State v. Avan Rondell Nimmer ( 2022 )

2022 WI 47SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP878-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Avan Rondell Nimmer,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 395 Wis. 2d 769, 954 N.W.2d 753(2021 – unpublished)
OPINION FILED: June 23, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 25, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Glenn H. Yamahiro
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.
NOT PARTICIPATING:
ATTORNEYS:
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.
2
2022 WI 47NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP878-CR
(L.C. No. 2019CF2611)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. JUN 23, 2022
Avan Rondell Nimmer, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
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.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA GRASSL BRADLEY, J. 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
No. 2020AP878-CR
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,
1 "Blading" is a technique used to conceal a weapon. "[A]
person carrying a gun . . . turn[s] 90 degrees away from the
person observing or approaching, placing his body between the
gun and the other person." Nathan C. Meehan & Christopher
Strange, Behavioral Indicators of Legal and Illegal Gun Carrying
7 (2015).
2 All subsequent references to the Wisconsin Statutes are to
the 2019–20 version.
3 The Honorable Glenn H. Yamahiro, Milwaukee County Circuit
Court, presided.
2
No. 2020AP878-CR
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]. . . .
4 Officer Milone indicated Milwaukee employs ShotSpotter at
several locations: "There is ShotSpotters in multiple cities.
So we get dealings for all of Milwaukee including not just
District Five, but all of Milwaukee."
3
No. 2020AP878-CR
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
4
No. 2020AP878-CR
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.
5
No. 2020AP878-CR
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
5The officers later found a .40 caliber casing nearby;
however, because they located it after stopping Nimmer, the
casing cannot enter into the reasonable suspicion analysis.
6
No. 2020AP878-CR
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 reported shooting;
7
No. 2020AP878-CR
however, because only a nominal amount of time had passed, the
court reasoned the officers could be suspicious of people at the
scene. It found Nimmer was "very close" to the gunfire's
reported location, and Nimmer was the only person the officers
saw. Additionally, the court found Nimmer made furtive
movements upon noticing the officers, which were "consistent
with . . . trying to conceal a weapon." Viewing all of these
facts together, the court concluded the officers reasonably
suspected Nimmer of criminal activity.
D. The Appeal
¶16 Nimmer entered into a plea agreement, pled guilty, and
was sentenced to two years of initial confinement followed by
two years of extended supervision. Nimmer appealed.6 The court
of appeals reversed the judgment of conviction and remanded the
case to the circuit court, directing it to enter an order
granting Nimmer's motion to suppress. Nimmer, No. 2020AP878-CR,
¶30.
¶17 The court of appeals reasoned Nimmer's "mere presence"
near "an area where criminal activity [was] suspected" was
insufficient to give rise to reasonable suspicion that he was
involved in criminal activity. Id., ¶27 (citations omitted).
The court reached this conclusion by analogizing to four cases,
only one of which involved a police response to reported
Generally, a criminal defendant waives his right to appeal
6
by pleading guilty; however, a narrow exception exists under
Wis. Stat. § 971.31(10) for appeals challenging "[a]n order
denying a motion to suppress evidence[.]"
8
No. 2020AP878-CR
gunfire. Those cases generally concern the weight a court may
give to a person's presence at a location associated with
criminal activity. State v. Gordon is illustrative. Id., ¶17
(quoting State v. Gordon, 2014 WI App 44, ¶¶3–4, 353
Wis. 2d 468, 846 N.W.2d 483). Officers stopped a suspect
because he was walking in "one of the more dangerous areas of
the district" and had been observed making a "security
adjustment," i.e., a movement indicating he was carrying a
weapon. Id. (quoting Gordon, 353 Wis. 2d 468, ¶¶3–4). The
court of appeals concluded the officers lacked reasonable
suspicion because a person's presence in a "high crime area"
cannot be the primary fact supporting an investigative stop.7
Id., ¶18 (quoting Gordon, 353 Wis. 2d 468, ¶18). By relying on
Gordon and other like cases, the court of appeals ignored the
timing of the officers' response to the report of gunfire,
treating this case as if the officers merely noticed Nimmer in
an area where they knew shootings often occurred instead of an
area where a shooting reportedly just occurred.
¶18 Next, the court of appeals characterized Officer
Milone's testimony about Nimmer's furtive movements as of an
"indeterminate nature" seeming to question whether Milone's
testimony was even truthful. Id., ¶28. Specifically, the court
The other three cases cited by the court of appeals were:
7
(1) State v. Pugh, 2013 WI App 12, 345 Wis. 2d 832, 826
N.W.2d 418; (2) State v. Washington, 2005 WI App 123, 284
Wis. 2d 456, 700 N.W.2d 305; and (3) State v. Lewis,
No. 2017AP234-CR, unpublished slip op. (Wis. Ct. App. July 25,
2017).
9
No. 2020AP878-CR
speculated: "[W]e cannot help but wonder——even while
recognizing that police officers must make split-second
decisions under circumstances where all factors may not be
known——whether . . . officers have sought to find 'magic'
language for their articulated facts to describe a person's
behavior to [justify an investigative stop]." Id., ¶26.
¶19 The court of appeals concluded Nimmer's presence near
the gunfire's reported location, "even taken together" with
Officer Milone's testimony regarding Nimmer's furtive movements,
was insufficient to give rise to reasonable suspicion. Id.,
¶30. While the court stated it considered the facts "together,"
it never analyzed the totality of the circumstances, instead
addressing each fact in isolation.8 The State filed a petition
for review, which we granted.
II. STANDARD OF REVIEW
¶20 This case presents a question of constitutional fact.
See State v. Brown, 2020 WI 63, ¶8, 392 Wis. 2d 454, 945
N.W.2d 584 (citing State v. Smith, 2018 WI 2, ¶9, 379
Wis. 2d 86, 905 N.W.2d 353). We review the circuit court's
findings of historical fact for clear error. Id. (quoting
Smith, 379 Wis. 2d 86, ¶9). We independently apply the Fourth
Amendment to the historical facts to determine whether the
At oral argument, Nimmer's attorney acknowledged, while
8
the court of appeals purported to consider the facts together,
it "didn't explain anything further," i.e., it did not analyze
the totality of the circumstances.
10
No. 2020AP878-CR
investigative stop was constitutional.9 Id. (quoting Smith, 379
Wis. 2d 86, ¶9).
III. DISCUSSION
A. Fourth Amendment Principles & Terry Stops
¶21 "The Fourth Amendment is 'indispensable to the full
enjoyment of the rights of personal security, personal liberty,
and private property.'" Id., ¶9 (quoting 3 J. Story,
Commentaries on the Constitution of the United States § 1895
(1833)). It states:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV. "As the text makes clear, 'the Fourth
Amendment does not proscribe all state-initiated searches and
seizures; it merely proscribes those which are unreasonable.'"
State v. Coffee, 2020 WI 53, ¶22, 391 Wis. 2d 831, 943
N.W.2d 845 (lead opinion) (quoting State v. Tullberg, 2014 WI
134, ¶29, 359 Wis. 2d 421, 857 N.W.2d 120); see also Brown, 392
9The circuit court made a sweeping statement toward the end
of its remarks: "Really, anyone that [the officers] encountered
within a minute or two of receiving the alert should have been
investigated if they were within a couple of blocks of the
alleged shots being fired." The court of appeals concluded this
statement was "simply too broad to fit within the confines of
Fourth Amendment law regarding stop and frisk procedures."
State v. Nimmer, No. 2020AP878-CR, unpublished slip op., ¶30
(Wis. Ct. App. Dec. 15, 2020) (per curiam). We agree; however,
notwithstanding this single stray comment, the circuit court
gave a thorough and well-reasoned explanation for its ruling.
11
No. 2020AP878-CR
Wis. 2d 454, ¶9 (quoting Riley v. California, 573 U.S. 373, 381
(2014)) ("[T]he [United States] Supreme Court repeatedly
characterizes the reasonableness of searches and seizures as
[the Fourth Amendment's] 'ultimate touchstone.'").
¶22 Generally, a search or seizure conducted without a
warrant is "per se unreasonable[.]" Brown, 392 Wis. 2d 454, ¶10
(quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)); State v.
Matejka, 2001 WI 5, ¶17, 241 Wis. 2d 52, 621 N.W.2d 891(citations omitted). However, ever since this nation's
founding, there have been exceptions. Akhil Reed Amar, Terry
and Fourth Amendment First Principles, 72 St. John's L.
Rev. 1097, 1106 (1998) ("[A] large number of historical examples
give the lie to the idea that warrants were always required at
the Founding——warrantless arrests, searches incident to
warrantless arrest, searches of ships, searches of liquor store-
houses, border searches, successful seizures of contraband and
stolen goods, and on and on.").
