State v. Donte Quintell McBride

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.
December 20, 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 No. 2021AP311-CR Cir. Ct. No. 2018CF5172

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DONTE QUINTELL MCBRIDE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JONATHAN D. WATTS, Judge. Reversed and cause
remanded with directions.

Before Donald, P.J., Dugan and White, JJ.

¶1 DONALD, P.J. Donte Quintell McBride appeals a judgment of
conviction for one count of possession with intent to deliver heroin and two counts
of possession with intent to deliver narcotics, and an order denying his motion to
No. 2021AP311-CR

suppress. As discussed below, we conclude that the police did not have
reasonable suspicion to seize McBride. Accordingly, we reverse the judgment and
the circuit court’s denial of McBride’s suppression motion.

BACKGROUND

¶2 On October 28, 2018, McBride and another person were sitting in an
SUV parked in an alley behind the building where McBride lived. McBride was
in the passenger seat.

¶3 At approximately 11:15 p.m., Officer Jose Rivera and his partner,
Officer Eric Kradecki, were performing a routine patrol and spotted the SUV.
Within a matter of seconds, Officer Rivera shined the squad spotlight into the
SUV, exited the squad car, and ordered the driver and McBride to put their hands
up. Officer Rivera then opened the passenger’s side door, handcuffed McBride,
and removed him from the SUV. When Officer Rivera opened the SUV door, he
saw an orange, unlabeled pill bottle between the front passenger door and the seat.
An additional unlabeled pill bottle was recovered from McBride’s front right
pocket after a pat-down.1

¶4 McBride was charged with one count of possession with intent to
deliver heroin and one count of possession of narcotic drugs. An amended
information added a second count of possession of narcotic drugs and second and
subsequent enhancers to all counts.

1
At the preliminary hearing, Officer Rivera testified that he also recovered a clear plastic
bag from McBride that he believed was heroin.

2
No. 2021AP311-CR

¶5 McBride filed a motion to suppress. At the suppression hearing,
Officer Rivera testified, and the State moved the video footage from his body
camera into evidence. According to Officer Rivera, upon shining the spotlight
into the SUV, McBride, who was in the passenger seat, immediately “started to
bend down towards his waist area and begin to reach around in the vehicle.”
Further, as Officer Rivera exited his squad car, McBride was “still reaching inside
of the vehicle.” Officer Rivera admitted, however, that neither his body camera
nor his partner’s body camera captured any movement from McBride.2

¶6 Officer Rivera also testified that the SUV was not “parked off to the
side, it was parked right in the alley,” and could have interfered with traffic if
there was a large vehicle or two-way traffic. On cross-examination, Officer
Rivera, however, indicated that he was able to maneuver his vehicle around the
SUV, and that he did not take measurements of the alley to determine whether the
SUV in fact obstructed traffic.

¶7 Following the suppression hearing, the circuit court denied the
motion. The circuit court found Officer Rivera’s testimony credible. The circuit
court further found that there was reasonable suspicion for the stop and subsequent
frisk, and probable cause existed to arrest McBride.

¶8 That same day, McBride pleaded guilty to one count of possession
with intent to deliver heroin and two counts of possession with intent to deliver
narcotics. McBride was sentenced to a total of six years in prison. McBride now
appeals the suppression ruling. Additional relevant facts are addressed below.

2
According to Officer Rivera, this was because the body camera was at a fixed angle;
whereas, he could move his head and see different things.

3
No. 2021AP311-CR

DISCUSSION

¶9 On appeal, McBride renews his argument that police did not have
reasonable suspicion to seize him. McBride also contends that handcuffing and
removing him from the vehicle was not supported by reasonable suspicion and
exceeded the scope of a permissible stop. Finally, McBride contends that the
search of his person was not justified.

¶10 We conclude that the police lacked reasonable suspicion to seize
McBride. As a result, we do not address McBride’s other issues. See State v.
Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (stating that an
appellate court should decide cases on the narrowest possible grounds).

¶11 The Fourth Amendment to the United States Constitution and
Article I, Section 11 of the Wisconsin Constitution protect the rights of citizens to
be free from unreasonable searches and seizures. State v. Young, 2006 WI 98,
¶18, 294 Wis. 2d 1, 717 N.W.2d 729. An investigatory stop, also known as a
Terry stop,3 “complies with the Fourth Amendment ‘if the police have reasonable
suspicion that a crime has been committed, is being committed, or is about to be
committed.’” State v. Genous, 2021 WI 50, ¶7, 397 Wis. 2d 293, 961 N.W.2d 41
(citation omitted).

¶12 “Reasonable suspicion requires that a police officer possess specific
and articulable facts that warrant a reasonable belief that criminal activity is
afoot.” Young, 294 Wis. 2d 1, ¶21. This is “an objective test that examines the
totality of circumstances.” State v. VanBeek, 2021 WI 51, ¶52, 397 Wis. 2d 311,

3
See Terry v. Ohio, 392 U.S. 1 (1968).

4
No. 2021AP311-CR

960 N.W.2d 32. “A mere hunch that a person has been, is, or will be involved in
criminal activity is insufficient” to establish reasonable suspicion. Young, 294
Wis. 2d 1, ¶21.

¶13 The State bears the burden of proving that an investigatory stop was
constitutional. State v. Meddaugh, 2022 WI App 12, ¶13, 401 Wis. 2d 134, 972
N.W.2d 181. When reviewing an order granting or denying a motion to suppress,
we will uphold the circuit court’s findings of fact unless they are clearly
erroneous. Id., ¶12. We independently apply constitutional principles to the facts.
Id.

