State v. Daniel S. Iverson , 365 Wis. 2d 302 ( 2015 )

2015 WI 101
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP515-FT
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
Daniel S. Iverson,
Defendant-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 358 Wis. 2d 712, 856 N.W.2d 346)
(Ct. App. 2014 – Unpublished)
OPINION FILED: November 25, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 8, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: La Crosse
JUDGE: Ramona A. Gonzalez
JUSTICES:
CONCURRED: ABRAHAMSON, J., concurs joined by A.W. BRADLEY,
J.(¶¶64-66 ONLY). (Opinion Filed)
A.W. BRADLEY, J., concurs. (Opinion Filed)
DISSENTED:
NOT PARTICIPATING: R.G. BRADLEY, J. did not participate.
ATTORNEYS:
For the plaintiff-appellant-petitioner, the cause was
argued by Donald V. Latorraca, assistant attorney general, with
whom on the briefs was Brad D. Schimel, Attorney General.
For the defendant-respondent, there was a brief by Joseph
G. Veenstra and Johns, Flaherty & Collins, S.C., La Crosse, and
oral argument by Joseph G. Veenstra.
2015 WI 101
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP515-FT
(L.C. Nos. 2013TR4032 & 2013TR4033)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant-Petitioner, FILED
v. NOV 25, 2015
Daniel S. Iverson, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished decision of the court of appeals, State v. Iverson,
No. 2014AP515–FT, unpublished slip op. (Wis. Ct. App. Oct. 9,
2014), which affirmed the order of the La Crosse County circuit
court1 granting defendant Daniel S. Iverson's ("Iverson") motion
to suppress evidence of drunk driving obtained by an officer of
the state traffic patrol during a traffic stop of Iverson's
vehicle.
1
The Honorable Ramona A. Gonzalez presided.
No. 2014AP515-FT
¶2 Iverson asserts that the officer lacked authority to
seize Iverson's vehicle to investigate the violation of a state
statute prohibiting littering, Wis. Stat. § 287.81 (2011-12).2
Iverson argues in the alternative that the officer lacked
probable cause or reasonable suspicion that a violation of the
littering statute had occurred.
¶3 The central issue before us in this case is whether
the Fourth Amendment of the United States Constitution and
Article I, Section 11 of the Wisconsin Constitution permit an
officer of the state traffic patrol to stop a vehicle based
solely on the officer's observation of the commission of a non-
traffic civil forfeiture offense by an occupant of that vehicle.
¶4 We conclude that: (1) the Wisconsin Legislature has
explicitly authorized state troopers to conduct traffic stops in
order to investigate violations of Wis. Stat. § 287.81 and to
arrest violators of the statute under specified conditions; (2)
a traffic stop to enforce § 287.81 is generally reasonable if an
officer has probable cause or reasonable suspicion that a
violation of § 287.81 has occurred; (3) discarding a cigarette
butt onto a highway violates § 287.81; and (4) based on his
observations, the officer in this case had probable cause to
believe that an occupant of Iverson's vehicle had violated
§ 287.81 by throwing a cigarette butt onto the highway.
2
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
No. 2014AP515-FT
¶5 The defendant's motion to suppress evidence obtained
during this traffic stop and to dismiss this case should have
been denied. We reverse the decision of the court of appeals
and remand the case to the circuit court for reinstatement of
charges and further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
¶6 On January 29, 2014, Wisconsin State Patrol Trooper
Michael Larsen ("Trooper Larsen") testified at a hearing on
Iverson's motion to suppress evidence. The following facts are
taken from his testimony.
¶7 On September 18, 2013, at about 1:00 a.m., Trooper
Larsen was traveling northbound on Rose Street in the City of
La Crosse. He observed a silver jeep in front of him drift
within its lane toward the centerline and back. The vehicle did
not cross the centerline or strike the curb. The vehicle
approached an intersection secured by a flashing yellow traffic
light. Although there was no traffic at the intersection, the
vehicle came to a complete stop at the light before continuing
past the intersection. The vehicle then arrived at a second
flashing yellow light. Again, despite a lack of traffic at the
intersection, the vehicle stopped at the light before continuing
north. Trooper Larsen testified that at this point in time he
did not feel that he possessed the reasonable suspicion
necessary to conduct a traffic stop.3
3
We do not necessarily accept the officer's conclusion in
this regard as our own. We need not address its soundness for
purposes of analyzing the issues before the court.
3
No. 2014AP515-FT
¶8 Trooper Larsen then observed a cigarette butt "being
thrown from the passenger side of the vehicle." The cigarette
butt hit the ground and scattered ashes across the right lane of
the road. After crossing an overpass, Trooper Larsen initiated
a traffic stop of the vehicle. Trooper Larsen testified that
the reason for the stop was the ejection of the cigarette butt
from the vehicle he had been following. He relied upon Wis.
Stat. § 287.81, entitled "Littering," which states in relevant
part:
[A] person who does any of the following may be
required to forfeit not more than $500:
(a) Deposits or discharges any solid waste on or
along any highway, in any waters of the state, on the
ice of any waters of the state or on any other public
or private property.
(b) Permits any solid waste to be thrown from a
vehicle operated by the person.
Wis. Stat. § 287.81(2)(a)-(b). Trooper Larsen informed the
driver of the vehicle, Iverson, that a cigarette butt had been
thrown out of Iverson's vehicle. Iverson denied knowledge, but
the passenger admitted responsibility and stated that he had not
known that the action was illegal.
¶9 Trooper Larsen eventually cited Iverson for operation
of a motor vehicle while under the influence of an intoxicant,
in violation of Wis. Stat. § 346.63(1)(a), and operation of a
4
No. 2014AP515-FT
motor vehicle with a prohibited alcohol concentration, first
offense, in violation of § 346.63(1)(b).4
II. PROCEDURAL BACKGROUND
¶10 On October 17, 2013, Iverson pleaded not guilty to the
violations alleged in the traffic citations he had received. On
December 27, 2013, Iverson filed a motion to suppress any and
all evidence obtained following the stop of his vehicle and to
dismiss the case. At the January 9, 2014 hearing on the motion,
the La Crosse County circuit court granted Iverson's motion.
The court stated:
[Trooper Larsen] wasn't stopping [Iverson] to cite him
for the litter. He was stopping him to see if he was
a drunk driver. . . . The litter is the excuse, and if
that cigarette butt comes out of the driver's side,
I'm with you, Trooper . . . but not out of the
passenger side.
On January 14, 2014, the court entered an order granting the
motion to suppress evidence and to dismiss the case. On
February 26, 2014, the State filed a notice of appeal.
¶11 On October 9, 2014, the court of appeals affirmed the
circuit court's order on different grounds. It found that "an
articulable suspicion or probable cause of violation of a
forfeiture that is not a violation of a traffic regulation is
[not] sufficient justification for a warrantless seizure of a
citizen." See State v. Iverson, No. 2014AP515-FT, unpublished
slip op., ¶11 (Wis. Ct. App. Oct. 9, 2014).
4
The facts upon which Trooper Larsen based the citations
are not at issue in this case.
5
No. 2014AP515-FT
¶12 In reaching its conclusion, the court of appeals first
examined Wis. Stat. § 968.24, which it properly characterized as
a "legislative codification" of Terry v. Ohio, 392 U.S. 1
(1968). Iverson, No. 2014AP515-FT, unpublished slip op., ¶6;
see State v. Post, 2007 WI 60, ¶11, 301 Wis. 2d 1, 733
N.W.2d 634. The statute authorizes law enforcement officers to
conduct temporary questioning without arrest "when the officer
reasonably suspects that such a person is committing, is about
to commit or has committed a crime." Wis. Stat. § 968.24.
¶13 The court of appeals further noted that Wis. Stat.
§ 345.22 permits warrantless arrests for violations of traffic
regulations. Iverson, No. 2014AP515-FT, unpublished slip op.,
¶10. The court of appeals reviewed our decision in State v.