¶23 An officer may briefly stop an individual, without a
warrant, if the officer has reasonable suspicion to believe the
individual is involved in criminal activity. State v. Genous,
2021 WI 50, ¶7, 397 Wis. 2d 293, 961 N.W.2d 41 (quoting State v.
Young, 2006 WI 98, ¶20, 294 Wis. 2d 1, 717 N.W.2d 729); State v.
Anderson (Anderson I), 2019 WI 97, ¶32, 389 Wis. 2d 106, 935
N.W.2d 285. A short investigative stop is often called a "Terry
12
No. 2020AP878-CR
stop" based upon the United States Supreme Court decision Terry
v. Ohio, 392 U.S. 1 (1968), which sanctioned them.10
¶24 Reasonable suspicion depends on the "totality of the
circumstances." Genous, 397 Wis. 2d 293, ¶9 (citing State v.
Post, 2007 WI 60, ¶18, 301 Wis. 2d 1, 733 N.W.2d 634). Just
last term, we emphasized that "[w]e focus not on isolated,
independent facts, but on 'the whole picture' viewed together."
Id. (quoting United States v. Cortez, 449 U.S. 411, 417–18
(1981)). "Indeed, Terry itself involved a series of acts, each
of them perhaps innocent if viewed separately, but which taken
together warranted further investigation." Id. (quoting United
States v. Sokolow, 490 U.S. 1, 9–10 (1989)). In this case, the
court of appeals erred by utilizing a "divide-and-conquer
analysis." See District of Columbia v. Wesby, 583 U.S. __, 138
S. Ct. 577, 588 (2018) (quoting United States v. Arvizu, 534
U.S. 266, 274 (2002)).
¶25 Reasonable suspicion is "a low bar[.]" Genous, 397
Wis. 2d 293, ¶8 (citing Young, 294 Wis. 2d 1, ¶21; State v.
Eason, 2001 WI 98, ¶19, 245 Wis. 2d 206, 629 N.W.2d 625); see
also Anderson I, 389 Wis. 2d 106, ¶33 ("Reasonable suspicion is
a fairly low standard to meet." (citing Eason, 245 Wis. 2d 206,
An officer may frisk a person during a Terry stop if the
10
officer "reasonably believes" the individual is armed and poses
a safety risk. State v. Young, 2006 WI 98, ¶55, 294 Wis. 2d 1,
717 N.W.2d 729 (citations omitted). Nimmer argues the officers
lacked reasonable suspicion to believe he was involved in
criminal activity, but does not challenge the legality of the
search following the stop.
13
No. 2020AP878-CR
¶19)). "Although a mere hunch does not create reasonable
suspicion, the level of suspicion the standard requires is
considerably less than proof of wrongdoing by a preponderance of
the evidence, and obviously less than is necessary for probable
cause[.]" Navarette v. California, 572 U.S. 393, 397 (2014)
(internal citations and quotation marks removed). "[O]fficers
are not required to rule out the possibility of innocent
behavior before initiating a [Terry] stop." Genous, 397
Wis. 2d 293, ¶8 (quoting State v. Anderson (Anderson II), 155
Wis. 2d 77, 84, 454 N.W.2d 763 (1990)).
¶26 We must "consider everything observed by and known to
the officer[s.]" Id., ¶10. Taking all of that information
into account, we then determine whether the officers had "a
particularized and objective basis" to reasonably suspect Nimmer
of criminal activity. Brown, 392 Wis. 2d 454, ¶10 (quoting
Navarette, 572 U.S. at 396). In other words, we must determine
whether the officers had more than a "mere hunch" that Nimmer
was involved in the shooting. Navarette, 572 U.S. at 397
(internal quotation removed).
B. Application
¶27 Several facts known to the officers and accepted by
the circuit court collectively give rise to reasonable suspicion
that Nimmer was involved in criminal activity: (1) ShotSpotter
generates reliable reports of gunfire in near real-time; (2)
within a minute of receiving the ShotSpotter report, the
officers arrived on scene; (3) Nimmer was at nearly the exact
location where ShotSpotter reported gunfire; (4) Nimmer was the
14
No. 2020AP878-CR
only person the officers saw; and (5) Nimmer made furtive
movements upon noticing the officers.
¶28 In addition, the criminal activity being investigated—
—a shooting in a highly residential area——supplemented the
reasonableness of the officers' actions. See State v.
Rutzinski, 2001 WI 22, ¶26, 241 Wis. 2d 729, 623 N.W.2d 516("[E]xigency can in some circumstances supplement the
reliability of an informant's tip in order to form the basis for
an investigative stop." (emphasis added) (citation omitted));
id., ¶35 ("In light of the potential for imminent danger that
drunk drivers present, the informant's allegations suggesting
that Rutzinski may have been intoxicated supplemented the
reliability of the tip, and further justified Officer Sardina's
investigative stop." (emphasis added)).
¶29 As the circuit court noted, the timing of events is
key. The officers arrived shortly after receiving a reliable
report of gunfire that was generated in near real-time, from
which they could infer the shooter was likely nearby. Other
courts have also concluded a relatively short period of time
between officers receiving a ShotSpotter report and their
arrival at the scene supports reasonable suspicion to stop and
question those present. In United States v. Jones, officers
arrived on scene within a minute and a half of receiving a
dispatch that ShotSpotter had reported gunfire. 1 F.4th 50, 53
(D.C. Cir. 2021). After observing Jones walking quickly on an
otherwise deserted block, the officers stopped him. The D.C.
Circuit concluded reasonable suspicion to do so existed in large
15
No. 2020AP878-CR
part because the officers' rapid response significantly reduced
the probability that the shooter had fled.11 Id. In another
analogous case, the Seventh Circuit concluded even five-and-a-
half minutes was not "[a]s both a matter of fact and
law . . . unduly long." United States v. Rickmon, 952 F.3d 876,
883 (7th Cir. 2020), cert. denied, 141 S. Ct. 2505 (2021). The
Seventh Circuit determined reasonable suspicion exists to stop
those present in the area within this timeframe because
"[c]ommon sense counsels that a person may take minutes rather
than seconds to flee for any number of reasons, including the
destruction of evidence, an injury sustained in the shooting, or
a need to hide in place."12 Id. Relying on Rickmon, the Ohio
The ShotSpotter report in United States v. Jones was not
11
sent directly to the officers. The D.C. Circuit noted the
record did not indicate how much time elapsed between the
generation of the ShotSpotter report and its relay to officers.
1 F.4th 50, 53 n.2 (D.C. Cir. 2021). Contrary to Justice
Dallet's assertion, the period of time necessary to generate a
ShotSpotter report has not played a significant role in most
cases discussing ShotSpotter. See Justice Dallet's Concurrence,
¶66 & n.6.
In United States v. Rickmon, officers received two
12
ShotSpotter reports and two dispatches reporting gunfire, which
were based on 911 calls. 952 F.3d 876, 882 (7th Cir. 2020),
cert. denied, 141 S. Ct. 2505 (2021). The Seventh Circuit
reasoned a ShotSpotter report is at least as reliable as an
anonymous tip. See id. at 879 n.2, 882. It then noted the
"anonymous tip from ShotSpotter" was "independently confirmed"
by the 911 calls relayed through the dispatches. Id. at 882.
Analogizing a ShotSpotter report to an anonymous tip is part of
the analysis, not a "sidetrack" from it. See Justice Dallet's
Concurrence, ¶71 ("The majority/lead opinion gets similarly
sidetracked by focusing on cases that have relaxed the usual
corroboration requirements for anonymous tips when the police
are responding to a potential emergency.").
16
No. 2020AP878-CR
Court of Appeals recently concluded reasonable suspicion existed
in an analogous case involving approximately a four-minute
police response time. State v. Carter, 183 N.E.3d 611, 629
(Ohio Ct. App. 2022).
¶30 The reasoning of Jones and Rickmon applies to this
case. Given the officers' quick response and in light of their
observations upon arrival, they could reasonably suspect Nimmer
was the shooter and that he had not left the scene for any
In this case, the lack of a 911 call is of little
importance, for multiple reasons. See State v. Carter, 183
N.E.3d 611, 629 (Ohio Ct. App. 2022) ("While there were no
separate 911 calls reporting gunfire or any additional
information in terms of a suspect, [Officers] Erwin and
Gallagher were responding to an alert of shots fired, an
inherently dangerous circumstance beyond general criminality.
In their experience, they had recovered weapons in response to
ShotSpotter alerts."). First, Nimmer concedes the reliability
of ShotSpotter. Second, the officers arrived on scene no more
than a minute after receiving the ShotSpotter report, which
presumably issued shortly after the shots were detected.
