State v. Donte Quintell McBride, 2021AP311-CR, state’s petition to review an unpublished court of appeals decision granted, 4/18/23; case activity (including briefs, PFR, and response to PFR)

Issues (from the State’s PFR):

1. When reviewing a motion to suppress, what is the proper application of the “clearly erroneous” standard of review?

2. Was the seizure and subsequent search of McBride constitutional where police observed two people sitting in an unilluminated SUV, which appeared to obstruct traffic, late at night in a high crime area, and when McBride made furtive movements in response to the officer’s spotlight?

For a summary of the facts of this case, we refer you to our post on the court of appeals decision. Read that, and you’ll see there’s no prospect of law development here, and that as McBride’s PFR response deftly explains, the case is being reviewed to give the state a chance to save what it lost in the court of appeals.

To start with the second issue, take a look at its wording again. It screams “error correction”—the state lost in the court of appeals and that’s got to be corrected—because it doesn’t assert the supreme court needs to review and clarify or modify the standard for determining reasonable suspicion—unsurprisingly, because that standard has been settled for a long time. Indeed, the state’s petition (at 20) admits the issue “may, at first blush, seem to be nothing more than error correction” (may? and only at first blush?). To try to dispel the obvious, the state claims the court of appeals misapplied the standard by not addressing the totality of the circumstances and by requiring officers aren’t required to dispel the possibility of innocent behavior before making a seizure. Put another way, the state is arguing the court of appeals erred by misapplying the well-established standard and asking the supreme court to correct the error by reversing the court of appeals.

The first issue might (at first blush) look like it requires some law development, but don’t be fooled. The clearly erroneous standard is also well established, and the court of appeals applied it in this case to hold both the officer’s body camera video and his testimony controverted two key factual findings the circuit court used to conclude the seizure was legal: that the vehicle McBride was in was interfering with traffic; and that McBride made a “furtive” movement when the officers shined a spotlight on him.

So there are no important legal issues in this case, or in the law generally, about what is a “proper application” of the clearly erroneous standard or about how to apply the reasonable suspicion standard. As a consequence, there’s no reason to expect any law development from the supreme court’s decision in this case says. The only interesting aspect of the decision will be whether the supreme court will hold that the court of appeals did what it was required to do and therefore its decision should stand.