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Investigatory Stop – Reasonable Suspicion; Frisk

State v. Loren C. Purintun, 2010AP2493-CR, District 3, 3/15/11 

court of appeals decision (1-judge, not for publication); for Purintun: Dan Chapman; case activity

¶9        Here, the totality of the circumstances provided Hodek with reasonable suspicion to stop Purintun.  Hodek was dispatched to a semi-rural area to investigate a report of either a shooting or a car accident.  He encountered Purintun about one-half mile from the address provided by dispatch.  Purintun was staggering backwards down the road, moving away from the location where the shooting or car accident had reportedly occurred.  Based on these facts, Hodek could reasonably suspect that Purintun was involved in some kind of criminal activity.  Specifically, Hodek could have reasonably concluded Purintun had been in a car accident, was either injured or intoxicated, and was leaving the scene of the crash.  Or, Hodek could have reasonably believed Purintun had been shot and was staggering backwards down the road, facing the shooter.  Alternatively, Hodek could have reasonably suspected that Purintun was the shooter, was attempting to leave the area, and was facing backwards to determine whether anyone was following him.  Reasonable suspicion therefore supported the investigatory stop.

¶11      Based on the totality of the circumstances, Hodek had reason to believe Purintun might be armed and dangerous.  Hodek knew that a potential shooting had been reported about one-half mile from Purintun’s location.  Purintun was staggering backwards down the road in the dark, facing the direction of the reported shooting.  Hodek did not see any other individuals or vehicles in the area.  Purintun placed his hands in his sweatshirt pockets and then put them back in his pockets seconds after being asked to remove them.  On these facts, Hodek could reasonably suspect Purintun was involved in a shooting, had a weapon in his sweatshirt, and presented a danger to Hodek and the other deputy.  Hodek was therefore justified in performing the protective frisk.

¶12      Purintun cites State v. Kyles, 2004 WI 15, 269 Wis. 2d 1, 675 N.W.2d 449, and State v. Mohr, 2000 WI App 111, 235 Wis. 2d 220, 613 N.W.2d 186, for the proposition that merely putting one’s hands in one’s pockets after being ordered to remove them is insufficient to establish reasonable suspicion of dangerousness.  See Kyles, 269 Wis. 2d 1, ¶48 (declining to adopt a bright line rule “that an individual’s ‘hands in pockets’ automatically establishes reasonable suspicion of dangerousness”).  However, Hodek’s suspicion was not based solely on the fact that Purintun placed his hands in his pockets.  Hodek knew that a potential shooting had been reported in the vicinity and believed Purintun was acting suspiciously by staggering backwards down the road.  These additional facts, combined with Purintun’s refusal to keep his hands out of his pockets, supported Hodek’s reasonable belief that Purintun might be armed and dangerous.

As the court implicitly acknowledges, ¶10, a frisk requires reasonable suspicion the suspect is “armed and dangerous” in addition to reasonable suspicion the person might have committed a crime. Arizona v. Johnson, 129 S. Ct. 781, 784 (2009): “First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.” Did the court here water down that requirement? Depends on what the definition of “is” is: whether, that is, reasonable suspicion the person “might be” armed and dangerous comes to the same thing as reasonable suspicion he “is” armed and dangerous. “Might be” is a very common iteration of the test – Kyles, 2004 WI 15,¶40, for just one of many examples. Still, it probably wouldn’t hurt to keep to “is.”

As for the facts at hand, they are remarkably vague. The officer was dispatched to the scene of reported “gunshots or a traffic accident,” finding Puritun about a half-mile from the scene, ¶2. Granted, Puritun’s behavior was more than a little odd. Still, there is literally nothing to suggest that the initial report was minimally reliable (anonymous source? citizen informant? when made? basis for observation? why couldn’t the informant distinguish between gunshots and traffic accident? the court doesn’t say). Nor does the court even describe the interval between the report and dispatch to the scene. And so on.

Other frisk cases – no claim made of factual similarity, merely that they contain refined analysis – include: State v. Sumner, 2008 WI 94, ¶¶21-23; State v. Applewhite, 2008 WI App 138, ¶¶6-11.  

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