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State v. Felton O. Shands, 2010AP2407-CR, District 1, 6/28/11

court of appeals decision (1-judge, not for publication); for Shands: Randall E. Paulson; case activity

High-crime area (what else?) + hand-rolled cigarette “furtively” (what else?) thrown down by occupant of parked car on police approach + bit of embellishment = reasonable suspicion the occupant is armed and dangerous (what else?).

¶23      We conclude, based upon the totality of the circuit court’s findings of fact, that Officers Rydzewski and Wilder had sufficient reasonable suspicion that Shands may be armed and dangerous to justify the search.  We identify five factors, present here, that we have recognized as relevant to the reasonable suspicion analysis in other cases, that contributed to the totality of the circumstances justifying the search.

¶24      High crime area:  Shands does not dispute that he was in a high crime area at the time of the search.  Location is a well-established relevant factor in justifying a search. …

¶25      Time of day:  Shands does not dispute that the search occurred at 10:22 p.m. …

¶26      Unusual nervousness:  Shands does not dispute that he appeared nervous and tense when approached by the police officers.  “[U]nusual nervousness is a legitimate factor to consider in evaluating the totality of the circumstances.”  Kyles, 269 Wis. 2d 1, ¶54.  Although Shands tries to characterize his nervousness as a common startle reflex, his explanation fails because he was the one who chose to sit in a running vehicle with the tail lights on, at night in a high crime neighborhood.  Having placed himself in a position to be observed and intruded upon, his nervousness was unusual and cause for reasonable suspicion.

¶27      “Furtive” or unexplained gesture:  Whether “furtive” or not, Shands’s gesture of throwing down the hand-rolled cigarette was relevant to the overall evaluation of whether Shands was engaged in criminal activity. …

¶28      Disingenuous response:  Officer Wilder gave Shands an opportunity to explain his snap or jerk of the cigarette and his nervousness when Officer Wilder asked him what was in his hand.  Instead, Shands denied having had anything in his hand. …

¶29      The officers thus had a reasonable suspicion that Shands may be involved in drug trafficking, prompting further investigation.  When they asked him to get out of the vehicle, the officers became concerned for their safety because they were in close proximity to someone who may be involved in drug trafficking.  Because they knew that drug trafficking is often linked with guns, they reasonably believed they were in danger and were justified in searching Shands.  Consequently, we affirm.

Chose to sit in a running car in a high-crime area? Interesting. Some people don’t have any choice but to live in a high-crime area. Or to pick up family or friends in a high-crime area. Or to run errands in a high-crime area. Ah, but even if constrained by necessity to find himself in a high-crime area, Shands chose to sit in a running car. It was March and almost certainly cold. No matter. “Having placed himself in a position to be observed and intruded upon, his nervousness was unusual and cause for reasonable suspicion”: what on earth does that mean? He assumed the risk his startle reflex would be taken as suspicious? He waived his right to be something other than suspicious when startled? Turn this around a bit. If it’s a high-crime area, then isn’t it understandable that someone would be startled by the sudden approach of strangers? But in the end, this simply this obscures the “armed and dangerous” calculus – even if Shands’ actions supported reasonable belief that he possessed a joint, how do you get from there to a frisk? Because “drug trafficking is often linked with guns”? Where’s the trafficking? One person smoking a joint in a car? The opinion comes perilously close to a blanket rule, ordinarily impermissible in reasonable suspicion calculus.

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