¶14 Here, the parties agreed in the circuit court that a seizure occurred
when Officer Rivera ordered McBride to show his hands. See Young, 294 Wis. 2d
1, ¶34 (stating that a seizure occurs when a reasonable person would have believed
he was not free to leave). As a result, at issue is whether the police had reasonable
suspicion to seize McBride. See Genous, 397 Wis. 2d 293, ¶7. The State
contends that the totality of the circumstances support a finding of reasonable
suspicion. We disagree. We conclude that the totality of circumstances does not
establish reasonable suspicion that McBride had been engaged in, was engaged in,
or was about to be engaged in, criminal activity.

¶15 To start, we note what this case is not about. This is not a case
where the police were responding to a call or tip about suspicious or criminal
activity taking place. Nor is this a case where the police came across a person, had
a hunch that criminal activity was taking place, and then, after observing the
person for a substantial period of time, determined that criminal activity appeared
to be afoot. Rather, in this case, we emphasize that the record reflects that the

5
No. 2021AP311-CR

officers were on a routine patrol and, seconds after observing the SUV, seized
McBride.

¶16 In concluding that reasonable suspicion existed to seize McBride,
the circuit court highlighted that: (1) the SUV was parked in a “high-crime” area;
(2) the SUV had its lights off;4 (3) there were two people sitting inside the SUV;
(4) the SUV was parked in an “unusual” place in the alley; and (5) McBride
moved in response to seeing Officer Rivera’s spotlight.5

¶17 First, as the State acknowledges, it is well-established that an
individual’s presence in a high-crime area standing alone is insufficient to give
rise to reasonable suspicion. See State v. Gordon, 2014 WI App 44, ¶15, 353
Wis. 2d 468, 846 N.W.2d 483. The State cannot justify a warrantless search or
seizure with nothing more than a recitation that the person was in a “high-crime”
area. As we have previously observed:

sadly, many, many folks, innocent of any crime, are by
circumstances forced to live in areas that are not safe—
either for themselves or their loved ones. Thus, the routine
mantra of “high crime area” has the tendency to condemn a
whole population to police intrusion that, with the same
additional facts, would not happen in other parts of our
community.

Id.

4
Both Officer Jose Rivera and the circuit court simply referred to “lights.” Neither
specified whether this meant the SUV’s headlights or interior lights.
5
We note that the circuit court in its decision also referred to the discovery of the
unlabeled pill bottle in the SUV. Reasonable suspicion, however, must be facts and information
known to the police officer before the seizure. See State v. Genous, 2021 WI 50, ¶10, 397
Wis. 2d 293, 961 N.W.2d 41.

6
No. 2021AP311-CR

¶18 Second, we are not persuaded that two people sitting in a parked
SUV with its lights off is inherently suspicious. Sitting in a parked car with the
lights off cannot be described as unusual or uncommon behavior in either high-
crime or low-crime areas. There are a plethora of innocent reasons that two
people may sit in a parked car, such as waiting for a friend or family member.
While it is true that conduct which may have an innocent explanation may also
give rise to a reasonable suspicion of criminal activity, the inference of unlawful
conduct must be reasonable. See State v. Waldner, 206 Wis. 2d 51, 57, 556
N.W.2d 681 (1996). Here, we do not see how the presence of two people in the
parked SUV without its lights on supports a reasonable suspicion that McBride
was engaged in criminal activity.

¶19 Third, we address McBride’s alleged movements in response to
Officer Rivera’s squad spotlight shining into the SUV. “Furtive” or suspicious
movements do not automatically give rise to reasonable suspicion. For instance,
in Gordon, officers stopped the defendant, who was walking at night in a high-
crime area, after observing him pat the outside of his pants pocket, also known as
a “security adjustment.” See id., 353 Wis. 2d 468, ¶¶9, 14. One of the officers
explained that a “security adjustment” is a conscious or unconscious movement
that an individual does when he or she is carrying a weapon and confronted by law
enforcement. Id., ¶4. Nonetheless, we concluded that, without more, the facts did
not establish reasonable suspicion that criminal activity was afoot. Id., ¶14. We
stated that a “‘security adjustment’ could, given additional facts (such as, for
example, flight or attempted flight), support an objective ‘reasonable suspicion,’”
the additional facts present were “far too common to support the requisite
individualized suspicion[.]” Id., ¶17.

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No. 2021AP311-CR

¶20 Here, Officer Rivera admitted that neither his body camera nor his
partner’s body camera captured any movement from McBride. Nor do we discern
any clear movement based on our review of the body camera recording. However,
even accepting the circuit court’s findings that Officer Rivera saw movement, we
conclude that this does not establish reasonable suspicion that criminal activity
was afoot. If anything, McBride’s movement in response to a bright spotlight
being shined into the car is far less suspicious than the “security adjustment” in
Gordon. Id.; see also State v. Johnson, 2007 WI 32, ¶43, 299 Wis. 2d 675, 729
N.W.2d 182 (noting that there are any number of “innocuous movements persons
make in their vehicle every day,” which might result in an officer seeing the
occupant of a vehicle’s “head and shoulders move, or even momentarily disappear
from view,” including reaching for a wallet, putting down a soda, or picking up a
fast food wrapper from the floor). Permitting a seizure based on a person’s
movement in response to a bright spotlight shining into a car where the only other
facts are that the area is high-crime and two people are sitting in a parked car with
the lights off in an alley simply is not enough to establish reasonable suspicion.

