COURT OF APPEALS

DECISION

DATED AND FILED

January 20, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP372-CR Cir. Ct. No. 2018CM4005

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN, 

PLAINTIFF-RESPONDENT, 

V.

JALEN F. GILLIE, 

DEFENDANT-APPELLANT. 

APPEAL from a judgment of the circuit court for Milwaukee

County: DANIEL J. GABLER, Judge. Reversed and cause remanded with 

directions. 

¶1 WHITE, J.1 Jalen F. Gillie appeals from a judgment of conviction 

for carrying a concealed weapon. Gillie, who pled guilty after the trial court 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2017-18). 

All references to the Wisconsin Statues are to the 2017-18 version unless otherwise noted. 
No. 2020AP372-CR

2

denied his suppression motion, argues that the trial court erroneously denied his 

motion to suppress because the police did not have reasonable suspicion to justify 

conducting an investigatory traffic stop. We agree. We reverse the judgment and 

remand with directions.

BACKGROUND

¶2 Milwaukee police arrested Gillie during a traffic stop in late 

November 2018; he was charged with carrying a concealed weapon without a 

permit, possession of THC, and possession of cocaine. Gillie moved the trial court 

to suppress the evidence obtained during the stop. He argued that the police 

lacked reasonable suspicion for the stop, the police unlawfully extended the traffic 

stop without reasonable suspicion when the officer asked about the presence of a 

firearm and performed a Terry frisk of Gillie’s person, and the police lacked 

probable cause to conduct a warrantless search of Gillie’s vehicle.

¶3 At the suppression hearing, Officer Jose Rivera testified that he has 

been employed as a City of Milwaukee police officer for “over eleven years.” His 

training included “six months at [the] Milwaukee police training academy.” He is 

“a tintmeter-trained officer.” He explained that this means he “learn[ed] how to 

observe legal and illegal tint through normal observation.” 

¶4 Ofc. Rivera testified that he conducted a traffic stop of Gillie’s 

“silver Nissan four-door for suspected illegal window tint” in a dark evening in 

November 2018. Ofc. Rivera briefly observed Gillie stopped at a stop sign on 

West Garfield Road before he turned onto North Vel Phillips Avenue. Within 

seconds, the officer activated the lights and siren on the police car and Gillie 

promptly obeyed the signal to pull over.
No. 2020AP372-CR

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¶5 Ofc. Rivera exited his own vehicle and while approaching Gillie’s 

stopped vehicle, he ordered Gillie to lower the vehicle windows so he could see 

inside. Ofc. Rivera testified that “about halfway towards the vehicle, I observed 

the driver, who is the defendant, bend forward and reach down towards the driver 

floorboard.” Ofc. Rivera testified that the bending down concerned him because 

in his “training and experience, it’s consistent with someone attempting to hide a 

weapon or illegal contraband;” therefore, the officer “was fearful [Gillie] could be 

armed or attempting to conceal a weapon at that point.”

¶6 Ofc. Rivera testified that he asked Gillie to show his hands, which 

Gillie did. The officer asked Gillie what he was reaching for, and he said “a cell 

phone.” The officer asked Gillie if he had weapons, which Gillie denied, then the 

officer asked Gillie to exit the vehicle. When Gillie did not immediately comply, 

Ofc. Rivera opened Gillie’s vehicle door, and Officer Zachary Ramion, his 

partner, took control of Gillie’s hands. Gillie then exited the vehicle and Ofc. 

Rivera frisked him, finding no weapons or contraband.

¶7 Ofc. Rivera testified that he asked Officer Robert Gregory, who was 

on the scene, to search the “driver compartment and the area ... [where] the 

defendant was reaching....” Ofc. Gregory found a loaded nine-millimeter firearm 

wedged between the driver’s seat and the center console. Officer Rivera testified 

he asked Gillie if he had a concealed carry weapon (CCW) permit, which Gillie 

denied; the police confirmed Gillie did not have a CCW permit in a State of 

Wisconsin database. Ofc. Rivera testified that he saw a “clear corner-cut bag of 

suspected cocaine on the driver floorboard—and also searched the center console 

compartment of the vehicle and located suspected marijuana inside a plastic bag.”
No. 2020AP372-CR

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¶8 On cross-examination, Ofc. Rivera testified that he was “not sure” 

that he had told Gillie why he was being stopped, but based on his concern about 

Gillie bending to the floorboard, his own “safety was more important at that 

point.” The officer testified that Gillie asked “what he was being asked to step out 

of the vehicle for” and “what he was being stopped for.” Ofc. Rivera explained 

that “at some point, he was notified [why he was stopped]. I don’t know at what 

point.”

