State v. McBride

• Decision Date: 20 December 2022
• Docket Number: 2021AP311-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Donte Quintell McBride, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent,
v.
Donte Quintell McBride, Defendant-Appellant.

No. 2021AP311-CR

Court of Appeals of Wisconsin, District I

December 20, 2022

Not recommended for publication in the official reports.

APPEAL from a judgment and an order of the circuit court for Milwaukee County: No. 2018CF5172 JONATHAN D. WATTS, Judge. Reversed and cause remanded with directions.

Before Donald, P.J., Dugan and White, JJ.

DONALD, P.J.

¶1 Donte Quintell McBride appeals a judgment of conviction for one count of possession with intent to deliver heroin and two counts of possession with intent to deliver narcotics, and an order denying his motion to

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suppress. As discussed below, we conclude that the police did not have reasonable suspicion to seize McBride. Accordingly, we reverse the judgment and the circuit court's denial of McBride's suppression motion.

BACKGROUND

¶2 On October 28, 2018, McBride and another person were sitting in an SUV parked in an alley behind the building where McBride lived. McBride was in the passenger seat.

¶3 At approximately 11:15 p.m., Officer Jose Rivera and his partner, Officer Eric Kradecki, were performing a routine patrol and spotted the SUV. Within a matter of seconds, Officer Rivera shined the squad spotlight into the SUV, exited the squad car, and ordered the driver and McBride to put their hands up. Officer Rivera then opened the passenger's side door, handcuffed McBride, and removed him from the SUV. When Officer Rivera opened the SUV door, he saw an orange, unlabeled pill bottle between the front passenger door and the seat. An additional unlabeled pill bottle was recovered from McBride's front right pocket after a pat-down.^[1]

¶4 McBride was charged with one count of possession with intent to deliver heroin and one count of possession of narcotic drugs. An amended information added a second count of possession of narcotic drugs and second and subsequent enhancers to all counts.

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¶5 McBride filed a motion to suppress. At the suppression hearing, Officer Rivera testified, and the State moved the video footage from his body camera into evidence. According to Officer Rivera, upon shining the spotlight into the SUV, McBride, who was in the passenger seat, immediately "started to bend down towards his waist area and begin to reach around in the vehicle." Further, as Officer Rivera exited his squad car, McBride was "still reaching inside of the vehicle." Officer Rivera admitted, however, that neither his body camera nor his partner's body camera captured any movement from McBride.^[2]

¶6 Officer Rivera also testified that the SUV was not "parked off to the side, it was parked right in the alley," and could have interfered with traffic if there was a large vehicle or two-way traffic. On cross-examination, Officer Rivera, however, indicated that he was able to maneuver his vehicle around the SUV, and that he did not take measurements of the alley to determine whether the SUV in fact obstructed traffic.

¶7 Following the suppression hearing, the circuit court denied the motion. The circuit court found Officer Rivera's testimony credible. The circuit court further found that there was reasonable suspicion for the stop and subsequent frisk, and probable cause existed to arrest McBride.

¶8 That same day, McBride pleaded guilty to one count of possession with intent to deliver heroin and two counts of possession with intent to deliver narcotics. McBride was sentenced to a total of six years in prison. McBride now appeals the suppression ruling. Additional relevant facts are addressed below.

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DISCUSSION

¶9 On appeal, McBride renews his argument that police did not have reasonable suspicion to seize him. McBride also contends that handcuffing and removing him from the vehicle was not supported by reasonable suspicion and exceeded the scope of a permissible stop. Finally, McBride contends that the search of his person was not justified.

¶10 We conclude that the police lacked reasonable suspicion to seize McBride. As a result, we do not address McBride's other issues. See State v. Blalock, 150 Wis.2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (stating that an appellate court should decide cases on the narrowest possible grounds).

¶11 The Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution protect the rights of citizens to be free from unreasonable searches and seizures. State v. Young, 2006 WI 98, ¶18, 294 Wis.2d 1, 717 N.W.2d 729. An investigatory stop, also known as a Terry stop,^[3] "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.'" State v. Genous, 2021 WI 50, ¶7, 397 Wis.2d 293, 961 N.W.2d 41 (citation omitted).

¶12 "Reasonable suspicion requires that a police officer possess specific and articulable facts that warrant a reasonable belief that criminal activity is afoot." Young, 294 Wis.2d 1, ¶21. This is "an objective test that examines the totality of circumstances." State v. VanBeek, 2021 WI 51, ¶52, 397 Wis.2d 311, 960 N.W.2d 32.

