State v. Courtney C. Brown ( 2020 )

2020 WI 63
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP774-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Courtney C. Brown,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 388 Wis. 2d 161,931 N.W.2d 890
PDC No:2019 WI App 34 - Published
OPINION FILED: July 3, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 21, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Fond du Lac
JUDGE: Richard J. Nuss
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ROGGENSACK, C.J., ZIEGLER, and KELLY, JJ.,
joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion
in which KELLY, J., joined. DALLET, J., filed a dissenting
opinion.
NOT PARTICIPATING:
ANN WALSH BRADLEY, J., withdrew from participation. BRIAN
HAGEDORN, J., did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Elizabeth Nash, assistant state public defender. There
was an oral argument by Elizabeth Nash.
For the plaintiff-respondent, there was a brief filed by
Michael C. Sanders, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Michael C. Sanders.
An amicus curiae brief was filed on behalf of The American
Civil Liberties Union Foundation of Wisconsin by Kendall W.
Harrison, Linda S. Schmidt, Maxted M. Lenz, and Godfrey & Kahn,
S.C., Madison. With whom on the brief was Karyn Rotker and ACLU
of Wisconsin Foundation, Milwaukee.
2
2020 WI 63
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP774-CR
(L.C. No. 2013CF428)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. JUL 3, 2020
Courtney C. Brown, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ROGGENSACK, C.J., ZIEGLER, and KELLY, JJ.,
joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion
in which KELLY, J., joined. DALLET, J., filed a dissenting
opinion.
ANN WALSH BRADLEY, J., withdrew from participation.
BRIAN HAGEDORN, J., did not participate.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. Courtney Brown failed to
fully stop his car at a stop sign, prompting a police officer to
initiate a traffic stop. Brown contends the officer
impermissibly extended the stop after writing a ticket for the
traffic violation by asking Brown to exit the car, inquiring
No. 2017AP774-CR
about anything concerning in Brown's possession, and requesting
consent to search him. Brown seeks suppression of the cocaine
the officer found in Brown's possession when he searched him,
claiming that in the absence of reasonable suspicion, the Fourth
Amendment prohibited the officer's actions after he wrote the
traffic ticket, which Brown argues should have ended the mission
of the stop. We conclude the Constitution permits law
enforcement to ask a driver to exit the vehicle, inquire about
the presence of weapons, and request consent to search the
driver, all of which are negligibly burdensome actions relating
to officer safety, a well-established part of a traffic stop's
mission.1 We affirm the court of appeals.
I. BACKGROUND
¶2 At about 2:44 a.m. on August 23, 2013, Fond du Lac
Police Officer Christopher Deering, while on regular patrol,
noticed a car coming from a dead end street containing only
closed commercial properties. A record check revealed the car
belonged to a car rental company. After observing the car fail
to make a complete stop at a stop sign, Deering initiated a
traffic stop. He approached the car and observed that the
driver, identified as Brown, was not wearing a seatbelt.
1Because we conclude that the officer did not impermissibly
extend the traffic stop, we need not decide whether he had
reasonable suspicion to do so. See Gross v. Hoffman, 227
Wis. 296, 300, 277 N.W. 663 (1938) ("As one sufficient ground
for support of the judgment has been declared, there is no need
to discuss the others urged.").
2
No. 2017AP774-CR
¶3 Officer Deering asked Brown questions about his
whereabouts and destination that evening. Brown stated he was
going "nowhere really." Deering learned that Brown was from
Milwaukee, which Deering testified was a "source city for drugs"
because dealers can sell them at a higher price in the suburbs.
Brown told Deering he was visiting a friend in Fond du Lac.
Brown claimed to have been at this friend's house before Deering
pulled him over, although Brown was unable to provide the last
name of the friend or the street address of the house. Brown
also indicated that he came directly from Speedway, although
Deering had just witnessed Brown come from a dead end street of
closed businesses. During Deering's initial encounter with
Brown, two other officers arrived on the scene to provide safety
assistance, although neither made contact with Brown and
remained outside of his car on the passenger side.
¶4 Upon returning to his squad car, Officer Deering wrote
Brown a ticket for failing to wear a seat belt. While writing
the ticket, Deering ran a records search, which revealed Brown
had multiple prior arrests for drug crimes and an armed robbery
arrest. Based on Brown's suspicious story and these prior
arrests, Deering asked the dispatcher if any canine units were
available to perform a dog sniff of Brown's vehicle for drugs.
No dogs were available. Deering then re-approached Brown's car
with the completed traffic ticket in hand.
¶5 After making contact with Brown for a second time,
Officer Deering asked him to step out of the car. Deering led
Brown from the driver's side of Brown's car to the front of
3
No. 2017AP774-CR
Deering's squad car. Deering testified he "had [Brown] walk
back to [the] squad car." Brown claimed Deering "placed
[Brown's] hands behind [his] back and walked [him] to the front
of [Deering's] car." Both agreed that Deering did not handcuff
Brown while leading him back to Deering's squad car. Deering
then asked Brown if there was anything on Brown's person that
Deering "needed to know about" or "be concerned about." Deering
testified he asked this question to see if Brown "had any
illegal weapons or drugs" although he did not subjectively
consider the traffic stop to be high-risk and no "specific
factors" caused concern that Brown had weapons. Deering
testified Brown "could have [had weapons]." Brown answered that
he had nothing, but Deering asked for consent to search Brown's
person in order to verify Brown's response and then searched
him.2 The search uncovered 13 bindles, or approximately 4 grams,
of crack cocaine plus cash over $500. During this exchange and
search, Deering remained in possession of the traffic ticket and
Brown's driver's license. At no point prior to the search did
Deering return these documents or instruct Brown that he was
free to leave.
The parties dispute whether Brown gave consent.
2 Officer
Deering testified that he asked Brown "mind if I search you to
double check" and Brown answered "no." Brown testified that
Deering asked "could he search me," to which Brown responded
"no." The circuit court did not resolve this factual dispute
and we conclude it is not necessary to address it. See infra
n.8.
4
No. 2017AP774-CR
¶6 The State charged Brown with possession with intent to
deliver cocaine as a repeater, in violation of Wis. Stat.
§ 961.41(1m)(cm)1r (2017-18). Brown moved to suppress the drugs
and money found during Deering's search, arguing they were
fruits of an unlawful search because Deering's actions
unlawfully extended the stop and he lacked reasonable suspicion.
The circuit court denied the suppression motion.3 It found "the
scope of the stop and length of the stop were extended due to
the officer's suspicions of drug possession or drug activity[,]"
but the extension was supported by reasonable suspicion. Brown
thereafter pled no contest to one count of possession with
intent to deliver cocaine. The circuit court sentenced him to
two years of initial confinement and two years of extended
supervision.4 Brown appealed.5
¶7 The court of appeals concluded that the officer's
requests for Brown to exit the vehicle and consent to search, as
well as the search itself, were part of the mission of the
traffic stop and not an unlawful extension under the Fourth
3 The Honorable Dale L. English presided over this hearing.
4The Honorable Richard J. Nuss presided over the plea
hearing and sentencing, and entered the conviction.
5The court of appeals certified the following question to
this court: "[A]fter a ticket has been written but before
delivery, and in the absence of reasonable suspicion, does
asking a lawfully stopped motorist to exit the car, whether he
or she possesses anything of concern, and to consent to a search
unlawfully extend a traffic stop?" State v. Brown, No.
2017AP774-CR, unpublished slip op., *1 (Wis. Ct. App. Nov. 21,
2018). We declined review. State v. Brown, 2019 WI 21, 385
Wis. 2d 611, 926 N.W.2d 499.
5
No. 2017AP774-CR
Amendment. See State v. Brown, 2019 WI App 34, ¶¶17, 25, 388
Wis. 2d 161, 931 N.W.2d 890. Brown filed a petition for review,
which we granted.
II. STANDARD OF REVIEW
¶8 A party seeking suppression based on a Fourth
Amendment violation presents a question of constitutional fact.
State v. Smith, 2018 WI 2, ¶9, 379 Wis. 2d 86, 905 N.W.2d 353
(citing State v. Floyd, 2017 WI 78, ¶11, 377 Wis. 2d 394, 898
N.W.2d 560). "We review the circuit court's findings of
historical fact under the clearly erroneous standard. But the
circuit court's application of the historical facts to
constitutional principles is a question of law we review
independently." Id. (quoting Floyd, 377 Wis. 2d 394, ¶11).
III. ANALYSIS
A. Fourth Amendment General Principles
¶9 The Fourth Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV. The Fourth Amendment is "indispensable
to the full enjoyment of the rights of personal security,
personal liberty, and private property." 3 J. Story
Commentaries on the Constitution of the United States § 1895
(1833). Although many treat the warrant requirement as the
heart of the Fourth Amendment's prohibition against searches and
6
No. 2017AP774-CR
seizures, the Supreme Court repeatedly characterizes the
reasonableness of searches and seizures as its "ultimate
touchstone." See Riley v. California, 573 U.S. 373, 381 (2014)
("[T]he ultimate touchstone of the Fourth Amendment is
'reasonableness.'" (quoted source omitted)); Elkins v. United
States, 364 U.S. 206, 222 (1960) ("[W]hat the Constitution
forbids is not all searches and seizures, but unreasonable
searches and seizures.").
¶10 Searches or seizures without a warrant are generally
"per se unreasonable under the Fourth Amendment." Arizona v.
Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States,
389 U.S. 347, 357 (1967)). Although the Supreme Court has
carved out certain exceptions to the warrant requirement, these
exceptions remain subject to the Fourth Amendment's
reasonableness requirement. Kentucky v. King, 563 U.S. 452, 459
(2011) (citing Brigham City v. Stuart, 547 U.S. 398, 403
(2006)). One such exception exists for short investigative
stops if law enforcement has "a particularized and objective
basis" to suspect a person of criminal activity. Navarette v.
