State v. Patrick I. Hogan , 364 Wis. 2d 167 ( 2015 )

2015 WI 76SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP430-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Patrick I. Hogan,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 354 Wis. 2d 622, 848 N.W.2d 903)
(Ct. App. 2014 – Unpublished)
OPINION FILED: July 10, 2105
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 4, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Grant
JUDGE: Craig R. Day
JUSTICES:
CONCURRED: ZIEGLER, J., concurs. (Opinion Filed)
DISSENTED:
NOT PARTICIPATING: BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion
Filed.)
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Nicholas J. Passe and Moen Sheehan Meyer, Ltd., La Crosse,
and oral argument by Nicholas J. Passe.
For the plaintiff-respondent, the cause was argued by
Tiffany M. Winter, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.
2015 WI 76NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP430-CR
(L.C. No. 2012CF147)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUL 10, 2015
Patrick I. Hogan,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals,1 which affirmed a
judgment convicting Patrick I. Hogan (Hogan) of possession of
methamphetamine and child neglect. Hogan pled no contest to
these charges after the Grant County Circuit Court2 denied
Hogan's motion to suppress evidence obtained during a search of
his truck.
1
State v. Hogan, No. 2013AP430-CR, unpublished slip op.
(Wis. Ct. App. May 15, 2014).
2
Craig R. Day, Judge.
No. 2013AP430-CR
¶2 This fact-intensive case focuses on the reasonableness
of police conduct after a lawful traffic stop. After a
sheriff's deputy stopped the defendant for a seat belt
violation, the deputy observed what he believed to be indicia of
the defendant's drug use. With this in mind, he called for
backup. He then wrote out seat belt citations for the defendant
and the defendant's wife, who was not wearing her seat belt
properly. Before the deputy had finished the citations, a local
officer who knew of the defendant arrived on the scene.
¶3 The officer reported that his department had received
tips that the defendant had "961 issues" and was a "shake and
bake" methamphetamine cooker.
¶4 With his suspicions about the defendant somewhat
confirmed, the deputy asked the defendant to perform a series of
field sobriety tests. When the defendant passed all tests, he
was told he was free to leave. At this point about 24 minutes
had elapsed from the time the deputy initiated the traffic stop.
¶5 Approximately 16 seconds later, the deputy re-
approached the defendant and asked several questions, including
whether the defendant would consent to a search of his truck.
The defendant consented and the officers found methamphetamine,
equipment and supplies commonly used to manufacture
methamphetamine, and two loaded handguns. One gun was close to
the defendant's two-year-old daughter, who was sitting in a
child's car seat behind her mother in the back of the truck.
¶6 The defendant sought to suppress this evidence.
Suppression hinges on the answer to three questions. First, did
2
No. 2013AP430-CR
the deputy have reasonable suspicion to extend a lawful traffic
stop about seat belts to investigate whether the defendant was
under the influence of drugs in the operation of his vehicle by
having the defendant perform field sobriety tests? Second, if
the traffic stop was not lawfully extended to investigate drug
use by the defendant, was the defendant's subsequent consent to
search his truck tainted by prior illegality, so that the
evidence seized was inadmissible? Third, was the defendant
constructively seized without reasonable suspicion when the
deputy re-approached the defendant's vehicle to request consent
to search?
¶7 The defendant argues that the deputy lacked reasonable
suspicion to ask that the defendant perform field sobriety
tests. He contends that there were innocent explanations for
the observations that the deputy made, and that the deputy was
acting on nothing more than a hunch and unsubstantiated
information from a fellow law enforcement officer. The
defendant further argues that the taint of an illegal extension
affected the deputy's request for consent to search, rendering
the consent invalid and all evidence obtained in the search
inadmissible. Finally, the defendant argues that he was
constructively seized without reasonable suspicion when the
deputy re-approached his vehicle to ask for consent to search.
¶8 The State counters that possible innocent explanations
do not render the deputy's observations meaningless in analyzing
the basis for reasonable suspicion. The State also argues that,
even if the extension was illegal, the stop ended when the
3
No. 2013AP430-CR
deputy told the defendant he was free to leave. The State
argues the defendant was not seized within the meaning of the
Fourth Amendment when the deputy asked him for consent to search
his truck, and the defendant's consent was therefore valid.
Alternatively, the State contends that any illegality was so
attenuated from the defendant's consent that the taint of the
illegality had dissipated by the time the defendant gave
consent.
¶9 Although the question of whether the deputy had
reasonable suspicion to extend the traffic stop to administer
field sobriety tests is a close one, we conclude that the
extension was unlawful based on the evidence presented.
However, the defendant's subsequent consent to search his
vehicle came after the traffic stop had ended and the defendant
was told he was free to leave. Because the police did not
exploit the unlawful extension of the stop in order to gain
Hogan's consent to search his vehicle, attenuation analysis is
unnecessary in this case. Furthermore, Hogan was not
constructively seized when he gave consent to search his truck.
We therefore conclude that the defendant's consent was valid and
that it was not error for the circuit court to deny the
defendant's motion to suppress the evidence recovered from his
truck.
¶10 Accordingly, we affirm the decision of the court of
appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
4
No. 2013AP430-CR
¶11 On May 12, 2012, Deputy Andrew Smith of the Grant
County Sheriff's Department was driving his squad car north on
Wisconsin Avenue in the City of Boscobel. It was about 6:10
p.m. Deputy Smith stopped at the corner of Wisconsin Avenue and
Oak Street. He saw a Chevrolet truck pass in front of him
traveling east. The driver, Patrick Hogan, was not wearing a
seat belt. Deputy Smith turned right and activated his
emergency lights. The truck promptly pulled to a stop in front
of the Blaine Theatre.
¶12 When Deputy Smith approached the truck, he saw Hogan's
wife in the front passenger seat. She was wearing her seat belt
improperly with the shoulder strap underneath her arm. He also
saw the couple's two-year-old child seated directly behind Mrs.
Hogan in a child safety seat.
¶13 As soon as Deputy Smith began speaking with Hogan, he
noticed that Hogan was "very nervous," "real nervous," and
"shaking real bad" with upper body tremors. He also noticed
that Hogan's "pupils were restricted," which he believed was "an
indicator of drug use." Deputy Smith acknowledged later that he
was not a drug recognition "expert" but said he based his
observations on his 12-1/2 years experience as a deputy and his
frequent review of a "pupilometer," which he described as "a
little card that has different size black marks" which are
"measured in millimeters." The card was provided to him in
connection with his field sobriety training.
