2021 WI 50
SUPREME COURT OF WISCONSIN CASE NO.: 2019AP435-CR
COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. James Timothy Genous, Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 392 Wis. 2d 382,944 N.W.2d 359 (2020 – unpublished)
OPINION FILED: June 4, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 3, 2021
SOURCE OF APPEAL: COURT: Circuit COUNTY: Milwaukee JUDGE: Dennis R. Cimpl
JUSTICES: HAGEDORN, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs filed by Scott E. Rosenow, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Scott E. Rosenow.
For the defendant-appellant, there was a brief filed by Leon W. Todd, assistant state public defender. There was an oral argument by Christopher P. August. 2021 WI 50
NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP435-CR (L.C. No. 2016CF3891)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED v. JUN 4, 2021 James Timothy Genous, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant.
HAGEDORN, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 BRIAN HAGEDORN, J. The question in this case is
whether a vehicle stop was supported by reasonable suspicion of
drug activity. Examining the totality of the circumstances, we
hold the stop was lawful and reverse the court of appeals.1
1See State v. Genous, No. 2019AP435-CR, unpublished slip op. (Wis. Ct. App. Apr. 28, 2020). No. 2019AP435-CR
I. BACKGROUND
¶2 At 3:36 a.m. on August 28, 2016, James Genous sat in a
parked, running vehicle on a residential street in West Allis with
its headlights turned on. Genous momentarily turned off the
headlights, and a woman emerged from the house he was parked in
front of. She entered the vehicle through the front passenger
door and remained in the car for 10 to 15 seconds. The woman then
exited the vehicle and ran back into the house. A few seconds
later, the vehicle's headlights turned back on and the car pulled
away.
¶3 West Allis Patrol Officer Adam Stikl watched these
events from an unmarked squad car half a block away. Two weeks
prior, he received an intra-department email regarding K.S., a
resident of the single-family home Genous was parked in front of.
K.S. was a known heroin and narcotics user who previously worked
with the department. The email explained that the department was
no longer working with K.S. and that officers were to "keep an eye
on her because she does obviously still use." After receiving the email, Officer Stikl looked up K.S.'s physical description on his
department's local system. As Officer Stikl watched the brief,
nighttime interaction when the events leading to this case took
place, he observed that the woman entering and exiting Genous' car
matched K.S.'s physical description. He also knew from
communications within his department that this area had a
reputation for high drug-trafficking activity.
¶4 Based on this context and his training, Officer Stikl suspected he had witnessed a drug transaction. As Genous drove 2 No. 2019AP435-CR
away, Officer Stikl followed him for about three blocks and
executed a traffic stop. During the stop, officers discovered a
handgun in Genous' vehicle. Genous was arrested and later charged
with unlawful possession of a firearm by a felon.
¶5 Genous filed a motion to suppress the firearm evidence
in part on the basis that Officer Stikl lacked reasonable suspicion
to stop Genous' vehicle. The circuit court2 denied the motion
following a hearing. The court of appeals reversed, and we granted
the State's petition for review.
II. DISCUSSION
¶6 The Fourth Amendment to the United States Constitution
provides: "The right of the people to be secure in their
persons . . . against unreasonable searches and seizures, shall
not be violated." Genous and the State agree that Officer Stikl
seized Genous by executing the traffic stop, but they disagree on
whether the stop complied with the Fourth Amendment.
¶7 An investigatory stop, also known as a Terry stop, "usually involves only temporary questioning and thus constitutes
only a minor infringement on personal liberty." State v. Young,
2006 WI 98, ¶20, 294 Wis. 2d 1, 717 N.W.2d 729. It allows police
officers to briefly detain someone to "investigat[e] possible
criminal behavior even though there is no probable cause to make
an arrest." State v. Waldner, 206 Wis. 2d 51, 55, 556 N.W.2d 681
2 The Honorable Dennis R. Cimpl of the Milwaukee County Circuit Court presided.
3 No. 2019AP435-CR
(1996). This type of limited stop complies with the Fourth
Amendment "if the police have reasonable suspicion that a crime
has been committed, is being committed, or is about to be
committed." Young, 294 Wis. 2d 1, ¶20.