Popke, 2009 WI 37, 317 Wis. 2d 118, 765 N.W.2d 569, where we
held that "[e]ven if no probable cause exist[s], a police
officer may still conduct a traffic stop when, under the
totality of the circumstances, he or she has grounds to
reasonably suspect that a crime or traffic violation has been or
will be committed." Id., ¶8 (quoting State v. Popke, 2009 WI
37, ¶23, 317 Wis. 2d 118, 765 N.W.2d 569) (emphases added)
(citation omitted).
¶14 Finally, the court of appeals quoted from one of its
own decisions, State v. Krier, 165 Wis. 2d 673, 478 N.W.2d 63
(Ct. App. 1991), in which it had held that where an individual's
conduct might constitute either a civil forfeiture or a crime,
depending on the nature of the conduct and on whether the
individual is a repeat offender, "[j]ust as there is no
6
No. 2014AP515-FT
prohibition for stopping [an individual] because the behavior
may end up being innocent, there is also no prohibition for
stopping because the behavior may end up constituting a mere
forfeiture." Id., ¶12 (quoting State v. Krier, 165 Wis. 2d 673,
678, 478 N.W.2d 63 (Ct. App. 1991)).
¶15 The court of appeals reasoned that, because littering
in violation of Wis. Stat. § 287.81 is not a crime or traffic
violation,5 neither Terry, nor Wis. Stat. § 968.24, nor Wis.
Stat. § 345.22, nor Popke authorized Trooper Larsen's stop.
Id., ¶¶8-10, 13. Additionally, the court of appeals read the
language in Krier to imply that conduct potentially resulting
only in a "mere forfeiture" does not warrant a traffic stop.
The court therefore affirmed suppression of the evidence
gathered by Trooper Larsen. Id., ¶¶12, 14.
¶16 On December 19, 2014, the State filed a petition for
review in this court. On March 16, 2015, we granted the
petition.
III. STANDARD OF REVIEW
¶17 "Our review of an order granting or denying a motion
to suppress evidence presents a question of constitutional
fact." State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786
5
Compare Wis. Stat. § 287.81(2), (2m) (violation of
littering statute punishable by forfeiture), with Wis. Stat.
§ 939.12 ("Conduct punishable only by a forfeiture is not a
crime"), and Wis. Stat. § 345.20(1)(b) (defining "[t]raffic
regulation" as "a provision of chs. 194 or 341 to 349 for which
the penalty for violation is a forfeiture or an ordinance
enacted in accordance with s. 349.06").
7
No. 2014AP515-FT
N.W.2d 463 (citation omitted). Similarly, "[w]hether there is
probable cause or reasonable suspicion to stop a vehicle is a
question of constitutional fact." Popke, 317 Wis. 2d 118, ¶10
(citations omitted).
¶18 "When presented with a question of constitutional
fact, this court engages in a two-step inquiry. First, we
review the circuit court's findings of historical fact under a
deferential standard, upholding them unless they are clearly
erroneous. Second, we independently apply constitutional
principles to those facts." Robinson, 327 Wis. 2d 302, ¶22
(citations omitted).
¶19 This case also requires us to interpret and apply Wis.
Stat. § 287.81 and other relevant statutes. "Statutory
interpretation and application present questions of law that we
review de novo while benefiting from the analyses of the court
of appeals and circuit court." 118th St. Kenosha, LLC v. DOT,
2014 WI 125, ¶19, 359 Wis. 2d 30, 856 N.W.2d 486 (citations and
internal quotation marks omitted).
¶20 "[S]tatutory interpretation 'begins with the language
of the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.' Statutory language is given its
common, ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
special definitional meaning." Milwaukee City Hous. Auth. v.
Cobb, 2015 WI 27, ¶12, 361 Wis. 2d 359, 860 N.W.2d 267 (quoting
State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110) (internal quotation marks
8
No. 2014AP515-FT
omitted). "The context and structure of a statute are also
important to the meaning of a statute." Noffke ex rel. Swenson
v. Bakke, 2009 WI 10, ¶11, 315 Wis. 2d 350, 760 N.W.2d 156
(citing Kalal, 271 Wis. 2d 633, ¶46).
IV. ANALYSIS
¶21 Iverson's citation for drunk driving gives rise to the
issues before the court because he contends that the stop was in
violation of his constitutional rights. Specifically, Iverson
argues that the citations cannot stand because Trooper Larsen
was without legal authority to stop Iverson's vehicle based
solely upon violation of the littering statute, a non-traffic
civil forfeiture law. In addition, Iverson argues that the
conduct upon which Trooper Larsen based the stop did not violate
the littering statute. In other words, we must address whether
Trooper Larsen was endowed with the legal authority to stop
Iverson's vehicle after observing a cigarette butt being thrown
onto a highway from the vehicle. Consequently, the focus of
this opinion centers upon whether this conduct constitutes
"littering" so as to justify this traffic stop and whether this
traffic stop can be based upon violation of this non-traffic
civil forfeiture law.
¶22 As it relates to the constitutional issues now before
this court, Iverson does not contend that he otherwise has a
viable defense to the drunk driving charges. Similarly, he does
not assert that we should undertake a traditional totality of
the circumstances test so to evaluate whether his driving on
that particular evening would otherwise justify a traffic stop.
9
No. 2014AP515-FT
Indeed, if we were to analyze the totality of the circumstances
of the stop at issue, we might not reach the question before the
court, and that analysis would only serve to restate
longstanding legal principles. See, e.g., Post, 301 Wis. 2d 1,
¶¶12-13; State v. Malone, 2004 WI 108, ¶¶21-24, 274 Wis. 2d 540,
683 N.W.2d 1. Thus, we neither accept nor reject the officer's
stated belief that he was without reasonable suspicion to
conduct a traffic stop before the alleged littering occurred.
¶23 Our method of inquiry is shaped by a few important
considerations. First, Trooper Larsen, an officer of the state
traffic patrol, stopped Iverson's vehicle in order to enforce
Wis. Stat. § 287.81. Second, Wis. Stat. § 110.07 delineates the
powers and duties of officers of the state traffic patrol. And
third, the automobile stop at issue must not be constitutionally
unreasonable under the circumstances. See Popke, 317
Wis. 2d 118, ¶11 (citation omitted).
¶24 Therefore, in order to determine the lawfulness of
Trooper Larsen's traffic stop, we analyze two statutory
questions and two constitutional questions: (1) whether throwing
a cigarette butt onto a highway constitutes a violation of Wis.
Stat. § 287.81; (2) whether Trooper Larsen possesses authority
under Wis. Stat. § 110.07 to conduct warrantless traffic stops
as a means of enforcing § 287.81; (3) whether a state traffic
patrol officer may conduct a warrantless traffic stop based on
probable cause or reasonable suspicion that a violation of a
non-traffic civil forfeiture law has occurred; and (4) whether
10
No. 2014AP515-FT
Trooper Larsen possessed probable cause or reasonable suspicion
that a violation of § 287.81 had occurred.
A. Statutory Authority to Conduct the Traffic Stop
1. Whether Throwing a Cigarette Butt onto a Highway
Violates Wis. Stat. § 287.81
¶25 Iverson argues that throwing a cigarette butt onto a
highway does not violate Wis. Stat. § 287.81. Although the
statute prohibits the depositing or discharge of "solid waste"
onto a highway, Iverson claims that a cigarette butt is not
"solid waste" under the statute. We disagree.
¶26 Wisconsin Stat. § 287.81 states in relevant part: "[A]
person who does any of the following may be required to forfeit
not more than $500: (a) Deposits or discharges any solid waste
on or along any highway . . . ."6 Wis. Stat. § 287.81(2)–(2)(a).
¶27 The definitional provision of the chapter within which
Wis. Stat. § 287.81 falls defines "solid waste" as having "the
meaning given in s. 289.01(33)." Wis. Stat. § 287.01(10).
Wisconsin Stat. § 289.01(33) reads:
"Solid waste" means any garbage, refuse, sludge
from a waste treatment plant, water supply treatment
plant or air pollution control facility and other
discarded or salvageable materials, including solid,
liquid, semisolid, or contained gaseous materials
6
"Highway" is defined in the statute as having "the meaning
given in s. 340.01(22)." Wis. Stat. § 287.81(1)(am). Wisconsin
Stat. § 340.01(22) in turn states in relevant part: "'Highway'
means all public ways and thoroughfares and bridges on the same.
