State v. Frederick S. Smith

2018 WI 2
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP756-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Frederick S. Smith,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 372 Wis. 2d 184, 888 N.W.2d 22
(2016 – Unpublished)
OPINION FILED: January 9, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 5, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Stephen E. Ehlke
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents joined by ABRAHAMSON
J. (opinion filed).
KELLY, J. dissents joined by ABRAHAMSON, J. and
A.W. BRADLEY, J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner there were briefs
by Tiffany M. Winter, assistant attorney general, with whom on
the briefs were Brad D. Schimel, attorney general, and Lisa E.F.
Kumfer, assistant attorney general. There was an oral argument
by Tiffany M. Winter.
For the defendant-appellant there was a brief and oral
argument by Christopher D. Sobic, assistant state public
defender.
2018 WI 2
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP756-CR
(L.C. No. 2014CF667)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. JAN 9, 2018
Frederick S. Smith, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA GRASSL BRADLEY, J. We are asked to decide
whether the police violated Frederick S. Smith's Fourth
Amendment rights when a police officer asked for his driver's
license during a traffic stop even though reasonable suspicion
for the stop dissipated as the officer approached the car, or
when the police officer opened the passenger door after being
told the driver's door and window were broken. The Fourth
Amendment protects "against unreasonable searches and seizures,"1
1
The Fourth Amendment to the United States Constitution
provides:
(continued)
No. 2015AP756-CR
and our analysis focuses on what is reasonable in light of the
particular circumstances. See Terry v. Ohio, 392 U.S. 1, 21
(1968); see also Elkins v. United States, 364 U.S. 206, 222
(1960)("What the Constitution forbids is not all searches and
seizures, but unreasonable searches and seizures.").
¶2 We hold that when an officer conducts a valid traffic
stop, part of that stop includes checking identification, even
if the reasonable suspicion that formed the basis for the stop
in the first place has dissipated. See Rodriguez v. United
States, 135 S. Ct. 1609, 1615 (2015) ("Beyond determining
whether to issue a traffic ticket, an officer's mission includes
'ordinary inquiries incident to [the traffic] stop.'" (citing
Illinois v. Caballes, 543 U.S. 405, 408 (2005)); State v.
Williams, 2002 WI App 306, ¶1, 258 Wis. 2d 395, 655 N.W.2d 462
("We conclude the officer had the requisite reasonable suspicion
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, § 11 of the Wisconsin Constitution likewise
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
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.
2
No. 2015AP756-CR
to stop Williams's vehicle to determine if he was the suspect in
a domestic abuse incident. We also conclude that, because the
initial detention was lawful, the officer could properly ask
Williams his name and for identification even if she had already
decided he was not the suspect."). Asking for a driver's
license does not impermissibly extend a stop because it is part
of the original mission of the traffic stop. However, the
"ordinary inquiries," which are related in scope to the purpose
of a traffic stop, must be executed within the time it should
have reasonably taken to complete them. Rodriguez, 135 S. Ct.
at 1614.
¶3 We further hold the police officer's act of opening
the passenger door in order to effectively communicate with a
driver otherwise inaccessible due to the malfunctioning driver's
door and window did not constitute an unreasonable search
because the officer's actions, viewed objectively, would warrant
a person of reasonable caution to believe the action taken was
appropriate. See Terry, 392 U.S. at 21-22. Because Smith's
stop was reasonably executed, we hold that no Fourth Amendment
violation occurred. The circuit court2 correctly denied Smith's
suppression motion. Accordingly, the decision of the court of
appeals3 is reversed and Smith's judgment of conviction stands.
2
The Honorable Stephen E. Ehlke, Dane County Circuit Court,
presiding.
3
State v. Smith, No. 2015AP756-CR, unpublished slip op.,
¶1, (Wis. Ct. App. Sept. 29, 2016) (per curiam).
3
No. 2015AP756-CR
I. BACKGROUND
¶4 On April 6, 2014, Madison Police Sergeant Bernard
Gonzalez's duties included monitoring a Madison neighborhood for
gang retaliation following what police believed to be gang-
related shots fired the previous night. At about 10:45 p.m.,
Gonzalez, while parked in the watch area, observed a car with
dark tinted windows drive by and stop in the middle of the
street for 10 to 15 seconds.4 This drew Gonzalez's attention
"because [the car] did not pull to the curb. It stopped in the
middle of the street."5 Then, a passenger got out of the car and
walked to apartment buildings, after which the car drove away.
Gonzalez followed the car, checked the license plate, and
learned the registered owner, Amber Smith, had a suspended
driver's license. Gonzalez activated the squad's lights to get
the car to pull over. The car did not pull over right away, but
proceeded to turn off the main street and turn again into a
parking lot before finally pulling into a parking space and
stopping. When Gonzalez was five-to-ten feet from the driver's
door, he "was pretty sure" the driver was not Amber Smith
because the driver appeared to be a man. When the sergeant
4
The record indicates that at the preliminary hearing, held
ten days after the stop, the sergeant testified Smith's car
stopped in the middle of the road "[f]or about three minutes."
At the suppression hearing, four months later, the testimony
described the time as 10 to 15 seconds. This discrepancy does
not affect our analysis.
5
The facts are presented in chronological order; all quoted
testimony comes from the suppression hearing.
