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COURT OF APPEALS
DECISION
DATED AND FILED
July 28, 2009
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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State of Wisconsin,
Plaintiff-Respondent,
v.
Ernest M.
Moore,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for St. Croix County: SCOTT
R. NEEDHAM, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Ernest Moore appeals a
judgment of conviction for various drug possession charges and an order denying
his postconviction motion. Moore argues he was
entitled to the suppression of all evidence obtained from his traffic stop
because the stop was illegal. He also
argues the circuit court erred by permitting the State to introduce testimony
about how the arresting officer believed the drugs were hidden. We affirm the judgment and order.
BACKGROUND
¶2 Trooper Lawrence Brown was monitoring traffic in the median
of Interstate 94 when he was notified by dispatch that a caller had complained
about a car driving erratically on the highway.
The caller reported the car was “all over the road” and that it almost
sideswiped another car. The caller then
described both the car and the driver, including that the driver was
African-American. Soon after, Brown saw
a car matching the description the caller had given, and pulled onto the
highway to follow it. When Brown caught
up to the car, it exited the highway.
Brown followed and noticed the car’s center deck brake light was not
working. The car crossed the crossroad
and reentered the highway. Brown then
initiated a traffic stop. After
questioning Moore, Brown returned to his squad
car to run Moore’s
driver’s license. Because he thought Moore was being deceptive,
he also requested a criminal history check and radioed for a K-9 unit.
¶3 The K-9 unit arrived while Brown was generating a warning citation
for Moore’s
defective brake light. While Brown
explained the warning to Moore,
the K-9 officer conducted a dog sniff of the car’s exterior. After the dog alerted in front of the
driver’s door, Brown searched the car and found plastic bags under the hood containing
63.5 grams of cocaine and 151.5 grams of heroin.
¶4 Moore
moved to suppress all evidence obtained from the stop, arguing he was stopped
because he is African-American and not because Brown reasonably suspected he
was committing a crime or violating traffic laws. The circuit court denied the motion,
concluding Moore
presented no evidence he was stopped for anything other than constitutionally
permissible reasons. Following a jury trial,
Moore was
convicted of two counts of possession with intent to deliver controlled
substances and two counts of dealer possession of controlled substances without
a tax stamp, all as party to the crime and all as a repeater.
¶5 Moore
filed a postconviction motion, arguing he was entitled to a new trial because
Brown had been permitted to testify he told the K-9 officer—based on where the
dog alerted—that he expected the drugs were hidden as a “suicide load.” Brown explained that this “is a load where
somebody’s made so many trips that they don’t even bother to try to hide it
anymore. They just throw it in a plastic
bag under the hood.” Moore
argued this was improper expert testimony and inadmissible evidence of Moore’s other bad
acts. He further argued his trial
counsel was ineffective for failing to object to it as such.
¶6 The circuit court denied his motion, concluding Brown’s
testimony was neither expert testimony nor evidence of Moore’s other bad acts. It also concluded that even if it were
evidence of other bad acts, Moore
failed to show he was prejudiced by the testimony.
DISCUSSION
¶7 Moore
raises three arguments on appeal. The
first two pertain to the lawfulness of the initial stop. First, Moore
argues Brown did not have reasonable suspicion to initiate the traffic
stop. He then contends the stop violated
his equal protection rights because the real reason Brown stopped him was his
race. Moore’s third argument challenges the denial
of his postconviction motion. He contends
the circuit court improperly admitted Brown’s testimony that the drugs appeared
to be hidden as a suicide load.
1.
Reasonable
suspicion
¶8 An officer may make an investigatory traffic stop if the
officer “reasonably suspects that a person is violating the non-criminal
traffic laws.” County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541
(1999). Whether a traffic stop is
reasonable is a question of constitutional fact, which presents a mixed
standard of review. State v. Post, 2007 WI
60, ¶8, 301 Wis.
2d 1, 733 N.W.2d 634. We uphold a
circuit court’s findings of fact unless clearly erroneous, but review
independently the application of these facts to the constitutional
standard. Id.
¶9 Moore
argues Brown did not have reasonable suspicion to initiate a traffic stop
because it is not unlawful to operate a car with a defective center deck brake
light as long as the other two brake lights are working. This assertion is directly contrary to the
Wisconsin Administrative Code. Wisconsin Admin. Code § Trans 305.15(5)(a) (May 2004),
provides: “The high-mounted stop lamp of
every motor vehicle originally manufactured with a high-mounted stop lamp shall
be maintained in proper working condition and may not be covered or obscured by
any object or material.”
¶10 Brown stopped Moore
after observing he was operating a vehicle with a defective brake light in
violation of Wis. Admin. Code § Trans 305.15(5)(a). Administrative rules have “the force and
effect of law.” Wisconsin Citizens Concerned for
Cranes & Doves v. DNR, 2004 WI 40, ¶5, n.5, 270 Wis. 2d 318,
677 N.W.2d 612. Therefore, Moore’s defective brake light provided an adequate basis
for Brown to believe Moore
was violating non-criminal traffic laws.
