State v. Avan Rondell Nimmer

2022 WI 47

• Court: Wisconsin Supreme Court
• Decided: June 23, 2022
• Docket: 2020AP000878-CR
• Status: Published

Opinion

2022 WI 47

SUPREME COURT OF WISCONSIN CASE NO.: 2020AP878-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Avan Rondell Nimmer, Defendant-Appellant.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 395 Wis. 2d 769, 954 N.W.2d 753 (2021 – unpublished)

OPINION FILED: June 23, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 25, 2022

SOURCE OF APPEAL: COURT: Circuit COUNTY: Milwaukee JUDGE: Glenn H. Yamahiro

JUSTICES: REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court with respect to all parts except ¶¶28, 29 n.12, and 39–58, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶28, 29 n.12, and 39–58, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion. NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-respondent-petitioner, there were briefs filed by Sarah L. Burgundy, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Sarah L. Burgundy. For the defendant-appellant, there was a brief filed by Mark S. Rosen and Rosen and Holzman, Waukesha. There was an oral argument by Mark S. Rosen.

2 2022 WI 47 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP878-CR (L.C. No. 2019CF2611)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner, FILED v. JUN 23, 2022 Avan Rondell Nimmer, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court with respect to all parts except ¶¶28, 29 n.12, and 39–58, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶28, 29 n.12, and 39–58, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 REBECCA GRASSL BRADLEY, J. This case concerns police

officers' ability to respond to concededly reliable reports of

gunfire generated in near real-time. Two Milwaukee officers

received such a report via a technology known as ShotSpotter. The officers arrived on scene no more than one minute after No. 2020AP878-CR

receiving the report, seeing only one person there: Avan R.

Nimmer. After noticing the squad car, Nimmer accelerated his

pace away from it. He also dug around his left side with his

left hand. Officer Anthony Milone stepped out of the squad car

and walked toward Nimmer, who "bladed" his left side away from

Milone while continuing to dig around his left side.1 The

officers considered these movements suspicious because they were

consistent with actions a person may take in attempting to

conceal a weapon. The officers stopped Nimmer to investigate

whether he was involved in the shooting. Concerned for their

safety, Milone frisked Nimmer and found a handgun.

¶2 Because Nimmer was a felon, the State charged him with

being a felon in possession, in violation of Wis. Stat.

§ 941.29(1m)(a) (2019–20).2 Nimmer moved to suppress any

evidence obtained as a result of the investigative stop,

including the handgun, arguing the stop violated his Fourth

Amendment right against unreasonable seizure. The circuit court

denied Nimmer's motion.3 The court of appeals reversed in an unpublished per curiam decision. State v. Nimmer,

1 "Blading" is a technique used to conceal a weapon. "[A] person carrying a gun . . . turn[s] 90 degrees away from the person observing or approaching, placing his body between the gun and the other person." Nathan C. Meehan & Christopher Strange, Behavioral Indicators of Legal and Illegal Gun Carrying 7 (2015). 2 All subsequent references to the Wisconsin Statutes are to the 2019–20 version. 3 The Honorable Glenn H. Yamahiro, Milwaukee County Circuit Court, presided.

2 No. 2020AP878-CR

No. 2020AP878-CR, unpublished slip op. (Wis. Ct. App. Dec. 15,

2020) (per curiam).

¶3 We hold the officers had reasonable suspicion, based

on the totality of the circumstances, to believe Nimmer was

involved in criminal activity. Accordingly, we reverse the

decision of the court of appeals.

I. BACKGROUND

A. ShotSpotter

¶4 This case involves a relatively new technology,

ShotSpotter. At the suppression hearing, Officer Milone

testified ShotSpotter is a "gunshot location system." He

explained it uses "acoustic sensors" to "record sounds to try to

locate . . . gunfire." More specifically, "when the acoustic

sensors pick-up the sounds of gunfire, [they] send[] an alert to

an office in California. There is somebody standing by in the

office who listens to the audio and . . . if it sounds like

actual gunshots, they will send the alert[.]"4 Nimmer has not

argued the time that elapses between ShotSpotter detecting gunfire and notifying officers is sufficiently long to be a

material fact.

¶5 Nimmer does not dispute ShotSpotter's reliability.

Officer Milone testified at the suppression hearing, "I [have]

responded to . . . over a thousand [ShotSpotter reports]. . . .

4 Officer Milone indicated Milwaukee employs ShotSpotter at several locations: "There is ShotSpotters in multiple cities. So we get dealings for all of Milwaukee including not just District Five, but all of Milwaukee."

3 No. 2020AP878-CR

In my experience, [ShotSpotter] is pretty accurate." During

oral argument before this court, when asked whether Nimmer was

"challenging the reliability of ShotSpotter," Nimmer's attorney

responded:

No, . . . we are not. . . . [T]he thing is I think it's pretty clear about ShotSpotter technology, is I think it can say when and where. I think now it's gotten to the point where it can say what. It can distinguish between firecrackers. I think that's pretty clear. I'm not disputing that. Despite ShotSpotter's reliability, Nimmer argues the officers

lacked reasonable suspicion to believe he was involved in

criminal activity.

B. The Shooting Investigation

¶6 In the summer of 2019, Officer Milone and his partner

were on patrol when, at approximately 10:06 p.m., they received

a computerized ShotSpotter report in their squad car. It stated

four shots had been fired about three blocks away from the

officers' location. Nimmer described the reported location as

"highly residential." The officers drove there without

activating their squad car's siren or flashing red and blue

lights.

¶7 Officer Milone had responded to many similar reports

in the past. He was a nine-year police veteran assigned to the

Violent Crimes Saturation Unit, and his "typical[]" duties

included "respond[ing] to calls like ShotSpotter, shots fired,

subject with gun, armed robbery, calls of that nature involving

gun and gun violence." He testified when he responds to a ShotSpotter report, he looks for "[a]nybody who is shot, any

4 No. 2020AP878-CR

people who are shot, any potential suspects, anybody walking

around still shooting, [and] any witnesses[.]" When he sees

individuals near the reported location, he explained he "tr[ies]

to see what their response is upon sight of police, see if they

are shot, see if they take off running, see if they start

grabbing any part of their clothing, any part of their body."

Effectively, he watches for evasive or nervous behavior.

¶8 The officers arrived on scene no more than one minute

after receiving the ShotSpotter report and encountered Nimmer.

Officer Milone testified Nimmer was at "basically the exact

location where the ShotSpotter came in." He further testified

the officers did not see anyone else——only Nimmer.

¶9 Nimmer observed the squad car and immediately

accelerated his pace away from it——in fact, he doubled his pace,

according to Officer Milone. Milone worried Nimmer was trying

to distance himself from the squad car because he was

considering fleeing. Milone testified, "I have observed many

times somebody begins to accelerate their walking pace right before going into a run from police." He also testified Nimmer

"began digging around his left side with his left hand."

¶10 Officer Milone then stepped out of the squad car and

approached Nimmer. Milone testified:

As I was approaching him behind him, he began turning his left side away from me. So at that point his left side was more forward and I could only really see his right side. I could observe his left arm was still digging around. I was directly behind him on the sidewalk and his right hand was within view, but his left hand was not.

5 No. 2020AP878-CR

Milone used "blading" as shorthand for Nimmer's turning motion

at other points in his testimony. When asked to define blading,

he said, "[b]lading [i]s the term I use when I talk about

[Nimmer] moving his left side away from me where I could only

see his right side. That would have been the part where he was

blading his body." From Nimmer's blading, Milone inferred,

based on his training and experience, "[Nimmer] did not want me

to be able to see his left side."

¶11 The officers then stopped Nimmer to investigate

whether he had been involved in the shooting. Officer Milone

testified he "conducted a pat-down of [Nimmer] for officer

safety for any weapons." As Milone began, Nimmer said, "[t]he

gun is in my waistband[.]" Milone then felt Nimmer's waistband,

and on Nimmer's left side, concealed under his shirt, was a .40

caliber Smith & Wesson semiautomatic pistol.5

¶12 The State charged Nimmer with being a felon in

possession. He had been previously convicted of possession with

intent to deliver THC, in violation of Wis. Stat. § 961.41(1m)(h)1.

C. Nimmer's Suppression Motion

¶13 Nimmer moved to suppress any evidence obtained as a

result of the investigative stop, including the handgun, arguing

the stop was unsupported by reasonable suspicion that he was

involved in criminal activity. He asserted the officers stopped

5The officers later found a .40 caliber casing nearby; however, because they located it after stopping Nimmer, the casing cannot enter into the reasonable suspicion analysis.

6 No. 2020AP878-CR

him because of his "mere presence" in the same "neighborhood" as

the gunfire's reported location. Offering an alternative

explanation for his presence at the scene, Nimmer argued he

could have been an innocent "pedestrian" out for a walk "on the

street." Emphasizing the limits of ShotSpotter, Nimmer noted

ShotSpotter does not provide a description of the shooter. It

tells officers what, when, and where, but not who. Nimmer also

asserted "even if" he made furtive movements, "standing alone"

his acceleration away from the officers and his blading and

digging could not give rise to reasonable suspicion. He also

suggested these movements were not suspicious because "Nimmer

couldn't have known necessarily that the squad car was a police

car. It didn't have its red and blue lights on or the siren

going. It was dark outside. The lights would

prevent . . . Nimmer from being able to identify the squad as a

squad car[.]"

¶14 The State countered the officers had reasonable

suspicion because: (1) the officers arrived on scene almost immediately following the ShotSpotter report; (2) Nimmer was "in

the close proximity of this call;" (3) the officers did not see

anyone else near the reported location; and (4) Nimmer acted

suspiciously once he noticed the officers.

