State v. Tracy Smiter

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.
June 28, 2022
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 Nos.
2021AP533-CR Cir. Ct. Nos. 2017CF3107
2018CF968
2021AP534-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TRACY SMITER,

DEFENDANT-APPELLANT.

APPEALS from judgments of the circuit court for Milwaukee
County: JONATHAN D. WATTS, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and White, J.

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).
Nos. 2021AP533-CR
2021AP534-CR

¶1 PER CURIAM. Tracy Smiter appeals from two judgments of
conviction, entered upon guilty pleas, for three counts of possession with intent to
deliver narcotic drugs and one count of felony bail jumping. Smiter argues that
the trial court erred when it denied his motion to suppress evidence. Upon review,
we affirm.

BACKGROUND

¶2 This case begins with a police encounter with Smiter in July 2017,
which resulted in a criminal complaint in Milwaukee County Circuit Court case
No. 2017CF3107 charging Smiter with possession with intent to deliver a
controlled substance, three grams or less of heroin. Smiter was taken into custody
while sitting in a Jeep Compass in a Walgreens parking lot on West Capitol Drive
in Milwaukee. The police seized a plastic bag from his driver’s door map pocket;
testing showed that the recovered plastic bag contained multiple types of drugs.1

¶3 In February 2018, Smiter was charged in Milwaukee County Circuit
Court case No. 2018CF968 after Smiter’s arrest for allegedly arranging to sell and
deliver heroin and cocaine to a Drug Enforcement Administration Task Force
Officer. Smiter was charged with: (1) possession with intent to deliver a
controlled substance, ten to fifty grams of heroin, as a second or subsequent
offense, as a party to a crime; (2) possession with intent to deliver a controlled

1
In November 2017, the State filed an amended information charging Smiter with four
counts: (1) possession with intent to deliver a controlled substance, three grams or less of heroin,
as a second or subsequent offense; (2) possession with intent to deliver a controlled substance,
one gram or less of cocaine, as a second or subsequent offense; (3) possession of narcotic drugs,
as a second or subsequent offense; and (4) possession of THC, as a second or subsequent offense.

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substance, one gram or less of cocaine, as a second or subsequent offense, as a
party to a crime; and (3) felony bail jumping.

¶4 In June 2018, Smiter moved to suppress the evidence from the July
2017 encounter. The trial court conducted a suppression hearing on October 25,
2018.2 The court heard testimony from two Milwaukee Police Department
officers: Peter Hauser and Evan Domine, as well as a Wisconsin State Public
Defender’s Office (SPD) investigator.

¶5 At the suppression hearing, Officer Hauser testified that he was on
bicycle patrol with four other officers when they patrolled a Walgreens parking lot
on West Capitol Drive in Milwaukee, a location that in his experience had been
“notorious for drug dealing.” He stated that Officer Domine approached a Jeep
Compass on the passenger’s side. He identified Smiter in court as the driver of the
Jeep Compass.

¶6 Officer Hauser further testified that he pulled up on the driver’s side
of the jeep and observed that the driver’s door was slightly open and the vehicle
was occupied. He testified that Officer Domine told him that the occupants of the
vehicle were going to be coming out of the vehicle, “which indicated to me that he
observed an illegal item inside of the vehicle.” After the driver’s side door was
fully opened, Officer Hauser could see the plastic bag in the map pocket in the
door and he could “clearly see a green plant substance that [he] suspected to be
marijuana.” The plastic bag was recovered in the search of the vehicle; it

2
The Honorable Janet Protasiewicz conducted the suppression hearing and
reconsideration hearing. We refer to Judge Protasiewicz as the trial court. The Honorable
Jonathan D. Watts accepted Smiter’s pleas and sentenced him. We refer to Judge Watts as the
circuit court.

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contained “four smaller baggies that contained suspected marijuana, suspected
heroin and suspected cocaine.”

¶7 Officer Hauser reviewed police body camera video footage from the
incident on the stand. He testified during cross-examination that the bicycle squad
checked in with people they encountered on patrol, something he understood to be
consensual encounters because the people were free to go, in other words, that he
was not making a stop.

¶8 Officer Domine testified that he was on routine patrol with the
bicycle squad in the Walgreens parking lot, which was “considerably one of the
higher traffic lots for narcotic sales” and where he had previously participated in
narcotics-based arrests. He recalled that the patrol made contact with all of the
vehicles in the lot. He observed the Jeep Compass in question with occupants
inside for one or three minutes, observing that no one had exited or entered the
vehicle. He believed he made contact with the Jeep “to see how it was going.”

