Search and Seizure — reasonable suspicion

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Wisconsin Court of Appeals

Criminal

Search and Seizure — reasonable suspicion

Police did not have grounds to seize a person whose only offense was parking illegally.

“Pugh had the right to walk away. Thus, without more, backing away from a police officer is not sufficient objective evidence supporting a reasonable suspicion that criminal activity is afoot or that he was a threat. Further, ‘[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.’ Illinois v. Wardlow, 528 U.S. 119, 124 (2000). See also State v. Washington, 2005 WI App 123, ¶¶3, 17, 284 Wis. 2d 456, 460, 471, 700 N.W.2d 305, 307, 312 (Seeing a suspect in front of vacant house is insufficient reason to stop him even though: (1) the officer knew that the suspect did not live in the area, (2) the suspect had been previously arrested for selling narcotics, and (3) the police had received a complaint that someone was loitering in the area.); Sims v. Stanton, ___ F.3d ___, ___, No. 11-55401, 2012 WL 5995447, *6 (9th Cir. 2012) (‘We must be particularly careful to ensure that a “high crime” area factor is not used with respect to entire neighborhoods or communities in which members of minority groups regularly go about their daily business.’) (one set of quotation marks, brackets and quoted source omitted). That leaves Pugh not keeping the front surface of his body parallel to a line extending from one officer to the other—that is, turning his body, or, to use Officer Keller’s word, ‘blading’—as he backed away from them. But how does a person walk away from another (as Pugh had the right to do) without turning his or her body to some degree? Calling a movement that would accompany any walking away ‘blading’ adds nothing to the calculus except a false patina of objectivity.”

Reversed.

Recommended for publication in the official reports.

2012AP481-CR State v. Pugh

Dist. I, Milwaukee County, Kahn, J., Fine, J.

Attorneys: For Appellant: Thornton, J. Dennis, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sarah K., Madison