State v. Morgan

SHIRLEY S. ABRAHAMSON, J.

(dissenting). The controlling principles of law applicable to this case are *218firmly established. I disagree with the majority opinion's application of these principles to the facts of this case to.determine the validity of a pat-down frisk. The validity of a pat-down frisk is an area of law which is particularly fact sensitive.

I agree with the circuit court's stated reasons for suppressing the evidence. I conclude that the factors the majority relies upon to justify the pat-down search of the defendant do not give rise to the "reasonable suspicion" that the defendant was armed, as required under Terry v. Ohio, 392 U.S. 1 (1968). Consequently, I would reverse the decision of the court of appeals and remand the matter to the circuit court with directions to reinstate its suppression order.

I am particularly troubled by the majority opinion's reliance on the fact that the defendant was stopped in what the police officer described as "a high crime area or what I would consider [a] high crime area." The officer failed to state the basis for his portrayal of the area and did not define the geographic locality about which he was speaking.

Many of the cases cited by the majority for its ruling that a police officer's sweeping and imprecise characterization of an area as high crime can justify a pat-down frisk have demanded far more specificity than one can glean from the record in this case.1

*219I think the circuit court was right in concluding that "if the state wants the Court to rely on a high-crime area theory in justifying a Terry pat down, there has to be a clear and specific record" documenting both the specific boundaries and the nature of the criminal activity in the area in question. Crime itself is obviously a variegated phenomenon. Some effort must be made to correlate the specific type of crime allegedly endemic to a particular area with the police officers' reasonable suspicion that an individual whom they intend to search is armed.

No such correlation was made here. I agree with Professor LaFave's conclusion that "[u]nspecific assertions that there is a crime problem in a particular area should be given little weight, at least as compared to more particular indications that a certain type of criminal conduct of the kind suspected is prevalent in that area."2

Even were I to accept the majority's designation of the place of the stop as a high crime area, "even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted." Maryland v. Buie, 494 U.S. 325, 334-35 n.2 (1990). The other factors cited by the majority in reaching its conclusion that the state had the requisite reasonable suspicion to search the defen*220dant for arms do not add up to such "reasonable individualized suspicion."

With reference to the defendant's allegedly erratic driving, the police officer conceded during the suppression hearing that the defendant violated no traffic ordinances and that nothing about the defendant's driving had triggered suspicion that he was engaged in criminal activity. Instead, the officer began trailing the defendant's car because of "a general sense of unease that [he] had because it was late at night and the car was driving in a way that [he] couldn't put [his] finger on." This testimony represents precisely the sort of "inchoate and unparticularized suspicion or 'hunch'" which is insufficient under Terry to trigger the requisite reasonable suspicion that a defendant is armed. Terry, 392 U.S. at 27. Such a hunch stands in marked contrast to the facts triggering reasonable suspicion in the Williamson case relied upon by the majority, in which the defendant's erratic driving evinced an obvious effort to evade the police. State v. Williamson, 58 Wis. 2d 514, 517-18, 206 N.W.2d 613 (1973).

I also question the majority's reliance on the officer's description of the defendant as nervous. While it is true, as the majority opinion notes, that the officer testified to the defendant's being more nervous than the usual person stopped by the police, his testimony indicates that he was neither fully sure that such a behavioral difference truly existed nor fully capable of articulating what it entailed.3

*221The circuit court concluded that the defendant's nervousness was attributable to the fact that people with expired plates who cannot find their licenses "are often nervous." What the officer was observing, the circuit court stated, "was a person nervously trying to come up with their driver's license and thinking it's there and not being able to find it."

This finding of historical fact is entitled to greater deference from this court than it received in the majority opinion. As the majority opinion itself states, when this court reviews an order granting suppression, it must uphold the circuit court's findings of fact unless they are against the "great weight and clear preponderance of the evidence." State v. Kiper, 193 Wis. 2d 69, 79, 532 N.W.2d 698 (1995) (quoting State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990)).

The evidence in this record supports the inference which the circuit court expressly drew: that to the limited extent that the officer could describe how the defendant was "more nervous" than the average person stopped, his description — of someone "checking his pockets" "extremely fast" — suggests no more than the nervousness of the average person unable to produce a driver's license requested by a law enforcement officer. For the majority opinion to speculate as it does about other possible reasons for the defendant's nervousness is not only to read into the record facts which are not there, but also to ignore the deferential standard of review to which the circuit court's findings are entitled.

