You may not cite this per curiam opinion as precedent in any Wisconsin court, but happily you can bask in Dixon’s victory. The court of appeals wisely held that his 5-minute, friendly conversation with a “thicker black female” at 6:00 a.m. on 29th and Lisbon in Milwaukee did not constitute reasonable suspicion of prostitution-related activity.
Only one witness testified at the hearing on Dixon’s motion to suppress: the officer who detained him and discovered that he was a felon in possession of a firearm. The officer saw Dixon and a woman near a closed liquor store associated with prostitution-related activity.
¶6 The officer circled back in his car, parked about half a block away from the man and the woman, and observed them for about five minutes. The officer described the man as “well dressed [and] clean cut.” The officer did not describe the appearance or apparent age of the woman, other than to say, in the officer’s words, that she was a “thicker black female.” The officer characterized and described their behavior during this five-minute period as: “just hang[ing] out on the corner”; “[j]ust walk[ing] back and forth … [p]robably a good 3, 4 times”; “just walking and just talking”; “engaging in conversation and just walking and talking and like circular motions”; “chitchatting”; and “smiling.” There was no other evidence about their behavior at that time.
If you were in the officer’s shoes, what would you do? Well, this officer pulled his car up on to the sidewalk 2 feet from Dixon, activated his red and blue lights, got out of his squad car, and told Dixon to keep his hands out of his pockets. Citing U.S. v. Mendenhall, 446 U.S. 544 (1980), Dixon argued that he was seized for 4th amendment purposes because no reasonable person would feel free to leave in this situation. The court of appeals agreed. ¶15.
The court of appeals also–rather passionately–agreed that the officer lacked reasonable suspicion to seize Dixon:
¶18 . . . There was nothing to suggest that the officer recognized Dixon or the woman as being involved in prostitution previously; nothing to suggest that they matched the description of anyone involved in prostitution; nothing to suggest that the woman beckoned to Dixon or talked to any other man; nothing to suggest that the woman’s age or appearance was what police thought was typical for prostitutes in the area; and nothing to suggest that the two had exchanged money, drugs, or any other item. Notably, the officer did not provide information suggesting that few other people were out and about in this area, so that the mere presence of the two was somehow suspicious or unusual. We are not talking about 3, 4, or even 5:00 in the morning, but rather just prior to 6:00 when, obviously, people do start to move about for various reasons. Simply put, nothing in the officer’s testimony objectively connected Dixon’s and the woman’s behaviors or the time of day to prostitution-related activity.
The court of appeals was troubled by the implications of finding reasonable suspicion based essentially on nothing more than activity occurring in a “high crime area.”
Dixon’s case brings to mind others in which courts concluded that reasonable suspicion was lacking when the facts consisted of little to nothing more than innocuous behaviors taking place in “high crime” areas. See Brown v. Texas, 443 U.S. 47, 48-50, 52 (1979); State v. Gordon, 2014 WI App 44, ¶¶3-5, 9, 14-15, 353 Wis. 2d 468, 846 N.W.2d 483; State v. Young, 212 Wis. 2d 417, 419-23, 429-30, 433, 569 N.W.2d 84 (Ct. App. 1997). As we stated in Gordon: “[T]he routine mantra of ‘high crime area’ has the tendency to condemn a whole population to police intrusion that, with the same additional facts, would not happen in other parts of our community.” Gordon, 353 Wis. 2d 468, ¶15. The “circumstances must not be so general that they risk sweeping into valid law-enforcement concerns persons on whom the requisite individualized suspicion has not focused.” Id., ¶12.