It includes the entire width between the boundary lines of every
way open to the use of the public as a matter of right for the
purposes of vehicular travel." Wis. Stat. § 340.01(22).
11
No. 2014AP515-FT
resulting from industrial, commercial, mining and
agricultural operations, and from community
activities, but does not include solids or dissolved
material in domestic sewage, or solid or dissolved
materials in irrigation return flows or industrial
discharges which are point sources subject to permits
under ch. 283, or source material, as defined in
s. 254.31(10), special nuclear material, as defined in
s. 254.31(11), or by-product material, as defined in
s. 254.31(1).
Wis. Stat. § 289.01(33) (emphasis added). "Garbage" and
"refuse" each also possess unique definitions. Garbage "means
discarded materials resulting from the handling, processing,
storage and consumption of food." § 289.01(9). Refuse "means
all matters produced from industrial or community life, subject
to decomposition, not defined as sewage." § 289.01(28).
¶28 One could easily spend all day exploring Wis. Stat.
§ 289.01(33)'s various nooks and crannies, but we need not stop
to ponder whether cigarette butts are "subject to
decomposition," § 289.01(28), or "result[] . . . from community
activities," Wis. Stat. § 289.01(33), because cigarette butts
manifestly constitute "other discarded . . . materials."
¶29 "Judicial deference to the policy choices enacted into
law by the legislature requires that statutory interpretation
focus primarily on the language of the statute. We assume that
the legislature's intent is expressed in the statutory
language." Kalal, 271 Wis. 2d 633, ¶44. And "[i]f the meaning
of the statute is plain, we ordinarily stop the inquiry.
Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or
phrases are given their technical or special definitional
12
No. 2014AP515-FT
meaning." Id., ¶45 (citations and internal quotation marks
omitted).
¶30 To "discard" means "to drop, dismiss, let go, or get
rid of as no longer useful, valuable, or pleasurable."
Webster's Third New International Dictionary 644 (1961).7
Cigarette butts are perhaps a paradigmatic example of
"discarded" materials under this definition, as they are the
abandoned remains of cigarettes, items that were once (at least
to their users) useful, valuable, and pleasurable.
¶31 "Material," the singular of "materials," id. at 1392,
is a broad and indefinite word. One sense of the word, and the
sense that we find most plausible here, is "the whole or a
notable part of the elements or constituents or substance of
something physical . . . ." Id. Viewed in isolation, this
definition clearly supports inclusion of cigarette butts within
the phrase "discarded . . . materials." Nevertheless, a
nebulous term like "materials" draws meaning from its context,
so we further analyze the passage to confirm the word's import.
¶32 Iverson points to the list introduced by the phrase
"other discarded . . . materials, including" and asserts that
cigarette butts do not fall within any of the ensuing enumerated
items. But even if a cigarette butt did not constitute
"solid . . . materials resulting from industrial, commercial,
7
This is the second sense of the word provided in the entry
in Webster's. The first sense pertains to playing cards. See
Webster's Third New International Dictionary 644 (1961).
13
No. 2014AP515-FT
mining and agricultural operations, and from community
activities"——a proposition we find doubtful given consideration
of the manufacture, sale, and use of cigarettes——the "including"
clause does not exhaust the possible applications of "other
discarded . . . materials." See, e.g., Liebovich v. Minnesota
Ins. Co., 2008 WI 75, ¶26, 310 Wis. 2d 751, 751 N.W.2d 764 ("The
presence of a comma and the word 'including' in [the phrase]
indicates that the word 'including' is not meant to reference an
exhaustive list."); Federal Land Bank of St. Paul v. Bismarck
Lumber Co., 314 U.S. 95, 100 (1941) ("[T]he term 'including' is
not one of all-embracing definition, but connotes simply an
illustrative application of the general principle.").
¶33 The longstanding canon of construction "ejusdem
generis" supports our analysis. This canon "instructs that when
general words follow specific words in the statutory text, the
general words should be construed in light of the specific words
listed." State v. Quintana, 2008 WI 33, ¶27, 308 Wis. 2d 615,
748 N.W.2d 447 (citation omitted). The specific words
"garbage," "refuse," and "sludge from a waste treatment plant,
water supply treatment plant or air pollution control facility"
do not so limit the more general phrase "other
discarded . . . materials" that cigarette butts are of necessity
excluded. In fact, these specific terms clarify that the
definition encompasses more conventional items like cigarette
butts.
¶34 The definition of garbage, for example ("discarded
materials resulting from the handling, processing, storage and
14
No. 2014AP515-FT
consumption of food," Wis. Stat. § 289.01(9)), suggests
inclusion of objects such as fast food wrappers and paper
napkins. The definition of refuse ("all matters produced from
industrial or community life, subject to decomposition, not
defined as sewage," § 289.01(28)) apparently contemplates
objects of both a specialized nature ("industrial" refuse) and
of a more ordinary nature ("community life" refuse); into this
latter category might fall objects such as newspapers and food
waste, items likely found in vehicles throughout the state. The
final term, "sludge," indicates materials of a specialized
nature. The statute's specific enumerations thus run the gamut
from ordinary to specialized waste; they do not provide reason
to omit cigarette butts from the broad category of "discarded
materials."8
¶35 The most natural reading of "other . . . discarded
materials" affords the definition of "solid waste" a broad
sweep, but it is not within our province to artificially limit
the obvious reach of a statute without adequate reason. "It is
8
Wisconsin Stat. § 287.05 establishes "policies of the
state concerning the reduction of the amount of solid waste
generated, the reuse, recycling and composting of solid waste
and resource recovery from solid waste." The first policy
listed states "[t]hat maximum solid waste reduction, reuse,
recycling, composting and resource recovery is in the best
interest of the state in order to protect public health, to
protect the quality of the natural environment and to conserve
resources and energy." Wis. Stat. § 287.05(1) (emphasis added).
Though the provision is not helpful in determining the meaning
of "solid waste," we note that inclusion of cigarette butts
within that definition serves these purposes.
15
No. 2014AP515-FT
the court's role, in the context of statutory interpretation, to
give effect to legislation unless we find that the legislature
could not have intended the absurd or unreasonable results a
statute appears to require." Johnson v. Masters, 2013 WI 43,
¶20 n.12, 347 Wis. 2d 238, 830 N.W.2d 647. It is hardly absurd
for a statute entitled "Littering" to prohibit disposal of
cigarette butts onto the state's roads.9 Therefore, we will
simply give effect to the statute's natural meaning.
¶36 At the circuit court, Iverson's attorney submitted an
affidavit that stated in part:
I have never in my legal experience had a call
from or represented someone who was cited for
littering or any other offense due to the throwing of
a cigarette butt. In fact, I have witnessed hundreds
of cigarette butts on the grounds outside our office,
along the streets near our office and outside of
taverns and other businesses located in downtown
La Crosse and have never heard of anyone being cited
for such disposal of cigarette butts.
If the image of masses of cigarette butts strewn throughout the
streets of a Wisconsin city is meant to suggest that the
9
In fact, cigarette butt litter is a widely recognized
problem. See, e.g., Leslie Kaufman, Cigarette Butts: Tiny Trash
That Piles Up, N.Y. Times (May 28, 2009),
http://www.nytimes.com/2009/05/29/us/29cigarettes.html?_r=0;
Brian Clark Howard, Watch: Cigarette Butts, World's #1 Litter,
Recycled as Park Benches, Nat'l Geographic (May 5, 2015),
http://news.nationalgeographic.com/2015/05/150504-cigarette-
butt-litter-recycling-environment/. Cigarette butt litter
pollutes waterways, costs millions of dollars in clean-up costs,
and spoils the appearance of otherwise attractive surroundings.
See Kaufman, supra. "Cigarette butts are, by some counts, the
world's number one litter problem." Howard, supra.
16
No. 2014AP515-FT
disposal of cigarette butts along highways is somehow a de
minimis offense under Wis. Stat. § 287.81, it fails to persuade.
The cumulative effect of improper waste disposal is a
demonstrable example of why littering is problematic. The
statement from the affidavit merely highlights the ills that the
statute seeks to rectify by its plain terms.
