Appeals court tosses search in gun case; race issue left for another day

Kloppenburg

By Gretchen Schuldt

Sitting in a car parked in a hotel parking lot in a high-crime area does not provide enough probably cause for police to seize and search a vehicle, the State Court of Appeals has ruled.

The 2-1 decision by the District IV Court of Appeals panel turned in large part on whether the vehicle and its driver, Shondrell R. Evans, were legally seized by Town of Madison officers or whether Evans should have realized, with two squads mostly boxing him in and in the glare of police spotlights, that he was free to drive away.

And while Evans' attorney, Assistant State Public Defender Thomas B. Aquino, argued that Evans' race – he is African-American – likely made him more hesitant to back his car out between the squads, neither Appeals Judge JoAnne F. Kloppenburg, author of the majority opinion, nor Appeals Judge Michael R. Fitzpatrick, who dissented from a key finding, addressed the issue in a meaningful way.

The state, in its brief, did not even mention it.

The basics of the case are undisputed.

Town of Madison Police Officer Logan Brown, on patrol in March 2018, saw Evans and a woman leave a hotel about 2:30 a.m. Brown followed the two as they drove to the parking lot of a nearby apartment complex, park for about a minute, then return to the hotel parking lot.

Evans parked in a stall in the lot, next to a car parked on his passenger side. There was a concrete barrier in front of Evans' car. Evans and the women remained in Evans' car for several minutes.

Brown contacted Officer Andrew Hoffman, who was nearby. 

The two officers, in separate vehicles, approached Evans' car simultaneously. Brown parked a short distance away from Evans' vehicle, with the front of the squad facing the driver's side door of Evans' car. Hoffman also parked close to Evans' car. The squad was parked at about a 45-degree angle from the rear bumper of the passenger side of Evans' car. 

Both officers had their headlights and overhead spotlights trained on Evans' car. 

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"And a Black man such as Evans would also have to be concerned that a police officer’s biases, subconscious or otherwise, would make the officer quick to pull the trigger." – Assistant State Public Defender Thomas B. Aquino

​Evans was not completely blocked in, according to the decision; he could have backed out and maneuvered around the squads to leave.

The officers got out of their cars and approached Evans' vehicle. They said they smelled marijuana.  The officers subsequently searched the car and found a gun. 

Evans was charged with felon in possession of a firearm. He argued in court that the seizure of the car was illegal and sought to suppress the gun, but Dane County Circuit Judge Susan Crawford denied the request. First, she said, Evans was not seized until the officers began questioning him. He could have, after all, backed out and left. She also said that even if Evans' car had been seized, it was reasonable for the officers to do that “based on the officer’s observations of the individuals coming and going at that hour from the hotel parking lot in a way that seemed unusual and not explainable in a high crime area.”

Evans eventually pleaded guilty and filed his appeal.

The appeals panel majority rejected both facets of Crawford's reasoning. The officers both seized Evans' vehicle and lacked the legal basis to do so, Kloppenburg said. She was joined in her opinion by Appeals Judge Brian W. Blanchard.

A seizure occurs when, in view of all the circumstances surrounding the incident, a reasonable person would conclude that he or she was not free to leave. Evans argued that the positioning of the squad cars, combined with the officers' use of squad lights, "constituted a sufficient show of authority that a reasonable person in his position would not have felt free to leave."

Aquino, in his brief, suggested that Evans might be especially hesitant to back out because of his race.

Fitzpatrick

Recent tragedies have brought to the fore why so many Black Americans reasonably believe that a failure to heed to the whims of law enforcement may be fatal," Aquino wrote. "The senseless deaths of George Floyd and Breonna Taylor – and before them, Botham Jean, Freddie Gray, Michael Brown, Eric Garner, and Tamir Rice – at the hands of the police demonstrate why it is quite reasonable for a Black person to be scared that misinterpreting a police officer’s instructions may result in their death," he wrote.

"Even if a reasonable person correctly concluded that legally they were free to leave, they would have to strongly consider the practical consequences of attempting to maneuver their vehicle around two police cruisers," he wrote. "A reasonable person would have to be concerned that if they came too close to officers or drove too quickly, the officers would view that as an act of aggression, and defend themselves with their firearms. And a Black man such as Evans would also have to be concerned that a police officer’s biases, subconscious or otherwise, would make the officer quick to pull the trigger."

Kloppenburg said in a footnote that the court did not consider the racial aspects of the matter "because we conclude that a reasonable person here would not have felt free to leave, even absent the perception of a heightened risk for violence."

Fitzpatrick, in dissent, argued that Evans had more room to maneuver his car than the majority acknowledged and that he was not seized until police smelled marijuana. Evans did not argue that he did not have room to back out and drive away, Fitzpatrick said. 

In a footnote, Fitzpatrick mentioned the race issue but did not address it: "Evans does mention, but only in a hypothetical sense and in the context of his race, that '[a] reasonable person would have to be concerned that if they came too close to officers or drove too quickly, the officers would view that as an act of aggression, and defend themselves with their firearms....' But, that is not an argument that the space was in fact narrow or that the vehicles were close to his."

​In the body of his opinion, Fitzpatrick wrote: "Here, during the period of time when the purported seizing of Evans took place, there is no dispute that neither officer: (1) lit the red and blue lights on the top of their squad car; (2) gave verbal instructions to Evans to stay where he was in the car; (3) used the siren on their squad car; (4) touched Evans; (5) drew their weapon or taser; or (6) knocked on the window of Evans’s vehicle. Each of those actions might be an indication to a reasonable person that they were not free to leave. Because the officers took none of those actions, this tends to support the conclusion that a reasonable person would believe that they were free to leave."

Kloppenburg, in summarizing, said the majority finding, said the case "involves the unexpected, late night presence of two squad cars acting simultaneously, and a close pull up perpendicular to the driver’s side by one of them, and spotlights, and blocked egress on three sides, and an inability to exit by driving forward, and having to maneuver in reverse between and around the two squad cars to avoid hitting either of them in order to exit.  We conclude that a reasonable person in these circumstances would not feel that he or she is free to leave."

The officers also lacked the probable cause needed to seize the car, she said. Simply being in a high-crime area at night is not enough to justify a seizure, she said. Innocent people live and work in such areas and "the time of day, specifically the late night and early morning, encompasses far too much innocent conduct (such as by second-shift and third-shift workers at the hotel and nearby establishments) to establish, on its own, reasonable suspicion to justify seizure."

That Evans sat in an idling car also is not basis for the seizure, Kloppenburg said. In addition,the testimony of one of the officers never specifically linked Evans' behavior to similar behavior by drug dealers, she said. 

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