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    August 15, 2017

    Appeals Court Upholds Search of Man Walking on Highway, Vehicle Out of Gas

    Joe Forward

    Tank Empty

    Aug. 15, 2017 – A state appeals court recently upheld the search of a man who was walking on the interstate to retrieve gas for his vehicle despite the man’s argument that the officer did not have reasonable suspicion to believe he possessed a weapon.

    Kavin Nesbit and a friend were walking down Interstate-94 in Kenosha County with a gas can. Their vehicle ran out of gas, and they were walking to a gas station.

    A state trooper pulled behind them and engaged them in a normal conversation before offering to give them a ride, informing them that walking on expressways is illegal.

    Department policy requires a frisk before entering squad cars, so the trooper asked about weapons and intended to frisk them both before entering the squad car.

    Nesbit’s friend said he had no weapons with no change in demeanor. But Nesbit’s demeanor appeared to change with the question. The officer frisked Nesbit, revealing a loaded firearm on his left hip. He was charged with felony possession of a firearm and marijuana possession that he later admitted at the county jail.

    Nesbit moved to suppress the evidence, arguing the state trooper’s search was not supported by reasonable suspicion. He pled guilty to firearm possession after the circuit court denied the motion, and appealed. But the District II Court of Appeals affirmed.

    In State v. Nesbit, 2016AP224-CR (Aug. 9, 2017), a three-judge panel held that the trooper “had reasonable suspicion that Nesbit was armed and dangerous.”

    The panel said it was a close case and “comes down to one key fact and the rational inferences to be drawn therefrom in light of additional facts.” The key fact? It was Nesbit’s change in demeanor when the trooper asked him if he had any weapons.

    “One who reacts to a question by quieting down, becoming deflated, and responding demurely does so for a reason,” wrote Judge Brian Hagedorn.

    “A reasonably prudent officer seeing this response to a question about weapons would be suspicious and wonder if the answer was truthful.”

    Judge Hagedorn said a relevant factor in determining if someone is armed and dangerous is abnormal behavior or unusual responses when interacting with police.

    The panel noted that the state trooper, David Fowles, took measures to mitigate danger before frisking Nesbit – such as positioning him in relation to Nesbit’s friend – an indication that he had suspicion that Nesbit might have lied about possessing a weapon.

    “With no protection from a second law enforcement officer and no bulletproof glass separating Fowles from his passengers, a reasonably prudent officer would be concerned for his or her safety,” Judge Hagedorn noted.



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