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Reasonable Suspicion Issues – Frisk – Refusing to Keep Hands out of Pockets – No Per Se Rule

State v. Joshua O. Kyles, 2004 WI 15, affirming court of appeals’ unpublished decision
For Kyles: Eileen A. Hirsch, SPD, Madison Appellate

Issue: Whether a per se rule should be adopted allowing a frisk whenever individuals fail to comply with police directives to keep their hands out of their pockets.

Holding:

¶48. We do not adopt, as the State urges, a per se rule to govern these situations. None of the decisions cited by the State establishes a per se rule that an individual’s “hands in pockets” automatically establishes reasonable suspicion of dangerousness. Furthermore, a blanket exception to the requirement of an individualized suspicion of dangerousness ordinarily violates the basic principles of the Fourth Amendment.¶49. We adhere to our holdings in previous cases that a circuit court must consider under the totality of the circumstances whether an individual’s refusal to comply with an officer’s direction to the individual to remove his hands from his pockets is sufficient to trigger reasonable suspicion to conduct a protective search. Circuit courts are aptly positioned to decide on a case-by-case basis, evaluating the totality of the circumstances, whether an officer had reasonable suspicion to effectuate a protective search for weapons in a particular case.

¶50. Accordingly, we conclude that a person’s returning his hands to his pockets after being asked to remove them by an officer is an important factor for a court to consider under the totality of the circumstances. We refuse, however, to adopt a per se rule that in all cases, regardless of other circumstances, a person’s placing his or her hands in his or her pockets after an officer directed that the hands be removed is sufficient to provide reasonable suspicion to effectuate a protective weapons frisk. We consider the defendant’s movement of his hands under the totality of the circumstances of the present case.

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