¶21 Finally, we turn to the location of the SUV in the alley. The Dissent
contends that the SUV was obstructing traffic in the alley, thus, the officers had
reasonable suspicion that a traffic law was being violated. See Dissent, ¶36;
State v. Colstad, 2003 WI App 25, ¶9, 260 Wis. 2d 406, 659 N.W.2d 394 (holding
that an investigative stop was justified by reasonable suspicion that the defendant

8
No. 2021AP311-CR

had violated a traffic ordinance). The Dissent, however, does not specify what
traffic law or ordinance was allegedly being violated.6

¶22 Moreover, based on our review of the testimony and the body
camera video, we conclude that the circuit court’s finding that the SUV
“obstructed traffic” was clearly erroneous. See Meddaugh, 401 Wis. 2d 134, ¶12.
The video reflects that the SUV was not in fact parked in the middle of the alley,
but rather off to the side with the driver behind the wheel and available to move
the SUV. Additionally, on cross-examination, Officer Rivera conceded that he
was able to maneuver his squad car around the parked SUV and that he took no
measurements of the alley to determine whether the SUV would have in fact
obstructed traffic.

¶23 Therefore, under the totality of the circumstances, we conclude that
the police lacked reasonable suspicion to seize McBride. Accordingly, we reverse
the judgment and the circuit court’s denial of the motion to suppress. On remand,
we direct the circuit court to vacate the judgment, withdraw McBride’s plea, grant
the motion to suppress, and determine the effect of suppression on each of the
charges in the case.

By the Court.—Judgment and order reversed and cause remanded
with directions.

6
The State’s brief to this court references MILWAUKEE, WIS. TRAFFIC CODE, 101-24.2,
which provides that it is “unlawful for any vehicle to be parked or left standing in a highway in
such a manner as to obstruct traffic.” We question whether this ordinance applies here. The plain
language of the ordinance addresses vehicles on a highway, not an alley. Cf. MILWAUKEE, WIS.
TRAFFIC CODE, 101-24.5(3) (discussing the removal of a vehicle from “any alley, street, highway
or public place” when there is an issue with the vehicle identification number); 101-24.7(2)(a)
(prohibiting an unregistered motor vehicle from being located upon “any alley, street, highway,
public way or thoroughfare”).

9
No. 2021AP311-CR

Not recommended for publication in the official reports.

10
No. 2021AP311-CR(D)

¶24 DUGAN, J. (dissenting). Because I conclude that: (1) the police
officers had reasonable suspicion to stop the SUV McBride was a passenger in
because the SUV was illegally parked obstructing traffic; (2) McBride was
lawfully seized during the investigative stop for the traffic violation; (3) the
officers lawfully ordered McBride to exit the SUV during the investigative stop;
(4) under the totality of the circumstances, at the time Officer Rivera opened the
car door and immediately saw the pill bottle that did not have a label and
contained green pills that Officer Rivera believed were oxycodone, the officers
had probable cause to arrest McBride for possession of a controlled substance
without a prescription; and (5) the officers’ search of McBride was incident to the
lawful arrest, I respectfully dissent.1

Officer Rivera’s Testimony at the Suppression Hearing

¶25 Officer Rivera was the only witness to testify at the hearing on
McBride’s motion to suppress the evidence that was found after the SUV he was a
passenger in was stopped. Thus, his testimony is critical in the analysis of the
issues on appeal, and I highlight it in this dissent.

1
As explained below, I disagree with the Majority’s conclusion that the police officers
did not have reasonable suspicion to seize McBride. The Majority analyzes the seizure issue
from the standpoint of whether there was reasonable suspicion that McBride was committing a
crime. My analysis focuses on the reasonable suspicion for the traffic stop, which then results, as
it does in every traffic stop, with the occupants of the SUV being lawfully seized during the
traffic stop.

1
No. 2021AP311-CR(D)

¶26 Officer Rivera, who had almost twelve years of experience as a City
of Milwaukee police officer, was assigned to the Anti-Gang Unit on October 28,
2018. His duties with the Anti-Gang Unit were to patrol high-crime areas,
respond to shots fired, respond to reports of drug dealing, and things of that nature.
At approximately 11:15 p.m. on October 28, 2018, he and his partner Officer
Kradecki, were on patrol looking for any suspicious activity in the area around
416 East Locust Street in Milwaukee.

¶27 Officer Rivera testified that that location is a high-crime area where
he had responded to many calls for service regarding shootings, shots fired, drug
dealing, and things of that nature. He testified that he personally made over two
dozen arrests regarding illegal drugs and firearm possession in that area.

¶28 Specific to this case, Officer Rivera stated that on the night in
question, he saw a SUV parked in the alley with no lights on. He stated that alleys
in Milwaukee are typically very narrow, so it caught his attention because it was
not parked off to the side—it was parked right in the alley. He testified that the
SUV was parked so that if there was a large vehicle or two-way traffic, the SUV
would interfere with traffic. In response to trial counsel’s question that “[i]n fact,
in that vehicle if it’s parked and no one is there, the solution would be just to ticket
the vehicle, correct,” Officer Rivera responded, “Yes. It would get ticketed or
towed if it’s obstructing traffic.”

¶29 Officer Rivera then testified that to him “with it being dark out, the
lights being off in the vehicle, with people inside the vehicle parked in an alley
obstructing traffic, that was not normal, especially in a high-crime area which
made him suspicious.” He stated that because he could not tell if anyone was in
the SUV, he shined his squad car spotlight at the SUV and he saw that there were

2
No. 2021AP311-CR(D)

two people in it. Once the spotlight shined on the SUV, McBride immediately
started to bend down towards his waist area and began to reach around in the
SUV. Officer Rivera further testified that based on his experience and training
and dealing with similar situations, McBride’s movements were consistent with
someone having illegal narcotics or weapons on their person. He explained that
when those people see police, they try to hide the drugs and weapons. He also
stated that in his experience, he had arrested people who had hidden controlled
substances and weapons in their waistbands.