Whether a 911 call can be placed and relayed to officers within
such a short period of time is questionable. See Marc L. Miller
et al., Criminal Procedures: Cases, Statutes, and Executive
Materials 428 (6th ed. 2019). Lastly, people do not always call
911 after hearing gunfire such that the lack of a 911 call
discredits the ShotSpotter report. See Alexandra S. Gecas,
Note, Gunfire Game Changer or Big Brother's Hidden Ears?:
Fourth Amendment and Admissibility Quandaries Relating to
ShotSpotter Technology, 2016 U. Ill. L. Rev. 1073, 1084
("ShotSpotter enables the police to catch perpetrators without
people fearing they are 'snitching' on their
neighbors. . . . ShotSpotter highlights just how prevalent
unreported gunfire is on city streets. . . . [C]ommunities that
frequently experience gunfire are the least likely to report
gunshots to the police."); Amanda Busljeta, Comment, How an
Acoustic Sensor Can Catch a Gunman, 32 J. Marshall J. Info.
Tech. & Privacy L. 211, 218 (2015) (explaining people who live
in high crime areas are sometimes so desensitized to gun
violence that they decline to call 911 when they hear gunfire).
17
No. 2020AP878-CR
number of reasons. See Rickmon, 952 F.3d at 883. While Nimmer
could have been a random pedestrian out for a walk, the officers
were not required to rule out any alternative explanation for
his presence at the scene. Genous, 397 Wis. 2d 293, ¶8 (quoting
Anderson II, 155 Wis. 2d at 84); see also Jones, 1 F.4th at 54.
Additionally, common sense counsels that innocent pedestrians do
not normally gather immediately near the location of gunfire,
particularly late at night. See Rickmon, 952 F.3d at 884
(noting few vehicles are out at 4:45 a.m.).
¶31 The timing of the stop is particularly persuasive in
light of Nimmer's close proximity to the exact location reported
by ShotSpotter. Contrary to the court of appeals' analysis,
this case is not about the extent to which a person's presence
in a "high crime area" can contribute to reasonable suspicion.
See Nimmer, No. 2020AP878-CR, ¶18 (quoting Gordon, 353
Wis. 2d 468, ¶18). For Fourth Amendment purposes, there is a
difference between a person's presence at a location generally
known for criminal activity and his presence at a location
precisely pinpointed for gunfire by a reliable report in near
real-time. See generally United States v. Holloway, No. 20-CR-
00381, slip op., 2021 WL 5882147 *5 (N.D. Ill. Dec. 13, 2021)
(explaining a suspect's presence in a high crime area is less
valuable in a reasonable suspicion analysis than a suspect's
presence near a location reported by ShotSpotter).
¶32 Officer Milone testified Nimmer was at "basically the
exact location where the ShotSpotter came in." Consistent with
this testimony, the circuit court found Nimmer was "very close"
18
No. 2020AP878-CR
to the reported location. Nimmer's "close proximity," both
"temporally" and "spatially," to that location of gunfire weighs
heavily in favor of reasonable suspicion. Commonwealth v.
Raglin, 178 A.3d 868, 873 (Pa. Sup. Ct. 2018); see also
Commonwealth v. Ford, 182 N.E.3d 1013, 1018 (Mass. Ct. App.
2022) ("The seizure of a suspect in geographical and temporal
proximity to the scene of the crime appropriately may be
considered as a factor in the reasonable suspicion analysis. It
is particularly relevant where, as here, the officer encountered
the defendant less than a minute after the last reported
ShotSpotter alert, at the location where the trail of
ShotSpotter alerts ended." (quotation marks and quoted source
omitted)); Carter, 183 N.E.3d at 629 ("Carter was observed
within four minutes of the officers receiving the alert within
the specific area of the alert. In other words, as in Rickmon,
the stop had temporal and physical proximity to the gunfire.");
Funderburk v. United States, 260 A.3d 652, 660 (D.C. 2021)
(noting "spatial and temporal proximity" to the location
reported by ShotSpotter contributed to reasonable suspicion);
Rickmon, 952 F.3d at 884 (concluding "the [Terry] stop's
temporal and physical proximity to the shots" supported
reasonable suspicion); Commonwealth v. Holness, 101 N.E.3d 310,
315 (Mass. Ct. App. 2018) ("The physical appearance of the
Jaguar, and its proximity to the location of the ShotSpotter
activation and broken glass, as well as the temporal proximity
between the activation and recent motor vehicle accident,
occurring in or around 4:00 A.M. on Christmas morning, when few
19
No. 2020AP878-CR
other vehicles were likely on the road, provided a sufficient
nexus between the incriminating evidence in plain view and the
accident scene.").
¶33 Nimmer was also the only person the officers observed
temporally and spatially proximate to the scene. The absence of
anyone else nearby strongly particularized the officers'
suspicion. See Funderburk, 260 A.3d at 660–61; see also Ford,
182 N.E.3d at 1018; Carter, 183 N.E.3d at 629. The officers
knew what (gunfire), when (a minute or two ago), and where (the
reported address). While they did not know who fired the gun,
they knew the shooter was likely near the reported location.
Accordingly, "[t]he officers . . . limited the universe of
potential suspects to those at a particular location" shortly
after a serious crime occurred there. See Funderburk, 260
A.3d at 657. Because no one else was in the vicinity, this
"universe" was "small enough that no description at all [was]
required to justify [the Terry stop]." Id. (quoting In re
T.L.L., 729 A.2d 334, 341 (D.C. 1999)); see also State v.
Hairston, 126 N.E.3d 1132, 1137 (Ohio 2019) ("[T]he officers did
exactly what one would expect reasonable and prudent police
officers to do in their situation. Upon hearing gunshots, they
proceeded immediately to the location they believed the shots to
be coming from to investigate. Finding only Hairston in the
area[,] . . . the officers were not required to ignore
Hairston's presence[.]"); Rickmon, 952 F.3d at 884 (explaining
the lack of a description of a suspect vehicle made little
difference because officers observed only one vehicle temporally
20
No. 2020AP878-CR
and spatially proximate to the location reported by
ShotSpotter).
¶34 Contributing to the totality of the circumstances
supporting reasonable suspicion, Nimmer made furtive movements.
Officer Milone testified, upon noticing the officers, Nimmer:
(1) doubled his pace away from the officers; (2) dug around his
left side with his left hand; and (3) bladed the left side of
his body away from them. Notably, Nimmer's blading did not
occur until Milone began approaching Nimmer on foot, and the
closer the officers got to Nimmer, the more evasive his behavior
became. Milone further testified, based on his training and
experience, Nimmer's movements indicated he was considering
fleeing and did not want the officers to see his left side. See
Cortez, 449 U.S. at 418 ("[A] trained officer draws inferences
and makes deductions . . . that might well elude an untrained
person.").
¶35 Contrary to the court of appeals' characterization of
Officer Milone's testimony, it was not "indeterminate" nor did
he use "magic" words. The court of appeals erred by suggesting
otherwise. See Nimmer, No. 2020AP878-CR, ¶¶26, 28. In fact,
Milone's testimony was exacting.13 He did not merely say Nimmer
began walking faster——he said Nimmer doubled his pace. He did
not simply say Nimmer began digging in a pocket——he said Nimmer
dug around his left side with his left hand. He did not just
We do not opine on the extent to which less exacting
13
testimony from Officer Milone would have been sufficient.
21
No. 2020AP878-CR
say Nimmer bladed——he said, "[Nimmer] 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 was
directly behind him on the sidewalk and his right hand was
within view, but his left hand was not." Milone even mentioned
Nimmer continued digging with his left arm as he bladed,
although he could not see Nimmer's left hand. Milone further
described when each of these movements occurred, and the
particular inferences he drew from them. This case is not about
conclusory or jargon-ridden testimony by an officer. The
circuit court found Milone credible and had no trouble
understanding what Milone meant. Nothing in the record
indicates the circuit court erred——let alone clearly erred——by
crediting Milone's testimony. See Brown, 392 Wis. 2d 454, ¶8
(quoting Smith, 379 Wis. 2d 86, ¶9); see also Carter, 183
N.E.3d at 629 ("We do not agree, as Carter suggests, that the
officers used 'magic' words or language in testifying to
establish reasonable suspicion. The court clearly found the
officers' testimony to be credible, and we defer to the court's
credibility assessment.").
¶36 Contrary to his argument, Nimmer's furtive movements
were not "standing alone;" these movements combined with other
facts to solidify the officers' particularized suspicion of
Nimmer. See Anderson I, 389 Wis. 2d 106, ¶50 ("When combined
with the information known to Officer Seeger about Anderson's
history, Anderson's behavior creates reasonable suspicion that
criminal activity was afoot. Anderson's movements after he
22
No. 2020AP878-CR
noticed Officer Seeger give rise to a reasonable inference that
Anderson was trying to conceal something from the officer.");
United States v. Diaz, No. 20-cr-176 (LAK), slip op., 2020 WL
6083404 *6 (S.D.N.Y. Oct. 15, 2020), appeal filed ("The
defendants argue that a ShotSpotter report, 'standing on its
own,' cannot be the basis of 'individualized suspicion.' But
the ShotSpotter reports are only two pieces of the
calculus. . . . [B]oth officers testified that they observed
the defendants engage in 'nervous, evasive' behavior as they
exited: the officers saw Diaz turn his body slightly and
Hawkins pivot and hurry as their police car passed.
