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Search of socks and shoes for weapon was fine; so was subsequent search of car

State v. James Timothy Genous, 2019AP435-CR, 11/1/22, District 1 (not recommended for publication); case activity (including briefs)

In 2020 the court of appeals held that police didn’t have reasonable suspicion to stop Genous to investigate whether he was selling drugs. The supreme court reversed and sent the case back to the court of appeals to address the lawfulness of the searches of Genous’s shoes and socks and his car. Over a dissent, the court of appeals holds  they were.

Police saw Genous park briefly in front of a known drug user’s house and observed a person matching the user’s description came out of the house, briefly get into Genous’s car, and then get out again. Suspecting they’d witnessed a drug sale, police stopped Genous after he drove away. While he was sitting in his car an officer saw Genous make a “furtive movement” toward his feet or the floor of the car. Genous was ordered out of the car and told to take off his shoes and socks so they could be searched for weapons. Finding nothing in Genous’s footwear, the police moved onto the car, where they found a gun under the driver’s seat. (¶¶2, 811-13).

The first issue is the legality of making Genous doff his shoes and socks. The majority holds this was a lawful protective search for weapons, which is lawful when an officer has reasonable suspicion that a suspect may be armed, State v. Morgan, 197 Wis. 2d 200, 209, 539 N.W.2d 887 (1995). The usual generic assumptions about drug dealers (weapons as the “tools of the trade” of drug dealers) plus the claims that Genous made furtive gestures is enough to do the job here, for he could have concealed in his shoes or socks, oh, a knife or a razor blade. (¶¶8-14).

A dissenting judge aptly explains the manifest flaws in this conclusion: the protective search rationale is a narrow one, limited to a pat down of outer clothing (¶30); there was nothing unusual about Genous’s footwear that suggested a reasonable basis to believe they concealed a weapon (¶31); and the expansion of the rationale the majority used in this case has no sensible stopping point but logically means “the police could ourder a person to take off clothing anywhere a small blade might be hidden, such as a bra or underwear” (¶32).

The court of appeals also holds that even if the fruitless search of Genous’s shoes and socks wasn’t a lawful protective search for weapons, it didn’t lead to and thus didn’t taint the search of his car, relying on Hudson v. Michigan, 547 U.S. 586 (2006), and State v. Hogan, 2015 WI 76, 364 Wis. 2d 167, 868 N.W.2d 124 (which in turn relied on New York v. Harris, 495 U.S. 14 (1990)).

¶20     …[T]he issue that we address then is whether the search of Genous’ socks and shoes was the “but-for” cause for the police finding the gun in his car. The State argues that the police did not discover any evidence in Genous’[s] socks and shoes, and nothing was produced during the search of his socks and shoes that led the officers to search Genous’[s] vehicle and find the firearm. It then argues because but-for causation is lacking, Genous is missing this necessary condition of suppression, and thus, the State need not prove that the search of Genous’ car was attenuated from the search of his socks and shoes. We agree and conclude that, even if the search of Genous’[s] socks and shoes constituted unlawful police conduct, it was not a “but-for” cause of the search of his car because the search was not tainted by the search of his socks and shoes. See Hudson, 547 U.S. at 592. Similar to the facts in Hudson, whether that preliminary misstep—searching the socks and shoes—had occurred or not, the police had, as we discuss below, probable cause to search Genous’[s] car for drugs, and therefore would have discovered the gun in his car.

The majority also deems Genous to have conceded the state’s argument by not developing an argument against it. (¶¶21-22). But as the dissent points out, this isn’t a fair reading of his argument, which was that the absence of a basis to search for weapons unreasonable extended the traffic stop and therefore rendered unlawful all police action during the unlawfully extended stop. (¶40). The dissent also cogently explains why Hudson, Hogan, and Harris don’t apply here. (¶¶33-39).

Finally, turning to the search of Genous’s car, the majority, citing the totality of the circumstances, rejects Genous’s argument that the police lacked probable cause to conduct that search. (¶¶24-27).

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