Police were in an area based on apparent burglaries. They noticed my friend who looks young with a backpack. Police believing he was truant stopped him while walking. He provided identification which showed he was 19 yrs. of age. While running his name one officer claimed he was acting nervous with his head down twitching his fingers. The officer asked if he had anything on his person, my friend responded "why do you ask" Based on this, the Officer searched him and found two handguns. He was charged with 2 cts. of poss. of firearm by a felon. I am familiar with a TERRY stop but i believe there is a case right on point in this state: State v Kyles, 2004 WI. 15. Lawyer did file motion but i found this case.
A judge will decide if you are correct after considering the totality of the circumstances. It does not appear of the facts you provided that it is a slam dunk for your friend.
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Your friend has a plausible basis for a motion to suppress based on illegal search, which might also include a claim of unlawful detention. This would be based on the 4th Amendment to the US Constitution, and probably a similar provision in the state constitution. If the evidence is suppressed, then he will not be convicted. I would argue that once he provided the ID, the officer had no further basis to detain him. I might also argue that the original stop was improper. If the case for suppression is good enough, it might lead to the prosecutor making a favorable plea bargain offer, which the defendant could accept or reject in his discretion. In that situation, the defendant might take the deal, to trade the right to complain about a possibly illegal search, a claim that might win or lose, in order to guarantee a low level of punishment. Other defendants might choose to go forward with asserting their rights against the illegal search. Good representation familiar with local conditions might make the difference between winning and losing, and spending money on an attorney for this will likely be a good investment.
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Civil Rights Attorney
It is all too common for law enforcement to invent reasons to justify what may otherwise be an unconstitutional search in violation of the 4th Amendment. A motion to suppress based on the alleged illegal search is the proper action to have the tainted evidence excluded. But you may be amazed to hear the officer's testimony in an effort to establish some probable cause or other justfication for what may be an illegal search. Whether the motion to suppress is granted will be based on the facts, the law and the philosophy of the judge.
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