State v. Joshua O. Kyles, 2004 WI 15, affirming court of appeals’ unpublished decision
For Kyles: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: The following factors did not add up to reasonable suspicion supporting the frisk of a passenger during a routine traffic stop (¶17):
(1) The officer testified that he “didn’t feel any particular threat before searching” the defendant.
(2) The defendant, during a four-to-eight-second interval, at least twice inserted his hands into and removed his hands from his coat pockets after being directed by the officer to remove his hands from his pockets;
(3) The defendant wore a big, fluffy down coat in which a weapon could be secreted;
(4) The defendant appeared nervous;
(5) The stop occurred at night; and
(6) The officer testified, in response to a question about the criminal activity in the area of the stop, that it was “pretty active.”
As with just about all fourth amendment cases, this one is “totality-of-circumstances” fact-driven. The court, interestingly, discounts various factors that at least in the abstract are commonly used to support stops and frisks, and indeed are stressed by the two-Justice dissent, namely nervousness, darkness, high-crime area:
¶69. The stop occurred at approximately 8:45 p.m., an hour in which it is common for people to be traveling. The vehicle was stopped on a city street for a traffic violation, not a crime. The officer described the area as a “pretty active” crime area. The person who was subject of the search was a passenger in the vehicle. It was a cold December evening, and the defendant was wearing a large, fluffy coat that could be used to hide a weapon.
¶70. The defendant left the vehicle at the officer’s direction. When the defendant got out of the vehicle he put his hands in his coat pockets. As the defendant walked to the back of the vehicle at the officer’s direction, the officer asked him to keep his hands out of his pockets. The defendant immediately complied with the officer’s request. In what the officer described as a “nervous habit,” the defendant again inserted his hands into his pockets. Again the officer directed the defendant to remove his hands from his pockets, and again the defendant promptly complied with the officer’s request. Thus, over a four-to-eight-second interval, the defendant apparently complied with the officer’s request to take his hands out of his coat pockets and did keep his hands out of his pockets.
¶71. The officer did not describe the defendant’s hand gestures as threatening or menacing; they were described as “a nervous habit.” The officer testified that he didn’t feel any particular threat when he frisked the defendant for weapons. The officer further testified that he “told [the defendant] to take his hands out of his pockets . . . and [the defendant] cooperated.” Nevertheless, the officer conducted a frisk for weapons.
¶72. We are not persuaded that the two key factors emphasized by the State, the size of the overcoat and the defendant’s placement of his hands in his pockets, even when considered in light of the totality of the circumstances, were sufficient to create reasonable suspicion in the mind of a reasonable law enforcement officer that the defendant was armed and dangerous. We conclude that the officer could not, as a matter of law, have reasonably suspected that the defendant was armed and dangerous. The officer’s belief under the circumstances of this case that the defendant was armed and dangerous was more “an inchoate and unparticularized suspicion or ‘hunch'” than a reasonable inference. There was not sufficient articulable, objective information to provide the officer with reasonable suspicion that the defendant was armed and dangerous to the officer or others. Accordingly, we affirm the decision of the court of appeals , affirming the order of the circuit court suppressing the evidence.
See also U.S. v. McCoy 1st Cir No. 05-1096, 11/1/05 (following stop of driver for parking violation: dangerousness of area and defendant’s nervousness and movements inside car not enough to support reasonable suspicion to frisk); U.S. v. Wilson, 6th Cir No. 06-6339, 10/29/07 (driver’s suspicious behavior, passenger’s extreme nervousness not enough to frisk passenger; “automatic companion” rule discussed); Owens v. Commonwealth, KY No. 2006-SC-000037-MR, 1/24/08 (adopting “limited and narrow” automatic companion rule, authorizing frisk of passenger, but “only in situations in which the driver of a vehicle has been lawfully arrested and the passengers of the vehicle have been lawfully expelled in preparation for a lawful search of the vehicle”). N.B. Any discussion of the “automatic companion” rule in Wisconsin must necessarily include State v. Jordan A. Denk, 2008 WI 130, ¶62 (“Lest our discussion be misconstrued, we reiterate the bright-line rule that unarrested passengers cannot themselves be searched based solely on the arrest of the driver”).