¶8 Reasonable suspicion must be supported by specific and
articulable facts. Id., ¶21. While it is a low bar, a mere hunch
is insufficient. Id.; State v. Eason, 2001 WI 98, ¶19, 245
Wis. 2d 206, 629 N.W.2d 625. Yet "officers are not required to
rule out the possibility of innocent behavior before initiating a
brief stop." State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763
(1990). The question is, "What would a reasonable police officer
reasonably suspect in light of his or her training and experience?"
Id. at 83-84; United States v. Cortez, 449 U.S. 411, 418 (1981)
("[A] trained officer draws inferences and makes
deductions . . . that might well elude an untrained person.").
¶9 A reasonable suspicion determination is based on the
totality of the circumstances. State v. Post, 2007 WI 60, ¶18,
301 Wis. 2d 1, 733 N.W.2d 634. We focus not on isolated, independent facts, but on "the whole picture" viewed together.
Cortez, 449 U.S. at 417-18; see also United States v. Sokolow, 490
U.S. 1, 9-10 (1989) ("Indeed, Terry itself involved a series of
acts, each of them perhaps innocent if viewed separately, but which
taken together warranted further investigation." (internal
quotation marks omitted)).
¶10 Therefore, our task is to consider everything observed
by and known to the officer, and then determine whether a reasonable officer in that situation would reasonably suspect that 4 No. 2019AP435-CR
criminal activity was afoot. Whether reasonable suspicion was
present is a legal question we analyze independently, but we accept
the circuit court's findings of historical fact unless they are
clearly erroneous. Post, 301 Wis. 2d 1, ¶8.
¶11 In this case, Officer Stikl suspected that the
interaction he witnessed in Genous' car was a drug deal. The facts
show that his suspicion was objectively reasonable. Informed by
his training, experience, and department communications, Officer
Stikl could reasonably infer quite a bit about the events he
observed that night. He knew that drug transactions often occur
during brief exchanges in vehicles, which was consistent with the
10-15 second contact in Genous' car.3 He also knew that a brief
meeting in a vehicle at 3:36 a.m., immediately after the vehicle's
headlights are turned off, and in an area with a reputation for
drug-trafficking, are potential indicators of illegal activity.4
3 Officer Stikl testified that based on his training and experience, "a lot of these drug cars will come into our city, park in front of a house where they are going to sell their drugs to, make the deal inside their vehicle in front of the house and then leave." 4 Genous disputed the strength of the evidentiary basis offered by Officer Stikl in support of the assertion that this was an area with high drug-trafficking activity. Genous asks us to employ our supervisory authority to create evidentiary prerequisites for circuit courts considering this factor.
5 No. 2019AP435-CR
And perhaps most significantly, Officer Stikl had good reason to
believe that the woman Genous met in his vehicle was a known drug
user with whom his department had a documented history. All these
factors, viewed collectively in the eye of a trained and
experienced law enforcement officer, support the conclusion that
Officer Stikl reasonably suspected a drug transaction had
occurred.
¶12 Genous contests this conclusion largely by isolating
various factors, attacking them one by one, and then excluding
each factor from the totality-of-the-circumstances analysis. We
reject "this sort of divide-and-conquer analysis." United States
v. Arvizu, 534 U.S. 266, 274 (2002). It is true that a citizen
visiting a vehicle at night does not automatically constitute
grounds for law enforcement to intervene, nor do officers have a
green light to detain and question anyone who has a short
conversation with a known drug user.5 But the reasonable suspicion
"Our supervisory authority is not to be invoked lightly," and we decline to do so here. Koschkee v. Evers, 2018 WI 82, ¶12, 382 Wis. 2d 666, 913 N.W.2d 878. Although its weight will vary from case to case, it is well-settled that an area's reputation for criminal activity is one of many relevant considerations in a reasonable suspicion inquiry. Illinois v. Wardlow, 528 U.S. 119, 124 (2000); State v. Morgan, 197 Wis. 2d 200, 210-13, 539 N.W.2d 887 (1995). Like other factual matters in a totality-of- the-circumstances analysis, an area's reputation for criminal activity is properly entrusted to circuit courts in the first instance, and challengeable on appeal as clearly erroneous. See State v. Post, 2007 WI 60, ¶8, 301 Wis. 2d 1, 733 N.W.2d 634. That has long been the law, and we see no need to depart from it now. 5 See State v. Young, 212 Wis. 2d 417, 429-32, 569 N.W.2d 84 (Ct. App. 1997).