¶14 Deputy Smith collected the licenses of both Mr. and
Mrs. Hogan and returned to his squad. He immediately requested
5
No. 2013AP430-CR
backup from Boscobel police and stressed his observations about
Hogan's extreme nervousness and constricted pupils.
¶15 Shortly thereafter, the audio portion of the squad car
video reflects a repeated announcement, "Warning, potential
hit." The record does not explain whether this announcement
pertained to Hogan, who was on probation for second-degree
reckless injury and had a number of other criminal convictions.
¶16 Before Deputy Smith completed the citations, he was
joined by Boscobel Police Officer Travis Dregne. Upon learning
of Hogan's identity, Officer Dregne immediately remarked that
Hogan had "961 issues," referring to the Wisconsin statutory
chapter on controlled substances. Officer Dregne also told
Deputy Smith that "he received tips that Mr. Hogan's a shake and
bake methamphetamine cooker."3 Deputy Smith then requested a
police K9 unit via radio.
¶17 Upon learning that the K9 unit was unavailable, Deputy
Smith determined that he would ask Hogan to perform field
sobriety tests. Approximately three minutes later, he completed
the citations and printed them out. A total of approximately 13
minutes had passed since Deputy Smith initiated the stop.
¶18 Deputy Smith then approached Hogan and asked him to
step out of the truck. He explained to Hogan that he had made
observations that he thought were consistent with drug use.
3
"Shake and bake" or "one pot" methamphetamine production
is a manufacturing process used to produce small amounts of
methamphetamine, often for personal use. See Raphael S. Nemes,
Note, Shake and Bake: The Meth Threat and the Need to Rethink 21
U.S.C. § 841(C)(2), 88 Wash. U. L. Rev. 993, 999 (2011).
6
No. 2013AP430-CR
Hogan's quick response was "I don't use drugs." He then
suggested that Deputy Smith's observations might be due to
Hogan's use of Adderall, for which he said he had a
prescription. Deputy Smith replied that Adderall does not cause
the symptoms he was observing, and he asked Hogan if he would
perform a series of field sobriety tests. Hogan complied.
¶19 Deputy Smith had Hogan perform four tests: the
horizontal gaze nystagmus test, the walk and turn, the one leg
stand, and the alphabet test. These tests took approximately
eight minutes. Deputy Smith determined that Hogan did not show
any signs of impairment and informed Hogan he was free to leave.
¶20 Hogan got back into his vehicle and closed the door
but did not start the truck and leave, even though his house was
across the street. Deputy Smith returned to his squad car and
spoke with Officer Dregne. They discussed asking for a consent
search. Approximately 16 seconds after Deputy Smith told Hogan
he could leave, he returned to Hogan's stationary vehicle and
said, "Hey, sir, can I talk to you again?"
¶21 Hogan got out of his truck. Deputy Smith asked Hogan
if there were any weapons or drugs in the truck. Hogan replied
that there were not. Deputy Smith then asked Hogan if he could
search the vehicle. Hogan assented to Deputy Smith's request,
motioning for Deputy Smith to take a look. Deputy Smith asked
for verbal confirmation of Hogan's consent and Hogan replied
"Why not. Yeah. Go ahead."
¶22 Deputy Smith and Officer Dregne searched Hogan's
truck. Hogan's wife disclosed to Officer Dregne that she had a
7
No. 2013AP430-CR
handgun in her purse, but did not have a concealed carry permit.
In addition to that gun——a .380 caliber Taurus semi-automatic
pistol——they found a loaded Walther .22 caliber pistol behind
the passenger seat near the couple's child.
¶23 Deputy Smith and Officer Dregne also recovered
muriatic acid, two glass bottles containing clear liquids, and a
medicine bottle bearing Hogan's name that contained a substance
later identified as methamphetamine. The officers also
recovered paraphernalia used to manufacture methamphetamine,
including coffee filters, syringes, rubber gloves, and a heating
canister. These items, including the loaded .22 pistol, were
stored approximately one foot from the child.
¶24 On May 14, 2012, Hogan was charged with possession of
methamphetamine, manufacturing methamphetamine, possession of a
firearm by a felon, and child neglect.4
¶25 On June 12, 2012, Hogan filed a motion to suppress
evidence from the search. He argued that any evidence recovered
after Deputy Smith told him he could leave was illegally
obtained because Deputy Smith seized Hogan for a second time
when he re-approached Hogan's vehicle even though he lacked
reasonable suspicion to do so. On the same day, Hogan filed a
4
Contrary to Wis. Stat. §§ 961.41(3g)(g), 961.41(1)(e1),
941.29(2)(a), and 948.21(1)(a). All subsequent references to
the Wisconsin Statutes are to the 2011-12 version unless
otherwise indicated.
8
No. 2013AP430-CR
motion to dismiss, arguing that the State failed to preserve
evidence material to his guilt or innocence.5
¶26 On June 21, 2012, Hogan filed another motion to
suppress, this time arguing that the traffic stop was illegally
extended when Deputy Smith required Hogan to perform field
sobriety tests. Hogan based this contention on the premise that
Deputy Smith lacked reasonable suspicion that Hogan was under
the influence of drugs.
¶27 That same day, the circuit court denied Hogan's
original motion to suppress the evidence from his truck. The
court reasoned that Hogan had freely consented to a search of
his vehicle and therefore it was not an unlawful extension of
the stop. However, the court expressed uncertainty about
whether the field sobriety tests were a lawful extension of the
original stop, and requested informal briefing on the matter.
¶28 The circuit court denied Hogan's second motion on July
10, 2012. Although the court determined that Deputy Smith
illegally extended the stop when he administered the field
sobriety tests, it concluded that Hogan's subsequent consent
sufficiently tempered the illegality of the extension and that
suppression was not necessary.
¶29 On July 27, 2012, Hogan pled no contest to possession
of methamphetamine and child neglect. As part of the plea
agreement, the State dismissed the charges for manufacturing
5
This issue has not been argued before this court, and we
do not address it.
9
No. 2013AP430-CR
methamphetamine, possession of a firearm by a felon, and the
seat belt citation. The court found Hogan guilty and entered a
judgment of conviction on September 27.
¶30 On October 12, 2012, Hogan gave notice of his intent
to seek postconviction relief from the orders denying his
motions to dismiss and suppress. On May 15, 2014, the court of
appeals affirmed the conviction and the circuit court's denial
of the motions. State v. Hogan, No. 2013AP430-CR, unpublished
slip op. (Wis. Ct. App. May 15, 2014). The court reasoned that
Hogan was not constructively seized when Deputy Smith conducted
a search of his vehicle. Id., ¶12. The court also affirmed the
circuit court's ruling that Hogan's consent "was sufficiently
attenuated from the taint of the illegal detention." Id., ¶19.