¶15 The circuit court denied Nimmer's motion, agreeing

with the State's argument. The court explained the "key" was

"the timing" of events. It indicated its decision would be

different if ShotSpotter did not work in near real-time and the officers arrived "10 or 15 minutes" after the reported shooting; 7 No. 2020AP878-CR

however, because only a nominal amount of time had passed, the

court reasoned the officers could be suspicious of people at the

scene. It found Nimmer was "very close" to the gunfire's

reported location, and Nimmer was the only person the officers

saw. Additionally, the court found Nimmer made furtive

movements upon noticing the officers, which were "consistent

with . . . trying to conceal a weapon." Viewing all of these

facts together, the court concluded the officers reasonably

suspected Nimmer of criminal activity.

D. The Appeal

¶16 Nimmer entered into a plea agreement, pled guilty, and

was sentenced to two years of initial confinement followed by

two years of extended supervision. Nimmer appealed.6 The court

of appeals reversed the judgment of conviction and remanded the

case to the circuit court, directing it to enter an order

granting Nimmer's motion to suppress. Nimmer, No. 2020AP878-CR,

¶30.

¶17 The court of appeals reasoned Nimmer's "mere presence" near "an area where criminal activity [was] suspected" was

insufficient to give rise to reasonable suspicion that he was

involved in criminal activity. Id., ¶27 (citations omitted).

The court reached this conclusion by analogizing to four cases,

only one of which involved a police response to reported

Generally, a criminal defendant waives his right to appeal 6

by pleading guilty; however, a narrow exception exists under Wis. Stat. § 971.31(10) for appeals challenging "[a]n order denying a motion to suppress evidence[.]"

8 No. 2020AP878-CR

gunfire. Those cases generally concern the weight a court may

give to a person's presence at a location associated with

criminal activity. State v. Gordon is illustrative. Id., ¶17

(quoting State v. Gordon, 2014 WI App 44, ¶¶3–4, 353

Wis. 2d 468, 846 N.W.2d 483). Officers stopped a suspect

because he was walking in "one of the more dangerous areas of

the district" and had been observed making a "security

adjustment," i.e., a movement indicating he was carrying a

weapon. Id. (quoting Gordon, 353 Wis. 2d 468, ¶¶3–4). The

court of appeals concluded the officers lacked reasonable

suspicion because a person's presence in a "high crime area"

cannot be the primary fact supporting an investigative stop.7

Id., ¶18 (quoting Gordon, 353 Wis. 2d 468, ¶18). By relying on

Gordon and other like cases, the court of appeals ignored the

timing of the officers' response to the report of gunfire,

treating this case as if the officers merely noticed Nimmer in

an area where they knew shootings often occurred instead of an

area where a shooting reportedly just occurred. ¶18 Next, the court of appeals characterized Officer

Milone's testimony about Nimmer's furtive movements as of an

"indeterminate nature" seeming to question whether Milone's

testimony was even truthful. Id., ¶28. Specifically, the court

The other three cases cited by the court of appeals were: 7

(1) State v. Pugh, 2013 WI App 12, 345 Wis. 2d 832, 826 N.W.2d 418; (2) State v. Washington, 2005 WI App 123, 284 Wis. 2d 456, 700 N.W.2d 305; and (3) State v. Lewis, No. 2017AP234-CR, unpublished slip op. (Wis. Ct. App. July 25, 2017).

9 No. 2020AP878-CR

speculated: "[W]e cannot help but wonder——even while

recognizing that police officers must make split-second

decisions under circumstances where all factors may not be

known——whether . . . officers have sought to find 'magic'

language for their articulated facts to describe a person's

behavior to [justify an investigative stop]." Id., ¶26.

¶19 The court of appeals concluded Nimmer's presence near

the gunfire's reported location, "even taken together" with

Officer Milone's testimony regarding Nimmer's furtive movements,

was insufficient to give rise to reasonable suspicion. Id.,

¶30. While the court stated it considered the facts "together,"

it never analyzed the totality of the circumstances, instead

addressing each fact in isolation.8 The State filed a petition

for review, which we granted.

II. STANDARD OF REVIEW

¶20 This case presents a question of constitutional fact.

See State v. Brown, 2020 WI 63, ¶8, 392 Wis. 2d 454, 945

N.W.2d 584 (citing State v. Smith, 2018 WI 2, ¶9, 379 Wis. 2d 86, 905 N.W.2d 353). We review the circuit court's

findings of historical fact for clear error. Id. (quoting

Smith, 379 Wis. 2d 86, ¶9). We independently apply the Fourth

Amendment to the historical facts to determine whether the

At oral argument, Nimmer's attorney acknowledged, while 8

the court of appeals purported to consider the facts together, it "didn't explain anything further," i.e., it did not analyze the totality of the circumstances.

10 No. 2020AP878-CR

investigative stop was constitutional.9 Id. (quoting Smith, 379

Wis. 2d 86, ¶9).

III. DISCUSSION

A. Fourth Amendment Principles & Terry Stops

¶21 "The Fourth Amendment is 'indispensable to the full

enjoyment of the rights of personal security, personal liberty,

and private property.'" Id., ¶9 (quoting 3 J. Story,

Commentaries on the Constitution of the United States § 1895

(1833)). It states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. "As the text makes clear, 'the Fourth

Amendment does not proscribe all state-initiated searches and

seizures; it merely proscribes those which are unreasonable.'"

State v. Coffee, 2020 WI 53, ¶22, 391 Wis. 2d 831, 943

N.W.2d 845 (lead opinion) (quoting State v. Tullberg, 2014 WI

134, ¶29, 359 Wis. 2d 421, 857 N.W.2d 120); see also Brown, 392

9The circuit court made a sweeping statement toward the end of its remarks: "Really, anyone that [the officers] encountered within a minute or two of receiving the alert should have been investigated if they were within a couple of blocks of the alleged shots being fired." The court of appeals concluded this statement was "simply too broad to fit within the confines of Fourth Amendment law regarding stop and frisk procedures." State v. Nimmer, No. 2020AP878-CR, unpublished slip op., ¶30 (Wis. Ct. App. Dec. 15, 2020) (per curiam). We agree; however, notwithstanding this single stray comment, the circuit court gave a thorough and well-reasoned explanation for its ruling.

11 No. 2020AP878-CR

Wis. 2d 454, ¶9 (quoting Riley v. California, 573 U.S. 373, 381

(2014)) ("[T]he [United States] Supreme Court repeatedly

characterizes the reasonableness of searches and seizures as

[the Fourth Amendment's] 'ultimate touchstone.'").

¶22 Generally, a search or seizure conducted without a

warrant is "per se unreasonable[.]" Brown, 392 Wis. 2d 454, ¶10

(quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)); State v.

Matejka, 2001 WI 5, ¶17, 241 Wis. 2d 52, 621 N.W.2d 891

(citations omitted). However, ever since this nation's

founding, there have been exceptions. Akhil Reed Amar, Terry

and Fourth Amendment First Principles, 72 St. John's L.

Rev. 1097, 1106 (1998) ("[A] large number of historical examples

give the lie to the idea that warrants were always required at

the Founding——warrantless arrests, searches incident to

warrantless arrest, searches of ships, searches of liquor store-

houses, border searches, successful seizures of contraband and

stolen goods, and on and on.").

¶23 An officer may briefly stop an individual, without a warrant, if the officer has reasonable suspicion to believe the

individual is involved in criminal activity. State v. Genous,

2021 WI 50, ¶7, 397 Wis. 2d 293, 961 N.W.2d 41 (quoting State v.

Young, 2006 WI 98, ¶20, 294 Wis. 2d 1, 717 N.W.2d 729); State v.

Anderson (Anderson I), 2019 WI 97, ¶32, 389 Wis. 2d 106, 935

N.W.2d 285. A short investigative stop is often called a "Terry

12 No. 2020AP878-CR

stop" based upon the United States Supreme Court decision Terry

v. Ohio, 392 U.S. 1 (1968), which sanctioned them.10

¶24 Reasonable suspicion depends on the "totality of the

circumstances." Genous, 397 Wis. 2d 293, ¶9 (citing State v.

Post, 2007 WI 60, ¶18, 301 Wis. 2d 1, 733 N.W.2d 634). Just

last term, we emphasized that "[w]e focus not on isolated,

independent facts, but on 'the whole picture' viewed together."

Id. (quoting United States v. Cortez, 449 U.S. 411, 417–18

(1981)). "Indeed, Terry itself involved a series of acts, each

of them perhaps innocent if viewed separately, but which taken

together warranted further investigation." Id. (quoting United

States v. Sokolow, 490 U.S. 1, 9–10 (1989)). In this case, the

court of appeals erred by utilizing a "divide-and-conquer

analysis." See District of Columbia v. Wesby, 583 U.S. __, 138

S. Ct. 577, 588 (2018) (quoting United States v. Arvizu, 534

U.S. 266, 274 (2002)).

¶25 Reasonable suspicion is "a low bar[.]" Genous, 397

Wis. 2d 293, ¶8 (citing Young, 294 Wis. 2d 1, ¶21; State v. Eason, 2001 WI 98, ¶19, 245 Wis. 2d 206, 629 N.W.2d 625); see

also Anderson I, 389 Wis. 2d 106, ¶33 ("Reasonable suspicion is

a fairly low standard to meet." (citing Eason, 245 Wis. 2d 206,

An officer may frisk a person during a Terry stop if the 10

officer "reasonably believes" the individual is armed and poses a safety risk. State v. Young, 2006 WI 98, ¶55, 294 Wis. 2d 1, 717 N.W.2d 729 (citations omitted). Nimmer argues the officers lacked reasonable suspicion to believe he was involved in criminal activity, but does not challenge the legality of the search following the stop.

