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Reasonable Suspicion Issues – Frisk – Subjective Appreciation of Danger

State v. Joshua O. Kyles, 2004 WI 15, affirming court of appeals’ unpublished decision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

Issue/Holding:

¶22 … The State’s principal position is two-fold: First, the State argues that an officer’s “subjective fear of the suspect” being searched, as the state poses the issue, is not a prerequisite to a valid frisk. Second, the State argues that this court should bar any questioning of an officer about his or her “subjective fear of the suspect” frisked and should bar a court from considering an officer’s “subjective fear of the suspect.”

¶25. We agree with the rule set forth in [U.S. v. Tharpe, 536 F.2d 1098 (5th Cir. 1976)] (relied upon heavily by the State) that an officer need not feel scared and need not believe that his or her safety or that of others is in danger because the individual is armed in order to conduct a valid weapons frisk.

¶31. In its second position, the State goes a step further and asks us to bar counsel from questioning an officer regarding his or her fear or belief that his or her safety or that of others was in danger when confronting an individual because the individual may be armed and to bar courts from considering such testimony.

¶39. In sum, the State cites no case supporting its proposed per se bright-line rule that this court should bar any questioning of an officer about his or her “subjective fear of the suspect.” We conclude that an officer may be questioned about his or her fear or belief that his or her safety or that of others was in danger because the person frisked may have been armed and that a court may consider an officer’s fear or belief that his or her safety or that of others was in danger in determining whether the objective standard of reasonable suspicion was met under the totality of the circumstances. An officer’s legal and subjective conclusions are, however, not determinative of the validity of the frisk; a court applies an objective standard to the facts known to the officer. The officer’s fear or belief that the person may be armed is but one factor in the totality of the circumstances that a court may consider in determining whether an officer had reasonable suspicion to effectuate a protective weapons frisk. Sometimes an officer’s perceptions will help sustain the objective reasonableness of an officer’s frisk. Other times, these perceptions may undercut a conclusion of reasonableness.

The court rejects the State’s effort to overturn State v. Mohr, 2000 WI App 111, 235 Wis.2d 220, 613 N.W.2d 186; that case, the court holds, properly applied an objective standard and therefore remains viable, ¶¶26-30. See also U.S. v. Graham, 6th Cir No. 05-4566, 4/12/07 (“The Supreme Court has never authorized a protective search on anything less than reasonable suspicion that a suspect was armed and dangerous”).

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