¶31 On June 16, 2014, Hogan filed a petition for review
with this court, which we granted on November 13, 2014.
II. STANDARD OF REVIEW
¶32 Whether a defendant's constitutional rights, including
his rights under the Fourth Amendment, have been violated is a
question of constitutional fact. Resolving questions of
constitutional fact is a two-step process. State v. Martwick,
2000 WI 5, ¶17, 231 Wis. 2d 801, 604 N.W.2d 552. We first
uphold the circuit court's findings of historical fact unless
they are clearly erroneous. Id., ¶18. We then independently
apply constitutional principles to those facts. Id.
III. DISCUSSION
¶33 This case requires us to analyze different segments of
an extended traffic stop. The evidence that the defendant seeks
10
No. 2013AP430-CR
to suppress was not acquired until a third distinct period of
the stop about 28 minutes after its initiation.
A. Extension of the Stop
¶34 The Fourth Amendment to the U.S. Constitution protects
individuals from unreasonable searches and seizures. U.S.
Const. amend. IV. "There is no question that a police officer
may stop a vehicle when he or she reasonably believes the driver
is violating a traffic law . . . ." State v. Betow, 226
Wis. 2d 90, 93, 593 N.W.2d 499 (Ct. App. 1999) (citing United
States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995)). However,
"a traffic stop 'can become unlawful if it is prolonged beyond
the time reasonably required to complete th[e] mission' of
issuing a . . . ticket." Rodriguez v. United States, 575 U.S.
___, 135 S. Ct. 1609, 1614-15 (2015) (quoting Illinois v.
Caballes, 543 U.S. 405, 407 (2005)).
¶35 After a justifiable stop is made, the officer may
expand the scope of the inquiry only to investigate "additional
suspicious factors [that] come to the officer's attention."
Betow, 226 Wis. 2d at 94 (citing United States v. Perez, 37 F.3d
510, 513 (9th Cir. 1994)). See also State v. Gammons, 2001 WI
App 36, ¶¶18-19, 214 Wis. 2d 296, 625 N.W.2d 623. An expansion
in the scope of the inquiry, when accompanied by an extension of
time longer than would have been needed for the original stop,
must be supported by reasonable suspicion. See State v.
Colstad, 2003 WI App 25, ¶13, 260 Wis. 2d 406, 659 N.W.2d 394.
See also Navarette v. California, 572 U.S. ___, 134 S. Ct. 1683,
1687 (2014); Terry v. Ohio, 392 U.S. 1, 21-22 (1968). In this
11
No. 2013AP430-CR
regard, the legal extension of a traffic stop is essentially a
Terry investigatory stop. State v. Arias, 2008 WI 84, ¶35, 311
Wis. 2d 358, 752 N.W.2d 748.
¶36 "The focus of an investigatory stop is on
reasonableness, and the determination of reasonableness depends
on the totality of circumstances . . . ." State v. Richardson,
156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990). Although officers
sometimes will be confronted with behavior that has a possible
innocent explanation, a combination of behaviors——all of which
may provide the possibility of innocent explanation——can give
rise to reasonable suspicion. See United States v. Arvizu, 534
U.S. 266, 274-75 (2002).
¶37 It follows that the legality of the extension of the
traffic stop in this case turns on the presence of factors
which, in the aggregate, amount to reasonable suspicion that
Hogan committed a crime the investigation of which would be
furthered by the defendant's performance of field sobriety
tests. See State v. Post, 2007 WI 60, ¶10, 301 Wis. 2d 1, 733
N.W.2d 634.
¶38 In his incident report, Deputy Smith explained the
basis for extending the stop: "Based upon Patrick shaking and
his pupils being restricted, I asked him if he would be willing
to attempt some field sobriety tests and he indicated he would."
¶39 Hogan's post-arraignment motions challenged the
sufficiency of this explanation as well as the sufficiency of
the deputy's observations at the preliminary hearing——"he was
very nervous, shaking, and his pupils were restricted"——as
12
No. 2013AP430-CR
providing reasonable suspicion to extend the stop to perform
field sobriety tests.
¶40 At the subsequent motion hearing, Deputy Smith
testified at greater length and the State's evidence included
video of the entire incident taken from the deputy's squad car
and audio of the deputy's statements and discussions with
others. At the conclusion of the hearing, Judge Day asked for
letter briefs.
¶41 In his brief, the assistant district attorney did not
emphasize reasonable suspicion for the field sobriety tests as
much as he emphasized Hogan's consent to search, and he did not
rely on information the Boscobel police officer gave to Deputy
Smith about Hogan as an important element of the reasonable
suspicion for the tests. Hogan's attorney said a bit more about
Officer Dregne's statements but he pointedly observed that
"Officer Dregne . . . had heard (from some unknown source) that
the defendant had a drug history." (Emphasis added.)
¶42 Judge Day concluded that the field sobriety tests were
"an unlawful extension of the stop." He attributed no "power or
persuasive force to Deputy Smith's observation of [Hogan's]
pupils," saying it "doesn't mean anything on this record." He
did not refer to the deputy's acquired information about Hogan's
alleged "961 issues" or his alleged involvement with
methamphetamine.
¶43 Upon careful examination of the record, we believe the
State could have made a valid case that Deputy Smith had
reasonable suspicion to pursue field sobriety tests with Patrick
13
No. 2013AP430-CR
Hogan. However, the case the State could have made in circuit
court was not made, and, consequently, Judge Day's ruling on
this point was not error.
¶44 We review the totality of the circumstances to
illustrate the problems.
¶45 There was no evidence and no suspicion that Hogan was
driving under the influence of alcohol. There also was no
evidence that Hogan's driving had been impaired by drugs. The
deputy's observations suggested that Hogan might have been using
drugs and thus might have violated Wis. Stat. § 346.63(1)(am),
which makes it illegal for a person to drive or operate a motor
vehicle with "a detectable amount of a restricted controlled
substance in his or her blood." As a result, the issue
presented to the circuit court was whether there was reasonable
suspicion that Hogan had been using controlled substances
recently enough that evidence of that use would be detected in
his blood.
¶46 Any order for a blood test would require probable
cause. State v. Tullberg, 2014 WI 134, ¶31, 359 Wis. 2d 421,
857 N.W.2d 120. Field sobriety tests were intended to secure
evidence to establish probable cause.
