WisBar News: Pocket Pat Not Enough for Terry Stop, State Appeals Court Says:

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  • WisBar News
    March
    18
    2014

    Pocket Pat Not Enough for Terry Stop, State Appeals Court Says

    Joe Forward
    Legal Writer

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    March 18, 2014 – People occasionally pat their pockets to ensure they haven’t lost items of value, such as phones or wallets. Police call it a “security adjustment.” Recently, a state appeals court ruled police could not use a security adjustment, without more, as a basis to search someone.

    On a summer night in 2012, Patrick Gordon was walking down the street with two friends in a high crime area. As a police squad rolled up, Gordon made a security adjustment – he patted the front pocket of his pants when he saw police.

    One of the police officers later testified that individuals carrying weapons typically perform a security adjustment, consciously or unconsciously, when confronted by police. This was the primary reason police decided to search Gordon, he testified.

    In Gordon’s pockets, Police found crack-cocaine, marijuana, and a .22 caliber pistol. Gordon did not have a license to carry a concealed weapon. He was arrested.

    In court, Gordon filed a motion to suppress the evidence based on an illegal search, but it was denied. Ultimately, Gordon pleaded guilty to the drug and illegal gun charges.

    However, in State v. Gordon, 2013AP1878-CR (March 18, 2014), a three-judge panel for the District I Court of Appeals reversed Gordon’s convictions, concluding police “did not have an objectively reasonable belief that he was armed” when they stopped him.

    The panel noted that both the U.S. and Wisconsin constitutions protect persons from unlawful searches and seizures. Constitutional protections do not prohibit police from approaching people to investigate potentially criminal behavior, the panel noted.

    But under Terry v. Ohio, 392 U.S. 1 (1968), the panel explained, a stop requires police to have “a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” Reasonable suspicion depends on whether the circumstances, viewed objectively, could support the officer’s belief.

    The appeals court panel reviewed the circuit court’s findings to determine that police could not form an objective belief that Gordon was carrying a concealed weapon, even though he was in a high crime area and did a “security adjustment” when he saw police.

    “Without more … these findings, either taken separately or added together, do not equal the requisite objective ‘reasonable suspicion’ that ‘criminal activity’ by Gordon was ‘afoot,’” wrote Judge Ralph Adam Fine for the three-judge panel.

    The case differs from State v. Matthews, 2011 WI 92, 334 Wis. 2d 455, 799 N.W.2d 911, the panel noted, in which the man police stopped was in a high crime area, was wearing a hoodie and ski mask, and appeared to approach a woman walking by herself.

    The appeals court noted that stopping someone based on their location in a high crime area “has the tendency to condemn a whole population to police intrusion that, with the same additional facts, would not happen in other parts of our community.”

    With respect to Gordon’s perceived “security adjustment,” the panel explained that many innocent people may occasionally pat their clothing to double-check for valuables, as the officer attested, and this may occur with more frequency in high crime areas.

    “Permitting Terry stops of persons momentarily patting the outside of their clothing when the only additional facts are that those persons are in a high crime area and have seen a cruising police car would expand the individualized ‘reasonable suspicion’ requirement so far as to negate it,” Judge Fine wrote. “Accordingly, we reverse.”