Subsequently, Officer Bonczyk observed Diaz, whom Officer Lopez
recognized from a prior arrest for assaulting an officer,
creating tension with his sweatshirt that revealed a bulge that
Officer Bonczyk thought was a gun. These observations provided
the officers with reasonable suspicion that, of all the people
coming and going from the area that night, Diaz and Hawkins were
particularly suspect.").
¶37 In the course of responding within one minute after
receiving a ShotSpotter report of gunfire in a residential
neighborhood, the officers saw a single suspect near the scene
make furtive movements suggesting concealment of a handgun.
Looking at "the whole picture," as the officers were required to
do, they made a well-informed and reasonable inference that
Nimmer might be the shooter. See Genous, 397 Wis. 2d 293, ¶9
(quoting Cortez, 449 U.S. at 417–18). They did not act on a
23
No. 2020AP878-CR
"mere hunch[.]" See Navarette, 572 U.S. at 397 (internal
quotation marks removed).
¶38 Although this is the first occasion for this court to
evaluate reasonable suspicion in the context of a ShotSpotter
report, our court of appeals has considered whether the
proximity of a person's presence shortly after shots were fired
satisfies reasonable suspicion. For example, in State v.
Norton, No. 2019AP1796-CR, unpublished slip op., ¶¶14, 17 (Wis.
Ct. App. Apr. 14, 2020), the court of appeals concluded the
totality of analogous circumstances constituted reasonable
suspicion to stop and investigate the defendant:
The officers were investigating a report of shots
fired, for which they had very little information
besides the general vicinity of the incident. . . .
Norton's presence in that area was not "standing
alone"——it was accompanied by the information that
there had been shots fired in the area, which the
officers here were investigating. Furthermore, when
they illuminated the vehicle with their squad
spotlight, they saw Norton make "furtive
movements[,]" . . . which caused the officers to
become concerned that he may have been trying to
conceal a firearm, due to the nature of the call they
were investigating.
(Quoted source omitted). The court of appeals in that case
persuasively emphasized the nature of the crime the officers
were investigating——shots fired, which obviously is linked to
criminal activity. Id., ¶20.
¶39 As part of the reasonable suspicion analysis, multiple
courts have emphasized the nature of the criminal activity the
officers were investigating. E.g., Trott v. State, 249
24
No. 2020AP878-CR
A.3d 833, 848 (Md. 2021), cert. denied sub nom., Trott v.
Maryland, 142 S. Ct. 240 ("Additionally, in determining that the
investigatory stop was reasonable under the circumstances, we
also consider the gravity of the risk of public
harm. . . . Balancing the public's interest in safety against
the minimal intrusion occasioned by the brief investigatory stop
here, and considering the totality of the facts presented to
Officer Cooper in this case, we conclude that the scales of
justice tilt in favor of the stop."). This court has recognized
that when officers are aware of "an imminent threat to the
public safety" the Fourth Amendment "do[es] not require the
police to idly stand by in hopes that their observations reveal
suspicious behavior before the imminent threat comes to its
fruition." Rutzinski, 241 Wis. 2d 729, ¶26. "[T]he Fourth
Amendment . . . appreciates the distinction between officers who
illegitimately invoke Terry to stop someone who ran a red light
six[] months ago and legitimately use it to stop someone who
assaulted a spouse in the past half hour." United States v.
Jones, 953 F.3d 433, 437 (6th Cir. 2020).
¶40 "[T]he amount of permissible intrusion is a function
not only of the likelihood of turning up contraband or evidence
of crime but also of the gravity of the crime being
investigated." United States v. Goodwin, 449 F.3d 766, 769 (7th
Cir. 2006) (citation omitted). Applying this common sense
principle, the Seventh Circuit uses a "'sliding scale' approach"
to determine the requisite quantum of suspicion: "if the crime
being investigated is grave enough, the police can stop and
25
No. 2020AP878-CR
frisk without as much suspicion as would be required in a less
serious criminal case." Id. The Seventh Circuit employed this
approach in Rickmon, twice emphasizing "the dangerousness of the
crime," 952 F.3d at 881–82, 884, and noting, "[w]e have
repeatedly emphasized in our decisions that the inherent danger
of gun violence sets shootings apart from other criminal
activity." Id. at 883 (citing United States v. Burgess, 759
F.3d 708, 710–11 (7th Cir. 2014)). Similarly, in Burgess, the
Seventh Circuit stated:
At the outset we observe the dangerousness of the
situation facing the officers and the
public. . . . Multiple callers reported shots fired
in the same general area, creating heightened
suspicion of a serious crime, and for all the officers
knew as they approached the area just minutes later,
more than one shooting location was involved. The
threat to public safety was serious, and the officers
had to assume that it was continuing in process.
Against the background of this ongoing threat, a
number of considerations supported stopping Burgess's
car in particular. . . .
All told, the circumstances here——the dangerousness of
the crime, the short lapse of time between the
dispatches and the stop, the stop's proximity to the
reported shots, the car's color, and the light traffic
late at night——provided ample justification for
stopping Burgess's car.
759 F.3d at 710–11; see also Commonwealth v. Meneus, 66
N.E.3d 1019, 1026 (Mass. 2017) (holding "the fact that the crime
under investigation was a shooting, with implications for public
safety" is relevant to determining the reasonableness of a Terry
stop).
26
No. 2020AP878-CR
¶41 As Rickmon and Burgess illustrate, in Terry stop cases
involving reported unlawful firearm use, "[t]here is a
consistent theme[:] . . . if the police reasonably perceive
danger to themselves or to members of the public, they have a
duty to investigate[.]" Commonwealth v. Campbell, 867
N.E.2d 759, 763 (Mass. Ct. App. 2007) (quoted source omitted);
see also Carter, 183 N.E.3d at 629 ("[Officers] Erwin and
Gallagher were responding to an alert of shots fired, an
inherently dangerous circumstance beyond general criminality.").
"The unique dangers presented to law officers and law-abiding
citizens by firearms are well chronicled." United States v.
Bold, 19 F.3d 99, 104 (2d Cir. 1994) (citation omitted). The
unlawful use of a firearm presents an "imminent danger," see
United States v. Harrell, 268 F.3d 141, 151 (2d Cir. 2001)
(Meskill, J., concurring), which may be considered in "the
totality-of-the-circumstances test for determining reasonable
suspicion" because of "the government's need for a prompt
investigation." See Bold, 19 F.3d at 104 (citation omitted).
¶42 In this case, ShotSpotter reported four gunshots in a
highly residential neighborhood. Officer Milone testified he
was looking for "[a]nybody who is shot, any people who are shot,
any potential suspects, anybody walking around still shooting,
[and] any witnesses[.]" His testimony confirms the obvious:
the officers had reason to believe lives were in danger.
¶43 The court of appeals erred in this case by relying too
heavily on cases involving investigations of substantially less
serious criminal activity——specifically, drug crimes——rather
27
No. 2020AP878-CR
than cases involving shots fired. See State v. Pugh, 2013 WI
App 12, 345 Wis. 2d 832, 826 N.W.2d 418 (investigating a
suspected drug crime); State v. Washington, 2005 WI App 123, 284
Wis. 2d 456, 700 N.W.2d 305 (investigating a complaint of
loitering and drug sales).14 "Th[e] element of imminent danger
distinguishes a gun tip from one involving possession of drugs."
United States v. Serrano, 598 F. App'x 72, 78 (3d Cir. 2015)
(quoting United States v. Roberson, 90 F.3d 75, 81 n.4 (3d Cir.
1996)) (modification in the original).
¶44 ShotSpotter's detection of gunfire is comparable to an
officer hearing it himself. See Amanda Busljeta, Comment, How
an Acoustic Sensor Can Catch a Gunman, 32 J. Marshall J. Info.
Tech. & Privacy L. 211, 219 (2015) ("With the acoustic sensors
implemented in cities, police can feel a sense of reassurance
that there is always a second pair of ears acting as backup.").
When an officer hears gunfire, he has a duty to the public to
react. If he arrives at the scene almost immediately after
gunfire and sees only a few people——or in this case, one person—
—the officer may reasonably suspect criminal activity if any of
them make furtive movements.
¶45 The only case the court of appeals considered
involving reported gunfire was State v. Lewis, No. 2017AP234-CR,
unpublished slip op. (Wis. Ct. App. July 25, 2017). In that
The error rests in relying on four cases, supra ¶17 &
14
n.7, none of which were analogous, none of which were Wisconsin
Supreme Court decisions, one of which was an unpublished court
of appeals decision, and only one of which (the unpublished
court of appeals decision) even involved shots fired.