¶47 Deputy Smith was an experienced officer with 12-1/2
years of service in the Grant County Sheriff's Department. His
experience should have been a plus. State v. Meyer, 216
Wis. 2d 729, 752-53, 576 N.W.2d 260 (1998). His instincts were,
in fact, correct. However, Deputy Smith conceded that he was
not a drug recognition expert and his testimony about restricted
14
No. 2013AP430-CR
pupils undermined his credibility in the court's eyes. The
court heard the following testimony on cross-examination:
Q: You also indicated that you observed his pupils
to be restricted, right?
A: Yes, sir.
Q: Okay. Was it sunny out that day?
A: Yes, sir.
Q: And pupils restrict when it's sunny?
A: Yes, sir.
Q: You're not a drug recognition expert, right?
A: Correct.
Q: What drugs cause pupil restrictions?
A: Cocaine being one. I'm sure there's others, but
I'm not a drug recognition expert.
Q: Do you know what methamphetamine does to pupils?
A: No, sir.
Q: Okay. Approximately what size do you believe Mr.
Hogan's pupils were?
A: Three millimeters.
. . . .
Q: [D]o you know what the normal pupil size is for
an adult male?
A: Four to five millimeters, I believe.
¶48 For a variety of reasons, the circuit court put no
stock in the deputy's testimony about restricted pupils as a
factor in establishing reasonable suspicion. The deputy did not
have definitive information at any point on how drug use might
15
No. 2013AP430-CR
affect pupil size.6 He referred to his familiarity with a
pupilometer card but he did not bring the card to substantiate
or supplement his testimony.
¶49 Consequently, the case for reasonable suspicion rests
primarily on the deputy's observations that Hogan's upper body
was shaking and "he appeared to be very nervous." These points
appear in his suppression hearing testimony and are even more
prominent in the audio that accompanies the video.
¶50 Nervousness, anxiety, and tremors are consistent with
methamphetamine use. National Highway Traffic Safety
Administration, Drugs and Human Performance Fact Sheets, Report
No. DOT HS 809 725, at 63 (April 2014). These characteristics,
however, may also have innocent explanations. The possibility
that innocent explanations may exist for observed behavior does
not preclude a finding of reasonable suspicion, but as a
practical matter, police cannot expect to conduct field sobriety
tests on every motorist who is shaking and nervous when stopped
by an officer.
¶51 Officer Dregne's comments that Hogan had "961 issues"
and that Officer Dregne had "received tips that Mr. Hogan's a
shake and bake methamphetamine cooker" undoubtedly influenced
6
In fact, during the course of the discussion about pupil
size, Deputy Smith suggested that restricted pupils are
consistent with cocaine use. However, according to a source
cited by the State, cocaine use may lead to dilated pupils, not
restricted pupils. See National Highway Traffic Safety
Administration, Drugs and Human Performance Fact Sheets, Report
No. DOT HS 809 725, at 21 (April 2014).
16
No. 2013AP430-CR
Deputy Smith's decision to proceed as he did. At least some of
Deputy Smith's observations meshed with Officer Dregne's
information. Ultimately, however, when a court is asked to rule
on a suppression motion, the court must evaluate whether the
information conveyed by a fellow officer, and relied upon in
taking the action under review, was reliable information,
because the officer conveying the information had either
firsthand knowledge or a reliable informant. No effort was made
in this case to show that Officer Dregne's tips came from a
reliable informant.7 Such an effort, if successful, would have
made a substantial difference in establishing reasonable
suspicion.
¶52 The audio from the incident several times records an
urgent announcement, perhaps from the squad computer: "Warning,
potential hit." These announcements are never referred to in
the testimony or the argument, so that their import and
7
To assess the reliability of an anonymous tip, a totality
of the circumstances test is used. Illinois v. Gates, 462 U.S.
213, 230-31 (1983). Courts must take into account the quantity
and quality of information received during this analysis.
Alabama v. White, 496 U.S. 325, 330 (1990). The quantity and
quality are inversely proportionate: if one is relatively low,
the other must be relatively high for the tip to be deemed
reliable. Id. Courts consider such factors as awareness of the
informant's identity, an officer's past interactions with the
informant, and predictive information offered in the tip. See
United States v. Am, 564 F.3d 25 (1st Cir. 2009); United States
v. Crozier, 777 F.2d 1376, 1389 (9th Cir. 1985); State v.
Richardson, 156 Wis. 2d 128, 456 N.W.2d 830 (1990).
Officer Dregne's informant may not have been anonymous and
may have been completely reliable, but any such facts are not in
evidence.
17
No. 2013AP430-CR
relationship to Hogan, if any, are unknown. If either Deputy
Smith or Officer Dregne had been shown to know of Hogan's
criminal record, which included three felony convictions and a
drug conviction as well as his probationary status, the case for
reasonable suspicion would have been greatly strengthened.
After all, Hogan's statement to Deputy Smith that "I don't do
drugs" could have been challenged, and Hogan's immediate
explanation that Deputy Smith's observations could be attributed
to Hogan's use of prescription Adderall could have been viewed
even more skeptically because of background information from
reliable sources.
¶53 Reasonable suspicion here is a close question. But
the State's failure to tie up loose ends in circuit court should
not be rewarded just because the case is close. As a result, we
will not disturb the circuit court's conclusion that the
extension of the stop for field sobriety tests was not lawful.
B. Consent to Search
¶54 Our determination that the extension of the traffic
stop was not lawful, based on the record before us, does not
resolve this case. The somewhat unusual feature of the case is
that the evidence Hogan seeks to suppress was not obtained as a
result of the field sobriety tests but rather as a result of the
consensual search of Hogan's vehicle.
¶55 "Warrantless searches are per se unreasonable under
the Fourth Amendment." State v. Williams, 2002 WI 94, ¶18, 255
Wis. 2d 1 (2002). However, one of the "specifically established
and well-delineated" exceptions to the warrant requirement is
18
No. 2013AP430-CR
consent; if an individual freely gives consent for police to
search his or her vehicle, the police may do so without a
warrant. Id.¶56 Hogan does not dispute that he gave his consent for
Deputy Smith to search his truck. Instead, Hogan argues that
his illegal detention immediately prior to his consent tainted
the consent and Deputy Smith was therefore not excused from
obtaining a warrant to search Hogan's vehicle.
¶57 Consent analysis proceeds under a distinct framework
if consent was given following some illegal action by police.
