Dope ditched during unlawful stop is inadmissible

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“He stopped walking … when the police stopped within a few feet of him, and ordered him to stop. We cannot conclude, under these facts, that Washington did not yield until after he threw his hands in the air.” Hon. Patricia S. Curley Wisconsin Court of Appeals

The Wisconsin Court of Appeals held on May 17 that, where the police did not have reasonable suspicion to initially stop a suspect, and the suspect did not flee, the contraband that he tossed away must be suppressed.

On Aug. 23, 2003, two Milwaukee police officers were on patrol in plain clothes, and in an unmarked squad car to investigate a complaint of loitering and drug sales at an allegedly vacant house. Damian Darnell Washington was in front of the house that the police were investigating, and after one of the officers recognized him from past encounters, they ordered him to stop.

Washington stopped initially, but also took a few steps backwards and allegedly looked nervous. He then threw his hands up and a towel flew out of his hand.

Washington was then pushed to the ground and subdued. One of the officers retrieved the towel and discovered cocaine in a baggie that had been wrapped in the towel.

Washington was charged with one count of possession of cocaine, one gram or less, with intent to deliver. He moved to suppress the cocaine, but Milwaukee County Circuit Court Judge Timothy G. Dugan denied the motion. Dugan concluded that, although the initial stop was not supported by reasonable suspicion, Washington, by tossing the towel, failed to acquiesce to the officer’s show of authority, and therefore the cocaine was admissible.

Dugan also concluded that, by tossing the towel, Washington lost any reasonable expectation of privacy in its contents, and that the police then had, not only reasonable suspicion, but probable cause.

Washington then pleaded guilty and appealed the denial of his suppression motion. The court of appeals reversed in a decision by Judge Patricia S. Curley.

Pursuant to United States v. Mendenhall, 446 U.S. 544, 554 (1980), "a person has been ‘seized’ within the meaning of the Fourth Amendment if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."

However, an exception to the rule exists when the defendant does not acquiesce to the officer’s show of authority. In California v. Hodari D., 499 U.S. 621 (1991), the defendant fled at the approach of an unmarked police car and tossed a rock of crack cocaine, before being eventually tackled by the police officer who chased him down.

The Supreme Court framed the issue as "whether, at the time he dropped the drugs, Hodari had been ‘seized’ within the meaning of the Fourth Amendment." The court held that, because Hodari did not yield to the show of authority, no seizure had yet occurred at that time.

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Applying the cases to the one at bar, the court of appeals found Hodari distinguishable, because there was no question that the suspect in Hodari fled from police, while Washington did not. The court noted, "The trial court found that Washington stopped when ordered to do so. Though he also continued to take a few steps backwards, and the officer may have thought that he might run, that does not equate his actions with fleeing. Indeed, he stopped and addressed the police, allegedly inquired as to what he had done, and eventually threw his hands up in the air. He stopped walking towards the store, or wherever he was going, when the police stopped within a few feet of him, and ordered him to stop. We cannot conclude, under these facts, that Washington did not yield until after he threw his hands in the air."

Because the appellate court agreed with the trial court that the officers lacked reasonable suspicion for the initial stop, the court concluded that the evidence should have been suppressed, and reversed.

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David Ziemer can be reached by email.