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Defense win on “reasonable suspicion” sticks on appeal!

State v. Marque D. Cummings, 2017AP1587-CR, District 1, 4/3/18 (1-judge opinion, ineligible for publication); case activity (including briefs)

This is another one of those cases where the police seized and searched a person for being normal in a high crime area. “But OMG he was wearing a backpack–it might have contained drugs or burglary tools!!!” We are pleased to report that calmer minds prevailed both in the circuit court and the court of appeals.

Cummings is homeless. In the early of morning of July 27th he was walking down a street by 15th and Greenfield Ave, which the cops regard as a high crime area. He was wearing a sweatshirt with a bandana around his neck. And he was  carrying a backpack with his chin tucked down toward his chest. Two officers stopped Cummings, told him to put his backpack down and asked for his identification (though the timing of the latter request is a little uncertain). The State argued that Cummings was free to leave because they had not activated squad lights, pulled their guns, or physically detained Cummings so at this point they had not seized him. The court of appeals disagreed:

¶20 Given the fact the officers had directed Cummings put down his backpack where he could not access it, and that he had likely surrendered his identification, it is not reasonable to conclude that Cummings believed that he was free to leave the scene.  See Young, 294 Wis. 2d 1, ¶18; see also United States v. Johnson, 326 F.3d 1018, 1022 (8th Cir. 2003) (an officer’s retention of personal property is indicative of a seizure).  Therefore, we find that the officers’ contact with Cummings was a seizure pursuant to the Fourth Amendment.

The State insisted that the officers had reasonable suspicion to stop Cummings because (1) he was a wearing a sweatshirt on a warm night (maybe he was cold or his pack was full?), (2) he was wearing a bandana that could have been used to conceal his face (except it wasn’t), (3) he was carrying a backpack that could hold narcotics or burglary tools (it did contain some marijuana and, given his homeless status, probably everything else he owned), (4) his chin was down which could have been an attempt to conceal his face (but that’s how people walk when their packs are heavy), and (4 he changed directions when he saw the officers (Cummings says he simply turned the corner on his route). Happily, the court of appeals did not buy what the State was selling in this appeal:

¶23 However, [law enforcement’s] observations, even when considered together, do not establish a reasonable suspicion that Cummings had just committed or was about to commit a crime.  In the first place, this court has recognized that “[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”  State v. Gordon, 2014 WI App 44, ¶15, 353 Wis. 2d 468, 846 N.W.2d 483 (citation omitted).  Additionally, although the officers believed that Cummings changed the direction he was walking upon seeing their squad car, he did not flee from them.  Cf. Illinois v.Wardlow , 528 U.S. 119, 124 (2000) (while “unprovoked flight upon noticing the police” is “not necessarily indicative of wrongdoing … it is certainly suggestive of such.”)  The remainder of the officers’ observations of Cummings—wearing the bandana, carrying a backpack, and walking with his chin down—describe “the conduct of large numbers of law abiding citizens in a residential neighborhood, even in a residential neighborhood that has a high incidence of drug trafficking.”  State v. Young, 212 Wis. 2d 417, 430, 569 N.W.2d 84 (Ct. App. 1997).  Furthermore, there was no one else in the vicinity of Cummings—no one who could have been a potential crime victim or drug-deal counterpart—and the officers did not observe Cummings make contact with anyone.

We’re sorry to report that what occurred here was not a 1 off. Remember, On Point has an excruciatingly detailed Archive page where you will find several other cases whether the court of appeals has held that being in a high crime area does not provide reasonable suspicion for a stop. Check out the cases under “high crime area” and specifically our posts on “holding your pants up doesn’t provide reasonable suspicion” (no guarantees about letting them drop though), “walking and talking with a thicker, black female” does not amount to reasonable suspicion, walking in the area of a drug house does not create reasonable suspicion. Heck! A security adjustment upon observing police in a high crime area isn’t even enough to create reasonable suspicion.

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