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Frisk of Automobile – Minor Traffic Violation — Reasonable Suspicion, Multiple Factors: Furtive Movements, High-Crime Area, et. al

State v. Clemente Lamont Alexander, 2008 WI App 9
For Alexander: Michael C. Demo

Issue: Whether the police had reasonable suspicion to search the glove compartment of a car, stopped for a minor traffic violation (right turn on red without stopping), based on multiple factors: delay in pulling over, furtive movements, high-crime area, and post-stop observation of items on the driver seat normally found in the glove compartment.


¶13   Based on the totality of the specific facts in the instant case, we conclude that the officers had a reasonable suspicion of dangerousness to justify the pat-down and protective search. First, the officer’s concern for their safety was evident by the immediate pat-down, rather than, as in Johnson, the first concern was the emissions violation. Second, unlike in Johnson, the traffic violation here was not resolved before any pat-down was conducted. Third, the instant case occurred in a high-crime area, known for violent crimes and weapons, at a time when the police were on alert due to recent “shots-fired” complaints. Fourth, the occupants here engaged in repeated furtive movements prior to complying with police directive to stop their vehicle. Finally, the protective search of the glove compartment was done only after the officers observed items, normally found in the glove compartment, on the driver’s seat. Discovering these items there, consistent with the furtive movements the officers had observed, and the delay in pulling over, led to reasonable suspicion that Alexander was hiding a weapon in the glove compartment.

¶15      These cases are not easy matters to decide. We must balance the right of citizens to be free from unreasonable government intrusions and guard against the police overstepping their authority, with the safety of law enforcement officers who are patrolling dangerous areas and approaching vehicles in a society where assaults on officers by armed suspects are increasing daily. See Johnson, 299 Wis. 2d 675, ¶22; State v. McGill, 2000 WI 38, ¶20, 234 Wis. 2d 560, 609 N.W.2d 795. We are convinced that the officers in the instant case had sufficient particularized facts to raise a reasonable suspicion that the situation was dangerous, and that the occupants of the vehicle may have had a weapon. We base our decision on the following factors: (1) the officers were in the area due to “shots fired” complaints and knew the area to be very violent, with substantial drug and gun activity; (2) the numerous furtive gestures of the occupants of the car observed by the officers before the car stopped; (3) the delay in stopping raising the suspicion of the officers that the occupants were buying time to hide weapons; (4) the officers belief that the situation was dangerous based on the occupants actions immediately upon stopping the car; (5) the items observed on the driver’s seat and the reasonable inferences that could be drawn therefrom; (6) the protective search being the first priority over the traffic stop; and (7) the trial court’s credibility determinations.

The court doesn’t quite mention the fundamental principle that before frisking, the police “must have reasonable suspicion that a person may be armed and dangerous,” State v. Joshua O. Kyles, 2004 WI 15, ¶26. (And even that articulation is a tad watered down from the original statement in Terry v. Ohio, 392 U.S. 1, 24 (1968), that the officer must be “justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous.”) The State, that is, must make an “armed-and-dangerous” showing separate and apart from the basis for the stop. The court of appeals was undoubtedly aware of this basic requirement, and it’s not as if teasing it out would have changed the result; it’s just that failure to stress it explicitly may encourage its to be further watered down.In any event, if you were wondering how far the appellate courts might go in (not) suppressing evidence uncovered during a routine traffic stop, this decision might be something of a boundary marker and you’ll have to make the best of it. Speaking of which …

The court stresses “furtive” gestures, a hallmark of frisk cases, but it’s worth keeping mind that the court very carefully links furtiveness here to the (supposedly) unusual delay in pulling over; see ¶11 (“cars normally pull over within one-half of a block”). The antipodal case is State v. Gary A. Johnson, 2007 WI 32, ¶¶34-36 (“single factor” of furtive movement not enough, at least in that instance). Most cases will probably fall in between (that is, after all, in the nature of antipodes, right?), and how courts will treat those remains to be seen. The objective will be to characterize Alexander as the outer limit of what is permissible, and it may well be that the sheer multiplicity of factors (¶15) supports that goal. On the other hand, the court’s attempt (¶13) to limit Johnson to its facts is potentially problematic; see also, especially, ¶16:

¶16      There seems to be a common factor in some of these cases, where the courts have concluded that the officers did not have justifiable basis for conducting a protective sweep—that factor being when the protective search takes place after the traffic investigation has been completed. See Johnson, 299 Wis. 2d 675, ¶¶45, 48, State v. Gammons, 2001 WI App 36, ¶¶1, 24, 241 Wis. 2d 296, 625 N.W.2d 623. As noted, such was not the case here—the facts and circumstances demonstrate that the officers’ primary concern was indeed weapons and safety, as evidenced by the fact that the protective search was the first thing the officers did. The protective search was not an afterthought, but the first concern. The facts and circumstances presented above demonstrate that the high-crime area in the instant case was only one of several factors justifying the officers’ actions.

