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  • WisBar News
    July 31, 2015

    Milwaukee Police Stop was a “Seizure” without Reasonable Suspicion

    Joe Forward

    July 31, 2015 – The U.S. Court of Appeals for the Seventh Circuit has ruled that Milwaukee police officers “seized” Dontray Smith without reasonable suspicion, reversing his conviction and prison sentence for possessing a firearm as a felon.

    Smith was walking through an alley on Milwaukee’s north side when two bicycle patrol officers approached him. They asked Smith whether he was carrying any weapons.

    Smith admitted he had a gun, and the officers arrested him. He was later indicted on federal charges for possessing a firearm as a felon. The federal district court denied his motion to suppress the gun, rejecting his claim that police “seized” him illegally.

    Ultimately, Smith pleaded guilty and was sentenced to three years in prison with three years of supervised release, but reserved his right to appeal on the grounds that police violated his Fourth Amendment right against unreasonable searches and seizures.

    In U.S. v. Smith, No. 14-2982 (July 20, 2015), a three-judge panel for the Seventh Circuit Court of Appeals reversed his conviction, concluding that Smith was “seized” by the officers and the officers lacked reasonable suspicion to seize him.

    The panel noted that when the officers stopped Smith, he was wasn’t running or behaving suspiciously, and he was not coming from the direction of the gunshots.

    When the officers saw Smith enter the alley, they rode about 20 feet in front his path, turned around, closed the distance, and stopped five feet in front of him.

    One officer approached Smith with a hand on his police department-issued firearm, asking if Smith had any weapons. Smith admitted that he had a gun and no license to carry a concealed weapon. The officers promptly seized the gun and arrested Smith.

    Smith argued that this police encounter was a “seizure,” and police needed reasonable suspicion to believe that he committed a crime in order to seize him in this manner.

    The government conceded that police did not have reasonable suspicion, but argued that the encounter did not constitute a “seizure” requiring reasonable suspicion.

    The three-judge panel recognized that a seizure does not always occur when police approach and question individuals. That is, if a “reasonable person would feel free to disregard the police and go about his or her business,” the encounter is consensual. In this case, however, the panel ruled that the police encounter was not consensual.

    “[A] reasonable person in Smith’s situation would not have felt at liberty to ignore the police presence and go about his business,” wrote Judge Ann Claire Williams. “Therefore, we find that Smith was seized for purposes of the Fourth Amendment.”

    The panel noted that the officers stopped Smith in a dark alley, questioned him aggressively, and obstructed his movement by positioning their bicycles in front of him.

    It also rejected the government’s suggestion that no “seizure” takes place unless police physically touch an individual after stopping them, such as a stop-and-frisk:

    “While the touching of a citizen by an officer is indicative of coercion … we disagree with the suggestion that physical contact is required to find that a seizure has taken place.

    “A seizure may transpire any time police conduct ‘communicate[s] to the reasonable person an attempt to capture or otherwise intrude upon [his] freedom of movement.’”

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