13 No. 2020AP878-CR

¶19)). "Although a mere hunch does not create reasonable

suspicion, the level of suspicion the standard requires is

considerably less than proof of wrongdoing by a preponderance of

the evidence, and obviously less than is necessary for probable

cause[.]" Navarette v. California, 572 U.S. 393, 397 (2014)

(internal citations and quotation marks removed). "[O]fficers

are not required to rule out the possibility of innocent

behavior before initiating a [Terry] stop." Genous, 397

Wis. 2d 293, ¶8 (quoting State v. Anderson (Anderson II), 155

Wis. 2d 77, 84, 454 N.W.2d 763 (1990)).

¶26 We must "consider everything observed by and known to

the officer[s.]" Id., ¶10. Taking all of that information

into account, we then determine whether the officers had "a

particularized and objective basis" to reasonably suspect Nimmer

of criminal activity. Brown, 392 Wis. 2d 454, ¶10 (quoting

Navarette, 572 U.S. at 396). In other words, we must determine

whether the officers had more than a "mere hunch" that Nimmer

was involved in the shooting. Navarette, 572 U.S. at 397 (internal quotation removed).

B. Application

¶27 Several facts known to the officers and accepted by

the circuit court collectively give rise to reasonable suspicion

that Nimmer was involved in criminal activity: (1) ShotSpotter

generates reliable reports of gunfire in near real-time; (2)

within a minute of receiving the ShotSpotter report, the

officers arrived on scene; (3) Nimmer was at nearly the exact location where ShotSpotter reported gunfire; (4) Nimmer was the 14 No. 2020AP878-CR

only person the officers saw; and (5) Nimmer made furtive

movements upon noticing the officers.

¶28 In addition, the criminal activity being investigated—

—a shooting in a highly residential area——supplemented the

reasonableness of the officers' actions. See State v.

Rutzinski, 2001 WI 22, ¶26, 241 Wis. 2d 729, 623 N.W.2d 516

("[E]xigency can in some circumstances supplement the

reliability of an informant's tip in order to form the basis for

an investigative stop." (emphasis added) (citation omitted));

id., ¶35 ("In light of the potential for imminent danger that

drunk drivers present, the informant's allegations suggesting

that Rutzinski may have been intoxicated supplemented the

reliability of the tip, and further justified Officer Sardina's

investigative stop." (emphasis added)).

¶29 As the circuit court noted, the timing of events is

key. The officers arrived shortly after receiving a reliable

report of gunfire that was generated in near real-time, from

which they could infer the shooter was likely nearby. Other courts have also concluded a relatively short period of time

between officers receiving a ShotSpotter report and their

arrival at the scene supports reasonable suspicion to stop and

question those present. In United States v. Jones, officers

arrived on scene within a minute and a half of receiving a

dispatch that ShotSpotter had reported gunfire. 1 F.4th 50, 53

(D.C. Cir. 2021). After observing Jones walking quickly on an

otherwise deserted block, the officers stopped him. The D.C. Circuit concluded reasonable suspicion to do so existed in large 15 No. 2020AP878-CR

part because the officers' rapid response significantly reduced

the probability that the shooter had fled.11 Id. In another

analogous case, the Seventh Circuit concluded even five-and-a-

half minutes was not "[a]s both a matter of fact and

law . . . unduly long." United States v. Rickmon, 952 F.3d 876,

883 (7th Cir. 2020), cert. denied, 141 S. Ct. 2505 (2021). The

Seventh Circuit determined reasonable suspicion exists to stop

those present in the area within this timeframe because

"[c]ommon sense counsels that a person may take minutes rather

than seconds to flee for any number of reasons, including the

destruction of evidence, an injury sustained in the shooting, or

a need to hide in place."12 Id. Relying on Rickmon, the Ohio

The ShotSpotter report in United States v. Jones was not 11

sent directly to the officers. The D.C. Circuit noted the record did not indicate how much time elapsed between the generation of the ShotSpotter report and its relay to officers. 1 F.4th 50, 53 n.2 (D.C. Cir. 2021). Contrary to Justice Dallet's assertion, the period of time necessary to generate a ShotSpotter report has not played a significant role in most cases discussing ShotSpotter. See Justice Dallet's Concurrence, ¶66 & n.6.

In United States v. Rickmon, officers received two 12

ShotSpotter reports and two dispatches reporting gunfire, which were based on 911 calls. 952 F.3d 876, 882 (7th Cir. 2020), cert. denied, 141 S. Ct. 2505 (2021). The Seventh Circuit reasoned a ShotSpotter report is at least as reliable as an anonymous tip. See id. at 879 n.2, 882. It then noted the "anonymous tip from ShotSpotter" was "independently confirmed" by the 911 calls relayed through the dispatches. Id. at 882. Analogizing a ShotSpotter report to an anonymous tip is part of the analysis, not a "sidetrack" from it. See Justice Dallet's Concurrence, ¶71 ("The majority/lead opinion gets similarly sidetracked by focusing on cases that have relaxed the usual corroboration requirements for anonymous tips when the police are responding to a potential emergency.").

16 No. 2020AP878-CR

Court of Appeals recently concluded reasonable suspicion existed

in an analogous case involving approximately a four-minute

police response time. State v. Carter, 183 N.E.3d 611, 629

(Ohio Ct. App. 2022).

¶30 The reasoning of Jones and Rickmon applies to this

case. Given the officers' quick response and in light of their

observations upon arrival, they could reasonably suspect Nimmer

was the shooter and that he had not left the scene for any

In this case, the lack of a 911 call is of little importance, for multiple reasons. See State v. Carter, 183 N.E.3d 611, 629 (Ohio Ct. App. 2022) ("While there were no separate 911 calls reporting gunfire or any additional information in terms of a suspect, [Officers] Erwin and Gallagher were responding to an alert of shots fired, an inherently dangerous circumstance beyond general criminality. In their experience, they had recovered weapons in response to ShotSpotter alerts."). First, Nimmer concedes the reliability of ShotSpotter. Second, the officers arrived on scene no more than a minute after receiving the ShotSpotter report, which presumably issued shortly after the shots were detected. Whether a 911 call can be placed and relayed to officers within such a short period of time is questionable. See Marc L. Miller et al., Criminal Procedures: Cases, Statutes, and Executive Materials 428 (6th ed. 2019). Lastly, people do not always call 911 after hearing gunfire such that the lack of a 911 call discredits the ShotSpotter report. See Alexandra S. Gecas, Note, Gunfire Game Changer or Big Brother's Hidden Ears?: Fourth Amendment and Admissibility Quandaries Relating to ShotSpotter Technology, 2016 U. Ill. L. Rev. 1073, 1084 ("ShotSpotter enables the police to catch perpetrators without people fearing they are 'snitching' on their neighbors. . . . ShotSpotter highlights just how prevalent unreported gunfire is on city streets. . . . [C]ommunities that frequently experience gunfire are the least likely to report gunshots to the police."); Amanda Busljeta, Comment, How an Acoustic Sensor Can Catch a Gunman, 32 J. Marshall J. Info. Tech. & Privacy L. 211, 218 (2015) (explaining people who live in high crime areas are sometimes so desensitized to gun violence that they decline to call 911 when they hear gunfire).

17 No. 2020AP878-CR

number of reasons. See Rickmon, 952 F.3d at 883. While Nimmer

could have been a random pedestrian out for a walk, the officers

were not required to rule out any alternative explanation for

his presence at the scene. Genous, 397 Wis. 2d 293, ¶8 (quoting

Anderson II, 155 Wis. 2d at 84); see also Jones, 1 F.4th at 54.

Additionally, common sense counsels that innocent pedestrians do

not normally gather immediately near the location of gunfire,

particularly late at night. See Rickmon, 952 F.3d at 884

(noting few vehicles are out at 4:45 a.m.).

¶31 The timing of the stop is particularly persuasive in

light of Nimmer's close proximity to the exact location reported

by ShotSpotter. Contrary to the court of appeals' analysis,

this case is not about the extent to which a person's presence

in a "high crime area" can contribute to reasonable suspicion.

See Nimmer, No. 2020AP878-CR, ¶18 (quoting Gordon, 353

Wis. 2d 468, ¶18). For Fourth Amendment purposes, there is a

difference between a person's presence at a location generally

known for criminal activity and his presence at a location precisely pinpointed for gunfire by a reliable report in near

real-time. See generally United States v. Holloway, No. 20-CR-

00381, slip op., 2021 WL 5882147 *5 (N.D. Ill. Dec. 13, 2021)

(explaining a suspect's presence in a high crime area is less

valuable in a reasonable suspicion analysis than a suspect's

presence near a location reported by ShotSpotter).

¶32 Officer Milone testified Nimmer was at "basically the

exact location where the ShotSpotter came in." Consistent with this testimony, the circuit court found Nimmer was "very close" 18 No. 2020AP878-CR

to the reported location. Nimmer's "close proximity," both

"temporally" and "spatially," to that location of gunfire weighs

heavily in favor of reasonable suspicion. Commonwealth v.

Raglin, 178 A.3d 868, 873 (Pa. Sup. Ct. 2018); see also

Commonwealth v. Ford, 182 N.E.3d 1013, 1018 (Mass. Ct. App.