4
No. 2015AP756-CR
asked6 the driver, later identified as Frederick Smith, to open
the door or roll down the window, Smith shrugged his shoulders
and responded that both the door and window were broken. As is
his typical practice in a traffic stop with an inoperable
driver's side door and window, Gonzalez walked to the passenger
side of the car to speak "more effectively" with Smith. Smith
appeared to be cooperating and moving toward the passenger seat,
either activating the lock or reaching for the passenger door
handle. Gonzalez did not ask Smith to open the passenger side
door or window; rather, the sergeant put his hand on the door
handle, and testified that "together we opened the door."
"[Smith] reached over and worked the door handle." Gonzalez,
believing Smith was cooperating by moving toward the passenger
seat and trying to open the passenger door, testified that they
"simultaneously . . . opened the door."7
¶5 Smith admitted that he "was maneuvering to the
passenger seat" after telling Gonzalez the driver's door and
6
The record is unclear as to whether Gonzalez simply
motioned for Smith to roll down the window and open the door or
verbally asked Smith to do so. This uncertainty does not impact
our analysis.
7
The circuit court initially noted: "So whether Sergeant
Gonzalez first started to open the door or whether they opened
it simultaneously, either way I conclude that under the Fourth
Amendment reasonableness standards that it was a reasonable
thing to do." When Smith's lawyer asked the circuit court to
find "Gonzalez was the one that opened the door," the circuit
court found that "the sergeant went to open the door and began
to open the door." In doing so, the circuit court did not
impugn the credibility of Gonzalez's testimony.
5
No. 2015AP756-CR
window were broken. Smith explained that "every day I use the
car, I pull on the handle to get out because the driver's side
don't open." Smith also said he stopped in that parking lot
because he lived in a building next to it.
¶6 With the door open, Gonzalez observed that Smith had
red, bloodshot eyes, and smelled of alcohol. When Gonzalez
asked Smith for his driver's license, Smith responded that his
license had been revoked. After conducting field sobriety
tests, Gonzalez arrested Smith and took him to the police
station where Smith refused to voluntarily give a blood sample.
Gonzalez obtained a warrant and transported Smith to the
hospital for the evidentiary blood test. Afterwards, Gonzalez
drove Smith to the Dane County Jail where he agreed to provide a
breath sample pursuant to the jail admitting procedures. The
breath test showed Smith's blood alcohol to be .38. The State
charged Smith with operating a motor vehicle under the influence
of an intoxicant, seventh offense.
¶7 Smith moved to suppress all evidence acquired from the
traffic stop, arguing that when Gonzalez saw a man (rather than
a woman) driving the car, reasonable suspicion dissolved, and
the stop should have immediately ceased. He also argued
Gonzalez violated the Fourth Amendment when he opened the
passenger door without any lawful basis to do so. The trial
court denied Smith's motion and he pled guilty to operating a
6
No. 2015AP756-CR
motor vehicle under the influence, seventh offense, contrary to
Wis. Stat. §§ 346.63(1)(a) and 939.62(1)(b) (2015-16).8
¶8 Smith did not file a postconviction motion but
appealed to the court of appeals, arguing that all evidence
should be suppressed and his judgment should be vacated because:
(1) once Gonzalez saw a man (instead of a woman) behind the
wheel, reasonable suspicion for the initially lawful stop
evaporated, and the sergeant's failure to immediately release
Smith improperly extended the duration of the seizure; and (2)
the sergeant conducted an unlawful search in violation of the
Fourth Amendment by opening the passenger door without consent
or probable cause. The court of appeals declined to decide the
case on the merits; instead, it determined the State's response
to Smith's arguments on appeal were too cursory to warrant a
review on the merits. The court of appeals vacated Smith's
conviction and remanded the case to the circuit court ordering
it to grant Smith's suppression motion; it sua sponte ordered
that Smith be allowed to withdraw his plea. State v. Smith, No.
2015AP756-CR, unpublished slip op., ¶1 (Wis. Ct. App. Sept. 29,
2016) (per curiam). We granted the State's petition for review.
II. STANDARD OF REVIEW & APPLICABLE LAW
¶9 A suppression issue presents a question of
constitutional fact. See State v. Floyd, 2017 WI 78, ¶11, 377
Wis. 2d 394, 898 N.W.2d 560. "We review the circuit court's
8
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
7
No. 2015AP756-CR
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. (internal citations omitted).
¶10 The reasonableness of a traffic stop involves a two-
part inquiry: first, whether the initial seizure was justified
and, second, whether subsequent police conduct "was reasonably
related in scope to the circumstances that justified" the
initial interference. See Terry, 392 U.S. at 19-20; see United
States v. Sharpe, 470 U.S. 675, 682 (1985). The mission of a
traffic stop includes "determining whether to issue a traffic
ticket" and the ordinary inquiries incident to the stop.
Rodriguez, 135 S. Ct. at 1615. As long as the initial stop was
lawful, requesting identification is a permissible part of the
dual mission of every traffic stop. Id. The ordinary inquiries
portion of the traffic stop's mission includes "checking the
driver's license, determining whether there are outstanding
warrants against the driver, and inspecting the automobile's
registration and proof of insurance."9 Id.
9
The United States Supreme Court in Rodriguez v. United
States, 135 S. Ct. 1609 (2015), distinguished between inquiries
that are related to a traffic stop and those that are unrelated.
It concluded that asking for identification is an ordinary
inquiry that is related to the purpose of a lawful stop as part
of its dual mission and the stop "may last no longer than is
necessary to effectuate that purpose." Id. at 1614-15.
Unrelated inquiries, such as a dog sniff, occurring after the
dual mission has been completed, violate the Fourth Amendment
unless supported by additional reasonable suspicion or probable
cause. Id. at 1612-14.