¶9 Additionally, Gillie played approximately a minute of the officer’s 

body cam video footage taken during the stop and moved it into evidence. No 

narration of the video was provided in court; no transcript of the video was in the 

record. Trial counsel confirmed that Ofc. Rivera was “not the officer to conduct 

the tint review.” Ofc. Rivera responded, “That’s correct.” There was no direct 

examination by the State about the body cam video footage; however, on redirect 

examination, Ofc. Rivera confirmed it was dark outside during the stop.

¶10 The trial court then examined Ofc. Rivera about two sections of the 

video. First, the court clarified that Ofc. Rivera opened the door to Gillie’s 

vehicle. Second, the trial court confirmed that the gun was not visible from 

outside the vehicle. Ofc. Rivera testified the gun “was positioned ... with the 

handle upward and the gun wedged between driver’s seat, center console, kind of 

halfway down .... You actually had to kind of look in a little bit to see it, if that 

makes sense.” He testified that “you can’t see [the gun] from standing outside.” 

¶11 The State’s second witness was Officer Casey Donahue of the 

Milwaukee Police Department, who testified he had been employed as a police 

officer for five years and he was trained and certified to use the tintmeter to 

measure tint on car windows. He explained that under city ordinance, the passage 
No. 2020AP372-CR

5

of light “cannot be below fifty percent in the front windows and thirty-five percent 

in the rear windows.” He testified that after the traffic stop, he conducted a tint 

reading of Gillie’s vehicle and the driver’s side front and rear windows and the 

passenger’s side front and rear windows were all illegally tinted.

¶12 The trial court concluded the suppression hearing by making 

findings of fact. It found Ofc. Rivera’s testimony was credible because it was 

consistent with the video footage from his body cam. The trial court found that 

Ofc. Rivera had prior experience “as a tintmeter operator as well as prior 

experience with actual observation of vehicles that are tinted and tinted illegally.” 

The trial court found that Ofc. Donahue was dispatched to the same traffic stop 

and he conducted a tintmeter reading of Gillie’s vehicle, finding illegal tint on 

multiple vehicle windows. The remaining findings focused on Ofc. Rivera’s 

safety concerns, Gillie’s cooperation with instructions even as he showed 

apprehension at exiting the vehicle, the frisk of Gillie’s person, and the search of 

Gillie’s vehicle—first only the “driver’s space area of the cab” in which the gun 

was found, and then the entire vehicle which yielded cocaine and marijuana.

¶13 The trial court continued the hearing on Gillie’s motion to suppress 

several days later. The trial court found that Ofc. Rivera’s “observations, later 

confirmed by Officer Donahue’s testing of the windows” were that the windows 

were “heavily tinted.” The court concluded that there was reasonable suspicion to 

conduct a traffic stop because “an officer in Officer Rivera’s position could 

reasonably conclude that Mr. Gillie’s vehicle was in violation of” the municipal 

vehicle tint ordinances. 

¶14 The trial court concluded that the traffic stop was not unreasonably 

prolonged. The court noted it “watched about a forty-five-second section of a 
No. 2020AP372-CR

6

body cam relating” to the traffic stop and it was “quite amazed about how quickly 

all this happened.” The trial court concluded that “[t]he police had a reasonable 

basis to be concerned for their safety, and based on their training and experience 

that Mr. Gillie may be either concealing contraband or a weapon,” based on his 

“furtive movement coupled with Mr. Gillie’s—at least his initial refusal to get out 

of the car, would heighten the police officer’s concern ... and it made perfect 

sense for the police to want to separate Mr. Gillie from the interior of his car.” On 

Gillie’s third issue, the trial court concluded that there was a legal basis to conduct 

a warrantless search of Gillie’s vehicle because Ofc. Rivera found a baggie 

containing suspected cocaine on the floorboard. The trial court denied Gillie’s 

motion to suppress on all bases.

