from a judgment of the circuit court for Kenosha County No.
2014CF1070: CHAD G. KERKMAN, Judge. Affirmed.
Neubauer, C.J., Gundrum and Hagedorn, JJ.
This case concerns whether an officer's frisk of a
citizen was supported by reasonable suspicion. Kavin Nesbit
and a friend were on 1-94 in Kenosha County when they ran out
of gas. With a red gas can in hand, they were walking along
the shoulder of the expressway when State Trooper David
Fowles activated his lights and pulled up behind them. Fowles
later stated he pulled up out of concern for their safety and
because walking along the highway is illegal.
After what both parties concede was "perfectly
normal" conversation, Fowles told the men he would give
them a ride to the gas station and back-an option that was
more of a command than choice given he informed them walking
on the expressway is illegal. Before the men entered the
squad car, Fowles asked each if they had any weapons.
Nesbit's friend indicated he had no weapons, and his
demeanor remained unchanged following the question. Nesbit,
however-who had earlier been talking, pointing, and otherwise
unremarkable- "all of a sudden" became "very
deflated" and shook his head slightly in the negative.
Fowles represented that it is department policy to frisk
anyone who gets into a squad car. Thus, he planned to search
both individuals no matter how they answered the questions.
However, in light of Nesbit's noticeable change of
attitude, Fowles chose to search him first. He ordered Nesbit
to stand between him and his friend to mitigate any potential
danger. The frisk revealed that Nesbit had a loaded gun on
his left hip. Nesbit was later charged with one count of
felon in possession of a firearm and one count of possession
of tetrahydrocannabinol, second offense-for marijuana he
later admitted he had on his person after being transported
to the Kenosha County Jail.
Nesbit moved to suppress the fruits of the frisk on the
grounds that it was not supported by reasonable suspicion.
The circuit court denied the motion, and Nesbit pled guilty
to the firearm possession count with the marijuana possession
count dismissed as part of the agreement. We hold that under
the unique circumstances of this case, the officer had
reasonable suspicion that Nesbit was armed and dangerous.
Therefore, we affirm Nesbit's conviction. Additional
facts are presented as relevant below.
The Fourth Amendment of the United States Constitution
provides in relevant part, "The right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be
violated." Article 1, section 11 of the Wisconsin
Constitution has been interpreted to provide identical
protections. State v. Dearborn, 2010 WI 84,
¶14, 327 Wis.2d 252, 786 N.W.2d 97. Our review of a
challenge to the constitutionality of a search is de novo,
but we rest our legal review on the circuit court's
factual findings unless they are clearly erroneous.
Nesbit does not challenge Fowles' decision to stop Nesbit
and his friend or the invasiveness of the frisk itself.
Nesbit's challenge is limited to whether the decision to
frisk itself complied with the Fourth Amendment. A protective
frisk to search for weapons is considered reasonable under
the Fourth Amendment if it is supported by "reasonable
suspicion that a person may be armed and dangerous to the
officer or others." State v. Kyles, 2004 WI 15,
¶7, 269 Wis.2d 1, 675 N.W.2d 449. Reasonable suspicion
is an objective inquiry rather than a subjective one.
Id., ¶10. Thus, the question is not whether the
officer himself believed he or others may be in danger
(although this is a relevant consideration), but whether a
reasonably prudent officer '"would be warranted in
the belief that his safety and that of others was in
danger' because the individual may be armed with a weapon
and dangerous." Id., ¶13 (citation
omitted); see also State v. Sykes, 2005 WI 48,
¶33, 279 Wis.2d 742, 695 N.W.2d 277');">695 N.W.2d 277 (holding that
"the subjective intent of the officer (except for the
facts that he knows) is not determinative of whether the
search violates constitutional principles that prohibit
unreasonable searches and seizures"). More than a hunch
is necessary; a search must be supported by "specific
and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the
intrusion." Kyles, 269 Wis.2d 1, ¶9
(quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). It
is the State's burden to show the search complied with
the constitution. See State v. Taylor, 60 Wis.2d
506, 519, 210 N.W.2d 873 (1973) ("Where a violation of
the Fourth Amendment right against an unreasonable search and
seizure is asserted, the burden of proof upon the motion to
suppress is upon the state.").
Nesbit maintains that the protective pat down was conducted
pursuant to department policy and not any particularized fear
of safety. He specifically relies on our decision in
State v. Hart, 2001 WI.App. 283, ¶¶17-18,
249 Wis.2d 329, 639 N.W.2d 213');">639 N.W.2d 213, overruled on other
grounds by Sykes, 279 Wis.2d 742, ¶33,
holding that police transport alone is not a blanket
exception to the requirement that reasonable suspicion
support a decision to frisk for weapons. Thus, Nesbit
maintains that Fowles needed an objectively reasonable
suspicion to conduct a frisk for weapons. He insists that the
facts here are wholly innocent and do not support reasonable
suspicion. Walking on the side of a road with a gas can is
not suspicious according to Nesbit, and Fowles never
testified he was concerned for his safety. Nesbit further
notes that it was light outside, and the encounter occurred
on the expressway-not a high-crime area. The interaction
itself was uneventful and unsuspicious, with no reason to
think anyone should be concerned for their safety. Nesbit
dismisses his change of countenance and the fact that there
were two individuals to only one officer as insufficient to
constitute reasonable suspicion that he might be armed and
The State emphasizes that the test is objective; Fowles need
not testify he feared for his safety. And under that test, a
single unprotected law enforcement officer transporting two
individuals, one of whom had a sudden change in demeanor when
asked about weapons, would have reason to believe his own
safety was at risk.
As an initial matter, "we are not bound by an
officer's subjective reasons for a search."
State v. Mata, 230 Wis.2d 567, 574, 602 N.W.2d 158
(Ct. App. 1999). Thus, the fact that the search was going to
happen anyway pursuant to department policy is not
controlling. Rather, the question is whether the search
itself was constitutionally permissible as an objective
matter, not whether the officer was subjectively proceeding
under a constitutionally permissible theory.
That said, this is a close case. Contrary to the State's
suggestion, we find nothing suspicious about two men walking
down the expressway with a gas can (illegal though it may
be). Until the conversation turned to getting in the squad
car, nothing was out of the ordinary or concerning.
Essentially, this case comes down to ...