8
No. 2015AP756-CR
III. DISCUSSION
A. Initial Stop and Ordinary Inquiries
¶11 Smith insists the circuit court should have suppressed
the evidence that led to his seventh drunk-driving conviction
because the officer unlawfully extended the duration of the
seizure by continuing to question Smith after reasonable
suspicion dematerialized. The State contends that because a
traffic stop's mission includes the ordinary inquiries, such as
checking a driver's license, an officer who lawfully stops a
vehicle should be able to complete that mission even if the
reason for the traffic stop ended during the officer's walk to
the stopped vehicle.10 The State is correct.
¶12 The United States Supreme Court recently reaffirmed
that a police officer's "ordinary inquiries," reasonably
executed during a lawful traffic stop—including "checking the
driver's license"—do not violate the Fourth Amendment because
these "routine measures" are "fairly characterized as part of
the officer's traffic mission." See Rodriguez, 135 S. Ct. at
1615. "Because the Fourth Amendment and Article I, § 11 provide
10
We note, however, that other facts of record in this case
support ongoing reasonable suspicion that did not dissipate
during this traffic stop and therefore provide further basis for
upholding Smith's conviction. For example, Gonzalez could have
issued a ticket to Smith under Wis. Stat. § 346.51 for stopping
his car "upon the roadway." Nonetheless, because this case
comes to us for a decision on whether an officer may continue
with the ordinary inquiries when reasonable suspicion
dissipates, our analysis focuses on that question. For the
purposes of our analysis, we assume without deciding that
reasonable suspicion had dissipated.
9
No. 2015AP756-CR
substantively identical protections, we have historically
interpreted this section of the Wisconsin Constitution in
accordance with United States Supreme Court interpretations of
the Fourth Amendment." State v. Asboth, 2017 WI 76, ¶11, 376
Wis. 2d 644, 898 N.W.2d 541. Thus, we apply Rodriguez's
interpretation of the Fourth Amendment.
¶13 There is no dispute that the initial seizure of Smith
(the traffic stop) was justified.11 Gonzalez had a legal basis
to stop the car Smith was driving. Specifically, Gonzalez
observed the driver of the car engage in suspicious activity in
an area being watched for gang retaliation; these concerns
prompted Gonzalez to run the license plate, which in turn came
back registered to an owner who could not be legally driving.
These facts provide reasonable suspicion sufficient to conduct a
traffic stop. See State v. Newer, 2007 WI App 236, ¶¶5, 7, 306
Wis. 2d 193, 742 N.W.2d 923 (reasonable suspicion exists to stop
a vehicle if an officer has knowledge the owner of the vehicle
has an invalid license); see also Floyd, 377 Wis. 2d 394, ¶20
("Reasonable suspicion that a driver is violating a traffic law
is sufficient to initiate a traffic stop."). Thus, part one of
the two-part test we apply to determine whether a traffic stop
was reasonable is satisfied. See Terry, 391 U.S. at 19-20.
11
As this court acknowledged recently, "It is an
unremarkable truism that a traffic stop is a seizure within the
meaning of our Constitutions." State v. Floyd, 2017 WI 78, ¶20,
377 Wis. 2d 394, 898 N.W.2d 560.
10
No. 2015AP756-CR
¶14 We turn our attention to part two of the
reasonableness test——whether subsequent police conduct "was
reasonably related in scope to the circumstances that justified"
the initial interference. After Sergeant Gonzalez stopped
Smith, he approached the driver's door. Moments before reaching
the door, Gonzalez was "pretty sure" the driver was a man and
not Amber Smith, the woman identified as the registered owner,
who could not legally drive her car because her license had been
suspended. The State conceded that the reasonable suspicion
underpinning the traffic stop dissipated at that moment.
¶15 But in these particular circumstances, does the Fourth
Amendment require a police officer to freeze, do an about-face,
and walk away? Such a reaction is neither practical nor
required.12 According to the Supreme Court, the Fourth Amendment
does not compel such an about-face because the mission of any
lawful traffic stop includes routine measures like checking a
driver's license. See Rodriguez, 135 S. Ct. at 1615 (the
12
Justice Kelly asserts an officer can speak with the
driver under these circumstances, but only to "inform him he was
free to leave." Justice Daniel Kelly's dissent, ¶33. But,
under Justice Kelly's analysis, any further contact with the
driver is not permitted under the Fourth Amendment because the
officer cannot continue the seizure past the moment reasonable
suspicion dissipates. Justice Kelly can't have it both ways.
The idiocracy of having to waive a driver off who has been
legally seized without any explanation is another reason why the
ordinary inquiries do not violate the Fourth Amendment. The
officer must be able to complete the traffic stop by speaking
with the driver, documenting a name for the officer's reporting
requirements, and providing the stopped driver with the courtesy
of an explanation for the seizure.
11
No. 2015AP756-CR
mission of a lawful traffic stop includes both "determining
whether to issue a traffic ticket" and conducting the ordinary
inquiries).
¶16 Before applying Rodriguez to the particular
circumstances in Smith's case, we first examine the conditions
surrounding the Supreme Court's holding in Rodriguez. In its
2014-15 term, the Supreme Court had before it petitions for
certiorari in two related cases: (1) Rodriguez v. United
States, 135 S. Ct. 1609 (2015), where the Eighth Circuit Court
of Appeals upheld Dennys Rodriguez's drug conviction arising
from drugs discovered by a narcotics dog after all the business
related to a traffic stop had been completed; and (2) People v.
