State v. Nimmer
| Citation | 2022 WI 47 |
| Decision Date | 23 June 2022 |
| Docket Number | 2020AP878-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Avan Rondell Nimmer, Defendant-Appellant. |
| Court | United States State Supreme Court of Wisconsin |
State of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Avan Rondell Nimmer, Defendant-Appellant.
No. 2020AP878-CR
Supreme Court of Wisconsin
June 23, 2022
Submitted on Briefs Oral Argument: October 25, 2022
Circuit Court Milwaukee County L.C. No. 2019CF2611 Glenn H. Yamahiro Judge:
Review of Decision of the Court of Appeals Reported at 395 Wis.2d 769, 954 N.W.2d 753 (2021 - unpublished)
For the plaintiff-respondent-petitioner, there were briefs filed by Sarah L. Burgundy, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Sarah L. Burgundy.
For the defendant-appellant, there was a brief filed by Mark S. Rosen and Rosen and Holzman, Waukesha. There was an oral argument by Mark S. Rosen.
JUSTICES: REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court with respect to all parts except ¶¶28, 29 n.12, and 39-58, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶28, 29 n.12, and 39-58, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion.
REBECCA GRASSL BRADLEY, J.
¶1 This case concerns police officers' ability to respond to concededly reliable reports of gunfire generated in near real-time. Two Milwaukee officers received such a report via a technology known as ShotSpotter. The officers arrived on scene no more than one minute after
receiving the report, seeing only one person there: Avan R. Nimmer. After noticing the squad car, Nimmer accelerated his pace away from it. He also dug around his left side with his left hand. Officer Anthony Milone stepped out of the squad car and walked toward Nimmer, who "bladed" his left side away from Milone while continuing to dig around his left side.[1] The officers considered these movements suspicious because they were consistent with actions a person may take in attempting to conceal a weapon. The officers stopped Nimmer to investigate whether he was involved in the shooting. Concerned for their safety, Milone frisked Nimmer and found a handgun.
¶2 Because Nimmer was a felon, the State charged him with being a felon in possession, in violation of Wis.Stat. § 941.29(1m)(a) (2019-20).[2] Nimmer moved to suppress any evidence obtained as a result of the investigative stop, including the handgun, arguing the stop violated his Fourth Amendment right against unreasonable seizure. The circuit court denied Nimmer's motion.[3] The court of appeals reversed in an unpublished per curiam decision.
State v. Nimmer, No. 2020AP878-CR, unpublished slip op. (Wis. Ct. App. Dec. 15, 2020) (per curiam).
¶3 We hold the officers had reasonable suspicion, based on the totality of the circumstances, to believe Nimmer was involved in criminal activity. Accordingly, we reverse the decision of the court of appeals.
I. BACKGROUND
A. ShotSpotter
¶4 This case involves a relatively new technology, ShotSpotter. At the suppression hearing, Officer Milone testified ShotSpotter is a "gunshot location system." He explained it uses "acoustic sensors" to "record sounds to try to locate . . . gunfire." More specifically, "when the acoustic sensors pick-up the sounds of gunfire, [they] send[] an alert to an office in California. There is somebody standing by in the office who listens to the audio and . . . if it sounds like actual gunshots, they will send the alert[.]"[4] Nimmer has not argued the time that elapses between ShotSpotter detecting gunfire and notifying officers is sufficiently long to be a material fact.
¶5 Nimmer does not dispute ShotSpotter's reliability. Officer Milone testified at the suppression hearing, "I [have] responded to . . . over a thousand [ShotSpotter reports]. . . .
In my experience, [ShotSpotter] is pretty accurate." During oral argument before this court, when asked whether Nimmer was "challenging the reliability of ShotSpotter," Nimmer's attorney responded:
No, . . . we are not. . . . [T]he thing is I think it's pretty clear about ShotSpotter technology, is I think it can say when and where. I think now it's gotten to the point where it can say what. It can distinguish between firecrackers. I think that's pretty clear. I'm not disputing that.
Despite ShotSpotter's reliability, Nimmer argues the officers lacked reasonable suspicion to believe he was involved in criminal activity.
B. The Shooting Investigation
¶6 In the summer of 2019, Officer Milone and his partner were on patrol when, at approximately 10:06 p.m., they received a computerized ShotSpotter report in their squad car. It stated four shots had been fired about three blocks away from the officers' location. Nimmer described the reported location as "highly residential." The officers drove there without activating their squad car's siren or flashing red and blue lights.
