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Search and seizure — temporary stop — reasonable suspicion

State v. Melvin Pugh, 2013 WI App 12; case activity

Two officers on patrol saw Pugh near two cars parked next to a vacant, boarded-up building posted with a “no parking” sign. This caused the officers to question Pugh—legitimately—about his possible illegal parking, but during that questioning the police also started asking about a nearby drug house and ended up physically seizing Pugh by grabbing his wrists when he slowly backed away. The court of appeals held this seizure was unlawful:

¶12      Here:

  • [Officer] Keller asked Pugh about the apparent illegal parking but did not ask him to move his car or do anything that indicated he was going to give Pugh a citation.
  • Keller then asked Pugh about the nearby alleged drug house.  As we have seen, under the circumstances here, Pugh could have just walked away at that point because the law is clear that he did not have to answer any questions.
  • Pugh did answer Keller’s questions about drug dealing, and denied knowing anything about it.  Thus, there was nothing that objectively indicated that criminal activity was afoot in regards to any connection Pugh might have had with the house at 4463 North Hopkins, some fifty feet away.
  • According to Keller’s uncontradicted testimony though:  (1) Pugh started to back away, and, in doing so, (2) the “right side” of Pugh’s body turned “further away from us.”

Of course, as we have seen, Pugh had the right to walk away.  Thus, without more, backing away from a police officer is not sufficient objective evidence supporting a reasonable suspicion that criminal activity is afoot or that he was a threat.  Further, “[a]n 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).  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.); Sims v. Stanton, ___ F.3d ___, ___, No. 11-55401, 2012 WL 5995447, *6 (9th Cir. 2012) (“We must be particularly careful to ensure that a ‘high crime’ area factor is not used with respect to entire neighborhoods or communities in which members of minority groups regularly go about their daily business.”) (one set of quotation marks, brackets and quoted source omitted).  That leaves Pugh not keeping the front surface of his body parallel to a line extending from one officer to the other—that is, turning his body, or, to use Officer Keller’s word, “blading”—as he backed away from them.  But how does a person walk away from another (as Pugh had the right to do) without turning his or her body to some degree?  Calling a movement that would accompany any walking away “blading” adds nothing to the calculus except a false patina of objectivity.

¶13      In sum, the officers had no objective reasonable suspicion to justify a Terry seizure.  Accordingly, Officer Alvarado violated Pugh’s Fourth Amendment rights when he grabbed Pugh’s arm.  Thus, although Officer Keller might have been justified when he grabbed Pugh immediately thereafter when Pugh tried to reach into his pocket, see State v. Betow, 226 Wis. 2d 90, 94, 593 N.W.2d 499, 502 (Ct. App. 1999) (“additional suspicious factors” may trigger law-enforcement’s more intrusive response), Alvarado’s seizure—the initial grabbing—was unlawful and all subsequent evidentiary fruits must be suppressed….

The court’s analysis is a bit ambiguous in one respect. The court says, ¶10, that the police had a right to talk to Pugh based on reasonable suspicion someone was parking illegally, thus suggesting that officers legitimately seized Pugh by approaching to ask about unlawful parking. But a few sentences later the court notes that not every interaction between police and a citizen constitutes a seizure (which requires a restraint of liberty) and that Pugh was seized “when [the first officer] grabbed Pugh,” thus implying that the police did not seize Pugh simply by going up to him to ask him about illegal parking. Reliance on Pugh’s right to walk away, ¶¶10, 12, suggests that grabbing Pugh’s wrist operates as the seizure. While any ambiguity about when Pugh was seized doesn’t affect the result, it does impact the ration decidendi, thus any argument made in reliance on the decision: If Pugh was seized by the initial questioning, then the subsequent wrist-grabbing was unlawful because, having dropped the unlawful parking issue and moved on to questions about the drug house, the officers’ unjustifiably-continued detention of Pugh exceeded the scope of the initial seizure. But, if Pugh was seized only when grabbed, then his seizure was unreasonable because unsupported by reasonable suspicion criminal activity was afoot, ¶12.

Besides holding a Terry seizure unlawful, this decision is unusual in its skepticism of the oft-invoked “training and experience” of the officer–in this case, training and experience about the significance of Pugh’s “blading” behavior. The court noted, ¶6, that the officer’s “training” about “blading” was “part of an ‘8-hour course that was put on through the Milwaukee Police Department,’ with an outside ‘expert’ not otherwise identified in the Record. Keller testified that his personal experience was consistent with what the ‘expert’ apparently told them (although, again, the Record does not tell us who the ‘expert’ was, the nature and area of his or her ‘expertise,’ or what he or she may have told the officers attending the course).” While Terry cases are always fact-specific, this decision could help support an argument that the court should not blindly give weight to bare-bones claims of “training and experience.”

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