State v. James Timothy Genous

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 28, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP435-CR Cir. Ct. No. 2016CF3891

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMES TIMOTHY GENOUS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee County:
DENNIS R. CIMPL, Judge. Reversed.

Before Brash, P.J., Dugan and Donald, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP435-CR

¶1 PER CURIAM. James Timothy Genous appeals a judgment of
conviction, following a guilty plea, to one count of being a felon in possession of a
firearm. Genous contends that the evidence against him was obtained as a result of
an unconstitutional traffic stop and that the trial court erred in denying his motion
to suppress that evidence. Because we conclude that there was no reasonable
suspicion to stop Genous, we conclude that the trial court should have granted
Genous’s motion to suppress. Accordingly, we reverse the judgment of conviction.

BACKGROUND

¶2 On September 1, 2016, Genous was charged with one count of being
a felon in possession of a firearm. According to the criminal complaint, West Allis
Police Officer Adam Stikl initiated a traffic stop on August 28, 2016, at 3:36 a.m.,
after noticing a vehicle parked outside of a house known to be occupied by a heroin
user. The complaint states that the driver of the vehicle, subsequently identified as
Genous, “appeared to make a transaction[.]” Police Officer Bernie Molthen also
responded to the stop and observed a black handgun under the driver’s seat. Genous
was subsequently arrested and charged.

¶3 Genous filed a motion to suppress the evidence, arguing that the
evidence was obtained as a result of an illegal seizure. Specifically, Genous argued
that there was no reasonable suspicion to stop his car. Genous argued that West
Allis police stopped him based on a brief interaction with a woman suspected to be
a drug user, but did not witness an exchange of any sort.1

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Genous’s motion also argued that West Allis police exceeded the permissible scope of
the stop by ordering Genous out of the car and by ordering him to remove his shoes and socks. The
motion further alleged that police lacked probable cause to search Genous’s vehicle by opening the
car door. Because we conclude that police lacked reasonable suspicion to stop Genous’s car, we
need not address Genous’s subsequent arguments.

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No. 2019AP435-CR

¶4 At a hearing on the motion, Stikl testified that on August 28, 2016, he
was on patrol in an unmarked squad car when he noticed a legally parked black
sedan in front of a residence that was running and had its headlights on. Stikl stated
that he turned the headlights of the squad car off and drove about a half a block
closer to the parked vehicle. Shortly thereafter, Stikl noticed that the driver of the
sedan—Genous—turned off the headlights of his vehicle. A few seconds later a
female came out of a house, entered the front passenger side of the sedan, and
remained in the vehicle for about fifteen to twenty seconds. She then exited the
sedan and returned to the home. Stikl testified that he believed the woman to be a
known drug user, K.S., who had multiple interactions with the West Allis police.
Stikl’s belief was based on a West Allis Police Department email describing K.S.,
stating that she lived at that particular address and was a known drug user. The
email instructed officers not to work with K.S., as she was known to continue using
drugs. The email also provided a physical description of K.S., which Stikl stated
matched his observation of the woman. Stikl stated that he assumed the parties were
engaged in a drug transaction because, based on his “training and experience,” “a
lot of … dealers … meet their clients at their residence or a different location and
then drive back to their … home.” Stikl also stated that because Genous’s sedan
was parked in front of the home of a known drug user in a high drug trafficking
area, the parties engaged in a brief interaction inside of the sedan, and the female
matched the description of a known drug user, he was concerned that a drug
transaction was underway. Stikl radioed for backup, informing other officers of his
observations and notifying them that he was going to conduct a traffic stop.

¶5 Stikl further testified that after the woman—later confirmed to be
K.S.—returned to her home, Genous began to drive away, at which point Stikl began
to follow him. Prior to stopping the sedan, Stikl ran the vehicle’s license plate and

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No. 2019AP435-CR

discovered that it was registered to a person who lived in the City of Milwaukee.
Stikl stated that he had no information about a black sedan being used to transport
drugs to that area, nor was Stikl aware of a black sedan belonging to a known drug
dealer or drug user.