28
No. 2020AP878-CR
case, officers were dispatched to investigate shots fired in a
high crime area. Id., ¶¶2, 8. They were looking for three
fleeing suspects, but they had a description of only one. Id.,
¶2. The officers observed Travail L. Lewis in an alley "a few
blocks from where the complaint was made" but Lewis did not
match the description. Id., ¶1. Positioned behind Lewis, the
officers noticed him holding the waistband of his pants. Id.,
¶2. The officers conducted a Terry stop, and Lewis admitted he
was carrying a concealed weapon. Id. The State "concede[d]"
the "officers stopped Lewis simply based on the fact that he was
walking in a high crime area shortly after [they] receiv[ed] an
alert of 'shots fired'" and was "touch[ing] his waistband."
Id., ¶8. The court of appeals accepted the State's concession
and concluded the officers lacked reasonable suspicion. Id.
¶46 We do not consider whether the court of appeals
correctly decided Lewis. Regardless, it is inapposite for
multiple reasons. First, Lewis does not disclose the officers'
response time——just that they arrived "shortly" after receiving
the report. Id. The decision says Lewis was "a few blocks from
where the complaint was made," id., ¶1, leaving Lewis' temporal
and spatial proximity to the gunfire indeterminate. Finally,
Lewis did not react to the officers, who saw him from behind and
noticed him "holding the waistband of his pants." Id., ¶2.
Whether Lewis even saw the officers before they ordered him to
stop is unclear.15
15The court of appeals in this case could have considered
another factually analogous opinion from its own court, State v.
29
No. 2020AP878-CR
¶47 In this case, the officers expeditiously responded to
a reliable report of gunfire, generated in near real-time. Upon
arrival, they saw one person, Nimmer, who made furtive movements
that, based on the officers' training and experience, indicated
he was concealing a handgun. The officers reasonably suspected
Nimmer was involved in criminal activity, specifically, the
shooting. The officers' seizure of Nimmer accordingly complied
with the Fourth Amendment.
IV. JUSTICE DALLET'S CONCURRENCE
¶48 "The straw man was easily enough knocked over by
the critic who set him up."
L.T. Hobhouse, The Theory of Knowledge 59 (New & Chapter Issue
1905).
¶49 Justice Dallet's concurrence mischaracterizes the
court's opinion and the precedent it applies, creating a cloud
of obfuscation over the opinion so that it will be read to mean
something it doesn't actually say. In common parlance, Justice
Dallet creates a "straw man," meaning "a weak or imaginary
opposition (such as an argument or adversary)," who is "set up
Tally-Clayborne, No. 2016AP1912-CR, unpublished slip op., ¶10
(Wis. Ct. App. Oct. 17, 2017) ("[Officer] Dillman traveled in
the direction of the gunshots and within twenty to twenty-five
seconds, Dillman saw Tally-Clayborne and two other individuals.
Dillman did not see anyone else. Given the potential safety
risk, . . . the fact that Tally-Clayborne and his companions
were the only individuals visibly present in the area of the
shooting, and the fact that Tally-Clayborne attempted to walk
away from the officers patting down his companions while
reaching for his waistband, Dillman could reasonably suspect
that Tally-Clayborne was involved in some sort of criminal
activity.").
30
No. 2020AP878-CR
only to be easily confuted." Straw man, Merriam-Webster's
Collegiate Dictionary (11th ed. 2014). By creating this straw
man, Justice Dallet handily knocks down a weak argument of her
own creation rather than address the legal principles actually
propounded by the court. For this reason, judges and parties
should exercise caution when citing statements in separate
writings that purport to summarize or paraphrase the majority
opinion, particularly when the author of the writing has not
joined the majority opinion.
¶50 For starters, Justice Dallet attempts to distort the
holding in this case, suggesting this court sanctions
ShotSpotter being "used as a dragnet to justify warrantless
searches of everyone the police find near a recently reported
gunshot."16 Nothing in this opinion suggests anything of the
kind. As exhaustively explained, the totality of the
circumstances obviously matters and it is the totality of the
facts in this case which supports reasonable suspicion. See,
e.g., supra ¶¶3, 24-30, 34, 36-37, 44, 47. The officers'
arrival on the scene no more than one minute after the
ShotSpotter report, where they found only Nimmer, was but one of
multiple facts supporting reasonable suspicion.
Justice Dallet's Concurrence, ¶67.
16 In misstating the
holding in this case, Justice Dallet analogizes it to the
circuit court's conclusion that the police should investigate
anyone in the vicinity within a minute or two of the ShotSpotter
alert. Id., ¶67 n.7. Contrary to Justice Dallet's insinuation,
we agreed with the court of appeals' conclusion that this
statement exceeds the boundaries of the Fourth Amendment. See
supra ¶20 n.9.
31
No. 2020AP878-CR
¶51 Justice Dallet further misrepresents the majority
opinion as advancing "the novel suggestion 'that the quantum of
suspicion necessary to conduct an investigatory stop is lower
for the type of criminal investigation that occurred here.'"17
The majority opinion does not say this; Justice Brian Hagedorn’s
concurrence does. Citing Rutzinski, the State argued "[o]ne
additional factor supports reasonable suspicion here: police
were investigating a shots-fired report, which implicated
immediate public-safety concerns." Although the State
thoroughly briefed the issue, the defendant did not respond.
Like the defendant, Justice Dallet never analyzes Rutzinski,
even though it debunks her classification of the analysis as
novel.
¶52 Justice Dallet lapses into the same error made by the
court of appeals in this case: evaluating the facts in
isolation rather than as part of the "whole picture." For
example, she says "there is nothing especially suspicious about
finding someone alone on a residential street just after 10:00
PM on a Saturday night in the summertime."18 This is true, but
no one suggests otherwise. Justice Dallet also says, "the
possibility that a crime has been committed in a certain
neighborhood doesn't cast suspicion over everyone there."19
Again, no one claims it does. Next, Justice Dallet says the
17 Justice Dallet's Concurrence, ¶61 n.1.
18 Id., ¶64.
19 Id.
32
No. 2020AP878-CR
police "could not assume that Nimmer was responsible for the
reported gunshots simply because he was the only person they saw
when they showed up in his neighborhood."20 They didn't; it was
his solitary presence at the location of recent gunfire,
combined with his furtive movements, which gave rise to
reasonable suspicion, as Justice Dallet ultimately concedes.21
¶53 Justice Dallet, however, does not seem to think the
nature of the criminal activity being investigated matters much
when determining the reasonableness of a stop, characterizing
the consideration of gun violence as going beyond "a standard
Terry analysis."22 She similarly dismisses the seriousness of
20 Id.
Justice Dallet also says, "Nimmer's case is unlike many
21
of those cited by the majority/lead opinion, where courts held
that the police had reasonable suspicion to stop the only people
they found at the scene of reported gunfire late at night, in an
alleyway or dead-end street where shots were heard recently, or
both." Id. (emphasis added). She then cites three cases on
which we have relied: Jones, Rickmon, and Funderburk. Justice
Dallet draws a distinction bearing no difference under the
Fourth Amendment.
In Jones, officers stopped the suspect "in a residential
neighborhood in Washington D.C." 1 F.4th at 51. In Rickmon,
officers stopped a suspect in a residential area of Peoria,
Illinois, which, while not as urbanized as Washington, D.C., is
hardly a rural community. 952 F.3d at 879; see also id. at 886
(Wood, J., dissenting) (describing the residential nature of the
area). Indeed, the court noted when one officer arrived on
scene, he "observed a crowd of about 15-20 people at the
street's dead end, approximately 300 feet from him." Id. at 879
(majority op.). In Funderburk, "two police officers heard
gunshots and commotion coming from a nearby alley in a
residential neighborhood." Funderburk v. United States, 260
A.3d 652, 654 (D.C. 2021).
22 Justice Dallet's Concurrence, ¶¶70, 72.
33
No. 2020AP878-CR
the crime as a factor in the analysis of a tip's reliability.
This is not the law; the Court in Florida v. J.L., 529 U.S. 266(2000) and this court as well as other courts applying its
holding have already rejected the premise of Justice Dallet's
concurrence.
¶54 In J.L., police received an anonymous tip that a
person at a bus stop was concealing——not shooting——a firearm.
Id. at 268, 273 n.*. The tip had little to no indicia of
reliability and "[a]part from the tip, the officers had no
reason to suspect . . . illegal conduct. The officers did not
see a firearm, and J.L. made no threatening or otherwise unusual
movements." Id. at 268 (emphasis added). Under these facts,
the Court concluded the officers unlawfully executed a Terry
stop, expressly disavowing "an automatic firearm exception to
our established reliability analysis"23 because it would "enable
any person seeking to harass another to set in motion an
intrusive, embarrassing police search of the targeted person
simply by placing an anonymous call falsely reporting the
target's unlawful carriage of a gun." Id. at 272 (emphasis
added). The Court's holding was limited to an uncorroborated
tip of someone carrying a gun:
The facts of this case do not require us to speculate
about the circumstances under which the danger alleged
in an anonymous tip might be so great as to justify a
search even without a showing of reliability. We do
While the nature of the criminal activity is relevant
23
under our analysis, it is not dispositive. See Commonwealth v.
