STATE of Wisconsin, Plaintiff-Respondent, v. Charles D. YOUNG, Defendant-Appellant.
No. 97-0034-CR
Court of Appeals
Decided July 17, 1997. Submitted on briefs June 6, 1997.
569 N.W.2d 84
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Robert A. Selk, assistant attorney general.
VERGERONT, J. Charles Young appeals from a conviction for possession of THC in violation of
BACKGROUND
The complaint charged Young with possession of THC as a repeater in violation of
Trooper Tennessen and Young were the witnesses at the hearing on the suppression motion.2 Trooper
At about 1:15 p.m. on February 24, 1996, Trooper Tennessen was involved in a surveillance operation with a number of other law enforcement personnel in an attempt to purchase narcotics in an area described as the Badger Road-Eric Circle-Fiedler Lane area in Madison. Trooper Tennessen knew this to be a high drug-trafficking area. A confidential informant and an undercover officer in an unmarked vehicle were driving through the area attempting to purchase crack cocaine. Trooper Tennessen‘s role, besides maintaining security and responding to emergencies, was to make contact with the person who sold the narcotics, try to identify them, and then release them.
Trooper Tennessen was contaсted on his radio by Detective Gerfen, who was also part of the surveillance. Detective Gerfen told Trooper Tennessen that there was “a black male subject in the Badger Lane
Trooper Tennessen drove eastbound on Badger Road for about a minute and a half until he saw a person who met the description and who Trooper Tennessen later identified as Young. Trooper Tennessen pulled his car up alongside Young, and he and his partner got out of the car and asked Young for identification. Young asked if there was a problem and Trooper Tennessen responded something to the effect of, “we saw you sell some drugs or buy some drugs” or that “a transaction took place.” Young was cooperative, identified himself and, when Trooper Tennessen asked him if he had anything illegal on his person, Young responded that he had a marijuana pipe. Trooper Tennessen asked Young if he could search him for anything else illegal, and Young agreed. The trooper then did a pat down search and emptied Young‘s pockets. He found a small amount of marijuana and a marijuana pipe. There were other people in the area.
Trooper Tennessen acknowledged that he stopped Young based solely on what Detective Gerfen told him, not based on anything he personally observed. Detective Gerfen did not tell Trooper Tennessen that the person Young had contact with was a suspected drug
Q. And Detective Gerfen had told you that this person had made a short-term contact, but you didn‘t know how long, and he didn‘t say if there was anything exchanged, correct?
A. I don‘t recall specifically, okay.
Q. So as far as you know, this contact was just two people meeting; they may not have even touched each other, as far as you know, right, and then left? That was the information that you got?
A. Basically.
Q. And when you—and based on that information [and the description Detective Gerfen provided] you stopped Mr. Young?
A. Um-hum.
Trooper Tennessen testified on redirect that his understanding of “short-term contact” is the commonly accepted definition for the term within the Dane County Narcotics and Gang Task Force.
Young testified that he was in the neighborhood to visit his sisters, who lived there. He lived in another section of the city. He acknowledged talking to people outside his sisters’ apartments while he was in the neighborhood.
ANALYSIS
A brief investigatory stop is a seizure and is therefore subject to the requirement of the Fourth Amendment to the United States Constitution that all searches and seizures be reasonable. Terry v. Ohio, 392 U.S. 1, 20-22 (1968). To execute a valid investigatory stop consistent with the Fourth Amendment, a law enforcement officer must reasonably suspect, in light of his or her experiencе, that some kind of criminal activity has taken or is taking place. State v. Richardson, 156 Wis. 2d 128, 139, 456 N.W.2d 830, 834 (1990). The officer must be able to point to specific and articulable facts that, taken together with rational inferences from
In reviewing a denial of a motion to suppress, we will uphold the circuit court‘s findings of fact unless they are clearly erroneous. Whether those facts satisfy the constitutional requirement of reasonableness is a question of law, which we review de novo. See State v. Waldner, 206 Wis. 2d 51, 54, 556 N.W.2d 681, 683 (1996).
Young argues that observation of a brief contact between two individuals walking on a sidewalk in a residential neighborhood in the afternoon is insufficient tо constitute a reasonable suspicion that a drug transaction has taken place, even in a neighborhood known for drug trafficking, and even if the officers
Both parties appear to agree that there are no disputed facts, and that is what the trial court stated in its decision.5 Although each party emphasizes differ-
When defense counsel sought a clarification as to whether the court was finding that the term “short-term contаct” meant different types of contact to Trooper Tennessen, the court responded that its notes indicated that Trooper Tennessen had testified, when asked what he meant by short-term contact, “an exchange of cash for drugs,” and the court did not believe that he indicated another definition. When defense counsel referred to Trooper Tennessen‘s testimony on cross-examination that it could mean other things, the court responded that defense counsel might be correct in that regard, that the court‘s notes indicate that defense counsel “started off [his] cross-exam with very specific questions, which certainly narrow down the extent of the information that he had available.” However, the court did not further discuss or clarify its findings regarding Trooper Tennessen‘s understanding of the term “short-term contract.”