Cummings, 2014 IL 115769, ¶¶1-2, 6 N.E.3d 725 (hereinafter
Cummings I), where the Illinois Supreme Court granted the
defendant's motion to suppress evidence police discovered during
a traffic stop. In Cummings I, an outstanding warrant for the
registered owner of the vehicle, who was a woman, generated
reasonable suspicion for the traffic stop. Cummings I, 6 N.E.3d
725, ¶5. As the officer approached the stopped vehicle,
however, the officer saw the driver was a man, not a woman.
Id., ¶7. All three levels of Illinois courts held that
suppression was appropriate because reasonable suspicion for the
lawful stop disappeared when the officer saw a man (not a woman)
behind the wheel. Id., ¶¶8-9. The Illinois Supreme Court held
that by asking the driver for identification, the officer
"impermissibly extended the stop." Id., ¶26.
12
 No. 2015AP756-CR
¶17 Rodriguez and Cummings are both Fourth Amendment cases
involving traffic stops where defendants sought suppression of
evidence based on arguments that police unlawfully extended the
stop. Six days after the Supreme Court decided Rodriguez, it
vacated the judgment in Cummings I, and "remanded to the Supreme
Court of Illinois for further consideration in light of"
Rodriguez. See Illinois v. Cummings, 135 S. Ct. 1892 (Mem)
(Apr. 27, 2015).
¶18 On remand, the Illinois Supreme Court set forth the
Supreme Court's conclusions in Rodriguez:
 A dog sniff that prolongs a stop in an attempt to detect
evidence of wrongdoing is "not part of the officer's
'mission' for the stop."
 "The Court defined the mission of the stop as 'to address
the traffic violation that warranted the stop' and to
'attend to related safety concerns.'"
 The mission's safety concerns permit officers to make
"ordinary inquiries incident to [the traffic stop]."
 "Typically such inquiries involve checking the driver's
license, determining whether there are outstanding
warrants against the driver, and inspecting the
automobile's registration and proof of insurance."
 Actions outside the mission of the stop that "measurably
extend the duration of the stop" "cause the stop to
become unlawful" unless reasonable suspicion supports the
extension.
13
No. 2015AP756-CR
 The Court drew a bright line against extending a stop
"with inquiries outside the mission of a traffic stop"
absent reasonable suspicion for the outside inquiries.
 The Court precisely defined what inquiries are part of
the traffic stop and what inquiries fall outside the
mission of a traffic stop.
See Cummings, 2016 IL 115769, ¶7, 46 N.E.3d 248 (hereinafter
Cummings II) (citations omitted). Based on the directives of
Rodriguez, the Illinois Supreme Court reversed its earlier
determination that the stop in Cummings I violated the Fourth
Amendment. Id., ¶13. Instead, it ruled a police officer may
lawfully check a driver's license even though reasonable
suspicion for the stop ended when the officer saw a man (not a
woman) behind the wheel. Id. The Illinois Supreme Court held
this did not render the seizure unreasonable because Rodriguez
recognized the purpose of a traffic stop includes the "ordinary
inquiries" of checking a driver's license. Id. In other words,
when a traffic stop is lawful at its inception, a police officer
may complete the ordinary inquiries even if reasonable suspicion
"vanished upon seeing the defendant" because the purpose of the
stop is not concluded until the ordinary inquiries are
completed. Id., ¶18. "Such ordinary inquiries are part of the
stop's mission and do not prolong the stop, for fourth amendment
purposes." Id.
¶19 When the Supreme Court vacated the judgment in
Cummings I and remanded the case to the Illinois Supreme Court
for further consideration in light of Rodriguez it signaled that
14
No. 2015AP756-CR
"ordinary inquiries" remain reasonable for the duration of an
otherwise lawful stop. The Illinois Supreme Court's
interpretation of Rodriguez in Cummings II is correct.
Rodriguez concludes that an officer's mission in conducting a
traffic stop includes "whether to issue a traffic ticket" and
the "ordinary inquiries incident to [the traffic stop]."
Rodriguez, 135 S. Ct. at 1615. These include: "checking the
driver's license, determining whether there are outstanding
warrants against the driver, and inspecting the automobile's
registration and proof of insurance." Id. The justification
for the ordinary inquiries is two-fold: (1) these checks serve
to enforce the traffic code by "ensuring that vehicles on the
road are operated safely and responsibly"; and (2) for officer
safety.13 Id. at 1615-16. The Supreme Court protected Fourth
Amendment rights by emphasizing that a traffic stop's mission
13
This court just last term acknowledged the "legitimate
and weighty" concern for officer safety attendant to every
traffic stop:
Traffic stops are "especially fraught with danger to
police officers...." Rodriguez, 135 S. Ct. at
1616 (quoting [Arizona v.] Johnson, 555 U.S. [323, 330
(2009)]); see also [Pennsylvania v.] Mimms, 434 U.S.
[106, 110 (1977)] ("We think it too plain for argument
that the State's proffered justification—the safety of
the officer—is both legitimate and weighty."). That
makes officer safety an integral part of every traffic
stop's mission. Rodriguez, 135 S. Ct. at
1616 ("Unlike a general interest in criminal
enforcement, however, the government's officer safety
interest stems from the mission of the stop itself.").
Floyd, 377 Wis. 2d 394, ¶26.
15
No. 2015AP756-CR
should not extend beyond the amount of time reasonably required
to complete it, and an officer must proceed diligently, id. at
1616, thereby eliminating the potential for police to delay the
ordinary inquiries to delve into unrelated and undiscovered
criminal wrongdoing.
