COURT OF APPEALS

DECISION

DATED AND FILED

April 15, 2020

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. 2018AP2096-CR Cir. Ct. No. 2013CF1026

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

DEANDRE L. JACKSON,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Racine County: MARK F. NIELSEN, Judge. Affirmed. 

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

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). 
No. 2018AP2096-CR

2

¶1 PER CURIAM. Deandre Jackson appeals from a judgment 

convicting him of possessing heroin with intent to deliver as a second and 

subsequent offense and from an order denying his postconviction motion claiming 

ineffective assistance of trial counsel in connection with arguments made in a 

motion to suppress. We affirm.

¶2 Jackson moved to suppress evidence seized during a traffic stop on 

the grounds that the law enforcement officers impermissibly extended the traffic 

stop. After an evidentiary hearing on the motion to suppress, the circuit court 

made findings of fact based on the record. After stopping Jackson’s vehicle 

because Jackson was not wearing a seat belt, the law enforcement officers 

observed, in plain view, loose tobacco on Jackson’s clothes (often the residue from 

preparing a marijuana blunt, i.e., the process of replacing cigar tobacco with 

marijuana) and a knotted baggie corner, an item associated with packaging for 

drug sales. The officer was aware that Jackson had been a person of interest in a 

previous narcotics-related investigation. Based upon these observations, the 

investigation moved from a traffic stop into a drug investigation. The record 

indicates that after obtaining Jackson’s consent to search his person, the law 

enforcement officer eventually reached Jackson’s feet and asked him to remove 

his shoes. Jackson did so, and when the officer patted down Jackson’s left foot, 

the officer felt an unusual bulge inside his sock. Although Jackson then began 

stepping away from the officer, the officer detained him and recovered six small, 

knotted baggies of heroin inside his sock. The circuit court denied the suppression 

motion because Jackson consented to the search and during the search, evidence of 

a drug offense developed. 

¶3 After sentencing on his guilty plea, Jackson sought postconviction 

relief due to ineffective assistance of trial counsel because counsel failed to raise 
No. 2018AP2096-CR

3

additional Fourth Amendment arguments in the suppression motion: the search of 

Jackson’s shoes and socks exceeded the scope of Jackson’s consent, and, even if 

Jackson consented to the search, he withdrew that consent when he started moving 

away from the officer after the officer felt something in Jackson’s sock. The 

circuit court denied the postconviction motion without a hearing. Citing the 

record created on the suppression motion litigated by trial counsel, the circuit 

court concluded that the record did not support Jackson’s additional Fourth 

Amendment challenges. In particular, the circuit court concluded that the plain 

touch doctrine applied to the bulge in Jackson’s sock detected by the law 

enforcement officer. Therefore, Jackson’s additional arguments in favor of his

motion to suppress would not have been successful. In the absence of prejudice, 

trial counsel was not ineffective. Jackson appeals. 

¶4 A circuit court has the discretion to deny a postconviction motion 

without a hearing if the motion is legally insufficient. State v. Allen, 2004 WI 

106, ¶12, 274 Wis. 2d 568, 682 N.W.2d 433. 

The circuit court may deny a postconviction motion for a 

hearing if all the facts alleged in the motion, assuming them 

to be true, do not entitle the movant to relief; if one or more 

key factual allegations in the motion are conclusory; or if 

the record conclusively demonstrates that the movant is not 

entitled to relief.

Id. (footnote omitted). To succeed on an ineffective assistance of counsel claim, 

a defendant must demonstrate that counsel’s representation was deficient and that 

the deficiency was prejudicial. State v. Jeannie M.P., 2005 WI App 183, ¶6, 286 

Wis. 2d 721, 703 N.W.2d 694. We need not consider whether trial counsel’s 

performance was deficient if we can resolve the ineffectiveness issue on the ground 

of lack of prejudice. State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69 

(1996). 
No. 2018AP2096-CR

4

¶5 On appeal, Jackson challenges the traffic stop on three grounds: (1) 

the law enforcement officers impermissibly extended the traffic stop; (2) the law 

enforcement officers exceeded the scope of Jackson’s consent when they searched 

inside his shoes and socks; and (3) assuming Jackson consented to the search, he 

withdrew that consent when he stepped away from the officer after the officer 

noticed an “unusual bulging” inside his sock but before the law enforcement 

officer actually found the heroin inside his sock.