Meneus, 66 N.E.3d 1019, 1026 (Mass. 2017).
34
No. 2020AP878-CR
not say, for example, that a report of a person
carrying a bomb need bear the indicia of reliability
we demand for a report of a person carrying a firearm
before the police can constitutionally conduct a
frisk.
Id. at 273–74. Relying on this limitation, this court and lower
courts have factored the nature of the suspected criminal
activity into their reasonable suspicion analyses in exactly the
same manner we do in this case.
¶55 In Rutzinski, this court held:
[W]hen assessing whether a stop is constitutionally
reasonable, a reviewing court must balance the
interests of the individual being stopped against the
interests of the State to effectively root out crime.
Hensley, 469 U.S. at 228, 105 S.Ct. 675; McGill, 2000
WI 38, at ¶ 18, 234 Wis.2d 560, 609 N.W.2d 795;
Waldner, 206 Wis.2d at 56, 556 N.W.2d
681. . . . [W]here the allegations in the tip suggest
an imminent threat to the public safety or other
exigency that warrants immediate police
investigation. . . . the Fourth Amendment and Article
I, Section 11 do not require the police to idly stand
by in hopes that their observations reveal suspicious
behavior before the imminent threat comes to its
fruition. Rather, it may be reasonable for an officer
in such a situation to conclude that the potential for
danger caused by a delay in immediate action justifies
stopping the suspect without any further observation.
Thus, exigency can in some circumstances supplement
the reliability of an informant's tip in order to form
the basis for an investigative stop. Cf. City of
Indianapolis v. Edmond, 531 U.S. 32, ––––, 121 S.Ct.
447, 455, 148 L.Ed.2d 333 (2000) (noting that
exigencies of some scenarios likely would outweigh the
individual's right to be free from an investigative
traffic stop).
241 Wis. 2d 729, ¶26 (emphasis added). This court noted the
limited reach of J.L., explaining "the Court implicitly affirmed
that there are circumstances in which exigency can supplement——
35
No. 2020AP878-CR
or, in very extreme circumstances, possibly supplant——
the . . . reliability analysis." Id., ¶29 n.6.
¶56 Throughout our opinion in Rutzinski, this court
repeatedly emphasized that imminent danger is a factor to be
considered in determining the reasonableness of a Terry stop.
Id., ¶26 ("[E]xigency can in some circumstances supplement the
reliability of an informant's tip in order to form the basis for
an investigative stop." (citing City of Indianapolis v. Edmond,
531 U.S. 32, 42–43, 121 S. Ct. 447, 455 (2000))); id., ¶34
("[U]nlike the tip in J.L., the tip in the present case
suggested that Rutzinski posed an imminent threat to the
public's safety."); id., ¶35 ("In light of the potential for
imminent danger that drunk drivers present, the informant's
allegations suggesting that Rutzinski may have been intoxicated
supplemented the reliability of the tip, and further justified
Officer Sardina's investigative stop."); id., ¶36 ("Because
drunk driving is an extraordinary danger, we cannot adopt
Rutzinski's position that the police must dismiss allegations of
possible drunk driving when assessing whether an informant's tip
justifies a traffic stop. While such allegations cannot form
the sole basis for an investigative stop, they certainly must be
considered when examining the totality of the circumstances
surrounding particular police conduct." (emphasis added)); id.,
¶37 ("Unlike the tip in J.L., the informant's tip in this case
contained sufficient indicia of reliability and alleged a
potential imminent danger to public safety." (emphasis
36
No. 2020AP878-CR
added)).24 Far from being "unnecessary" digressions, a report of
serious criminal activity "must be considered" as part of the
reasonable suspicion analysis.
¶57 Notwithstanding this precedent, Justice Dallet fails
to acknowledge the seriousness of gunfire in a residential area,
asserting this court's "analysis places too much weight on some
of these facts, including the residential setting" and "puts too
much emphasis on the officers' reliance on ShotSpotter."25
Although Justice Dallet does not quantify the weight she would
give to these facts (if any), to suggest a shooting in a highly
24
Consideration of the nature of a reported crime is not restricted to tips involving guns;
as Chief Justice John Roberts has noted, "the especially grave and imminent dangers posed by
drunk driving" have prompted "[t]he majority of courts examining the question" to uphold
"investigative stops of allegedly drunk or erratic drivers, even when the police did not personally
witness any traffic violations before conducting the stops." Virginia v. Harris, 130 S. Ct. 10, 11
(2009) (Roberts, C.J., dissenting from denial of certiorari). In doing so, "[t]hese courts have
typically distinguished J.L.'s general rule" in part based on the "grave and imminent dangers"
drunk driving presents. Id. Notably, one of the cases Chief Justice Roberts cited for the
proposition was Rutzinski. See also Trott v. State, 249 A.3d 833, 848 (Md. 2021), cert. denied
sub nom., Trott v. Maryland, 142 S. Ct. 240 ("Unlike crimes involving possessory offenses, such
as carrying an illegal gun or possessing drugs, the crime of drunk driving poses a significant and
potentially imminent public danger."); Andrew J. Sheehan, Comment, Getting Drunk Drivers off
Illinois Roadways: Addressing the Split of Authority Regarding 911 Tips & Investigatory
Traffic Stops, 39 S. Ill. U. L.J. 537, 551 (2015) ("Arguably the most widely-accepted
justification for adopting a drunk driving exception is the very unique and imminent danger an
intoxicated person behind the wheel poses to the general public.").
Justice Dallet's Concurrence, ¶¶64, 65. Doubling down on
25
the misguided notion that gunfire in a residential area is not a
reliable indicator of criminal activity, Justice Dallet
maintains a ShotSpotter report could not affect the reasonable
suspicion analysis because even "[a] reliable tip will justify
an investigative stop only if it creates reasonable suspicion
that 'criminal activity may be afoot.'" Id., ¶71 (citing
Navarette v. California, 572 U.S. 393, 401 (2014) (quoting Terry
v. Ohio, 392 U.S. 1, 30 (1968))).
37
No. 2020AP878-CR
residential area should not be considered as part of the
totality of circumstances supporting reasonable suspicion is an
extraordinary misjudgment of the risk to the community. A
shooter is not entitled to "one free shot," (at least when that
shot signals gun violence is afoot) Justice Dallet's theory
notwithstanding. Cf. Virginia v. Harris, 130 S. Ct. 10, 12
(2009) (Roberts, C.J., dissenting from denial of certiorari)
("The effect of the rule below will be to grant drunk drivers
'one free swerve' before they can legally be pulled over by
police. It will be difficult for an officer to explain to the
family of a motorist killed by that swerve that the police had a
tip that the driver of the other car was drunk, but that they
were powerless to pull him over, even for a quick check.").
While believing a report of shots fired in a residential
neighborhood deserves less "emphasis" in the analysis, Justice
Dallet seems to give greater weight to Nimmer's furtive
movements, but she does not explain why. If Justice Dallet's
focus on Nimmer's "digging around his left side" and "turning
and walking away after seeing the police" were all the Fourth
Amendment requires for reasonable suspicion to stop a suspect,
her conception of the law could ensnare many more people in the
"dragnet" she ostensibly rejects.26
¶58 While she may deem unreasonable the decisions of the
United States Supreme Court, federal appellate courts, and this
Justice Dallet's Concurrence, ¶¶67-69. We do not mean to
26
suggest that furtive movements cannot, in some circumstances, be
highly indicative of criminal activity.
38
No. 2020AP878-CR
court regarding what is reasonable under the Fourth Amendment,
our opinion is in line with precedent and Justice Dallet's
analysis is an outlier. In Goodwin, Judge Richard Posner,
writing for a unanimous Seventh Circuit panel, explained:
[I]n Florida v. J.L., 529 U.S. 266, 273–74, 120 S.Ct.
1375, 146 L.Ed.2d 254 (2000), [the Court] said that
"we do not say, for example, that a report of a person
carrying a bomb need bear the indicia of reliability
we demand for a report of a person carrying a firearm
before the police can constitutionally conduct a
frisk." In other words, if the crime being
investigated is grave enough, the police can stop and
frisk without as much suspicion as would be required
in a less serious criminal case.