¶20 We return to the particular facts in Smith's case in
light of Rodriguez's conclusion that the lawfully initiated
traffic stop includes both considering whether to issue a ticket
and conducting the ordinary inquiries. When Gonzalez saw the
driver of the stopped car was a man, the first part of the
mission ended. Gonzalez would not be issuing a ticket to Amber
Smith for driving with a suspended license. The second mission
of the traffic stop, however, had not been performed——checking
the driver's license, registration, and insurance. To
accomplish this, Gonzalez followed his normal practice where a
driver's door does not work and walked around to the passenger
side of the car. Smith concedes he was moving over to the
passenger side and reaching for a handle on the passenger door.
He even explained this is a movement he makes every time he has
to get in and out of the car. In fact, unless Smith planned to
sleep in the car, it is logical that Smith would get out of the
car because he had pulled into a parking spot in the lot where
his residence is located. Gonzalez thought Smith was struggling
to open the passenger door so he put his hand on the outside
door handle and pulled the door open. Upon opening the door,
Gonzalez learned Smith did not have a valid driver's license
16
No. 2015AP756-CR
either. It is at this point Gonzalez suspected Smith had been
driving drunk.
¶21 Thus, applying the directives from Rodriguez, we hold
the stop in Smith's case did not violate the Fourth Amendment.
The mission of the lawful traffic stop did not end when
reasonable suspicion dissipated because at that moment, the
sergeant had not completed the ordinary inquiries of checking
Smith's license, registration, and insurance. Before Gonzalez
could complete the ordinary inquiries incident to the stop, he
discovered Smith did not have a valid driver's license and saw
signs Smith had been driving drunk. At this point, the sergeant
had probable cause to extend the stop to investigate and
eventually arrest Smith for drunk driving.
¶22 In addition, the record shows Gonzalez acted promptly
in his attempt to accomplish the mission of this traffic stop;
there is nothing to suggest Gonzalez slothed through the mission
to fish for wrongdoing. We emphasize, as did the Rodriguez
Court, that "[a]uthority for the seizure thus ends when tasks
tied to the traffic infraction are——or reasonably should have
been——completed." Rodriguez, 135 S. Ct. at 1614. Police
actions in all traffic stops will be scrutinized to ensure a
temporary detention "last[s] no longer than is necessary to
effectuate the purpose of the stop." Sharpe, 470 U.S. at 684;
Rodriguez, 135 S. Ct. at 1614. Neither the Fourth Amendment nor
the cases interpreting it require this traffic stop seizure to
end at the moment Gonzalez saw a man instead of a woman in the
driver's seat. The Fourth Amendment presented no bar to
17
No. 2015AP756-CR
Gonzalez taking the minimally intrusive, routine measure of
checking the identification of the driver. Because Gonzalez did
so in a reasonable manner and within a reasonable amount of
time, Smith's stop was not unlawfully prolonged. See Rodriguez,
135 S. Ct. at 1615; see also, State v. House, 2013 WI App 111,
¶¶6, 9, 350 Wis. 2d 478, 837 N.W.2d 645 (concluding the purpose
of traffic stop ended when "everything related to the initial
stop" had been completed including running a check on
defendant's license and returning license to the defendant);
State v. Gammons, 2001 WI App 36, 241 Wis. 2d 296, 625
N.W.2d 623 (holding the purpose of the traffic stop had
concluded after the reason for the initial seizure had been
satisfied, the driver and the two passengers had provided
identification, and the officer had run computer checks on all
three).
¶23 Our conclusion that this traffic stop comports with
the Fourth Amendment is further supported by existing Wisconsin
case law. Before the United States Supreme Court decided
Rodriguez, our court of appeals already decided that when "the
initial detention was lawful" an officer can properly ask for a
driver's name and identification card even when the officer "had
already decided" the driver "was not the suspect." See State v.
Williams, 2002 WI App 306, ¶1, 258 Wis. 2d 395, 655 N.W.2d 462.
In Williams, a police officer stopped a vehicle thinking the
driver was a wanted domestic abuse suspect named Demetrius
Phillips. Id., ¶¶2-3. The driver told the officer his name was
Vernell Williams, but he did not have any identification to
18
No. 2015AP756-CR
prove his identity. Id. The officer called another officer who
knew a lot of people in the neighborhood to see if Williams'
identity could be verified. Id., ¶4. The second officer
confirmed that Williams was who he said he was. Id. At this
point, the police knew the driver was not the domestic abuse
suspect, but they had the dispatcher run his name and birthdate
anyway and found Williams did not have a valid driver's license.
Id. Further investigation led to the discovery of cocaine in
the car and Williams filed a motion to suppress the evidence.
Id., ¶¶4-5, 8. The court of appeals concluded the officer's
actions were lawful because the request for the driver's name
and identification was reasonable, even if the request came
after the officer realized the driver was not the suspect the
officer sought.14 Id., ¶18. The court of appeals further held
that when "Williams stated that he had no identification, there
was a reasonable ground for further detention," id., ¶22, based
on Wis. Stat. § 343.18(1)'s requirement that persons operating
14
The court of appeals also relied on a community caretaker
vehicle case, State v. Ellenbecker, 159 Wis. 2d 91, 464
N.W.2d 427 (Ct. App. 1990), in reaching its conclusion. See
State v. Williams, 2002 WI App 306, ¶¶18-21, 258 Wis. 2d 395,
655 N.W.2d 462. We question whether Ellenbecker was properly
decided but decline to address that specific issue as it is not
dispositive here.
