State v. Earnest Alexander, 2005 WI App 235
For Alexander: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether description of a shooting suspect as a black male wearing black skull cap, black jacket and dark pants, more than a day after the shooting permitted the stop of Alexander ten blocks east of the crime scene, wearing a black skull cap, black waist-length jacket, and black pants, along with his “perceived hesitation [and] aversion to eye contact.”
Holding: The court considers the six factors listed in State v. Guzy, 139 Wis. 2d 663, 676, 407 N.W.2d 548 (1987), and concludes that “(a)s a whole,” the police lacked reasonable suspicion:
¶10 Given that twenty-six hours had passed, the “size of the area in which the offender might be found” was essentially infinite. …
¶11 Additionally, Alexander was found ten blocks east of the shooting location, but the victim reported that the shooter fled to the south. Alexander was doing nothing particularly suspicious when he was stopped—certainly nothing suspicious before Boynack approached him and Alexander averted his gaze. …
¶12 Finally, returning to the first factor, “the particularity of the description of the offender,” we agree with Alexander that the description in the crime summary was too vague. Indeed, there was no mention of age, height, build, complexion, facial hair, or other distinguishing characteristics. Rather, the description was of a black male in dark clothes which, as the trial court acknowledged, was likely to encompass much of the area’s population.
“Averted his gaze”—reminiscent of the skeptical observation in U.S. v. Broomfield, 7th Cir No. 04-4180, 7/29/05 (“Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.”). That sort of skepticism didn’t quite find overt expression in Alexander; whether it was at work sub rosa is impossible to say. nor is that the only way in which this opinion doesn’t break new ground. Thus, the court decides for the limited purpose of this case only that the collective knowledge doctrine (“information in the hands of an entire police department may be imputed to officers on the scene”) may impute to officers knowledge that would negate as well as establish probable cause, ¶¶13-16. Alexander raised this point but the State failed to respond to it; hence the court took it as given, but “for purposes of this case only.” Something to consider, then, for future litigation strategy.
See also U.S. v. Brown, 3rd Cir No. 05-1723, 5/22/06 (broadcast description of suspects — “as African-American males between 15 and 20 years of age, wearing dark, hooded sweatshirts and running south on 22nd Street [in Philadelphia, with large African-American population], where one male was 5′ 8″ and the other was 6′” — too general to support reasonable suspicion).
But see U.S. v. Goodrich, 3rd Cir No. 05-3071, 6/20/06 (“imprecise description … must be considered alongside any other relevant factors” — such as high crime area, time of day, temproal/geographical proximity to reported crime, number of persons in area).