2010AP1712-CR State v. Matthews

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Search and Seizure
Stop and detention

Police officers may stop and question a person wearing a ski mask and hoodie they see late at night in a high-crime area near a woman who was walking away from the hooded and masked person and who appeared to be frightened.

“That is what we have here: (1) a man in a high-crime area; (2) late at night; (3) wearing a ski mask that covers his face below his eyes; (4) wearing a hoodie; (5) who had an ambiguous but ‘unusual’-appearing encounter with a woman walking by herself. Although it was not a mid-summer night, and Matthews may have worn the ski mask and hoodie to stay warm so that his choice of clothing was innocent, the police reasonably and based on their experience could objectively see that ‘further investigation’ was ‘warranted’ to ensure that ‘criminal activity’ was not ‘afoot.’ Accordingly, we hold on our de novo review, that Officer Lopez and the other officers had, objectively, the requisite reasonable suspicion to ask Matthews what he was doing. Indeed, Terry teaches that this is what a concerned competent officer should do: ‘a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’ Ibid. For example, the defendant in United States v. Sokolow, 490 U.S. 1, 10 (1989), had argued that ‘the least intrusive means available to verify or dispel their suspicions that he was smuggling narcotics,’ would have been ‘simply approach[ing] and sp[eaking] with him, rather than forcibly detaining him.’ That is what the officers did here. Certainly, phrasing the inquiry as ‘hey, are you going to rob somebody’ was neither off-the-wall nor coercive. Indeed, Matthews replied ‘no,’ and was not forcibly detained until he was arrested following the consensual search.”

Reversed.

Publication in the official reports is recommended.

2010AP1712-CR State v. Matthews

Dist. I, Milwaukee County, Van Grunsven, J., Fine, J.

Attorneys: For Appellant: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison; For Respondent: Bonneson, Paul G., Milwaukee

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