¶7 Officer Milone had responded to many similar reports in the past. He was a nine-year police veteran assigned to the Violent Crimes Saturation Unit, and his "typical[]" duties included "respond[ing] to calls like ShotSpotter, shots fired, subject with gun, armed robbery, calls of that nature involving gun and gun violence." He testified when he responds to a ShotSpotter report, he looks for "[a]nybody who is shot, any
people who are shot, any potential suspects, anybody walking around still shooting, [and] any witnesses[.]" When he sees individuals near the reported location, he explained he "tr[ies] to see what their response is upon sight of police, see if they are shot, see if they take off running, see if they start grabbing any part of their clothing, any part of their body." Effectively, he watches for evasive or nervous behavior.
¶8 The officers arrived on scene no more than one minute after receiving the ShotSpotter report and encountered Nimmer. Officer Milone testified Nimmer was at "basically the exact location where the ShotSpotter came in." He further testified the officers did not see anyone else--only Nimmer.
¶9 Nimmer observed the squad car and immediately accelerated his pace away from it--in fact, he doubled his pace, according to Officer Milone. Milone worried Nimmer was trying to distance himself from the squad car because he was considering fleeing. Milone testified, "I have observed many times somebody begins to accelerate their walking pace right before going into a run from police." He also testified Nimmer "began digging around his left side with his left hand."
¶10 Officer Milone then stepped out of the squad car and approached Nimmer. Milone testified:
As I was approaching him behind him, he began turning his left side away from me. So at that point his left side was more forward and I could only really see his right side. I could observe his left arm was still digging around. I was directly behind him on the sidewalk and his right hand was within view, but his left hand was not.
Milone used "blading" as shorthand for Nimmer's turning motion at other points in his testimony. When asked to define blading, he said, "[b]lading [i]s the term I use when I talk about [Nimmer] moving his left side away from me where I could only see his right side. That would have been the part where he was blading his body." From Nimmer's blading, Milone inferred, based on his training and experience, "[Nimmer] did not want me to be able to see his left side."
¶11 The officers then stopped Nimmer to investigate whether he had been involved in the shooting. Officer Milone testified he "conducted a pat-down of [Nimmer] for officer safety for any weapons." As Milone began, Nimmer said, "[t]he gun is in my waistband[.]" Milone then felt Nimmer's waistband, and on Nimmer's left side, concealed under his shirt, was a .40 caliber Smith &Wesson semiautomatic pistol.[5]
¶12 The State charged Nimmer with being a felon in possession. He had been previously convicted of possession with intent to deliver THC, in violation of Wis.Stat. § 961.41(1m)(h)1.
C. Nimmer's Suppression Motion
¶13 Nimmer moved to suppress any evidence obtained as a result of the investigative stop, including the handgun, arguing the stop was unsupported by reasonable suspicion that he was involved in criminal activity. He asserted the officers stopped
him because of his "mere presence" in the same "neighborhood" as the gunfire's reported location. Offering an alternative explanation for his presence at the scene, Nimmer argued he could have been an innocent "pedestrian" out for a walk "on the street." Emphasizing the limits of ShotSpotter, Nimmer noted ShotSpotter does not provide a description of the shooter. It tells officers what, when, and where, but not who. Nimmer also asserted "even if" he made furtive movements, "standing alone" his acceleration away from the officers and his blading and digging could not give rise to reasonable suspicion. He also suggested these movements were not suspicious because "Nimmer couldn't have known necessarily that the squad car was a police car. It didn't have its red and blue lights on or the siren going. It was dark outside. The lights would prevent . . . Nimmer from being able to identify the squad as a squad car[.]"
¶14 The State countered the officers had reasonable suspicion because: (1) the officers arrived on scene almost immediately following the ShotSpotter report; (2) Nimmer was "in the close proximity of this call;" (3) the officers did not see anyone else near the reported location; and (4) Nimmer acted suspiciously once he noticed the officers.
¶15 The circuit court denied Nimmer's motion, agreeing with the State's argument. The court explained the "key" was "the timing" of events. It indicated its decision would be different if ShotSpotter did not work in near real-time and the officers arrived "10 or 15 minutes" after the...
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