Walking and talking to a woman about 6 a.m. in an area known for prostitution is not enough to justify a police seizure of the man involved in the discussion, a State Court of Appeals panel ruled Thursday.
The panel overturned the felon in possession of a firearm conviction of Samuel K. Dixon, sent the case back to Milwaukee County Circuit Judge Thomas J. McAdams and ordered him to suppress the gun evidence found when after the illegal stop.
The District 4 panel said there was no reason to believe that Samuel K. Dixon and the woman were engaged in any prostitution-related activity when a police officer pulled his unmarked squad car partially onto the sidewalk so that one of the car’s front tires was about two feet from the Dixon, and then immediately turned the car’s red and blue lights.
The appeals panel included Judges Paul Lundsten, Gary E. Sherman and Brian W. Blanchard.
“There was nothing to suggest that the officer recognized Dixon or the woman as being involved in prostitution previously,” the panel said in an unsigned opinion. “(There was) nothing to suggest that they matched the description of anyone involved in prostitution; nothing to suggest that the woman beckoned to Dixon or talked to any other man; nothing to suggest that the woman’s age or appearance was what police thought was typical for prostitutes in the area; and nothing to suggest that the two had exchanged money, drugs, or any other item.”
The incident occurred near W. Lisbon Ave. and N. 29th St. in Milwaukee.
The officer testified, according to the decision, that Dixon was “clean-cut and well-dressed” and described the woman only as a “thicker black woman.” The two were “just hang[ing] out on the corner”; “[j]ust walk[ing] back and forth … [p]robably a good 3, 4 times”; “just walking and just talking”; “engaging in conversation and just walking and talking and like circular motions”; “chitchatting”; and “smiling.”
Dixon and the woman did not attempt to flee when the squad pulled up. The officer got out of the car; he testified he saw Dixon move his hands toward his rear pockets. The officer ordered Dixon to stop moving his hands, which Dixon did not do. The officer then ordered Dixon to turn around and raise his hands, which Dixon did.
Dixon had a gun and he was ultimately charged with being a felon in possession of a firearm. In 2009, Dixon pleaded guilty to two counts of armed robbery.
McAdams, the circuit judge, rejected Dixon’s contention that he was unconstitutionally seized, but the appeals panel disagreed. The panel accepted Dixon’s argument that no reasonable person would feel free to leave when an officer pulled his squad that close and activated the lights. The state did not develop an argument to refute Dixon, but instead concentrated on his failure to obey the order to stop moving his hands. The panel, though, said Dixon did submit to police.
“Specifically, Dixon stayed in place when the officer pulled his squad car up partially onto the sidewalk two feet from Dixon and activated the squad car’s red and blue lights,” the appeals decision said. “As noted, the officer testified that Dixon ‘just stood there.’ Dixon’s subsequent reaching toward his back pocket in apparent disobedience of the officer’s order not to reach would have justified a protective frisk or further investigation, but those subsequent events do not negate the seizure that already occurred.”
The panel also rejected the state’s contention that the officer had enough reasonable suspicion to make the stop.
“In this respect, Dixon’s case brings to mind others in which courts concluded that reasonable suspicion was lacking when the facts consisted of little to nothing more than innocuous behaviors taking place in ‘high crime’ areas,” the panel said.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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