¶30 Officer Rivera testified that when he saw McBride make those
movements, he got out of the squad car, saw that McBride was still making those
movements, and so he ordered McBride and the driver to show him their hands—
they complied. As Officer Rivera approached McBride while he was still in the
SUV, Officer Rivera asked him what he was reaching around for—why was he
reaching. Officer Rivera then opened the door, removed McBride from the SUV,
and handcuffed him for the officers’ safety because McBride’s movements made
him fear that McBride might be armed with a weapon. He then conducted a pat-
down of McBride’s person for weapons.

¶31 Officer Rivera also testified that when he opened the door, he
immediately saw an orange pill bottle, without a label, that contained green pills
located between McBride’s seat and the door—he believed the pills were
oxycodone. He testified that based on his training and experience that a pill bottle,
without a label, was indicative of McBride possessing a controlled substance
without a prescription and that when people normally carry prescription bottles,
they have a label with their name on it, and there was no label on the pill bottle in
the SUV. When the trial court asked Officer Rivera if he immediately saw that the
pill bottle contained the green pills in it, Officer Rivera responded yes.
3
No. 2021AP311-CR(D)

¶32 Officer Rivera testified that while he was patting McBride down for
weapons, he recovered an additional pill bottle from McBride’s front right pocket
that did not have a label on it that contained more pills. McBride was arrested and
subsequently charged with Possession with Intent to Deliver a Controlled
Substance—Heroin—more than Three Grams but not more than Ten Grams2 and
with Possession of Oxycodone Hydrochloride, a Controlled Substance, without a
valid prescription.

¶33 This dissent will address: (1) whether the police officers had
reasonable suspicion to stop the SUV that McBride was a passenger in; (2) was
McBride lawfully seized during the traffic stop; (3) did the officers lawfully order
McBride to exit the SUV; (4) at the time that Officer Rivera opened the car door
and saw the pill bottle with the green pills that he believed were oxycodone, did he
have probable cause to arrest McBride; and (5) was the officers’ search of
McBride a search incident to his arrest. I will address each issue in turn.

The Officers had Reasonable Suspicion to Justify the Stop

¶34 In State v. Genous, 2021 WI 50, ¶¶7-9, 397 Wis. 2d 293, 961
N.W.2d 41, our supreme court concisely set forth the law regarding investigatory
stops by police. The court stated:

An investigatory stop, also known as a Terry stop,
“usually involves only temporary questioning and thus
constitutes only a minor infringement on personal liberty.”
State v. Young, 2006 WI 98, ¶20, 294 Wis. 2d 1, 717
N.W.2d 729. It allows police officers to briefly detain
someone to “investigat[e] possible criminal behavior even
though there is no probable cause to make an arrest.”

2
As the Majority notes, at the preliminary hearing, Officer Rivera testified that he also
recovered a clear plastic bag from McBride that he believed contained heroin.

4
No. 2021AP311-CR(D)

State v. Waldner, 206 Wis. 2d 51, 55, 556 N.W.2d 681
(1996). This type of limited stop complies with the Fourth
Amendment “if the police have reasonable suspicion that a
crime has been committed, is being committed, or is about
to be committed.” Young, 294 Wis. 2d 1, ¶20.

Reasonable suspicion must be supported by specific
and articulable facts. Id., ¶21. While it is a low bar, a mere
hunch is insufficient. Id.; State v. Eason, 2001 WI 98, ¶19,
245 Wis. 2d 206, 629 N.W.2d 625. Yet “officers are not
required to rule out the possibility of innocent behavior
before initiating a brief stop.” State v. Anderson, 155
Wis. 2d 77, 84, 454 N.W.2d 763 (1990). The question is,
“What would a reasonable police officer reasonably suspect
in light of his or her training and experience?” Id. at 83-84;
United States v. Cortez, 449 U.S. 411, 418 (1981) (“[A]
trained officer draws inferences and makes deductions ...
that might well elude an untrained person.”).

A reasonable suspicion determination is based on
the totality of the circumstances. State v. Post, 2007 WI
60, ¶18, 301 Wis. 2d 1, 733 N.W.2d 634. We focus not on
isolated, independent facts, but on “the whole picture”
viewed together. Cortez, 449 U.S. at 417-18; see also
United States v. Sokolow, 490 U.S. 1, 9-10 (1989)
(“Indeed, Terry itself involved a series of acts, each of
them perhaps innocent if viewed separately, but which
taken together warranted further investigation.” (internal
quotation marks omitted)).

Genous, 397 Wis. 2d 293, ¶¶7-9 (alterations in original; some citations omitted).

The court then explained that when addressing a motion to suppress involving a
stop the court’s “task is to consider everything observed by and known to the
officer, and then determine whether a reasonable officer in that situation would
reasonably suspect that criminal activity was afoot.”3 Id., ¶10. “Whether
reasonable suspicion was present is a legal question we analyze independently, but

3
I note that in Genous, the officer stopped Genous’s vehicle based on a suspicion that he
observed Genous engage in a drug transaction—not for a traffic violation. See State v. Genous,
2021 WI 50, ¶1, 397 Wis. 2d 293, 961 N.W.2d 41.

5
No. 2021AP311-CR(D)

we accept the circuit court’s findings of historical fact unless they are clearly
erroneous.” Id.