California, 572 U.S. 393, 396-97 (2014) (quoted source omitted);
see also Terry v. Ohio, 392 U.S. 1, 21 (1968) (investigatory
stop is reasonable when police have "specific and articulable
facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion"). This exception is
well-known as a "Terry" stop and "reasonable suspicion" renders
it constitutionally reasonable even without a warrant. See
Alabama v. White, 496 U.S. 325, 329-31 (1990); Smith, 379
7
No. 2017AP774-CR
Wis. 2d 86, ¶13. While a traffic stop constitutes a seizure
under the Fourth Amendment, it requires only reasonable
suspicion of a legal violation. See Rodriguez v. United States,
575 U.S. 348, 354-55 (2015); Floyd, 377 Wis. 2d 394, ¶¶20-21.
The reasonable length of a traffic seizure depends on the
"mission" of the stop, including law enforcement's "ordinary
inquiries" and "related safety concerns." Rodriguez, 575 U.S.
at 354; State v. Wright, 2019 WI 45, ¶9, 386 Wis. 2d 495, 926
N.W.2d 157; Smith, 379 Wis. 2d 86, ¶12 (citing Rodriguez, 575
U.S. at 355). A stop's length becomes unreasonable if extended
past the point "when tasks tied to the traffic infraction are——
or reasonably should have been——completed." Floyd, 377
Wis. 2d 394, ¶21 (quoting Rodriguez, 575 U.S. at 354).
B. Floyd & Wright
¶11 In State v. Floyd and State v. Wright, we recently
addressed constitutional challenges similar to the one Brown
presents. These cases control the resolution of Brown's case.
1. State v. Floyd
¶12 In Floyd, this court considered "where we draw the
line separating traffic stops of acceptable duration from those
that have been impermissibly extended." 377 Wis. 2d 394, ¶15.
In that case, law enforcement conducted a traffic stop of Lewis
Floyd, Jr., and upon initial contact, learned Floyd did not have
a driver's license or insurance information. Id., ¶4. The on-
scene deputy took Floyd's identification card and returned to
his squad car to write a ticket and inquire about available
canines; in the interim, another police officer arrived for
8
No. 2017AP774-CR
safety assistance. Id. When the on-scene deputy returned to
Floyd's car and while still in possession of Floyd's
identification card and completed ticket, the deputy asked
Floyd: (1) to exit the car; (2) if he had "any weapons or
anything that could harm him"; and (3) if the deputy could
search Floyd. Id., ¶5. The deputy found illegal drugs during
the search. Id. Floyd moved to suppress the evidence, arguing
on appeal that the search occurred after the traffic stop should
have been completed. Id., ¶¶7-9, 14. Floyd argued the
Constitution's prohibition against unreasonable seizures bars an
officer who has completed a traffic ticket from doing anything
beyond delivering the ticket and explaining it to the driver.
Id., ¶¶16, 25. Because the search of Floyd's person occurred
after this point, Floyd argued the stop was impermissibly
extended. Id.
¶13 The court explained "an officer is on the proper side
of the line so long as the incidents necessary to carry out the
purpose of the traffic stop have not been completed, and the
officer has not unnecessarily delayed the performance of those
incidents." Id., ¶22 (citing Rodriguez, 575 U.S. at 353-55).
An officer crosses the line when he continues the traffic
seizure "after he has completed all the necessary functions
attendant on the traffic stop." Floyd, 377 Wis. 2d 394, ¶22.
We then concluded the purpose of the stop included "tak[ing] the
time reasonably necessary to draft" the tickets and explain
them. Id., ¶23. "Until that is done, and so long as [law
enforcement] does not unnecessarily delay the process," the
9
No. 2017AP774-CR
stop's duration remains permissible. Id. We recognized that
Supreme Court precedent, as well as our own, rendered the
deputy's request to have Floyd exit the vehicle of "no
constitutional moment[.]" Id., ¶24 (citation omitted).
¶14 Turning to the search request, Floyd made clear that
the mission of a traffic stop includes actions taken pursuant to
officer safety, so long as those actions are "negligibly
burdensome." Id., ¶¶26-27. Because both questions——whether
Floyd had weapons on him and whether the deputy could search to
verify their absence——"related to officer safety and were
negligibly burdensome," we determined "they were part of the
traffic stop's mission, and so did not cause an extension."
Id., ¶28 (footnote omitted). Floyd reaffirmed the "request to
perform a search of [one's person] was part of the stop's
mission." Id., ¶43.
2. State v. Wright
¶15 Wright addressed whether law enforcement violated the
Fourth Amendment when police officers, without reasonable
suspicion of criminal activity: (1) asked about the presence of
weapons in the car; (2) asked whether the driver was a concealed
carry weapon permit ("CCW") holder; and (3) conducted a CCW
check. Wright, 386 Wis. 2d 495, ¶6. In that case, Milwaukee
police officers stopped John Patrick Wright for a broken
headlight. Id., ¶15. During the stop, an officer asked Wright
for his driver's license, whether he had a CCW permit, and
whether he had weapons in the car. Id., ¶16. Wright disclosed
the existence of a firearm in the glove compartment, which the
10
No. 2017AP774-CR
officers retrieved. Id., ¶17. One of the officers ran a CCW
check and discovered Wright did not have a valid permit. Id.,
¶18. The officers arrested Wright for unlawfully carrying a
concealed weapon. Id. Wright moved to suppress the evidence.
Id., ¶19. The circuit court granted Wright's motion, concluding
that the questions about having a CCW permit and the presence of
weapons impermissibly extended the traffic stop. Id. The court
of appeals agreed with the circuit court and affirmed. Id.,
¶20.
¶16 On review in this court, we repeated in Wright what we
stated in Floyd: a traffic stop's permissible duration depends
on the stop's "mission," which includes "(1) addressing the
traffic violation that warranted the stop; (2) conducting
ordinary inquiries incident to the stop; and (3) taking
negligibly burdensome precautions to ensure officer safety."
Wright, 386 Wis. 2d 495, ¶¶23-24 (footnotes omitted). We held
that a stop is impermissible if it extends past the point when
the mission is, "or reasonably should have been, completed."
Id., ¶24. We explicitly stated that questions related to an
officer's safety "are part of the traffic stop's
mission . . . [and] those questions do not cause an extension of
the stop." Id., ¶26 (citing Floyd, 377 Wis. 2d 394, ¶28). We
noted the Supreme Court "concluded that the Fourth Amendment
tolerate[s]" even those investigations unrelated to the stop's
mission, "so long as those inquiries do not measurably extend
the duration of the stop." Wright, 386 Wis. 2d 495, ¶27; see
Illinois v. Caballes, 543 U.S. 405, 407 (2005) ("A seizure that
11
No. 2017AP774-CR
is justified solely by the interest in issuing a warning ticket
to the driver can become unlawful if it is prolonged beyond the
time reasonably required to complete that mission.").
¶17 This court concluded that the question regarding the
presence of weapons was "part of the stop's mission because the
question [was] a negligibly burdensome precaution taken to
ensure officer safety." Wright, 386 Wis. 2d 495, ¶29. "Floyd
controls." Id., ¶34. We next determined that the CCW question
and permit check were "[i]nquiries unrelated to the original
justification for the stop" or officer safety, but were
nevertheless "permissible under the Fourth Amendment 'so long as
those inquiries [did] not measurably extend the duration of the
stop.'" Id., ¶38 (footnote omitted). Applying Caballes and
Rodriguez, we concluded neither the CCW question nor the permit
check "measurably extended the duration of the traffic stop."
Id., ¶¶45, 50.
¶18 In Caballes, the Supreme Court held a dog sniff of a
vehicle performed by one officer while another was writing a
traffic ticket did not unjustifiably extend the duration of the
stop and was constitutionally permissible. See Caballes, 543
U.S. at 406, 408-09. The stop in Caballes was not extended
because the "dog sniff occurred while the traffic stop's mission
was still being completed." Wright, 386 Wis. 2d 495, ¶40. In
contrast, Rodriguez held that a dog sniff performed after law
enforcement returned the driver's license and his traffic ticket
to the driver violated the Fourth Amendment because it
"exceed[ed] the time needed to handle the matter for which the
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No. 2017AP774-CR
stop was made" and "prolonged beyond the time reasonably
required to complete th[e] mission" of the stop. Rodriguez, 575
U.S. at 350-52; see also Wright, 386 Wis. 2d 495, ¶41 ("The
Rodriguez Court reached this conclusion because . . . the dog
sniff . . . prolonged the stop beyond the time reasonably
required to complete the mission of the stop."). The key
distinction between Caballes and Rodriguez centered on the
timing of the dog sniff. "[I]n Caballes, the dog sniff added no
time" to the stop because it "was conducted simultaneously with
mission-related activities[,]" whereas "[i]n Rodriguez, all
mission-related activities had been completed[.]" Wright, 386
Wis. 2d 495, ¶43.
C. Application to Brown
¶19 Brown challenges the constitutionality of every action
by Officer Deering after he re-approached Brown's vehicle
without simply handing the completed seatbelt ticket to Brown.
We address each action in turn.