449 F.3d at 769 (emphasis added). Judge Posner interpreted J.L.
to permit a "'sliding scale' approach[.]" See id. Post-J.L.,
the Seventh Circuit, aligned with many other courts, has relied
on the inherent danger of gun violence as a factor supporting
the constitutionality of a Terry stop, including in ShotSpotter
cases. E.g., Rickmon, 952 F.3d at 883 ("We have repeatedly
emphasized in our decisions that the inherent danger of gun
violence sets shootings apart from other criminal activity."
(citation omitted)). Gun violence, obviously, is not the same
thing as mere "carriage of a gun," which is all that was
reported in J.L. 529 U.S. at 272. Although the concurrence
disregards this stark difference, it matters for purposes of the
reasonable suspicion analysis.
V. CONCLUSION
¶59 The Fourth Amendment guarantees the inherent right of
the people to be secure against unreasonable searches and
39
No. 2020AP878-CR
seizures. We recognize "the police are not infallible[.]"
Smith, 379 Wis. 2d 86, ¶36. In exercising their duty to
investigate crime, officers sometimes violate people's
constitutional rights. Id. When that happens, "it is the duty
of this court to impose consequences[.]" Id. (citation
omitted). "Likewise, when the police abide by the rules and act
reasonably, the Fourth Amendment is not violated and we must
uphold convictions." Id.¶60 This case represents a reasonable seizure. The
officers did not violate Nimmer's Fourth Amendment right. Based
on the totality of the circumstances, they reasonably suspected
Nimmer was involved in criminal activity presenting an imminent
threat to public safety. Nimmer's conviction stands.
By the Court.——The decision of the court of appeals is
reversed.
40
No. 2020AP878-CR.rfd
¶61 REBECCA FRANK DALLET, J. (concurring). I agree with
the majority/lead opinion's1 holding that the police had
particularized reasonable suspicion to stop and frisk Nimmer. I
write separately, however, because I am concerned that the
majority/lead opinion's analysis of certain facts may cause
lower courts to read our decision too broadly. I also worry
that the majority/lead opinion over-complicates its analysis by
importing Fourth Amendment principles from other contexts, even
though this case requires only a straightforward application of
Terry.2 Therefore, I respectfully concur.
¶62 In order to justify a Terry stop, the police must have
"reasonable, articulable suspicion that criminal activity is
afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
Reasonable suspicion must be founded on concrete, particularized
facts warranting suspicion of a certain individual, not
"'inchoate and unparticularized suspicion[s] or hunch[es].'"
Id. at 124 (quoting Terry, 392 U.S. at 27). We assess
reasonable suspicion in light of the totality of the
circumstances; that is, the facts officers knew at the time of
1I refer to Justice Rebecca Grassl Bradley's opinion as the
"majority/lead opinion" because a majority of the court has not
joined the opinion in its entirety. Specifically, a majority
did not join the portions of the opinion that respond to this
concurrence (majority/lead op., ¶¶48-58 & 29 n.12), and those
that contain the novel suggestion "that the quantum of suspicion
necessary to conduct an investigatory stop is lower for the type
of criminal investigation that occurred here" (majority/lead
op., ¶¶28 and 39-47). See Justice Hagedorn's concurrence, ¶74.
2 Terry v. Ohio, 392 U.S. 1 (1968).
1
No. 2020AP878-CR.rfd
the stop. See United States v. Cortez, 449 U.S. 411, 417-18
(1981).
¶63 This is what the police knew when they stopped Nimmer:
 On Saturday, June 15, 2019, they received a
ShotSpotter report at 10:06 PM indicating that four
shots may have been fired near the intersection of
21st and Townsend Streets on the North Side of
Milwaukee.
 They reached that location about one minute after they
received the ShotSpotter report.
 Nimmer was walking on the sidewalk "in very close
proximity" to that location and no one else was
present.
 After noticing their arrival, Nimmer accelerated his
pace and turned his left side away from the
approaching officer ("blading," in one officer's
words) while "digging around his left side with his
left hand."3
3 These facts, with the exception of Nimmer digging around
his left side, are taken from the circuit court's findings of
fact after a suppression hearing, and were not challenged on
appeal. The circuit court did not make a finding that Nimmer
was digging around his left side. Nonetheless, it was a part of
one of the officers' uncontroverted testimony at the suppression
hearing, and is therefore appropriate to consider in the
reasonable-suspicion analysis. See State v. McGill, 2000 WI 38,
¶24, 234 Wis. 2d 560, 609 N.W.2d 795.
It appears from testimony at the suppression hearing that
there is body-camera footage of the officers' encounter with
Nimmer. Although this footage might have been useful in
determining what happened, it was not introduced at the
suppression hearing or otherwise made a part of the record.
2
No. 2020AP878-CR.rfd
Relying on these facts, officers stopped Nimmer, searched him,
and found a handgun in his left waistband.
¶64 Although the majority/lead opinion correctly concludes
that officers had particularized reasonable suspicion to stop
Nimmer, its analysis places too much weight on some of these
facts, including the residential setting. To be sure, the
residential setting is part of the totality of the circumstances
informing our reasonable-suspicion analysis. But the
possibility that a crime has been committed in a certain
neighborhood doesn't cast suspicion over everyone there. See
United States v. Bohman, 683 F.3d 861, 864 (7th Cir. 2012) (the
"mere suspicion of illegal activity at a particular place is not
enough to transfer that suspicion to anyone" nearby). Moreover,
there is nothing especially suspicious about finding someone
alone on a residential street just after 10:00 PM on a Saturday
night in the summertime.4 See id. In this respect, Nimmer's
case is unlike many of those cited by the majority/lead opinion,
where courts held that the police had reasonable suspicion to
stop the only people they found at the scene of reported gunfire
late at night, in an alleyway or dead-end street where shots
were heard recently, or both. See, e.g., United States v.
Jones, 1 F.4th 50, 51 (D.C. Cir. 2021) (reasonable suspicion to
stop the only person on the street walking quickly away from the
location of a late-night ShotSpotter alert and reaching for his
waistband); United States v. Rickmon, 952 F.3d 876, 882-84 (7th
Indeed, although the officers didn't know it at the time,
4
Nimmer was walking near his house when the officers arrived.
3
No. 2020AP878-CR.rfd
Cir. 2020) (reasonable suspicion to stop the only car driving
down a two-block dead-end street away from the location of two
ShotSpotter reports and two 9-1-1 calls at 4:45 AM); Funderburk
v. United States, 260 A.3d 652, 660-61 (D.C. 2021) (reasonable
suspicion to stop four people in an alleyway at 2:20 AM on a
weeknight after officers heard gunshots). Thus, even though the
officers didn't have to rule out all innocent explanations
before stopping Nimmer, they also could not assume that Nimmer
was responsible for the reported gunshots simply because he was
the only person they saw when they showed up in his
neighborhood. See State v. Genous, 2021 WI 50, ¶8, 397
Wis. 2d 293, 961 N.W.2d 41.
¶65 The majority/lead opinion similarly puts too much
emphasis on the officers' reliance on ShotSpotter, stressing
both Nimmer's counsel's concession that it is reliable and the
officers' quick response to the system's report. Majority/lead
op., ¶¶4, 29-30. But when it comes to assessing whether the
police had reasonable suspicion that a particular person may
4
No. 2020AP878-CR.rfd
have fired the shots, ShotSpotter has limitations.5 A
ShotSpotter report doesn't tell the police whether there is one
shooter or several, what those individuals look like, what they
are wearing, whether they remained on the scene or fled
immediately, whether they got into a car or left on foot, or
even if they were indoors or outdoors. All a ShotSpotter report
tells the police is that shots may have been fired near a
particular place; it doesn't provide reasonable suspicion that
any particular person fired them. See Wardlow, 528 U.S. at 124.
Obviously, this is not to say that the police shouldn't swiftly
investigate a ShotSpotter alert in a residential neighborhood;
only that they do so with full knowledge of the system's
limitations.
Despite counsel's concession that ShotSpotter is reliable,
5
there are good reasons to doubt its reliability and to be
concerned about the other Fourth Amendment issues raised by the
technology. For example, an exhaustive review of the Chicago
Police Department's use of ShotSpotter revealed that in more
than 90% of cases where the police responded to a ShotSpotter
report, they found no evidence of a gun-related crime. See City
of Chicago Office of Inspector General, The Chicago Police
Department's Use of ShotSpotter Technology, at 2-3 (Aug. 2021),
available at https://igchicago.org/wp-content/uploads/2021/08/Ch
icago-Police-Departments-Use-of-ShotSpotter-Technology.pdf.
Additionally, the report found that officers were, in some
cases, using the total number of ShotSpotter reports in a given
area as a reason to conduct more investigatory stops and pat-
downs. See id. at 19. Another study found that ShotSpotter has
no significant impact in reducing gun crimes. See generally
Mitchell L. Doucette, et al., Impact of ShotSpotter Technology
on Firearm Homicides and Arrests Among Large Metropolitan
Counties: A Longitudinal Analysis, 1999–2016, 98 J. Urban Health
609 (2021). Nevertheless, because Nimmer's counsel did not
challenge ShotSpotter's reliability or raise any of these other
issues, I leave them for another day.
