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When a change in expression amounts to reasonable suspicion for a frisk

State v. Kavin K. Nesbit, 2016AP224-CR, 8/9/17, District 2 (recommended for publication); case activity (including briefs)

Nesbit ran out of gas on I 94. He and his buddy were walking on the shoulder, red can in hand, to get gas when Deputy Fowles pulled up and told them he’d give them a ride to and from the gas station. But first, he asked them if they had any weapons. The friend said “no.” Nesbit who had been behaving normally “‘all of a sudden’ became ‘very deflated’ and shook his head slightly in the negative.”

At the inevitable suppression hearing, Fowles testified that it was department policy to frisk people before they get into a squad car. Due to Nesbit’s change in expression, he frisked Nesbit first and found a loaded gun.

The court of appeals held that the fact that Fowles was going to conduct the search per department policy was not controlling. He still had to have objectively reasonable suspicion to conduct a frisk for weapons.  Op. ¶5. And he had it:

¶10 That said, this is a close case. Contrary to the State’s suggestion, we find nothing suspicious about two men walking down the expressway with a gas can (illegal though it may be). Until the conversation turned to getting in the squad car, nothing was out of the ordinary or concerning. Essentially, this case comes down to one key fact and the rational inferences to be drawn therefrom in light of additional facts.

¶11 The key fact is Nesbit’s response to the question of whether he had any weapons on his person. Fowles testified that Nesbit became “very deflated.” Where before he was talking and pointing, his arms were now down at his side and “he shook his head to the negative just slightly.” Fowles called it a “very, very different change in demeanor as compared to” his friend. ¶12 One who reacts to a question by quieting down, becoming deflated, and responding demurely does so for a reason. A reasonably prudent officer seeing this response to a question about weapons would be suspicious and wonder if the answer was truthful. It is well established that an abnormal nervousness or unusual response to interaction with law enforcement is a relevant factor in whether a person is armed and dangerous. See State v. Morgan, 197 Wis. 2d 200, 214-15, 539 N.W.2d 887 (1995). Moreover, possible deception or untruthfulness is also one of many factors that may legitimately contribute to a reasonable suspicion. See, e.g., United States v. Simpson, 609 F.3d 1140, 1149 (10th Cir. 2010) (explaining that it is “noncontroversial” that “lies, evasions or inconsistencies about any subject while being detained may contribute to reasonable suspicion”).

In a footnote, the court of appeals stressed: “To be clear we are not announcing a bright-line rule that it is per se reasonable to conduct a frisk for weapons every time an officer escorts a person in his or her squad car. Our decision must be based on the unique facts and circumstances of this case.” Op. ¶15 n.2.  Really? Then why publish this decision? Neither party asked for it in their briefs. Nesbit argued that he should win based on a simple application of State v. Hart, 2001 WI App 283, ¶17, 249 Wis. 2d 329, 639 N.W.2d 213 (overruled on other grounds), which holds that the need to transport a person is not an exigency that justifies a search for weapons.

Note that the court of appeals said that this “close case” comes down to “one key fact”–Nesbit’s change in countenance. That conclusion seems at odds with cases like State v. Johnson, 2007 WI 32 and State v. Kyles, 2004 WI 15, which hold that a nervous demeanor or furtive movement do not automatically establish reasonable suspicion that a person is armed and dangerous.

 

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