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Stop, frisk for weapons justified

State v. Marcellous D. Tally-Clayborne, 2016AP1912-CR, District 1, 10/17/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Tally-Clayborne challenges his carrying a concealed weapon conviction, arguing he was unlawfully stopped, detained and searched because police had no information suggesting he was involved in any illegal activity. The court of appeals holds both the stop and pat-down search were justified.

¶10     Here, the totality of the circumstances provided [Officer] Dillman with reasonable suspicion to stop Tally-Clayborne. Dillman heard two gunshots from within a block of the location he and his partner were parked. Dillman testified that based on his experience as an officer, he was familiar with the sound of gunshots. The shots were fired in the dark in the City of Milwaukee, which by ordinance, prohibits the public discharge of a firearm…. Dillman traveled in the direction of the gunshots and within twenty to twenty-five seconds, Dillman saw Tally-Clayborne and two other individuals. Dillman did not see anyone else. Given the potential safety risk, the potential ordinance violation, the time of night the shots were fired, the fact that Tally-Clayborne and his companions were the only individuals visibly present in the area of the shooting, and the fact that Tally- Clayborne attempted to walk away from the officers patting down his companions while reaching for his waistband, Dillman could reasonably suspect that Tally- Clayborne was involved in some sort of criminal activity.

¶11     Based on the totality of the circumstances, Dillman also had reason to believe that Tally-Clayborne may be armed. Dillman heard gunshots within a block of the location he spotted Tally-Clayborne and his friends. No one else was in the area. Tally-Clayborne started to walk away while police were patting down the other two individuals, which Dillman said, based on his experience as an officer, was suspicious behavior. Tally-Clayborne also grabbed his waistband. All of these facts taken together show that Dillman had reasonable suspicion to believe Tally-Clayborne was armed with a dangerous weapon, thus justifying a weapons frisk.

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