1. Asking/Ushering Brown Out of His Vehicle
¶20 First, Officer Deering asked Brown to step out of the
vehicle. This action is "of no constitutional moment." See
Floyd, 377 Wis. 2d 394, ¶24. When a motorist is "lawfully
detained for a traffic violation . . . officers may order the
driver to get out of the vehicle without violating the Fourth
Amendment[.]" Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6
(1977). This is a per se rule allowing officers to order
drivers out of the vehicle during a lawful traffic stop. See
State v. Johnson, 2007 WI 32, ¶23, 299 Wis. 2d 675, 729
13
No. 2017AP774-CR
N.W.2d 182. In establishing this bright-line rule decades ago,
the Supreme Court weighed the "legitimate and weighty"
consideration of officer safety as well as "[t]he hazard of
accidental injury from passing traffic to an officer standing on
the driver's side of the vehicle" against "the intrusion into
the driver's personal liberty . . . by the order to get out of
the car." Mimms, 434 U.S. at 110-11. Concluding that the
latter "hardly rises to the level of a 'petty indignity'" the
Supreme Court concluded that "[w]hat is at most a mere
inconvenience cannot prevail when balanced against legitimate
concerns for the officer's safety." Id. at 111 (quoted source
and footnote omitted).
¶21 Brown argues Rodriguez narrowed the per se rule of
Mimms to allow removal from a vehicle only if attendant to the
mission of the stop. Not quite. With respect to Mimms,
Rodriguez said only that a dog sniff did not serve the same
"highway and officer safety . . . interests" as those justifying
ordering the driver to exit the vehicle, while emphasizing that
the officer safety interest "stems from the mission of the stop
itself." Rodriguez, 575 U.S. at 356-57. As Brown conceded at
oral argument, issuing a traffic ticket is part of the traffic
stop. At the time Deering directed Brown to exit the vehicle,
Deering still had the ticket and Brown's driver's license in his
possession, leaving part of the traffic stop's mission
uncompleted. See Floyd, 377 Wis. 2d 394, ¶23 ("Until [drafting
the tickets and explaining them to the driver] is done, and so
long as [law enforcement] does not unnecessarily delay the
14
No. 2017AP774-CR
process, the permissible duration of the traffic stop has not
elapsed." (citing Rodriguez, 575 U.S. at 354-55)). Finally,
Brown argues the stop "reasonably should have been completed"
because Deering had completed writing the ticket, so all that
remained was handing the ticket to Brown and ending the seizure.
We rejected this argument in Floyd and have no reason to
reconsider it. Id., ¶¶25, 28. Because the mission of the stop
continued, officer safety remained a viable concern and the per
se rule of Mimms fully applies.
2. Walking Brown to the Front of Officer Deering's Squad Car
¶22 We next consider Brown's challenge to the
constitutionality of Officer Deering guiding Brown to the front
of his squad car. While the parties dispute whether Brown's
hands were behind his back during this movement, it is
undisputed that Brown was not handcuffed. Deering testified
that he "had [Brown] walk back to [his] squad car," while Brown
claims Deering "placed [his] hands behind [his] back and walked
[him] to the front of [Deering's squad] car." The circuit court
did not make any finding regarding this factual dispute, instead
noting it was a question of whether one believes Deering or
Brown. As the circuit court concluded, this factual
determination is irrelevant. Under either scenario, Brown was
seized within the meaning of the Fourth Amendment, but the
placement of his hands is immaterial to whether the stop was
impermissibly extended.
¶23 Officer Deering did not impermissibly extend the stop
by moving Brown to the front of his squad car. In determining
15
No. 2017AP774-CR
that law enforcement may request a driver to exit the vehicle
during a lawful traffic stop, Mimms recognized the inherent
danger of the driver and officer standing a few feet from
passing traffic:
The hazard of accidental injury from passing traffic
to an officer standing on the driver's side of the
vehicle may also be appreciable in some situations.
Rather than conversing while standing exposed to
moving traffic, the officer prudently may prefer to
ask the driver of the vehicle to step out of the car
and off onto the shoulder of the road where the
inquiry may be pursued with greater safety to both.
Mimms, 434 U.S. at 111 (emphasis added). In past cases with
similar facts, we have never declared any constitutional
infirmity with ordering a driver to exit the vehicle during a
lawful traffic stop. See Johnson, 299 Wis. 2d 675, ¶¶6, 48
(driver led to the back of his vehicle, then to the curb; court
held search of person impermissible on other grounds); State v.
Malone, 2004 WI 108, ¶¶7, 47, 274 Wis. 2d 540, 683 N.W.2d 1
(driver asked to step out of the vehicle and led behind it;
court held law enforcement conduct reasonable). There is no
distinction for Fourth Amendment purposes between law
enforcement directing a driver to stand next to his car, at the
curb, or behind his car, and leading a driver to the front of
the officer's squad car.
3. Asking About Anything on Brown's Person
¶24 While Brown stood in front of the squad car, Officer
Deering asked if Brown had anything on his person about which
16
No. 2017AP774-CR
Deering should be concerned.6 While the parties dispute the
exact wording of the question, they agree on the material point:
Deering did not specify "weapon" or anything similar. At the
suppression hearing, Dearing indicated he asked the question to
see if Brown "had any illegal weapons or drugs." Deering did
not subjectively believe the stop was high-risk or that a weapon
was present.
¶25 Deering's subjective beliefs do not play any role under
Fourth Amendment analyses. Under the Fourth Amendment, we
review law enforcement actions with an objective lens. See
Whren v. United States, 517 U.S. 806, 812-13 (1996) ("Not only
have we never held, outside the context of inventory search or
administrative inspection . . . , that an officer's motive
invalidates objectively justifiable behavior under the Fourth
Amendment; but we have repeatedly held and asserted the
contrary."; "[Our] cases foreclose any argument that the
constitutional reasonableness of traffic stops depends on the
actual motivations of the individual officers involved.";
"Subjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.").
6 The testimony differed as to the exact wording, with
Officer Deering testifying he asked if there "was anything on
[Brown] I needed to know about," while Brown testified the
question was "did [Brown] have anything on [him] that [he]
shouldn't have." Brown then clarified the exact question was
"did [Brown] have anything that [Deering] should be concerned
about." Regardless, the general gist of each variation of the
question is the same.
17
No. 2017AP774-CR
¶26 Our inquiry instead examines whether an officer has a
constitutionally reasonable safety concern regarding the
presence of a weapon after hearing a story inconsistent with the
officer's observations, from a driver with prior arrests for
drug crimes and armed robbery, who was driving a rental car,7 and
who was unclear about his whereabouts after leaving his
residence in a city the officer knew to be a source for drugs.
We conclude that he does.
¶27 In Floyd, we said an officer asking whether Floyd "had
any weapons or anything that could harm him" was a negligibly
burdensome question posed pursuant to officer safety and within
the mission of the stop. Floyd, 377 Wis. 2d 394, ¶28; see also
Wright, 386 Wis. 2d 495, ¶¶29, 34 (holding the same). Brown
argues that the Constitution requires law enforcement to
specifically mention "weapons" as the officer did in Floyd. The
law generally rejects imposing "magic words" requirements. See
State v. Lepsch, 2017 WI 27, ¶36, 374 Wis. 2d 98, 892 N.W.2d 682
(rejecting in the context of a circuit court inquiring about
juror bias); Elections Bd. v. Wis. Mfrs. & Commerce, 227
Wis. 2d 650, 654, 669-70, 597 N.W.2d 721 (1999) (rejecting in
the context of what is required to be "express advocacy"); see
also Patchak v. Zinke, 138 S. Ct. 897, 905 (2018) (noting that
the Supreme Court refrains from reading statutes to "incant
magic words" (quoted source omitted)).
7At the suppression hearing, Officer Deering testified that
in his experience, drug dealers "often use rental cars."
18
No. 2017AP774-CR
¶28 We have expressly declined to impose a "magic words"
requirement in the Fourth Amendment context as well. See State
v. Wantland, 2014 WI 58, ¶33, 355 Wis. 2d 135, 848 N.W.2d 810
(rejecting "particular 'magic words'" in assessing whether
consent is withdrawn). Officer Deering testified the reason for
this question was to inquire about any possible weapons on
Brown's person. During a traffic stop, knowledge of weapons
carried by occupants of a vehicle is integral to officer safety.
See Wright, 386 Wis. 2d 495, ¶¶25, 29-34 (asking about the
presence of weapons is a less burdensome intrusion than other
authorized intrusions such as requesting persons out of the
vehicle; "traffic stops are 'especially fraught with danger to
police officers'" (quoting Michigan v. Long, 463 U.S. 1032, 1047
(1983)). Deering's question was negligibly burdensome and
pursuant to the stop's mission because it concerned officer
safety.
¶29 The Fourth Amendment allows unrelated investigative
inquiries not related to the mission of the stop, provided such
inquiries do not "measurably extend the duration of the stop."
Wright, 386 Wis. 2d 495, ¶38 (quoted source omitted). Deering's
question regarding Brown's possession of any concerning items
did not "measurably extend the duration of the stop" because it
was posed "concurrently with mission-related activities." See
id., ¶¶45, 47, 49, 50 (holding a question about a CCW permit and
an ensuing check did not violate the defendant's Fourth
Amendment rights because they were done "concurrently with
mission-related activities" and did not "measurably extend the
19
No. 2017AP774-CR
duration of the traffic stop"); Floyd, 377 Wis. 2d 394, ¶23
("Until [drafting the tickets and explaining them to the driver]
is done, and so long as [law enforcement] does not unnecessarily
delay the process, the permissible duration of the traffic stop
has not elapsed." (citing Rodriguez, 575 U.S. at 354-55)).
¶30 Wright and Floyd control; the Constitution does not
require law enforcement to use the word "weapon" when asking a
driver about his possessions during a traffic stop. Deering's
inquiry was part of the stop's mission because it was a
"negligibly burdensome precaution[] . . . to complete his
mission safely." Rodriguez, 575 U.S. at 357.