¶6 We first address the circuit court’s determination that the traffic stop 

was not impermissibly extended because the evidence observed by the law 

enforcement officers during the stop provided reasonable suspicion to extend the 

stop to investigate a possible drug offense. We will uphold the circuit court’s 

findings of historical fact unless they are clearly erroneous. State v. Floyd, 2017 

WI 78, ¶11, 377 Wis. 2d 394, 898 N.W.2d 560. Application of the facts to 

constitutional principles presents a question of law we review independently. Id., 

¶¶11-12. 

¶7 A traffic stop may be made on reasonable suspicion that a driver 

violated a traffic law. Id., ¶20. The parties do not dispute that the officers had 

reasonable suspicion to believe that Jackson committed the offense of driving 

without a seat belt. The initial traffic stop was lawful. Once a lawful stop has 

been made, the stop may be extended if “the officer becomes aware of additional 

suspicious factors which are sufficient to give rise to an articulable suspicion that 

the person has committed or is committing an offense or offenses separate and 

distinct from the acts that prompted the officer’s intervention in the first 

place.” State v. Betow, 226 Wis. 2d 90, 94, 593 N.W.2d 499 (Ct. App. 1999). 
No. 2018AP2096-CR

5

¶8 The reasonable suspicion test uses a common sense approach and 

considers the totality of the facts and circumstances to determine “whether the 

facts of the case would warrant a reasonable police officer, in light of his or her 

training and experience, to suspect that the individual has committed, was 

committing, or is about to commit a crime.” State v. Post, 2007 WI 60, ¶13, 301 

Wis. 2d 1, 733 N.W.2d 634. An “officer ‘must be able to point to specific and 

articulable facts which, taken together with rational inferences from those facts, 

reasonably warrant’” extending the stop. Id., ¶10 (citation omitted). The evidence 

developed during the traffic stop—the loose tobacco and the knotted baggie in 

plain view1—along with the officer’s knowledge that Jackson had been a person of 

interest in a previous drug investigation constitute reasonable suspicion under the 

totality of the circumstances to extend the traffic stop to address a drug offense. 

We conclude that the stop was not extended impermissibly. 

¶9 We turn to the arguments Jackson claims his trial counsel should 

have made in support of his motion to suppress: that the law enforcement officers 

exceeded the scope of Jackson’s consent when they searched inside his shoes and 

socks and, assuming Jackson consented to the search, that he withdrew that 

consent by stepping away from the officer once the officer noticed an unusual 

bulge inside his sock. We conclude that even if Jackson withdrew his consent

before the officer pulled the heroin from his sock, the officer nevertheless lawfully 

seized the heroin under the plain touch doctrine. 

 

1

 Jackson offers alternative explanations for the presence of these items in his vehicle. 

Our focus is on what a reasonable police officer would make of the items in plain view. See State 

v. Post, 2007 WI 60, ¶13, 301 Wis. 2d 1, 733 N.W.2d 634. 
No. 2018AP2096-CR

6

¶10 Evidence is lawfully seized under the plain touch exception to the 

warrant requirement “when an officer touches or feels an object” during a lawful 

search, and the officer’s “training and experience lead[s] the officer to believe [the 

object] may be contraband.” State v. Applewhite, 2008 WI App 138, ¶12, 314 

Wis. 2d 179, 758 N.W.2d 181 (citation omitted). 

¶11 We apply the plain touch doctrine. The law enforcement officer 

testified that Jackson consented to a search and in the course of patting down 

Jackson’s sock, the officer noted the unusual bulge. The officer’s training and 

experience and the facts known to the officer led the officer to believe drugs might 

be secreted in Jackson’s sock.2 Under the plain touch doctrine, the officer 

lawfully seized the heroin in Jackson’s sock regardless of the status of Jackson’s 

consent at that time. Therefore, a motion to suppress based on the status of 

Jackson’s consent would not have succeeded, and trial counsel’s performance did 

not prejudice Jackson. Counsel cannot be faulted for failing to bring a motion that 

would have been unsuccessful. See State v. Simpson, 185 Wis. 2d 772, 784, 519 

N.W.2d 662 (Ct. App. 1994). 

¶12 The circuit court properly exercised its discretion when it denied 

Jackson’s postconviction motion without a hearing. The record conclusively shows 

that trial counsel was not ineffective. Allen, 274 Wis. 2d 568, ¶12. 

 

2

 The officer testified that in his experience, approximately “a quarter of [the] time we 

locate narcotics” in shoes and socks.
No. 2018AP2096-CR

7

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.