¶37 In any event, the structure of the statute
demonstrates that the legislature could easily have created a
quantitative threshold for the littering offense but did not.
Wisconsin Stat. § 287.81(2m) imposes a larger forfeiture of
$1,000 on "a person who deposits any large item on or along any
highway . . . ." Wis. Stat. § 287.81(2m). "Large item" is
defined in the statute as "an appliance, an item of furniture, a
tire, a vehicle, a boat, an aircraft, building materials, or
demolition waste." § 287.81(1)(as). The legislature thus
considered quantity terms but did not set an amount necessary to
trigger the statute, something the legislature has proven itself
capable of doing in other contexts. See, e.g., Wis. Stat.
§§ 348.15-348.16 (setting pound-specific vehicle weight
limitations).
¶38 We conclude that discarding a cigarette butt onto a
highway violates Wis. Stat. § 287.81.
17
No. 2014AP515-FT
2. Whether Trooper Larsen is Statutorily Authorized
to Conduct Traffic Stops to Enforce Wis. Stat. § 287.81
¶39 Iverson asserts that Trooper Larsen is without legal
authority to effectuate this stop. However, the plain meaning
of Wis. Stat. § 110.07, "Traffic officers; powers and duties,"
instructs otherwise. The statute states in relevant part:
Members of the state traffic patrol shall:
1. Enforce and assist in the administration
of . . . [Wis. Stat. §] 287.81 . . . .
. . . .
3. Have authority to enter any place where
vehicles subject to this chapter, ss. 167.31(2)(b) to
(d) and 287.81 and chs. 194, 218 and 341 to 350 are
stored or parked at any time to examine such vehicles,
or to stop such vehicles while en route at any time
upon the public highways to examine the same and make
arrests for all violations thereof.
Wis. Stat. § 110.07(1)(a)1., (a)3. (emphases added).
¶40 The statute further grants officers of the state
traffic patrol "the arrest powers of a law enforcement officer
under [Wis. Stat. §] 968.07, regardless of whether the violation
is punishable by forfeiture or criminal penalty." Wis. Stat.
§ 110.07(2m).
¶41 The authority of state troopers is also addressed in
Wis. Stat. ch. 23, entitled "Conservation." Specifically, Wis.
18
No. 2014AP515-FT
Stat. § 23.58 authorizes "an enforcing officer"10 to "stop a
person in a public place for a reasonable period of time when
the officer reasonably suspects that such person is committing,
is about to commit or has committed a violation of those
statutes enumerated in s. 23.50(1)" and to "demand the name and
address of the person and an explanation of the person's
conduct." Wis. Stat. § 23.58.11 Wisconsin Stat. § 287.81 is one
of the statutes enumerated in Wis. Stat. § 23.50(1). Wis. Stat.
§ 23.50(1).
¶42 Finally, Wis. Stat. §§ 23.56 and 23.57 provide certain
authority to conduct arrests, both with and without warrants,
for violations of the statutes listed in Wis. Stat. § 23.50(1).12
10
"'Enforcing officer' . . . means a person who has
authority to act pursuant to a specific statute." Wis. Stat.
§ 23.51(3).
11
"Such a stop may be made only where the enforcing officer
has proper authority to make an arrest for such violation," and
"[s]uch detention and temporary questioning shall be conducted
in the vicinity where the person was stopped." Wis. Stat.
§ 23.58. Additionally, the enforcing officer must identify
himself or herself as such. Id.
12
This authority is limited by various conditions.
Warrantless arrests in particular are authorized only where:
(a) The person refuses to accept a citation or to
make a deposit under s. 23.66; or
(b) The person refuses to identify himself or
herself satisfactorily or the officer has reasonable
grounds to believe that the person is supplying false
identification; or
(c) Arrest is necessary to prevent imminent
bodily harm to the enforcing officer or to another.
(continued)
19
No. 2014AP515-FT
¶43 In sum, the Wisconsin Legislature has explicitly
authorized state troopers to conduct traffic stops in order to
investigate violations of Wis. Stat. § 287.81 and to arrest
violators of the statute under specified conditions. Trooper
Larsen therefore possessed statutory authority to stop Iverson's
vehicle upon witnessing the disposal of a cigarette butt onto
the highway. Whether the stop was constitutionally reasonable,
however, is the question to which we now turn.
B. Constitutional Authority to Conduct the Traffic Stop
1. Whether a State Traffic Patrol Officer May Conduct a
Warrantless Traffic Stop Based on Probable Cause or
Reasonable Suspicion that a Violation of a Non-Traffic
Civil Forfeiture Law Has Occurred
¶44 A state traffic patrol officer's traffic stop of a
vehicle is a "seizure" of "persons" under the Fourth Amendment.13
See Popke, 317 Wis. 2d 118, ¶11 (citations omitted). "An
automobile stop must not be unreasonable under the
circumstances. A traffic stop is generally reasonable if the
officers have probable cause to believe that a traffic violation
has occurred, or have grounds to reasonably suspect a violation
has been or will be committed." Id. (citations and internal
quotation marks omitted). The issue before us is whether it is
Wis. Stat. § 23.57(1)(a)-(c).
13
"[W]e have traditionally understood the Wisconsin
Constitution's provision on search and seizure to be coextensive
with the Fourth Amendment." State v. Houghton, 2015 WI 79, ¶49,
364 Wis. 2d 234, 868 N.W.2d 143 (citation omitted).
20
No. 2014AP515-FT
reasonable to effectuate a stop for a non-traffic civil
forfeiture offense.
¶45 The court of appeals below concluded that a traffic
stop may not be premised solely on a non-traffic civil
forfeiture offense. In other words, even if an officer observes
a violation of the littering statute, the officer is without
legal authority to stop the vehicle. Examining our statement in
Popke that "a police officer may . . . conduct a traffic stop
when, under the totality of the circumstances, he or she has
grounds to reasonably suspect that a crime or traffic violation
has been or will be committed," Popke, 317 Wis. 2d 118, ¶23
(emphases added) (citation omitted), the court of appeals
seemingly concluded that in order to so effectuate a stop, the
officer must be granted specific authority under Wis. Stat.
§ 968.24 ("Temporary questioning without arrest" to investigate
suspected criminal activity) or Wis. Stat. § 345.22 ("Authority
to arrest without a warrant" for violations of traffic
regulations).
¶46 The opinion of the court of appeals does not consider,
however, whether Wis. Stat. § 110.07 ("Traffic officers; powers
and duties") or Wis. Stat. § 23.58 ("Temporary questioning
without arrest" to investigate suspected violations of certain
enumerated statutes, including Wis. Stat. § 287.81), impact the
analysis.14
14
Krier is not controlling for this reason. In Krier the
court of appeals relied on Wis. Stat. § 968.24 for its
definition of the permissible bounds of the police officer's
(continued)
21
No. 2014AP515-FT
¶47 Under the court of appeals' interpretation, an officer
would be required to sit idly by even if an individual threw an
entire bag of garbage out of a vehicle's window, simply because
littering is a non-traffic civil forfeiture offense.15 Neither
Wis. Stat. § 968.24, nor Wis. Stat. § 345.22, nor Popke require
this conclusion. Although § 968.24 and § 345.22 pertain only to
crimes and violations of traffic regulations, neither statute
conduct. E.g., State v. Krier, 165 Wis. 2d 673, 678, 478
N.W.2d 63 (Ct. App. 1991) ("We hold that when a person's
activity can constitute either a civil forfeiture or a crime, a
police officer may validly perform an investigative stop
pursuant to s. 968.24, Stats." (emphasis added)). In this case,
however, Trooper Larsen derived his authority from Wis. Stat.
§ 110.07 and Wis. Stat. § 23.58. These statutes, in contrast to
Wis. Stat. § 968.24, authorize traffic stops based on conduct
punishable by civil forfeiture alone. See Wis. Stat.
§ 110.07(1)(a)3.; Wis. Stat. § 23.58.
