[U] State v. Pelky

1 Lance Pelky appeals a judgment convicting him of possessing THC as a repeater. Pelky pled no contest after the trial court denied his motion to suppress the marijuana seized during a pat-down search performed by officer James Schaut. The trial court ruled that Schaut had the right to frisk Pelky for weapons and the marijuana was in plain view. Pelky argues (1) Shaut lacked any reasonable articulable suspicion to support the pat-down search and (2) the plain view doctrine does not apply because Schaut was not legally entitled to be in a position to observe the marijuana because he saw it during the pat-down search. We need not decide whether the pat-down search was justified because we conclude the marijuana was in Schaut's plain view even if he had not been performing the pat down search. 2 Schaut was the only witness at the suppression hearing. He testified that he was dispatched to an accident scene in a rural area at 5 a.m. He found a car in the ditch. Pelky was slumped over in the passenger seat with his T-shirt pulled up over his head. After Schaut pounded on the doors, yelled, and eventually poked Pelky, Pelky woke up. After Schaut assisted Pelky in pulling his shirt down, Pelky exited the car and appeared intoxicated. He identified himself but had no identifying documents. He told Schaut that another person was driving the car and after they got stuck in the mud, the driver went to get help and Pelky fell asleep in the car.