Consent, even when voluntary, is not valid when obtained through
exploitation of an illegal action by police. State v. Phillips,
218 Wis. 2d 180, 204 (1998). Stated differently,
"[w]hen . . . consent to search is obtained after a Fourth
Amendment violation, evidence seized as a result of that search
must be suppressed as 'fruit of the poisonous tree' unless the
State can show a sufficient break in the causal chain between
the illegality and the seizure of evidence." Id.¶58 Attenuation analysis examines three factors to
determine whether consent is sufficiently attenuated from
illegal action to be removed from the taint of illegality: "(1)
the temporal proximity of the official misconduct and seizure of
evidence; (2) the presence of intervening circumstances; and (3)
the purpose and flagrancy of the official misconduct."
Phillips, 218 Wis. 2d at 206 (citing Brown v. Illinois, 422 U.S.
590, 603-04 (1975)). The application of these factors will vary
on a case-by-case basis. Our focus here is determining whether
19
No. 2013AP430-CR
these factors sufficiently safeguard constitutional protections
when the illegal action is the unlawful extension of a traffic
stop.
¶59 Hogan suggests that the third factor is inappropriate
in this analysis because the "subjective intent of . . . law
enforcement officers is irrelevant to whether . . . officers are
unfairly benefitting from the violation of . . . suspects'
rights." Hogan further contends that the focus in the
attenuation analysis should be on why the individual gave
consent. He offers a hybrid test that combines the first two
factors from Phillips with a constructive seizure analysis like
that in Williams.
¶60 Considering the closeness of this case with regard to
reasonable suspicion, it is no surprise that Hogan downplays the
importance of the third factor, i.e., the purpose and flagrancy
of the official misconduct. While flagrant violations of the
law by police should weigh against the validity of any
subsequent consent, see United States v. Edmons, 432 F.2d 577(2d Cir. 1970), the mere failure to establish reasonable
suspicion because the State did not submit all the evidence that
it had available is a different matter.
¶61 Hogan's desired focus on why a person gives consent
implicates questions of voluntariness. Involuntary consent is
invalid, regardless of any prior illegality or attenuation
therefrom. See State v. Vorburger, 2002 WI 105, ¶89, 255
Wis. 2d 537, 648 N.W.2d 829 (citing Schneckloth v. Bustamonte,
412 U.S. 218 (1973)). Attenuation analysis is not voluntariness
20
No. 2013AP430-CR
analysis, and it is not meant to cure the involuntary waiver of
rights. Rather, attenuation analysis examines whether voluntary
consent is tainted by prior illegality. Phillips, 218
Wis. 2d at 204-05.
¶62 Viewed in this light, we conclude that the attenuation
test laid out in Phillips is the proper test to apply for
analyzing voluntary consent to search a vehicle when that
consent comes after the illegal extension of a traffic stop.
The three Phillips factors adequately protect the rights of
motorists in such situations. In many ways, the concept of
constructive seizure——which Hogan argues should be included in
the analysis——is already built into the Phillips attenuation
test.
¶63 We have held that a traffic stop ends when a
reasonable person, under the totality of the circumstances,
would feel free to leave. Williams, 255 Wis. 2d 1, ¶35. Given
the wide range of possible "circumstances" in a traffic stop, it
is not possible to expound a bright-line rule of when the
reasonable driver would feel free to leave. However, it is not
uncommon for officers to tell drivers they are "free to leave,"
may be "on their way," or to "have a nice day" at the conclusion
of a traffic stop.
¶64 The end of a traffic stop is important to two of the
factors in the attenuation analysis. First, the circumstances
giving rise to the end of a traffic stop will often (though
perhaps not always) include the passage of time, which
implicates the first attenuation factor. Second, and more
21
No. 2013AP430-CR
important, the end of a traffic stop is a significant
intervening event for purposes of attenuation analysis.
¶65 Thus, Hogan's proposed hybrid attenuation test is
unnecessary because it would focus on improper factors while
placing redundant value on other factors. We see no reason to
replace the Phillips attenuation analysis in this context.
¶66 It is important to note that attenuation analysis may
not be necessary in all cases. "[A]ttenuation analysis is only
appropriate where, as a threshold matter, courts determine that
'the challenged evidence is in some sense the product of illegal
governmental activity.'" New York v. Harris, 495 U.S. 14, 19
(1990) (citation omitted). If the unlawful police conduct was
not a "but-for" cause of the search, attenuation analysis is
unnecessary because the consent is not tainted by the unlawful
conduct in such a case. See Hudson v. Michigan, 547 U.S. 586,
592 (2006).
¶67 After a traffic stop has ended, police may interact
with the driver as they would with any citizen on the street.
See Williams, 255 Wis. 2d 1, ¶35. That is, if a person is not
seized, police may request consent to search even absent
reasonable suspicion. See Florida v. Bostick, 501 U.S. 429, 431
(1991). In a sense, the end of a traffic stop places the
officer and driver back on equal footing, with the driver free
to leave if he wishes (because if the driver were not free to
leave, the traffic stop would not in fact have ended).
¶68 Given the myriad possible scenarios in which police
and the public may interact on the side of the road, we cannot
22
No. 2013AP430-CR
postulate that the end of a traffic stop will always render
attenuation analysis unnecessary. However, the end of the stop
will be a significant factor in determining the necessity of
attenuation analysis, at the very least.
¶69 In this case, we conclude that the end of the traffic
stop does render attenuation analysis unnecessary because it
cannot be said that the extension of the stop was a but-for
cause of Hogan's consent. Deputy Smith told Hogan that he was
free to leave, encouraged him to wear his seat belt, and advised
him to get his windshield fixed. He then returned to his squad
car. Deputy Smith waited approximately 16 seconds before re-
engaging Hogan. When we compare these facts to the facts in
Williams,8 we have little trouble concluding that Hogan was not
constructively seized at the time Deputy Smith requested his
consent to search the vehicle. A reasonable person, under the
totality of the circumstances, would have felt free to leave——to
drive across the street to his home.
8
In Williams, a police officer stopped the defendant's
vehicle for a traffic violation, for which the officer issued a
warning. The defendant signed the warning, the two shook hands,
and the officer told the defendant in a conversational tone he
could "get on [his] way." State v. Williams, 2002 WI 94, ¶¶9-
12, 255 Wis. 2d 1, 646 N.W.2d 834. After taking two steps
toward his squad car, the officer asked for and was granted
consent to search the vehicle, where the officer found heroin
and a weapon. Id., ¶12-13. This court determined the officer's
words and actions, considered as a whole, communicated
permission to leave and, therefore, the defendant was no longer
seized after the officer stated the defendant could "get on his
way." Id., ¶29. Because a reasonable person would have felt
able to leave the scene, the officer's subsequent questioning
did not constitute a seizure for purposes of the Fourth
Amendment and the defendant's consent was valid. Id., ¶28.