6 No. 2019AP435-CR
test is not an exercise in evaluating individual details in
isolation. It is the whole picture, evaluated together, that
serves as the proper analytical framework. See Sokolow, 490
U.S. at 9 ("Any one of these factors is not by itself proof of any
illegal conduct . . . . But we think taken together they amount
to reasonable suspicion.").
¶13 Considering the totality of the circumstances, we hold
that a reasonable law enforcement officer knowing what Officer
Stikl knew and seeing what he saw would reasonably suspect that
the short-term contact he witnessed in Genous' car was a drug
transaction. His investigatory stop of Genous' vehicle therefore
complied with the Fourth Amendment. We reverse the court of
appeals' conclusion to the contrary and remand to the court of
appeals to address Genous' additional arguments not presented to
this court.6
By the Court.——The decision of the court of appeals is
reversed, and the cause is remanded to the court of appeals.
6 Before the court of appeals, Genous argued that officers unlawfully searched his car as well as his shoes and socks. The court of appeals did not reach these issues because it concluded that the initial stop was unlawful. Neither party asked us to consider these questions, nor were they briefed. Therefore, it is proper to remand these questions to the court of appeals.
7 No. 2019AP435-CR.rfd
¶14 REBECCA FRANK DALLET, J. (dissenting). The record
contains insufficient particular facts, as opposed to generalized
suspicions and hunches, that Genous had committed or was about to
commit a crime. It appears that Genous's presence in an alleged
"high-drug-trafficking area" played a disproportionate role in the
circuit court's reasonable-suspicion analysis, coloring those
general hunches as concrete suspicions. Allowing that designation
to so heavily influence the analysis——particularly when it is
unsupported by any empirical evidence——continues a troubling
erosion of the Fourth Amendment's particularized-suspicion
requirement. I therefore respectfully dissent.
I
¶15 An officer may conduct an investigatory traffic stop,
akin to a Terry stop,1 only if the officer has a "reasonable,
articulable suspicion that criminal activity is afoot." Illinois
v. Wardlow, 528 U.S. 119, 123 (2000); State v. Post, 2007 WI 60,
¶¶10-12, 301 Wis. 2d 1, 733 N.W.2d 634. An officer must be able
to point to concrete, particularized facts that warrant suspicion
of a particular defendant; "inchoate and unparticularized
suspicion[s] or 'hunch[es]'" are insufficient. Wardlow, 528 U.S.
at 123-24 (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)); Post,
301 Wis. 2d 1, ¶10.
¶16 The circuit court here found the following facts:
Genous was in a "high-drug-trafficking area"
at 3:30am;
1 Terry v. Ohio, 392 U.S. 1 (1968).
1 No. 2019AP435-CR.rfd
after idling for some unknown period of time,
Genous turned off his car along with the car's
headlights;
Genous had "short-term contact" with a female
in front of her house; and
a female who is a "known drug user" lived in
that house.2
As the court of appeals correctly concluded, these facts are not
"particularized" to Genous. State v. Genous, No. 2019AP435-CR,
unpublished slip op., ¶15 (Wis. Ct. App. Apr. 28, 2020) (quoting
State v. Young, 212 Wis. 2d 417, 433, 569 N.W.2d 84 (Ct.
