APPEALS COURT OVERTURNS MAN'S DRUG CONVICTION

Police Search Called Inappropriate; West Bend Resident Was Found Guilty Of
Possessing Marijuana, Sentenced To Jail

West Bend - The conviction of a West Bend man, found guilty of marijuana
possession after a traffic stop, has been overturned because police
conducted an inappropriate search, the state Court of Appeals has ruled.

Jeff S. Mohr, 23, was a passenger in a car stopped for erratic driving Jan.
31, 1999. Sometime after the traffic stop, Mohr was frisked and found to
have a bag of marijuana in a pocket.

Mohr was arrested and charged with felony possession as a repeat offender.
He later pleaded guilty as part of a plea agreement and was ordered to serve
45 days in jail.

That jail time was put on hold after Mohr appealed the conviction,
contending that the search was invalid and that Washington County Circuit
Judge Richard Becker should have suppressed the search.

The appeals court agreed in a decision released last week.

The decision reviewed the particulars of the case, including that the driver
was not found to be intoxicated, that the driver consented to a search of
the vehicle and that one passenger was an underage drinker.

At one point, the officer wanted Mohr to wait in a squad car, but he refused
and said he wanted to leave. The officer said he should wait for his
identity to be confirmed, but Mohr put his hands in his pockets and did not
want to take them out.

Two officers then took Mohr's hands from his pockets, cuffing them behind
his back before frisking him.

"Having reviewed all of the facts and circumstances set forth in the record,
we conclude that the frisk was unreasonable because the officer could not
have objectively thought that Mohr was dangerous," the court wrote in its
decision.

"The officer testified that the frisk was done for his safety and because
Mohr refused to take his hands out of his pockets, but when this evidence is
considered along with the fact that the frisk occurred approximately 25
minutes after the initial traffic stop, the most natural conclusion is that
the frisk was a general precautionary measure, not based on the conduct or
attributes of Mohr."

The state public defender involved in the case applauded the decision.

"I think the Court of Appeals made the right decision," attorney Paul Czisny
said. "There was simply no basis to detain him. If there was a reasonable
basis for an officer's concern that there was a weapon, there would have
been a reason to frisk him. It has to be a reasonable belief - and it's a
fairly low threshold - but there has to be a reasonable basis."

District Attorney Todd Martens said the appeals court decision is not likely
to have any far-reaching implications, because it was a "fact specific" case
and the ruling did not set a precedent.

"If the officer had gotten everybody out (of the car) and frisked them right
away, that probably would have been OK," Martens said. "The court felt that
a reasonable police officer would not have felt he was in danger. . . . I
don't agree with it, but I don't think it sets any dangerous precedent."

Before the case was resolved, Mohr was again charged with possession of
marijuana. He pleaded no contest to a misdemeanor and was sentenced to four
months in jail.