23
No. 2013AP430-CR
¶70 It is true that the emergency lights on Deputy Smith's
squad car remained on for the entire duration of the stop,
including the time in which Deputy Smith re-engaged Hogan.
However, that alone is not enough for us to conclude that the
stop had not ended. Police often may leave their emergency
lights on for safety reasons when they and the motorist are
pulling back onto the roadway after a traffic stop. The
continuing illumination of the emergency lights was not enough
to create an ongoing——or new——seizure of Hogan.
¶71 We therefore conclude that even though the extension
of the traffic stop has been deemed illegal, the extension of
the stop was not a but-for cause of the consent. The traffic
stop had concluded. Hogan had returned to his truck and was
free to leave. He gave consent to search after Deputy Smith re-
approached him and asked for consent.
¶72 Our conclusion that Hogan was not constructively
seized when Deputy Smith requested consent to search Hogan's
truck also resolves Hogan's argument that his consent was
invalid because it occurred during a constructive seizure
initiated without reasonable suspicion. As discussed above,
without a constructive seizure, police do not need reasonable
suspicion to request consent to search. See Bostick, 501 U.S.
at 431.
¶73 Because Hogan's rights were not violated, it was not
error for the circuit court to deny his motions to suppress.
IV. CONCLUSION
24
No. 2013AP430-CR
¶74 Although the question of whether the deputy had
reasonable suspicion to extend the traffic stop to administer
field sobriety tests is a close one, we conclude that the
extension was unlawful based on the evidence presented.
However, the defendant's subsequent consent to search his
vehicle came after the traffic stop had ended and the defendant
was told he was free to leave. Because the police did not
exploit the unlawful extension of the stop in order to gain
Hogan's consent to search his vehicle, attenuation analysis is
unnecessary in this case. Furthermore, Hogan was not
constructively seized when he gave consent to search his truck.
We therefore conclude that the defendant's consent was valid and
that it was not error for the circuit court to deny the
defendant's motion to suppress the evidence recovered from his
truck.
¶75 Accordingly, we affirm the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
25
No. 2013AP430-CR.akz
¶76 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the majority opinion. I write separately to note that, had the
circuit court determined that the facts were as the State
asserts, I would engage in the analysis that I put forth in my
concurrence in State v. Blatterman. See State v. Blatterman,
2015 WI 46, 362 Wis. 2d 138, 864 N.W.2d 26 (Ziegler, J.,
concurring) (arguing that, because a prohibited alcohol
concentration violation under Wis. Stat. § 346.63(1)(b) does not
require proof of impairment, standard field sobriety tests are
of limited value for determining whether a driver violated this
statute).
¶77 In the present case, Deputy Andrew Smith suspected
Patrick Hogan of operating a motor vehicle with a detectable
amount of a restricted controlled substance in his blood,
contrary to Wis. Stat. § 346.63(1)(am). This offense does not
require proof of impairment. State v. Smet, 2005 WI App 263,
¶23, 288 Wis. 2d 525, 709 N.W.2d 474. This offense has two
elements: (1) the defendant drove or operated a motor vehicle on
a highway; and (2) the defendant had a detectable amount of a
restricted controlled substance in his or her blood at the time
the defendant drove or operated a motor vehicle. See Wis. Stat.
§ 346.63(1)(am); Wis. JI——Criminal 2664B. Although poor
performance on standard field sobriety tests would support a
determination that there is probable cause to arrest someone who
is suspected of violating § 346.63(1)(am), operators may violate
this statute even though they are able to pass standard field
sobriety tests. Accordingly, whether a driver who violates this
1
No. 2013AP430-CR.akz
statute is brought to justice might often depend on whether
there is probable cause to arrest the driver and take him or her
to a hospital for further testing, regardless of how he or she
performs on standard field sobriety tests. In the present case,
the circuit court's findings of fact do not allow me to engage
in this type of analysis.
¶78 For the foregoing reasons, I respectfully concur.
2
No. 2013AP430-CR.awb
¶79 ANN WALSH BRADLEY, J. (dissenting). I agree with
the majority that "[c]onsent analysis proceeds under a distinct
framework if consent was given following some illegal action by
police. Consent, even when voluntary, is not valid when
obtained through exploitation of an illegal action by police."
Majority op., ¶57.
¶80 I also agree that "[w]hen . . . consent to search is
obtained after a Fourth Amendment violation, evidence seized as
a result of that search must be suppressed as 'fruit of the
poisonous tree' unless the State can show a sufficient break in
the causal chain between the illegality and the seizure of
evidence." Id. (quoting State v. Phillips, 218 Wis. 2d 180,
204, 577 N.W.2d 794 (1998)) (alteration in majority).
¶81 I part ways with the majority, however, when it comes
to the necessity of conducting an attenuation analysis. The
majority concludes that it is unnecessary "[b]ecause the police
did not exploit the unlawful extension . . . to gain Hogan's
consent." Majority op., ¶9. Yet, the very purpose of an
attenuation analysis is to determine whether the evidence
objected to was obtained by exploitation of a prior police
illegality.
¶82 Contrary to the majority's assertions, this case
presents the quintessential example of when an attenuation
analysis is needed. It is undisputed that the extension of the
traffic stop was unconstitutional. The deputy reengaged Hogan a
mere 16 seconds later, seeking consent to search.
1
No. 2013AP430-CR.awb
¶83 Where consent is obtained so closely on the heels of
acknowledged police misconduct, attenuation analysis is the
means by which we determine "whether the evidence objected to
was obtained by exploitation of a prior police illegality or
instead by means sufficiently attenuated so as to be purged of
the taint." State v. Anderson, 165 Wis. 2d 441, 447-48, 477
N.W.2d 277 (1991).
¶84 In this case an attenuation analysis reveals that the
taint from the deputy's unconstitutional actions was not
removed. Therefore the evidence obtained from that search must
be suppressed. Accordingly, I respectfully dissent.
I
¶85 The majority spends a substantial portion of its
analysis attempting to re-litigate the facts of this case to
determine whether the extension of the traffic stop was
unconstitutional. Majority op., ¶¶38-52. Ultimately, it
acquiesces, as it must, to the conclusion reached by the circuit
court and the court of appeals——the extension of the stop was
illegal. Id., ¶53.