I acknowledge, as this court has previously stated, that there can be no litmus test concerning the quantum and nature of information necessary to constitute *222the "specific and articulable facts" necessary to trigger the "reasonable suspicion" that a defendant is armed as required by Terry and its progeny. State v. Guzy, 139 Wis. 2d 663, 676, 407 N.W.2d 548 (1987). And I also recognize that a concatenation of factors individually consistent with innocent behavior may, under particular facts and circumstances, give rise to the requisite reasonable suspicion which Terry requires. Reid v. Georgia, 448 U.S. 438, 441 (1980); State v. Jackson, 147 Wis. 2d 824, 835, 434 N.W.2d 386 (1989).

Before a concatenation of factors individually consistent with innocent behavior can trigger reasonable suspicion, however, some degree of suspicion must attach to the specific acts which, when combined, add up to reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 10 (1989). Hence in Sokolow itself, for example, which involved a stop rather than a pat-down frisk, the Court pointed to the fact that the respondent traveled under an alias, paid for two plane tickets costing $2100 with a roll of $20 bills, took a 20-hour flight from Honolulu to Miami but only stayed in Miami for 48 hours, and checked no luggage as among the factors triggering reasonable suspicion that the respondent was a drug courier and therefore justifying his brief detention.

But in this case, while the defendant's expired plates provided the officers with a reason to stop him, none of the factors relied upon by the majority warrants upholding the subsequent pat-down frisk. Neither the time of night, nor the undocumented assumption that an unspecified "area" was prone to crime, nor the defendant's manner of driving, nor the defendant's entirely understandable nervousness constituted behavior specifically and articulably related to *223a reasonable suspicion that the defendant was armed and dangerous.

Consequently, these non-specific and non-individualized factors do not add up to the totality of circumstances justifying the requisite reasonable suspicion that the defendant was armed and dangerous. United States v. Cortez, 449 U.S. 411, 417-18 (1981); Brown v. Texas, 443 U.S. 47, 51 (1981). Zero plus zero will always equal zero. To conclude otherwise is to lend significance to "circumstances [which] describe a very large category of presumably innocent travelers" and subject them to "virtually random seizures." Reid, 448 U.S. at 438.

One might try to justify the officers' actions in this case by hindsight. The officers' frisk produced a loaded gun. But hindsight does not satisfy the federal or state constitution. One might also try to justify the officers' actions in this case in the name of crime prevention and police protection. Crime prevention and police protection might well be served by allowing law enforcement officers to frisk everyone they stop. But the federal and state constitutions do not allow such frisks.

In contrast to the majority opinion, I agree with the circuit court's depiction of this case as a routine traffic stop. The defendant displayed no behavior to support a reasonable belief that he might be armed and dangerous. Therefore I conclude that the circuit court was correct when it suppressed the evidence.

For the reasons set forth, I dissent.

£>ee, e.g., United States v. Sharpe, 470 U.S. 675, 677 (1985) (stop lawful in area under surveillance for suspected drug trafficking); United States v. Rickus, 737 F.2d 360, 362 (3d Cir. 1984) (area of stop and pat-down had recently been victimized by 12 unsolved burglaries); People v. Souza, 885 P.2d 982, 984 (Cal. 1994) (stop lawful when officer described area of stop as a "high crime" area "known for burglaries and drug activities" and officer had recently make two arrests "in the exact area"); State v. Dean, 645 A.2d 634, 634-35 (Me. 1994) (stop lawful in *219uninhabited area patrolled at the request of its owners because of numerous complaints of vandalism); State v. Valentine, 636 A.2d 505, 505-06 (N.J. 1994) (pat-down lawful; officer who was personally familiar with area of stop as a high crime area stated that he had made more than 100 arrests in the area).

3 Wayne R. LaFave, Search and Seizure § 9.3(c), at 457 (2d ed. 1987).

Q: Now, Officer Muiock, not that this has ever happened, when I'm pulled over, I act a little nervous too. Is this anything — anymore unusual than the usual person stopped by the police?

A: I think so. Yes, it was.
Q: What was different about it?
*221A: Just the look on his face. He just appeared nervous and the way he was checking his pockets. He was doing it extremely fast.