State v. Michael B. Kingsley

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 27, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP492-CR Cir. Ct. No. 2015CF294

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL B. KINGSLEY,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Monroe County:
TODD L. ZIEGLER, Judge. Affirmed.

Before Blanchard, Kloppenburg and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP492-CR

¶1 PER CURIAM. Michael Kingsley appeals a judgment of
conviction for possession of THC and misdemeanor bail jumping. Kingsley
challenges the circuit court’s denial of a motion to suppress. He argues that the
police lacked reasonable suspicion to conduct a protective search of his vehicle
during the course of a traffic stop. We conclude that there was reasonable
suspicion for the search. Accordingly, we affirm.

¶2 When we review a suppression issue, we uphold the circuit court’s
factual findings unless they are clearly erroneous. See State v. Johnson, 2007 WI
32, ¶13, 299 Wis. 2d 675, 729 N.W.2d 182. We review de novo whether the facts
satisfy the constitutional standard for reasonable suspicion. See id.

¶3 Courts “‘decide on a case-by-case basis, evaluating the totality of the
circumstances, whether an officer had reasonable suspicion to effectuate a
protective search for weapons in a particular case.’” Id., ¶22 (quoted source
omitted). In the context of a traffic stop, “such a search [of the vehicle] is justified
when an officer reasonably suspects that the person ‘is dangerous and ... may gain
immediate control of weapons’ placed or hidden in the passenger compartment.”
Id., ¶24 (quoted source omitted). Reasonable suspicion is a commonsense,
nontechnical test. State v. Eason, 2001 WI 98, ¶19, 245 Wis. 2d 206, 629 N.W.2d
625. It is a less demanding standard than probable cause. See id. “In other words,
the required showing for reasonable suspicion is low.” Id.

¶4 Here, the facts come from the testimony of the City of Tomah police
officer who conducted the protective search of Kingsley’s vehicle. The officer
was the sole witness at the suppression hearing, and the circuit court credited his
testimony.

2
No. 2019AP492-CR

¶5 On the night of the stop, the officer was on duty when he noticed
Kingsley operating a vehicle and then coming to a stop in front of a residence.
The officer knew Kingsley from prior contacts and believed that Kingsley lacked a
valid driver’s license. The officer pulled into an alley, contacted dispatch, and
confirmed that Kingsley’s license was suspended.

¶6 As Kingsley’s car pulled away and passed him, the officer observed
that Kingsley was in the passenger seat with someone else driving. The officer
saw Kingsley “slouch[] back in his seat” in an obvious effort to obscure his face
from view. The officer followed Kingsley’s car and activated his squad lights.

¶7 As the driver of the vehicle began to pull over, the officer observed
both Kingsley and the driver “lean toward the center console as if they were trying
to conceal an item or obtain something from underneath the seats near the center
console area.” The officer became concerned because of Kingsley’s “history,”
which included a criminal history involving drugs. In the officer’s experience,
sometimes weapons were found in drug investigations, and sometimes they were
not, depending on the circumstances.

¶8 The officer was also concerned because of Kingsley’s association
with the Sovereign Citizen Movement. The officer had received training and
education on this movement, and he previously had “a couple” of interactions with
other individuals who shared the movement’s ideology. His understanding of the
ideology was as follows: “[T]he general premise is that they don’t recognize a
centralized government. They don’t recognize law enforcement. A very general
view.” Based on the officer’s experience and prior interactions, he believed it was
“[c]ommon” for individuals in the movement to be associated with weapons
possession.

3
No. 2019AP492-CR

¶9 During his testimony, the officer referred to the “dangers” of
individuals or views associated with the movement. He went on to state that
police contacts with Kingsley have resulted in a department-wide response based
on “[o]fficer safety concerns”:

A ... [T]he law enforcement community has
recognized the dangers that these people who share these
views hold…. And particularly with this case, whenever
Mr. Kingsley’s name is broadcasted over the radio, all of
our police officers respond to assist. Whether they were
actually involved or just in the general area, they always
respond to assist.

Q Why is that?

A Officer safety concerns.

¶10 The officer acknowledged that, in his prior contacts with Kingsley,
he had never found Kingsley with a weapon. The officer could not remember
precisely how many such contacts there were, but they were “numerous,” “[m]ore
than five.”

¶11 When the officer approached Kingsley’s car, he recognized the
driver as Jason Lobe. The officer knew Lobe from numerous prior contacts as
well, and knew him to be a heroin user.

¶12 The officer observed that both Kingsley and Lobe were visibly
nervous, fidgety, and shaking. “[W]hat stood out” to the officer was that Kingsley
had “never appeared as visibly nervous as he was that day.”

¶13 The officer requested backup for officer safety. When backup
arrived, the officer had Kingsley and Lobe exit Kingsley’s car, and he conducted a
protective search of the vehicle. The search led to the discovery of drug evidence.

