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Reasonable Suspicion – Frisk – Placing Person in Police Squad

State v. Kelsey C.R., 2001 WI 54
For Kelsey C. R.: Susan Alesia, SPD, Madison Appellate

Issue: Whether the police had reasonable suspicion to frisk Kelsey, a juvenile, before placing her in a squad car and transporting her home at her mother’s request.

Holding: The most significant feature of this fractured ruling is majority support for the principle that there is no “blanket-rule that a police officer may frisk a person just because the officer is going to place that person inside a police vehicle.” ¶50 (3-vote plurality). The dissent (2 votes) also rejects such a rule, ¶91, meaning that this rejection commands a clear majority of 5 votes. (The 2-vote concurrence would adopt the per se rule, and upholds the frisk on that basis. ¶54.) Nonetheless, the frisk is upheld. In order to justify a frisk, the police must have reasonable suspicion, apart from justification for the stop, to believe that the person may be armed and dangerous. ¶47. The police did not have any reason to believe that this 15-year-old girl, who seemed more vulnerable than dangerous, needed to be frisked for their safety. (Note: this holding derives from agreement on the point between the two-vote concurrence and two-vote dissent. See ¶¶3 n.1, and ¶52.) However, the police had reasonable suspicion to believe that Kelsey was armed and dangerous, because: she had fled from the police; she had been leaning against a storefront with her hood over her head; her age; it was dark, with few people around; it was a high-crime neighborhood; she told the police she was afraid, but didn’t say why; placing someone in a squad is a factor to be considered. ¶¶49-50.

State v. Thomas, 2008 Ohio 6595, 12/11/08 (policy of patting down every person placed in squad while officer writes ticket unreasonable). Arguably contrary authority: U.S. v. McCargo, 2nd Cir No. 05-4026-cr, 9/13/06 (frisk of suspect being transported for on-scene ID upheld on theory of administrative-search, inventory-like rationale); but case distinguishable, precisely on basis that transported person was reasonably suspected of recent crime.

 

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