¶15 After the motion to suppress was denied, Gillie entered into a plea 

agreement to resolve the charges. The State moved to dismiss and read-in the 

drug possession charges. Based on Gillie’s guilty plea, the trial court found him 

guilty of carrying a concealed weapon and entered a judgment of conviction into 

the record. This appeal follows.2

DISCUSSION

¶16 Gillie argues that the trial court erred when it denied his motion to 

suppress because the police lacked reasonable suspicion to stop him for having 

unlawfully tinted windows. We agree. We do not address Gillie’s arguments 

about the unlawful extension of the traffic stop or the lack of probable cause for 

the search because our determination that the trial court erred in the first instance 

 

2

 We note that Gillie may appeal the suppression ruling despite his guilty plea. See WIS.

STAT. § 971.31(10). 
No. 2020AP372-CR

7

by denying Gillie’s suppression motion is dispositive. See Barrows v. American 

Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) 

(“An appellate court need not address every issue raised by the parties when one 

issue is dispositive.”).

¶17 The Fourth Amendment guarantees individual security “against 

unreasonable searches and seizures.” U.S. CONST. amend. IV. A traffic stop, 

“even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of 

‘persons’ within the meaning of the Fourth Amendment.” State v. Popke, 2009 

WI 37, ¶11, 317 Wis. 2d 118, 765 N.W.2d 569 (citations omitted). An 

investigatory stop “must be based on more than an officer’s ‘inchoate and 

unparticularized suspicion or hunch.’” State v. Post, 2007 WI 60, ¶10, 301 Wis. 

2d 1, 733 N.W.2d 634 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968). “The officer 

‘must be able to point to specific and articulable facts which, taken together with 

rational inferences from those facts, reasonably warrant’ the intrusion of the stop.” 

Post, 301 Wis. 2d 1, ¶10 (quoting Terry, 392 U.S. at 21). 

¶18 “Investigative traffic stops are subject to the constitutional 

reasonableness requirement.” Post, 301 Wis. 2d 1, ¶12 (citation omitted). We 

follow a two-step process of review on questions of constitutional fact. “[W]e 

uphold a circuit court’s factual findings unless clearly erroneous, but we 

independently determine whether those facts meet the constitutional standard.” 

State v. Samuel, 2002 WI 34, ¶15, 252 Wis. 2d 26, 643 N.W.2d 423. 

¶19 Gillie argues that the State has failed to prove that the police officers 

had reasonable suspicion to stop his vehicle based on suspected illegal window 

tint. The State contends that the stop was reasonable because the officer identified 

that Gillie’s windows were illegally tinted. It is generally true that “an officer’s 
No. 2020AP372-CR

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reasonable suspicion that a motorist is violating or has violated a traffic law is 

sufficient for the officer to initiate a stop of the offending vehicle.” State v. 

Houghton, 2015 WI 79, ¶5, 364 Wis. 2d 234, 868 N.W.2d 143. In State v. 

Conaway, we analyzed a traffic stop for window tint violation and we concluded 

that an officer does “not need to be able to ascertain with certainty that there was a

window tint violation. Officers need not, and likely cannot, distinguish with the 

naked eye small variations in the amount of light that passes through suspect 

windows. Reasonable suspicion does not require such precision.” Id., 2010 WI 

App 7, ¶7, 323 Wis. 2d 250, 779 N.W.2d 182. However, an officer must 

“reasonably suspect that the window violates the regulation” and articulate that 

suspicion in court, if challenged. Id.

¶20 Our question is quite narrow—whether the State proved that Ofc. 

Rivera had reasonable suspicion to stop Gillie.3 We faced a similar situation in 

Conaway. There, we explained that an officer’s testimony could be adequate to 

support reasonable suspicion “if an officer testifies that he or she is familiar with 

how dark a minimally complying window appears and that the suspect window 

appeared similarly dark or darker, taking into account the circumstances of the 

viewing.” Id., ¶7. Here, the record made by the State does not satisfy that 

standard. Ofc. Rivera was not questioned about his observations of the vehicle 

windows, the window tint ordinances, or why he suspected Gillie’s window tint to 

be as dark as or darker than the 35% or 50% light passage requirements under the 

vehicle window tint ordinances. Without the State producing testimony from Ofc. 

