State v. Diane C. Parker, 2012AP245-CR, District 4, 7/12/12
court of appeals decision (1-judge, ineligible for publication); case activity
¶13 Applying these standards to the facts here, this court agrees with the circuit court that the deputy reasonably suspected Parker of criminal activity. In particular, this court focuses on the following facts as supporting reasonable suspicion: Parker’s vehicle pulled into a closed tire repair shop in the middle of the night; the deputy testified that it was “out of place,” “unusual,” and “odd” for someone to pull into the parking lot of the particular shop in question at 3:00 in the morning; the deputy then observed Parker in the driver’s seat of a different vehicle (the truck) with the door open; and the deputy did not observe anyone else with Parker who might have been privileged to enter or operate the truck if she was not.
¶14 Taken together, the totality of these facts supplies a reasonable suspicion of a potential theft from a vehicle or theft of a vehicle. First, while pulling one’s vehicle into a closed business during the middle of the night, in itself, may not ordinarily constitute reasonable suspicion of criminal activity, here there was specific testimony from a patrol deputy that this was “out of place,” “odd,” and “unusual” for a vehicle to pull into the parking lot of the tire repair shop at such an hour. See 4 LaFave, Search and Seizure § 9.4(c), at 161–65 (4th ed. 1996) (discussing reasonable suspicion as it relates to certain premises and times of day). Second, the deputy observed that the single person who had pulled into this lot had then entered a second vehicle, which would not square with such innocent scenarios as one person dropping off another so that the second person could retrieve his or her vehicle, as might occur in connection with a very late or very early work shift. That is, common sense would seem to suggest that, if Parker had been picking up or dropping off a vehicle, someone else would have accompanied her to drive one of the vehicles while she drove the other. Even if the deputy’s initial concerns raised by Parker pulling into the parking lot of a relatively isolated, closed business at approximately 3:00 a.m. were only an “inarticulate hunch” that is insufficient for a temporary detention under Terry, the suspicion of a possible theft in progress became specific and articulable when he observed Parker, apparently by herself, inside the truck with the door open.