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SCOW to review ShotSpotter-related investigative stops

State v. Avant Rondell Nimmer, 2020AP878-CR, petition for review granted 3/24/21; case activity (including links to briefs and PFR)

Issue presented (composed by On Point):

Did police responding to a ShotSpotter alert of shots fired have reasonable suspicion to stop and frisk Nimmer based on his proximity to the address in the alert so close to the alert and Nimmer’s response to the officer’s arrival on the scene?

Investigative stop issues are fact dependent and governed by well-established rules, and so don’t usually meet the criteria for supreme court review. To get the court to bite in this case, the state’s PFR argued the court of appeals per curiam decision holding that Nimmer was unlawfully stopped conflicts with two unpublished court of appeals decisions that upheld an investigative stop in circumstances similar to Nimmer’s case—State v. Tally-Clayborne, 2016AP1912-CR (WI App Oct. 17, 2017), and State v. Norton, 2019AP1796-CR (WI App April 14, 2020). Though it’s not as if the court of appeals ignored other cases, as it relied on two published cases that found a lack of reasonable suspicion for a stop—State v. Pugh, 2013 WI App 12, 345 Wis. 2d 832, 826 N.W.2d 418, and State v. Washington, 2005 WI App 123, 284 Wis. 2d 456, 700 N.W.2d 305—and an unpublished decision, State v. Lewis, 2017AP234-CR (WI App July 24, 2017).

Beyond saying there’s an apparent conflict of outcomes in what are, in the end, heavily fact-dependent cases, the state also complained that the court of appeals failed to apply the totality-of-the-circumstances test by leaving out facts and considering others only in isolation, not together. Plus, the state argued, the court has never addressed investigatory stops in response to ShotSpotter alerts, which it characterizes as a “technological” rather than a “citizen” tip and therefore more accurate and reliable. Yet the “study” it cites for that proposition is, to say the least, underwhelming: a credulous law student note that, on quick perusal, appears to rely on ShotSpotter’s own self-interested claims and various mainstream media news articles. We’ll see if the supreme court is a more discerning consumer of such “studies” and whether ShotSpotter gets some special treatment or is just another factor to be included in the totatilty of the circumstances analysis.

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