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Reasonable Suspicion – Stop – Basis – Automobile – Investigate Earlier Crime

State v. Alisha M. Olson, 2001 WI App 284
For Olson: Daniel P. Fay

Issue: Whether the police had reasonable suspicion to make a traffic stop to investigate the driver for a burglary two days earlier.


¶8. In the present case, we find sufficient facts to give rise to a reasonable suspicion that Olson had committed a crime. The Waukesha County Sheriff’s Department did not pull Olson’s name out of a hat. An anonymous caller to We Tip first made it suspect Olson. However, the two calls to the hotline were not the only facts stacking up against Olson. While talking to her mother, the officers discovered that Olson had the opportunity to commit the burglary. Finally, Olson’s purposeful avoidance of the officers evidenced at least a guilty conscience. Although avoidance of the police and refusal to cooperate may be founded in wholly innocent intentions and without more do not create reasonable suspicionFlorida v. Bostick, 501 U.S. 429, 437 (1991), ‘cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion,’ Illinois v. Wardlow, 528 U.S. 119, 124 (2000). In addition to specific facts, ‘the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.’ Id. at 125. In looking at the totality of the circumstances, see Gruen, 218 Wis. 2d at 590, a reasonable police officer could reasonably suspect that Olson was somehow involved in the burglary.

(Emphasis supplied.)

This may be the first Wisconsin decision to acknowledge that “police avoidance” behavior will not alone support reasonable suspicion. And see also U.S. v. Bonner, 3rd Cir No. 03-1547, 3/30/04 (“Indeed, the Supreme Court has never held that unprovoked flight alone is enough to justify a stop. The Supreme Court has held, however, that flight upon noticing police, plus some other indicia of wrongdoing, can constitute reasonable suspicion. Wardlow, 528 U.S. at 125-26….”)

Separately — though the point may seem obvious — with respect to the court’s discussion of “refusal to cooperate,” it should be noted that “(a) refusal to consent to a search cannot itself form the basis for reasonable suspicion,” U.S. v. Santos, 10th Cir No. 03-8059, 4/6/05.

And when, as here, investigation centers on past, rather than ongoing, criminal activity, additional analysis may be necessary, ¶9:

¶15. These circumstances parallel those in Hensley where the police had been unable to locate the suspect. Hensley, 469 U.S. at 229. Here, although the police had a good idea of where Olson was, her stonewalling made any attempt at voluntary conversation impossible. A traffic stop became a reasonable solution to further the investigation. We do not say that reasonable suspicion of a past crime always justifies a traffic stop. A seizure, especially in the traffic stop context, is a serious intrusion on an individual’s liberty and must be objectively reasonable by Fourth Amendment standards. Courts must balance the intrusion on the individual against the governmental interests of the State. Here, the reasonable suspicion that Olson was involved in the burglary, the strong governmental interest in solving crimes, and the purposeful avoidance of the police by Olson make Bach’s traffic stop a reasonable one under the facts and circumstances of this case. Accordingly, Olson’s evidentiary challenge must fail, and any statements made by her during the traffic stop are admissible. We therefore uphold Olson’s judgment of conviction.

Compare, U.S. v. Grigg, 9th Cir No. 06-30368, 8/22/07 (concluding, after detailed discussion: “the rule we derive from Hensley [is] that a court reviewing the reasonableness of an investigative stop must consider the nature of the offense, with particular attention to any inherent threat to public safety associated with the suspected past violation”; complaint of prior excessive noise therefore couldn’t support stop of car).

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