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Frisk of Automobile – Reasonable Suspicion: Single Factor – “Furtive” Movement

State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate


¶34      Turning to the present case, the State contends that Johnson’s movement in the interior of the car was a sufficiently compelling factor to justify Stillman’s protective search of Johnson’s car. The State asserts that the court of appeals improperly concluded this single factor, by itself, was not enough to establish reasonable suspicion.

¶35      We agree with the State that the presence of a single factor, if sufficiently compelling, may give rise to reasonable suspicion justifying a protective search.…

¶36      Under the totality of the circumstances present in this case, we conclude that Johnson’s “head and shoulders” movement did not give Stillman reasonable suspicion to conduct a search of Johnson’s person and car.

¶41      As in Kyles, where we concluded officers lacked reasonable suspicion to conduct a protective search, Johnson was not suspected of a crime associated with weapons possession, and officers had had no prior contact with Johnson suggesting that he was a dangerous individual. The stop occurred in early evening in an area that was well lit. Johnson cooperated with officers, producing documentation showing that his vehicle had recently passed an emissions test. Despite complaining of a bad leg, Johnson complied with Stillman’s lawful request for him to exit the vehicle.

¶43      Were we to conclude that the behavior observed by the officers here was sufficient to justify a protective search of Johnson’s person and his car, law enforcement would be authorized to frisk any driver and search his or her car upon a valid traffic stop whenever the driver reaches to get his or her registration out of the glove compartment; leans over to get his wallet out of his back pocket to retrieve his driver’s license; reaches for her purse to find her driver’s license; picks up a fast food wrapper from the floor; puts down a soda; turns off the radio; or makes any of a number of other innocuous movements persons make in their vehicles every day. In each of these examples, the officer positioned behind the vehicle might see the driver’s head and shoulders move, or even momentarily disappear from view. Without more to demonstrate that, under the totality of circumstances, an officer possesses specific, articulable facts supporting a reasonable suspicion that a person is dangerous and may have immediate access to a weapon, such an observation does not justify a significant intrusion upon a person’s liberty.

A highly fact-specific case with, to be sure, exceptionally favorable facts. The trial court’s ruling (¶7, that Johnson consented to the search by acquiescing to it) was a stretch. About all the police had was a supposedly furtive gesture; nothing more, really, than appearing to reach under his seat (¶3). If there’s an overarching principle, that’s probably it: a furtive gesture alone isn’t enough. See, e.g., U.S. v. Spinner, D.C. Cir. No. 05-3160, 1/16/07:

Some additional fact is needed to get from the defendant’s conduct (or his nervousness) to his likely being dangerous….We recognize that “traffic stops may be dangerous encounters,” … Still, the suspicion that someone is armed — or, in this case, might have a weapon available in his vehicle — must be based upon something more than his mere nervousness. A person stopped by the police is entitled to be nervous without thereby suggesting he is armed and dangerous or, indeed, has anything to hide. Were nervous behavior alone enough to justify the search of a vehicle, the distinction between a stop and a search would lose all practical significance, as the stop would routinely — perhaps invariably — be followed by a search. We do not read Long to reach so broadly into the rights of motorists to be free of searches based upon less than probable cause.

Note in particular the absence of any claim the stop occurred in a high-crime area, something the court of appeals drew careful attention to, 2006 WI App 15, ¶16, string-citing cases which contrastingly involved high-crime areas, including State v. Roosevelt Williams, 2001 WI 21, in which a furtive movement together with minimal other factors, did support a search. Nonetheless the supreme court interestingly does not assign much if any signficance to this (non-)factor (though the court does draw attention to the high-crime case Kyles because even there a frisk was unsupported), ¶42.

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