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Reasonable Suspicion, Terry Stop: High-Crime Area, Ski Mask, et al.; Appellate Procedure: State’s Waiver of Argument

State v. Deshon C. Matthews, 2011 WI App 92 (recommended for publication); for Matthews: Paul G. Bonneson; case activity

Terry Stop – Reasonable Suspicion

Reasonable suspicion supported stop of Matthews, when police on patrol saw him wearing a ski mask and hoodie late at night in a high-crime area near a woman who was walking away form him and who appeared to be frightened.

¶11      Under Terry, courts must assess the following in determining whether a stop is lawful:

•           there must be “articulable facts” evident in the Record

•           that “taken together with rational inferences from those facts,”

•           when viewed objectively, permit a law-enforcement officer to “reasonably” “conclude in light of his experience that criminal activity may be afoot.”

Id., 392 U.S. at 21–22, 30.  This is true even if each of those acts may be “innocent in itself, but which taken together warranted further investigation.” Id., 392 U.S. at 22.  That is what we have here:  (1) a man in a high-crime area; (2) late at night; (3) wearing a ski mask that covers his face below his eyes; (4) wearing a hoodie; (5) who had an ambiguous but “unusual”-appearing encounter with a woman walking by herself.  Although it was not a mid-summer night, and Matthews may have worn the ski mask and hoodie to stay warm so that his choice of clothing was innocent, the police reasonably and based on their experience could objectively see that “further investigation” was “warranted” to ensure that “criminal activity” was not “afoot.”  Accordingly, we hold on our de novo review, that Officer Lopez and the other officers had, objectively, the requisite reasonable suspicion to ask Matthews what he was doing. …

This is on State’s appeal, the trial court having ordered suppression. Interestingly, the State argued only that Matthews wasn’t “stopped” by the police (“seized” might be equally if not more precise nomenclature, but the court appears to have an allergic reaction to use of that term in this context, State v. Limon, 2008 WI App 77, ¶2 and id. n. 3, 312 Wis.2d 174, 751 N.W.2d 877; “stop” it is, then). The majority sets out the general test for a “stop” but without applying it to the facts. Instead, the court expresses puzzlement about the State’s choice of issue and proceeds to assume without deciding that Matthews was indeed “stopped,” ¶9. The dissent would rule in favor of “the trial court’s finding that Matthews was stopped by a show of police authority,” ¶¶26-27. The dissent would hold that the police lacked reasonable suspicion – of course, that conclusion is out-voted, but the dissent’s detailed analysis has value for its comprehensive canvass of relevant authority, ¶¶16-32.

State’s Waiver

¶9        For some reason not evident in the Record, the State’s appeal, as phrased by its main brief, “only challenges” the circuit court’s conclusion that the officers stopped Matthews, and “does not argue reasonable suspicion existed to justify a stop.”  We are not, of course bound by the State’s concession.  See State v. Gomaz, 141 Wis. 2d 302, 307, 414 N.W.2d 626, 629 (1987) (court need not accept State’s retraction of legal argument); Bergmann v. McCaughtry, 211 Wis. 2d 1, 7, 564 N.W.2d 712, 714 (1997) (we are not bound by a party’s concessions of law); Fletcher v. Eagle River Mem’l Hosp., Inc., 156 Wis. 2d 165, 168, 456 N.W.2d 788, 790 (1990) (A party’s “concession” “in respect to a matter of law,” however, “is binding upon neither the parties nor upon any court.”); cf. State v. Conger, 2010 WI 56, ¶24, 325 Wis. 2d 664, ____, ____ N.W.2d ____, ____ (Courts are not bound by the State’s plea-bargained concessions.). … Assuming (but not deciding), as the circuit court concluded, and as the Dissent opines, that the officers did “stop” Matthews, the stop was clearly consistent with the Fourth Amendment.[3]

[3] Although wrongly contending that we are bound by the State’s abandonment of the argument that the officers lawfully stopped him, see State v. Gomaz, 141 Wis. 2d 302, 307, 414 N.W.2d 626, 629 (1987) (court need not accept State’s retraction of legal argument), Matthews adopts the circuit court’s analysis of that issue, which we have set out in Part I of this opinion.

