Search tossed, but related bail felonies stand

A Court of Appeals panel on Thursday threw out a search that resulted in felony drug charges against a man, but let stand three counts of felony bail jumping issued when the man violated the conditions of his release on the drug charges.

​Oddly enough, missing a drug test is, by itself, not a crime, but was elevated to that level only because it was a condition of release in the case that the appeals court dismissed.

The District IV panel, in an unsigned opinion, first ruled that a La Crosse police officer was not justified in his pat down of Timothy C. Eigner, a search that led to charges of possession methamphetamine and drug paraphernalia.

The panel was fairly harsh in some of its assessment of the state's case: "The proposition that anyone who rides a motorcycle in a group is likely to be a member of the Outlaws (motorcycle gang) and, therefore, armed and dangerous, is entitled to little or no weight," the decision said. ​​The panel members were JoAnne F. Kloppenburg, Gary E. Sherman, and Brian W. Blanchard.

The panel also ruled, however, that Eigner's lawyer did not show La Crosse County Circuit Court Scott L. Horne was wrong when he ruled a prosecutor was not vindictive when she filed three felony bail-jumping charges against Eigner.

The prosecutor, Assistant District Attorney Emily Hynek, not happy that Eigner's lawyer was challenging the search, wrote in an email, "I'll probably charge the (felony bail jumping charges) too, just to make it worth my while if I have to write (the brief)."

The prosecutor later said she really was only interested in getting Eigner into drug treatment. 

According to the decision:

La Crosse Police Officer Casey Rossman was on patrol about 1 a.m. when he saw three motorcyclists outside a bar, revving their engines and spinning their tires. 

He followed the three and, at an intersection, one turned left and two turn right. One of the two right-turners continued down the road, and the second, Eigner, turned down a side road and stopped in a well-lit area. Eigner, dressed in a hooded sweatshirt and jeans, put down the kickstand and got off the motorcycle. He took out his wallet and removed a card. Rossman approached and the two, standing side by side, spoke briefly. Eigner handed Rossman the card. Rossman asked whether Eigner had weapons, and Eigner responded that he does not. 

Rossman put his hand on Eigner's back to start a pat-down and, as he did so, asked Eigner if he minded. Eigner's reply is not clear on audio attached to the officer's video of the incident. The appeals court said Rossman already had started the search when he asked the question.

Eigner was compliant, polite, and non-threatening throughout the encounter, the court said.

"I'll probably charge the (felony bail jumping charges) too, just to make it worth my while if I have to write (the brief)." - La Crosse County Assistant District Attorney Emily Hynek

Rossman testified in Circuit Court that it was not "typical behavior" for a motorcyclist to dismount from the bike after a traffic stop and that Eigner's behavior in doing so was concerning.

"I don't know what their intentions are, there's no barrier between him and I, and it could put me in danger... I don't know if they're going to flee, I don't know if they're going to attack me, for safety reasons," Rossman said.

The court rejected that argument. "One does not have to be a motorcyclist to readily understand that fully complying with an officer during a traffic stop, including fishing for a driver's license and proof of insurance, might well require dismounting from the motorcycle, or at least make a prompt dismount a highly attractive option for many motorcyclists," the court said.

Rossman also testified about a training session he attended about the Outlaws. "He had learned that most if not all Outlaw gang members applied for concealed carry permits and were likely carrying weapons," the court said. "However, Rossman also testified that he had no reason to believe that Eigner was a member of the Outlaw gang."

The panel also said the state's argument about the lack of a barrier did nothing to prove that Eigner was dangerous. "There is no limit to the State's argument, which is in effect that any time an officer is face-to-face with someone the officer has encountered in an official capacity, where there is 'no barrier," there are reasonable grounds for a pat-down. That is not what the case law instructs us is reasonable under the Fourth Amendment," the court wrote.

"My goal in this entire case was to get Mr. Eigner the treatment that I thought he wanted." - Hynek

At the hearing on the motion to dismiss the bail jumping charges, the prosecutor said her intent in filing the charges was to get Eigner the help he needed for his drug addiction. She said she was "irked" that Eigner's original lawyer "was making money off putting off Mr. Eigner getting into treatment.

"I'm not mad that I have to do suppression hearings, I do them all the time, but my goal in this entire case was to get Mr. Eigner the treatment that I thought he wanted," she said. By filing the bail jumping charges, she could help assure Eigner would get help.

Eigner's lawyer argued that the prosecutor's argument was "less compelling" than the originial email and that, if the prosecutor really was interested only in drug treatment, additional charges would only be needed if the state lost the suppression motion. Instead, the charges came when the motion was pending.

The court disagreed: "Eigner fails to explain why we should not rely on the circuit court's finding that the prosecutor filed the new charges for the reasons she explained, which did not have a retaliatory purpose."