Frisk Case Analysis

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Aquestion that the decision leaves notably unaddressed is the continued vitality of the penultimate paragraph in State v. Mohr, 2000 WI App 111, par. 17, 235 Wis.2d 220, 613 N.W.2d 186.

The court of appeals wrote, “We also consider noteworthy the fact that the stop and frisk of Mohr occurred during a vehicle search consented to by the driver after he had been given an oral warning for minor traffic violations. Although the consensual search is not at issue here, we observe, as have other appellate courts, that an increasing number of appeals present situations in which police officers routinely ask permission to do drug and weapon searches of motor vehicles following stops for minor traffic infractions. However, a frisk is a more serious intrusion of a person’s liberty than being asked to step out of a vehicle during a traffic stop. ‘Few citizens would find it acceptable to be frisked at a traffic stop for a minor traffic violation because the driver consented to a search of the car.’ (cites omitted).”

In the case at bar, however, no similar language can be found, and the court makes no reference to the paragraph. While the court says that Mohr should not be read so broadly as to make the officer’s subjective fear of weapons anything more than one factor to consider, it does not mention the above language, either approvingly or disapprovingly.

In both Mohr and the case at bar, a passenger, who was not suspected of a crime, was frisked after the driver consented to a search.
State v. McGill, 2000 WI 38, 234 Wis.2d 560, 609 N.W.2d 795, and State v. Morgan, 197 Wis.2d 200, 539 N.W.2d 887 (1995), two cases in which frisks were held lawful, stand in sharp contrast.

In McGill, the driver was frisked after he drove down closed roads, failed to pull over, tried to walk away from the car after eventually stopping, smelled of both drugs and alcohol, and kept putting his hands in his pockets. McGill, 234 Wis.2d at 564-565.

In Morgan, the driver was frisked after being stopped for driving with expired plates, when he was unable to find his driver’s license, and acted very nervously. Morgan, 197 Wis.2d at 204.

In both cases, the frisks occurred during the course of investigation. In the case at bar, and in Mohr, however, the “investigation” had concluded, with no action being taken, or just a warning being issued. To the extent there was any continued “investigation” occurring, it was a consensual search wholly unrelated to the reason for the initial stop, and at the officer’s initiative.

Also, both McGill and Morgan were drivers, rather than passengers.

	Links Wisconsin Supreme Court Related Article Frisk of nervous passenger held unlawful

It is arguable that a majority of the Supreme Court does accept paragraph 17 of the Mohr decision as a relevant factor, albeit an unspoken one; and it may need to remain unspoken.

The factor does not fit into either the officer’s objective or subjective fears of the suspect being armed. Instead, it concerns the passenger’s objective expectations of privacy.

The particular procedure used by the officers in the case at bar — requesting consent to search a vehicle for guns and drugs after issuing a warning citation for a traffic infraction — was upheld in State v. Williams, 2002 WI 94, 255 Wis.2d 1, 646 N.W.2d 834. The Supreme Court held that the procedure — which the State Patrol used to call a “Badger stop” — did not constitute a seizure and thus, does not violate the Fourth Amend-ment.

Because of the holding in Williams, paragraph 17 of Mohr can’t fit expressly into the analysis the court uses to evaluate the reasonable of a pat-down search.

Nevertheless, the absence of any language in the Supreme Court’s decision disavowing it, together with the pattern emerging from the cases, suggests it may be a relevant, albeit unspoken, consideration — if an officer effects a “Badger stop,” he can’t be surprised that some passengers may get a little nervous, and then use that nervousness alone to justify a pat-down search.

– David Ziemer

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David Ziemer can be reached by email.