State v. Brianna L. Flahavan, 2016AP1133-CR, 1/26/17, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs).
Assumptions are dangerous things to make, and like all dangerous things to make–bombs, for instance, or strawberry shortcake–if you make even the tiniest mistake you can find yourself in terrible trouble.”
—Lemony Snicket, The Austere Academy
Brianna Flahavan and Jordan Lehr lived in the same house. Lehr was arrested after selling drugs to a confidential informant at his place of business. About 40 minutes later Flahavan drove away from their mutual residence and was immediately stopped by police. They did not have reasonable suspicion that she was involved in any crime; they claimed reasonable suspicion that she had information about Lehr’s criminal behavior.
Flahavan argued that an officer may stop someone someone when he “reasonably suspects that such person is committing, is about to commit, or has committed a crime.” See §968.24 and State v. Limon, 2008 WI App 77, 312 Wis. 2d 174, 751 N.W.2d 877. She acknowledged that police may stop someone “if a reasonable inference of unlawful conduct can be objectively discerned” from the person’s conduct. State v. Young, 212 Wis. 2d 417, 430, 569 N.W.2d 84 (Ct. App. 1997). But, she stressed, the police had to suspect that she was engaged in unlawful conduct.
The court of appeals dodged her point and instead held:
¶3 [Terry‘s] reasonable suspicion requirement for limited-intrusion investigative stops is a meaningful protection, but it is not a high standard. Reasonable suspicion can exist even when innocent explanations are more likely than inculpatory ones. That is, the reasonable suspicion standard does not require that the inculpatory inference be more likely than not. Indeed, even probable cause is not a more-likely-than-not standard. See State v. Erickson, 2003 WI App 43, ¶14, 260 Wis. 2d 279, 659 N.W.2d 407 (“Probable cause does not mean more likely than not.”).
According to the court of appeals, the police had reasonable suspicion to stop Flahavan because she was Lehr’s roommate and Lehr had a camera monitoring system at his business (who knows whether it was connected to his home). From this, police could assume that Flahavan knew about Lehr’s criminal activities and was acting to remove evidence from their home. The court said:
¶13 In my view, this is not a close call. Even if it is significantly more likely that Flahavan was simply aware of some of Lehr’s activities, but not involved in them, and even assuming it is far from certain that Flahavan had the ability to see, via remote monitoring, Lehr’s arrest, reasonable suspicion exists.
¶14 The facts known to police suggested that Lehr was a significant and active drug dealer. It was reasonable for police to suppose that the exterior-mounted cameras were used by Lehr to protect both his legitimate business and his drug business and that Lehr would have the ability to monitor the cameras both at his business and from his home. Given Lehr’s parole status and the extent of his drug activities, including selling from his home, it was reasonable to assume that anyone living with Lehr was aware of his activities. It was reasonable to suspect that Flahavan and Lehr were in a relationship and that Flahavan would act to protect Lehr if she could. Putting these and all of the other circumstances together, it was reasonable to suspect that Flahavan saw Lehr’s arrest from the Herndon Drive residence and that she gathered up evidence from the residence and was driving away with it to hide it or dispose of it in a different location.