4. Asking for Consent to Search Brown's Person
¶31 Finally, Brown challenges Officer Deering's request to
search Brown's person. As we discussed in Floyd, while a frisk
can be a severe intrusion, "a request to conduct such a search
cannot." 377 Wis. 2d 394, ¶28. Deering's request for consent
to search Brown in order to verify that Brown had no weapons was
constitutionally permissible as a negligibly burdensome inquiry
related to officer safety.
* * *
¶32 We hold that Officer Deering's actions did not
impermissibly extend the stop and were reasonable within the
meaning of the Fourth Amendment. Officer Deering's actions and
inquiries each related to officer safety, which is part of any
stop's mission. At the time Deering undertook them, the mission
of the stop had not been completed, nor should it reasonably
have been completed because Deering had not issued the seatbelt
20
No. 2017AP774-CR
ticket, explained it, or released Brown from the seizure. See
Arizona v. Johnson, 555 U.S. 323, 333 (2009) ("The temporary
seizure of [a] driver . . . continues, and remains reasonable,
for the duration of the stop. Normally, the stop ends when the
police have no further need to control the scene, and inform the
driver . . . they are free to leave." (citing Brendlin v.
California, 551 U.S. 249, 258 (2007) (discussing law
enforcement's control over the stop includes giving permission
or indication before one is free to leave and the stop ends)));
Floyd, 377 Wis. 2d 394, ¶23 (stop's permissible duration
includes drafting and explaining tickets to a driver).
V. CONCLUSION
¶33 Our determination in this case is governed by Floyd
and Wright. We tread no new ground. Consistent with our
precedent, and the Supreme Court cases on which those precedents
rely, we conclude that Officer Deering did not impermissibly
extend Brown's traffic stop beyond constitutional boundaries.
Asking Brown to step out of the vehicle, ushering him a few feet
away from the road, asking Brown whether he possessed anything
that could harm Deering, and requesting consent for a search,
were all negligibly burdensome actions directly related to
officer safety and therefore part of the stop's mission.
Because the mission of the stop had yet to be completed, there
21
No. 2017AP774-CR
was no impermissible extension. The stop and Deering's actions
in conducting it were reasonable under the Fourth Amendment.8
By the Court.—The decision of the court of appeals is
affirmed.
¶34 ANN WALSH BRADLEY, J. withdrew from participation.
¶35 BRIAN HAGEDORN, J. did not participate.
8 Brown argues this case should be remanded because there is
an unresolved factual issue of consent to Officer Deering's
request to search. The circuit court did not decide the consent
issue, but assumed Brown consented for the suppression hearing
and noted a determination on consent was "an issue for a
different day[.]" Brown later pled no contest pursuant to a
plea agreement with the State. During the plea hearing, Brown
acknowledged that he was giving up certain constitutional
rights. At no point did Brown or the circuit court raise the
consent issue. Nor did Brown raise the unresolved consent issue
in the sentencing hearing.
On appeal, Brown did not make an argument regarding the
factual issue of consent to the search until his reply brief.
He indicated "suppression issues regarding whether there was
consent need to be argued in the trial court if they are to be
raised in the appellate court; however, he has not raised said
issue on appeal." In a footnote, Brown also indicated "[t]he
factual matter whether Brown consented to the search is moot"
given his arguments on appeal.
Under the guilty-plea-waiver rule, Brown abandoned the
issue of whether he consented to the search. See State v.
Kelty, 2006 WI 101, ¶18 294 Wis. 2d 62, 716 N.W.2d 886 ("The
general rule is that a guilty, no contest, or Alford plea
'waives all nonjurisdictional defects, including constitutional
claims[.]'" (quoted source and footnote omitted)). We also
note that Brown abandoned his consent argument in the circuit
court. See State v. Woods, 144 Wis. 2d 710, 716, 424 N.W.2d 730
(1988) (explaining that an undecided motion to suppress was
abandoned where it was not raised or pursued before final
judgment).
22
No. 2017AP774-CR.rgb
¶36 REBECCA GRASSL BRADLEY, J. (concurring). In his
concurrence below, Court of Appeals Judge Paul Reilly asserts
that under Wright and Floyd,1 "our Fourth Amendment protection
against warrantless searches and seizures when stopped on the
roadway has been eliminated[,]" suggesting that a police officer
must have reasonable suspicion that the driver "has committed or
is committing an offense" separate from the traffic violation
precipitating the stop in order to conduct a search unrelated to
the reason for the stop. State v. Brown, 2019 WI App 34, ¶¶26-
27, 388 Wis. 2d 161, 931 N.W.2d 890 (Reilly, J., concurring).
Justice Rebecca Dallet repeats this error in her dissent,
asserting that "ordering Brown out of the vehicle initiated a
Terry2 stop requiring independent reasonable suspicion that
criminal activity was in progress." Dissent, ¶55. Judge
Reilly's and Justice Dallet's perceptions of Fourth Amendment
jurisprudence are unmoored from the Constitution. In Caballes
and Johnson,3 the United States Supreme Court "concluded that the
Fourth Amendment tolerated certain unrelated investigations that
did not lengthen the roadside detention." Rodriguez v. United
States, 575 U.S. 348, 354 (2015). Reasonable suspicion must be
1 See State v. Wright, 2019 WI 45, 386 Wis. 2d 495, 926
N.W.2d 157; State v. Floyd, 2017 WI 78, 377 Wis. 2d 394, 898
N.W.2d 560. Wright was a unanimous decision of this court,
authored by Justice Shirley Abrahamson.
2 Terry v. Ohio, 392 U.S. 1 (1968).
3 See Illinois v. Caballes, 543 U.S. 405 (2005); Arizona v.
Johnson, 555 U.S. 323 (2009).
1
No. 2017AP774-CR.rgb
present only if the traffic stop "is prolonged beyond the time
reasonably required to complete the mission" of issuing a
ticket. Id. at 354-55 (quoted source omitted).
¶37 After misstating the law, Judge Reilly accuses this
court of not only approving discriminatory police practices, but
also "authorizing and condoning the profiling of persons." See
Brown, 388 Wis. 2d 161, ¶32 (Reilly, J., concurring). He
suggests that "all persons stopped for a traffic violation
should be required to exit their vehicle and be searched so as
to eliminate the profiling that is made necessary by the
reasoning of Wright and Floyd." Brown, 388 Wis. 2d 161, ¶32
(Reilly, J., concurring). After hyperbolically likening those
decisions to Dred Scott,4 Judge Reilly claims they "continue,
albeit implicitly, the bias that not all people are created
equal by authorizing police to pick and choose who they will
pull from cars for minor traffic violations." Brown, 388
Wis. 2d 161, ¶33 (Reilly, J., concurring). Judge Reilly does
not offer any basis for his accusation that law enforcement
officers conduct their duties in a biased manner, much less that
this court requires them to do so.
¶38 Reasonable judges may disagree about the meaning or
application of the law. However, intentionally inciting racial
tensions while demeaning the integrity of Wisconsin's highest
court erodes public confidence in the judiciary and damages the
institution of the court. The Code of Judicial Conduct requires
judges to "respect and honor the judicial office as a public
4 Dred Scott v. Sandford, 60 U.S. 393 (1857).
2
No. 2017AP774-CR.rgb
trust and strive to enhance and maintain confidence in our legal
system" and "uphold the integrity and independence of the
judiciary." Code of Judicial Conduct, SCR ch. 60. Suggesting
that this court approves discriminatory police practices does
not "maintain confidence in our legal system[,]" nor does it
"respect and honor the judicial office as a public trust." Id.
Rather, such inflammatory rhetoric, particularly with the
imprimatur of a published judicial opinion, impugns the
integrity and independence of the judiciary.
¶39 Comparing recent decisions of this court to one of the
United States Supreme Court's most abhorrent cases also
questions the integrity of this court. So too does the
suggestion that this court knowingly allows profiling against
protected groups of people. The Code of Judicial Conduct
requires judges to "act at all times in a manner that promotes
public confidence in the integrity and impartiality of the
judiciary." SCR 60.03(1). Such "attacks unnecessarily tear at
the fabric of institutional legitimacy." Chief Justice Patience
Roggensack, Tough Talk and the Institutional Legitimacy of Our
Courts, Hallows Lecture (Mar. 7, 2017), in Marquette Lawyer,
Fall 2017, at 47. "It is a privilege to be a member of the
judiciary, but with that privilege comes considerable
responsibility. When we speak, . . . we need to choose language
that expresses our concerns about court opinions . . . .
However, we can do so by choosing language that maintains the
institutional legitimacy of our courts[.]" Id. at 51.
3
No. 2017AP774-CR.rgb
¶40 Rather than focusing on the Constitution, Justice
Dallet deplores "the real-world consequences" of the court's
decision. Dissent, ¶74. Citing nothing but social science
research, Justice Dallet posits "[t]he influence of implicit
bias is particularly problematic in the policing context" and
"'translate[s] most readily into discriminatory behavior'" and
"racial profiling" by the police. Dissent, ¶77 (quoted source
omitted). Although expressed in less provocative terms than
Judge Reilly's concurrence in the court of appeals, Justice
Dallet claims "the majority opinion turns a blind eye to the
disparities caused by implicit bias." Dissent, ¶78.
Considering the consequences of a decision for certain groups of
people conflicts with the judicial oath to "administer justice
without respect to persons"5 and inappropriately assumes a role
in developing policy more appropriate for the political branches
of government than an impartial judiciary tasked with declaring
what the law is rather than what it should be. See Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 353 (2012). Social science research has nothing
whatsoever to say about the meaning of the Fourth Amendment or
any other provision of the constitution and "cannot form the
basis upon which we decide matters of constitutional principle."
See Missouri v. Jenkins, 515 U.S. 70, 114, 119-20 (1995)
(Thomas, J., concurring).
