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Terry stop was unlawful because there was no reasonable suspicion to believe defendant was loitering or dealing drugs

State v. Ryan Erik Diggins, 2012AP526-CR, District 1, 7/30/13; court of appeals decision (not recommended for publication); case activity

There was no objectively reasonable suspicion that Diggins was loitering in violation of Milwaukee’s loitering ordinance, § 106-31(1), where Diggins was seen standing for five minutes, doing nothing, at a gas station– “a place to which the public is invited”–and then moved across the street to a bus stop–“another equally public place”–even though both places were in a high crime area:

¶13      Here, the record establishes that no complaints to the police had been made about Diggins’s presence at the gas station. There is no evidence that property in the vicinity of Diggins and his companion was in any danger or that any persons in the vicinity had cause for alarm for their safety. It is well-settled law that “[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,] 284 Wis. 2d 456, ¶18[, 700 N.W.2d 305].

¶14      Neither the individual facts in this case, nor the totality of those facts—including Roberson’s fourteen years of experience as a police officer—support a finding of objectively reasonable suspicion that Diggins was loitering at the gas station. There is no evidence of flight other than Roberson’s “impression” that Diggins actually saw the squad car before walking across the street to the bus stop. Indeed, Roberson testified that he saw Diggins walk towards the bus stop before Roberson saw the approaching squad car. Conspicuous by its absence from this record is any circuit court finding that Diggins’s walk to the bus stop was evidence of flight from the police.

¶15      More than mere presence (i.e., hanging out) in a public place is required for reasonable suspicion that criminal activity is afoot. See [State v.] Pugh, [2013 WI App 12,] 345 Wis. 2d 832, ¶12[, 826 N.W.2d 418]. Hanging out in a high crime neighborhood for approximately five minutes, at night, while dressed in dark clothing, is not enough for reasonable suspicion. See State v. Young, 212 Wis. 2d 417, 429-30, 569 N.W.2d 84 (Ct. App. 1997) (acknowledging that while some seemingly innocent conduct may also give rise to reasonable suspicion, “conduct that large numbers of innocent citizens engage in every day for wholly innocent purposes, even in … neighborhoods where drug trafficking occurs” is insufficient for finding reasonable suspicion of criminal activity). Nor is hanging out at a place where other arrests have been made sometime in the past, without more, enough for reasonable suspicion of a particular person’s involvement in criminal activity.  Washington, 284 Wis. 2d 456, ¶¶17-18.

¶16      Nothing in the record suggests that Roberson knew Diggins before this encounter. None of Roberson’s observations support reasonable suspicion either that Diggins was in a place “not usual for a law abiding individual” or that Diggins’s presence at the gas station was cause for “alarm for the safety of persons or property in the vicinity.” See Milwaukee, Wis., Code of Ordinances § 106-31(1). Roberson opined that he suspected Diggins of loitering based only on Diggins’s appearance, not on any activity Roberson observed. If such ipse dixit justification is permitted to replace the requirement of “specific and articulable facts” and “rational inferences” therefrom, the law based on Terry and its progeny will be effectively eviscerated.

Nor was there any basis for the officer to believe the state’s alternative justification for the stop–that Diggins was selling drugs:

¶22      Diggins was observed standing outside of a gas station where Roberson knew arrests had been made in the past, and which he characterized as a high crime area.  Roberson agreed that the gas station was also[] a “convenient” (sic) store that sold a variety of items besides gasoline. Neither the bus stop nor the gas station is in any way a restricted area. The public may come and go in both places freely, without permission from anyone.  Diggins’s mere presence for five minutes outside of the gas station does not alone constitute suspicious behavior. See Washington, 284 Wis. 2d 456, ¶¶ 17, 18 (A Terry stop of a man known to the officer from past encounters, at a high crime location, where the man was observed only standing on the sidewalk in front of a house the officer believed was vacant, was invalid because “[p]eople, even convicted felons, have a right to walk down the street without being subjected to unjustified police stops.”).

¶23      As stated, Roberson did not know Diggins prior to this encounter.  The facts on the record simply establish that on a night in September, at 8:25 p.m., Diggins wore a dark hat and jacket while standing outside of a gas station, for approximately five minutes, with a companion in lighter clothing before walking across the street to a bus stop. Without more, there was nothing inherently suspicious about Diggins doing nothing more than wearing dark clothes on a September evening. Roberson’s extraordinary conclusion that people “dressed like that … are either committing armed robberies or … dealing drugs” is not supported by any facts in the record. Nor does Roberson’s general experience as a policeman provide the missing support. An officer’s experience, without more, is insufficient to support a finding of objectively reasonable suspicion. See State v. Eason, 2001 WI 98, ¶25, 245 Wis. 2d 206, 629 N.W.2d 625.

¶24      Moreover, Roberson did not see anything in Diggins’s hands, either at the gas station or at the bus stop. The record does not establish that Diggins gave anyone anything, or behaved in a furtive manner while under Roberson’s observation.

A very nice corrective to the usual deference given to the shopworn shibboleths of “officer training and experience” and “high crime area.” And a bracing reminder that “people have a right in this country to go about their lives, to stand around, to hang out–all without having to submit to police interrogation,” as the concurrence by Judge Fine puts it. (¶29). He amplifies the point by reference to the all-too-often slighted concerns expressed in Terry v. Ohio:

¶30       …. Simply put, police had no right to stop Diggins, irrespective of whether he was smoking or eating or drinking as he stood outside on a Fall evening in Milwaukee. Many folks will be out of their homes on a Fall evening, not drinking or smoking, perhaps chatting with a friend, perhaps just walking, perhaps just standing around, perhaps even looking up at the sky to see the stars—and they have every right to do so without being asked by the police to explain themselves. See Terry, 392 U.S. at 22–23 (“There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people in such circumstances strolling up and down the street, singly or in pairs.”).

And he notes the deleterious effects of using stop-and-frisk merely to harass, citing Ta-Nehisis Coates, “The Dubious Math Behind Stop and Frisk,” from The Atlantic  online (July 24, 2013), and our tendency to see “field interrogations” as “things that happen to other people,” which reminds him of Solzhenitsyn’s observation: “The majority sit quietly and dare to hope. Since you aren’t guilty, then how can they arrest you?” (¶32, quoting Aleksandr I. Solzhenitsyn, The Gulag Archipelago 1918–1956:  An Experiment in Literary Investigation 10 (trans. Thomas P. Whitney and Harry Willetts 2007). A reminder, perhaps, of the appeal of adding arguments from outside the narrow confines of black letter law.

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