¶35 While on patrol, Officer Rivera turned into the alley at 11:15 p.m.,
and as he driving through the alley, he saw a SUV parked in the alley such that it
was obstructing traffic. McBride argues that Officer Rivera’s testimony did not
establish that the SUV in fact blocked traffic. However, Officer Rivera testified
that “[a]lleys typical in Milwaukee are very narrow, so it caught my attention
because it wasn’t parked off to the side, it was parked right in the alley.” He also
testified that a large vehicle or two-way traffic would be obstructed. When trial
counsel asked Officer Rivera whether the SUV would get ticketed if no one was
there, he responded, “Yes. It would get ticketed and towed if it is obstructing
traffic.”

¶36 Moreover, in this case the trial court made specific findings that the
SUV was obstructing traffic. It stated in numerous parts of its oral decision that
“the car is parked in the alley, not off to the side,” “an unilluminated vehicle
parked in the middle of the alley is suspicious,” “so you have the improperly
parked vehicle,” “vehicle parked in the middle of the alley, obstructing traffic in
the alley,” and “discovery by Officer Rivera of a vehicle parked in the middle of
the alley and having no lights on is suspicious.” As noted, “we accept the circuit

6
No. 2021AP311-CR(D)

court’s findings of historical fact unless they are clearly erroneous.” Genous, 397
Wis. 2d 293, ¶10.4

¶37 I conclude that based on the facts in the record and the circuit court’s
findings of fact that the SUV was obstructing traffic in the alley, the officers had
reasonable suspicion that a traffic law was being violated, which justified a traffic
stop. An officer may conduct an investigatory stop of a vehicle based on a
noncriminal traffic violation. State v. Colstad, 2003 WI App 25, ¶¶8-9, 260
Wis. 2d 406, 659 N.W.2d 394 (noting that when there is reasonable suspicion to
believe a person is violating a law or a traffic ordinance, a police officer may,
consistent with the Fourth Amendment’s protection against unreasonable seizures,
detain the person for an investigative stop). In State v. Neal, No. 2017AP1397-
CR, unpublished slip op. (WI App Apr. 3, 2018),5 officers saw a vehicle parked in
an alley blocking traffic. The officers activated their squad lights, approached the
vehicle, and asked the occupants to exit the vehicle. Id., ¶2. This court concluded
that the vehicle was “parked towards the middle of the alley, blocking traffic in at
least one direction.” Id., ¶11. Accordingly, this court concluded that the stop was
reasonable. Id.

4
The Majority notes that the circuit court stated that there was an “inference” that the
SUV was “partially blocking the alley.” It goes on to say that on cross-examination, Officer
Rivera conceded that he was able to maneuver his car around the parked SUV and that he took no
measurements “to indicate whether the SUV in fact obstructed traffic.” Majority, ¶19. First,
although the circuit court did note the inference that the SUV was partially blocking the alley, in
that same sentence it went on to say, “[T]here was later testimony that the vehicle could have
been towed or ticketed ….” By contrast, as noted above, the circuit court found that the SUV was
illegally parked, was parked in the middle of the alley, and was obstructing traffic. We must
accept the circuit court’s findings of historical fact unless they are clearly erroneous. Genous,
397 Wis. 2d 293, ¶10.
5
This is an unpublished opinion. Pursuant to Rules of Appellate Procedure, WIS. STAT.
RULE 809.23(3)(b), unpublished opinions issued on or after July 1, 2009, may be cited for
persuasive value.

7
No. 2021AP311-CR(D)

¶38 Applying our supreme court’s holding in Genous, I am persuaded by
the reasoning of this court in the Neal decision and conclude that the officers
reasonably stopped the SUV in which McBride was a passenger.

Seizure and Removal from the SUV

¶39 I next address the issue of whether the police officers had reasonable
suspicion to detain—seize—McBride and remove him from the SUV. I conclude
because the police officers had reasonable suspicion that the parked SUV was
violating a traffic ordinance that they could conduct an investigative stop of the
SUV based on that noncriminal violation, that they could also detain the occupants
of the SUV for the duration of the investigative stop, and that they could order
McBride and the driver to exit the SUV without violating the Fourth
Amendment’s prohibition against unreasonable seizures.

¶40 In Arizona v. Johnson, 555 U.S. 323, 327 (2009), the U.S. Supreme
Court explained that “[f]or the duration of a traffic stop, we recently confirmed, a
police officer effectively seizes ‘everyone in the vehicle,’ the driver and all
passengers. Brendlin v. California, [551 U.S. 249, 255] (2007).” Thus, the Court
stated that “we hold that, in a traffic-stop setting, the first Terry condition—a
lawful investigatory stop—is met whenever it is lawful for police to detain an
automobile and its occupants pending inquiry into a vehicular violation. The
police need not have, in addition, cause to believe any occupant of the vehicle is
involved in criminal activity.” Johnson, 555 U.S. at 327 (emphasis added).

¶41 As noted above, in Neal, No. 2017AP1397-CR, this court was faced
with facts similar to the facts in this case. Namely, officers saw a vehicle parked
in an alley blocking traffic. In Neal, the officers activated their squad lights,
approached the vehicle, and asked the occupants to exit the vehicle. Id., ¶2. This
8
No. 2021AP311-CR(D)

court concluded that the vehicle was obstructing traffic, and therefore, the stop
was reasonable. Id., ¶11. It also cited Colstad for the proposition that when there
is a reasonable suspicion to believe a person is violating a law or a traffic
ordinance, a police officer may, consistent with the Fourth Amendment’s
protection against unreasonable seizures, detain the person for an investigative
stop. Id.

¶42 Thus, I conclude that because the SUV was obstructing traffic, the
officers engaged in a lawful investigatory stop, and therefore, the officers could
detain—seize—McBride and the driver for the investigative stop. See Johnson,
555 U.S. at 327.