2022) ("The seizure of a suspect in geographical and temporal

proximity to the scene of the crime appropriately may be

considered as a factor in the reasonable suspicion analysis. It

is particularly relevant where, as here, the officer encountered

the defendant less than a minute after the last reported

ShotSpotter alert, at the location where the trail of

ShotSpotter alerts ended." (quotation marks and quoted source

omitted)); Carter, 183 N.E.3d at 629 ("Carter was observed

within four minutes of the officers receiving the alert within

the specific area of the alert. In other words, as in Rickmon,

the stop had temporal and physical proximity to the gunfire.");

Funderburk v. United States, 260 A.3d 652, 660 (D.C. 2021)

(noting "spatial and temporal proximity" to the location reported by ShotSpotter contributed to reasonable suspicion);

Rickmon, 952 F.3d at 884 (concluding "the [Terry] stop's

temporal and physical proximity to the shots" supported

reasonable suspicion); Commonwealth v. Holness, 101 N.E.3d 310,

315 (Mass. Ct. App. 2018) ("The physical appearance of the

Jaguar, and its proximity to the location of the ShotSpotter

activation and broken glass, as well as the temporal proximity

between the activation and recent motor vehicle accident, occurring in or around 4:00 A.M. on Christmas morning, when few 19 No. 2020AP878-CR

other vehicles were likely on the road, provided a sufficient

nexus between the incriminating evidence in plain view and the

accident scene.").

¶33 Nimmer was also the only person the officers observed

temporally and spatially proximate to the scene. The absence of

anyone else nearby strongly particularized the officers'

suspicion. See Funderburk, 260 A.3d at 660–61; see also Ford,

182 N.E.3d at 1018; Carter, 183 N.E.3d at 629. The officers

knew what (gunfire), when (a minute or two ago), and where (the

reported address). While they did not know who fired the gun,

they knew the shooter was likely near the reported location.

Accordingly, "[t]he officers . . . limited the universe of

potential suspects to those at a particular location" shortly

after a serious crime occurred there. See Funderburk, 260

A.3d at 657. Because no one else was in the vicinity, this

"universe" was "small enough that no description at all [was]

required to justify [the Terry stop]." Id. (quoting In re

T.L.L., 729 A.2d 334, 341 (D.C. 1999)); see also State v. Hairston, 126 N.E.3d 1132, 1137 (Ohio 2019) ("[T]he officers did

exactly what one would expect reasonable and prudent police

officers to do in their situation. Upon hearing gunshots, they

proceeded immediately to the location they believed the shots to

be coming from to investigate. Finding only Hairston in the

area[,] . . . the officers were not required to ignore

Hairston's presence[.]"); Rickmon, 952 F.3d at 884 (explaining

the lack of a description of a suspect vehicle made little difference because officers observed only one vehicle temporally 20 No. 2020AP878-CR

and spatially proximate to the location reported by

ShotSpotter).

¶34 Contributing to the totality of the circumstances

supporting reasonable suspicion, Nimmer made furtive movements.

Officer Milone testified, upon noticing the officers, Nimmer:

(1) doubled his pace away from the officers; (2) dug around his

left side with his left hand; and (3) bladed the left side of

his body away from them. Notably, Nimmer's blading did not

occur until Milone began approaching Nimmer on foot, and the

closer the officers got to Nimmer, the more evasive his behavior

became. Milone further testified, based on his training and

experience, Nimmer's movements indicated he was considering

fleeing and did not want the officers to see his left side. See

Cortez, 449 U.S. at 418 ("[A] trained officer draws inferences

and makes deductions . . . that might well elude an untrained

person.").

¶35 Contrary to the court of appeals' characterization of

Officer Milone's testimony, it was not "indeterminate" nor did he use "magic" words. The court of appeals erred by suggesting

otherwise. See Nimmer, No. 2020AP878-CR, ¶¶26, 28. In fact,

Milone's testimony was exacting.13 He did not merely say Nimmer

began walking faster——he said Nimmer doubled his pace. He did

not simply say Nimmer began digging in a pocket——he said Nimmer

dug around his left side with his left hand. He did not just

We do not opine on the extent to which less exacting 13

testimony from Officer Milone would have been sufficient.

21 No. 2020AP878-CR

say Nimmer bladed——he said, "[Nimmer] began turning his left

side away from me. So at that point his left side was more

forward and I could only really see his right side. . . . I was

directly behind him on the sidewalk and his right hand was

within view, but his left hand was not." Milone even mentioned

Nimmer continued digging with his left arm as he bladed,

although he could not see Nimmer's left hand. Milone further

described when each of these movements occurred, and the

particular inferences he drew from them. This case is not about

conclusory or jargon-ridden testimony by an officer. The

circuit court found Milone credible and had no trouble

understanding what Milone meant. Nothing in the record

indicates the circuit court erred——let alone clearly erred——by

crediting Milone's testimony. See Brown, 392 Wis. 2d 454, ¶8

(quoting Smith, 379 Wis. 2d 86, ¶9); see also Carter, 183

N.E.3d at 629 ("We do not agree, as Carter suggests, that the

officers used 'magic' words or language in testifying to

establish reasonable suspicion. The court clearly found the officers' testimony to be credible, and we defer to the court's

credibility assessment.").

¶36 Contrary to his argument, Nimmer's furtive movements

were not "standing alone;" these movements combined with other

facts to solidify the officers' particularized suspicion of

Nimmer. See Anderson I, 389 Wis. 2d 106, ¶50 ("When combined

with the information known to Officer Seeger about Anderson's

history, Anderson's behavior creates reasonable suspicion that criminal activity was afoot. Anderson's movements after he 22 No. 2020AP878-CR

noticed Officer Seeger give rise to a reasonable inference that

Anderson was trying to conceal something from the officer.");

United States v. Diaz, No. 20-cr-176 (LAK), slip op., 2020 WL

6083404 *6 (S.D.N.Y. Oct. 15, 2020), appeal filed ("The

defendants argue that a ShotSpotter report, 'standing on its

own,' cannot be the basis of 'individualized suspicion.' But

the ShotSpotter reports are only two pieces of the

calculus. . . . [B]oth officers testified that they observed

the defendants engage in 'nervous, evasive' behavior as they

exited: the officers saw Diaz turn his body slightly and

Hawkins pivot and hurry as their police car passed.

Subsequently, Officer Bonczyk observed Diaz, whom Officer Lopez

recognized from a prior arrest for assaulting an officer,

creating tension with his sweatshirt that revealed a bulge that

Officer Bonczyk thought was a gun. These observations provided

the officers with reasonable suspicion that, of all the people

coming and going from the area that night, Diaz and Hawkins were

particularly suspect."). ¶37 In the course of responding within one minute after

receiving a ShotSpotter report of gunfire in a residential

neighborhood, the officers saw a single suspect near the scene

make furtive movements suggesting concealment of a handgun.

Looking at "the whole picture," as the officers were required to

do, they made a well-informed and reasonable inference that

Nimmer might be the shooter. See Genous, 397 Wis. 2d 293, ¶9

(quoting Cortez, 449 U.S. at 417–18). They did not act on a

23 No. 2020AP878-CR

"mere hunch[.]" See Navarette, 572 U.S. at 397 (internal

quotation marks removed).

¶38 Although this is the first occasion for this court to

evaluate reasonable suspicion in the context of a ShotSpotter

report, our court of appeals has considered whether the

proximity of a person's presence shortly after shots were fired

satisfies reasonable suspicion. For example, in State v.

Norton, No. 2019AP1796-CR, unpublished slip op., ¶¶14, 17 (Wis.

Ct. App. Apr. 14, 2020), the court of appeals concluded the

totality of analogous circumstances constituted reasonable

suspicion to stop and investigate the defendant:

The officers were investigating a report of shots fired, for which they had very little information besides the general vicinity of the incident. . . .

Norton's presence in that area was not "standing alone"——it was accompanied by the information that there had been shots fired in the area, which the officers here were investigating. Furthermore, when they illuminated the vehicle with their squad spotlight, they saw Norton make "furtive movements[,]" . . . which caused the officers to become concerned that he may have been trying to conceal a firearm, due to the nature of the call they were investigating. (Quoted source omitted). The court of appeals in that case

persuasively emphasized the nature of the crime the officers

were investigating——shots fired, which obviously is linked to

criminal activity. Id., ¶20.

¶39 As part of the reasonable suspicion analysis, multiple

courts have emphasized the nature of the criminal activity the officers were investigating. E.g., Trott v. State, 249

24 No. 2020AP878-CR

A.3d 833, 848 (Md. 2021), cert. denied sub nom., Trott v.

Maryland, 142 S. Ct. 240 ("Additionally, in determining that the

investigatory stop was reasonable under the circumstances, we

also consider the gravity of the risk of public

harm. . . . Balancing the public's interest in safety against

the minimal intrusion occasioned by the brief investigatory stop

here, and considering the totality of the facts presented to

Officer Cooper in this case, we conclude that the scales of

justice tilt in favor of the stop."). This court has recognized

that when officers are aware of "an imminent threat to the

public safety" the Fourth Amendment "do[es] not require the

police to idly stand by in hopes that their observations reveal

suspicious behavior before the imminent threat comes to its

fruition." Rutzinski, 241 Wis. 2d 729, ¶26. "[T]he Fourth

Amendment . . . appreciates the distinction between officers who

illegitimately invoke Terry to stop someone who ran a red light

six[] months ago and legitimately use it to stop someone who

assaulted a spouse in the past half hour." United States v. Jones, 953 F.3d 433, 437 (6th Cir. 2020).

