By Gretchen Schuldt
A man's brief interaction in a car with a woman at 3:30 a.m. did not justify the subsequent traffic stop that led to the discovery of an illegal gun in the man's car, the State Court of Appeals ruled this week.
The decision reversed Milwaukee County Circuit Judge Dennis Cimpl's and vacated the felon-in-possession conviction of James Timothy Genous.
Instead, the appeals panel said, the traffic stop was based on a "hunch" rather than reasonable suspicion.
West Allis Police Officer Adam Stikl did not see a drug transaction before he stopped the vehicle driven by James Timothy Genous, the District I Court of Appeals panel said in an unsigned opinion.
Stikl testified he stopped Genous after seeing a woman who matched the description of a known drug user come out of a house in the 1600 block of S. 65th St. – which officers testified was in a high drug trafficking area – get in Genous' legally parked black sedan for 15-20 seconds, then leave it to return to the house.
Stickl said believed a drug deal had taken place based on his “training and experience,” according to the appeals panel, which included Appeals Judges William W. Brash III, Timothy G. Dugan, and M. Joseph Donald.
Stikl stated that he had no information about a black sedan being used to transport drugs to that area, nor was Stikl aware of a black sedan belonging to a known drug dealer or drug user.
"Stikl stated that he had no information about a black sedan being used to transport drugs to that area, nor was Stikl aware of a black sedan belonging to a known drug dealer or drug user," the panel wrote.
Genous immediately pulled over when Stikl initiated the stop. Genous first said he was meeting his mistress, but that she failed to show. When Stikl said he had seen Genous with a woman, Genous acknowledged that a woman with the same first name as the suspected drug user had been in his car.
"He explained that the woman wanted money from him, but left when Genous did not give it to her," the panel said.
Stickl testified at a suppression hearing that he saw "multiple cell phones, hand sanitizer, and cigar wrappers in the vehicle," the court wrote. Stickl said those things were commonly used by drug dealers.
One of the officers who responded to the stop said Genous made "furtive gestures" wile in the car.
"Stickl told Genous to sit on a curb and ordered Genous to remove his shoes and socks," the panel wrote.
Another officer who had arrived at the scene looked in Genous' car and reported seeing a gun in plain sight.
On appeal, the state argued that, given the totality of the circumstances, that the traffic stop was reasonable.
"Genous argues that none of the facts relied upon by Stikl, either individually or cumulatively, were sufficient to constitute a reasonable suspicion that criminal activity was afoot. We agree," the panel said.
"We are...unable to discern the required reasonable suspicion necessary to justify the investigative stop at issue," the panel said.
"Stikl simply saw a woman enter Genous’s vehicle, remain in there for about fifteen to twenty seconds, exit the vehicle, and go back into her house...." the judges continued. "The fact that Genous’s encounter with (the woman) took place early in the morning in a known drug trafficking neighborhood does not give rise to reasonable suspicion. Stikl testified that drug transactions do not only occur at certain hours, and we have previously rejected the notion that drug transactions are more likely to occur in the middle of the night."
Genous was represented on appeal by Assistant State Public Defender Leon W. Todd. (Full disclosure: Todd is a WJI Board member.)
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