4
No. 2019AP492-CR

¶14 Kingsley contends that the totality of the circumstances do not rise to
the level of reasonable suspicion for a protective search of his car. We disagree.
We discuss below the circumstances that we view as most significant.

¶15 First, the officer saw both Kingsley and Lobe “lean toward the
center console as if they were trying to conceal an item or obtain something from
underneath the seats near the center console area.” While this type of movement
may not be sufficient by itself to justify a protective search, it is a significant
factor in the totality of the circumstances. See Johnson, 299 Wis. 2d 675, ¶37
(surreptitious movement can be “a substantial factor in establishing that officers
had reason to believe that the suspect was dangerous and had access to weapons”).
Adding to Kingsley’s suspicious movements, the officer saw him make an obvious
attempt to obscure his face from view.

¶16 Second, the officer testified that “what stood out” to the officer was
that Kingsley had “never appeared as visibly nervous as he was that day.”
Kingsley tries to minimize the significance of this factor by questioning whether
police can reliably assess nervousness levels and whether nervousness is a valid
indicator of weapons possession. However, case law establishes that police
assessments of nervousness are a proper consideration when addressing reasonable
suspicion for a protective search. See, e.g., State v. Kyles, 2004 WI 15, ¶54, 269
Wis. 2d 1, 675 N.W.2d 449; State v. McGill, 2000 WI 38, ¶29, 234 Wis. 2d 560,
609 N.W.2d 795. We are bound by that case law. Further, the officer’s
assessment of Kingsley’s unusual nervousness was especially significant given the
officer’s familiarity with Kingsley from numerous prior contacts.

¶17 Third, the officer knew that both Kingsley and Lobe had criminal
drug histories, and the officer testified that drug investigations sometimes turn up

5
No. 2019AP492-CR

weapons. Kingsley contends that his criminal drug history is not significant
because the case law establishes a link between weapons and drug dealing, not
between weapons and drug activity more generally. However, Kingsley does not
point to case law that would prevent us from considering the officer's testimony
linking weapons and drug crimes generally as part of the totality of circumstances.

¶18 Fourth, the officer testified that Kingsley was associated with the
Sovereign Citizen Movement and that, based on the officer’s training and
experience, it was “[c]ommon” for individuals in that movement to be associated
with weapons possession. We find this testimony significant as an objective,
articulable factor contributing to the reasonable possibility that Kingsley was in
possession of a weapon. By contrast, we do not consider significant the officer’s
testimony about his general understanding of views held by Kingsley or other
individuals associated with the movement,1 such as the concept of not recognizing
law enforcement.

¶19 Fifth, the officer was aware that police contacts with Kingsley
prompted a department-wide response based on officer safety concerns. Although
the officer’s testimony did not explain whether those safety concerns were based
on something more than Kingsley’s association with the Sovereign Citizen
Movement or general views that Kingsley might have held consistent with the
movement’s ideology as described by the officer, we conclude that one reasonable
inference from the officer’s testimony as a whole is that the safety concerns were

1
The State cites materials purporting to describe the Sovereign Citizen Movement with
greater specificity and characterizing the movement as a dangerous extremist group. That
material was not before the circuit court at the suppression hearing, and we do not consider it.

6
No. 2019AP492-CR

based on something more.2 As noted above, after the officer testified regarding
his concerns with the movement, the officer went on to state, “[a]nd particularly
with this case, whenever Mr. Kingsley’s name is broadcasted over the radio, all of
our police officers respond to assist.” (Emphasis added.)

¶20 Finally, the officer expressed subjective concern for his safety.
Although not dispositive, an officer’s subjective safety concern is a relevant factor
that can contribute to reasonable suspicion for a protective search. See State v.
Buchanan, 2011 WI 49, ¶15, 334 Wis. 2d 379, 799 N.W.2d 775; Kyles, 269
Wis. 2d 1, ¶¶37, 39.

¶21 Kingsley argues that a protective search was not reasonable because
the officer never found a weapon on Kingsley or Lobe during the officer’s
numerous prior contacts with both men. This is a significant factor that weighs in
Kingsley’s favor. However, when we consider it in combination with the other
factors, we conclude that it does not tip the balance against reasonable suspicion
for the protective search. As already discussed, the officer’s prior contacts with
Kingsley support the reasonableness of the search insofar as the officer’s
assessment of Kingsley’s unusual nervousness was especially significant given the
officer’s familiarity with Kingsley.

¶22 In sum, we conclude that there was reasonable suspicion for the
protective search.

2
The officer testified that Kingsley provided the police department with
“documentation” in line with the Sovereign Citizen Movement’s ideologies, but the officer did
not state that this documentation contained anything threatening or weapons-related.

7
No. 2019AP492-CR

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

8