¶40 "[T]he amount of permissible intrusion is a function

not only of the likelihood of turning up contraband or evidence

of crime but also of the gravity of the crime being

investigated." United States v. Goodwin, 449 F.3d 766, 769 (7th

Cir. 2006) (citation omitted). Applying this common sense

principle, the Seventh Circuit uses a "'sliding scale' approach"

to determine the requisite quantum of suspicion: "if the crime being investigated is grave enough, the police can stop and 25 No. 2020AP878-CR

frisk without as much suspicion as would be required in a less

serious criminal case." Id. The Seventh Circuit employed this

approach in Rickmon, twice emphasizing "the dangerousness of the

crime," 952 F.3d at 881–82, 884, and noting, "[w]e have

repeatedly emphasized in our decisions that the inherent danger

of gun violence sets shootings apart from other criminal

activity." Id. at 883 (citing United States v. Burgess, 759

F.3d 708, 710–11 (7th Cir. 2014)). Similarly, in Burgess, the

Seventh Circuit stated:

At the outset we observe the dangerousness of the situation facing the officers and the public. . . . Multiple callers reported shots fired in the same general area, creating heightened suspicion of a serious crime, and for all the officers knew as they approached the area just minutes later, more than one shooting location was involved. The threat to public safety was serious, and the officers had to assume that it was continuing in process.

Against the background of this ongoing threat, a number of considerations supported stopping Burgess's car in particular. . . .

All told, the circumstances here——the dangerousness of the crime, the short lapse of time between the dispatches and the stop, the stop's proximity to the reported shots, the car's color, and the light traffic late at night——provided ample justification for stopping Burgess's car. 759 F.3d at 710–11; see also Commonwealth v. Meneus, 66

N.E.3d 1019, 1026 (Mass. 2017) (holding "the fact that the crime

under investigation was a shooting, with implications for public

safety" is relevant to determining the reasonableness of a Terry

stop).

26 No. 2020AP878-CR

¶41 As Rickmon and Burgess illustrate, in Terry stop cases

involving reported unlawful firearm use, "[t]here is a

consistent theme[:] . . . if the police reasonably perceive

danger to themselves or to members of the public, they have a

duty to investigate[.]" Commonwealth v. Campbell, 867

N.E.2d 759, 763 (Mass. Ct. App. 2007) (quoted source omitted);

see also Carter, 183 N.E.3d at 629 ("[Officers] Erwin and

Gallagher were responding to an alert of shots fired, an

inherently dangerous circumstance beyond general criminality.").

"The unique dangers presented to law officers and law-abiding

citizens by firearms are well chronicled." United States v.

Bold, 19 F.3d 99, 104 (2d Cir. 1994) (citation omitted). The

unlawful use of a firearm presents an "imminent danger," see

United States v. Harrell, 268 F.3d 141, 151 (2d Cir. 2001)

(Meskill, J., concurring), which may be considered in "the

totality-of-the-circumstances test for determining reasonable

suspicion" because of "the government's need for a prompt

investigation." See Bold, 19 F.3d at 104 (citation omitted). ¶42 In this case, ShotSpotter reported four gunshots in a

highly residential neighborhood. Officer Milone testified he

was looking for "[a]nybody who is shot, any people who are shot,

any potential suspects, anybody walking around still shooting,

[and] any witnesses[.]" His testimony confirms the obvious:

the officers had reason to believe lives were in danger.

¶43 The court of appeals erred in this case by relying too

heavily on cases involving investigations of substantially less serious criminal activity——specifically, drug crimes——rather 27 No. 2020AP878-CR

than cases involving shots fired. See State v. Pugh, 2013 WI

App 12, 345 Wis. 2d 832, 826 N.W.2d 418 (investigating a

suspected drug crime); State v. Washington, 2005 WI App 123, 284

Wis. 2d 456, 700 N.W.2d 305 (investigating a complaint of

loitering and drug sales).14 "Th[e] element of imminent danger

distinguishes a gun tip from one involving possession of drugs."

United States v. Serrano, 598 F. App'x 72, 78 (3d Cir. 2015)

(quoting United States v. Roberson, 90 F.3d 75, 81 n.4 (3d Cir.

1996)) (modification in the original).

¶44 ShotSpotter's detection of gunfire is comparable to an

officer hearing it himself. See Amanda Busljeta, Comment, How

an Acoustic Sensor Can Catch a Gunman, 32 J. Marshall J. Info.

Tech. & Privacy L. 211, 219 (2015) ("With the acoustic sensors

implemented in cities, police can feel a sense of reassurance

that there is always a second pair of ears acting as backup.").

When an officer hears gunfire, he has a duty to the public to

react. If he arrives at the scene almost immediately after

gunfire and sees only a few people——or in this case, one person— —the officer may reasonably suspect criminal activity if any of

them make furtive movements.

¶45 The only case the court of appeals considered

involving reported gunfire was State v. Lewis, No. 2017AP234-CR,

unpublished slip op. (Wis. Ct. App. July 25, 2017). In that

The error rests in relying on four cases, supra ¶17 & 14

n.7, none of which were analogous, none of which were Wisconsin Supreme Court decisions, one of which was an unpublished court of appeals decision, and only one of which (the unpublished court of appeals decision) even involved shots fired.

28 No. 2020AP878-CR

case, officers were dispatched to investigate shots fired in a

high crime area. Id., ¶¶2, 8. They were looking for three

fleeing suspects, but they had a description of only one. Id.,

¶2. The officers observed Travail L. Lewis in an alley "a few

blocks from where the complaint was made" but Lewis did not

match the description. Id., ¶1. Positioned behind Lewis, the

officers noticed him holding the waistband of his pants. Id.,

¶2. The officers conducted a Terry stop, and Lewis admitted he

was carrying a concealed weapon. Id. The State "concede[d]"

the "officers stopped Lewis simply based on the fact that he was

walking in a high crime area shortly after [they] receiv[ed] an

alert of 'shots fired'" and was "touch[ing] his waistband."

Id., ¶8. The court of appeals accepted the State's concession

and concluded the officers lacked reasonable suspicion. Id.

¶46 We do not consider whether the court of appeals

correctly decided Lewis. Regardless, it is inapposite for

multiple reasons. First, Lewis does not disclose the officers'

response time——just that they arrived "shortly" after receiving the report. Id. The decision says Lewis was "a few blocks from

where the complaint was made," id., ¶1, leaving Lewis' temporal

and spatial proximity to the gunfire indeterminate. Finally,

Lewis did not react to the officers, who saw him from behind and

noticed him "holding the waistband of his pants." Id., ¶2.

Whether Lewis even saw the officers before they ordered him to

stop is unclear.15

15The court of appeals in this case could have considered another factually analogous opinion from its own court, State v. 29 No. 2020AP878-CR

¶47 In this case, the officers expeditiously responded to

a reliable report of gunfire, generated in near real-time. Upon

arrival, they saw one person, Nimmer, who made furtive movements

that, based on the officers' training and experience, indicated

he was concealing a handgun. The officers reasonably suspected

Nimmer was involved in criminal activity, specifically, the

shooting. The officers' seizure of Nimmer accordingly complied

with the Fourth Amendment.

IV. JUSTICE DALLET'S CONCURRENCE

¶48 "The straw man was easily enough knocked over by the critic who set him up." L.T. Hobhouse, The Theory of Knowledge 59 (New & Chapter Issue

1905).

¶49 Justice Dallet's concurrence mischaracterizes the

court's opinion and the precedent it applies, creating a cloud

of obfuscation over the opinion so that it will be read to mean

something it doesn't actually say. In common parlance, Justice

Dallet creates a "straw man," meaning "a weak or imaginary opposition (such as an argument or adversary)," who is "set up

Tally-Clayborne, No. 2016AP1912-CR, unpublished slip op., ¶10 (Wis. Ct. App. Oct. 17, 2017) ("[Officer] Dillman traveled in the direction of the gunshots and within twenty to twenty-five seconds, Dillman saw Tally-Clayborne and two other individuals. Dillman did not see anyone else. Given the potential safety risk, . . . the fact that Tally-Clayborne and his companions were the only individuals visibly present in the area of the shooting, and the fact that Tally-Clayborne attempted to walk away from the officers patting down his companions while reaching for his waistband, Dillman could reasonably suspect that Tally-Clayborne was involved in some sort of criminal activity."). 30 No. 2020AP878-CR

only to be easily confuted." Straw man, Merriam-Webster's

Collegiate Dictionary (11th ed. 2014). By creating this straw

man, Justice Dallet handily knocks down a weak argument of her

own creation rather than address the legal principles actually

propounded by the court. For this reason, judges and parties

should exercise caution when citing statements in separate

writings that purport to summarize or paraphrase the majority

opinion, particularly when the author of the writing has not

joined the majority opinion.

¶50 For starters, Justice Dallet attempts to distort the

holding in this case, suggesting this court sanctions

ShotSpotter being "used as a dragnet to justify warrantless

searches of everyone the police find near a recently reported

gunshot."16 Nothing in this opinion suggests anything of the

kind. As exhaustively explained, the totality of the

circumstances obviously matters and it is the totality of the

facts in this case which supports reasonable suspicion. See,

e.g., supra ¶¶3, 24-30, 34, 36-37, 44, 47. The officers' arrival on the scene no more than one minute after the

ShotSpotter report, where they found only Nimmer, was but one of

multiple facts supporting reasonable suspicion.

Justice Dallet's Concurrence, ¶67. 16 In misstating the holding in this case, Justice Dallet analogizes it to the circuit court's conclusion that the police should investigate anyone in the vicinity within a minute or two of the ShotSpotter alert. Id., ¶67 n.7. Contrary to Justice Dallet's insinuation, we agreed with the court of appeals' conclusion that this statement exceeds the boundaries of the Fourth Amendment. See supra ¶20 n.9.

