State v. Steven Lee Johnson

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.
January 28, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP2137-CR Cir. Ct. No. 2019CF341

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

STEVEN LEE JOHNSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Douglas County: KELLY J. THIMM, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Steven Lee Johnson appeals from a judgment
convicting him of operating a motor vehicle while intoxicated (OWI), as a tenth
No. 2022AP2137-CR

offense, and from an order denying his postconviction motion. Johnson contends
that his defense counsel provided constitutionally ineffective assistance by failing
to argue in his suppression motion that his vehicle registration was invalidly
suspended. Because we conclude that defense counsel did not perform deficiently,
the traffic stop was supported by reasonable suspicion, and the denial of the
suppression motion was proper, we affirm.

BACKGROUND

¶2 On July 13, 2019, an officer from the Superior Police Department
observed Johnson’s vehicle leaving a fenced-in industrial area late at night where
copper and wire thefts had been reported. The officer ran a record check on the
vehicle, which showed that its registration was suspended, so he stopped the vehicle.
During the stop, the officer smelled alcohol and noticed that Johnson’s eyes were
bloodshot. Johnson admitted that he had been drinking, and he performed poorly
on field sobriety tests. Given Johnson’s nine prior OWI convictions, he was subject
to a 0.02 blood-alcohol limit. The officer arrested Johnson, and he was subsequently
charged with OWI as a tenth offense.

¶3 Before trial, Johnson moved to suppress evidence from the traffic
stop, arguing that the stop was pretextual and unlawfully prolonged. The circuit
court denied the motion to suppress. Johnson was convicted by a jury, and he
received a sentence of eight years of initial confinement followed by three years of
extended supervision.

¶4 Johnson filed a postconviction motion, arguing that he received
ineffective assistance because his trial counsel did not argue that the traffic stop was
unconstitutional. Johnson contended that because the officer incorrectly believed
that Johnson’s vehicle registration was suspended, the officer had no reasonable

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No. 2022AP2137-CR

articulable basis for the stop. In fact, the registration was not suspended, and an
administrative error had caused the officer to believe otherwise.

¶5 At the postconviction hearing, defense counsel testified that he knew
about the administrative error, but he also concluded that existing case law did not
support suppressing the evidence on that basis. The circuit court ruled that counsel’s
decision was reasonable and that Johnson had failed to show either systemic
administrative errors or police misconduct that would justify suppression. The court
further noted an independent basis for the stop—Johnson’s presence in a fenced-in
industrial area at an unusual hour where thefts had occurred. The court therefore
denied the motion for postconviction relief, and this appeal follows.

DISCUSSION

¶6 To establish ineffective assistance of counsel, a defendant must
show: (1) that counsel’s performance was deficient; and (2) that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Counsel’s performance is deemed deficient only if it falls below an objective
standard of reasonableness as measured by prevailing professional norms. Id. at
688. To establish prejudice, a defendant must demonstrate that, but for counsel’s
errors or omissions, there is a reasonable probability that the result of the proceeding
would have been different. Id. at 695-96. However, “a defendant need not prove
the outcome would ‘more likely than not’ be different in order to establish prejudice
in ineffective assistance cases.” State v. Sholar, 2018 WI 53, ¶44, 381 Wis. 2d 560,
912 N.W.2d 89 (citing Strickland, 466 U.S. at 693).

¶7 The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. See Heien v. North Carolina,
574 U.S. 54, 57 (2014). A police officer may conduct a brief investigatory traffic

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No. 2022AP2137-CR

stop if the officer has a reasonable suspicion, based on specific and articulable facts,
that an individual is engaged in criminal activity. Id. at 60. Reasonable suspicion
is less demanding than probable cause but requires more than an unparticularized
hunch. Terry v. Ohio, 392 U.S. 1, 27 (1968). Further, searches and seizures based
on a mistake of fact or law are constitutionally permissible if the mistake is
objectively reasonable. Heien, 574 U.S. at 57.

¶8 Johnson argues that the traffic stop was initiated because the police
officer incorrectly believed that Johnson’s vehicle registration was suspended and
that his counsel should have pursued suppression of all evidence obtained after the
stop on that ground. This argument is unavailing. Defense counsel’s decision to
pursue other suppression arguments rather than challenging the registration error
was an objectively reasonable strategic choice. Counsel testified that he was aware
of the factual error, researched its implications, and stated that he knew a mistake
of fact was not a basis to suppress the evidence obtained as a result of the stop.

¶9 Postconviction counsel introduced evidence in an effort to support a
claim for systemic negligence and administrative error1 by calling an officer from
the Superior Police Department. That officer explained that the department very
occasionally had a problem with a third-party vendor failing to timely clear
registration suspensions. He further explained that the department had changed
vendors because it was dissatisfied with the vendor in place when Johnson was
arrested. The officer stated that the department experienced about one mistaken
registration suspension per month out of 3,000 to 5,000 tickets issued per month.
The postconviction court concluded that a reasonable mistake of fact on law

1
See Herring v. United States, 555 U.S. 135, 147 (2009) (holding that suppression is not
required “when police mistakes are the result of negligence … rather than systemic error or reckless
disregard of constitutional requirements”).

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No. 2022AP2137-CR

enforcement’s part does not render a stop unconstitutional, and there was no basis
to claim that the mistake occurred due to the police department’s systemic
administrative error. We agree with the postconviction court’s conclusion in that
regard.

¶10 Counsel’s conclusion that a reasonable mistake of fact does not
invalidate a traffic stop was correct. See id. Counsel did not perform deficiently by
deciding not to assert a non-meritorious argument. See State v. Berggren, 2009 WI
App 82, ¶21, 320 Wis. 2d 209, 769 N.W.2d 110. Moreover, the traffic stop did not
violate Johnson’s constitutional rights because the officer’s observations of
suspicious activity, coupled with his reasonable belief that Johnson’s registration
was suspended, combined to objectively provide reasonable suspicion sufficient to
justify the stop. Accordingly, we reject Johnson’s argument that he received
ineffective assistance of counsel.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

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