¶6 Stikl further testified that when he initiated the traffic stop, Genous
pulled over right away. After Stikl made contact with Genous, he told Stikl that he
went to meet his mistress; however, she failed to show up. When Stikl told him that
he had seen a female enter his car, Genous acknowledged that a woman with K.S.’s
first name had, in fact, entered his vehicle. He explained that the woman wanted
money from him, but left when Genous did not give it to her.

¶7 Stikl stated that when he was speaking with Genous, he observed
multiple cell phones, hand sanitizer, and cigar wrappers in the vehicle. Stikl stated
that “[i]t’s common knowledge drugs dealers actually conceal narcotics within their
anal area. And what they do is they use the hand sanitizer after removing that stuff
to clean their hands.” He also noted that cigar wrappers can be used to smoke
marijuana by rolling the marijuana in the wrapper, which is called a “blunt.”

¶8 Stikl testified that Officer Molthen and another officer arrived on the
scene. Stikl stated that one of the officers notified him that Genous made “furtive
movements” by “using his hands to go underneath the seat,” prompting one of the
officers to ask Genous to exit his vehicle. Stikl told Genous to sit on a curb and
ordered Genous to remove his shoes and socks. Molthen then told Stikl that he
noticed a gun in plain view inside the vehicle. Stikl testified that no drugs were
found either in the vehicle or on Genous’s person. Stikl further stated that Genous
was cooperative. Stikl admitted that he did not know how many people actually
resided at the residence at issue, nor had he seen a picture of K.S. Stikl stated that

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No. 2019AP435-CR

he relied primarily on the address and the physical description contained in the
police department email.

¶9 Molthen testified that when he arrived as backup, he noticed Genous
“dipping his right shoulder down like he was reaching for something underneath his
seat or trying to place something underneath the seat.” Molthen stated that he
alerted the other officers, Genous was removed from the vehicle, and then Molthen
peered into the vehicle and saw the handle of a firearm sticking out from under the
driver’s seat.

¶10 The trial court denied Genous’s motion, finding that under the totality
of the circumstances, the officers had reasonable suspicion to stop Genous.
Specifically, the court noted that: (1) Genous was in a high drug trafficking area;
(2) there was short-term contact between Genous and a known drug user; (3) the
time was 3:30 a.m.; and (4) Genous’s vehicle was “suspiciously running with its
lights on and then turns its lights off and turns the car off,” when K.S. ran out of the
house, into the vehicle, and then back into the house.

¶11 Genous subsequently pled guilty to being a felon in possession of a
firearm. The trial court sentenced him to one year of initial confinement and one
year of extended supervision.

DISCUSSION

¶12 When reviewing a trial court’s ruling on a suppression motion, we will
uphold its factual findings unless they are clearly erroneous. See State v. Roberts,
196 Wis. 2d 445, 452, 538 N.W.2d 825 (Ct. App. 1995). However, whether a stop
meets constitutional and statutory standards is a question of law, which we review
de novo. See State v. Krier, 165 Wis. 2d 673, 676, 478 N.W.2d 63 (Ct. App. 1991).

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No. 2019AP435-CR

¶13 The Fourth Amendment to the United States Constitution and article I,
section 11 of the Wisconsin Constitution protect an individual’s right to be free from
unreasonable searches and seizures. State v. Young, 2006 WI 98, ¶18, 294 Wis. 2d
1, 717 N.W.2d 729. However, police may “stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v.
Ohio, 392 U.S. 1, 30 (1968)). The Fourth Amendment’s protections require that
police have more than an “inchoate and unparticularized suspicion or ‘hunch[.]’”
Terry, 392 U.S. at 27. “[W]hat constitutes reasonable suspicion is a common sense
test: under all the facts and circumstances present, what would a reasonable police
officer reasonably suspect in light of his or her training and experience.” State v.
Young, 212 Wis. 2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997).

