State v. Deangelo D. Tubbs

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.
October 1, 2019
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. 2019AP644-CR Cir. Ct. No. 2017CM2025

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DEANGELO D. TUBBS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: DAVID L. BOROWSKI, Judge. Affirmed.

¶1 DUGAN., J.1 Deangelo D. Tubbs appeals the judgment of
conviction, following a guilty plea, for one misdemeanor count of possessing

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP644-CR

tetrahydrocannabinol. Tubbs argues that the trial court erred in denying his
motion to suppress evidence seized during a warrantless search of his vehicle.2

¶2 We disagree and, therefore, affirm.

BACKGROUND

¶3 On June 27, 2017, the State filed a criminal complaint against
Tubbs, charging him with one misdemeanor count of possessing
tetrahydrocannabinols. The charge arose out of a June 15, 2017 search of Tubbs’
vehicle.

¶4 Tubbs filed a motion to suppress physical evidence seized during the
June 15, 2017 search of his vehicle. Tubbs argued that the police lacked probable
cause to conduct a warrantless search of the vehicle. He also asserted the police
had stopped the vehicle without a legally valid reason.

¶5 The trial court presided over an evidentiary hearing, where police
officer Evan Domine of the City of Milwaukee Police Department testified.
Domine testified that, on June 15, 2017, at approximately 8:30 p.m., he and five
other officers assigned to the proactive bicycle unit were patrolling the City of
Milwaukee Police Department’s Seventh District in an area of reoccurring drug
use complaints. Officer Salaam directed Domine to conduct an investigative stop
of a parked vehicle on 34th Street that did not have a license plate on its front

2
The Honorable Thomas McAdams initially presided over the case, including the
suppression hearing and denied the motion. Thereafter, the Honorable David L. Borowski
presided over the plea and sentencing hearing and issued the judgment of conviction. We refer to
the judges collectively as the trial court.

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No. 2019AP644-CR

bumper area as is required by Wisconsin law.3 The parked vehicle was a black
Pontiac with its engine running.

¶6 Domine remained on his bicycle and approached the front driver’s
side door of the vehicle. Through the closed driver’s side window, Domine
observed the vehicle’s sole occupant, later identified as Tubbs, sitting in the
driver’s seat with a firearm concealed below the window line. Then, based on
concerns for the safety of himself and others, Domine immediately opened the
driver’s side door and told Tubbs to put his hands up. Tubbs told Domine that he
had a permit to carry a concealed weapon. Domine later verified that Tubbs had
the permit.

¶7 As he opened the door, Domine instantaneously recognized the
distinctive, “pungent” smell of fresh marijuana. Domine knew the smell of fresh
marijuana from over 500 contacts with marijuana during his training and
employment as a police officer. He also saw a digital scale on the driver’s side
floorboard. He did not see any drug residue on the scale.

¶8 Because Domine had smelled fresh marijuana and also had seen the
scale, he lifted the firearm from Tubbs’ lap and told Tubbs to get out of the vehicle
with his hands raised. At that time Domine believed that, because he smelled
fresh marijuana, he had probable cause to search the entire vehicle.

¶9 Domine searched the vehicle, including the center console, which
had been closed. Inside the console, Domine found a closed glass canning jar
containing two small clear plastic bags of suspected marijuana. Subsequent

3
Officer Saalam’s given name is not part of the record before us.

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No. 2019AP644-CR

testing of the suspect substance was positive for the presence of
tetrahydrocannabinol, the active ingredient of marijuana.

¶10 During the evidentiary hearing, trial counsel presented the officer
with a similar closed canning jar, did not tell the officer its contents, and asked the
officer whether he could smell any odor. The officer did not smell any odor. Trial
counsel then uncovered the jar and again asked the officer if he smelled any odor,
the officer did not. Trial counsel then stated that the jar contained a lavender
vanilla scented cleaner.

¶11 Subsequently, the parties presented oral arguments on the motion.
Thereafter, the trial court issued an oral decision holding that, because the officer
saw Tubbs in the car with a gun on his lap, the officer had reasonable suspicion for
the stop during which he ordered Tubbs to get out of the vehicle and put his hands
up. The trial court also held that, because the officer had discovered a digital scale
on the vehicle floorboard and smelled fresh marijuana, he had probable cause to
search the immediate area for contraband.

¶12 Tubbs subsequently entered into a plea agreement with the State.
After conducting a colloquy with Tubbs, the trial court accepted his guilty plea to
the misdemeanor marijuana charge. At sentencing, the trial court imposed a $500
fine on Tubbs. Judgment was entered on September 24, 2018.

¶13 This appeal follows.

DISCUSSION

¶14 On appeal, Tubbs argues that the trial court erred in finding that the
officer had probable cause to search his vehicle. Tubbs also argues that the officer
lacked reasonable suspicion for a protective search of the vehicle for weapons.

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No. 2019AP644-CR

I. Applicable law

¶15 Our review of an order addressing a motion to suppress presents a
mixed question of fact and law. See State v. Casarez, 2008 WI App 166, ¶9, 314
Wis. 2d 661, 762 N.W.2d 385. We will not disturb the trial court’s credibility
determination. See Fidelity & Deposit Co. v. First Nat’l Bank, 98 Wis. 2d 474,
485, 297 N.W.2d 46 (Ct. App. 1980) (stating that “[w]here the trial court is the
finder of fact and there is conflicting evidence, the trial court is the ultimate arbiter
of the credibility of witnesses”). We uphold the trial court’s findings of historical
fact unless they are clearly erroneous, but the application of the law to those facts
presents a question of law that we consider de novo. See Casarez, 314 Wis. 2d
661, ¶9.