We do not read the court‘s decision as finding that Trooper Tennessen understood that Detective Gerfen had seen an exchange of cash for drugs. We read the court‘s decision as acknowledging that the term “short-term” contact as understood by Trooper Tennessen did not necessarily mean that Detective Gerfen had observed the exchange of cash for drugs, or the exchange of any object. We understand the court‘s determination to be that, because of the officers’ training and experience in how drug transactions in that area took place, a brief contact between two individuals, even without the observation of the exchange of anything, could be a drug transaction, and that is sufficient to constitute reasonable suspicion.
Both parties agree that Young‘s presence in an area known for drug trafficking is a permissible factor to take into account, along with other factors, in determining whether there was reasonable suspicion for the stop. See State v. Morgan, 197 Wis. 2d 200, 211, 539 N.W.2d 887, 892 (1995). They also agree that this factor, standing alone, does not provide the reasonablе suspicion required for a lawful stop. This was established in Brown v. Texas, 443 U.S. 47 (1979), which we discuss in some detail as it provides a useful starting point for our analysis.
In Brown, two officers were cruising in a patrol car early one afternoon in an area of El Paso, Texas, which had a high incidence of drug traffic. The officers observed the defendant and another man, who were a few feet apart when they were first observed, walk away from one another in opposite directions in an alley. One of the officers testified that the two men had been together or were about to meet until the patrol car appeared. The officer got out of the patrol car and asked the defendant to identify himself and explain what he was doing. When the defendant refused to identify himself, he was arrested for violation of a Texas statute that makes it a criminal act for a person not to give his name and address to an officer who has lawfully stopped him and requested the information. Id. at 48-49. The officer testified that he stopped the
In concluding that the stop was unlawful because the officеrs did not have a reasonable suspicion that the defendant was involved in criminal conduct the Court stated:
Officer Venegas testified at appellant‘s trial that the situation in the alley “looked suspicious” but he was unable to point to any facts supporting that conclusion. There is no indication in the record that it was unusual for people to be in the alley. The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal activity. In short, the appellant‘s activity was no different from the activity of other pedestrians in that neighborhood.
Id. at 52. In a footnote, the Court stated: “This situation is to be distinguished from the observations of a trained, experienced police officer who is able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer. [Citations omitted.]” Id. at 52 n.2.
The State argues that this case is distinguishable from Brown because, in addition to Young‘s presence in a high drug-trafficking neighborhood, Young was observed making a short-term contact with another individual, which, to a trained officer, “raised an articulable suspicion that a drug transaction may have occurred.” We agree with the State that this additional factor was not present in Brown. However, we do not accept the premise implicit in the State‘s position that, because a trained officer testifies that certain conduct may mean that a drug transaction has occurred, it
As the court in Brown pointed out, training and experience enables law enforcement officers to perceive and articulate meaning that would not arouse suspiсion to an untrained observer. Id. The training and experience of the officers involved in an investigative stop is therefore one factor in the totality of the circumstances that courts take into account in deciding whether there is reasonable suspicion to make the stop. “But the fact that an officer is experienced does not require a court to accept all of his suspicions as reasonable, nor does mere experience mean that an [officer‘s] perceptions are justified by the objective facts. The ‘basis of the police action must be such that it can be reviewed judicially by an objective standard.’ [Citations omitted.]” United States v. Buenaventura-Ariza, 615 F.2d 29, 36 (2nd Cir. 1980).
Apart from Young‘s presence in a high drug-trafficking area, the only conduct that Trooper Tennessen knew Young had engaged in was having a “short-term contact” with another individual. He did not know if Young had exchanged any item with the individual or touched the individual, because, according to his testimony, “short-term contact” does not necessarily mean that that has taken place, and Detective Gerfen did not tell him that it did in this instance. We observe that stopping briefly on the street when meeting another person is an ordinary, everyday occurrence during daytime hours in a residential neighborhood. There is nothing in the record to suggest that that is not the case in this residential neighborhood, or in high drug-trafficking residential neighborhoods in general. The conduct that Trooper Tennessen considered suspicious, then, is conduct that large numbers of innocent citizens
We recognize, as the State emphasizes, that conduct which has innocent explanations may also give rise to a reasonable suspicion of criminal activity. Waldner, 206 Wis. 2d at 51, 556 N.W.2d at 685. If a reasonable inference of unlawful conduct can be objectively discerned, the officers may temporarily detain the individual to investigate, notwithstanding the existence of innocent inference which could be drawn. Id. But the inference of unlawful conduct must be a reasonable one. See Terry, 392 U.S. at 21. It is also true that a series of acts, each of which are innocent in themselves may, taken together, give rise to a reasonable suspicion of criminal conduct. See United States v. Sokolow, 490 U.S. 1, 9–10 (1989). However, here we do not have a series of acts by Young but only one act which describes the conduct of large numbers of law-abiding citizens in a residential neighborhood, even in a residential neighborhood that has a high incidence of drug trafficking.