¶14 The State asserts that under the totality of the circumstances, the
investigatory stop was reasonable. Genous contends that the police lacked
reasonable suspicion to believe that he was engaged in a drug transaction or any
other criminal activity. Genous argues that none of the facts relied upon by Stikl,
either individually or cumulatively, were sufficient to constitute a reasonable
suspicion that criminal activity was afoot. We agree.

¶15 In reviewing the record, it is clear that West Allis police placed heavy
emphasis on Genous’s brief interaction with K.S., as well as the location of the
interaction, as the basis for the investigatory stop. We addressed a similar factual
situation in Young, 212 Wis. 2d 417. In that case, we held that a person’s presence
in a high drug trafficking area, together with information conveyed from one police
officer to another that the defendant had had a “short-term contact” with another
individual, were not sufficient to constitute reasonable suspicion of criminal activity

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No. 2019AP435-CR

justifying an investigative stop, despite the officer’s experience that drug
transactions in that neighborhood often took place on the street during brief
meetings. See id. at 429-30. We noted those factors did not constitute
“particularized information concerning Young’s conduct and ... describe[d] large
numbers of innocent persons in the neighborhood.” See id. at 433. We held that
without more, an individual’s presence in a known drug trafficking area, an officer’s
observation of a brief meeting between the individual and another man on the street,
and the officer’s experience that drug deals often occur in brief on-street meetings,
did not create a reasonable suspicion to justify an investigatory stop. See id.

¶16 Here, we are similarly unable to discern the required reasonable
suspicion necessary to justify the investigative stop at issue. Stikl testified that
Genous’s short interaction with a known drug user (K.S.), outside of that known
drug user’s home, within a high drug trafficking neighborhood, led him to believe
that a drug transaction was taking place. None of these facts, either individually or
in totality, give rise to reasonable suspicion. At the time of the stop, Stikl was
dependent upon a police department email containing a physical description of K.S.
Stikl had neither seen a picture of K.S., nor was he aware of whether K.S. was the
only resident of that home. Stikl did not see what occurred when K.S. was inside
of Genous’s vehicle. He did not see an exchange of money or goods, he did not see
K.S. enter the car with anything in her hands, and he did not see K.S. emerge from
the car holding anything. Stikl simply saw a woman enter Genous’s vehicle, remain
in there for about fifteen to twenty seconds, exit the vehicle, and go back into her
house. Applying the principles we articulated in Young, we conclude that Genous’s
brief encounter with K.S. does not support a reasonable inference that the woman
entered Genous’s vehicle for the purpose of buying or selling illegal drugs.

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No. 2019AP435-CR

¶17 The fact that Genous’s encounter with K.S. took place early in the
morning in a known drug trafficking neighborhood does not give rise to reasonable
suspicion. Stikl testified that drug transactions do not only occur at certain hours,
and we have previously rejected the notion that drug transactions are more likely to
occur in the middle of the night. See State v. Betow, 226 Wis. 2d 90, 96, 593 N.W.2d
499 (Ct. App. 1999) (noting that case law discussing reasonable suspicion does not
stand for “the proposition that drugs are more likely to be present in a car at night
than at any other time of day”). Moreover, the fact that Genous was sitting in a
running vehicle and turned the headlights off is inconsequential to our analysis. In
short, we conclude that Stikl stopped Genous based on a “hunch.”

¶18 Because we conclude that police lacked the requisite reasonable
suspicion to conduct the investigatory stop at issue, we need not address Genous’s
arguments regarding whether the officers exceeded the permissible scope of the
stop, and whether the officers lacked probable cause to open Genous’s car door. See
State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (stating
that an appellate court should decide cases on the narrowest possible grounds).

¶19 For the foregoing reasons, we reverse the judgment of conviction.

By the Court.—Judgment reversed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2017-18).

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