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Reasonable Suspicion – Stop – Basis: “Drug Crime” Area, Lateness of Hour, Nervousness

State v. Christopher Gammons, 2001 WI App 36
For Gammons: Keith A. Findley, LAIP

Issue/Holding: Police did not have reasonable suspicion to continued detention for a routine traffic problem after the purpose of the stop was fulfilled:

¶21 In evaluating reasonable suspicion, we must examine whether all the facts, when taken together, could constitute a reasonable suspicion. State v. Allen, 226 Wis. 2d 66, 75, 593 N.W.2d 504 (Ct. App. 1999). In support of its contention that Fahrney could have reasonably suspected Gammons and the others of drug activity, the State points to the following evidence in the record: the vehicle was stopped in a “drug-related” or “drug crime” area; it was 10:00 p.m.; the vehicle was from Illinois; Fahrney had knowledge of prior drug activity by each of the three men in the vehicle; and Gammons appeared to be nervous and uneasy.

¶23 Other than Fahrney’s personal knowledge of prior drug activity, the circumstances the State relies on here were all present in Betow: an out-of-town vehicle in an area purportedly known for drug activity; a night-time stop; and a nervous suspect. Moreover, the State does not assert that Gammons or Farr gave an implausible story of his whereabouts like the defendant in Betow. Finally, nothing in the record demonstrates that Fahrney observed Gammons or the others say or do anything that specifically indicated drug use or possession on the night of the stop.

¶24 While Fahrney’s initial questions may have been permissible under Griffith and Gaulrapp, no additional suspicious factors suggesting drug activity developed from Farr’s responses to Fahrney’s initial questions. Therefore, Fahrney had no basis to continue to detain Gammons and the others after Farr stated that the men did not have any drugs and denied Fahrney’s first request to search the vehicle. At that point, the Fourth Amendment required Fahrney to terminate the stop and allow Gammons and the other men to continue about their business. Instead, Fahrney continued to detain the vehicle and told Farr he was going to get a police dog to sniff the car. At that moment, the stop was transformed into an unlawful detention, and the State cannot rely on Farr’s subsequent consent to search to justify the police actions. Therefore, the drug evidence the police gathered from the subsequent searches was obtained in violation of Gammons’ Fourth Amendment rights and should have been suppressed. See State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 786-87, 601 N.W.2d 287 (Ct. App. 1999). On remand, the trial court should grant Gammons’ motion to suppress.


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