¶9 Officer Domine further testified that while he was on the passenger’s
side of the vehicle looking inside, he “observed a bag of green-leafy substance on
the driver’s side of the vehicle.” Based on his experience in hundreds of narcotics
investigations, he believed that it was a “bag full of narcotics.” He stated that he
“would have notified the officers on the driver’s side that I made an observation of
something, then they should remove the driver.” In reviewing the police body
camera video footage from that day, Officer Domine testified that when he first
pulled up to the vehicle, he was mounted on his bicycle, but he dismounted and
“walked over to the driver’s side of the vehicle” after he observed the drugs and
alerted the other officers to remove the vehicle’s occupants. Officer Domine
reviewed photos of the crime scene and acknowledged that the plastic bag looked

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like it was in different positions in two of the exhibit photographs, although both
depicted the plastic bag in the map pocket.

¶10 Finally, the SPD investigator testified that he found a similar Jeep
Compass for sale and took a series of photos of the vehicle with a person in the
driver’s seat to show what would be visible within the vehicle from outside the
passenger’s side door at various angles. He testified that in his experience the
driver’s legs obscured a line of sight to the map pocket in the driver’s side door.
The State questioned the investigator about what information he had about
positioning of the steering wheel and seat as well as the size and position of the
person in the driver’s seat, and whether those factors would affect visibility. The
investigator agreed he did not have that information about Smiter’s vehicle and the
facts and circumstance of the incident.

¶11 The trial court then made its findings and conclusions on the record.
It summarized that Officer Hauser stated he patrolled the parking lot, checking on
various vehicles, but did not see anything until he heard Officer Domine tell
everyone to get out of the Jeep Compass. Officer Hauser indicated he did not see
contraband until the door was opened when Smiter exited. The court then
concluded that based on Officer Hauser’s testimony alone there would not be
enough to find reasonable suspicion; however, it then considered his testimony in
conjunction with Officer Domine’s testimony. The trial court stated:

[Officer Domine] indicates that they’re in the lot for a
minute or two.

He sees people sitting in the Jeep Compass. He’s the first
person to arrive on the passenger’s side, and he talks about
seeing the green-leafy substance in the bag on the driver’s
side.

….

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But he testifies that he’s approximately 7 feet up in the air,
and he has the vantage point to observe the entire front
compartment of the vehicle.

[The Assistant District Attorney] asked him how much
could you see, and he said, quote, not much.

He then indicated that he could see the top portion of the
baggy, and he could see the green-leafy substance.

[Smiter’s counsel] cross-examined him. He indicated,
right, he saw no puffs, any kind of smoke coming from the
vehicle; he observed no odor.

There were two adults in the vehicle.

He told the defendant to get out. Both he and Officer
Hauser conceded that the narcotics that were found were
clearly in different positions.

….

Again, he indicated he had an unobstructed view of the
front half of the vehicle.

¶12 The trial court then reviewed the SPD investigator’s testimony,
acknowledging that his exhibits showed “just how challenging it would be to see
what’s in that driver’s side pocket from the perspective of the passenger’s
window.” However, the trial court found that the “linchpin” of the case was that
the court found “Officer Domine credible when he could see it, he couldn’t see
much, although he could see the top portion of the bag.” The court agreed with
the State’s argument that when Officer Domine “walked around the vehicle and
appears to bend down that we’re seeing a corroboration of that testimony when he
walked around to the driver’s side door to observe what he reasonably believed
was contraband.” The trial court therefore denied Smiter’s motion to suppress.

¶13 In November 2018, Smiter moved the court to reconsider the
suppression motion and to reopen testimony. The trial court conducted a second
hearing on December 19, 2018. Officer Hauser and Officer Domine were recalled

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as witnesses. The focus of the second hearing was on the crime scene photographs
and the positioning of the plastic bag of drugs in different exhibits. Officer Hauser
testified that when reviewing the photos, the plastic bag of suspected drugs were in
different positions in the map pocket. Officer Domine testified that he did not
remember taking photographs at the crime scene, although he acknowledged he
may have done so because it was reported he was the photographer in the police
report. Officer Domine also testified that when he considered the two photos in
question, the bag in the second photo looked like it was flipped over so you could
see the rest of the drugs not visible in the first photo. During cross-examination by
the State, Officer Domine reviewed body camera video footage that showed him
moving the bag to look at the contents.

¶14 In March 2019, the trial court issued an order denying the motion for
reconsideration. In an oral ruling, the court stated that at the prior hearing its
decision hinged on “when Officer Domine testified that he saw the drugs from
across the vehicle, what [the court] saw was that he immediately went around the
vehicle to confirm what he saw.” Upon reconsideration, the crucial issue for the
court was the timing: “Did Officer Hauser open this door before Officer Domine
saw the drugs?” The court concluded that the State convinced the court using the
body camera video footage that “Officer Domine was there first before Officer
Hauser[.]” Further, the court concluded that in the video, “[y]ou could also see
into the vehicle and see the profile of Mr. Smiter looking forward.” The trial court
found Officer Domine “credible” and that “Officer Domine saw the contraband …
before Officer Hauser opened the vehicle door.”

