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Frisk of Automobile – Furtive Movement

State v. Dennis E. Bailey, 2009 WI App 140
For Bailey: Jeffrey W. Jensen

Issue/Holding: Court upholds frisk of vehicle, following stop for minor equipment violation (excessive window tint) in high crime area, where driver made furtive gesture (kicking motions under front seat) and officer testified that he saw a bag, which he thought contained a gun, protruding from under seat, ¶¶24-50. State v. Gary A. Johnson, 2007 WI 32, distinguished:

¶37      We conclude that there are four key distinctions between the search inJohnson and the search of Bailey’s vehicle: (1) Bailey’s furtive-type movements were repeated; (2) Bailey was given a chance to explain and gave an apparently disingenuous response; (3) Bailey’s stop was in a high crime area; and (4) Novack had experience recovering guns under similar circumstances and was genuinely concerned for his safety.

¶40      In Johnson the police offered no testimony as to experience with recovering guns in the same type of situation or describing the area as one of high crime. The police in Johnson testified they were looking for guns or contraband. Their uncertainty as to the focus of their search undercut their claim to a specific basis for believing a search was necessary for their protection. Novack’s testimony was specific. The repeated kicks, unlikely “candy” explanation, the visible opaque plastic bag, and Novack’s experience with guns in similar situations all established a reasonable basis to believe a protective search was necessary for the officers’ safety.

High crime? Maybe, but all we have for it is the officer’s say-so, along with the court’s reflexive agreement. The stop occurred at 45th & North at 7:25 p.m., for those familiar with the area.


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