State v. Demonte D. Miller, 2011AP1069-CR, District 1, 12/6/11
court of appeals decision (1-judge, not for publication); for Miller: Hannah Blair Schieber, Ellen Henak, SPD, Milwaukee Appellate; case activity
Temporary stop of Miller not supported by reasonable suspicion under the following facts: Miller was part of “a quiet candlelight vigil for Miller’s best friend, who had been killed the night before”; as officers passed by, Miller looked at them and walked away from the vigil; as he did so, Miller “appeared to grab his right side,” which an officer took to be “a security check for a weapon.” Miller was stopped and frisked, resulting in seizure of a gun and conviction for CCW.
¶7 As seen from the circuit court’s findings of fact and the officers’ testimony, all we have here is that Miller was peaceably at a peaceful candlelight vigil near the place where the person whom he testified was his best friend was killed the night before. That the police saw only him leave the group is not, by any stretch of the imagination, “suspicious” activity. That he, as Officer Cline testified, looked at the group of police cars passing the vigil is not, by any stretch of the imagination, “suspicious” activity. That he felt his pants or pants pocket as he walked away from the group also is not, in light of everything else, “suspicious” activity; he could have just as realistically been feeling for his keys, cell phone, or wallet (especially given the officers’ assessment of the locale as a high-crime area). Thus, what Officer Cline characterized as a “retention” check stands alone. Under the facts here, the officers’ assessment that Miller may have been armed with a gun or other weapon was no more than a “hunch,” and Terry tells us that a “hunch” is not enough. See also State v. Washington, 2005 WI App 123, ¶¶3, 17, 284 Wis. 2d 456, 460, 471, 700 N.W.2d 305, 307, 312 (Seeing a suspect in front of vacant house is insufficient reason to stop him even though: (1) the officer knew that the suspect did not live in the area, (2) the suspect had been previously arrested for selling narcotics, and (3) the police had received a complaint that someone was loitering in the area.). We reverse.
Standard of review for Terry stop efficiently reiterated, ¶¶5-6.
The officer “testified that he and other officers were on what he called a ‘directed patrol mission’ of an ‘Anti-Gang Unit,’ to flood high-crime areas with officers under a ‘Safe Streets Initiative,'” ¶2. They, like Miller but for quite different reasons, were at the scene because of a homicide there the night before. The implication is that Miller’s presence in a seemingly “high-crime” area synergized the suspiciousness of his actions (“police avoidance”; reaching to his side). And, indeed, the State explicitly makes that argument, Resp. Br., p. 8 (“Mr. Miller’s presence in a high crime area is a permissible factor for officers to consider in making a Terry stop”), analogizing to State v. Morgan, 197 Wis. 2d 200, 211, 539 N.W.2d 887 (1995). But the court of appeals is having none of it, at least with respect to “high-crime” giving value to null factors. Instead, the court characterizes the State’s authorities as having, in contradistinction to this case, “significant indications of potential criminal activity,” ¶7 n. 3. Apparently, then, the court accepts the idea that this was a “high-crime area,” something that is a meaningful data-point, but that it doesn’t matter because Miller’s activity simply wasn’t suspicious. (Note, too, how the court views Miller’s act of reaching for his side against the assumed high-crime backdrop: “he could have just as realistically been” taking self-protective measures, ¶7. The court thus cleverly turns this factor on its head in terms of inducing suspiciousness.) Simply being in a high-crime area isn’t enough, as Morgan itself cautions, 197 Wis. 2d at 215. Perhaps that is the immediate lesson of this case.
But there is a broader problem afoot: just what does make an area “high-crime”? Not much, as it turns out, at least to-date. Morgan says in effect that the officer’s bare-bones perception is enough, 197 Wis. 2d at 211. But that doesn’t mean that a subjective perceptive can’t be defeated with comparative data – it’s a matter, in other words, of adducing proof at the circuit court level in the first instance. The details are much too elaborate for a blog post, but for the interested practitioner, here are a couple of quick starting points: Andrew Guthrie Ferguson, “Crime Mapping and the Fourth Amendment: Redrawing ‘High-Crime Areas,'” 63 Hastings Law Journal 179 (Dec. 2011); and Ferguson and Damien Bernache, “The ‘High-Crime Area’ Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis,” 57 American University Law Review 1587 (2008).