 

3

 Most of the suppression hearing focused on whether it was reasonable to search Gillie’s 

person based on the officer’s safety concerns and whether there was probable cause to search the 

vehicle without a warrant. Our inquiry stops before that analysis. 
No. 2020AP372-CR

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Rivera that fulfills the Conaway standard, the record is devoid of specific 

articulable facts about that dark evening in November that would support 

reasonable suspicion for the stop. 

¶21 In Conaway, we rejected that the State established reasonable 

suspicion “individually or collectively” on the basis that the law enforcement 

officer had (1) “more than thirteen years of experience as a state trooper, which 

included training on use of a tint meter[;]” (2) awareness of the administrative 

regulation that a rear window must permit passage of at least 35% of visible light; 

(3) experience stopping “between ten and one hundred vehicles for illegal window 

tint[;]” and (4) testimony that he “stopped the defendants’ vehicle because the rear 

window ‘appeared to [have] dark window tint.’” Id., ¶8 (some alterations in 

original). Similarly, at Gillie’s suppression motion hearing, Ofc. Rivera testified 

about his length of employment, his tintmeter training, and that he stopped Gillie 

for “suspected illegal window tint.” We note that those statements were the 

totality of Ofc. Rivera’s testimony about window tint. If the State did not establish 

reasonable suspicion with the officer’s testimony in Conaway, then the State has 

failed to establish reasonable suspicion with a similar, undeveloped record here. 

¶22 The State argues that Conaway is distinguishable because there is no 

indication that the windows were ever tested in Conaway, which would have 

shown that the officer was correct or incorrect. However, that argument misses 

the point: proving the windows were tinted after the fact does not show that the 

officer had reasonable suspicion to initiate the stop based on specific facts and not 

a hunch. Ofc. Donahue testified that the windows were illegally tinted; however, 

his testing occurred after the traffic stop was initiated. His testimony cannot cure 

what was not developed by the State in the record: namely the “specific, 
No. 2020AP372-CR

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articulable facts supporting reasonable suspicion of a violation” of window tint 

regulations before Ofc. Rivera initiated the traffic stop. See id. 

¶23 This court does not speculate about what testimony could have been 

heard in the trial court or what arguments the State could have made; instead, we 

review the record before us. See State v. Hogan, 2015 WI 76, ¶43, 364 Wis. 2d 

167, 868 N.W.2d 124 (“Upon careful examination of the record, we believe the 

State could have made a valid case that Deputy ... had reasonable suspicion .... 

However, the case the State could have made in circuit court was not made...”).

The trial court’s findings that Ofc. Rivera observed heavily tinted windows in 

Gillie’s car and stopped him as a result are not based on facts in the record. Even 

if that record existed, those facts alone would not satisfy the standards in Conaway

or the common-sense test to determine reasonableness of the stop. See Post, 301 

Wis. 2d 1, ¶ 13. 

¶24 The trial court improperly relied on testimony about after-the-fact 

tint testing to conclude that reasonable suspicion existed for this traffic stop. Ofc. 

Rivera was not asked nor did he testify about how dark the window tint appeared 

based on his training, his awareness of specific vehicle window tint standards 

under the city ordinance, or his track record at recognizing illegal window tint. 

Further, the trial court’s findings and conclusions that Ofc. Rivera observed 

heavily tinted windows in Gillie’s car and stopped him as a result are not based on 

facts in the record. Therefore, the record does not support reasonable suspicion 

for the stop. 

¶25 We conclude that the State failed to show that the traffic stop was 

constitutionally reasonable; furthermore, the trial court erred in ruling that the 

police had reasonable suspicion to stop Gillie’s vehicle. Without a constitutionally 
No. 2020AP372-CR

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reasonable stop, the search and seizure of Gillie’s person and vehicle violated 

Gillie’s constitutional rights. Accordingly, the trial court’s denial of Gillie’s 

suppression motion was made in error. We reverse and remand with directions for 

the trial court to vacate the judgment of conviction, allow Gillie to withdraw his 

plea, and grant the suppression motion.

By the Court.—Judgment reversed and cause remanded with directions.

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