2022 WI 47

SUPREME 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(2021 – unpublished)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. 
2

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. 
2022 WI 47

NOTICE

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,

 v.

Avan Rondell Nimmer,

 Defendant-Appellant.

FILED

JUN 23, 2022

Sheila T. Reiff

Clerk of Supreme Court

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 

2

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.
No. 2020AP878-CR 

3

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."
No. 2020AP878-CR 

4

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 
No. 2020AP878-CR 

5

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.
No. 2020AP878-CR 

6

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 

 

5 The 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.
No. 2020AP878-CR 

7

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; 
No. 2020AP878-CR 

8

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 

 

6 Generally, a criminal defendant waives his right to appeal 

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[.]"
No. 2020AP878-CR 

9

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 

 

7 The other three cases cited by the court of appeals were: 

(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).
No. 2020AP878-CR 

10

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 

 

8 At oral argument, Nimmer's attorney acknowledged, while 

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.
No. 2020AP878-CR 

11

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 

 

9 The 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.
No. 2020AP878-CR 

12

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 storehouses, 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
No. 2020AP878-CR 

13

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, 

 

10 An officer may frisk a person during a Terry stop if the 

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.
No. 2020AP878-CR 

14

¶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 
No. 2020AP878-CR 

15

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 
No. 2020AP878-CR 

16

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-ahalf 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 

 

11 The ShotSpotter report in United States v. Jones was not 

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.

12 In United States v. Rickmon, officers received two 

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.").
No. 2020AP878-CR 

17

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).
No. 2020AP878-CR 

18

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-CR00381, 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" 
No. 2020AP878-CR 

19

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 
No. 2020AP878-CR 

20

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 
No. 2020AP878-CR 

21

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 

 

13 We do not opine on the extent to which less exacting 

testimony from Officer Milone would have been sufficient.
No. 2020AP878-CR 

22

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 
No. 2020AP878-CR 

23

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 
No. 2020AP878-CR 

24

"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 
No. 2020AP878-CR 

25

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 
No. 2020AP878-CR 

26

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).
No. 2020AP878-CR 

27

¶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 
No. 2020AP878-CR 

28

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 

 

14 The error rests in relying on four cases, supra ¶17 & 

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.
No. 2020AP878-CR 

29

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

 

15 The court of appeals in this case could have considered 

another factually analogous opinion from its own court, State v. 
No. 2020AP878-CR 

30

¶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.").
No. 2020AP878-CR 

31

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. 

 

16 Justice Dallet's Concurrence, ¶67. 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.
No. 2020AP878-CR 

32

¶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.
No. 2020AP878-CR 

33

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.

21 Justice Dallet also says, "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." 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.
No. 2020AP878-CR 

34

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 

 

23 While the nature of the criminal activity is relevant 

under our analysis, it is not dispositive. See Commonwealth v. 

Meneus, 66 N.E.3d 1019, 1026 (Mass. 2017).
No. 2020AP878-CR 

35

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——
No. 2020AP878-CR 

36

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 
No. 2020AP878-CR 

37

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.").

25 Justice Dallet's Concurrence, ¶¶64, 65. Doubling down on 

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))).
No. 2020AP878-CR 

38

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 

 

26 Justice Dallet's Concurrence, ¶¶67-69. We do not mean to 

suggest that furtive movements cannot, in some circumstances, be 

highly indicative of criminal activity.
No. 2020AP878-CR 

39

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 
No. 2020AP878-CR 

40

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.
No. 2020AP878-CR.rfd

1

¶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 

 

1 I 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). 
No. 2020AP878-CR.rfd

2

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. 
No. 2020AP878-CR.rfd

3

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 

 

4 Indeed, although the officers didn't know it at the time, 

Nimmer was walking near his house when the officers arrived. 
No. 2020AP878-CR.rfd

4

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 
No. 2020AP878-CR.rfd

5

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.

 

5 Despite counsel's concession that ShotSpotter is reliable, 

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 patdowns. 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. 
No. 2020AP878-CR.rfd

6

¶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 

 

6 This timing difference is what distinguishes Nimmer's case 

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). 
No. 2020AP878-CR.rfd

7

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. 
No. 2020AP878-CR.rfd

8

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 lawabiding 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 
No. 2020AP878-CR.rfd

9

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 
No. 2020AP878-CR.rfd

10

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.
No. 2020AP878-CR.bh

1

¶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.
No. 2020AP878-CR.bh

1