15
Some might suggest that an officer who witnesses
littering on the highway should get a warrant or issue a ticket
in the mail, but one quickly sees how these are remedies in
search of a problem. First, the issuance of a littering
citation is notably different from the issuance of, for example,
a parking ticket; the latter is placed on a stopped vehicle and
tracks the registered owner of the vehicle rather than the
person who actually parked the car. See, e.g., State of
Wisconsin Department of Transportation, Division of Motor
Vehicles, Unpaid Parking Tickets, Judgments and Towing and
Storage Fees, http://wisconsindot.gov/Pages/dmv/vehicles/prkg-
tckt/unpaid-tickets.aspx (last visited Sept. 30, 2015)
(describing the Traffic Violation and Registration Program and
noting that "[a]n authority issuing a parking ticket will send
two notices to the registered owner of the vehicle"). Second,
if an officer were relegated to such remedies, the officer would
most likely be precluded from determining to whom a citation
should be issued. In effect, the officer would not be able to
issue the ticket to the person who is responsible for the
offense. These approaches are ill-suited for a statute like
Wis. Stat. § 287.81.
22
No. 2014AP515-FT
forecloses traffic stops to enforce non-traffic civil forfeiture
offenses. Similarly, while Popke analyzed an officer's
authority to effectuate traffic stops for crimes and for
violations of traffic regulations, Popke, 317 Wis. 2d 118, ¶¶23,
28, our statement in Popke that "a police officer
may . . . conduct a traffic stop when, under the totality of the
circumstances, he or she has grounds to reasonably suspect that
a crime or traffic violation has been or will be committed,"
id., ¶23 (emphases added) (citation omitted), did not purport to
circumscribe the universe of possible scenarios within which
traffic stops permissibly may occur, or to make such limits
contingent on whether the legislature has titled a particular
law a "traffic regulation." The facts in Popke involved a stop
based on criminal and traffic offenses, not a non-traffic civil
forfeiture offense. Thus, the language in Popke was limited to
the issue then before the court. The question of whether a non-
traffic civil forfeiture offense can justify a vehicular stop is
before the court today.
¶48 Iverson would attach constitutional significance to
the legislature's categorization of civil forfeitures as either
traffic-related or non-traffic-related, with the effect of
limiting the ability of law enforcement officers to administer
laws that the legislature saw fit to enact. But the legislature
did not place any such limits on law enforcement.
¶49 Some civil violations, such as littering, can occur
whether or not a vehicle is involved. Indeed, the legislature
may have found characterization of Wis. Stat. § 287.81 as a
23
No. 2014AP515-FT
"traffic regulation" improper simply because not all littering
is done on the roads; the prohibition contained in the statute
applies to all areas of Wisconsin, not just the state's
highways. See Wis. Stat. § 287.81(2)(a). Perhaps the
legislature found it more appropriate to classify the littering
offense as one pertaining to "Solid Waste Reduction, Recovery
and Recycling," Wis. Stat. ch. 287, and group it with similar
legislation, see Wis. Stat. ch 280 ("Pure Drinking Water"); Wis.
Stat. ch. 285 ("Air Pollution") rather than with the traffic
laws. Whatever the reason for Wis. Stat. § 287.81's separation
from the traffic laws, the legislature did not limit the
littering statute to just one domain. Instead, the broad
language of the statute applies to Wisconsin's highways and the
state traffic patrol has been given authority to enforce it
under Wis. Stat. § 110.07(1)(a)1.16 The statute's classification
as traffic-related or not does not by itself provide grounds for
departure from our usual Fourth Amendment analysis. "We cannot
16
We add that Wis. Stat. § 345.20, a provision setting out
procedure governing "traffic forfeiture actions," makes specific
mention of the littering statute. Wis. Stat. § 345.20 (emphasis
added). Wisconsin Stat. § 345.20 provides that procedures set
out in the "Conservation" chapter of the Wisconsin Statutes,
Wis. Stat. ch. 23, "apply to actions in circuit court to recover
forfeitures for violations of s. 287.81." Wis. Stat.
§ 345.20(g). At the same time, Wis. Stat. § 23.53 provides that
the citation created within the "Conservation" chapter governs
violations of certain statutes enumerated within that chapter,
"except that the uniform traffic citation created under
s. 345.11 may be used by . . . a traffic officer employed under
s. 110.07 in enforcing s. 287.81." Wis. Stat. § 23.53(1).
24
No. 2014AP515-FT
accept that the search and seizure protections of the Fourth
Amendment . . . can be made to turn upon such trivialities."
Whren v. U.S., 517 U.S. 806, 815 (1996) (Fourth Amendment
protections not dependent on whether officers followed police
enforcement practices).
¶50 If we otherwise analyze the reasonableness of this
traffic stop, not in terms of the traditional totality of the
circumstances test based on Iverson's driving on the evening in
question but, more abstractly, in terms of whether a traffic
stop for littering is ever reasonable, we arrive at the
conclusion that such a stop is reasonable. See, e.g., Popke,
317 Wis. 2d 118, ¶11; see also Pennsylvania v. Mimms, 434 U.S.
106, 108-09 (1977). We judge reasonableness in this context by
"balanc[ing] . . . the public interest and the individual's
right to personal security free from arbitrary interference by
law officers." See Malone, 274 Wis. 2d 540, ¶21 (quoting Mimms,
434 U.S. at 109).
¶51 "A routine traffic stop . . . is a relatively brief
encounter and 'is more analogous to a so-called "Terry stop"
. . . than to a formal arrest.'" Knowles v. Iowa, 525 U.S. 113,
117 (1998) (citation omitted); see also Malone, 274 Wis. 2d 540,
¶24 (analogizing traffic stops and Terry stops).
¶52 We clarified last term that "reasonable suspicion that
a traffic law has been or is being violated is sufficient to
justify all traffic stops," State v. Houghton, 2015 WI 79, ¶30,
364 Wis. 2d 234, 868 N.W.2d 143, and noted that, "[i]n at least
some circumstances, reasonable suspicion that a non-traffic-
25
No. 2014AP515-FT
related law has been broken may also justify a traffic stop."
Id., ¶30 n.6. After reviewing the decisions of the federal
courts of appeals, we reasoned that the brief nature of traffic
stops, "weighed against the public interest in safe roads,"
warranted our conclusion. See id., ¶30.
¶53 The current case features a violation of a law
applicable to the state's highways and statutorily enforceable
by the state's traffic patrol. Enforcement of the law
conceivably helps keep the state's roads safe.17 In addition, we
note that the legislature has specifically defined the terms
according to which officers may briefly detain potential
violators of Wis. Stat. § 287.81. Our approval of the traffic
stop at issue is therefore not at odds with Houghton. A
reasonable suspicion that a violation of the littering statute,
§ 287.81, has occurred justifies a brief and limited traffic
stop. The more onerous standard of probable cause would also
therefore justify a traffic stop. See Houghton, 364
Wis. 2d 234, ¶21.
17
In its brief before this court, the State asserted that
littering creates hazards for other motorists and that discarded
lit cigarettes in particular can cause brush, grass, and forest
fires leading to property damage. These dangers are self-
evident and at least as serious as many of the interests with
which Wisconsin's traffic-related civil forfeiture laws are
apparently concerned. See, e.g., Wis. Stat. § 341.04
(prohibiting the operation of an unregistered or improperly
registered vehicle); Wis. Stat. § 346.20(1) (requiring vehicle
operators to yield the right-of-way at intersections to vehicles
in funeral processions when the latter have their headlights
lighted); § 346.29(3) (unlawful to use certain bridges for
fishing).
26
No. 2014AP515-FT
¶54 We have already held, more broadly, that "arrests for
civil forfeitures are not per se unconstitutional." State v.
Pallone, 2000 WI 77, ¶43, 236 Wis. 2d 162, 613 N.W.2d 568 (open
intoxicants in a motor vehicle), overruled on other grounds by
State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97;
see also City of Milwaukee v. Nelson, 149 Wis. 2d 434, 456, 439
N.W.2d 562 (1989) (loitering).18 Neither are traffic stops to
enforce civil forfeiture laws per se unconstitutional, even when
those laws are not technically "traffic regulations." As we
intimated in Popke, this court has no authority to decide which
laws "are sufficiently important to merit enforcement." See
Popke, 317 Wis. 2d 118, ¶19 (quoting Whren, 517 U.S. at 819).