31 No. 2020AP878-CR

¶51 Justice Dallet further misrepresents the majority

opinion as advancing "the novel suggestion 'that the quantum of

suspicion necessary to conduct an investigatory stop is lower

for the type of criminal investigation that occurred here.'"17

The majority opinion does not say this; Justice Brian Hagedorn’s

concurrence does. Citing Rutzinski, the State argued "[o]ne

additional factor supports reasonable suspicion here: police

were investigating a shots-fired report, which implicated

immediate public-safety concerns." Although the State

thoroughly briefed the issue, the defendant did not respond.

Like the defendant, Justice Dallet never analyzes Rutzinski,

even though it debunks her classification of the analysis as

novel.

¶52 Justice Dallet lapses into the same error made by the

court of appeals in this case: evaluating the facts in

isolation rather than as part of the "whole picture." For

example, she says "there is nothing especially suspicious about

finding someone alone on a residential street just after 10:00 PM on a Saturday night in the summertime."18 This is true, but

no one suggests otherwise. Justice Dallet also says, "the

possibility that a crime has been committed in a certain

neighborhood doesn't cast suspicion over everyone there."19

Again, no one claims it does. Next, Justice Dallet says the

17 Justice Dallet's Concurrence, ¶61 n.1. 18 Id., ¶64. 19 Id.

32 No. 2020AP878-CR

police "could not assume that Nimmer was responsible for the

reported gunshots simply because he was the only person they saw

when they showed up in his neighborhood."20 They didn't; it was

his solitary presence at the location of recent gunfire,

combined with his furtive movements, which gave rise to

reasonable suspicion, as Justice Dallet ultimately concedes.21

¶53 Justice Dallet, however, does not seem to think the

nature of the criminal activity being investigated matters much

when determining the reasonableness of a stop, characterizing

the consideration of gun violence as going beyond "a standard

Terry analysis."22 She similarly dismisses the seriousness of

20 Id.

Justice Dallet also says, "Nimmer's case is unlike many 21

of those cited by the majority/lead opinion, where courts held that the police had reasonable suspicion to stop the only people they found at the scene of reported gunfire late at night, in an alleyway or dead-end street where shots were heard recently, or both." Id. (emphasis added). She then cites three cases on which we have relied: Jones, Rickmon, and Funderburk. Justice Dallet draws a distinction bearing no difference under the Fourth Amendment.

In Jones, officers stopped the suspect "in a residential neighborhood in Washington D.C." 1 F.4th at 51. In Rickmon, officers stopped a suspect in a residential area of Peoria, Illinois, which, while not as urbanized as Washington, D.C., is hardly a rural community. 952 F.3d at 879; see also id. at 886 (Wood, J., dissenting) (describing the residential nature of the area). Indeed, the court noted when one officer arrived on scene, he "observed a crowd of about 15-20 people at the street's dead end, approximately 300 feet from him." Id. at 879 (majority op.). In Funderburk, "two police officers heard gunshots and commotion coming from a nearby alley in a residential neighborhood." Funderburk v. United States, 260 A.3d 652, 654 (D.C. 2021). 22 Justice Dallet's Concurrence, ¶¶70, 72.

33 No. 2020AP878-CR

the crime as a factor in the analysis of a tip's reliability.

This is not the law; the Court in Florida v. J.L., 529 U.S. 266

(2000) and this court as well as other courts applying its

holding have already rejected the premise of Justice Dallet's

concurrence.

¶54 In J.L., police received an anonymous tip that a

person at a bus stop was concealing——not shooting——a firearm.

Id. at 268, 273 n.*. The tip had little to no indicia of

reliability and "[a]part from the tip, the officers had no

reason to suspect . . . illegal conduct. The officers did not

see a firearm, and J.L. made no threatening or otherwise unusual

movements." Id. at 268 (emphasis added). Under these facts,

the Court concluded the officers unlawfully executed a Terry

stop, expressly disavowing "an automatic firearm exception to

our established reliability analysis"23 because it would "enable

any person seeking to harass another to set in motion an

intrusive, embarrassing police search of the targeted person

simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun." Id. at 272 (emphasis

added). The Court's holding was limited to an uncorroborated

tip of someone carrying a gun:

The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do

While the nature of the criminal activity is relevant 23

under our analysis, it is not dispositive. See Commonwealth v. Meneus, 66 N.E.3d 1019, 1026 (Mass. 2017).

34 No. 2020AP878-CR

not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk. Id. at 273–74. Relying on this limitation, this court and lower

courts have factored the nature of the suspected criminal

activity into their reasonable suspicion analyses in exactly the

same manner we do in this case.

¶55 In Rutzinski, this court held:

[W]hen assessing whether a stop is constitutionally reasonable, a reviewing court must balance the interests of the individual being stopped against the interests of the State to effectively root out crime. Hensley, 469 U.S. at 228, 105 S.Ct. 675; McGill, 2000 WI 38, at ¶ 18, 234 Wis.2d 560, 609 N.W.2d 795; Waldner, 206 Wis.2d at 56, 556 N.W.2d 681. . . . [W]here the allegations in the tip suggest an imminent threat to the public safety or other exigency that warrants immediate police investigation. . . . the Fourth Amendment and Article I, Section 11 do not require the police to idly stand by in hopes that their observations reveal suspicious behavior before the imminent threat comes to its fruition. Rather, it may be reasonable for an officer in such a situation to conclude that the potential for danger caused by a delay in immediate action justifies stopping the suspect without any further observation. Thus, exigency can in some circumstances supplement the reliability of an informant's tip in order to form the basis for an investigative stop. Cf. City of Indianapolis v. Edmond, 531 U.S. 32, ––––, 121 S.Ct. 447, 455, 148 L.Ed.2d 333 (2000) (noting that exigencies of some scenarios likely would outweigh the individual's right to be free from an investigative traffic stop). 241 Wis. 2d 729, ¶26 (emphasis added). This court noted the

limited reach of J.L., explaining "the Court implicitly affirmed that there are circumstances in which exigency can supplement——

35 No. 2020AP878-CR

or, in very extreme circumstances, possibly supplant——

the . . . reliability analysis." Id., ¶29 n.6.

¶56 Throughout our opinion in Rutzinski, this court

repeatedly emphasized that imminent danger is a factor to be

considered in determining the reasonableness of a Terry stop.

Id., ¶26 ("[E]xigency can in some circumstances supplement the

reliability of an informant's tip in order to form the basis for

an investigative stop." (citing City of Indianapolis v. Edmond,

531 U.S. 32, 42–43, 121 S. Ct. 447, 455 (2000))); id., ¶34

("[U]nlike the tip in J.L., the tip in the present case

suggested that Rutzinski posed an imminent threat to the

public's safety."); id., ¶35 ("In light of the potential for

imminent danger that drunk drivers present, the informant's

allegations suggesting that Rutzinski may have been intoxicated

supplemented the reliability of the tip, and further justified

Officer Sardina's investigative stop."); id., ¶36 ("Because

drunk driving is an extraordinary danger, we cannot adopt

Rutzinski's position that the police must dismiss allegations of possible drunk driving when assessing whether an informant's tip

justifies a traffic stop. While such allegations cannot form

the sole basis for an investigative stop, they certainly must be

considered when examining the totality of the circumstances

surrounding particular police conduct." (emphasis added)); id.,

¶37 ("Unlike the tip in J.L., the informant's tip in this case

contained sufficient indicia of reliability and alleged a

potential imminent danger to public safety." (emphasis

36 No. 2020AP878-CR

added)).24 Far from being "unnecessary" digressions, a report of

serious criminal activity "must be considered" as part of the

reasonable suspicion analysis.

¶57 Notwithstanding this precedent, Justice Dallet fails

to acknowledge the seriousness of gunfire in a residential area,

asserting this court's "analysis places too much weight on some

of these facts, including the residential setting" and "puts too

much emphasis on the officers' reliance on ShotSpotter."25

Although Justice Dallet does not quantify the weight she would

give to these facts (if any), to suggest a shooting in a highly

24 Consideration of the nature of a reported crime is not restricted to tips involving guns; as Chief Justice John Roberts has noted, "the especially grave and imminent dangers posed by drunk driving" have prompted "[t]he majority of courts examining the question" to uphold "investigative stops of allegedly drunk or erratic drivers, even when the police did not personally witness any traffic violations before conducting the stops." Virginia v. Harris, 130 S. Ct. 10, 11 (2009) (Roberts, C.J., dissenting from denial of certiorari). In doing so, "[t]hese courts have typically distinguished J.L.'s general rule" in part based on the "grave and imminent dangers" drunk driving presents. Id. Notably, one of the cases Chief Justice Roberts cited for the proposition was Rutzinski. See also Trott v. State, 249 A.3d 833, 848 (Md. 2021), cert. denied sub nom., Trott v. Maryland, 142 S. Ct. 240 ("Unlike crimes involving possessory offenses, such as carrying an illegal gun or possessing drugs, the crime of drunk driving poses a significant and potentially imminent public danger."); Andrew J. Sheehan, Comment, Getting Drunk Drivers off Illinois Roadways: Addressing the Split of Authority Regarding 911 Tips & Investigatory Traffic Stops, 39 S. Ill. U. L.J. 537, 551 (2015) ("Arguably the most widely-accepted justification for adopting a drunk driving exception is the very unique and imminent danger an intoxicated person behind the wheel poses to the general public.").

Justice Dallet's Concurrence, ¶¶64, 65. Doubling down on 25

the misguided notion that gunfire in a residential area is not a reliable indicator of criminal activity, Justice Dallet maintains a ShotSpotter report could not affect the reasonable suspicion analysis because even "[a] reliable tip will justify an investigative stop only if it creates reasonable suspicion that 'criminal activity may be afoot.'" Id., ¶71 (citing Navarette v. California, 572 U.S. 393, 401 (2014) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968))).

