In a 2-1 decision, Judge Donald (joined by Judge White) holds that officers do not have reasonable suspicion to seize the passenger of an SUV just because he and the driver were sitting in the SUV with the lights off in an alley at night in a high crime area and the passenger moved when the officer shined a spotlight at him. Judge Dugan filed a lengthy dissent.
Let’s fill in some details. Officer Rivera and his partner weren’t responding to tips, and they had no hunch that criminal activity was afoot. They were just out on a routine patrol when they saw an SUV parked in an alley in a high crime area at 11:15 p.m. Two people were sitting in it. Rivera shined a spotlight into the SUV and saw McBride (the passenger) move in response. He ordered the driver and McBride to put their hands up.
Rivera opened the passenger door, handcuffed McBride, and removed him from the car. He saw an unlabeled, orange pill bottle between the passenger door and the seat. He also found a pill bottle in McBride’s front pocket after a pat down.
McBride moved to suppress. At the hearing, Rivera testified that the SUV was not parked to the side of the alley; it was parked “right in the alley” and could have interfered with traffic. However, he admitted that his squad car could maneuver around the SUV and that he did not take measurements of the alley to determine whether it in fact would obstruct traffic.
In a crisp 9-page decision, the majority reversed the circuit court’s denial of suppression. The State agreed that McBride was seized when Rivera told him to raise his hands. It also agreed that an individual’s presence in a high crime area by itself does not create reasonable suspicion that he is committing a crime. Opinion, ¶¶14-17 (citing See State v. Gordon, 2014 WI App 44, ¶15, 353 Wis. 2d 468, 846 N.W.2d 483).
Rivera testified that McBride moved in response to a spotlight but the officers’ body cameras did not confirm this testimony. Furthermore, furtive or suspicious movements do not automatically give rise to reasonable suspicion. Nor does a security adjustment such as the one at issue in Gordon. Here there wasn’t even a security adjustment. The majority said that moving in response to having a spotlight shined into your car is hardly suspicious behavior. Opinion, ¶¶19-20.
The majority also held that the circuit court’s factual finding that the SUV obstructed traffic in the alley was clearly erroneous. A video showed that the SUV was in fact parked on the side of the ally, not in the middle as Rivera testified. Furthermore, Rivera conceded that he could drive around the SUV. Opinion, ¶¶20-21.
The dissent, in contrast, assumes that the SUV was improperly parked in the alley. From there, its reasoning starts to sound like If You Give a Mouse a Cookie. If the car was parked improperly, the officers had reasonable suspicion of a traffic violation. Opinion, ¶¶34-38 (citing State v. Colstad, 2003 WI App 25, ¶¶8-9, 260 Wis. 2d 406, 659 N.W.2d 394). If the officers had reasonable suspicion of a traffic violation, they could detain and seize the occupants of the SUV. If the officers could detain and seize the occupants, they could order them to exit the vehicle. And so forth. Opinion, ¶¶35-48 (citing Arizona v. Johnson, 555 U.S. 323, 327 (2009), Pennsylvania v Mimms, 434 U.S. 106 (1977) (per curiam), and Maryland v. Wilson, 519 U.S. 408 (1997).
Because Dugan concluded that there was reasonable suspicion for McBride’s seizure, he proceed to decide issues that the majority did not need to address. He would hold that Rivera had probable cause to arrest McBride and to search him incident to that arrest. Opinion, ¶¶49-63.