18
In Nelson we "note[d] that it has long been established
in Wisconsin" that law enforcement officers generally may make
warrantless arrests upon probable cause for ordinance violations
occurring in the presence of officers. City of Milwaukee v.
Nelson, 149 Wis. 2d 434, 458, 439 N.W.2d 562 (1989) (citation
omitted). Wisconsin Stat. § 110.07 once contained such an "in
presence" requirement. See Wis. Stat. § 110.07(2m) (1971-72).
However, the legislature later eliminated this requirement, see
Wis. Stat. § 110.07 (1973-74), and today officers of the state
traffic patrol possess "the arrest powers of a law enforcement
officer under [Wis. Stat. §] 968.07, regardless of whether the
violation is punishable by forfeiture or criminal penalty."
Wis. Stat. § 110.07(2m) (2011-12). We do not address today what
the elimination of that requirement may mean, given that the
violation here occurred in the officer's presence. See Atwater
v. City of Lago, 532 U.S. 318, 340 n.11 (2001) (declining to
speculate on "in presence" requirement for misdemeanor arrests,
but quoting statement of dissent in Welsh v. Wisconsin, 466 U.S.
740, 756 (1984) (White, J., dissenting), that "the requirement
that a misdemeanor must have occurred in the officer's presence
to justify a warrantless arrest is not grounded in the Fourth
Amendment").
27
No. 2014AP515-FT
We entrust that task to "the good sense (and, failing that, the
political accountability)" of our lawmakers and law enforcers.
Atwater v. City of Lago, 532 U.S. 318, 323-24, 353-54 (2001)
(applying usual probable cause standard to warrantless arrests
for violation of misdemeanor of failing to wear seatbelt).
¶55 We conclude that a traffic stop to enforce Wis. Stat.
§ 287.81 is generally reasonable if an officer has probable
cause or reasonable suspicion that a violation of § 287.81 has
occurred.
2. Whether Trooper Larsen had Probable Cause or Reasonable
Suspicion that a Violation of Wis. Stat. § 287.81 Had Occurred
¶56 "Probable cause refers to the 'quantum of evidence
which would lead a reasonable police officer to believe' that a
traffic violation has occurred." Popke, 317 Wis. 2d 118, ¶14
(quoting Johnson v. State, 75 Wis. 2d 344, 348, 249 N.W.2d 593
(1977)). "The evidence need not establish proof beyond a
reasonable doubt or even that guilt is more probable than not,
but rather, probable cause requires that 'the information lead a
reasonable officer to believe that guilt is more than a
possibility.'" Id. (quoting Johnson, 75 Wis. 2d at 348-49).
¶57 Trooper Larsen testified that he witnessed a vehicle
drift within its lane and twice come to a complete stop at a
flashing yellow light despite the absence of traffic.19 He then
19
Although we rely on Trooper Larsen's testimony regarding
the reason for the traffic stop, this opinion should not be read
to exclude a traffic stop based upon the conduct that Trooper
Larsen witnessed prior to his observation of the disposal of the
cigarette butt. In other words, Trooper Larsen might well have
(continued)
28
No. 2014AP515-FT
saw a cigarette butt "being thrown from the passenger side of
the vehicle." The cigarette butt hit the ground and scattered
ashes across the right lane of the road.
¶58 It is a violation of Wis. Stat. § 287.81 to
"[d]eposit[] or discharge[] any solid waste on or along any
highway . . . ." Wis. Stat. § 287.81(2)(a). We conclude that,
based on his observations, Trooper Larsen had probable cause to
believe that an occupant20 of Iverson's vehicle had violated
§ 287.81 by throwing a cigarette butt onto the highway.
¶59 Because Trooper Larsen's traffic stop was based on
probable cause, we need not consider whether he also possessed
reasonable suspicion that a violation of the littering statute
had occurred.
V. CONCLUSION
¶60 We conclude that: (1) the Wisconsin Legislature has
explicitly authorized state troopers to conduct traffic stops in
possessed probable cause or reasonable suspicion to conduct a
traffic stop at this point in time. Cf. State v. Post, 2007 WI
60, ¶24, 301 Wis. 2d 1, 733 N.W.2d 634 ("[A] driver's actions
need not be erratic, unsafe, or illegal to give rise to
reasonable suspicion.").
20
Despite Iverson's suggestions to the contrary, the
question of who threw the cigarette butt out of the vehicle is
not relevant to our determination today. For a traffic stop to
be lawful as to all occupants, "[t]he State need not establish
that the police had reasonable, articulable suspicion to seize
the particular defendant before the court, but only that the
police possessed reasonable, articulable suspicion to seize
someone in the vehicle." State v. Harris, 206 Wis. 2d 243, 260,
557 N.W.2d 245 (1996).
29
No. 2014AP515-FT
order to investigate violations of Wis. Stat. § 287.81 and to
arrest violators of the statute under specified conditions; (2)
a traffic stop to enforce § 287.81 is generally reasonable if an
officer has probable cause or reasonable suspicion that a
violation of § 287.81 has occurred; (3) discarding a cigarette
butt onto a highway violates § 287.81; and (4) based on his
observations, Trooper Larsen had probable cause to believe that
an occupant of Iverson's vehicle had violated § 287.81 by
throwing a cigarette butt onto the highway.
¶61 The defendant's motion to suppress evidence obtained
during this traffic stop and to dismiss this case should have
been denied.21 We reverse the decision of the court of appeals
and remand the case to the circuit court for reinstatement of
charges and further proceedings consistent with this opinion.
By the Court.-The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court for
further proceedings consistent with this opinion.
¶62 REBECCA G. BRADLEY, J., did not participate.
21
In granting Iverson's motion, the circuit court suggested
that violation of the littering statute was Trooper Larsen's
"excuse" for stopping Iverson's vehicle. But "pretextual
traffic stops . . . are not per se unreasonable under the Fourth
Amendment." Houghton, 364 Wis. 2d 234, ¶25 (explaining the
holding of Whren v. U.S., 517 U.S. 806 (1996)). As the traffic
stop here was based on "an objectively ascertainable basis for
probable cause," Trooper Larsen's "subjective motivations" are
"of little concern." See State v. Kramer, 2009 WI 14, ¶27, 315
Wis. 2d 414, 759 N.W.2d 598.
30
No. 2014AP515-FT.ssa
¶63 SHIRLEY S. ABRAHAMSON, J. (concurring). This case
addressing the constitutionality of a vehicle stop based on a
non-traffic forfeiture offense is one of first impression.1 I
conclude that a state trooper has authority, under certain
circumstances, to stop a vehicle based on probable cause or
reasonable suspicion of a violation of Wisconsin's littering
statute, Wis. Stat. § 287.81.2
¶64 My concern is that the majority opinion seems to
explicitly reject the touchstone of Fourth Amendment
jurisprudence.3 Majority op., ¶50. The Fourth Amendment
prohibits unreasonable searches and seizures.4 "An automobile
stop must not be unreasonable under the circumstances."5
1
Other cases have considered whether, outside the context
of a vehicle stop, a stop for a non-traffic forfeiture offense
is constitutionally permissible. See City of Milwaukee v.
Nelson, 149 Wis. 2d 434, 439 N.W.2d 562 (1989).
2
See majority op., ¶50.
3
U.S. Const. amend. IV.
4
See Ohio v. Robinette, 519 U.S. 33, 39 (1996)
("Reasonableness, in turn, is measured in objective terms by
examining the totality of the circumstances."); Pennsylvania v.
Mimms, 434 U.S. 106, 109 (1977) ("Reasonableness, of course,
depends 'on a balance between the public interest and the
individual's right to personal security free from arbitrary
interference by law officers.'") (quoting United States v.
Brignoni-Ponce, 422 U.S. 873, 878 (1975)).
5
State v. Popke, 2009 WI 37, ¶11, 317 Wis. 2d 118, 765
N.W.2d 569 (citing State v. Gaulrapp, 207 Wis. 2d 600, 605, 558
N.W.2d 696 (Ct. App. 1996)); see also State v. Houghton, 2015 WI
79, ¶29, 364 Wis. 2d 234, 868 N.W.2d 143 ("It is undisputed that
traffic stops must be reasonable under the circumstances.")