¶41 The odious outcomes of decisions grounded in social
science or majoritarian beliefs should cause jurists to recoil
5 Wis. Stat. § 757.02.
4
No. 2017AP774-CR.rgb
from tethering their opinions to anything but the law.
"Historically, when courts contaminate constitutional analysis
with then-prevailing notions of" social scientists professing
what is "best" for society, the constitutionally-guaranteed
rights of the people have been trampled. State v. Roberson,
2019 WI 102, ¶¶84-86, 389 Wis. 2d 190, 935 N.W.2d 813 (Rebecca
Grassl Bradley, J., concurring). "Departures from
constitutional text have oppressed people under all manner of
pernicious pretexts:
[T]he notion of "social harm" supporting the police
power was completely untethered from constitutional
text and ripe for misuse in the hands of a Justice
such as Holmes, who believed that the Constitution
could be reduced to ad hoc balancing. Eugenics was
built upon the notion of harm; indeed, it thrived on a
sense of imminent doom: that society was degenerating
because of what were called its "weaklings" and
"discards." The idea that society was being swamped
by incompetents was a common trope for eugenicists:
the unfit were a "menace." . . . Like the great
popular eugenicists of the day, Holmes wrote in Buck[6]
that eugenics would prevent society from being
"swamped" by incompetents, that fewer criminals would
be executed, and that fewer imbeciles would starve.
Victoria Nourse, Buck v. Bell: A Constitutional Tragedy from a
Lost World, 39 Pepp. L. Rev. 101, 114-15 (2011) (emphasis added;
footnotes omitted)." Roberson, 389 Wis. 2d 190, ¶84 (Rebecca
Grassl Bradley, J., concurring).
¶42 In her dissent, Justice Dallet assigns an "important
role" to "social science research in guiding the United States
Supreme Court to correct course when the law has allowed
government infringement of protected civil liberties." Dissent,
6 Buck v. Bell, 274 U.S. 200 (1927).
5
No. 2017AP774-CR.rgb
¶74 n.7. Social science research should guide policymakers in
the legislature. The judiciary's guide should be the law alone.
Brown v. Board of Educ., 347 U.S. 483 (1954) was rightly decided
because an original understanding of the Fourteenth Amendment's
equal protection clause forbids racial segregation, not because
psychological studies revealed its damaging effects on school
children. See Robert H. Bork, The Tempting of America: The
Political Seduction of the Law, 74-83 (1990). It is the
Constitution itself, not the application of social science
research, that protects the people from violations of their
civil rights. "In rebuking his colleagues for upholding
segregation, Justice John Marshall Harlan rightly relied solely
upon the Constitution:
But in view of the constitution, in the eye of the
law, there is in this country no superior, dominant,
ruling class of citizens. There is no caste here. Our
constitution is color-blind, and neither knows nor
tolerates classes among citizens. In respect of civil
rights, all citizens are equal before the law. The
humblest is the peer of the most powerful. The law
regards man as man, and takes no account of his
surroundings or of his color when his civil rights as
guaranteed by the supreme law of the land are
involved.
Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J.,
dissenting)." Roberson, 389 Wis. 2d 190, ¶85 (Rebecca Grassl
Bradley, J., concurring (emphasis added)).
¶43 More often than not, an opinion dependent upon social
science research for its conclusions is written to reach the
outcome desired by a majority of justices rather than the result
compelled by the Constitution, illustrating "how far beyond any
cognizable constitutional principle the Court has reached to
6
No. 2017AP774-CR.rgb
ensure that its own sense of morality and . . . justice pre-
empts that of the people and their representatives." Graham v.
Florida, 560 U.S. 48, 124 (2010) (Thomas, J., dissenting). For
example, in Atkins v. Virginia, 536 U.S. 304 (2002), the United
States Supreme Court held that executions of "mentally retarded"
criminals were "cruel and unusual punishments" prohibited by
"evolving standards of decency" the Court grafted onto the
Eighth Amendment. Id. at 321. The Court's conclusion had "no
support in the text or history of the Eighth Amendment" and
constituted "an opinion of this Court rest[ing] so obviously
upon nothing but the personal views of its Members." Id. at 337
(Scalia, J., dissenting). Because the meaning of the Eighth
Amendment did not support the Court's preferred outcome, it
resorted to relying on the "views of assorted professional and
religious organizations, members of the so-called 'world
community,' and respondents to opinion polls." Id. at 347,
(Scalia, J., dissenting).
¶44 Similarly, in another case cited in Justice Dallet's
dissent, "[t]o support its opinion that States should be
prohibited from imposing the death penalty on anyone who
committed murder before age 18, the Court looks to scientific
and sociological studies, picking and choosing those that
support its position. It never explains why those particular
studies are methodologically sound; none was ever entered into
evidence or tested in an adversarial proceeding." Roper v.
Simmons, 543 U.S. 551, 616-17 (2005) (Scalia, J., dissenting).
Justice Dallet commits the same errors, ostensibly "to
7
No. 2017AP774-CR.rgb
illustrate empirically how far our jurisprudence has strayed
from the original meaning of the Fourth Amendment." Dissent,
¶74. Conflating correlation and causation, Justice Dallet
proceeds to selectively cite a litany of research but neglects
to explain how contemporary social science studies could
possibly inform the original meaning of the Fourth Amendment.
¶45 Justice Dallet says I "disregard[] the important role
of social science research in guiding" judicial decision-making.
Dissent, ¶74 n.7. I don't disregard it; I emphatically reject
it. Embracing social science research as a methodology of
constitutional interpretation is a license for judges to inject
their subjective views into opinions rather than applying the
law as it is written. A judicial philosophy of interpreting the
Constitution to mean whatever a majority of justices wants it to
mean renders our supreme law pointless and transforms the
judiciary from adjudicators into policymakers. "By what
conceivable warrant can nine lawyers presume to be the
authoritative conscience of the Nation? The reason for
insistence on legislative primacy is obvious and fundamental:
'[I]n a democratic society legislatures, not courts, are
constituted to respond to the will and consequently the moral
values of the people.'" Roper, 543 U.S. at 616 (Scalia, J.,
dissenting) (footnote omitted; formatting altered; quoted
sources omitted).
¶46 We should be particularly wary of courts invoking
social science research as the basis for judicial opinions
because "[d]eplorable decisions such as Plessy v. Ferguson and
8
No. 2017AP774-CR.rgb
Buck v. Bell were rooted in evil concepts supported by
social science and elitist mores antithetical to the
Constitution." Roberson, 389 Wis. 2d 190, ¶86. A faithful
application of the Constitution's original meaning "precludes
appalling social science-based notions of the day from infecting
constitutional analysis. Only the Constitution can serve as a
reliable bulwark of the rights and liberty of the people." Id.
When applied by courts in the past, theories derived from social
science have been fraught with error, at best, and have
repeatedly resulted in grave abuses of individual rights and
liberty. That reason alone should suffice to persuade jurists
to reject social science when interpreting the Constitution.
¶47 Judge Reilly's concurrence in the court of appeals and
Justice Dallet's dissent both rest on legal fallacies. Justice
Reilly lodges baseless accusations against law enforcement and
this court, and Justice Dallet's analysis rests heavily on
social science research rather than the actual meaning of the
Fourth Amendment. I write separately to underscore the dangers
of employing inflammatory rhetoric that erodes the institutional
legitimacy of the judiciary and to decry the tainting of
constitutional analysis with social science research.
¶48 I am authorized to state that Justice DANIEL KELLY
joins this concurrence.
9
No. 2017AP774-CR.rfd
¶49 REBECCA FRANK DALLET, J. (dissenting). Officer
Christopher Deering could have safely returned Courtney Brown's
license and warned him of the need to wear a seat belt, thus
completing the remaining tasks tied to a traffic stop made on
August 23, 2013. Instead, Officer Deering ordered Brown out of
the car for the express purpose of requesting consent to search
him for illegal drugs. Because the traffic stop was
unreasonably extended without independent reasonable suspicion
that a crime had been committed, the subsequent search of
Brown's person contravenes the Fourth Amendment to the United
States Constitution and Article I, Section 11 of the Wisconsin
Constitution.1 By upholding the constitutionality of this
search, the majority sanctions unrestricted officer discretion
to prolong a traffic stop in search of other crimes, and turns a
blind eye to the discriminatory consequences of unchecked
implicit bias. For these reasons, I respectfully dissent.
1 The Fourth Amendment to the United States Constitution
reads:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
Article I, Section 11 of the Wisconsin Constitution states:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures shall not be violated; and no
warrant shall issue but upon probable cause, supported
by oath or affirmation, and particularly describing
the place to be searched and the persons or things to
be seized.
1
No. 2017AP774-CR.rfd
I
¶50 The Fourth Amendment's constitutional bar against
unreasonable searches and seizures is well understood to defend
"against arbitrary invasions by governmental officials," Camara
v. Mun. Court of City and Cty. of San Francisco, 387 U.S. 523,
528 (1967), including "arbitrary invasions solely at the
unfettered discretion of officers in the field," Brown v. Texas,
443 U.S. 47, 51 (1979). The United States Supreme Court has
held that "[t]he essential purpose of the proscriptions in the
Fourth Amendment is to impose a standard of 'reasonableness'
upon the exercise of discretion by government officials,
including law enforcement agents, in order to safeguard the
privacy and security of individuals against arbitrary
invasions . . . ." Delaware v. Prouse, 440 U.S. 648, 653–54
(1979) (footnote and quotation marks omitted) (quoting Marshall
v. Barlow's, Inc., 436 U.S. 307, 312 (1978)). The primacy of
this guarantee, that government searches and seizures will be
judged on their reasonableness, is a longstanding bedrock of
constitutional jurisprudence. See Union Pac. R. Co. v.