19
No. 2015AP756-CR
motor vehicles must have their driver's licenses with them.15
These routine measures are reasonable because they ensure the
driver has a valid license and they document the driver's
identity in case there is a complaint after the stop.
¶24 Smith distinguishes his case from Rodriguez because
reasonable suspicion for the traffic stop in that case continued
for the duration of the stop, whereas here, the State conceded
that reasonable suspicion dissipated as Sergeant Gonzalez
approached Smith's car. We need not guess whether the Supreme
Court would rule differently if faced with a case where
reasonable suspicion dissipated after a lawful stop but before
the ordinary inquiries could take place. The Supreme Court in
fact had that very case before it——Cummings I——concomitantly
with Rodriguez and although the Court never issued an opinion,
its procedural actions signal that the Fourth Amendment does not
compel an officer to prematurely terminate a lawful stop by
dispensing with the ordinary inquiries.
¶25 First, Rodriguez does not specifically limit its
holding to a lawful stop where reasonable suspicion does not
dissipate. Given that the Supreme Court had before it both
Rodriquez——a case where reasonable suspicion remained until the
15
Wisconsin Stat. § 343.18(1)'s requirement that all
drivers possess a driver's license while driving and display it
"upon demand from any judge, justice, or traffic officer"
further supports our opinion. It is reasonable to expect to
show a driver's license when a police officer conducts a traffic
stop.
20
No. 2015AP756-CR
ordinary inquiries had been completed, and Cummings——a case
where reasonable suspicion vanished before the ordinary
inquiries could be made, the Supreme Court most certainly would
have pointed out this distinction if the Court determined it
commands opposite Fourth Amendment outcomes.
¶26 Second, six days after deciding Rodriguez, the Supreme
Court vacated the judgment in Cummings I and told the Illinois
Supreme Court to reconsider its ruling. See Illinois v.
Cummings, 135 S. Ct. 1892 (Mem) (2015). Again, the Illinois
Supreme Court initially ruled in favor of the defendant in
Cummings I, holding that the police officer could not ask to see
his driver's license after reasonable suspicion vanished. See
Cummings I, 6 N.E.3d 725, ¶20. It is not logical or reasonable
for the Supreme Court to have vacated Cummings I if it believed
the Illinois Supreme Court reached the correct result. There
would be no reason to make the Illinois Supreme Court redo its
decision if the Supreme Court believed the law prohibits a
license check when reasonable suspicion dissipates before the
officer speaks with the driver. That is what the Illinois
Supreme Court had already ruled. If the Supreme Court wanted to
limit the ordinary inquiries only to cases where reasonable
suspicion remained until those routine procedures were
completed, presumably the Court would have simply let the
Illinois Supreme Court ruling in Cummings I stand. If the
disappearance of reasonable suspicion extinguished an officer's
ability to proceed with ordinary inquiries, logically the
21
No. 2015AP756-CR
Supreme Court would have said so either in Rodriguez itself or
by writing an opinion in Cummings I.
¶27 Third, the Illinois Supreme Court's analysis in
Cummings II upon remand from the Supreme Court is sound. That
court certainly could have distinguished Cummings from Rodriguez
based on the vanishing reasonable suspicion factor, but did not.
A unanimous court interpreted Rodriguez and the Supreme Court's
granting, vacating, and remanding in Cummings I to mean a police
officer who lawfully stops a vehicle may engage in the ordinary
inquiries even if the reasonable suspicion initiating the stop
dissipates.
¶28 Fourth, our court of appeals recently interpreted
Rodriguez in the same way the Illinois Supreme Court did. In
State v. Cotter, No. 2015AP1916-CR, unpublished slip op. (Wis.
Ct. App. Aug. 25, 2016)(per curiam) a police officer stopped a
car based on information that the registered owner (a woman) had
a non-valid license.16 Id., ¶¶7, 9. The driver of the car,
however, turned out to be a man, not a woman. Id., ¶9. One of
the car's passengers, Charles Cotter, challenged his narcotic
drug conviction resulting from the discovery of heroin on his
person during a pat-down search. Id., ¶¶10-14. Cotter argued
16
We note that State v. Cotter, No. 2015AP1916-CR,
unpublished slip op. (Wis. Ct. App. Aug. 25, 2016)(per curiam)
is an unpublished per curiam, which according to Wis. Stat.
§ 809.23(3) may not be cited by the parties. This court, of
course, is not a party. Moreover, Cotter is cited for the fact
that the decision exists rather than for reliance on its legal
analysis and holding.
22
No. 2015AP756-CR
this evidence should have been suppressed because once the
officer saw the driver was a man, and not the woman with the
invalid license, the officer no longer had any valid reason to
extend the stop. Id., ¶14. That case also involved a broken
driver's-side window, resulting in the officer having to open
the passenger door to speak with the occupants. Id., ¶10. Our
court of appeals held that Rodriguez controlled and this stop
did not violate the Fourth Amendment because (1) the police
lawfully stopped the car based on the registered owner's invalid
license; and (2) even though the officer "could not issue a
ticket on the basis for which the stop was initiated" the
officer could "continue the stop for purposes of completing
routine matters such as gathering [the driver's] license
information, making attendant observations in the process."
Id., ¶18. The court of appeals concluded that the reasonable
suspicion that developed while the ordinary inquiries occurred
"provided a basis for the officers to extend the stop" and as a
result, the discovery of heroin during Cotter's pat-down did not
violate the Fourth Amendment. Id., ¶19. Cotter correctly
points out that conducting the ordinary inquiries is not an
extension of the stop; it is part of the mission of the stop
itself. Discovering additional reasonable suspicion during the
ordinary inquiries can lead to a legal basis upon which to
extend the stop beyond the ordinary inquiries.