¶15 In October 2019, Smiter entered guilty pleas before the circuit court.
In exchange for pleas of guilty to counts one and two in the 2017 case and pleas of
guilty to counts one and three on the 2018 case, the State dismissed and read in

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Nos. 2021AP533-CR
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count two of the 2018 case. Smiter entered guilty pleas, which the court accepted
after a colloquy with him. In November 2019, the circuit court sentenced Smiter
to a total sentence of ten years bifurcated as six years of initial confinement and
four years of extended supervision.

¶16 This appeal follows.3

DISCUSSION

¶17 Smiter argues that the trial court erred when it denied his motion to
suppress evidence from his July 2017 arrest.4 “Whether evidence should be
suppressed is a question of constitutional fact.” State v. Floyd, 2017 WI 78, ¶11,
377 Wis. 2d 394, 898 N.W.2d 560 (citation omitted). We review a motion to
suppress under a two-prong analysis. State v. Felix, 2012 WI 36, ¶22, 339 Wis.
2d 670, 811 N.W.2d 775. First, we will sustain the trial court’s findings of
historical fact unless they are clearly erroneous. Floyd, 377 Wis. 2d 394, ¶11.
Second, however, the trial court’s application of the historical facts to
constitutional principles is a question of law we review independently. Id.

¶18 The State and Smiter disagree about the proper characterization of
the police encounter in the Walgreens parking lot in July 2017. Smiter argues that
the police lacked reasonable suspicion to conduct an investigatory stop of his
vehicle, which was parked, and the officers testified that the vehicle did not

3
We granted Smiter’s motion to consolidate his appeals before this court on April 14,
2021. Previously, the trial court granted the State’s motion to join Smiter’s two cases.
4
A person may appeal an order denying a motion to suppress even though that person
has pled guilty. WIS. STAT. § 971.31(10) (2019-20). All references to the Wisconsin Statutes are
to the 2019-20 version unless otherwise noted.

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exhibit any outward signs of a traffic or ordinance violation.5 He contends that
without reasonable suspicion for the stop, the resulting seizure and search were in
violation of the Fourth Amendment. Conversely, the State argues that the police
had a consensual encounter with Smiter and other vehicles in the Walgreens
parking lot and that when Officer Domine observed the bag of drugs in plain sight
within the vehicle, the police then had probable cause to search the vehicle and
seize the contraband.6

¶19 The Fourth Amendment guarantees individual security “against
unreasonable searches and seizures.” U.S. CONST. amend. IV. However, “a
warrantless search of an automobile stopped by police officers who had probable
cause to believe the vehicle contained contraband was not unreasonable within the
meaning of the Fourth Amendment.” United States v. Ross, 456 U.S. 798, 799
(1982). Here, the police officers were not stopping Smiter’s vehicle to investigate
a reasonable suspicion of illegal activity, but instead, Officer Domine, in the

5
Smiter argues that the proper legal framework for the review of this incident is an
investigatory stop. See WIS. STAT. § 968.24. “[A] police officer may in appropriate
circumstances and in an appropriate manner approach a person for purposes of investigating
possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v.
Ohio, 392 U.S. 1, 22 (1968). “In order for an investigative stop to be warranted, it is required that
‘a law enforcement officer reasonably suspect, in light of his or her experience, that some kind of
criminal activity has taken or is taking place.’” State v. Limon, 2008 WI App 77, ¶14, 312 Wis.
2d 174, 751 N.W.2d 877 (citation omitted). An investigatory stop “must be based on more than
an officer’s ‘inchoate and unparticularized suspicion or hunch.’” State v. Post, 2007 WI 60, ¶10,
301 Wis. 2d 1, 733 N.W.2d 634 (quoting Terry, 392 U.S. at 27).
6
The State, on the other hand, argues that the proper legal framework is a seizure after a
consensual encounter. “Not every police-citizen interaction implicates the Fourth Amendment.”
State v. VanBeek, 2021 WI 51, ¶26, 397 Wis. 2d 311, 960 N.W.2d 32. Law enforcement officers
may approach citizens and ask questions without implicating the Fourth Amendment “as long as
the police do not convey a message that compliance with their requests is required.” Florida v.
Bostick, 501 U.S. 429, 435 (1991). “Absent law enforcement conduct that indicates required
compliance, these types of interactions are consensual encounters and generally do not receive
Fourth Amendment scrutiny.” VanBeek, 397 Wis. 2d 311, ¶26.