¶43 The next issue I address is whether the officers could lawfully order
McBride and the driver to exit the SUV. The U.S. Supreme Court decisions in
Arizona v. Johnson, Pennsylvania v Mimms,6 and Maryland v. Wilson,7 hold that
once a vehicle has been lawfully detained for a traffic violation, the police officers
may order the driver and any passengers to exit the vehicle without violating the
Fourth Amendment’s prescriptions of unreasonable searches and seizures.

¶44 McBride argues that Mimms and Wilson do not apply in this case
because those cases involved roadside stops whereas here the SUV was parked in
an alley. He then argues that the Court’s concern in those cases “was the hazards
and danger to police investigating a traffic violation on a roadway.” He asserts
that in contrast here, the police encounter with McBride did not occur during a

6
Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam).
7
Maryland v. Wilson, 519 U.S. 408 (1997).

9
No. 2021AP311-CR(D)

roadside stop, but rather, when an officer shined a spotlight into a parked SUV in
an alley. Without citing any authority, he then argues that his removal from the
SUV exceeded the Terry stop. In his reply brief, again without citing any
authority, McBride merely asserts that “[t]his court should reject the State’s bold
invitation to extend the per se rule applicable to traffic stops in Mimms and
Wilson to non-moving encounters.” Also, without citing any authority, McBride
argues that this court should narrowly interpret Mimms and Wilson, as applying
only to roadside stops.

¶45 However, in Johnson, the U.S. Supreme Court stated that “the Court
has recognized that traffic stops are ‘especially fraught with danger to police
officers.’ ‘The risk of harm to both the police and the occupants [of a stopped
vehicle] is minimized,’ we have stressed, ‘if the officers routinely exercise
unquestioned command of the situation.’” Johnson, 555 U.S. at 330 (alteration in
original; citations omitted).

¶46 The Court then stated that its decisions in Mimms, Wilson, and
Brendlin cumulatively portray Terry’s application in a traffic-stop setting. It
explained that in Mimms, “the Court held that ‘once a motor vehicle has been
lawfully detained for a traffic violation, the police officers may order the driver to
get out of the vehicle without violating the Fourth Amendment’s proscription of
unreasonable searches and seizures’” and that “[t]he government’s ‘legitimate and
weighty’ interest in officer safety, the Court said, outweighs the ‘de minimis’
additional intrusion of requiring a driver, already lawfully stopped, to exit the
vehicle.” Johnson, 555 U.S. at 331 (citations omitted).

¶47 The Court then stated that in Wilson, the Court held that “the
Mimms rule applied to passengers as well as to drivers,” that “[s]pecifically, the

10
No. 2021AP311-CR(D)

Court instructed that ‘an officer making a traffic stop may order passengers to get
out of the car pending completion of the stop,” and that it observed that “[t]he
same weighty interest in officer safety … is present regardless of whether the
occupant of the stopped car is the driver or passenger.” Johnson, 555 U.S. at 331
(citations omitted). The Court then stated that the Wilson Court “emphasized, the
risk of a violent encounter in a traffic-stop setting ‘stems not from the ordinary
reaction of a motorist stopped for a speeding violation, but from the fact that
evidence of a more serious crime might be uncovered during the stop.’” Johnson,
555 U.S. at 331 (citation omitted). Finally, the Court stated that “[t]he motivation
of a passenger to employ violence to prevent apprehension of such a crime … is
every bit as great as that of the driver.” Id. at 331-32 (citation omitted).8

¶48 Based on the holdings in those decisions, I conclude that because the
police officers had reasonable suspicion that the parked SUV was violating a
traffic ordinance, they could conduct an investigative stop of the SUV based on
that noncriminal violation. They could also seize the occupants of the SUV during
the investigative stop and could order McBride and the driver to exit the SUV
without violating the Fourth Amendment’s prohibition against unreasonable
seizures. Moreover, when officers engage in a lawful traffic stop of a vehicle,
they need not have cause to believe that any occupant of the vehicle is involved in

8
The Johnson Court also stated, “Completing the picture, Brendlin held that a
passenger is seized, just as the driver is, ‘from the moment [a car stopped by the police comes] to
a halt on the side of the road.’” Arizona v. Johnson, 555 U.S. 323, 332 (2009) (citation omitted).

11
No. 2021AP311-CR(D)

criminal activity to engage in an investigation of the traffic violation and to order
the occupants to exit the vehicle. See Johnson, 555 U.S. at 331.9

Probable Cause to Arrest and Search Incident to Arrest

¶49 The next issue that I address is whether the officers had probable
cause to arrest McBride and search his person at the time when Officer Rivera
opened the car door and immediately observed the orange pill bottle, without a
label on it and with green pills in it, which he believed were oxycodone. I
conclude that he did based on the totality of the circumstances.

¶50 In order to be lawful, an arrest must be based on probable cause.
State v. Secrist, 224 Wis. 2d 201, 212, 589 N.W.2d 387 (1999). Probable cause to
arrest is the sum of evidence “within the arresting officer’s knowledge at the time
of the arrest which would lead a reasonable police officer to believe that the
defendant probably committed or was committing a crime.” Id. While the

9
I note that McBride asserts that his seizure was not a “de minimis” additional intrusion
occurring during a roadside traffic stop. He argues that to the contrary, rather than a traffic stop,
his seizure was the whole point of the encounter. It appears that McBride is arguing that the
traffic stop was a pretext and that Officer Rivera actually believed that the occupants of the SUV
may be engaged in some other illegal behavior. He seems to be arguing that where a police
officer subjectively believes that the occupants of an automobile may be engaging in some other
illegal behavior the traffic stop is unlawful. First, his cites no authority for such an argument, and
second, he is wrong.

