyd subsequently entered a no-contest plea to one count of possession with intent to deliver a controlled substance, and the remaining three counts were dismissed and read in. After the circuit court sentenced Floyd, he filed a postconviction motion, asserting his trial counsel performed ineffectively by not calling as a witness at the suppression hearing the City of Racine police officer who arrived on the scene to provide "cover" for the deputy, because that officer would have presented testimony that the deputy did not "ask" Floyd if he could search him but "told" him he was going to do so. The circuit court denied the motion. Floyd appeals the denial of his suppression and postconviction motions. Additional facts are included below as necessary.

         Discussion

         I. Floyd's suppression motion

         ¶9 Floyd argues the circuit court erred in denying his suppression motion because (1) the deputy extended the traffic stop beyond what was necessary for the three citations he issued and also lacked reasonable suspicion of additional illegal activity to otherwise justify an extension and (2) the deputy's search of Floyd's person was unlawful because Floyd did not voluntarily consent to it. We conclude the circuit court properly denied Floyd's suppression motion because Floyd was being lawfully detained when the deputy asked to search him and Floyd voluntarily consented to the search.

         ¶10 "When we review a circuit court's ruling on a motion to suppress evidence, we apply the clearly erroneous standard to the circuit court's findings of fact. However, we review the circuit court's application of constitutional principles to the findings of fact de novo." State v. Smiter, 2011 WI.App. 15, ¶9, 331 Wis.2d 431, 793 N.W.2d 920 (2010) (citations omitted).

         A. Floyd was lawfully detained at the time of the search

         i. The traffic stop was not "extended"

         ¶11 At the time the deputy asked Floyd for permission to search him, Floyd was still lawfully detained pursuant to his violations for operating a motor vehicle with a suspended registration and without a driver's license or insurance. That part of this traffic stop had not concluded in that the deputy had yet to return Floyd's identification to him and issue and explain the three citations. The deputy properly could have explained the citations to Floyd either while Floyd was still seated in the vehicle or after asking Floyd to exit it. The deputy chose the latter.

         ¶12 The deputy's request that Floyd step out of the vehicle during the ongoing traffic stop was per se lawful. See Pennsylvania v. Mimms, 434 U.S. 106, 107, 109-10 (1977) (holding that even without suspicion of additional "foul play, " officer properly ordered motorist out of vehicle for execution of traffic stop related to expired license plate) (per curiam); State v. Johnson, 2007 WI 32, ¶23, 299 Wis.2d 675, 729 N.W.2d 182 (2007) (recognizing the "per se rule" of Mimms "that an officer may order a person out of his or her vehicle incident to an otherwise valid stop for a traffic violation"). That said, in this particular case, the deputy also knew that Floyd could not lawfully drive away in the vehicle after completion of the traffic stop due to the vehicle's suspended registration and Floyd's lack of a ...


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