No one doubts that any rationale may be advanced on appeal in support of a lower-court judgment, whether or not raised below, Dandridge v. Williams, 397 U.S. 471, 476 n. 6 (1970) (“The prevailing party may, of course, assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court.”). But the State here sought to reverse the judgment, and therefore this principle doesn’t apply. Worse: as the opinion indicates, the State didn’t argue reasonable suspicion at all, which means that the majority ignored waiver and reached the issue sua sponte. Does anyone doubt that, had Matthews been the appellant, the court wouldn’t have done him the same favor?

This raises a potentially thorny problem: just when if ever is the State subject to waiver rules? (A tad more cynically put: when is the playing field level?) There certainly is caselaw recognition of State’s waiver, when it is the appellant. State v. Huggett, 2010 WI App 69, ¶14 (State forfeited argument on appeal by applying a different analysis than it advanced to the trial court). The State has incurred a waiver bar even when it is the respondent. State v. Lee, 88 Wis.2d 239, 247, 276 N.W.2d 268 (1979) (“The trial judge’s exercise of discretion was, therefore, never triggered by an appropriate objection by the state. This constitutes waiver; and because the error claimed is not jurisdictional and was waived, the objection made for the first time in this court comes too late.”) Other examples of State’s waiver: State v. James D. Miller, 2009 WI App 111, ¶25 (failure to raise Escalona objection); State v. Danny G. Harrell, 2008 WI App 37, ¶12 (waiver of right to argue waiver); State v. Jonathan W. Nawrocki, 2008 WI App 23,  ¶2 n. 3 (waiver of right to argue non-retroactive application of new caselaw); State v. Gerald J. Van Camp, 213 Wis. 2d 131, 569 N.W.2d 577 (1997) (waiver of argument defendant’s postconviction pleading was legally insufficient). It is a venerable and diverse line of authority, which puts in sharp relief the court’s breezy observation, “We are not, of course bound by the State’s concession.”

The current decision, it seems safe to say, derives from a concurrence in an unpublished decision, State v. Jason W. Kucik, 2009AP933-CR, District 1, 11/16/10 (Fine, J., conc.):

¶ 43 Further, and most significant here, unlike most cases between private parties, where only interests personal to the parties are involved and forfeiture of an argument or a concession may be consistent with the public interest, this case affects the public interest directly because the State represents the public, not a private party. Accordingly, the State’s concession or its forfeiture of an argument does not tie our hands to see that our decision serves the polestar of any ordered society: justice. See State v. Gomaz, 141 Wis. 2d 302, 307, 414 N.W.2d 626, 629 (1987) (court need not accept State’s retraction of legal argument); Bergmann v. McCaughtry, 211 Wis. 2d 1, 7, 564 N.W.2d 712, 714 (1997) (we are not bound by a party’s concessions of law); State v. Kruzycki, 192 Wis. 2d 509, 517-518, 531 N.W.2d 429, 432 (Ct. App. 1995) (“A question of law `cannot be bargained away by counsel nor shielded from ab initio consideration by successive court reviews.'”) (quoted source omitted); cf. State v. Conger, 2010 WI 56, ¶ 24, 325 Wis. 2d 664, ___, ___ N.W.2d ___, ___ (circuit court may reject plea bargain agreed to by State and a defendant if it determines that the plea bargain is not “in the public interest”).

The concurrence is explicitly informed by the idea that, because it “represents the public,” the State can’t be subject to waiver. The rules are different for the State. The Matthews decision doesn’t make that point explicitly, but it is hard to believe that it isn’t implicit in the holding. True, the court couches the principle in terms of review of purely “legal” argument – but in this very case the decisive issue (reasonable suspicion) wasn’t argued on appeal at all. This isn’t, then, a matter of whether the court is necessarily bound by an appellant’s “concession,” but the circumstances under which reversal should be made on an altogether unargued ground. As to the fact-law distinction, it is a bit too facile: as illustrated by the cases string-cited above, State’s-waiver has indeed been employed whether the issue is purely legal. Moreover, at a high enough level of generality, any suppression issue raises a question of law (suppression is a question of “constitutional fact,” for one thing; and for another, a given set of facts lends itself to a conclusion of law). For that matter, the dissent accuses the majority of “disregard of the facts the trial court found,” slip op., ¶12 – which, if true, certainly takes review outside a simple question of law. If true; but it is hard to say, precisely because the issue was decided sua sponte, without benefit of argument. All in all, a potentially troubling development.

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