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Reasonable Suspicion – Stop – Basis – High-Crime Area

State v. Tartorius Allen, 226 Wis.2d 66, 593 N.W.2d 504 (Ct. App. 1999)
For Allen: Steven D. Phillips, SPD, Madison Appellate.


Allen and his companion being in a high-crime area, standing alone, would not be enough to create reasonable suspicion. A brief contact with a car, standing alone, would not be enough to create reasonable suspicion. Hanging around a neighborhood for five to ten minutes, standing alone, would not be enough to create reasonable suspicion. On the other hand, when these three events occur in sequence and are combined with the officers’ experience and training, the reputation of the area and the time of day are considered, there is enough to create a reasonable suspicion to justify a Terry stop.

State v. Young, 212 Wis. 2d 417, 569 N.W.2d 84 (Ct. App. 1997) distinguished, on basis that Young merely engaged in “conduct that large numbers of innocent citizens engage in every day for wholly innocent purposes”; but Allen’s conduct, “briefly getting into a car that stops and then remaining in the neighborhood for five to ten minutes after the car leaves is not an everyday occurrence.”) A frisk is an intrusion additional to the stop, and requires additional justification about the presence of a weapon. On this point, the court merely repeats the factors relied on for the stop: “Given the circumstances present here, including the time of day, a brief contact in a car, the contact could not be observed, hanging around after the contact and all of this happening in a high-crime area, the police officer was justified in his precautionary pat-down to determine if Allen was armed and dangerous.”

If reasonable suspicion is tested by the intersection of a high-crime axis with the suspect’s behavioral axis, then high-crime ought to be conceptualized as a variable, not a static, factor and litigated as such (as noted immediately below). But certainly the potential suspect’s behavior is an important variable, as the differing results in Young and Allen establish. There’s no reason to think that Young‘s principle is limited to the particular facts; for example, more is needed than merely going into a house known to have been the site of drug transactions, State v. Maple, 2005-Ohio-495:

{¶21} In the case sub judice, we also find that the officer did not have a reasonable and articulable suspicion of criminal drug activity to support an investigative stop of appellant. The officers only observed appellant at the home for ten seconds or less. The officers did not recognize appellant or his companion. There were no visible exchanges between the appellant and anyone in the home. There was no evidence of other traffic in or out of the house to indicate the current sale of drugs, and no recent arrests for the selling or purchasing of drugs in the house. There is no evidence as to how long appellant had been at the door or whether anyone was even inside the home at the time. In short, on this night, there were no other indications of illegal drug activity than appellant and the other individual standing outside the home in the vicinity of the side door. Upon review of the totality of the circumstances, we find there were no reasonable, articulable facts upon which the officer could base a Terry stop. State v. Knight (Dec. 28, 2004), Licking App. No. 04CA24 at ¶14.

See also discussion in State v. Porter, 2006-Ohio-4585. But see U.S. v. McCargo, 2nd Cir No. 05-4026-cr, 9/13/06 (911 call reporting crime at 1:00 a.m., defendant only pedestrian in area leading from crime, and he stared “intently” at cruiser; area generally high-crime — amounted to reasonable suspicion).

On to the other axis, which Allen blandly terms, “reputation of the area”: The high-crime nature of the scene seems to be litigated but rarely on the trial-level; more thought might be given to challenging a bland “high-crime” assertion in a given case — this would seem to be a factual question and ought to be approached as such. Note that under State v. Morgan, 197 Wis. 2d 200, 539 N.W.2d 887 (1995), “an officer’s perception of an area as ‘high-crime’ can be a factor justifying a search”; thus, the officer’s unembellished testimony of the area as “fairly high-crime,” rejected by the trial because not backed up by any proof, could indeed be factored into a reasonableness calculus. But nothing inMorgan suggests that you’re saddled with the officer’s perception — unless, that is, you do nothing to challenge it. The thrust of fourth amendment analysis is away from subjective factors and in favor of objective factors. That the police thought the area was high-crime should be trumped by factsshowing that it wasn’t. No facts were adduced in Morgan, and thus that case means that the officer’s perception is relevant in the absence of evidence to the contrary. But, again, the case simply doesn’t prevent litigation of the truth of the perception. See, e.g., U.S. v. Bonner, 3rd Cir No. 03-1547, 3/30/04:

the government submitted a log book of arrests made at the housing project over a three-year period. As the District Court found, the log book reflected that there was an average of 1.3 arrests per week, and that most of the arrests were for misdemeanors and summary offenses. Considering the number of people who live in the housing project, the District Court found that this average reflected neither a high crime area nor trafficking in narcotics. … We conclude that the fact finding by the District Court was not clearly erroneous.

And, U.S. v. Wright, 1st Cir No. 06-1351, 5/4/07:

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[.]

And see United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000) (en banc), footnotes omitted:

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. District courts must carefully examine the testimony of police officers in cases such as this, and make a fair and forthright evaluation of the evidence they offer, regardless of the consequences. We must be particularly careful to ensure that a “high crime” area factor is not used with respect to entire neighborhoods or communities in which members of minority groups regularly go about their daily business, but is limited to specific, circumscribed locations where particular crimes occur with unusual regularity. In this case, the “high crime” area is in an isolated and unpopulated spot in the middle of the desert. Thus, the likelihood of an innocent explanation for the defendants’ presence and actions is far less than if the stop took place in a residential or business area.

Note also State v. Scott K. Fisher, 2006 WI 44, a right-to-bear-arms case but which interestingly contains this passage potentially relevant to search-seizure cases, ¶41:

… Fisher’s tavern, in contrast, cannot realistically be considered to be situated in a high-crime neighborhood. He testified that he knew of four businesses that had been robbed, some at gunpoint, in the last year or so in Black River Falls. The State has countered this evidence with publicly-available FBI crime statistics showing that crime rates in Black River Falls (population 6,225, according to the FBI statistics) do not differ significantly from rates in other areas of similar populations.[6] We are not persuaded that Fisher can reasonably characterize Black River Falls at the time of his arrest as a high-crime area. Such a characterization would erase any meaningful distinction between a truly high-crime area and any other area.

But back to mere presence in a high-crime area: see U.S. v. Johnson, 7th Cir. No. 03-2173, 9/2/04 (“(1) spotting a vehicle almost matching the description of the one described in the dispatch traveling within six blocks of suspicious activity …; (2) traveling in a known drug area; (3) at 4:30 a.m.” — not enough for reasonable suspicion).Compare, In re Ilono H., 113 P.3d 696 (Ariz. App. 2005) (¶¶5-6: no RS to stop individuals in park even though wearing clothing associated with gangs that frequented the park, and one of group was known gang member with recent acts of violence).


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