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Reasonable Suspicion – Frisk – High-Crime Area, etc.

State v. Tamara C. Limon, 2008 WI App 77, PFR filed 5/7/08
For Limon: Wm. Tyroler, SPD, Milwaukee Appellate; Lisa A. Packard, Law Student


¶34      Here, the officers were outnumbered and without backup when, following an anonymous tip that drug dealing and drug loitering activities were taking place on the porch of a residence in a high-crime area, they approached Limon and two men. The officers learned that the three did not live at the residence, and it appears that no explanation as to their presence was forthcoming. Shortly thereafter, a smokeable form of marijuana was observed on the porch. Under these circumstances, we conclude that the protective search of Limon’s purse was warranted based on the officers’ reasonable suspicion that they were in danger of physical injury. See Wis. Stat. § 968.25. The absence of backup at the scene and the fact that Limon’s arrest occurred shortly after the police made their investigative stop—within approximately one minute based on testimony at the suppression hearing—support this conclusion. Cf. State v. Mohr, 2000 WI App 111, ¶¶15-16, 235 Wis. 2d 220, 613 N.W.2d 186 (concluding that frisk was unreasonable where it occurred twenty-five minutes after the initial traffic stop and backup was present, because it was done as a general precautionary measure rather than because the officer thought the defendant was dangerous).

The test for a frisk is long-settled: there must be reasonable suspicion that the subject “is armed and presently dangerous.” Terry v. Ohio, 392 U.S. 1, 24 (1968). The court of appeals waters this down a bit (¶27: “danger of physical injury”), but the ensuing analysis suggests that the court is indeed testing a belief that Limon was armed. It’s also settled that no per se rule supports a frisk merely on suspicion of drug dealing, as the court also recognizes, ¶30. What, then, did support the belief that Limon might be armed? The presence of a single blunt at someone else’s feet? That’s a stretch. The fact “the officers were outnumbered” (3-2, if you’re keeping score at home)? What’s that got to do with whether Limon might be armed? This comes down to one thing and one thing only: the claim that it was a “high crime” area. The careful practitioner will have to take this into account in litigating suppression issues, and do whatever he or she can to establish a record going beyond the cops’ mere assertion that lots of bad stuff happens ‘round these parts, ‘specially after dark. For one thing, publicly available FBI data may shed some light, as the supreme court itself recognized, in State v. Scott K. Fisher, 2006 WI 44, ¶41. You may also be able to readily find locally collated data; Milwaukee, for instance, tabulated by police district. Take into account, too, that there ought to be some sort of “nexus” between the offense being investigated and the likelihood of armed danger, as U.S. v. Wright, 485 F.3d 45 (1st Cir 2007) recognizes:

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[.]

Keep in mind, too, that ultimately we’re talking about discrete areas. The overwhelming tendency is for officers to say that, wherever they happen to find themselves is “high crime.” Make sure, if you can, to put boundaries on the area, United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000) (en banc) (“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”). Maybe nothing will come of it and in the end the court may simply choose to ignore you, as Limon’s court did her on this point. Is there a “nexus” between a single blunt and armed danger? Perhaps the court didn’t see the need for a showing that specific; perhaps the court perceived that the anonymous report of “drug dealing” added something to the equation. Whatever ambiguities attend the decision, one thing to emerge clearly is that if you leave unrefuted the anecdotal assertion “high crime,” it will become a matter of established fact. More: it will have trumping force.

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