The State has not directed us to any case that finds reasonable suspicion on so spare a record. Our research disclosed cases that find reasonable suspicion where
On the other hand, courts have found no reasonable suspicion where the following factors were present in addition to location in a high drug-trafficking area. An officer observed an individual leaning into a car talking to the defendant who was in the driver‘s seat and testified that based on his experience this behavior often indicated a drug transaction was taking place. Childs v. State, 671 So. 2d 781, 782 (Ala. Ct. App. 1995). The defendant was observed getting into a car in broad daylight with an individual knоwn to have past drug convictions; the two were observed huddling and talking with their hands close together but officers did not observe anything in their hands; their car drove off
Because the detеrmination of reasonable suspicion is fact sensitive and the possible factors vary, we do not look to other cases with the expectation that one will be factually identical and resolve the issue in this case. We are also aware that none of the cases we referred to are binding on this court. Nevertheless, cases from other jurisdictions are a persuasive indicator that the particularized information required for reasonable suspicion is not present in this case.
Although the “drug profile” cases are factually distinct from this case, we find them instructive as well. In such cases, police officers rely on a composite of acts or characteristics that, when considered separately are innocent, but, when considered together compose a “profile” common to drug traffickers in the officer‘s view. See, e.g., Sokolow, 490 U.S. at 10. Although the officer making an investigative stop in such a case testifies that the acts and characteristics observed fit a profile for a drug dealer, the court must nevertheless independently examine those factors to determine whether they constitute а reasonable suspicion that the individual detained is engaged in drug trafficking. See id.; see also Reid v. Georgia, 448 U.S. 438, 440-41 (1980). If the acts and characteristics relied on for the stop are not the particular conduct of the individual
While the drug profile cases typically rely on a greater number of factors than are present in this case, we consider the reasoning to be applicable here. The factors giving rise to suspicion here are: (1) presence in a high drug-trafficking area; (2) a brief meeting with another individual on a sidewalk in the early afternoon; and (3) the officer‘s experience that drug transactions in this neighborhood take place on the street and involve brief meetings. This is not particularized information concerning Young‘s conduct and it describes large numbers of innocent persons in the neighborhood. We conclude that these factors are not sufficient to give rise to the reasonable, articulable suspicion of criminal activity that justifies the intrusion of an investigative stop.
By the Court.—Judgment reversed.
DYKMAN, P.J. (dissenting). This сase is determined by the meaning of the words “reasonable suspicion,” used in a constitutional sense in Terry v. Ohio, 392 U.S. 1 (1968). I conclude that the information Trooper Tennessen received provided him with a reasonable suspicion that Young possessed drugs. Thus, under Terry, Tennessen could stop Young to investigate further. The Supreme Court justified this lesser standard by noting that a stop was a limited intrusion.
The Wisconsin Supreme Court has held that, for a higher burden, that of “probable cause,” the evidence need not show that guilt is more likely than not. State v. Mitchell, 167 Wis. 2d 672, 681-82, 482 N.W.2d 364, 367-68 (1992). This is instructive, because we are told that a person may be more likely to be innocent of wrongdoing than guilty, and yet an officer can have probable cause to search or arrest that person. And “reasonable suspicion” is a lesser standard than “probable cause.” State v. Gordon, 159 Wis. 2d 335, 348, 464 N.W.2d 91, 95 (Ct. App. 1990). All that is necessary is that the officer have more than a “hunch.” See State v. Guy, 172 Wis. 2d 86, 95, 492 N.W.2d 311, 314 (1992).
I conclude that Trooper Tennessen had the minimal amount of evidence necеssary to stop Young. Young was in an area where purchasers and sellers of drugs congregated. Drugs were sold on the street. The trooper‘s understanding of the term “short-term contact,” which Detective Gerfen used to describe Young‘s actions, was a short interaction between two people which in many instances in areas of high drug-trafficking involved the purchase of drugs.
Thus, what Trooper Tennessen heard was that Young had engaged in an act in a high drug-trafficking area which, in many instances, involved a drug purchase. It need not be more likely than not that Young purchased or sold drugs. Even if it was more likely than not that Young was innocent, Mitchell holds that this does not defeat the existence of probable cause, a higher standard than “reasonable suspicion.” I conclude that Trooper Tennessen had something more