Frisk of nervous passenger held unlawful

Listen to this article

“An officer’s concern for his or her safety, or lack thereof, is only one part of the rich tapestry of factors that is the totality of the circumstances inquiry.” Hon. Shirley S. Abrahamson Wisconsin Supreme Court

An officer’s subjective belief that his safety or that of others is in danger is not a prerequisite to conducting a protective search for weapons, the Wisconsin Supreme Court held on March 2.

However, the court also held that, while an individual’s failure to obey the direction of an officer to keep his hands in the officer’s sight is a significant factor to consider in determining the reasonableness of an officer’s pat-down search, it does not automatically make the search lawful.

At approximately 8:45 p.m. on Dec. 23, 2001, a police officer pulled over a vehicle for the traffic violation of operating a vehicle without headlights after dark. No one in the vehicle was suspected of a crime. Joshua O. Kyles was a passenger in the vehicle.

At the request of one of the officers, Kyles exited the vehicle to allow the police to perform a consensual search of the vehicle. Kyles was wearing a “big, down, fluffy” coat, suitable for the cold winter weather that night.

When Kyles exited the vehicle, he placed his hands in his coat pockets. The officer told him to remove his hands from his pockets. As Kyles was walking, at the officer’s request, to the rear of the car, he twice placed his hands in his pockets, although told not to. Each time, Kyles complied and removed his hands from his pockets.

About four to eight seconds elapsed between the time Kyles exited the vehicle and the time the officer conducted a frisk of him. No weapon was found on Kyles, but marijuana was.

“The majority opinion fosters the continued potential for confusion in this area with regard to just how much weight, if any, the subjective impressions of an officer should be given.” Hon. N. Patrick Crooks Wisconsin Supreme Court, in dissent

Kyles moved to suppress the marijuana, and Kenosha County Circuit Court Judge David M. Bastianelli granted the motion. The State appealed, but the court of appeals affirmed in an unpublished decision.

The Supreme Court granted review, and also affirmed, in a decision by Chief Justice Shirley S. Abrahamson. Justices N. Patrick Crooks and Jon Wilcox each wrote dissents, and Justice Patience D. Roggensack did not participate.

The court considered the weight to be given the following six facts: (1) The officer testified that he “didn’t feel any particular threat before searching” Kyles; (2) Kyles, during the four-to-eight-second interval, at least twice inserted his hands into and removed his hands from his coat pockets after being directed by the officer to remove his hands from his pockets; (3) Kyles wore a big, fluffy down coat in which a weapon could be secreted; (4) Kyles appeared nervous; (5) the stop occurred at night; and (6) the officer testified that criminal activity in the area of the stop was “pretty active.”

Subjective Threat

The court concluded that, while subjective fear that a suspect is armed is not a prerequisite to a valid frisk, it was not error for the circuit court to allow the officer to testify that he did not feel any particular threat that Kyles was armed before searching him, and to consider the officer’s lack of belief that his safety was in danger in granting the suppression motion.

The court noted, “Because an objective standard is applied to test for reasonable suspicion, a frisk can be valid when an officer does not actually feel threatened by the person frisked or when the record is silent about the officer’s subjective fear that the individual may be armed and dangerous.”

Noting that, with limited exceptions, most courts have held that an officer’s lack of subjective fear that a suspect is armed is not dispositive in evaluating the reasonableness of the officer’s frisk, the court agreed with the majority authority.

Quoting the Fifth Circuit’s decision in United States v. Tharpe, 536 F.2d 1098, 1100-1101 (5th Cir.1976)(reversed on other grounds by United St
ates v. Causey, 834 F.2d 1179 (5th Cir.1987)), the court iterated that even though an officer’s “subjective feelings may have been equivocally expressed … [w]e know of no legal requirement that a policeman must feel ‘scared’ by the threat of danger. Evidence that the officer was aware of sufficient specific facts as would suggest he was in danger satisfies the constitutional requirement. … [N]o purpose … would be served by insisting on the retrospective incantation ‘I was scared.’ Some foolhardy policemen will never admit fear. Conversely, reliance on such litany is necessarily prone to self-serving rationalization by an officer after the fact. It would be all too easy for an officer to belatedly recite that he was scared in situations where he neither had any reason to be scared, nor was indeed scared.”

State v. Mohr

However, the court rejected the State’s argument that this conclusion requires it to overrule the court of appeals’ decision in State v. Mohr, 2000 WI App 111, 235 Wis.2d 220, 613 N.W.2d 186.