App. 1997)). Rather, they describe the conduct of "large numbers
of law-abiding citizens in a residential neighborhood, even [one]
that has a high incidence of drug trafficking." See Young, 212
Wis. 2d at 430.
¶17 Likewise, the majority opinion's analysis identifies no
fact particular to Genous to give Officer Stikl reasonable
suspicion that Genous was engaged in criminal activity. Rather,
it asserts that a collection of generic facts, including that
Genous was present in what Officer Stikl called a "high-drug-
trafficking area," makes it reasonable for Officer Stikl to infer
that Genous was trafficking drugs.
Officer Stikl also noted that a contributing factor for why 2
he stopped Genous was that Genous's car was registered in "another city." The majority opinion wisely omits this fact from its analysis since the "other city" in which Genous's car was registered was Milwaukee, mere blocks from where Genous was stopped in West Allis.
2 No. 2019AP435-CR.rfd
¶18 The record evidence, however, undermines that
conclusion. Regarding the generic fact that "drug transactions
often occur during brief exchanges in vehicles," Officer Stikl
testified that neither he nor the West Allis Police Department had
any information that Genous's car was "used to transport drugs,"
"used by a known drug dealer," or connected to a known drug user.
As for this alleged "exchange," Officer Stikl testified that he
could not "see what was going on inside" Genous's car. He
testified that he saw no "physical contact" of any kind between
Genous and the woman who got into his car, let alone an "exchange"
that would resemble a drug transaction. Officer Stikl stated that
he did not see the woman carrying anything on her way to or from
Genous's car. He further admitted that drug transactions do not
occur only at certain hours. See State v. Betow, 226 Wis. 2d 90,
96, 593 N.W.2d 499 (Ct. App. 1999) (noting the absence of case-
law support for the proposition that drugs are more likely to be
trafficked by car at night than at any other time of day).
¶19 Even Officer Stikl's "identification" of the woman as
K.S., a "known drug user," is more generic than particular to
Genous. Officer Stikl testified that, prior to this night, he had
had no prior personal contact with K.S.——he had not even seen her
picture. He testified that he "recognized" the woman as K.S. based
on her "physicals" and that her address matched the house in front
of which Genous had parked. It is unclear what Officer Stikl meant
by "physicals," but the only specific identifying information he
testified to was that K.S. was a "white female." He also testified that he did not know whether K.S. was the only white female who
3 No. 2019AP435-CR.rfd
lived in her house. And so the only "particular" fact on which
Officer Stikl relied——that the woman who got into Genous's car was
a drug user——was not a fact at all; it was just a hunch.3 Thus,
none of the individual facts reveals anything particular to Genous
that gives rise to reasonable suspicion.
¶20 Even assessed collectively, these facts reveal nothing
concrete and articulable suggesting that Genous engaged in
criminal behavior. See United States v. See, 574 F.3d 309, 313-14
(6th Cir. 2009) (holding that "contextual factors" alone, without
particularized behavior, are insufficient to warrant reasonable
suspicion); State v. Evans, No. 2020AP286-CR, unpublished slip
op., ¶¶39-47 (Wis. Ct. App. Jan. 28, 2021) (concluding there was
no reasonable suspicion because the generic evidence regarding
drug transactions did "not show that the officer observed [this
defendant] exhibiting conduct consistent with drug cases"). The
Fourth Amendment does not give the police "free license to
stop . . . anyone" who shows up at the house of a person who
previously used drugs. United States v. James, 62 F. Supp. 3d 605,
610-14 (E.D. Mich. 2014); see also United States v. Black, 707
F.3d 531, 542 (4th Cir. 2013) (holding that defendant's presence
at night in "high-crime area" with a convicted criminal
insufficient for reasonable suspicion); State v. Weyand, 399
P.3d 530, 535 (Wash. 2017) (holding that "merely visiting" a house
known to police "because of the residents' histories of drug
3 The record contains no information suggesting that the police ever learned exactly who got into Genous's car. Officer Stikl testified that neither he nor, as far as he knew, any other officer followed up with K.S.