(citing Gaulrapp, 207 Wis. 2d at 605).
1
No. 2014AP515-FT.ssa
Reasonableness is gauged under the totality of the
circumstances.6
¶65 The majority opinion explains how it analyzes the
reasonableness of the automobile stop in the instant case: "not
in terms of the traditional totality of the circumstances test
based on Iverson's driving on the evening in question but, more
abstractly, in terms of whether a traffic stop for littering is
ever reasonable . . . ."7 The majority opinion does not explain
what its "abstract" approach entails or how this "abstract"
approach meshes with the traditional reasonableness under the
totality of the circumstances analysis.8
¶66 The court has frequently stated that reasonableness
under the Fourth Amendment depends on a court's balancing the
public interest against an individual's right to personal
6
See Mimms, 434 U.S. at 108-09 ("The touchstone of our
analysis under the Fourth Amendment is always 'the
reasonableness in all the circumstances of the particular
governmental invasion of a citizen's personal security.")
(quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)); see also
Robinette, 519 U.S. at 39 ("Reasonableness, in turn, is measured
in objective terms by examining the totality of the
circumstances."); State v. Malone, 2004 WI 108, ¶21, 274
Wis. 2d 540, 683 N.W.2d 1 (a court must "carefully scrutinize
the totality of the circumstances.").
7
Majority op., ¶50.
8
The majority opinion merely states that "if we were to
analyze the totality of the circumstances of the stop at issue,
we might not reach the question before the court and that
analysis would only serve to restate longstanding legal
principles." Majority op., ¶22.
2
No. 2014AP515-FT.ssa
security free from interference by law enforcement.9 In striking
this balance, a court must carefully scrutinize the totality of
the circumstances.10 The majority opinion does not apply this
balancing test.
¶67 When a court looks at the public interest in a typical
vehicle stop case, the underlying offense is ordinarily a
criminal or traffic violation. The public interest is high in
such a case. Public safety is ordinarily at risk by criminal
behavior or a violation of traffic laws.11 The public interest
in stopping the vehicle in the instant case is comparatively
low; there is no evidence that throwing a single cigarette butt
from Iverson's car created any hazard. In the case of a civil,
non-traffic, forfeiture offense (like littering), the state's
interests in ensuring safe travel and combating crime are either
9
Mimms, 434 U.S. at 109 ("Reasonableness, of course,
depends 'on a balance between the public interest and the
individual's right to personal security free from arbitrary
interference by law officers.'") (quoting United States v.
Brignoni-Ponce, 422 U.S. 873, 878 (1975)); see also Malone, 274
Wis. 2d 540, ¶21 (citing Mimms).
10
Malone, 274 Wis. 2d 540, ¶21.
11
See State v. Day, 168 P.3d 1265, 1269 (Wash. 2007)
(quoting State v. Johnson, 909 P.2d 293, 306 (Wash. 1996)); see
also State v. Houghton, 2015 WI 79, ¶56, 364 Wis. 2d 234, 868
N.W.2d 143 (recognizing that "[t]he Wisconsin Statutes contain a
tremendous number of provisions directed toward safety on the
roadway").
3
No. 2014AP515-FT.ssa
non-existent or significantly weaker than in a vehicle stop for
a crime or a traffic violation.12
¶68 The individual's countervailing interest is personal
security and freedom from intrusion by the government. Unlike
other courts, the majority opinion is dismissive of the
intrusiveness of a vehicle stop. A vehicle stop by a law
enforcement officer is a "major interference in the lives of the
[vehicle's] occupants." Coolidge v. New Hampshire, 403 U.S.
443, 478 (1971).
¶69 An intrusion on privacy occurs every time a law
enforcement officer stops a car, regardless of the motivation
for the stop. A vehicle stop interferes with a person's freedom
of movement and is inconvenient, time-consuming, and anxiety-
inducing. Moreover, a vehicle stop provides a law enforcement
12
For an example of the United States Supreme Court's
considering the non-criminal, civil forfeiture nature of an
offense in determining whether exigent circumstances exist to
justify a warrantless entry into a home, see Welsh v. Wisconsin,
466 U.S. 740, 749-51 (1984). The gravity of the offense is an
important part of the constitutional analysis. Welsh, 466 U.S.
at 753.
The seriousness of the underlying offense is also relevant
to whether a stop is constitutionally permissible in other
contexts. See United States v. Griggs, 498 F.3d 1070, 1081 (9th
Cir. 2007) (holding that in assessing an investigatory stop
based on a completed misdemeanor, in that case playing a car
stereo at excessive volume, "a reviewing court must consider the
nature of the misdemeanor offense in question, with particular
attention to the potential for ongoing or repeated
danger . . . and any risk of escalation . . . . An assessment
of the 'public safety' factor should be considered within the
totality of the circumstances, when balancing the privacy
interests at stake against the efficacy of a Terry
stop . . . .").
4
No. 2014AP515-FT.ssa
officer with an opportunity for further intrusion on the driver,
passengers, and the contents of the vehicle.13
¶70 For this reason, some courts have declined to extend
the general reasonable suspicion standard in striking the
balance between public and individual interests in cases of
vehicle stops for extremely minor infractions, such as a parking
violations.14
¶71 The majority opinion suggests that "the issuance of a
littering citation is notably different from the issuance of,
for example, a parking ticket," because parking tickets are
placed on a stopped vehicle and track the registered owner,
while a littering citation is issued to the litterer.15 True,
but constitutionally not relevant. There is a similarity
between stopping a vehicle for littering and stopping a moving
vehicle for an observed parking violation. In both instances
the public interest in enforcing the minor offense is
comparatively low, while the individual's right to be free from
13
See, e.g., State v. Williams, 2002 WI 94, ¶2, 255
Wis. 2d 1, 646 N.W.2d 834.
14
See, e.g., Day, 168 P.3d at 1269-70 (declining to allow
an investigative stop under Terry for parking infractions);
State v. Holmes, 569 N.W.2d 181, 185-86 (Minn. 1997) (concluding
that a parking violation was not sufficiently serious to merit a
Terry stop, permitting stops based solely on probable cause and
"only if the stop is necessary to enforce the
violation . . . ."). See also State v. Duncan, 43 P.3d 513,
517-19 (Wash. 2002) (declining to extend Terry to general civil
infractions).
15
Majority op., ¶47 n.15.
5
No. 2014AP515-FT.ssa
the intrusion of having the vehicle stopped remains the same as
in any other vehicle stop.
¶72 When an officer has reasonable suspicion to issue a
parking ticket or a littering citation, in the absence of some
public safety risk or other significant public interest, the
public interest in issuing the citation does not automatically
overcome an individual's right to be free from the intrusion of
having the vehicle stopped.
¶73 This distinction between an infraction that does and
does not present a public safety risk or otherwise violate a
significant public interest is illustrated by several examples
on which the majority opinion relies. The majority opinion
illuminates that "discarded lit cigarettes in particular can
cause brush, grass, and forest fires leading to property
damage."16 The majority opinion also explains that throwing a
large bag of trash out of a moving vehicle is dangerous to
others who use the road.17
¶74 The examples in the majority opinion suggest
circumstances that would be relevant under a totality of the
circumstances analysis. A cigarette butt thrown out of a
vehicle in a dry, fire-prone area may very well pose a risk to
public safety and the environment. No such danger by the single
cigarette butt in the instant case is alleged. Ash from a
16
Majority op., ¶53 n.17.
17
Majority op., ¶47.
6
No. 2014AP515-FT.ssa
cigarette likely poses no danger at all.18 A trash bag thrown
out of a moving vehicle obviously may very well pose a danger to
other motorists; a single cigarette butt ordinarily does not.
These examples flesh out the totality of circumstances to be
considered.
¶75 In the instant case, no proof of a public safety risk
was offered. Iverson was driving in the wee hours of the
morning in the city of La Crosse. There is no evidence in the
record suggesting that other drivers on the road were somehow
endangered by the passenger's tossing a cigarette butt, let
alone that there was a risk of fire, property damage, or other
significant danger as a result of the discarded cigarette.
