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SCOW finds generic conduct in “high crime area” created reasonable suspicion of criminal activity

State v. James Timothy Genous, 2021WI 50, reversing an unpublished court of appeals opinion, 2019AP435-CR, 6/4/21; case activity (including briefs)

An officer saw Genous sit in a parked car, engine running and headlights on, in a residential neighborhood at 3:36 a.m.  A woman emerged from a house, entered the car for 10 to 15 seconds, and returned to the house.  Although the officer could not see what happened inside the car, the woman appeared to match the description of a female drug user who was known to live in the house. Plus the officer had heard that this area had a reputation for drug trafficking. In a 4-3 opinion, SCOW held that these facts gave the officer reasonable suspicion to stop Genous for possible drug dealing.

To determine reasonable suspicion a court must consider the totality of the circumstances and ask what a reasonable officer would reasonably suspect in light of his training and experience. State v. Post, 2007 WI 60, ¶18, 301 Wis. 2d 1, 733 N.W.2d 634; State v. Anderson, 155 Wis. 2d 77, 83-84, 454 N.W.2d 763
(1990). Justice Hagedorn, writing for the majority, held:

¶11 In this case, Officer Stikl suspected that the interaction he witnessed in Genous’ car was a drug deal. The facts show that his suspicion was objectively reasonable. Informed by his training, experience, and department communications, Officer Stikl could reasonably infer quite a bit about the events he observed that night. He knew that drug transactions often occur during brief exchanges in vehicles, which was consistent with the 10-15 second contact in Genous’ car. He also knew that a brief meeting in a vehicle at 3:36 a.m., immediately after the vehicle’s headlights are turned off, and in an area with a reputation for drug-trafficking, are potential indicators of illegal activity. And perhaps most significantly, Officer Stikl had good reason to believe that the woman Genous met in his vehicle was a known drug user with whom his department had a documented history. All these factors, viewed collectively in the eye of a trained and experienced law enforcement officer, support the conclusion that Officer Stikl reasonably suspected a drug transaction had occurred.

Justice Dallet filed a spicy dissent joined by A.W. Bradley and Karofsky. She stressed that to have reasonable suspicion that crime is afoot an officer must point to “concrete, particularized facts that warrant suspicion of a particular defendant; “inchoate and unparticularized suspicion[s] or ‘hunch[es]'” are insufficient. Illinois v. Wardlow, 528 U.S. 119, at 123-24  (2000)(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)); Post, 301 Wis. 2d 1, ¶10.

Dallet argued that in this case, the officer had no facts that were “particularized” to Genous. Indeed. the facts were generic and could describe the conduct of law-abiding citizens in residential neighborhoods.

She was especially critical of the claim that Genous and the woman met in a “high crime area”:

¶21 Genous’s case illustrates two problems with the label “high-crime area.” First, the label can cloak general hunches as particularized suspicion. In this way, a location’s characteristics may play a disproportionate role in a reasonable suspicion analysis, thus running afoul of Wardlow. See Wardlow, 528 U.S. at 124 (holding that a location’s characteristics, while relevant, cannot be determinative). And second, it is unclear what the term “high-crime area” actually means, making it difficult for circuit courts to know how much weight to give a location’s characteristics in any particular analysis. We should therefore adopt objective criteria for evaluating an assertion that an area is high in crime.

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