5
No. 2020AP878-CR.rfd
¶66 The majority/lead opinion's analysis of the officers'
response time also rests on a consequential assumption. The
record doesn't reveal how much time passed between the time
shots were fired and when the officers arrived on the scene;
only how quickly the officers responded after receiving the
ShotSpotter alert from dispatch. Before a ShotSpotter report
reaches the officers, a person at ShotSpotter's offices in
California listens to a recording flagged by the system and
decides if it sounds like gunshots. Once that person confirms
the sound is likely gunfire, then police dispatch is alerted,
which in turn alerts nearby officers. Thus, even though
officers arrived at 21st and Townsend one minute after receiving
the report from a dispatcher, that does not mean they arrived
within one minute of shots being fired. This is not a trivial
issue; it may be the difference between whether or not an
officer's suspicion of a person on the scene is particularized
and reasonable.6
¶67 No matter how accurate ShotSpotter is or how quickly
officers respond to a ShotSpotter alert, it cannot be used as a
dragnet to justify warrantless searches of everyone the police
This timing difference is what distinguishes Nimmer's case
6
from those relied on by the majority/lead opinion in which
officers responded within seconds to the sound of gunshots they
heard. See, e.g., State v. Hairston, 126 N.E.3d 1132, 1136-37
(Ohio 2019) (reasonable suspicion to stop the only person
officers saw near a school after hearing shots 30 to 60 seconds
before); State v. Tally-Clayborne, No. 2016AP1912-CR,
unpublished slip op., ¶10 (Wis. Ct. App. Oct. 17, 2017)
(reasonable suspicion to stop a person reaching for his
waistband and walking away from an area where officers heard
shooting less than thirty seconds before).
6
No. 2020AP878-CR.rfd
find near a recently reported gunshot.7 See Bohman, 683 F.3d
at 864 (explaining that suspecting a crime occurred in a
particular place does not mean that everyone leaving that place
is suspicious). At its best, ShotSpotter gives officers only a
reason to go to a particular place, but it's what they find
there that is most relevant to the analysis of whether they had
particularized, reasonable suspicion. See Genous, 397
Wis. 2d 293, ¶8 ("Reasonable suspicion must be supported by
specific and articulable facts.").
¶68 Collectively, the facts the officers observed,
together with the ShotSpotter alert, are sufficient to establish
reasonable suspicion——even though each fact alone would not
clear that bar. See id., ¶9. When the officers arrived at the
location of the ShotSpotter alert, Nimmer saw their marked squad
car and started walking faster. When one of the officers got
out of the car and started to walk toward him, Nimmer turned the
left side of his body away and started digging around his left
7 This is why the circuit court was wrong to suggest that
"anyone that [the police] encountered within a minute or two of
receiving the [ShotSpotter] alert should have been investigated
if they were within a couple of blocks of the alleged shots
being fired." The U.S. Supreme Court has emphasized, however,
that simply being present "in an area of expected criminal
activity, standing alone, is not enough to support a reasonable,
particularized suspicion that the person is committing a crime."
Wardlow, 528 U.S. at 124. The reason for that is simple:
Knowledge that someone committed a crime in a particular place
is not a particularized reason to suspect that everyone at or
near that place committed a crime. To conclude otherwise would
undermine the central purpose of the Fourth Amendment, which is
prohibiting general warrants that grant the police the
"unchecked power" to search anywhere for anyone or any thing.
See State ex rel. Two Unnamed Petitioners v. Peterson, 2015
WI 85, ¶90, 363 Wis. 2d 1, 866 N.W.2d 165.
7
No. 2020AP878-CR.rfd
side with his left hand. As the court of appeals rightly
explained, turning and walking away after seeing the police is
not enough to give rise to reasonable suspicion. See State v.
Nimmer, No. 2020AP878-CR, unpublished slip op., ¶¶16-17, 19-20
(Wis. Ct. App. Dec. 15, 2020). Absent reasonable suspicion or a
lawful order to the contrary, people are free to walk (even
quickly) away from the police officers. See State v.
Young, 2006 WI 98, ¶73, 294 Wis. 2d 1, 717 N.W.2d 729. And law-
abiding citizens may not want to interact with the police for
all kinds of reasons. The fact that Nimmer turned his body away
from the officers does not make his walking away suspicious.
After all, "how does a person walk away from another (as
[Nimmer] had the right to do) without turning his . . . body to
some degree?" See State v. Pugh, 2013 WI App 12, ¶12, 345
Wis. 2d 832, 826 N.W.2d 418. Calling Nimmer's turn "blading,"
as an officer did in this case, "adds nothing to the calculus
except a false patina of objectivity." Id.¶69 The totality of the circumstances also includes the
fact, undisputed yet unaddressed by the court of appeals, that
while Nimmer was walking away from the police and turning his
body, he was also "digging" around his left side. Of course,
"many folks, most innocent of any nefarious
purpose, . . . occasionally pat the outside of their clothing to
ensure that they have not lost their possessions." State v.
Gordon, 2014 WI App 44, ¶17, 353 Wis. 2d 468, 846 N.W.2d 483.
But an isolated pat of the pants pocket or touch of the
waistband is not the same thing as "digging around" one's left
8
No. 2020AP878-CR.rfd
side while walking quickly away from the police in a place where
officers had reason to believe shots were recently fired. Cf.
State v. Lewis, No. 2017AP234-CR, unpublished slip op., ¶¶7-8
(Wis. Ct. App. July 25, 2017) (concluding that there was no
reasonable suspicion to stop someone who "was not looking over
his shoulder for police" and did not match the description of a
suspect just because he was "walking in a high crime area"
shortly after a report of shots fired and "touched his
waistband"). Thus, despite my differences with parts of the
majority/lead opinion's analysis, I agree that the totality of
these circumstances meets the Terry threshold.
¶70 That straightforward application of Terry is all
that's needed to resolve this case. The majority/lead opinion,
however, unnecessarily goes further, discussing how the type of
crime being investigated may affect the Terry analysis. At
times, that discussion seems to endorse a "sliding-scale
approach" to reasonable suspicion that the Seventh Circuit
cobbled together from Fourth Amendment principles in dissimilar
contexts, such as traffic stops, dog-sniff drug searches, and
highway roadblocks. See, e.g., United States v. Goodwin, 449
F.3d 766, 769-70 (7th Cir. 2006). The U.S. Supreme Court has
admonished courts against taking such a mix-and-match approach,
even when applying general Fourth Amendment principles. See
Illinois v. Lidster, 540 U.S. 419, 424 (2004). And we have
never adopted the Seventh Circuit's approach, likely because it
is an awkward fit with Terry. After all, Terry already
"responds to" the dangers of firearms and "the serious threat
9
No. 2020AP878-CR.rfd
that armed criminals pose to public safety" by authorizing
limited searches and seizures upon less than probable cause.
See Florida v. J.L., 529 U.S. 266, 272 (2000).
¶71 The majority/lead opinion gets similarly sidetracked
by focusing on cases that have relaxed the usual corroboration
requirements for anonymous tips when the police are responding
to a potential emergency. See majority/lead op., ¶¶39, 53-58 &
n.24-25. But corroboration is not an issue here, and even if it
were, the same Terry reasonable-suspicion standard would apply.
See Navarette v. California, 572 U.S. 393, 401 (2014) ("[A]
reliable tip will justify an investigative stop only if it
creates reasonable suspicion that 'criminal activity may be
afoot.'" (quoting Terry, 392 U.S. at 30)).
¶72 Because a standard Terry analysis resolves this case,
I would stop there. Accordingly, I concur with the
majority/lead opinion's ultimate conclusion that the officers
had reasonable suspicion to stop Nimmer. I emphasize, though,
that the totality of the circumstances in every case will be
unique and that lower courts should not give too much weight to
any individual fact.
¶73 I am authorized to state that Justices ANN WALSH
BRADLEY and JILL J. KAROFSKY join this concurrence.
10
No. 2020AP878-CR.bh
¶74 BRIAN HAGEDORN, J. (concurring). I agree with the
court's determination that reasonable suspicion supported the
stop. However, portions of the court's opinion go farther than
necessary. In particular, the opinion suggests——for what
appears to be the first time in the Wisconsin reports——that the
quantum of suspicion necessary to conduct an investigatory stop
is lower for the type of criminal investigation that occurred
here. I do not believe this issue was developed in a
sufficiently meaningful way for me to opine on it, and resolving
it is unnecessary to decide this case. Therefore, I concur and
join the court's opinion only in part.1
1 I join the opinion except for ¶28, ¶29 n.12, and ¶¶39-58.
1
No. 2020AP878-CR.bh
1