WI: Suspicion of legal drug activity alone did not justify handcuffing

Suspicion of illegal drug activity alone does not justify handcuffing the defendant. The fact that drugs and weapons may go hand in hand in some situations does not elevate this situation to justifying handcuffing. State v. Pickens, 2010 WI App 5, 323 Wis. 2d 226, 779 N.W.2d 1 (2009):

P31 Notably, the State does not develop an argument that the suspicion of illegal drug activity alone justified handcuffing Pickens. In the absence of full briefing, we choose not to decide the issue. We note, however, that our research indicates that we would likely reject such an argument. Although courts have frequently observed that illegal drugs and weapons go hand in hand, reasonable suspicion of drug activity is not, by itself, generally a sufficient indicator of dangerousness to justify the level of restraint police imposed on Pickens. See United States v. Acosta-Colon, 157 F.3d 9, 19 (1st Cir. 1998) (generalized reasonable suspicion related to drug trafficking not enough to establish that handcuffing was reasonably measured response to actual safety concerns); United States v. Melendez-Garcia, 28 F.3d 1046, 1052-53 (10th Cir. 1994) (acknowledging that “[d]rugs and guns and violence often go together,” but concluding that “the naked fact that drugs are suspected will not support a per se justification for use of … handcuffs in a Terry stop”).

P32 The use of handcuffs or other restrictive measures does not necessarily render a temporary detention unreasonable, nor does it necessarily convert that detention into an arrest. See State v. Vorburger, 2002 WI 105, P64, 255 Wis. 2d 537, 648 N.W.2d 829. However, as we have explained, such measures generally are reasonable only when particular facts justify the measure for officer safety or similar concerns. See 4 WAYNE R. LAFAVE, SEARCH & SEIZURE 9.2(d), at 310-13 (4th ed. 2004).

P33 In sum, we conclude that the State failed to show that the level of restraint used to detain Pickens was reasonable because the State points to no specific, articulable facts that justify handcuffing and securing Pickens in a squad car. In the absence of any other developed argument supporting admission of evidence obtained from Pickens in the parking lot, we conclude that that evidence must be suppressed. 5

5 A number of courts have concluded that police exceeded the permissible scope of a temporary detention in circumstances that we find at least as compelling as those here. See United States v. Richardson, 949 F.2d 851, 856-58 (6th Cir. 1991) (suspect was approached by four police officers, informed he was the subject of a drug investigation, and briefly questioned; after he would not consent to a search, the valid stop became unlawful when police proceeded to secure him in back of police car and continue questioning); United States v. Neatherlin, 66 F. Supp. 2d 1157, 1162 (D. Mont. 1999) (when officer had reasonable suspicion of illegal border crossing and made stop in remote area in the middle of the night, there were reasonable concerns for officer safety, but handcuffing suspect and placing him in officer’s vehicle nonetheless exceeded the boundaries of investigatory detention), aff’d, 243 F.3d 551 (9th Cir. 2000) (Nos. 00-30007 and 00-30020); Cocke v. State, 889 So. 2d 132, 133-35 (Fla. Dist. Ct. App. 2004) (leaving suspect in handcuffs and placing him in squad car for thirty to forty-five minutes transformed stop into de facto arrest when police had found no weapons after conducting pat down, suspect did not resist or act belligerent, and officer expressed no other reason to be concerned for safety); State v. Pannell, 127 Idaho 420, 901 P.2d 1321, 1325-26 (Idaho 1995) (even when there was “some evidence” that suspect “might have posed a threat to the officer’s safety,” handcuffing suspect and placing him in patrol car exceeded level of force justified for an investigatory detention when pat down revealed no weapons and suspect was fully compliant at all times).