Minor quibble: in this context, “protective sweep” as a matter of taxonomy isn’t quite correct, referring generally to cursory inspections for potentially dangerous individuals incident to arrest, Maryland v. Buie, 494 U.S. 325 (1990). The broader problem is that the court seems to encourage the police to frisk first and ask questions later—if they do, then that will show their “primary concern” to be “indeed weapons and safety,” thereby supporting the frisk (and therefore also critically distinguishing Johnson). It may well be that the cop’s subjective perception of danger is relevant, Kyles, 2004 WI 15, ¶4, but ultimately the test is an objective one: whether belief the suspect was armed and presently dangerous was reasonable. In this regard, establishing the area’s high-crime nature is relatively uncharted litigation terrain. It is almost a given that the cop will assert that the area was in the nature of an urban jungle (even when it’s rural or exurban; one size fits all). In this case, the testimony was a bit more refined than most, and perhaps nothing could have been done with it:

¶10      In the instant case, the facts are distinguishable from Johnson. Officer Newport testified about the high-crime area, stating that it was an area of violent crime, drug dealing, and active gangs. A number of homicides, attempted homicides, and shootings had occurred in this area, which Newport had five years of experience in patrolling. He had personally encountered armed criminals in the area, and was parked there on the evening of Alexander’s stop due to “shots-fired” complaints, some of which were drive-by shootings.

Nonetheless, this is a crucially recurrent, fact-specific issue that has to be contested where, and as fully as, possible. E.g., U.S. v. Wright, 1st Cir No. 06-1351, 5/4/07:

In most cases, the relevant evidence for this factual finding will include some combination of the following: (1) the nexus between the type of crime most prevalent or common in the area and the type of crime suspected in the instant case …; (2) limited geographic boundaries of the “area” or “neighborhood” being evaluated …; and (3) temporal proximity between evidence of heightened criminal activity and the date of the stop or search at issue[.]

And, United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000) (en banc), footnotes omitted:

The citing of an area as “high-crime” requires careful examination by the court, because such a description, unless properly limited and factually based, can easily serve as a proxy for race or ethnicity. District courts must carefully examine the testimony of police officers in cases such as this, and make a fair and forthright evaluation of the evidence they offer, regardless of the consequences. We must be particularly careful to ensure that a “high crime” area factor is not used with respect to entire neighborhoods or communities in which members of minority groups regularly go about their daily business, but is limited to specific, circumscribed locations where particular crimes occur with unusual regularity. In this case, the “high crime” area is in an isolated and unpopulated spot in the middle of the desert. Thus, the likelihood of an innocent explanation for the defendants’ presence and actions is far less than if the stop took place in a residential or business area.

Also keep very much in mind State v. Scott K. Fisher, 2006 WI 44, a right-to-bear-arms case which nonetheless contains this passage, ¶41:

… Fisher’s tavern, in contrast, cannot realistically be considered to be situated in a high-crime neighborhood. He testified that he knew of four businesses that had been robbed, some at gunpoint, in the last year or so in Black River Falls. The State has countered this evidence with publicly-available FBI crime statistics showing that crime rates in Black River Falls (population 6,225, according to the FBI statistics) do not differ significantly from rates in other areas of similar populations.[6] We are not persuaded that Fisher can reasonably characterize Black River Falls at the time of his arrest as a high-crime area. Such a characterization would erase any meaningful distinction between a truly high-crime area and any other area.

Fisher wanted the court to affix the “high-crime” label to his area; the court found a reason not to—funny how that seems to work. In any event, take a hint from the foregoing: you don’t need to take the cops’ word; crime data are available; the figures are examined comparatively, not in a vacuum; there must be some nexus between the prevalent crime(s) and the particular suspicion; etc.


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