Botsford, 141 U.S. 250, 251 (1891) ("No right is held more
sacred, or is more carefully guarded . . . than the right of
every individual to the possession and control of his own
person, free from all restraint or interference by others,
unless by clear and unquestionable authority of law.").
¶51 The warrantless seizure here is a routine traffic
stop, characterized as "a relatively brief encounter . . . more
analogous to a so-called Terry stop . . . than to a formal
2
No. 2017AP774-CR.rfd
arrest." Knowles v. Iowa, 525 U.S. 113, 117 (1998) (second
alteration in original) (internal quotation marks omitted)
(quoting Berkemer v. McCarty, 468 U.S. 420, 439 (1984)). In
Terry, the United States Supreme Court held that officers may
conduct a brief investigatory seizure and carefully limited
search of a person, a "Terry stop," if the officer has
reasonable suspicion that "criminal activity may be afoot."2
Terry v. Ohio, 392 U.S. 1, 30 (1968). The reasonableness of a
Terry stop turns on the "specific and articulable facts" and
"rational inferences from those facts," as contrasted with an
officer's "inchoate and unparticularized suspicion or hunch."
Id. at 20-21, 27.
¶52 While similar to a Terry stop, a traffic stop
implicates a distinct body of jurisprudence. Relevant here is
the permissible scope and duration of a traffic stop's mission,
as well as the tasks the officer may lawfully undertake during
that mission. In Rodriguez, the United States Supreme Court
established that "the tolerable duration of police inquiries in
the traffic-stop context is determined by the seizure's
'mission' . . . ." Rodriguez v. United States, 575 U.S. 348,
354 (2015). That mission includes: "(1) addressing the traffic
violation that warranted the stop; (2) conducting ordinary
inquiries incident to the stop; and (3) taking negligibly
2Terry involved a highly experienced officer whose
particularized observations of two men blatantly "casing" a
storefront led him to suspect a robbery was imminent and to
intervene by seizing and searching them. Terry v. Ohio, 392
U.S. 1, 5-6 (1968).
3
No. 2017AP774-CR.rfd
burdensome precautions to ensure officer safety." State v.
Wright, 2019 WI 45, ¶24, 386 Wis. 2d 495, 926 N.W.2d 157
(footnotes omitted) (citing Rodriguez, 575 U.S. at 354).
¶53 There are several recognized "negligibly burdensome"
measures an officer might take during a traffic stop to address
certain safety concerns. In Mimms, the United States Supreme
Court held that it is negligibly burdensome for an officer to
order the driver out of a vehicle for the duration of the
traffic stop. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977).
The Court reasoned that this measure is a de minimis additional
intrusion into the driver's personal liberty that would reduce
the risk that an officer will be shot or subject to accidental
injury from passing traffic. Id. at 110-11. Likewise, this
court has concluded that the lesser intrusion of asking about
weapons on the driver's person or in the car, or requesting
consent to frisk the driver can be permissible safety-related
tasks. State v. Floyd, 2017 WI 78, ¶28, 377 Wis. 2d 394, 898
N.W.2d 560.
¶54 The officer's lawful authority for the seizure ends
when all mission-related tasks are or "reasonably should have
been" completed. Wright, 386 Wis. 2d 495, ¶24 (quoting
Rodriguez, 575 U.S. at 354). In other words, the traffic stop
ends once an officer "has completed all the necessary functions
attendant on the traffic stop." Floyd, 377 Wis. 2d 394, ¶22
(emphasis added) (citing State v. Malone, 2004 WI 108, ¶26, 274
Wis. 2d 540, 683 N.W.2d 1). Whether the traffic stop reasonably
should have been completed is assessed based on the totality of
4
No. 2017AP774-CR.rfd
the circumstances. Id. (citing United States v. Everett, 601
F.3d 484, 493-94 (6th Cir. 2010)). With these principles in
mind, I turn to the circumstances of this traffic stop.
II
¶55 Officer Deering's mission was to address Brown's
alleged failure to come to a complete stop at a stop sign. The
question is whether, under the totality of the circumstances,
Officer Deering reasonably should have completed the stop by
returning Brown's license and warning him to wear a seatbelt.3
See Wright, 386 Wis. 2d 495, ¶24. If the stop reasonably should
have been completed, then ordering Brown out of the vehicle
initiated a Terry stop requiring independent reasonable
suspicion that criminal activity was in progress. Terry, 392
U.S. at 30.
¶56 The majority opinion concludes that Floyd controls on
this question. Majority op., ¶21 (citing Floyd, 377
Wis. 2d 394, ¶¶25, 28). Floyd involved a traffic stop for a
suspended vehicle registration. Floyd, 377 Wis. 2d 394, ¶2.
The officer asked Floyd to exit the vehicle for the purpose of
explaining citations for registration, license, and insurance
violations, and to prevent Floyd from unlawfully driving away
since he did not have a valid license. Id., ¶¶4-5, 7.
Wisconsin Stat. § 347.48(2m)(b) prohibits operation of a
3
motor vehicle unless the person is properly restrained in a
safety belt. There is no evidence that Officer Deering ever
observed Brown operating his vehicle without a seatbelt. In
fact, as the majority acknowledges, Officer Deering first
noticed Brown was not wearing a seatbelt after Brown's vehicle
was stopped. Majority op., ¶2.
5
No. 2017AP774-CR.rfd
Remaining at Floyd's vehicle, the officer then inquired about
weapons and asked for consent to frisk, which Floyd gave. Id.,
¶5. The Floyd court held that the request for consent to frisk
did not extend the traffic stop because it was negligibly
burdensome and related to one of the ongoing missions of the
traffic stop, officer safety. Id., ¶28.
¶57 The majority reads Floyd as a per se rule that the
mission of a traffic stop is ongoing until the officer chooses
to hand over a traffic ticket or warning, thereby allowing that
officer to continue to take all "negligibly burdensome" safety
measures. The majority's reading conflicts with recognized
Fourth Amendment jurisprudence relied upon in Floyd: "[W]e draw
the line between traffic stops of proper duration and those that
extend into unconstitutional territory according to functional
considerations. We assess those considerations in the context
of the 'totality of the circumstances.'" Id., ¶22 (citing
Everett, 601 F.3d at 493-94); see also Rodriguez, 575 U.S. at
357 ("The critical question, then, is not whether the dog sniff
occurs before or after the officer issues a ticket, . . . but
whether conducting the sniff 'prolongs'——i.e., adds time to——
'the stop[.]'" (cross-references omitted)).
¶58 The majority opinion's rejection of a reasonableness
test to determine whether the tasks related to the mission
should have been completed leaves the duration of a traffic
stop, and any subsequent search for officer safety, up to the
"arbitrary" and "unfettered discretion of officers in the
field." Brown, 443 U.S. at 51. After all, the issuance of a
6
No. 2017AP774-CR.rfd
citation or warning is an event wholly controlled by the
officer. However, it is this court's job to mitigate arbitrary
exercises of police authority by examining whether an officer
unnecessarily delayed the process of drafting or explaining any
appropriate citations. Floyd, 377 Wis. 2d 394, ¶23. I
therefore apply the requisite reasonableness test to the facts
of Brown's case and conclude that Officer Deering unreasonably
delayed the traffic stop.
¶59 Unlike in Floyd, Brown's seat belt warning required no
explanation on how to pay or dispute it, and Officer Deering did
not face the additional task of preventing a license-less driver
from driving away. Moreover, unlike in Floyd, where the officer
asked Floyd out of the vehicle for the purpose of safely
explaining a ticket, Officer Deering's testimony and conduct
demonstrate that he did not order Brown out of the car based on
the safety reasons manufactured by the majority opinion.
Majority op., ¶23. Instead, Officer Deering delayed the process
of giving Brown a warning in order to investigate his hunch that
Brown had committed a drug offense.
¶60 Officer Deering's testimony confirms that he asked
Brown out of the vehicle to search him:
Q: Why did you have Mr. Brown exit the vehicle?
A: Again, that would be an awkward encounter to ask
for someone's consent when they're sitting in a
vehicle and then reach through the window to search
them. That's not police practice.
Q: So you already knew you were going to ask to
search him before you even re-approached him?
A: Correct.
7
No. 2017AP774-CR.rfd
Officer Deering's actions further demonstrate that he delayed
giving the warning in order to investigate his hunch that Brown
committed a drug offense. First, Officer Deering called for two
officers to assist with a mere stop sign violation. Officer
Deering further made both a city and county-wide request for a
canine to sniff Brown's vehicle for drugs. As Officer Deering
later testified:
Q: And why do officers request canines?
A: The canines that us –- or the city and the county
have are trained in drug detection. So they can smell
the vehicle from the outside and detect any drugs
therein.
Q: So you initially had a suspicion of drugs then in
the case?
A: Yes.
Q: And that was part of the whole stop to begin with,
correct?
A: With everything. His statements and all the
totality which we've already gone over.
