WI: Looking in a vehicle for safety purposes did not permit search of two vials for which there was no reason to believe were a threat

When defendant was stopped in a large conversion van for a traffic offense, the driver was not communicative about her travel plans, which was her right. However, the vehicle was moving like there was someone in it, and that gave the officer concern for his safety. When he opened the van, he found two blue vials which he opened, and this exceeded the scope of permitted instruction. State v. Sutton, 2012 WI App 7, 338 Wis. 2d 338, 808 N.W.2d 411 (2011):

P10 … The cylinders here, however, were opaque, not clear, so Officer Bartol could not see what was inside, and thus, as noted, she did not have “plain view” of the pills. Further, her other experience—that pills can be transported “in a container in which people believe that police will not think is a prescription” applies to any opaque tube, box, carton, jug, can, urn, and the like. That is too slippery a criterion to permit the warrantless search of a container that could not, by its size or shape, hold a weapon. Cf. Denk, 2008 WI 130, ¶¶59-60, 315 Wis. 2d at 27-28, 758 N.W.2d at 786-787 (Officers could search inside of hard, opaque eyeglass case dropped by passenger because: (1) it could have held “a small weapon, such as a knife or a razor blade,” and (2) it could also have held evidence of the crime for which the officers arrested the driver.). Further, Sutton was, as we have seen, entirely within his rights not to tell Officer Bartol where he had been, so his refusal to answer that question is not part of the probable-cause calculus.

P11 Officer Bartol did not have “probable cause to believe there [was] a connection between the [opaque cylinders] and criminal activity.” See Buchanan, 2011 WI 49, ¶23, 334 Wis. 2d at 399, 799 N.W.2d at 785 (quotation marks and quoted sources omitted). She thus had to get a search warrant, if she could, before she opened them. Accordingly, we reverse.