¶29 The three cases on which Smith heavily relies in
advancing his contrary position, Delaware v. Prouse, 440 U.S.
648 (1979), Florida v. Royer, 460 U.S. 491 (1983), and State v.
23
No. 2015AP756-CR
Coleman, 890 N.W.2d 284 (Iowa 2017), are either distinguishable
or not controlling.
¶30 First, Smith argues Delaware v. Prouse shows
Gonzalez's conduct violated his Fourth Amendment rights. Prouse
held that random traffic stops simply to check a driver's
license and registration absent any basis to stop the vehicle
violated the Fourth Amendment. 440 U.S. at 650. But this is
not what happened to Smith. Here, it is undisputed there was a
lawful basis to stop the car Smith drove.
¶31 Second, Smith turns to Florida v. Royer for its
holding that police may not detain a person for "longer than is
necessary to effectuate the purpose of the stop," and the
"methods employed should be the least intrusive means reasonably
available to verify or dispel the officer's suspicion in a short
period of time." 460 U.S. at 500. Royer involved an airport
traveler suspected of transporting narcotics in his suitcase.
Id. at 493-94. After approaching the traveler and questioning
him, undercover officers took him into a large closet with a
desk and two chairs, where he was in essence under arrest. Id.
at 494-97. Smith's situation, unlike Royer, involved a traffic
stop based on reasonable suspicion. As already explained,
Rodriguez tells us the purpose and scope of any lawful traffic
stop includes both the officer's decision on whether to issue a
ticket (which Gonzalez could not do because reasonable suspicion
on that aspect dissipated), as well as the officer's completion
of ordinary inquiries (which Gonzalez was attempting to do when
he saw signs that Smith was driving drunk). We are also not
24
No. 2015AP756-CR
persuaded by Smith's assertion that Gonzalez violated Royer's
requirement that an officer should use the "least intrusive
means" in an investigative detention. Smith argues the least
intrusive means here required Gonzalez to speak to Smith through
the closed and inoperable window. Even if we could agree that
requiring Gonzalez to shout through a closed window late at
night constitutes the least intrusive means, it is unreasonable
to expect Gonzalez to accomplish the ordinary inquiries through
a closed window. Under Pennsylvania v. Mimms, 434 U.S. 106, 110
(1977), an officer may ask a driver to step out of the car
during a traffic stop because "[e]stablishing a face-to-face
confrontation diminishes the possibility, otherwise substantial,
that the driver can make unobserved movements" which could
threaten the officer's safety. A face-to-face confrontation is
also necessary to accomplish the ordinary inquiries, as it would
be difficult if not impossible to check a driver's license,
registration, and insurance without having those documents in
hand. Requiring Gonzalez to accomplish the ordinary inquiries
in the dark through a closed window is illogical and
unreasonable.
¶32 The third case Smith proffers to support his position
is State v. Coleman, 890 N.W.2d 284 (Iowa 2017). Coleman is a
post-Rodriguez case in which a sharply divided Iowa Supreme
Court held, based on the Iowa Constitution, that an officer
cannot conduct the ordinary inquiries if reasonable suspicion
dispels after the initially lawful stop. Id. at 285. The
majority in Coleman rejected Rodriguez's recitation of the long-
25
No. 2015AP756-CR
established rule that ordinary inquiries are part of a lawful
traffic stop as "dicta." Id. at 300. Three Iowa Supreme Court
Justices dissented in Coleman, criticizing the majority for
disregarding Rodriguez, for ignoring Iowa's statute that
requires drivers to carry a driver's license and "display it
upon an officer's request," for overruling prior Iowa case law
consistent with Rodriguez, and for concluding for the first time
that the search and seizure provision in Iowa's Constitution
provides greater protection than the Fourth Amendment to the
United States Constitution. Id. at 301-05. We are not
persuaded by Coleman for several reasons. First, we are not
bound by Iowa law, particularly judicial interpretations of its
own constitution. Second, it applies an untenably cramped
interpretation of the holding in Rodriguez. Third, it ignores
the clear message the Supreme Court conveyed in its handling of
Cummings I, resulting in the Illinois Supreme Court's reversal.
Notably, Coleman is the only post-Rodriguez case in the country
to conclude that checking a driver's license during an initially
lawful traffic stop constitutes an unreasonable seizure when
reasonable suspicion for the stop evaporates as the officer
approaches the stopped car.17 We agree with the dissenters in
17
Smith also cites numerous other state and federal cases
he contends prohibit police from asking for identification if
reasonable suspicion triggering the traffic stop dissipated as
the officer approached the vehicle. All of these cases,
however, pre-date the Supreme Court's decision in Rodriguez v.
United States, 135 S. Ct. 1609 (2015).
26
No. 2015AP756-CR
Coleman in regarding an officer's request to see a driver's
license during a traffic stop as "completely unobjectionable
and, indeed, mundane" and therefore unquestionably
constitutional. Id. at 302.18
18
Justice Daniel Kelly's dissent conjures a law enforcement
boogeyman but if speculation and storytelling determine the
reasonableness of a police officer's actions, consider this
reworked storyline:
Female driver (name unknown as the officer will not be
permitted to ask): What are you stopping me for
officer?