4 No. 2019AP435-CR.rfd
possession and use, not for a history of selling or distributing"
did not amount to reasonable suspicion). The Fourth Amendment
requires particularized suspicion and we have none here.
II
¶21 Genous's case illustrates two problems with the label
"high-crime area." First, the label can cloak general hunches as
particularized suspicion. In this way, a location's
characteristics may play a disproportionate role in a reasonable-
suspicion analysis, thus running afoul of Wardlow. See Wardlow,
528 U.S. at 124 (holding that a location's characteristics, while
relevant, cannot be determinative). And second, it is unclear
what the term "high-crime area" actually means, making it difficult
for circuit courts to know how much weight to give a location's
characteristics in any particular analysis. We should therefore
adopt objective criteria for evaluating an assertion that an area
is high in crime.
¶22 Both problems were on display here. The only evidence
in the record that this area of West Allis was a high-drug-
trafficking area is Officer Stikl's testimony that there had been
a single recent incident of "drug activity" two blocks south and
five blocks west of where he stopped Genous.4 One incident of an
unknown nature occurring roughly half a mile away hardly qualifies
this area as a high-drug-trafficking area. Yet that may be all it
4 Officer Stikl testified that this other incident was included in his arrest report, but that report is not in the record. His testimony also alludes to "assemblies" and "briefings" identifying this area of West Allis as a high-drug-trafficking area. The details of those briefings, including dates, however, are also not in the record.
5 No. 2019AP435-CR.rfd
took to cast Genous' conduct as suspicious. And, as discussed
above, nothing about Genous' conduct alone was reasonably
suspicious. Genous briefly met in his car with a woman who may
have been a drug user, in front of that woman's house. The police
saw nothing that resembled an exchange and they had no information
that Genous or Genous's car had been involved in any drug
transaction. Thus, the record evidence suggests that Genous's
location was more than just a "relevant" factor for whether his
behavior was suspicious; it was determinative.
¶23 It is of little help, however, to just say that the
circuit court may have given too much weight to Genous's location
or that his location was improperly labeled. After all, under
Wardlow, a person's location may be relevant to a reasonable-
suspicion analysis. But for courts to know exactly how a person's
location is relevant in a particular case, they must consider how
that location is defined, especially when considering a vague term
such as "high-crime area." What is the "area" the court is
considering? Is it five blocks? Ten? As for what it means to be
"high crime," how many incidents of crime were there and how
recently did those incidents take place? See State v. Fisher,
2006 WI 44, ¶41, 290 Wis. 2d 121, 714 N.W.2d 495 (reasoning that
a neighborhood could not "realistically be considered" a high-
crime area because its crime rate was equal to other areas;
characterizing it as such an area "would erase any meaningful
distinction between a truly high-crime area and any other area").
Without a generally accepted understanding of what "high-crime area" means, its definition (and its boundaries) will shift from
6 No. 2019AP435-CR.rfd
court to court. See Andrew G. Ferguson, Crime Mapping and the
Fourth Amendment, 63 Hastings L.J. 179, 203-05 (2011). Such a
fluid concept injects ambiguity into an inquiry that "looks for
the exact opposite"; what is needed for reasonable suspicion is
"objective and particularized indicia of criminal activity." See
United States v. Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011).
