Jean DiMotto, The Daily Record Newswire
When is a Terry “stop and frisk” permissible under the Fourth Amendment in “a very high-volume … crime area with a lot of gun violence?” The District I Court of Appeals recently provided guidance.
One late summer night, Patrick Gordon, 20, was walking with two friends down a brightly lit street in Milwaukee’s inner city when a marked police squad car came patrolling in the area. Both of the police officers who were passengers in the squad believed the three pedestrians “recognized the police presence.”
Gordon then touched the outside of his left front pants pocket. The officers interpreted this as a “security adjustment.”
They defined this as conscious or unconscious movement that someone makes when encountering law enforcement while carrying a weapon. The officers also thought that Gordon looked nervous.
The squad was stopped, the officers got out, and one called to the three young men, “Hey guys. Can we see your hands?” All three put their hands up. The officers frisked each young man, finding on Gordon a very small .22 caliber pistol and a small amount of cocaine packaged in corner-cut baggies.
Suppression motion
Gordon was charged with carrying a concealed weapon and possession with intent to deliver less than one gram of cocaine. He brought a motion to suppress the gun and cocaine on the grounds that the stop and frisk constituted an unconstitutional search of his person.
At the hearing one officer acknowledged that none of the three young men began to flee or even walk faster when the squad approached. The other officer added that he did not observe a bulge in Gordon’s pocket.
That officer also testified that people perform “security adjustments” on the pocket in which they carry a wallet or a cellphone. And he conceded on cross examination that the reason the stop was made was Gordon’s “security adjustment.”
Milwaukee County Circuit Judge Clare Fiorenza found their testimony credible and came to the legal conclusion that the Terry stop was warranted on these facts. She therefore denied the motion to suppress. Gordon then pleaded guilty, was sentenced and subsequently appealed the denial of his suppression motion.
Appellate decision
The facts were uncontroverted, so, as stated by Gordon’s trial counsel, “the most significant and critical issue was whether or not the security adjustment or check that they saw Gordon perform gave them the legal authority to stop Mr. Gordon.”
Judge Ralph Adam Fine wrote the court’s unanimous decision concluding that it did not.
Fine summarized Terry jurisprudence: under the Fourth Amendment police can stop and briefly detain a person for investigative purposes “if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.” The facts must be viewed objectively. The results of a pat-down cannot be used to justify the stop.
The court indicated that Fiorenza’s essential findings were threefold: Gordon was in a high-crime area, recognized the police presence and then patted the outside of his pants pocket.
The court in turn gave three reasons why these observations did not constitute objective, “‘reasonable suspicion’ that ‘criminal activity’ by Gordon … was ‘afoot.’”
First, being in a high-crime area is a sad fact of life for many people who cannot afford to live in areas that are safe. “Thus, the routine mantra of ‘high crime area’ has the tendency to condemn a whole population to police intrusion that … would not happen in other parts of our community,” the court wrote.
Second, recognizing a police presence would be a fact in almost all Terry stops. Third, a security adjustment is performed by many people who may pat the outside of their clothing to make sure they haven’t lost their possessions. “Indeed, this makes even more sense in a high crime area,” according to the court.
As to Gordon looking nervous, Fine noted that in Terry v. Ohio, Terry was pacing back and forth on a public street and this failed to pass constitutional muster as a basis for a stop.
Fine added that had Gordon begun to flee after noting the squad car, this additional fact would have been sufficient to justify the stop.
The court concluded, “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.”
Commentary
It is laudable that an appellate court seized the opportunity to carefully consider what combination of police observations reach the requisite quantum for a Terry stop.
This thoughtfully crafted decision balances police presence in high crime areas with preserving individuals’ ability to go about their business without unreasonable stops and frisks.