The State argued that Mohr adopted subjective threat as a prerequisite to a frisk, but the court disagreed. Noting that the analysis in Mohr begins and ends with a reference to the objective standard, as do the lower court decisions in the case at bar, the court stated, “The Mohr court recognized that an officer’s concern for his or her safety, or lack thereof, is only one part of the rich tapestry of factors that is the totality of the circumstances inquiry.”

The court summed up its holding as follows: “We conclude that an officer may be questioned about his or her fear or belief that his or her safety or that of others was in danger because the person frisked may have been armed and that a court may consider an officer’s fear or belief that his or her safety or that of others was in danger in determining whether the objective standard of reasonable suspicion was met under the totality of the circumstances. An officer’s legal and subjective conclusions are, however, not determinative of the validity of the frisk; a court applies an objective standard to the facts known to the officer. The officer’s fear or belief that the person may be armed is but one factor in the totality of the circumstances that a court may consider in determining whether an officer had reasonable suspicion to effectuate a protective weapons frisk. Sometimes an officer’s perceptions will help sustain the objective reasonableness of an officer’s frisk. Other times, these perceptions may undercut a conclusion of reasonableness.”

Hands in Pockets

The court then turned to the significance of the “primary factor” that the State argued supported the search — Kyles’ repeated insertion of his hands into his coat pockets.

The court acknowledged, “an individual’s failure to obey the direction of an officer to keep his hands in the officer’s sight is a significant factor to consider in determining the reasonableness of an officer’s suspicion that an individual might be armed and dangerous.”

The court explained, “Officers need to see a person’s hands so that they can determine whether the individual is reaching for a weapon. Officers have a legitimate, objective concern for their own safety when an individual reaches into his pockets. This concern is heightened when individuals place their hands in their pockets after being instructed to remove their hands from their pockets.”

Returning again to the Mohr case, the court again concluded that it should not be overturned. In Mohr, the court of appeals held that a protective search of an automobile passenger was unlawful, even though the passenger twice refused to remove his hands from his pockets.

Refusing to adopt a per se rule that an individual’s “hands in pockets” automatically establishes reasonable suspicion, the court stated, “we conclude that a person’s returning his hands to his pockets after being asked to remove them by an officer is an important factor for a court to consider under the totality of the circumstances.

We refuse, however, to adopt a per se rule that in all cases, regardless of other circumstances, a person’s placing his or her hands in his or her pockets after an officer directed that the hands be removed is sufficient to provide reasonable suspicion to effectuate a protective weapons frisk. We consider the defendant’s movement of his hands under the totality of the circumstances of the present case.”

The court concluded that the totality of the circumstances did not justify the search. Although Kyles was wearing a coat that could easily conceal weapons, the court found that wearing bulky winter clothing in the midst of a Wisconsin winter is not a suspicious activity.

Accordingly, the court affirmed.

The Dissents

Both Justice Wilcox and Crooks wrote dissents in the case.

Wilcox agreed that a frisk can be valid although an officer does not feel actually threatened by the person, and that there should not be a per se rule justifying a search anytime an individual places his
hands in his pockets contrary to police orders.

However, Wilcox concluded that the totality of the circumstances justified the frisk, stating, “I believe that under the totality of the circumstances, the following factors taken together validate the search: 1) the late hour of the day; 2) the relative darkness of the area where the search occurred; 3) the amount of criminal activity in the area; 4) the defendant’s nervousness; 5) the defendant’s persistent disobedience of police orders by placing his hands in his pockets as he approached the rear of the vehicle; and 6) the fact that the defendant’s coat was large enough to conceal a weapon without any visible indication of such.”

	Links Wisconsin Supreme Court Related Article Case Analysis

Crooks’ dissent emphasized the majority’s treatment of Mohr, and maintained that the standard for examining an officer’s basis for a search must be objective.

Crooks wrote, “I believe the majority misses the opportunity to place the recent Wisconsin cases of McGill, Mohr, and this case along some understandable continuum of facts involving a totality of the circumstances analysis. The majority opinion fosters the continued potential for confusion in this area with regard to just how much weight, if any, the subjective impressions of an officer should be given. I would reverse the judgment of the court of appeals in this case. Here, the circuit court clearly felt obligated to place reliance on Mohr’s subjective impression language. Language that was, in my opinion, incorrect. The specific and articulable facts, along with the rational inferences properly drawn from those facts, clearly demonstrate the reasonableness of the protective frisk conducted here, and the subsequent seizure of contraband.”

Click here for Case Analysis.

David Ziemer can be reached by email.