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Unusual nervousness alone can justify extension of traffic stop

State v. Joshua J. Hams, 2015AP2656-CR, 6/30/16, District 4; (1-judge opinion; ineligible for publication); case activity (including briefs)

Don’t look down! If you do–and stutter nervously in response to questioning–the police have reasonable suspicion to extend a stop of your car for a traffic violation. So says the court of appeals in a decision that veers across the constitutional line and runs into federal case law heading the opposite direction.

Hams was riding in a car that a deputy lawfully stopped because of its dark-tinted windows and a loud muffler.  Asked if they had guns, knives or drugs, the driver and Hams looked down and at each other but not at the deputy. The driver also stuttered in a nervous matter.  That “extremely nervous body language” justified extension of the stop.  Slip op. ¶6.

It also prompted the deputy to ask the driver to get out of the car and announce that he planned to conduct a dog sniff for the odor of controlled substances no the exterior of the car. The driver acknowledged there were narcotics in the car and said they belonged to Hams.  You can surmise imagine happened next.  The State charged Hams with possession of THC. He moved unsuccessfully to suppress the drugs. The court of appeals affirmed based on State v. Sumner, 2008 WI 94, 312 Wis. 2d 292, 752 N.W.2d 783; State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996), and State v. Hogan, 2015 WI 76, 364 Wis. 2d 167, 868 N.W.2d 124, which stated: “The possibility that innocent explanations may exist for observed behavior does not preclude a finding of reasonable suspicion, but as a practical matter, police cannot expect to conduct field sobriety tests on every motorist who is shaking and nervous when stopped by an officer.” ¶¶15-20. According to this 1-judge court of appeals opinion:

¶21 I understand the full passage in Hogan to stand for the obvious propositions that innocent people stopped by police are often made at least somewhat nervous by the fact of the stop and that not all signs of nervousness will be sufficient to justify all extensions of lawful stops.  The State could not and does not try to dispute these self-evident propositions.

¶22 This leaves Sumner and related cases, which support the conclusion that abnormal signs of nervousness displayed by occupants of a lawfully stopped vehicle—in response to the question of whether they had illegal drugs or weapons—may be sufficient to justify an extension of the stop that involves only requiring an occupant to briefly get out of the vehicle for a discussion on the topic of drugs or weapons.  And I conclude that here the abnormal apparent manifestations of nervousness when the drugs-or-weapons topic was raised gave the deputy sufficient reason to be concerned for his safety and to extend the stop briefly.

It sure would be fun to write the petition for review (and ultimately, the cert. petition click here) for this case. For starters, Hogan is distinguishable.  There SCOW found unlawful an extension of a stop based on nervousness and tremors as symptoms of drug use. Hogan, ¶¶49-53. Second, extreme nervousness is in the eye of the beholder. Compare the conduct at issue here to the conduct described in Sumner:

¶ 39 Visible perspiration can be a symptom of nervousness. In this case, the traffic stop occurred around 9 p.m. in late July. Johnson testified that he did not believe that he himself was perspiring because of the temperature; whereas Sumner acknowledged that he could have been sweating because of the heroin on his person and drug paraphernalia in his vehicle. We observe that, in addition to the appearance of nervousness or erratic behavior—e.g., trembling, shaking or fidgeting hands, shifting eyes, tapping one’s fingers or feet, placing one’s hands in and out of one’s pockets, and the like20—visible perspiration is a factor that courts have taken into consideration in the totality of circumstances.

Third, nervousness alone, which is all the deputy really had here, does not give rise to reasonable suspicion. See Huff v. Reichert, 744 F.3d 999, 1007 n.3 (7th Cir. 2014):

In any event, our court-along with the First, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits-has held that nervousness is “of limited value in assessing reasonable suspicion” and/or is so common that it alone cannot justify a Terry stop. United States v. Simpson, 609 F.3d 1140, 1147 (10th Cir.2010); accord United States v. McKoy, 428 F.3d 38, 40 (1st Cir.2005) (“Nervousness is a common and entirely natural reaction to police presence….”); United States v. Richardson, 385 F.3d 625, 630–31 (6th Cir.2004)(“[A]lthough nervousness has been considered in finding reasonable suspicion in conjunction with other factors, it is an unreliable indicator, especially in the context of a traffic stop. Many citizens become nervous during a traffic stop, even when they have nothing to hide or fear.”) (citations omitted); United States v. Portillo–Aguirre, 311 F.3d 647, 656 n. 49 (5th Cir.2002) (“We have never held that nervousness alone is sufficient to create reasonable suspicion of criminal activity.”); United States v. Jones,269 F.3d 919, 929 (8th Cir.2001) (suspect’s nervous demeanor alone was not enough to establish reasonable suspicion); United States v. Chavez–Valenzuela, 268 F.3d 719, 726 (9th Cir.2001) (holding that “extreme nervousness” during a traffic stop does not alone “support a reasonable suspicion of criminal activity, and does not justify an officer’s continued detention of a suspect after he has satisfied the purpose of the stop.”); United States v. Brown, 188 F.3d 860, 865 (7th Cir.1999)(“Nervousnessalone will not justify a Terry stop and pat-down….”).

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