Defense win: Frisking person before allowing him to sit in squad car was unlawful

State v. Jesse E. Bodie, 2021AP1656-CR, District 4, 4/13/23 (not recommended for publication); case activity (including briefs)

A state patrol officer unlawfully frisked Bodie before allowing Bodie to sit in his squad car because, under the circumstances of this case, the officer didn’t have an objectively reasonable basis to suspect Bodie was armed and dangerous.

Bodie’s car caught fire and and burned up on I-94. Bodie told one of the officers called to the scene that a friend was coming to pick him up and a tow truck was on the way. Traffic was flowing at normal speeds again, the scene was dark except for the officers’ red and blue squad lights, and it was a cold January night, so the officer suggested Bodie could have a seat in his squad car. (¶¶5-7)

Bodie told the officer “I would rather not” and, according to the officer, his demeanor “changed from laid back to a more serious tone.” The officer also found the response “odd” given the temperature and the fact Bodie appeared to be cold, as he’d been standing outside for about an hour. The officer then “strongly urged” Bodie to have a seat in the back of his squad car and “explained the safety reasons,” after which Bodie agreed to sit in the back of the squad car to wait for his ride and the tow truck to arrive. (¶8).

The officer decided to conduct a frisk of Bodie’s person before he got in the car. The frisk revealed a handgun and some white, crystal-like powder, and Bodie was charged with possession of a firearm by a felon and possession of methamphetamine. (¶¶9-11). The court of appeals, over a dissent, holds this frisk was unreasonable.

A protective search for a weapon is reasonable under the Fourth Amendment if it is supported by “reasonable suspicion that a person may be armed and dangerous to the officer or others.” State v. Nesbit, 2017 WI App 58, ¶6, 378 Wis. 2d 65, 902 N.W.2d 266, quoting State v. Kyles, 2004 WI 15, ¶7, 269 Wis. 2d 1, 675 N.W.2d 449. This is an objective standard that asks what a reasonably prudent officer would believe under the unique facts and circumstances of the case known to office at the time. Nesbit, 378 Wis. 2d 65, ¶¶6, 15 n.2; Kyles, 269 Wis. 2d 1, ¶¶9-10, 13.

The officer cited four factors to support his decision to frisk Bodie: 1) Bodie’s demeanor changed “to a more serious tone” when the officer suggested that Bodie sit in the squad car; 2) the officer interpreted Bodie’s reluctance to sit in the squad car to be “odd” due the temperature outside and Bodie appearing to be cold; 3) Bodie’s license was revoked for operating while intoxicated; and 4) Bodie had an outstanding, but non-servable, arrest warrant out of Indiana for operating without a license. (¶¶9, 18). The majority finds them insufficient:

¶19     We conclude that these factors, taken together, do not support a reasonable suspicion that Bodie was armed and dangerous because there is no reasonable inference connecting any of the factors to the possession of a weapon. Bodie responding in a “more serious tone” to the officer’s suggestion that Bodie sit in the squad car, Bodie preferring to wait in the cold, Bodie’s record of driving offenses, and Bodie’s related non-servable arrest warrant, taken together, amounted, at most, to a hunch that Bodie may have had a not-innocent reason to stand outside until his ride and the tow truck arrived. Such a hunch is constitutionally insufficient because it lacks any specific suspicion that Bodie “may be armed and dangerous to the officer or others” as is required to perform a protective search. See Nesbit, 378 Wis. 2d 65, ¶6.

The majority explains in more detail, and by distinguishing other cases, why these factors don’t provide a link to an inference that Bodie was armed. (¶¶21-27). It also addresses the fourth factor—the non-servable warrant—at length because the dissenting judge, who otherwise agrees with the majority’s analysis of the first three factors, says the fourth factor was enough by itself to justify the frisk. (¶¶36-38, 40-43). As the majority points out, there was no basis for the officer to assume Bodie even knew about the warrant or feared being arrested under it, given it was non-servable, and thus no basis to believe the existence of the warrant would cause Bodie to pose a danger to the officer. (¶¶28-32).