¶86 Acknowledging that designating the extension unlawful
does not resolve the case, the majority turns its focus to
whether Hogan's consent for the search was tainted by the
extension. Id., ¶56. It observes that consent "is not valid
when obtained through exploitation of an illegal action by
police." Id., ¶57. It then explains that "[a]ttenuation
analysis examines three factors to determine whether consent is
sufficiently attenuated from illegal action to be removed from
2
No. 2013AP430-CR.awb
the taint of illegality." Id., ¶58. This statement is followed
by a lengthy discussion of those three factors. Id., ¶¶58-65.
¶87 Abruptly shifting paths, the majority fails to apply
the three factors. Instead, it considers whether a person in
Hogan's position would have felt free to leave after the
unlawful extension of the traffic stop. Id., ¶63. It
determines that a reasonable person would have felt free to
leave due to the deputy's statement: "you're free to go." See
id., ¶69. Based on this rationale, the majority sets aside the
preceding illegality in the traffic stop and determines that an
attenuation analysis is unnecessary. It states: "[b]ecause the
police did not exploit the unlawful extension of the stop in
order to gain Hogan's consent to search his vehicle, attenuation
analysis is unnecessary in this case." Id., ¶9. Without
conducting an attenuation analysis, the majority ultimately
concludes that Hogan's consent to the search was valid. Id.,
¶¶69, 71.
II
¶88 In asserting a reasonable person would have felt free
to leave after the unlawful extension of the traffic stop, the
majority constructs a fiction.
¶89 Hogan had been pulled over for not wearing his
seatbelt. After the deputy checked Hogan's license and
registration, he asked Hogan to step out of his vehicle.
Despite Hogan's clear agitation and expressed desire to go home,
the deputy prolonged the stop to such an extent that it
constituted an unconstitutional extension of the stop when he
3
No. 2013AP430-CR.awb
asked Hogan to perform multiple sobriety tests. After the tests
were completed, the Deputy told Hogan he was free to leave.
¶90 However, sixteen seconds after Hogan got back into his
vehicle, with the lights on the patrol car still flashing, the
deputy walked back to the defendant and reengaged. After asking
for and receiving Hogan's consent to search, the deputy found
methamphetamine, drug paraphernalia, and two loaded guns in
Hogan's vehicle.
¶91 Like United States Supreme Court Justice Souter, I
have a hard time imagining that an average individual would
believe that he has nothing to lose if he refuses to cooperate
with the police or that he had any free choice to ignore the
police altogether. United States v. Drayton, 536 U.S. 194, 212
(2002) (Souter, J., dissenting) ("It is very hard to imagine
that either [defendant] would have believed that he stood to
lose nothing if he refused to cooperate with the police, or that
he had any free choice to ignore the police altogether. No
reasonable passenger could have believed that, only an
uncomprehending one.").
¶92 The reasonable person "free to leave" standard bears
little relationship to what individuals actually believe:
Courts and scholars have repeatedly noted that the
free-to-leave test is a highly unrealistic judicial
construct that stretches credulity to its limits in
assuming that any reasonable person (young or old;
guilty or innocent) would literally feel free to leave
and ignore a police officer's questions without
consequence.
Jonathan S. Carter, You're Only as "Free to Leave" as You Feel:
Police Encounters with Juveniles and the Trouble with
4
No. 2013AP430-CR.awb
Differential Standards for Investigatory Stops In Re I.R.T., 88
N.C. L. Rev. 1389, 1410-11 (2010); see also Cty. of Grant v.
Vogt, 2014 WI 76, ¶31 n.14, 356 Wis. 2d 343, 850 N.W.2d 253 ("To
some extent, the 'reasonable person' here is a legal fiction.
That defendants often consent to searches of areas that reveal
incriminating evidence demonstrates that people often do not
feel free to decline an officer's request, even absent a
manifest show of authority.").
¶93 "[E]mpirical studies over the last several decades on
the social psychology of compliance, conformity, social
influence, and politeness have all converged on a single
conclusion: the extent to which people feel free to refuse to
comply is extremely limited under situationally induced
pressures." Janice Nadler, No Need to Shout: Bus Sweeps and the
Psychology of Coercion, 2002 Sup. Ct. Rev. 153, 155. As
Professor LaFave has observed "only the most thick-skinned of
suspects" would feel free to leave in some of the circumstances
that the Court has found such a freedom. Wayne R. LaFave,
Pinguitudinous Police, Pachydermatous Prey: Whence Fourth
Amendment "Seizures?", 1991 U. Ill. L. Rev. 729, 739-40.
¶94 In the present case, the very nature of the stop was
coercive. The deputy necessarily displayed his power and the
accoutrements of his authority in order to get Hogan to pull
over his vehicle. Once there, the deputy used his authority to
require Hogan's compliance with unconstitutional sobriety tests,
while another officer looked on. There was no real break
between this series of events and the deputy's request to search
5
No. 2013AP430-CR.awb
Hogan's vehicle. Although the deputy told Hogan he was free to
leave, within a mere 16 seconds, he reengaged seeking consent to
search Hogan's vehicle.
III
¶95 The majority's suggestion that Hogan's consent to
search his vehicle was unrelated to the illegality is also
unpersuasive. Would a reasonable person in Hogan's situation,
who is on probation and aware that there was methamphetamine,
drug paraphernalia, and two loaded guns in his vehicle, blithely
consent to a search of his vehicle absent the presence of
coercion? The answer is no. The illegal extension of the
traffic stop unquestionably played a role in Hogan's consent.
¶96 An application of attenuation analysis demonstrates
that the consent was not so attenuated from the illegality to
render it free of the taint from the unconstitutional extension
of the traffic stop.
¶97 Attenuation analysis is well-established in our
jurisprudence. Originating in the United States Supreme Court,
it was developed to help courts determine whether evidence
obtained following illegal police activity must be excluded as
the fruit of the poisonous tree. Wong Sun v. United States, 371
U.S. 471, 488 (1963). The Court set forth the relevant inquiry
as follows: "whether, granting establishment of the primary
illegality, the evidence to which instant objection is made has
been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary
taint." Id. (quoting Maguire, Evidence of Guilt, 221 (1959)).
6
No. 2013AP430-CR.awb
¶98 In Brown v. Illinois, 422 U.S. 590, 603-04 (1975), the
Supreme Court declined to adopt a "but for" approach based on a
causal connection, and announced instead three factors that
courts should consider in determining if evidence was
sufficiently attenuated from the initial illegality to purge it
of the primary taint: temporal proximity, the presence of
intervening circumstances, and the flagrancy of the misconduct.
