State v. Lawrence J. Fields, 2000 WI App 218, 239 Wis.2d 38, 619 N.W.2d 279
For Fields: Daniel Goggin
Issue: Whether the police stop of a car, merely because it had lingered at a stop sign for a few seconds, was supported by reasonable suspicion.
Holding: To ask the question is to answer it. This was, at least in the cop’s mind, a case of premature evasion. ¶14 (“The officer only thought the longer-than-normal stop might be a prelude to evasion.”) He needed more, ¶¶21-23. (Of course, when “more” is present, then the outcome will be different, see, e.g., State v. Bendixen, Iowa App 04-1191, 7/13/05 (officer alerted to possible prowler in neighborhood and, when saw defendant’s car linger at stop sign for 20 seconds, reasonable suspicion for stop).)
Fields contains a disconcertingly deferential discussion of State v. Anderson, 155 Wis. 2d 77, 454 N.W.2d 763 (1990), and an implicit endorsement of its discredited notion that “police avoidance” behavior necessarily supports a stop, ¶¶14-15. In the first place, there is a tendency by the court to accept uncritically a claim by the police of “avoidance” behavior; on this point, see Judge Posner’s dismissive observation, in U.S. v. Broomfield, 7th Cir No. 04-4180, 7/29/05:
… Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.United States v. Jones, 269 F.3d 919, 927-29 (8th Cir. 2001); United States v. Moreno-Chaparro, 180 F.3d 629, 632 (5th Cir. 1999); see also United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1123 n. 4 (9th Cir. 2002); cf. United States v. Troka, 987 F.2d 472, 474 (7th Cir. 1993). …
There is, as well, a second point, which is that even if “police avoidance” is taken as given factually, it should not alone support reasonable suspicion as a matter of law; on this point, see Illinois v. Wardlow, 528 U.S. 119 (2000), Stevens conc/diss:
The State of Illinois asks this Court to announce a “bright-line rule” authorizing the temporary detention of anyone who flees at the mere sight of a police officer. … Respondent counters by asking us to adopt the opposite per se rule–that the fact that a person flees upon seeing the police can never, by itself, be sufficient to justify a temporary investigative stop of the kind authorized by Terry v. Ohio, 392 U. S. 1 (1968). … The Court today wisely endorses neither per se rule. Instead, it rejects the proposition that “flight is … necessarily indicative of ongoing criminal activity,” … adhering to the view that “[t]he concept of reasonable suspicion . . . is not readily, or even usefully, reduced to a neat set of legal rules,” but must be determined by looking to “the totality of the circumstances–the whole picture.”
And see also U.S. v. Bonner, 3rd Cir No. 03-1547, 3/30/04 (“Indeed, the Supreme Court has never held that unprovoked flight alone is enough to justify a stop. The Supreme Court has held, however, that flight upon noticing police, plus some other indicia of wrongdoing, can constitute reasonable suspicion. Wardlow, 528 U.S. at 125-26….”)
