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Defense win! Police lacked reasonable suspicion to stop male wearing dark clothing in a crime area

State v. Marquis Lakeith Pendelton, 2017AP2081-CR, 6/19/18, District 1, (1-judge opinion; ineligible for publication); case activity (including briefs)

A caller reported to police that 2 suspicious males had been looking into cars parked in a church lot at 1:30 a.m, at 68th and Silver Spring in Milwaukee and had just run away. An officer thought that the dispatcher said that one of the males was Black and wearing a dark hoodie.

Two officers arrived in squad car and saw a Black male walking down an alley behind the church. They drove through the alley following the male, saw that he was wearing a “nice jacket,” not a hoodie, and asked him to stop. He ignored them. The one of the officers got out of the car, instructed the male to stop and come to him, and the male (Pendelton) complied, but he turned and concealed his left hand in his left pocket as he did.

Pendleton was charged with 1 count of carrying a concealed weapon and moved to suppress the gun, arguing that the police lacked reasonable suspicion to stop him. The circuit court denied suppression but the court of appeals reversed.

First, the court of appeals held that Pendelton was not seized when police first asked him to stop, and he kept walking. He had a right ot do that under United States v. Mendenhall, 446 U.S. 544, 552 (1980). Instead, he was seized when an officer exited the squad car and instructed him to “stop and come here.” At this point a reasonable person would not longer believe that he was free to ignore the officer’s instruction. Opinion ¶23 (citing Mendenhall at 554).

Second, the court of appeals held that the police did not have reasonable suspicion to stop Pendelton because:

  • The person who called the police reported that the 2 males had just run away.
  • The officers arrived 10 minutes after the call.
  • Pendelton was wearing a “nice” jacket, not a dark hoodie.
  • The only facts connecting Pendelton to the caller’s report were that he was a male, in the alley, wearing dark clothing.
  • There was no evidence that it was unusual to be in the alley on a Saturday night.
  • The fact that it area was a “hot spot” for crime didn’t establish reasonable, particularized suspicion that Pendelton was committing a crime. Opinion ¶¶26-30.

For similar, recent defense wins, which the court of appeals does not cite, see State v. Lewis (no reasonable suspicion to stop Black male walking down alley holding up pants) and State v. Patrick Gordon (security adjustment in high crime area does not amount to reasonable suspicion).

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