In Whren v. United States, 517 U.S. 806, 813 (1996), stated that “[i]n United States v.
Robinson, [414 U.S. 218] (1973), we held that a traffic-violation arrest (of the sort here) would
not be rendered invalid by the fact that it was ‘a mere pretext for a narcotics search ….’”
Referring to other cases cited in the decision, the Court stated that “[w]e think these cases
foreclose any argument that the constitutional reasonableness of traffic stops depends on the
actual motivations of the individual officers involved.” Id. In other words, regardless of whether
a police officer subjectively believes that the occupants of an automobile may be engaging in
some other illegal behavior, a traffic stop is permissible as long as a reasonable officer in the
same circumstances could have stopped the car for the suspected traffic violation.

12
No. 2021AP311-CR(D)

information must be sufficient to lead a reasonable officer to believe that the
defendant’s involvement in a crime is “more that a possibility,” it “need not reach
the level of proof beyond a reasonable doubt or even that guilt is more likely than
not.” Id. “The question of probable cause must be assessed on a case-by-case
basis, looking at the totality of the circumstances. Probable cause is a ‘flexible,
common-sense measure of the plausibility of particular conclusions about human
behavior.’” State v. Lange, 2009 WI 49, ¶20, 317 Wis. 2d 383, 766 N.W.2d 551
(citation and footnote omitted). “In determining whether there is probable cause,
the court applies an objective standard, considering the information available to
the officer and the officer’s training and experience.” Id. “When a police officer
is confronted with two reasonable competing inferences, one justifying arrest and
the other not, the officer is entitled to rely on the reasonable inference justifying
arrest.” State v. Kutz, 2003 WI App 205, ¶12, 267 Wis. 2d 531, 671 N.W.2d 660.

¶51 McBride asserts that Officer Rivera lacked probable cause to arrest
him for the unlawful possession of a prescription drug “based simply upon the
unlabeled pill bottle in the vehicle.” However, as noted above, the question of
probable cause must be assessed on a case-by-case basis, looking at the totality of
the circumstances, not just one fact.

¶52 In this case, Officer Rivera—who had almost twelve years of
experience as a City of Milwaukee police officer—and his partner were patrolling
in a high-crime area. He had been patrolling that area for approximately five
years. He testified that he had responded to many calls for service in the area
regarding shootings, shots fired, drug dealing, and things of that nature. He
personally made over two dozen arrests regarding illegal drugs and firearm
possession in that area.

13
No. 2021AP311-CR(D)

¶53 At approximately 11:15 p.m. on the night in question, Officer Rivera
and his partner were patrolling in an alley looking for suspicious activity. While
patrolling in the alley, he saw a SUV parked in the alley with no lights on. He
testified that alleys in Milwaukee are typically very narrow, so the SUV caught his
attention because it was not parked off to the side—it was parked right in the alley.
As noted above, the circuit court found that the SUV was illegally parked, was
parked in the middle of the alley, and was obstructing traffic. We must accept the
circuit court’s findings of historical fact unless they are clearly erroneous.
Genous, 397 Wis. 2d 293, ¶10. Officer Rivera further testified that to him “with it
being dark out, the lights being off in the SUV, with people inside the SUV parked
in an alley obstructing traffic, that was not normal, especially in a high-crime area
which made him suspicious.”

¶54 Officer Rivera explained that because it was dark out and the SUV
did not have any lights on he could not tell if anyone was inside the SUV, and
therefore, he shined his squad car spotlight at the SUV. When he shined the
spotlight on the SUV, he could see that there were two people in the car, and he
could see that McBride immediately started to bend down towards his waist area
and began to reach around in the SUV. Officer McBride testified that based upon
his experience and training in dealing with similar situations, McBride’s
movements were consistent with someone having illegal narcotics or weapons on
their person. He also stated that in his experience he had arrested people who had
hidden controlled substances and weapons in their waistbands. In determining
whether probable cause exists, this “court is to consider the information available
to the officer from the standpoint of one versed in law enforcement, taking the
officer’s training and experience into account.” Kutz, 267 Wis. 2d 531, ¶12. “[A]
trained officer draws inferences and makes deductions ... that might well elude an

14
No. 2021AP311-CR(D)

untrained person.” Genous, 397 Wis. 2d 293, ¶8 (alteration in original; citation
omitted).

¶55 As Officer Rivera got out of the squad car, he saw that McBride was
still making those furtive movements, so he ordered McBride and the driver to
show him their hands. As he approached the SUV, Officer Rivera was asking
McBride what he was reaching for—why he was reaching. When he reached the
passenger door, Officer Rivera opened the door. When he opened the door, he
immediately saw an orange pill bottle, without a label on it and that contained
several green pills, between McBride’s seat and the passenger door. Based on his
training and experience, Officer Rivera believed the pills were oxycodone, that a
pill bottle without a label was indicative that McBride was possessing a controlled
substance without a prescription, and that when people normally carry prescription
bottles, they have a label with their name on it, and that there was no label on the
pill bottle in the SUV. When the trial court asked Officer Rivera if he
immediately saw that the pill bottle contained green pills, Officer Rivera
responded yes.