¶99 I address each factor in turn:
¶100 The first factor, temporal proximity, requires a
consideration of "both the amount of time between the illegal
[act] and the consensual search and the conditions that existed
during that time." Phillips, 218 Wis. 2d at 206.
¶101 Sixteen seconds elapsed between the unconstitutional
extension of the stop and the time the deputy reengaged Hogan
seeking consent to search. In assessing temporal proximity, we
have previously determined that the timespan of a few minutes
weighs against a consensual search. Id.; see also United States
v. Macias, 658 F.3d 509, 524 (5th Cir. 2011) (thirty-second
interval between illegal extension of traffic stop and request
for consent weighed against attenuation); United States v.
Gregory, 79 F.3d 973, 979-80 (10th Cir. 1996) (passage of less
than a minute between return of driver's license and request to
search not sufficient to purge the taint of an illegal stop);
McGaughey v. State, 37 P.3d 130, 141 (Okla. Crim. App. 2001)
(the fact that only a few minutes had passed between the illegal
detention and the request for consent to search "weigh[ed]
heavily against finding the taint cleansed").
7
No. 2013AP430-CR.awb
¶102 The United Stated Supreme Court has stated that in
some circumstances even a 45-minute timespan would be
insufficient to purge the taint. Rawlings v. Kentucky, 448 U.S.
98, 107 (1980). Here, we are considering a mere 16 seconds that
passed between the illegal extension of the stop and the
deputy's reengagement, seeking consent to search Hogan's
vehicle. Such an abbreviated timespan weighs against
attenuation.
¶103 In considering temporal proximity, courts take into
account the conditions that existed. Admittedly, in some
circumstances, the existence of a congenial atmosphere may weigh
in favor of attenuation. See Rawlings, 448 U.S. at 109. In
this case it does not. Although the atmosphere during the
encounter was not overtly threatening, Hogan appeared agitated
throughout the stop, expressing his desire to leave. It was
only the deputy's assertion of authority that kept him there.
The extension of the stop further enhanced the unequal power
dynamic between the deputy and Hogan. Far from removing the
taint of the illegality, the conditions of the illegal extension
of the stop combined with the short time span between the
extension and the consent suggest that the consent was tainted
by the illegality.
¶104 The second factor, intervening circumstances, refers
to events occurring between the illegality and the consensual
search. Phillips, 218 Wis. 2d at 208. In this case, after the
extension of the stop, the deputy told Hogan that he was free to
leave and they both returned to their vehicles. Although these
8
No. 2013AP430-CR.awb
circumstances are significant as they could be viewed as an end
of the traffic stop, they are not sufficient to wipe clean the
slate such that the consent was untainted by the illegality.
¶105 This court described what intervening circumstances
would support a determination of attenuation in Phillips, 218
Wis. 2d 180. In that case, after illegally entering the
defendant's home, officers had a short discussion with the
defendant. An officer informed the defendant that they had
received information that the defendant had drug paraphernalia
and marijuana and explained that they did not have a warrant to
search his bedroom. Id. at 209. "This discussion was
significant [] because it provided the defendant with sufficient
information with which he could decide whether to freely consent
to the search." Id. at 208-09. We stated that the discussion
"illustrates that the defendant was not improperly surprised,
frightened, or confused when he consented to the search of his
bedroom," and thus concluded that the officers did not exploit
their unlawful entry to obtain consent to search. Id. at 209.
¶106 The circumstances in Phillips are not present in this
case. At no time did the deputy give any indication that Hogan
could decline the deputy's request to search his vehicle.
Indeed, during the unlawful extension of the stop, Hogan
expressed his belief that if he did not accede to the deputy's
requests, it would be used against him. Nothing in the deputy's
request for consent to search the vehicle would have dispelled
that belief. The intervening circumstances do not remove the
taint from the unlawful extension of the stop.
9
No. 2013AP430-CR.awb
¶107 The third factor to consider is "the purpose and
flagrancy of the official misconduct." Id. This factor
considers whether the conduct of the officers rose "to the level
of conscious or flagrant misconduct requiring prophylactic
exclusion." Anderson, 165 Wis. 2d at 451 (quoting Rawlings, 448
U.S. at 110).
¶108 The deputy's conduct indicates a conscious attempt to
gain consent for the search. His exchange with the other
officer at the scene suggests that the entire purpose of
extending the stop was to find a reason to search Hogan's
vehicle. Seeking consent to search is generally consistent with
exemplary work of law enforcement. Detaining a suspect longer
than reasonably justified by the stop in order to obtain consent
crosses the line. I acknowledge, however, that the deputy may
not have realized that the extension of the stop was unlawful.
Thus, it is hard to conclude that his conduct was flagrant.
Overall, this factor appears neutral in determining attenuation.
¶109 Having considered the three traditional factors of an
attenuation analysis, I conclude that on balance, they weigh
against a determination of attenuation. Although the third
factor appears neutral, both the first and second factors weigh
against it. The facts of this case and the relevant case law
reveal that there was no real break between the unconstitutional
extension of the traffic stop and the deputy's request for
consent to search Hogan's vehicle.
IV
10
No. 2013AP430-CR.awb
¶110 Although officers may conduct brief seizures when
there is reasonable suspicion of a traffic violation, "the
tolerable duration of police inquiries in the traffic-stop
context is determined by the seizure's 'mission'—to address the
traffic violation that warranted the stop." Rodriguez v. United
States, 135 S. Ct. 1609, 1614 (2015). As the majority
acknowledges, an officer may not extend the stop without
additional reasonable suspicion. Majority op., ¶35. Absent
such reasonable suspicion, the prolonged detention becomes an
unlawful seizure, intruding on the citizen's personal liberty.
¶111 Here, consent to search Hogan's vehicle was sought
only seconds after the illegal extension of the traffic stop.
To conclude that consent obtained so closely on the heels of
acknowledged police misconduct was valid would lend an air of
legitimacy to questionable police tactics. This is the classic
example of when the exclusionary rule should apply. See State
v. Scull, 2015 WI 22, ¶22, 361 Wis. 2d 288, 862 N.W.2d 562(observing that the two rationales for the exclusionary rule are
"assurance of judicial integrity and deterrence of unlawful
police conduct"). The evidence should have been suppressed.
¶112 Accordingly, for the reasons set forth above, I
respectfully dissent.
¶113 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
11
No. 2013AP430-CR.awb
12
No. 2013AP430-CR.awb
1