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State v. Weddle3/14/2000
startled and his eyes were wide. He had a surprised look on his face. Wirt testified that he did not regard Defendant's reaction as unusual, but rather it was a normal reaction. At this time, Wirt had no articulable facts that led him to believe Defendant was intoxicated or had committed a crime. Yet, to ensure Defendant was not intoxicated, Wirt motioned him out of the van.
When Defendant exited the van, Wirt smelled no alcohol and realized Defendant was not intoxicated. Wirt explained why he was questioning Defendant, who said he did not drink and was fine. Wirt did notice that Defendant seemed extremely nervous and was rubbing his head and body and bouncing around. At this time, Wirt did not think this was unusual. Defendant was polite to Wirt and non-threatening. Wirt did not pat Defendant down for any weapons and testified that he was not in fear for his personal safety. After talking with Defendant, Wirt concluded he was not intoxicated. Wirt testified that at this time he finished his investigation about a possible intoxicated driver. At this point, Wirt's reasons for approaching and detaining Defendant were complete.
Even so, Wirt continued to detain Defendant and asked him for his driver's license. Defendant became increasingly nervous. Wirt testified that Defendant asked "numerous" times to get a cigarette from the van, and each time Wirt denied his request. Wirt ran a warrant check on Defendant. While Wirt was running the warrant check, he observed Defendant was acting extremely nervous and upset, rubbing his head and fidgeting. Defendant asked if he could get a coat because he was cold, but Wirt refused his request. However, Wirt admitted that it was cold and Defendant had reason to ask for a coat. The temperature was between 28 and 30 degrees.
The warrant check came back negative. At this time, acting on a "hunch" that something was wrong, Wirt asked Defendant if he had anything illegal in his van and Defendant replied in the negative. Wirt then asked him if he had any weapons and Defendant replied in the negative. Wirt asked him if he could search the interior of the van and its contents. According to Wirt, Defendant said, "sure, sure, sure, search anything in there. Go ahead. Go ahead." At this time, Wirt patted Defendant down and found nothing. He then handcuffed Defendant and secured him in his patrol car.
Wirt then searched the van. He began his search of the van on the driver's side. He noticed that in between the driver's seat and passenger seat there was a brown bathroom-size wastebasket. Sticking out of the wastebasket was a 7-inch hunting knife in its sheath. The knife was standing on end, leaning against the side of the wastebasket. The wastebasket also contained a cigar box that contained 72 empty clear plastic baggies. He also found a briefcase on the floorboard behind the passenger seat. The briefcase was unlocked and slightly open. Inside, he found a box of CCI .25 automatic pistol ammunition, a gray metal box, an adult magazine, a nylon pouch with assorted folding pocketknives, and a small caliber pistol. He used a key found inside the briefcase to open the gray metal box. Inside the gray metal box, he found a small baggie of marijuana, two cellophane bags with a white powdery residue, a plastic scale with white powder residue, three glass vials with white powder residue, a black vinyl pouch with 16 empty glass vials in it, a gold tear-drop container with white powder residue and assorted knives and razor blades. Wirt seized all of the evidence and arrested Defendant. Laboratory tests showed the white powder residue amounted to .12 grams of methamphetamine, less than one hit and not marketable on the street.
Prior to trial, Def
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