¶56 Here, the facts involve much more than a pill bottle, without a label,
with green pills in it. Based upon the following facts discussed above, I conclude
that probable cause existed for Officer Rivera to arrest McBride for possession of
a controlled substance without a prescription at the time he opened the car door
and saw the orange pill bottle, without a label and with green pills in it that he
believed were oxycodone: (1) the stop occurred late at night; (2) in a high-crime
area involving drug trafficking; (3) the SUV was parked in a dark alley obstructing
traffic; (4) there were two people sitting in the car with the lights out; (5) when

15
No. 2021AP311-CR(D)

Officer Rivera shined the squad spotlight on the SUV, McBride immediately
began to make the furtive movements described above;10 (6) when Officer Rivera
opened the car door, he immediately saw the pill bottle on the floor of the SUV
and it did not have a label on it; (7) the fact that the pill bottle was located on the
floor of the SUV between the passenger seat and the passenger door was
consistent with McBride’s furtive movements leaning down toward his waist and
consistent with someone hiding contraband;11 (8) the circuit court’s finding that
there is “a fair inference that people don’t drive around in their cars with pill
bottles on the floor board or in between the door and the passenger seat, that there
was actually something that was related to the furtive movement”; (9) that
McBride continued to make the furtive movements as Officer McBride was
getting out of the squad car; and (10) the pill bottle had green pills in it, that based
on his training and experience Officer Rivera believed were oxycodone.

¶57 While the information must be sufficient to lead a reasonable officer
to believe that the defendant’s involvement in a crime is “more than a possibility,”
it “need not reach the level of proof beyond a reasonable doubt or even that guilt is
10
In its decision, the Majority discusses McBride’s movements. It notes that according
to Officer Rivera, McBride immediately started to reach down towards his waist area and begin to
reach around in the SUV. It then notes the Officer Rivera admitted, however, that neither his
body cam nor his partner’s body cam captured any movement from McBride. It then notes that
Officer Rivera explained that this was because the body cam was at a fixed angle. Majority, ¶2.
Later, the Majority states that Officer Rivera admitted that neither his body cam, nor his partner’s
captured any movement from McBride. It then states that they did not discern any movement
based on its review of the body camera recording. To the extent that the Majority is questioning
the credibility of Officer Rivera’s testimony that he saw McBride make those movements, the
circuit court made extensive findings about why it found Officer Rivera credible about the
movements. We must accept the circuit court’s findings of historical fact unless they are clearly
erroneous. Genous, 397 Wis. 2d 293, ¶10.
11
The circuit stated that “specifically that the bending down at the waist and putting
one[’s] hands in the waistband and the moving around was consistent with the hiding or
retrieving of a weapon and … of a contraband.”

16
No. 2021AP311-CR(D)

more likely than not.” Secrist, 224 Wis. 2d at 212. “The question of probable
cause must be assessed on a case-by-case basis, looking at the totality of the
circumstances. Probable cause is a ‘flexible, common-sense measure of the
plausibility of particular conclusions about human behavior.’” Lange, 317
Wis. 2d 383, ¶20 (citation and footnote omitted). “In determining whether there is
probable cause, the court applies an objective standard, considering the
information available to the officer and the officer’s training and experience.” Id.
“When a police officer is confronted with two reasonable competing inferences,
one justifying arrest and the other not, the officer is entitled to rely on the
reasonable inference justifying arrest.” Kutz, 267 Wis. 2d 531, ¶12.

¶58 Thus, I conclude that probable cause existed to arrest McBride
before Officer Rivera searched him.

Search Incident to the Lawful Arrest

¶59 The last issue that I address is whether Officer Rivera’s search of
McBride was incident to his arrest. The State notes that the record is unclear when
the arrest occurred, though it states that it appears that it occurred after Officer
Rivera searched McBride. Therefore, the State assumes that the arrest happened
after the search. I will do the same.

¶60 The State argues that the fact that the arrest occurred after the search
is not dispositive as to whether a search is one incident to a lawful arrest. In
Rawlings v. Kentucky, 448 U.S. 98, 111 (1980), the Court held that “[w]here the
formal arrest followed quickly on the heels of the challenged search …, we do not
believe it particularly important that the search preceded the arrest rather than vice
versa.” In State v. Sykes, 2005 WI 48, ¶15, 279 Wis. 2d 742, 695 N.W.2d 277
(alteration in original; citation omitted), our supreme court held that “[a] search
17
No. 2021AP311-CR(D)

may be incident to a subsequent arrest if the officers have probable cause to arrest
before the search.” “Accordingly, when a suspect is arrested subsequent to a
search, the legality of the search is established by the officer’s possession, before
the search, of facts sufficient to establish probable cause to arrest followed by a
contemporaneous arrest.” Id., ¶16.

¶61 McBride acknowledges that a search incident to arrest is a lawful
exception to the warrant requirement. Further, he does not argue that an arrest
subsequent to a search is unlawful even if the officers had probable cause to arrest
before the search. What he argues is that there was no probable cause to arrest
him for possession of a prescription drug based simply on the unlabeled pill bottle
in the SUV, and therefore, Officer Rivera lacked authority to search McBride
incident to an arrest.

¶62 Because I concluded above that the unlabeled pill bottle was not the
only factual basis supporting probable cause, I reject McBride’s argument. Thus, I
conclude that the search of McBride was incident to his lawful arrest, and
therefore, the drugs found on him were lawfully recovered.

Conclusion

¶63 Based on the totality of the circumstances, I conclude that: (1) the
police officers had reasonable suspicion to stop the SUV McBride was a passenger
in because the SUV was illegally parked obstructing traffic; (2) McBride was
lawfully seized during the investigative stop for the traffic violation; (3) the
officers lawfully ordered McBride to exit the SUV during the investigative stop;
(4) under the totality of the circumstances, at the time Officer Rivera opened the
car door and immediately saw the pill bottle that did not have a label on it and
contained green pills that Officer Rivera believed were oxycodone, the officers
18
No. 2021AP311-CR(D)

had probable cause to arrest McBride for possession of a controlled substance
without a prescription; and (5) and the officers’ search of McBride was incident to
the lawful arrest.

¶64 Thus I would affirm, and I respectfully dissent.

19