See Renz, 231 Wis. 2d at 310.
¶11 Moore
argues, for the first time on appeal, that Wis. Admin.
Code § Trans
305.15(5)(a) is an unlawful expansion of the department of transportation’s
rulemaking authority. We have repeatedly
stated that we will not consider arguments raised for the first time on appeal. Tomah-Mauston Broad. Co. v. Eklund,
143 Wis. 2d
648, 657-58, 422 N.W.2d 169 (Ct. App.
1988). We therefore consider this
argument forfeited. See id.
2.
Selective enforcement
¶12 A defendant claiming an equal protection violation on the basis
of selective enforcement must make a prima facie showing that the enforcement
had a discriminatory effect and a discriminatory purpose. State v. Kramer, 2001 WI 132,
¶¶15-18, 248 Wis.
2d 1009, 637 N.W.2d 35. If the defendant
succeeds, the burden shifts to the State to show the enforcement was a valid
exercise of discretion. Id.,
¶15. We review a circuit court’s
decision on whether a defendant has established a prima facie case for the
erroneous exercise of discretion. Id.,
¶17. “[W]e will uphold the decision of
the circuit court if it is supported by credible evidence or reasonable
inferences that can be drawn from this evidence.” Id.
(citation omitted).
¶13 The circuit court concluded that because Moore presented no evidence to support his
allegations of selective enforcement, he failed to make the requisite prima
facie showing of discriminatory effect and discriminatory motivation. We conclude this was not an erroneous
exercise of the court’s discretion.
¶14 Moore’s
suppression motion contains only unsubstantiated allegations he was targeted
for his race. For example, he contends
that “he is a victim of the Wisconsin State Patrol and/or Trooper Brown’s
unlawful practice of stopping, detaining and searching African-American and
Hispanic motorists, subjecting them to investigatory stops based … solely upon
race and without legally sufficient cause or justification.” But he provides no evidence supporting this
allegation. Instead, he makes the
conclusory statement, “Without repeating the facts of the present case, given
the circumstances of the present stop and search, it is clear that the race of
Mr. Moore played a part in Trooper Brown’s decisions and actions, most importantly
his decision to call for a drug dog one minute after the initial stop.”
¶15 Unsubstantiated allegations of selective enforcement are not
sufficient to show a traffic stop had a discriminatory effect and a
discriminatory purpose. To present a
prima facie case, a defendant must present “evidence which, if credited, is
sufficient to establish a fact or facts which it is adduced to prove.” Kramer, 248 Wis. 2d 1009, ¶16 (citation omitted). That is, the evidence presented must be
“sufficient to raise an issue to go to the trier of fact.” Id. Moore
simply did not do this.
¶16 The record indicates Brown followed Moore
because the highway patrol received a call that Moore’s car was “all over the road” and
nearly sideswiped another vehicle. Brown
then stopped Moore
after observing his car had a defective brake light. Moore
offered no evidence the stop occurred for a purpose other than these
constitutionally permissible reasons.
Therefore, the court correctly concluded he failed to present a prima
facie case of selective enforcement.
3. Suicide load
testimony
¶17 Moore
argues the circuit court erred by admitting Brown’s testimony that he believed
the drugs were packaged as a suicide load.
First, he contends the testimony was unqualified expert testimony that
the drugs “were put in the car … by a seasoned drug runner.” Second, he argues the testimony is impermissible
evidence of Moore’s other bad acts because it
implied Moore
had transported drugs many times before.
¶18 We review a circuit court’s evidentiary rulings for the
erroneous exercise of discretion. State
v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498
(1983). We agree with the circuit court
that Brown’s testimony was neither expert testimony nor evidence of Moore’s prior bad
acts. It was simply Brown’s opinion
about where he thought the drugs would be located. Therefore, we conclude the court’s admission
of this testimony was not an erroneous exercise of its discretion.
¶19 Moore
originally challenged Brown’s suicide load testimony within the context of an
ineffective assistance of counsel claim.
We do not address this claim because he abandoned it on appeal. See A.O. Smith Corp. v. Allstate Ins. Cos.,
222 Wis. 2d
475, 491, 588 N.W.2d 285 (Ct. App. 1998) (issues
raised in the trial court but not raised on appeal are deemed abandoned). We note, however, that even if Moore had not abandoned
this argument, the result would be the same.
Moore’s
ineffective assistance argument depended on the assertion the testimony was
either expert testimony or other bad acts evidence. It was neither.
By the Court.—Judgment and order
affirmed.
This opinion will not be published. See Wis. Stat.
Rule 809.23(1)(b)5
(2007-08).