State v. Rodney D. Johnson, 2010AP2470-CR, District 1, 10/4/11
court of appeals decision (not recommended for publication); for Johnson: Richard L. Kaiser; case activity
Acting on a drug tip, police targeted Johnson, and saw him driving a car with a cracked windshield. After Johnson got out of the car, the officers approached, and “asked” to talk to him, but he walked away. The officers then “asked” him to take his hands out of his pocket, at which point he tossed baggies to the ground. You can guess the rest. The court upholds seizure of the drugs, for multiple reasons:
¶7 When Johnson got out of the car with his hands in his pocket, the officers prudently and lawfully asked him to take them out. First, they had a right to try to talk to Johnson about the cracked windshield and the drug information ….
¶8 Second, the officers suspected Johnson of drug crimes, and drugs and guns “‘go hand in hand.’” See State v. Guy, 172 Wis. 2d 86, 96, 492 N.W.2d 311, 315 (1992) (“‘drug dealers and weapons go hand in hand’”) (quoted source omitted).
¶9 Third, police officers risk death or serious injury when they approach someone irrespective of that person’s connection with illegal drugs. … The officers thus had the right to see Johnson’s hands so they would not be surprised if he pulled out a weapon. … When Johnson pulled his hands out of his pocket in response to the officer’s lawful command, he thus had not yet been “stopped” or “seized.” When he discarded the four baggies, he abandoned them, and officers may lawfully seize abandoned property. See Molina v. State, 53 Wis. 2d 662, 668–669, 193 N.W.2d 874, 877–878 (1972). The trial court did not err in denying the motion to suppress. Accordingly, we affirm.
The first and second reasons appear to be make-weight. If the police had reasonable suspicion to seize Johnson, then “asking” him to display his hands was merely part and parcel of that seizure. In other words, if the police had reasonable suspicion to seize Johnson, then the analysis shouldn’t need to go beyond ¶7. And if they didn’t have reasonable suspicion, then the concerns marshaled by the court, however valid, become irrelevant, because they can’t be used to bootstrap otherwise unsupportable coercive police conduct. Did the police have reasonable suspicion? Presumably not; the court doesn’t say one way or the other, but surely would have had it thought so. The court’s failure to draw this conclusion leaves the analysis in ¶9 decisive by default: undoubtedly, if Johnson hadn’t been seized when he threw the baggies to the ground, he abandoned them. But the court simply doesn’t say why no seizure had occurred to that point, leaving that critical premise in some doubt. On this point, see, e.g., Delorenzo v. State, 921 So.2d 873, 876 (Fla. 4th DCA 2006) (“Ordering an individual to take his hand out of his pocket ordinarily turns a consensual encounter into a stop.”); People v. Wilson, 201 AD2d 399 (1st Dept 1994) (“defendant’s actions in dropping a bag containing contraband as he took his hands out of his pockets as directed, was not a calculated, voluntary abandonment, but a spontaneous reaction to improper police action) and People v. Pinckney, 2011 NY Slip Op 51649 (9/9/11) (same). Now, it may be that the court thought this a matter of request, rather than order, that Johnson take his hands out of his pocket, which would make the encounter consensual and his act of tossing the baggies one of free will – that is essentially what the State argued on appeal. And, at least rhetorically, it might be seen as a mere request: “Can you stop, please? Police. Can you take your hands out of your pocket?” But it isn’t necessary to puzzle out whether a reasonable person have felt free to disregard this “request” because the court of appeals does not itself see this as a mere request: “The officers thus had the right to see Johnson’s hands so they would not be surprised if he pulled out a weapon. … Johnson pulled his hands out of his pocket in response to the officer’s lawful command ….” (Emph. supplied.) The idea that a police command doesn’t establish a police seizure is deeply problematic – especially given that Johnson complied with the command; in other words, he submitted to a show of authority and at that moment therefore had been “seized” by the police. What, though, about tossing the baggies? Is that an abandonment of the property? Not if the act was in response to unlawful police conduct, State v. Hart, 2001 WI App 283, ¶¶24-25, 249 Wis.2d 329, 639 N.W.2d 213 (Hart reached into his pocket and threw a pipe on the ground during unlawful frisk; no abandonment, because it was done in response to the frisk: “We conclude that Hart acted in response to the illegal pat-down. … Therefore, the district attorney’s abandonment theory cannot stand under these facts.”).