¶76 Rather, the traffic stop in this case is a variation
on familiar themes. The trooper stopped Iverson based on a
minor violation, here littering. See Wis. Stat. § 287.81. The
stop was pretextual. The trooper's true motive was not to issue
a citation for littering, but to investigate a more serious
traffic offense or potentially criminal offense, namely drunk
driving. The trooper saw Iverson's vehicle driving late at
night and began following the vehicle. The trooper saw the
vehicle drift within its lane and stop at two flashing yellow
lights despite the absence of traffic.
¶77 The trooper evidently had a hunch that the driver was
intoxicated (and his hunch was apparently correct). The trooper
18
Cf. State v. Qualls, No. 2014AP141-CR, unpublished slip
op., ¶6 (Wis. Ct. App. Oct. 8, 2014) (not reaching the issue of
whether ash constituted "litter" under a village ordinance).
7
No. 2014AP515-FT.ssa
concluded, however, that he did not have reasonable suspicion to
stop the vehicle.19 Then came the "a-ha" moment. When the
trooper saw a cigarette butt thrown from the passenger side of
the vehicle, the trooper concluded that he had grounds to stop
the vehicle.
¶78 Underscoring the pretextual nature of the stop,
neither Iverson nor his passenger was cited for littering.
Instead, Iverson was arrested for drunk driving.
¶79 The circuit court relied on the pretextual nature of
the stop in granting the motion to suppress. However, under
Whren v. United States, 517 U.S. 806, 813 (1996), and other
cases, the constitutional reasonability of a stop does not
19
Majority op., ¶7 & n.3. The trooper stated that "prior
to the cigarette butt being thrown . . . I didn't
feel . . . that I had the reasonable suspicion to initiate a
traffic stop . . . ."
The majority opinion insinuates that drifting within a lane
and stopping at flashing yellow lights constitute reasonable
suspicion of drunk driving. Majority op., ¶7 n.3. That
conclusion is questionable. See State v. Post, 2007 WI 60,
¶¶18-21, 301 Wis. 2d 1, 733 N.W.2d 634 (concluding that
repeatedly weaving within a single lane, standing alone, does
not constitute reasonable suspicion); State v. McConnell, No.
M2012-02238-CCA-R3-CD, 2013 WL 1912584, at *4 (Tenn. Ct. App.
May 8, 2013) (finding no reasonable suspicion when the defendant
stopped at a flashing yellow light for several seconds before
going through the intersection).
Wisconsin Stat. § 346.39(2) provides that "operators of
vehicles may proceed through the intersection or past [a
flashing yellow light] only with caution."
8
No. 2014AP515-FT.ssa
depend on the subjective motivations of the officer.20
Pretextual stops have been accepted under the Fourth Amendment.
¶80 In the instant case the dominant factors to gauge in
assessing the reasonableness of the vehicle stop under the
totality of the circumstances can be summarized as follows: the
public interest in this particular stop for littering was slight
or insubstantial; a vehicle stop is a significant intrusion on a
person's security; the statutory violation was flimsy; and the
reason for the vehicle stop was pretextual. This combination of
circumstances, had the case been presented this way, might lead
me to conclude that the vehicle stop was not reasonable under
the Fourth Amendment.
¶81 I caution that the majority opinion should not be over
read. I do not think the majority intends its opinion to be
read as granting law enforcement officers extraordinarily broad
powers to stop vehicles without meaningful judicial review.
¶82 In sum, the traditional Fourth Amendment rules still
apply in Wisconsin. The Fourth Amendment prohibits unreasonable
20
This rule has been criticized. See, e.g., 1 Wayne R.
LaFave, Search & Seizure: A Treatise on the Fourth Amendment,
§ 1.4(f) (5th ed. 2012) (critiquing Whren v. United States, 517
U.S. 806 (1996)); State v. Newer, 2007 WI App 236, ¶4 n.2, 306
Wis. 2d 193, 742 N.W.2d 923 (Ct. App. 2007) ("We note that the
officer's subjective motivation for making a stop is not the
issue; if the officer has facts that could justify reasonable
suspicion (or probable cause), it is of no import that the
officer is not subjectively motivated by a desire to investigate
this suspicion. We question the wisdom of this rule when it
comes to extremely minor traffic violations, but that is for
another day.") (internal citations omitted) (citing Whren v.
United States, 517 U.S. 806, 813 (1996); State v. Baudhuin, 141
Wis. 2d 642, 650-51, 416 N.W.2d 60 (1987)).
9
No. 2014AP515-FT.ssa
searches and seizures.21 Reasonableness is gauged under the
totality of the circumstances.22 "An automobile stop must not be
unreasonable under the circumstances."23
¶83 Reasonableness depends on a court's balancing the
public interest against an individual's right to personal
security free from interference by law enforcement. In striking
this balance, a court must carefully scrutinize the totality of
the circumstances. Unfortunately, the majority opinion did not
apply these rules. I therefore write separately.
¶84 Before I conclude, however, I add a comment about the
statutes applicable in the instant case. The statutes at issue
are part of Wis. Stat. chapter 287, entitled "Solid Waste
Reduction, Recovery and Recycling."
¶85 Wisconsin Stat. § 287.81(2), entitled "Littering,"
provides that a person who "[d]eposits or discharges any solid
waste on or along any highway" or "[p]ermits any solid waste to
21
U.S. Const. amend. IV.
22
Mimms, 434 U.S. at 108-09 ("The touchstone of our
analysis under the Fourth Amendment is always 'the
reasonableness in all the circumstances of the particular
governmental invasion of a citizen's personal security.")
(quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)); see also
Robinette, 519 U.S. at 39 ("Reasonableness, in turn, is measured
in objective terms by examining the totality of the
circumstances."); Malone, 274 Wis. 2d 540, ¶21 (a court must
"carefully scrutinize the totality of the circumstances.").
23
Popke, 317 Wis. 2d 118, ¶11; see also Houghton, 364
Wis. 2d 234, ¶29 ("It is undisputed that traffic stops must be
reasonable under the circumstances.") (citing Gaulrapp, 207
Wis. 2d at 605).
10
No. 2014AP515-FT.ssa
be thrown from a vehicle operated by the person" may be required
to forfeit no more than $500.24
¶86 Section 287.01(10) adopts the meaning of "solid waste"
set forth in Wis. Stat. § 289.01(33).25 The definition of "solid
waste" lists many materials, including garbage, refuse, and
materials resulting from "community activities."26 "Refuse" is
defined in part as "matters produced from industrial or
community life."27
¶87 The phrases "community activities" and "produced from
industrial or community life" defy almost any effort at
definition.
¶88 Would a simpler littering statute not intimately
connected with solid waste suffice, so a court need not spend 14
paragraphs, 9 double-spaced pages, and a lot of dictionary
research for a discourse on whether a cigarette butt violates
the littering statute? "Littering" is a word in common usage,
with a generally accepted meaning, but the word "littering" is
not used in chapter 287 other than in the title to subchapter IV
of chapter 287 and the title of Wis. Stat. § 287.81.
¶89 Should the legislature take another look at Wis. Stat.
§§ 287.01 and 287.81? See Wis. Stat. § 13.92(2)(j).
¶90 For the reasons set forth, I write separately.
24
Wis. Stat. § 287.81(2)(a), (b).
25
Chapter 289 is titled "Solid Waste Facilities."
26
Wis. Stat. § 289.01(33).
27
Wis. Stat. § 289.01(28).
11
No. 2014AP515-FT.ssa
¶91 I am authorized to state that Justice ANN WALSH
BRADLEY joins ¶¶64-66 of this opinion.
12
No. 2014AP515-FT.awb
¶92 ANN WALSH BRADLEY, J. (concurring). I agree with the
majority conclusion that "the officer in this case had probable
cause to believe that an occupant of Iverson's vehicle had
violated § 287.81 by throwing a cigarette butt onto the
highway." Majority Op., ¶4.
¶93 I write separately, however, because I disagree with
the majority's failure to employ a totality of circumstances
analysis. As the above concurrence explains, a totality of the
circumstance analysis is, has been, and remains the touchstone
of Fourth Amendment jurisprudence. Accordingly, I join
paragraphs 64-66 of the above concurrence.
1