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course of interacting with Smiter in a public parking lot, observed the plastic bag
of drugs in plain view inside the vehicle and then seized the evidence.
Accordingly, our question of law is whether the seizure of that evidence was
reasonable.7

¶20 The plain view doctrine sets forth three requirements for a police
officer to make a “valid warrantless seizure of incriminating evidence” without
violating the Fourth Amendment. Horton v. California, 496 U.S. 128, 136
(1990). “[T]he evidence must be in plain view, the officer must have a lawful
right of access to the object itself, and the object’s incriminating character must be
immediately apparent.” State v. Guy, 172 Wis. 2d 86, 101, 492 N.W.2d 311
(1992). “To show that the incriminating character of an item was immediately
apparent, police must show they had probable cause to believe the item in plain
view was evidence or contraband.” Id.8

¶21 Although Smiter concedes that the second requirement of the
officers’ lawful right of access to the vehicle was satisfied, Smiter challenges the
remaining two requirements: first, he contends that the plastic bag was not in

7
“The right to security in person and property protected by the Fourth Amendment may
be invaded in quite different ways by searches and seizures. A search compromises the
individual interest in privacy; a seizure deprives the individual of dominion over his or her person
or property.” Horton v. California, 496 U.S. 128, 133 (1990). When considering the plain view
doctrine, it is important to note that an article observed or seized would not “involve any invasion
of privacy.” Id. “A seizure of the article, however, would obviously invade the owner’s
possessory interest.” Id. at 134. Accordingly, “[i]f ‘plain view’ justifies an exception from an
otherwise applicable warrant requirement … it must be an exception that is addressed to the
concerns that are implicated by seizures rather than by searches.” Id.
8
“[P]robable cause is a flexible, common-sense standard. It merely requires that the
facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ that
certain items may be contraband or stolen property or useful as evidence of a crime[.]” Texas v.
Brown, 460 U.S. 730, 742, (1983) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).

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plain view prior to Smiter exiting the vehicle; and second, he asserts that it was not
immediately apparent that the plastic bag contained contraband, therefore, the
police lacked probable cause to seize the plastic bag and take Smiter into custody.
Here, the trial court considered both of these issues and rejected his position. We
agree with the court.

¶22 For Smiter to prevail on either point, we would need to conclude that
the trial court’s findings of fact were clearly erroneous. However, this court’s task
is to search the record for reasons to sustain the trial court’s findings, not reject
them. See State v. Wiskerchen, 2019 WI 1, ¶30, 385 Wis. 2d 120, 921 N.W.2d
730. Under the proper standard of review, we “uphold a circuit court’s findings of
fact unless those findings go ‘against the great weight and clear preponderance of
the evidence.’” Phelps v. Physicians Ins. Co. of Wisconsin, 2009 WI 74, ¶51,
319 Wis. 2d 1, 768 N.W.2d 615 (citation omitted). “[E]ven if the evidence may
have presented competing factual inferences,” we affirm the court’s findings as
long “as the evidence would permit a reasonable person to make the same
finding.” Wiskerchen, 385 Wis. 2d 120, ¶30.

¶23 With that standard in mind, we turn to Smiter’s two contentions:
(1) that Officer Domine could not see the plastic bag in the map pocket from his
vantage point prior to opening the door and (2) that illegal drugs were visible in
the vehicle. First, the trial court found that Officer Domine was credible in his
testimony that he saw the plastic bag of drugs in the map pocket through the car
window before Officer Hauser opened the driver’s side door. The court believed
this was shown by Officer Domine’s testimony and the body camera video
footage, and that after Officer Domine made his observation, he alerted the other
officers, dismounted from his bicycle, and walked to the driver’s side to confirm

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his observation. Officer Domine’s actions confirmed exactly what he believed he
observed—contraband—prior to the door opening.

¶24 Second, Smiter contends that the conflicting photograph exhibits
raise doubt about what Officer Domine saw outside the vehicle and whether
identifiable drugs were visible. The officer testified that he was experienced in
hundreds of narcotics investigations and could recognize suspected drugs. The
trial court found that the plastic bag was visible to Officer Domine and that he
could recognize that the materials were contraband; in other words, Officer
Domine had probable cause to believe illegal contraband was present inside the
vehicle. For the trial court, one of its key finding was that Officer Domine acted
upon his belief about the plastic bag before Officer Hauser interacted with Smiter.

¶25 After our examination of the record, we conclude that the trial
court’s findings were not clearly erroneous. Further, based upon those findings,
the facts satisfy the three step standard to allow the seizure of contraband without
a warrant. Horton, 496 U.S. at 136-37. The materials were within “plain view,”
the police were not in violation of the Fourth Amendment when they observed
Smiter, and the “incriminating character” of the plastic bag was “immediately
apparent.” See Guy, 172 Wis. 2d at 101. Therefore, the seizure was reasonable
and not in violation of the Fourth Amendment. The trial court did not err when it
denied the motion to suppress the evidence.

CONCLUSION

¶26 For the reasons stated above, we conclude that the trial court did not
err when it denied Smiter’s motion to suppress. We affirm the judgments of
conviction.

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By the Court.—Judgments affirmed.

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

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