¶15 It is therefore important for circuit courts to
critically assess claims that a particular area is high in crime
so as not to give that label undue weight in a reasonable-suspicion
analysis. To that end, some courts and commentators have
established or proposed criteria for assessing whether an area
qualifies as a high-crime area. The First Circuit Court of Appeals
has established a three-factor test for analyzing whether a trial
court's high-crime-area finding is clearly erroneous. See United
States v. Wright, 485 F.3d 45, 53-54 (1st Cir. 2007). First, there
must be some "nexus" between the type of crime at issue in a
particular case and the type of crime that forms the basis for the
high-crime designation. Id.; see also United States v. Tinnie,
629 F.3d 749, 758 (7th Cir. 2011) (Hamilton, J., dissenting)
(explaining that courts must find a "reasonable connection between
the neighborhood's higher crime rate and the facts relied upon" to
justify the stop). For example, a Terry stop based on a suspected
drug transaction in an area with a high number of arrests for drug
transactions. Wright, 485 F.3d at 53-54. Second, the area must
be defined by "limited geographic boundaries." Id. General claims
that an entire city is a high-crime area are insufficient. And third, the stop in question must be close in time to reports of
heightened criminal activity in that area, preventing an area from
being perpetually designated "high crime" without continuing
evidence. Id. The First Circuit allows evidence on these factors
to include "a mix of objective data and the testimony of police
officers," and it leaves open the possibility that other factors
may be relevant in certain cases. See id. (noting that these
factors will be relevant in "most cases"); see also United States
v. Gorham, 317 F. Supp. 3d 459, 464-65 (D.D.C. 2018) (applying a
similar test).
¶16 Some commentators have proposed a test that closely
tracks the First Circuit's. See Andrew G. Ferguson & Damien
Bernache, The "High-Crime Area" Question, 57 Am. U. L.R. 1587,
1628-40 (2008). Ferguson and Bernache's framework also includes
three factors——nexus, geography, and timing——but they give
empirical data a larger role in the analysis. Even if an officer
geographically defines a high-crime area, they argue that courts
should not accept that claim without objective, statistical
evidence to support it. See id. at 1629-30. Requiring such
evidence is "in line with Terry" in that a judge can meaningfully
evaluate reasonable suspicion only if such claims are subjected to
"detached, neutral scrutiny." Id. at 1630 (quoting Terry, 392
U.S. at 21). Whatever the criteria, this court should develop an
objective test under which circuit courts can evaluate testimony
that a particular place is a high-crime area. At the very least,
circuit courts should not give determinative weight to unverified
assertions that an area is high in crime when evaluating whether the totality of the circumstances evinces reasonable suspicion.
8 No. 2019AP435-CR.rfd
See e.g., People v. Harris, 957 N.E.2d 930, ¶¶13-15 (Ill. App.
Ct. 2011) (holding that unsupported statements without further
inquiry are "insufficient" to warrant "consideration for purposes
of justifying a Terry stop"); State v. Morgan, 197 Wis. 2d
200, 218-19, 539 N.W.2d 887 (1995) (Abrahamson, J., dissenting)
(rejecting as irrelevant an officer's claim that an area was high
in crime because the officer failed to justify that claim).
III
¶24 It is often difficult to assess the impact of this
court's decisions at the time they are made. Cases like this one
often seem small in the law-developing context, just another fact-
based decision. But the Fourth Amendment's protections are eroded
"not in dramatic leaps but in small steps, in decisions that seem
'fact-bound,' case-specific, and almost routine." Tinnie, 629
F.3d at 754 (Hamilton, J., dissenting). Accepting without
scrutinizing a claim that an area is a "high-crime area"
unwittingly makes all residents and visitors in such areas more
susceptible to searches and searches, thereby treating them as
though they are "less worthy of Fourth Amendment protection."
United States v. Curry, 965 F.3d 313, 331 (4th Cir. 2020). We
must guard against such unequal treatment and ensure that the
Fourth Amendment offers the same protection to everyone, no matter
their location. See Utah v. Strieff, 579 U.S. ___, 136
S. Ct. 2056, 2069-70 (2016) (Sotomayor, J., dissenting).
¶25 Because there is no reasonable, particularized suspicion
that Genous was committing a crime, and because an unsupported claim that Genous was in a "high-drug-trafficking area" played a
9 No. 2019AP435-CR.rfd
disproportionate role in the circuit court's reasonable-suspicion
analysis, I respectfully dissent.
¶26 I am authorized to state that Justices ANN WALSH BRADLEY
and JILL J. KAROFSKY join this dissent.
10 No. 2019AP435-CR.rfd