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"A mere hunch that a person has been, is, or will be involved in criminal activity is insufficient" to establish reasonable suspicion. Young, 294 Wis.2d 1, ¶21.

¶13 The State bears the burden of proving that an investigatory stop was constitutional. State v. Meddaugh, 2022 WI.App. 12, ¶13, 401 Wis.2d 134, 972 N.W.2d 181. When reviewing an order granting or denying a motion to suppress, we will uphold the circuit court's findings of fact unless they are clearly erroneous. Id., ¶12. We independently apply constitutional principles to the facts. Id.

¶14 Here, the parties agreed in the circuit court that a seizure occurred when Officer Rivera ordered McBride to show his hands. See Young, 294 Wis.2d 1, ¶34 (stating that a seizure occurs when a reasonable person would have believed he was not free to leave). As a result, at issue is whether the police had reasonable suspicion to seize McBride. See Genous, 397 Wis.2d 293, ¶7. The State contends that the totality of the circumstances support a finding of reasonable suspicion. We disagree. We conclude that the totality of circumstances does not establish reasonable suspicion that McBride had been engaged in, was engaged in, or was about to be engaged in, criminal activity.

¶15 To start, we note what this case is not about. This is not a case where the police were responding to a call or tip about suspicious or criminal activity taking place. Nor is this a case where the police came across a person, had a hunch that criminal activity was taking place, and then, after observing the person for a substantial period of time, determined that criminal activity appeared to be afoot. Rather, in this case, we emphasize that the record reflects that the

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officers were on a routine patrol and, seconds after observing the SUV, seized McBride.

¶16 In concluding that reasonable suspicion existed to seize McBride, the circuit court highlighted that: (1) the SUV was parked in a "high-crime" area; (2) the SUV had its lights off;^[4] (3) there were two people sitting inside the SUV; (4) the SUV was parked in an "unusual" place in the alley; and (5) McBride moved in response to seeing Officer Rivera's spotlight.^[5]

¶17 First, as the State acknowledges, it is well-established that an individual's presence in a high-crime area standing alone is insufficient to give rise to reasonable suspicion. See State v. Gordon, 2014 WI.App. 44, ¶15, 353 Wis.2d 468, 846 N.W.2d 483. The State cannot justify a warrantless search or seizure with nothing more than a recitation that the person was in a "high-crime" area. As we have previously observed:

sadly, many, many folks, innocent of any crime, are by circumstances forced to live in areas that are not safe- either for themselves or their loved ones. Thus, the routine mantra of "high crime area" has the tendency to condemn a whole population to police intrusion that, with the same additional facts, would not happen in other parts of our community.

Id.

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¶18 Second, we are not persuaded that two people sitting in a parked SUV with its lights off is inherently suspicious. Sitting in a parked car with the lights off cannot be described as unusual or uncommon behavior in either high-crime or low-crime areas. There are a plethora of innocent reasons that two people may sit in a parked car, such as waiting for a friend or family member. While it is true that conduct which may have an innocent explanation may also give rise to a reasonable suspicion of criminal activity, the inference of unlawful conduct must be reasonable. See State v. Waldner, 206 Wis.2d 51, 57, 556 N.W.2d 681 (1996). Here, we do not see how the presence of two people in the parked SUV without its lights on supports a reasonable suspicion that McBride was engaged in criminal activity.

¶19 Third, we address McBride's alleged movements in response to Officer Rivera's squad spotlight shining into the SUV. "Furtive" or suspicious movements do not automatically give rise to reasonable suspicion. For instance, in Gordon, officers stopped the defendant, who was walking at night in a high-crime area, after observing him pat the outside of his pants pocket, also known as a "security adjustment." See id., 353 Wis.2d 468, ¶¶9, 14. One of the officers explained that a "security adjustment" is a conscious or unconscious movement that an individual does when he or she is carrying a weapon and confronted by law enforcement. Id., ¶4. Nonetheless, we concluded that, without more, the facts did not establish reasonable suspicion that criminal activity was afoot. Id., ¶14. We stated that a "'security adjustment' could, given additional facts (such as, for example, flight or attempted flight), support an objective 'reasonable suspicion,'" the additional facts present were "far too common...