¶61 Any alleged safety concerns under these circumstances
are illusory.4 Officer Deering maintained this was not a "high-
risk" traffic stop and that there were "no specific factors"
4 Escalating the stop by ordering Brown out of the vehicle
likely put Officer Deering in a less safe situation than if he
had returned Brown's items and the completed warning. See State
v. Smith, 2018 WI 2, ¶82, 379 Wis. 2d 86, 905 N.W.2d 353 (Kelly,
J., dissenting) ("Is it really necessary to point out that
concerns over the officer's safety would vanish if he ended the
seizure?"); United States v. Landeros, 913 F.3d 862, 868 (9th
Cir. 2019) ("Extending the stop, and thereby prolonging the
officers' exposure to Landeros, was, if anything, 'inversely
related to officer safety.'" (quoting United States v. Evans,
786 F.3d 779, 787 (9th Cir. 2015))).
8
No. 2017AP774-CR.rfd
that led him to conclude Brown had any weapons. When he re-
approached the car to give Brown a warning to wear his seatbelt,
there were a total of three officers standing outside of Brown's
vehicle, two of whom had been continuously watching Brown. At
that point any remaining safety concerns could have been
dissipated by letting Brown go on his way. The hazard of
passing traffic was also not of concern to Officer Deering given
the location of the stop and the early morning hour. Cf. Mimms,
434 U.S. at 111. By leading Brown to the squad car and, as
Brown testified, "plac[ing] [Brown's] hands behind [his] back,"
Officer Deering further indicated that a separate investigation
was beginning.5
¶62 In view of the totality of the circumstances, Officer
Deering's decision to order Brown out of the vehicle and walk
him back to the squad car "unnecessarily delayed the performance
of the incidents" necessary to the traffic stop. Floyd, 377
Wis. 2d 394, ¶22. Consequently, whether Officer Deering had
reasonable suspicion for the ensuing Terry stop must be
considered.
III
¶63 In order to seize Brown following the reasonable
conclusion of the traffic stop, Officer Deering needed
reasonable suspicion that criminal activity was in progress
Brown testified that as soon as he stepped out of the
5
vehicle, Officer Deering placed Brown's hands behind his back
"in a motion like they were handcuffed" and walked him back to
the squad car. Officer Deering denied this allegation and
testified that he just told Brown to follow him back to the
squad car.
9
No. 2017AP774-CR.rfd
based upon specific and articulable facts. Terry, 392 U.S. at
21, 30. Under the totality of the circumstances presented by
this case, I conclude that Officer Deering's articulated facts
were only generalizations or uncorroborated criminal inferences
that, even in consideration of Brown's criminal history, did not
amount to reasonable suspicion.
¶64 According to Officer Deering's testimony, the
following facts led him to reasonably believe a drug violation
was in progress:
 Brown drove a rental car which Officer Deering
said he knew to be commonly used by drug
traffickers;
 Brown resided in Milwaukee, a "source city for
drugs";
 The time was 2:44 a.m.;
 Brown was coming from a dead-end street
containing closed businesses;
 Brown said he was coming directly from a Speedway
gas station, which Officer Deering interpreted as
a lie because there was no Speedway down the
dead-end street;
 Brown stated he was visiting a recent online
acquaintance's residence, offering the cross-
streets but not the full address or her last
name;
 Brown stated he was not headed anywhere in
particular at the time Officer Deering stopped
him; and
 Brown had prior drug-related arrests.
¶65 The first three factors sweep in more law-abiding
citizens than those who violate the law and should carry little
10
No. 2017AP774-CR.rfd
if any weight in an individualized suspicion analysis.
According to Officer Deering's testimony, Brown was in a rental
car which "people that traffic drugs often use . . . for a
variety of reasons." However, the prevailing use of rental cars
in Wisconsin is for lawful travel on its roads and highways.
See United States v. Williams, 808 F.3d 238, 247 (4th Cir. 2015)
("[T]he Defendants' use of a rental car . . . is of minimal
value to the reasonable-suspicion evaluation. . . . [T]he
overwhelming majority of rental car drivers on our nation's
highways are innocent travelers with entirely legitimate
purposes."); United States v. Boyce, 351 F.3d 1102, 1109 (11th
Cir. 2003) ("[T]he fact that [the defendant] was driving a
rental car on a widely used interstate that also happens to be a
known drug corridor, does not create a reasonable suspicion in
this case. These factors 'would likely apply to a considerable
number of those traveling for perfectly legitimate purposes' and
'do[] not reasonably provide . . . suspicion of criminal
activity.'" (second and third alterations in original) (quoting
United States v. Smith, 799 F.2d 704, 707 (11th Cir. 1986))).
¶66 As for being a Milwaukeean, this court should not
embrace factors that dilute an entire city's Fourth Amendment
protections. Officer Deering did not testify to any training or
experience as support for his statement that Milwaukee is a
"source city for drugs." It is not reasonable to assume that
every person who resides in the municipal boundaries of
Milwaukee and drives through a different city in Wisconsin is a
drug dealer. See United States v. Williams, 271 F.3d 1262, 1270
11
No. 2017AP774-CR.rfd
(10th Cir. 2001) ("Standing alone, a vehicle that hails from a
purported known drug source area is, at best, a weak factor in
finding suspicion of criminal activity.").
¶67 The time of day likewise carries little weight in an
individualized suspicion analysis. Officer Deering never
explained how the time, 2:44 a.m., particularly connected to
drug activity. See United States v. Sigmond-Ballesteros, 285
F.3d 1117, 1125 (9th Cir. 2002) (holding "the time of day has
very little, if any, probative value" where there is no
proffered evidence that the particular time is connected to the
suspected criminal activity). The rental car, Brown's residence
in Milwaukee, and the early morning hour contribute little to an
analysis of reasonable suspicion.
¶68 Several of the other factors are uncorroborated
inferences and similarly offer weak support for reasonable
suspicion that criminal activity was in progress. Brown turned
from a dead-end street of closed businesses. There was no
testimony that this particular street was known to police as a
frequent location for drug deals, or that another car or person
was observed leaving the area to corroborate a drug transaction,
which of course requires more than one person.
¶69 Brown's perceived "lie" about coming directly from a
Speedway gas station hinges on Officer Deering's interpretation
of the word "directly." According to Officer Deering's
testimony, Brown's vehicle was coming from the same direction as
the Speedway when Officer Deering first observed it. Brown
testified he was going to Speedway when he turned onto the dead-
12
No. 2017AP774-CR.rfd
end street to change direction. Brown could have reasonably
interpreted Officer Deering's question as asking whether he was
coming from the Speedway without making any additional stops.
¶70 Likewise, Brown's response that he did not know the
last name or exact street address of an online acquaintance does
not suggest criminal activity in progress. Brown lived in
Milwaukee and testified that he was unfamiliar with Fond du Lac.
It is just as reasonable that he either did not recall or did
not want to give officers his acquaintance's full street address
or name.
¶71 Lastly, Brown's lack of specific travel plans may have
been vague, but they did not conflict with his prior answers
such that it corroborated Officer Deering's criminal suspicions.
In total, Officer Deering's uncorroborated inferences drawn from
Brown's consistent and innocuous responses amounted to nothing
more than an insufficient hunch. See Terry, 392 U.S. at 27
("[D]ue weight must be given, not to [an officer's] inchoate and
unparticularized suspicion or 'hunch,' but to the specific
reasonable inferences which he is entitled to draw from the
facts in light of his experience.").
¶72 The most individualized, suggestive evidence of any
wrongdoing is a propensity inference from Brown's prior drug-
related arrests. But criminal history alone is an insufficient
basis for reasonable suspicion:
Under the Fourth Amendment our society does not allow
police officers to round up the usual suspects. An
officer relying on his or her knowledge of [an
individual's] criminal record is required to pair that
knowledge with concrete factors to demonstrate that
13
No. 2017AP774-CR.rfd
there [is] a reasonable suspicion of current criminal
activity. In other words, knowledge of an
individual's criminal history can corroborate[], but
not substitute for objective indications of ongoing
criminality.
United States v. Castle, 825 F.3d 625, 629 (D.C. Cir. 2016)
(alterations in original) (internal quotation marks and quoted
sources omitted); see also United States v. Santos, 403
F.3d 1120, 1132 (10th Cir. 2005) ("Even people with prior
convictions retain Fourth Amendment rights; they are not roving
targets for warrantless searches.").
¶73 Here, Brown's history of prior arrests is not paired
with concrete observations of a drug crime. Officer Deering
testified that he did not smell drugs or see any physical signs
of drug use. See State v. McGill, 2000 WI 38, ¶31, 234
Wis. 2d 560, 609 N.W.2d 795; Malone, 274 Wis. 2d 540, ¶36.
There was no testimony regarding Brown being nervous or making
any furtive movements. See McGill, 234 Wis. 2d 560, ¶29
(considering overt nervousness); State v. Buchanan, 2011 WI 49,
¶19, 334 Wis. 2d 379, 799 N.W.2d 775 (considering furtive
movements). There were no inconsistencies in Brown's responses.
Instead, this case involves a criminal history paired with
sweeping generalizations and uncorroborated inferences.
"Circumstances must not be so general that they risk sweeping
into valid law-enforcement concerns persons on whom the
requisite individualized suspicion has not focused." State v.
Gordon, 2014 WI App 44, ¶12, 353 Wis. 2d 468, 846 N.W.2d 483. I
conclude that Officer Deering did not have reasonable suspicion
to seize Brown after the reasonable conclusion of the traffic
14
No. 2017AP774-CR.rfd
stop and therefore the seizure and subsequent search of Brown
were unconstitutional.6
IV
¶74 Lastly, in addition to highlighting the majority's
disregard of recognized Fourth Amendment jurisprudence and
misapplication of Floyd, I must also address one of the real-
world consequences of the majority opinion's rejection of the
reasonableness inquiry: unchecked implicit bias. I discuss
social science research on implicit bias not to depart from
constitutional text as the concurrence postulates, but instead
to illustrate empirically how far our jurisprudence has strayed
from the original meaning of the Fourth Amendment.7
6 An unconstitutional seizure taints any evidence recovered
during that seizure, even if the search leading to the evidence
was conducted upon otherwise valid consent. See United States
v. Sandoval, 29 F.3d 537, 544 (10th Cir. 1994) (holding the
taint of a driver's unconstitutional seizure invalidates any
consent to a search made during that seizure).
