Suspect's Touching Pants Pocket Insufficient for Pat Down Search

Wisconsin case law summary by Attorney Richard Clem: Criminal law, Terry stop.

State of Wisconsin v. Patrick E. Gordon. WI criminal law, Terry stop

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On the evening when Patrick E. Gordon was arrested, Milwaukee police officers Sean Mahnke, Richard Ticcioni, and Mark Dillman were driving on Keefe Avenue in Milwaukee approaching a stoplight in their marked squad car. Mahnke was driving, Dillman was in the back, and Ticcioni was in the passenger seat. One of the officers described the area as well lit, but one of the most dangerous areas of the district. Two days earlier, someone had been shot in her car at that location.

One of Ticcioni's duties in the passenger seat was to watch for individuals carrying guns illegally. One of the things he was watching for was the "security adjustment." He later described this as a "conscious or unconscious movement that an individual does when they're confronted by law enforcement when they're typically carrying a weapon. What it is is it's that individual either placing a hand over a pocket or in the waistband, where that gun is, just to make sure that the weapon is still there, that it's secured."

He also noted that many people perform "security adjustments" to make sure things such as wallets or phones are safely in their pockets. He noted that in the case of people with illegal guns, the "security check" is often performed when the person makes eye contact with police.

Ticcioni testified that when Gordon saw him, he did a "security check" to his left front pants pocket. This was a one to two second touch to the outside of the pocket with his palm. The officer noted that Gordon looked nervous, and looked too young to have a legal concealed carry permit. He told the officer driving to "hold up. We're gonna talk to these guys here." The officers then stopped and frisked Gordon and his two companions. In Gordon's pocket, they found a small .22 caliber pistol, 1.78 grams of crack cocaine packaged in 22 baggies, and 4.18 grams of marijuana in five baggies. Gordon was arrested and charged in Milwaukee County Circuit Court.

Gordon moved to suppress the evidence found during the stop. He argued that the stop was not constitutional under the U.S. Supreme Court's ruling in Terry v. Ohio, 392 U.S. 1 (1968). The Circuit Court, Judge Clare L. Fiorenza, disagreed and allowed the evidence. Gordon subsequently pleaded guilty, but preserved the issue for later appeal. The trial court held that the officers had reasonable suspicion to make the stop based upon three factors. First of all, the stop took place in a high crime area. Second, Gordon and his friends recognized that the police were present. Finally, Gordon patted the outside of his pants pocket when he saw the police. For these reasons, the trial court held that the evidence gained from the pat down was admissible. After his conviction, Gordon appealed this ruling to the Wisconsin Court of Appeals.

In a decision released on March 18, 2014, and slated for publication, the Court of Appeals, in an opinion authored by Judge Fine and concurred to by Judges Curley and Brennan, reversed. The appeals court held that the conviction must be reversed because there was insufficient reasonable suspicion under Terry. The Court of Appeals first examined Terry and later cases construing it. Then, it examined the three factors relied upon by the trial court.

The court first noted that the defendant's presence in a high crime area added nothing to the state's case. The court noted that "many, many folks, innocent of any crime, are by circumstances forced to live in areas that are not safe--either for themselves or their loved ones." The court noted that if presence in a high crime area were a significant factor, then whole parts of communities would be condemned to police intrusion not experienced in other parts of town. Instead, the facts must support a particularized suspicion that a particular person is committing a crime.

Second, the court held that mere recognition of police presence was not a significant factor. Looking at a police car without more (such as flight or attempted flight) does not create reasonable suspicion.

Finally, the court looked at Gordon's conduct in touching his pants pocket. The court noted that many innocent people may occasionally pat the outside of their clothing to make sure that nothing is missing. In fact, the court noted that this makes even more sense if someone is in a high crime area. And the fact that this was being done while the person saw a police car did not support the individualized suspicion necessary.

For these reasons, the Court of Appeals reversed the Circuit Court's judgment.

No. 2013AP1878-CR (Wis. Ct. App. Mar. 18, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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