State v. Melvin Bridges, 2009 WI 66, PFR filed 5/18/09
For Bridges: Michael S. Holzman
Issue/Holding: Frisk of Bridges during routine traffic stop (defective brake lights) upheld, where the early-evening stop was in an area “where the police had received numerous complaints of gunshots fired at night,” and Bridges when pulled over had made “a questionable movement”; State v. Gary A. Johnson, 2007 WI 32, distinguished:
¶16 Without more, observation of such a movement—consistent with everyday behaviors—is insufficient to justify a protective search. Id. The Johnson court twice noted that the officer “did not ask Johnson to explain the surreptitious movement that he had observed before conducting the protective search of the vehicle,” and the court observed that “[a] suspect’s answer to such a question and demeanor while answering could provide information that is relevant to whether a protective search is reasonable.”Id., 40 n.15; see also ¶4.
¶17 The protective search of Bridges during the investigatory stop was based on an objectively reasonable suspicion that Bridges had access to a weapon and presented a threat to the officers’ safety in light of the totality of circumstances. As in Johnson, the traffic stop took place at night. However, here the stop occurred in an area that was “not … good,” was poorly lit and deserted at night, and was known for frequent gunfire. The requested backup had not arrived, and the initial reason that Bridges was stopped had not been resolved before the protective search took place. Both officers witnessed Bridges make a movement consistent with obtaining or concealing a weapon. These officers, each with over five years’ experience in law enforcement, believed that Bridges may have been armed: Bridges was reaching toward his left front side, where a license or wallet is not usually kept, and Dummer had experience with “a lot of people” who concealed weapons under their left leg close to the car door. Spaulding recognized the shoving motion as consistent with an attempt to conceal a weapon or contraband.
¶18 Moreover, the present case is unlike Johnson because, before performing the protective search, Dummer questioned Bridges regarding the suspicious movement, and Bridges did not respond. Bridges’ failure to provide an explanation effectively transformed what Bridges now maintains was an innocent movement into a specific, articulable fact supporting a reasonable suspicion that Bridges posed a threat to the officers’ safety.
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¶21 The traffic stop of Bridges took place in a poorly lit, deserted area where gunfire was frequently heard at night, and the backup had not yet arrived. Both officers believed that Bridges may be armed based on their observations of his movements and their experience in law enforcement. Dummer took the minimally intrusive step of questioning Bridges to obtain information to confirm or dispel their suspicions. Bridges’ failure to answer, combined with the totality of circumstances, gave rise to “a reasonably prudent [officer’s] … belief that his [or her] safety … was in danger.” See Johnson, 299 Wis. 2d 265, ¶21 (citation omitted). [2]
Also distinguished, fn. 2, State v. Joshua O. Kyles, 2004 WI 15 (“While Kyles guides us in our decision, it does not control it.”). Kyles might be closer on its facts than the court suggests, but nonetheless the officer in that case critically acknowledged he felt no threat, which is likely the real point of distinction. Contrast, though, U.S. v. McKoy, 428 F.3d 38 (1st Cir 2005) (following stop of driver for parking violation: dangerousness of area and defendant’s nervousness and movements inside car not enough to support reasonable suspicion to frisk).