37 No. 2020AP878-CR

residential area should not be considered as part of the

totality of circumstances supporting reasonable suspicion is an

extraordinary misjudgment of the risk to the community. A

shooter is not entitled to "one free shot," (at least when that

shot signals gun violence is afoot) Justice Dallet's theory

notwithstanding. Cf. Virginia v. Harris, 130 S. Ct. 10, 12

(2009) (Roberts, C.J., dissenting from denial of certiorari)

("The effect of the rule below will be to grant drunk drivers

'one free swerve' before they can legally be pulled over by

police. It will be difficult for an officer to explain to the

family of a motorist killed by that swerve that the police had a

tip that the driver of the other car was drunk, but that they

were powerless to pull him over, even for a quick check.").

While believing a report of shots fired in a residential

neighborhood deserves less "emphasis" in the analysis, Justice

Dallet seems to give greater weight to Nimmer's furtive

movements, but she does not explain why. If Justice Dallet's

focus on Nimmer's "digging around his left side" and "turning and walking away after seeing the police" were all the Fourth

Amendment requires for reasonable suspicion to stop a suspect,

her conception of the law could ensnare many more people in the

"dragnet" she ostensibly rejects.26

¶58 While she may deem unreasonable the decisions of the

United States Supreme Court, federal appellate courts, and this

Justice Dallet's Concurrence, ¶¶67-69. We do not mean to 26

suggest that furtive movements cannot, in some circumstances, be highly indicative of criminal activity.

38 No. 2020AP878-CR

court regarding what is reasonable under the Fourth Amendment,

our opinion is in line with precedent and Justice Dallet's

analysis is an outlier. In Goodwin, Judge Richard Posner,

writing for a unanimous Seventh Circuit panel, explained:

[I]n Florida v. J.L., 529 U.S. 266, 273–74, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), [the Court] said that "we do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk." In other words, if the crime being investigated is grave enough, the police can stop and frisk without as much suspicion as would be required in a less serious criminal case. 449 F.3d at 769 (emphasis added). Judge Posner interpreted J.L.

to permit a "'sliding scale' approach[.]" See id. Post-J.L.,

the Seventh Circuit, aligned with many other courts, has relied

on the inherent danger of gun violence as a factor supporting

the constitutionality of a Terry stop, including in ShotSpotter

cases. E.g., Rickmon, 952 F.3d at 883 ("We have repeatedly

emphasized in our decisions that the inherent danger of gun

violence sets shootings apart from other criminal activity."

(citation omitted)). Gun violence, obviously, is not the same

thing as mere "carriage of a gun," which is all that was

reported in J.L. 529 U.S. at 272. Although the concurrence

disregards this stark difference, it matters for purposes of the

V. CONCLUSION

¶59 The Fourth Amendment guarantees the inherent right of the people to be secure against unreasonable searches and

39 No. 2020AP878-CR

seizures. We recognize "the police are not infallible[.]"

Smith, 379 Wis. 2d 86, ¶36. In exercising their duty to

investigate crime, officers sometimes violate people's

constitutional rights. Id. When that happens, "it is the duty

of this court to impose consequences[.]" Id. (citation

omitted). "Likewise, when the police abide by the rules and act

reasonably, the Fourth Amendment is not violated and we must

uphold convictions." Id.

¶60 This case represents a reasonable seizure. The

officers did not violate Nimmer's Fourth Amendment right. Based

on the totality of the circumstances, they reasonably suspected

Nimmer was involved in criminal activity presenting an imminent

threat to public safety. Nimmer's conviction stands.

By the Court.——The decision of the court of appeals is

reversed.

40 No. 2020AP878-CR.rfd

¶61 REBECCA FRANK DALLET, J. (concurring). I agree with

the majority/lead opinion's1 holding that the police had

particularized reasonable suspicion to stop and frisk Nimmer. I

write separately, however, because I am concerned that the

majority/lead opinion's analysis of certain facts may cause

lower courts to read our decision too broadly. I also worry

that the majority/lead opinion over-complicates its analysis by

importing Fourth Amendment principles from other contexts, even

though this case requires only a straightforward application of

Terry.2 Therefore, I respectfully concur.

¶62 In order to justify a Terry stop, the police must have

"reasonable, articulable suspicion that criminal activity is

afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000).

Reasonable suspicion must be founded on concrete, particularized

facts warranting suspicion of a certain individual, not

"'inchoate and unparticularized suspicion[s] or hunch[es].'"

Id. at 124 (quoting Terry, 392 U.S. at 27). We assess

reasonable suspicion in light of the totality of the circumstances; that is, the facts officers knew at the time of

1I refer to Justice Rebecca Grassl Bradley's opinion as the "majority/lead opinion" because a majority of the court has not joined the opinion in its entirety. Specifically, a majority did not join the portions of the opinion that respond to this concurrence (majority/lead op., ¶¶48-58 & 29 n.12), and those that contain the novel suggestion "that the quantum of suspicion necessary to conduct an investigatory stop is lower for the type of criminal investigation that occurred here" (majority/lead op., ¶¶28 and 39-47). See Justice Hagedorn's concurrence, ¶74. 2 Terry v. Ohio, 392 U.S. 1 (1968).

1 No. 2020AP878-CR.rfd

the stop. See United States v. Cortez, 449 U.S. 411, 417-18

(1981).

¶63 This is what the police knew when they stopped Nimmer:

 On Saturday, June 15, 2019, they received a

ShotSpotter report at 10:06 PM indicating that four

shots may have been fired near the intersection of

21st and Townsend Streets on the North Side of

Milwaukee.

 They reached that location about one minute after they

received the ShotSpotter report.

 Nimmer was walking on the sidewalk "in very close

proximity" to that location and no one else was

present.

 After noticing their arrival, Nimmer accelerated his

pace and turned his left side away from the

approaching officer ("blading," in one officer's

words) while "digging around his left side with his

left hand."3

3 These facts, with the exception of Nimmer digging around his left side, are taken from the circuit court's findings of fact after a suppression hearing, and were not challenged on appeal. The circuit court did not make a finding that Nimmer was digging around his left side. Nonetheless, it was a part of one of the officers' uncontroverted testimony at the suppression hearing, and is therefore appropriate to consider in the reasonable-suspicion analysis. See State v. McGill, 2000 WI 38, ¶24, 234 Wis. 2d 560, 609 N.W.2d 795.

It appears from testimony at the suppression hearing that there is body-camera footage of the officers' encounter with Nimmer. Although this footage might have been useful in determining what happened, it was not introduced at the suppression hearing or otherwise made a part of the record.

2 No. 2020AP878-CR.rfd

Relying on these facts, officers stopped Nimmer, searched him,

and found a handgun in his left waistband.

¶64 Although the majority/lead opinion correctly concludes

that officers had particularized reasonable suspicion to stop

Nimmer, its analysis places too much weight on some of these

facts, including the residential setting. To be sure, the

residential setting is part of the totality of the circumstances

informing our reasonable-suspicion analysis. But the

neighborhood doesn't cast suspicion over everyone there. See

United States v. Bohman, 683 F.3d 861, 864 (7th Cir. 2012) (the

"mere suspicion of illegal activity at a particular place is not

enough to transfer that suspicion to anyone" nearby). Moreover,

there is nothing especially suspicious about finding someone

alone on a residential street just after 10:00 PM on a Saturday

night in the summertime.4 See id. In this respect, Nimmer's

case is unlike many of those cited by the majority/lead opinion,

where courts held that the police had reasonable suspicion to stop the only people they found at the scene of reported gunfire

late at night, in an alleyway or dead-end street where shots

were heard recently, or both. See, e.g., United States v.

Jones, 1 F.4th 50, 51 (D.C. Cir. 2021) (reasonable suspicion to

stop the only person on the street walking quickly away from the

location of a late-night ShotSpotter alert and reaching for his

waistband); United States v. Rickmon, 952 F.3d 876, 882-84 (7th

Indeed, although the officers didn't know it at the time, 4

Nimmer was walking near his house when the officers arrived.

3 No. 2020AP878-CR.rfd

Cir. 2020) (reasonable suspicion to stop the only car driving

down a two-block dead-end street away from the location of two

ShotSpotter reports and two 9-1-1 calls at 4:45 AM); Funderburk

v. United States, 260 A.3d 652, 660-61 (D.C. 2021) (reasonable

suspicion to stop four people in an alleyway at 2:20 AM on a

weeknight after officers heard gunshots). Thus, even though the

officers didn't have to rule out all innocent explanations

before stopping Nimmer, they also could not assume that Nimmer

was responsible for the reported gunshots simply because he was

the only person they saw when they showed up in his

neighborhood. See State v. Genous, 2021 WI 50, ¶8, 397

Wis. 2d 293, 961 N.W.2d 41.

¶65 The majority/lead opinion similarly puts too much

emphasis on the officers' reliance on ShotSpotter, stressing

both Nimmer's counsel's concession that it is reliable and the

officers' quick response to the system's report. Majority/lead

op., ¶¶4, 29-30. But when it comes to assessing whether the

police had reasonable suspicion that a particular person may

4 No. 2020AP878-CR.rfd

have fired the shots, ShotSpotter has limitations.5 A

ShotSpotter report doesn't tell the police whether there is one

shooter or several, what those individuals look like, what they

are wearing, whether they remained on the scene or fled

immediately, whether they got into a car or left on foot, or

even if they were indoors or outdoors. All a ShotSpotter report

tells the police is that shots may have been fired near a

particular place; it doesn't provide reasonable suspicion that

any particular person fired them. See Wardlow, 528 U.S. at 124.

Obviously, this is not to say that the police shouldn't swiftly

investigate a ShotSpotter alert in a residential neighborhood;

only that they do so with full knowledge of the system's

limitations.

