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“High crime area”; “recognizing police presence”; “security adjustment”: Buzz phrases not enough to justify Terry stop

State v. Patrick E. Gordon, 2014 WI App 44; case activity

The circuit court’s findings—Gordon was in a high-crime area; he and his friends “recognized the police presence”; and, as a result, Gordon engaged in a “security adjustment,” which is “a conscious or unconscious movement that an individual does when they’re confronted by law enforcement when they’re typically carrying a weapon” and involves placing a hand over the place the gun is to make sure it’s still there (¶¶3-7, 9, 14)—did not provide objective reasonable suspicion that Gordon was engaged in criminal activity:

¶15      First, although presence in a high-crime area could, given circumstances other than what we have here, be a significant aspect of the “reasonable suspicion” calculus, either standing alone or combined with what we have here, it adds nothing; sadly, many, many folks, innocent of any crime, are by circumstances forced to live in areas that are not safe—either for themselves or their loved ones. Thus, the routine mantra of “high crime area” has the tendency to condemn a whole population to police intrusion that, with the same additional facts, would not happen in other parts of our community. “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000)….

¶16      Second, recognition of “police presence” would be [present] in almost every case where police executed a Terry stop. Looking at police officers driving through one’s community certainly adds nothing by itself (that is, for example, without flight or attempted flight—see Wardlow, 528 U.S. at 124–125, discussed above and in footnote 4).

¶17      Third, the circuit court’s main rationale in denying Gordon’s suppression motion was what it found was Gordon’s “security adjustment.” But, as Officer Ticcioni recognized, many folks, most innocent of any nefarious purpose, may occasionally pat the outside of their clothing to ensure that they have not lost their possessions. Indeed, this makes even more sense in a high crime area than it might in other less crime-ridden parts of our community. Although, as Ticcioni explained, the “security adjustment” could, given additional facts (such as, for example, flight or attempted flight), support an objective “reasonable suspicion,” the additional facts here—high crime area and recognizing the police car as a police car—are far too common to support the requisite individualized suspicion here.

¶18      Permitting Terry stops of persons momentarily patting the outside of their clothing when the only additional facts are that those persons are in a high crime area and have seen a cruising police car would expand the individualized [“]reasonable suspicion” requirement so far so as to negate it….

A salutary rejection of police reasoning that is, at the end of the day, not much more than a chant of lions and tigers and bears, oh my!

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