¶16 “[T]he warrantless search of an automobile is justified when a police
officer has probable cause to believe that an automobile, found in a public place,
contains evidence of a crime. No showing of exigent circumstances is required.”
State v. Secrist, 224 Wis. 2d 201, 210, 589 N.W.2d 387 (1999). “The
unmistakable odor of marijuana coming from an automobile provides probable
cause for an officer to believe that the automobile contains evidence of a crime.”
See id.

II. The trial court properly concluded that probable
cause existed

¶17 Tubbs argues that probable cause did not exist for the search of his
vehicle. Although conceding that Secrist establishes that the odor of marijuana is
sufficient to provide probable cause to search the passenger compartment of a
vehicle, Tubbs argues that the trial “court made a credibility finding when it stated
that the smell of evidence was impeached by the demonstrative exhibit,” the

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No. 2019AP644-CR

canning jar with the scented cleaner. Tubbs quotes the following statement as
being a credibility determination by the trial court: “the discovery of the digital
scale on the floor and the smell of marijuana, although less on the latter, allowed
the officer to search the immediate area for contraband or a gun.” Tubbs further
relies on State v. Jackson, 2013 WI App 66, ¶¶3-5, 7, 11, 348 Wis. 2d 103, 831
N.W.2d 426, in asserting that “this case did not involve a sufficient confluence of
other factors that established probable cause for the search, independent of the
smell of marijuana.”

¶18 We note that Tubbs simply labels the trial court’s statement as a
credibility determination. Tubbs does not develop the argument as to why it is a
credibility determination and we decline to develop it for him. See State v. Pettit,
171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

¶19 Moreover, this court does not read the trial court’s statement as does
Tubbs. We conclude that the trial court did not find that Domine’s testimony that
he smelled fresh marijuana was not credible. Instead, the trial court stated that, in
concluding that probable cause existed for the search, it relied upon both the
observation of the digital scale and the smell of marijuana. The trial court further
stated that its probable cause determination relied more on the officer’s
observation of the digital scale than on the fresh marijuana the officer smelled. In

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No. 2019AP644-CR

other words, as a basis for its probable cause finding, the trial court placed greater
emphasis on the former than the latter.4

¶20 Here, the trial court denied the motion to suppress based on its
determination that (1) the stop when the officer directed Tubbs to step out of the
car and raise his hands was supported by reasonable suspicion and (2) the odor of
marijuana combined with the presence of the scale provided probable cause for the
search of the vehicle. Secrist clearly holds that the odor of marijuana alone
establishes probable cause to search a vehicle. See id., 224 Wis. 2d at 210.

¶21 The trial testimony clearly established that Officer Domine, having
smelled marijuana more than 500 times, was qualified by training and experience
to identify the odor of fresh marijuana. See id. at 216 (stating that “[i]t is
important … to determine the extent of the officer’s training and experience in
dealing with the odor of marijuana”). The officer described the odor of marijuana
as a distinctive pungent smell. He went on to state, “Again, fresh marijuana, you
can smell. It’s very particular, there’s nothing that smells exactly the same
emitting that smell.” He also testified that he had previously come into contact
with marijuana in a sealed container and that, under those circumstances, he
smelled marijuana.

4
Because the trial court did not find the officer’s testimony about the odor of marijuana
lacked credibility, this case is not analogous to State v. Jackson, 2013 WI App 66, ¶¶5, 7 & n.4,
11, 348 Wis. 2d 103, 831 N.W.2d 426. In Jackson, the issue was whether there was probable
cause for the warrantless search of a vehicle’s trunk. See id., ¶1. The trial court suppressed the
evidence because it found incredible an officer’s testimony that the odor of marijuana got
stronger when, after searching the front seats of the car, he began searching the back seats. See
id., 11. Our supreme court found that, regardless of the truthfulness of the officer’s testimony
that he could smell marijuana in the trunk, there was probable cause to search the trunk based on
the evidence of drug dealing that the officers lawfully found in the passenger compartment of the
car. See id.

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No. 2019AP644-CR

¶22 Despite Tubbs’ effort to impeach the testimony that the officer
smelled fresh marijuana when he opened the vehicle door, the trial court clearly
found that “the discovery of the digital scale on the floor and the smell of the
marijuana, although less on the latter, allowed the officer to search the immediate
area.” The record supports the trial court’s finding that the officer smelled fresh
marijuana upon opening the vehicle door. Under Secrist that finding, in and of
itself, is sufficient to establish that the officers had probable cause to believe that
evidence of a crime would be found in the vehicle. See id. at 210. Therefore, we
affirm the trial court’s judgment.

CONCLUSION

¶23 We affirm the trial court’s judgment because we agree that there was
probable cause for the officer’s warrantless search of Tubbs’ vehicle.5

By the Court.—Judgment affirmed.

This opinion will not be published. WIS. STAT. RULE
809.23(1)(b)(4).

5
Tubbs also contends that the officer lacked reasonable suspicion for a protective search
of the vehicle for weapons. Based on our conclusion that there was probable cause for the search,
we decline to address the issue. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct.
App. 1989) (stating that appeals should be decided on the narrowest possible ground).

8