7 Justice Rebecca Grassl Bradley's belief that invoking
social science research in judicial decisionmaking leads to
violations of civil rights is ironic as it is her majority
opinion that broadens government discretion at the expense of
individual liberty. Concurrence, ¶¶40-46.
15
No. 2017AP774-CR.rfd
¶75 The concept of implicit bias has been well-researched8
and can best be described as follows. In order to effectively
function in a complex world, the human brain makes associations
implicitly, or "outside conscious attentional focus." See
Greenwald & Krieger, supra ¶75 n.8, at 947. These associations,
which can be beneficial and helpful, also include observations
sorted by social categories like race or gender, which in turn
trigger implicit stereotypes and attitudes. See id. at 948-952;
see also L. Song Richardson, Police Efficiency and the Fourth
Amendment, 87 Ind. L.J. 1143, 1147 (2012).
¶76 Problematically, these subconscious stereotypes and
attitudes may operate in direct contradiction to one's
"consciously and genuinely held thoughts and feelings." L. Song
Besides the irony in the concurrence, it disregards the
important role of social science research in guiding the United
States Supreme Court to correct course when the law has allowed
government infringement of protected civil liberties. See State
v. Roberson, 2019 WI 102, ¶¶102-03, 389 Wis. 2d 190, 935
N.W.2d 813 (Dallet, J., dissenting) (citing Roper v. Simmons,
543 U.S. 551 (2005); Lawrence v. Texas, 539 U.S. 558 (2003);
Atkins v. Virginia, 536 U.S. 304 (2002); and Brown v. Board of
Educ., 347 U.S. 483 (1954)). The Constitution was not drafted
in a social vacuum, nor does it operate in one. Our decisions
interpreting the Constitution have real-world consequences. If
social science research can assist this court in assessing how
faithfully our decisions protect constitutional rights, then we
would only reinforce the institutional legitimacy of the
judiciary by taking such research into consideration.
8 See, e.g., Anthony G. Greenwald & Mahzarin R. Banaji, The
Implicit Revolution: Reconceiving the Relation Between
Conscious and Unconscious, 72 Am. Psychol. 861 (2017)
(synthesizing the significant research efforts and findings in
the field of implicit cognition); Anthony G. Greenwald & Linda
Hamilton Krieger, Implicit Bias: Scientific Foundations, 94
Cal. L. Rev. 945 (2006).
16
No. 2017AP774-CR.rfd
Richardson, Cognitive Bias, Police Character, and the Fourth
Amendment, 44 Ariz. St. L.J. 267, 271-72 (citing Jerry Kang &
Kristin Lane, A Future History of Implicit Social Cognition and
the Law 8 (Aug. 12, 2009) (unpublished manuscript),
http://ssrn.com/abstract=1458678); see also Heather M. Kleider
et al., Looking Like A Criminal: Stereotypical Black Facial
Features Promote Face Source Memory Error, 40 Memory & Cognition
1200, 1204 (2012) ("Overall, these findings support our
hypotheses that the association between stereotypical facial
features and criminality is likely automatic and/or reflexive,
and not reliant on one's individual perceptions of Black men as
a whole."). A wealth of data collected by Harvard University's
Project Implicit confirms that implicit biases can influence our
decisions without any awareness that these biases even exist.9
https://implicit.harvard.edu/implicit/education.html.
¶77 The influence of implicit bias is particularly
problematic in the policing context, where officers are tasked
with rapidly judging stressful and potentially dangerous
Project Implicit collects this data through its online
9
Implicit Association Tests that measure implicit attitudes
across social categories like age, gender, race, and sexuality.
See https://implicit.harvard.edu/implicit/takeatest.html; see
also Anthony G. Greenwald et al., Understanding and Using the
Implicit Association Test: III. Meta-Analysis of Predictive
Validity, 97 J. Personality & Soc. Psychol. 17 (2009); Brian A.
Nosek, Mahzarin R. Banaji & Anthony G. Greenwald, Harvesting
Implicit Group Attitudes and Beliefs from a Demonstration Web
Site, 6 Group Dynamics: Theory, Research, & Practice 101
(2002); Anthony G. Greenwald, Debbie E. McGhee & Jordan L.K.
Schwartz, Measuring Individual Differences in Implicit
Cognition: The Implicit Association Test, 74 J. Personality &
Soc. Psychol. 1464 (1998).
17
No. 2017AP774-CR.rfd
situations based upon limited information that is largely
ambiguous.10 See Richardson, supra ¶76, at 270-71. Research
demonstrates that "[i]mplicit biases translate most readily into
discriminatory behavior . . . when people have wide discretion
in making quick decisions with little accountability." Jerry
Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev.
1124, 1142 (2012). Social psychologists have thus come to
understand that much of what has been labeled "racial profiling"
is likely to instead be spontaneous and unintended. See Megan
Quattlebaum, Let's Get Real: Behavioral Realism, Implicit Bias,
10For example, empirical evidence suggests Black and
Hispanic drivers are stopped more frequently, for longer, and
searched more often than White drivers. See Sean Hecker, Race
and Pretextual Traffic Stops: An Expanded Role for Civilian
Review Board, 28 Colum. Hum. Rts. L. Rev. 551, 558-65 (1997);
see also Emma Pierson et al., A Large-scale Analysis of Racial
Disparities in Police Stops Across the United States, 4 Nature
Human Behaviour (May 4, 2020), https://www.nature.com/articles/s
41562-020-0858-1.pdf. One explanation is that officers are more
likely to infer criminality from a Black driver's ambiguous
behavior——like pulling out of a dead-end street——than when a
White driver engages in that same ambiguous behavior. See
Richardson, supra ¶75, at 1148-50; see also Jennifer L.
Eberhardt et al., Seeing Black: Race, Crime, and Visual
Processing, 87 J. Personality & Soc. Psychol. 876, 883 (2004)
(interpreting data showing participants' selective attention
more quickly focused on a Black male face when primed to think
about crime to mean "[n]ot only are Blacks thought of as
criminal, but also crime is thought of as Black.").
I do not intend this dissent to suggest police officers
generally, or Officer Deering specifically, act in bad faith or
intentionally abuse their discretion to achieve these observed
disparities. After all, "[a]n officer may feel genuinely
suspicious, without realizing that those feelings were affected
by non-conscious biases and that identical behaviors of a white
individual may not have attracted his attention." Richardson,
supra ¶76, at 278.
18
No. 2017AP774-CR.rfd
and the Reasonable Police Officer, 14 Stan. J. Civ. Rts. & Civ.
Liberties 1, 5 (2018).
¶78 The Terry decision instructs courts to differentiate
police hunches based on general, unparticularized information
from reasonable inferences based on articulable and specific
facts, thereby mitigating the influence of any implicit bias on
discretionary searches and seizures. The promised protection of
the reasonable suspicion standard, however, has been diluted by
this court's growing acceptance of weakly-correlated criminal
inferences from generic or generalized factors in direct
contrast to the particularized circumstances required under
Terry. See Floyd, 377 Wis. 2d 394, ¶¶84-91 (Ann Walsh Bradley,
J., dissenting). And now, under the majority's interpretation
of Floyd, courts will no longer even reach the question of
reasonable suspicion. Police may simply delay issuing a traffic
citation until they have exhausted their investigative tools to
explore hunches in the name of safety. Without inquiring into
the reasonableness of these delays, the duration of a traffic
stop falls solely to the unfettered discretion of an officer
whose judgments, like all human beings, are susceptible to
implicit bias. By disavowing any meaningful review of officer
discretion during a traffic stop, the majority opinion turns a
blind eye to the disparities caused by implicit bias, despite
19
No. 2017AP774-CR.rfd
the seemingly even-handed promise of the Fourth Amendment and
Article I, Section 11 of the Wisconsin Constitution.11
¶79 For the foregoing reasons, I respectfully dissent.
11The Fourth Amendment sets "the minimal constitutional
standards," and this court can and has interpreted Article I,
Section 11 of the Wisconsin Constitution to afford greater
protections. See State v. Tompkins, 144 Wis. 2d 116, 132, 423
N.W.2d 823 (1988); State v. Eason, 2001 WI 98, ¶60, 245
Wis. 2d 206, 629 N.W.2d 625 ("Indeed, herein, we find that
Article I, Section 11 of the Wisconsin Constitution guarantees
more protection than the Fourth Amendment provides under the
good faith exception as adopted in [United States v. Leon, 468
U.S. 897 (1984)]."). After all, "[i]t is always conceivable
that the Supreme Court could interpret the [F]ourth [A]mendment
in a way that undermines the protection Wisconsin citizens have
from unreasonable searches and seizures under [A]rticle I,
[S]ection 11, Wisconsin Constitution." Eason, 245 Wis. 2d 206,
¶60 (quoted source omitted). As the late Justice William J.
Brennan, Jr. advocated:
[T]he decisions of the [United States Supreme] Court
are not, and should not be, dispositive of questions
regarding rights guaranteed by counterpart provisions
of state law. Accordingly, such decisions are not
mechanically applicable to state law issues, and state
court judges and the members of the bar seriously err
if they so treat them. Rather, state court judges,
and also practitioners, do well to scrutinize
constitutional decisions by federal courts, for only
if they are found to be logically persuasive and well-
reasoned, paying due regard to precedent and the
policies underlying specific constitutional
guarantees, may they properly claim persuasive weight
as guideposts when interpreting counterpart state
guarantees. I suggest to the bar that, although in
the past it might have been safe for counsel to raise
only federal constitutional issues in state courts,
plainly it would be most unwise these days not also to
raise the state constitutional questions.
William J. Brennan, Jr., State Constitutions and the Protection
of Individual Rights, 90 Harv. L. Rev. 489, 502 (1977) (footnote
omitted).
20
No. 2017AP774-CR.rfd
1