Despite counsel's concession that ShotSpotter is reliable, 5

there are good reasons to doubt its reliability and to be concerned about the other Fourth Amendment issues raised by the technology. For example, an exhaustive review of the Chicago Police Department's use of ShotSpotter revealed that in more than 90% of cases where the police responded to a ShotSpotter report, they found no evidence of a gun-related crime. See City of Chicago Office of Inspector General, The Chicago Police Department's Use of ShotSpotter Technology, at 2-3 (Aug. 2021), available at https://igchicago.org/wp-content/uploads/2021/08/Ch icago-Police-Departments-Use-of-ShotSpotter-Technology.pdf. Additionally, the report found that officers were, in some cases, using the total number of ShotSpotter reports in a given area as a reason to conduct more investigatory stops and pat- downs. See id. at 19. Another study found that ShotSpotter has no significant impact in reducing gun crimes. See generally Mitchell L. Doucette, et al., Impact of ShotSpotter Technology on Firearm Homicides and Arrests Among Large Metropolitan Counties: A Longitudinal Analysis, 1999–2016, 98 J. Urban Health 609 (2021). Nevertheless, because Nimmer's counsel did not challenge ShotSpotter's reliability or raise any of these other issues, I leave them for another day.

5 No. 2020AP878-CR.rfd

¶66 The majority/lead opinion's analysis of the officers'

response time also rests on a consequential assumption. The

record doesn't reveal how much time passed between the time

shots were fired and when the officers arrived on the scene;

only how quickly the officers responded after receiving the

ShotSpotter alert from dispatch. Before a ShotSpotter report

reaches the officers, a person at ShotSpotter's offices in

California listens to a recording flagged by the system and

decides if it sounds like gunshots. Once that person confirms

the sound is likely gunfire, then police dispatch is alerted,

which in turn alerts nearby officers. Thus, even though

officers arrived at 21st and Townsend one minute after receiving

the report from a dispatcher, that does not mean they arrived

within one minute of shots being fired. This is not a trivial

issue; it may be the difference between whether or not an

officer's suspicion of a person on the scene is particularized

and reasonable.6

¶67 No matter how accurate ShotSpotter is or how quickly officers respond to a ShotSpotter alert, it cannot be used as a

dragnet to justify warrantless searches of everyone the police

This timing difference is what distinguishes Nimmer's case 6

from those relied on by the majority/lead opinion in which officers responded within seconds to the sound of gunshots they heard. See, e.g., State v. Hairston, 126 N.E.3d 1132, 1136-37 (Ohio 2019) (reasonable suspicion to stop the only person officers saw near a school after hearing shots 30 to 60 seconds before); State v. Tally-Clayborne, No. 2016AP1912-CR, unpublished slip op., ¶10 (Wis. Ct. App. Oct. 17, 2017) (reasonable suspicion to stop a person reaching for his waistband and walking away from an area where officers heard shooting less than thirty seconds before).

6 No. 2020AP878-CR.rfd

find near a recently reported gunshot.7 See Bohman, 683 F.3d

at 864 (explaining that suspecting a crime occurred in a

particular place does not mean that everyone leaving that place

is suspicious). At its best, ShotSpotter gives officers only a

reason to go to a particular place, but it's what they find

there that is most relevant to the analysis of whether they had

particularized, reasonable suspicion. See Genous, 397

Wis. 2d 293, ¶8 ("Reasonable suspicion must be supported by

specific and articulable facts.").

¶68 Collectively, the facts the officers observed,

together with the ShotSpotter alert, are sufficient to establish

reasonable suspicion——even though each fact alone would not

clear that bar. See id., ¶9. When the officers arrived at the

location of the ShotSpotter alert, Nimmer saw their marked squad

car and started walking faster. When one of the officers got

out of the car and started to walk toward him, Nimmer turned the

left side of his body away and started digging around his left

7 This is why the circuit court was wrong to suggest that "anyone that [the police] encountered within a minute or two of receiving the [ShotSpotter] alert should have been investigated if they were within a couple of blocks of the alleged shots being fired." The U.S. Supreme Court has emphasized, however, that simply being present "in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime." Wardlow, 528 U.S. at 124. The reason for that is simple: Knowledge that someone committed a crime in a particular place is not a particularized reason to suspect that everyone at or near that place committed a crime. To conclude otherwise would undermine the central purpose of the Fourth Amendment, which is prohibiting general warrants that grant the police the "unchecked power" to search anywhere for anyone or any thing. See State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, ¶90, 363 Wis. 2d 1, 866 N.W.2d 165.

7 No. 2020AP878-CR.rfd

side with his left hand. As the court of appeals rightly

explained, turning and walking away after seeing the police is

not enough to give rise to reasonable suspicion. See State v.

Nimmer, No. 2020AP878-CR, unpublished slip op., ¶¶16-17, 19-20

(Wis. Ct. App. Dec. 15, 2020). Absent reasonable suspicion or a

lawful order to the contrary, people are free to walk (even

quickly) away from the police officers. See State v.

Young, 2006 WI 98, ¶73, 294 Wis. 2d 1, 717 N.W.2d 729. And law-

abiding citizens may not want to interact with the police for

all kinds of reasons. The fact that Nimmer turned his body away

from the officers does not make his walking away suspicious.

After all, "how does a person walk away from another (as

[Nimmer] had the right to do) without turning his . . . body to

some degree?" See State v. Pugh, 2013 WI App 12, ¶12, 345

Wis. 2d 832, 826 N.W.2d 418. Calling Nimmer's turn "blading,"

as an officer did in this case, "adds nothing to the calculus

except a false patina of objectivity." Id.

¶69 The totality of the circumstances also includes the fact, undisputed yet unaddressed by the court of appeals, that

while Nimmer was walking away from the police and turning his

body, he was also "digging" around his left side. Of course,

"many folks, most innocent of any nefarious

purpose, . . . occasionally pat the outside of their clothing to

ensure that they have not lost their possessions." State v.

Gordon, 2014 WI App 44, ¶17, 353 Wis. 2d 468, 846 N.W.2d 483.

But an isolated pat of the pants pocket or touch of the waistband is not the same thing as "digging around" one's left

8 No. 2020AP878-CR.rfd

side while walking quickly away from the police in a place where

officers had reason to believe shots were recently fired. Cf.

State v. Lewis, No. 2017AP234-CR, unpublished slip op., ¶¶7-8

(Wis. Ct. App. July 25, 2017) (concluding that there was no

reasonable suspicion to stop someone who "was not looking over

his shoulder for police" and did not match the description of a

suspect just because he was "walking in a high crime area"

shortly after a report of shots fired and "touched his

waistband"). Thus, despite my differences with parts of the

majority/lead opinion's analysis, I agree that the totality of

these circumstances meets the Terry threshold.

¶70 That straightforward application of Terry is all

that's needed to resolve this case. The majority/lead opinion,

however, unnecessarily goes further, discussing how the type of

crime being investigated may affect the Terry analysis. At

times, that discussion seems to endorse a "sliding-scale

approach" to reasonable suspicion that the Seventh Circuit

cobbled together from Fourth Amendment principles in dissimilar contexts, such as traffic stops, dog-sniff drug searches, and

highway roadblocks. See, e.g., United States v. Goodwin, 449

F.3d 766, 769-70 (7th Cir. 2006). The U.S. Supreme Court has

admonished courts against taking such a mix-and-match approach,

even when applying general Fourth Amendment principles. See

Illinois v. Lidster, 540 U.S. 419, 424 (2004). And we have

never adopted the Seventh Circuit's approach, likely because it

is an awkward fit with Terry. After all, Terry already "responds to" the dangers of firearms and "the serious threat

9 No. 2020AP878-CR.rfd

that armed criminals pose to public safety" by authorizing

limited searches and seizures upon less than probable cause.

See Florida v. J.L., 529 U.S. 266, 272 (2000).

¶71 The majority/lead opinion gets similarly sidetracked

by focusing on cases that have relaxed the usual corroboration

requirements for anonymous tips when the police are responding

to a potential emergency. See majority/lead op., ¶¶39, 53-58 &

n.24-25. But corroboration is not an issue here, and even if it

were, the same Terry reasonable-suspicion standard would apply.

See Navarette v. California, 572 U.S. 393, 401 (2014) ("[A]

reliable tip will justify an investigative stop only if it

creates reasonable suspicion that 'criminal activity may be

afoot.'" (quoting Terry, 392 U.S. at 30)).

¶72 Because a standard Terry analysis resolves this case,

I would stop there. Accordingly, I concur with the

majority/lead opinion's ultimate conclusion that the officers

had reasonable suspicion to stop Nimmer. I emphasize, though,

that the totality of the circumstances in every case will be unique and that lower courts should not give too much weight to

any individual fact.

¶73 I am authorized to state that Justices ANN WALSH

BRADLEY and JILL J. KAROFSKY join this concurrence.

10 No. 2020AP878-CR.bh

¶74 BRIAN HAGEDORN, J. (concurring). I agree with the

court's determination that reasonable suspicion supported the

stop. However, portions of the court's opinion go farther than

necessary. In particular, the opinion suggests——for what

appears to be the first time in the Wisconsin reports——that the

quantum of suspicion necessary to conduct an investigatory stop

is lower for the type of criminal investigation that occurred

here. I do not believe this issue was developed in a

sufficiently meaningful way for me to opine on it, and resolving

it is unnecessary to decide this case. Therefore, I concur and

join the court's opinion only in part.1

1 I join the opinion except for ¶28, ¶29 n.12, and ¶¶39-58.

1 No. 2020AP878-CR.bh