State v. Jeffrey Stout, 2002 WI App 41, PFR filed 2/21/02
For Stout: James L. Fullin, Jr., SPD, Madison Appellate
Issue: Whether the police had reasonable suspicion to frisk inside a residence, based on an anonymous tip of drug activity coupled with corroboration of certain details and a furtive gesture.
Holding: Although investigative stops must be made in public (and not in a residence), the police may frisk occupants after gaining lawful entry to a residence, based on the distinct concern of safety. ¶24.
¶30. In this case, as in Williams II, we have the personal observation of a concerned citizen caller that criminal activity was taking place. Although the tip was not recorded, there is no evidence disputing the fact that the call was made to the COP House, which citizens frequently called because they knew detectives worked there. In addition, Birkholz corroborated significant, if innocent, details of the tip: a person wearing the clothes described was in fact located at the address given by the tipster. Additionally, Millhollen corroborated that a person known as ‘Jeff’ was in her apartment. Finally, and most significantly, Birkholz corroborated a fact independent of the tip, giving him reason to believe Stout was attempting to arm himself-Stout reached toward his pocket upon seeing the officers enter the apartment.¶31. We hold that this collective information entitled Birkholz to conduct a pat-down search for weapons. Although there may have been an innocent reason for Stout’s movement, it was also reasonable for Birkholz to suspect that Stout was attempting to reach for a weapon. This belief was objectively reasonable in light of the tip suggesting that Stout was engaged in selling cocaine, coupled with the officer’s knowledge that persons engaged in selling narcotics frequently carry firearms. Guy, 172 Wis. 2d at 96. We conclude that the content of the tip, Birkholz’s corroboration of the facts in the tip, and his independent observation of suspicious behavior were sufficient to justify the frisk of Stout.