Officer Doe: I'm sorry. I stopped this minivan
because it is registered to Mr. Jones whose license is
suspended. But, you are not Mr. Jones. I apologize
for any inconvenience. You are free to go.
Female driver drives away.
Officer Doe returns to his squad car and 30 minutes
later hears a radioed alert to be on the lookout for a
female suspect wanted for sex trafficking. There are
warrants out for her arrest. The female is thought to
be driving a minivan with six kidnapped girls. The
suspect matches the description of the driver Officer
Doe just let go. The female driver is never caught
and five of the six girls are never heard from again.
When the police locate the minivan, they find the
sixth missing girl who has been badly beaten and
drugged. She reports the girls were forcibly drugged
and physically and sexually abused and further reveals
the trafficker's plan to transport the girls overseas
to be sold as sex slaves. The sixth girl later dies
at the hospital during surgery to stop her internal
bleeding.
(continued)
27
No. 2015AP756-CR
Justice Kelly's strawman overlooks a significant restraint
on law enforcement: constitutional reasonableness. The parade
of horribles Justice Kelly proffers is as probable as the
proverbial boogeyman's existence. They are designed to frighten
despite materializing only in imagination and myth. The
principles declared today are not new. Nearly 40 years ago, the
United States Supreme Court recognized that checking a driver's
license during an otherwise lawful traffic stop constitutes a
permissible inquiry. See Rodriguez, 135 S. Ct. at 1615 (citing
Delaware v. Prouse, 440 U.S. 648, 658-660 (1979)). No court has
expanded the ordinary inquiries incident to a traffic stop to
include headlight, horn, or exhaust performance because the
Fourth Amendment commands reasonableness. We think the typical
scenario in Officer Doe's stop of Mrs. Brown's minivan would be:
Officer Doe: License and registration please.
Mrs. Brown: Yes Officer. Here it is. Did I do
something wrong?
Officer Doe: The car you are driving is registered to
a Mr. Jones whose license is suspended.
Mrs. Brown: Oh no. I borrowed this minivan to get
these kids to soccer practice. The Jones' are my
neighbors.
Officer Doe: Got it. Give me a couple minutes to
clear this up.
Officer Doe goes back to the squad car and runs Mrs.
Brown's license. He comes back moments later, returns
Mrs. Brown's license, and says: "I'm sorry for the
inconvenience. Everything checks out. You may be on
your way."
It is often easy for a court, which has the luxury to study
the cold transcripts and ponder the nuances of case law, to
criticize an officer's split-second decisions in high crime
areas late at night. But reasonableness cannot be measured with
20/20 hindsight; instead, "[t]he calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments——in circumstances that are
tense, uncertain, and rapidly evolving . . . " Graham v.
Connor, 490 U.S. 386, 396-97 (1989). Sergeant Gonzalez's
actions here were reasonable.
(continued)
28
No. 2015AP756-CR
B. Opening of the Passenger Door
¶33 Smith also argues that opening the passenger door
constituted a separate Fourth Amendment event requiring
additional reasonable suspicion. We do not agree. Whether a
search or seizure is reasonable depends upon the particular
facts of each case, and what Gonzalez did under these facts was
reasonable. See South Dakota v. Opperman, 428 U.S. 364, 375
(1976) (citation omitted).19 Gonzalez approached the driver's
door and asked Smith to open the door or the window. Smith
responded that both were broken. As Gonzalez walked around to
the passenger door, Smith appeared to be cooperating and moving
toward the passenger seat, and seemed to be trying to open the
passenger door. The officer testified that Smith and he
simultaneously opened the door and that they opened it
19
Courts have recognized a variety of circumstances where a
search of a car does not infringe upon the Fourth Amendment:
(1) when the driver consents, see Florida v. Jimeno, 500 U.S.
248 (1991); (2) when an officer sees contraband in plain view,
see State v. Buchanan, 2011 WI 49, ¶¶26-27, 334 Wis. 2d 379, 799
N.W.2d 775; (3) incident to an arrest, see Arizona v. Gant, 556
U.S. 332 (2009); (4) when an officer has probable cause to
suspect a crime, see United States v. Ross, 456 U.S. 798 (1982);
and (5) when a car has been impounded, see South Dakota v.
Opperman, 428 U.S. 364 (1976). Police may also order the driver
out of a vehicle for officer safety. See Pennsylvania v. Mimms,
434 U.S. 106 (1977); see also United States v. Stanfield, 109
F.3d 976, 981 (4th Cir. 1997) (recognizing certain circumstances
in which opening at least one of the vehicle's doors is
consistent with concerns of officer safety).
29
No. 2015AP756-CR
together.20 An officer may make reasonable inferences based on
the facts drawn from his experience. Terry, 392 U.S. at 21-22.
It was reasonable for Gonzalez to infer that Smith's movements
indicated he was willingly opening (or attempting to open) the
passenger door. The sergeant needed to communicate with and
identify the driver whom he had stopped and there was no avenue
to do that on the driver's side of the car due to the inoperable
driver's window and door.
¶34 Smith offers New Jersey v. Woodson, 566 A.2d 550 (N.J.
Super. Ct. App. Div. 1989), in support of his argument that
Gonzalez unreasonably opened the door. Smith's reliance on
Woodson is misplaced. We are neither bound by New Jersey
authority nor persuaded that it presents similar facts. In
Woodson, police conducted a traffic stop and immediately opened
the car door without making any attempt to speak with the
driver. Id. at 551. The New Jersey court held this police
conduct violated the Fourth Amendment. Id. at 552. Woodson's
facts are clearly distinguishable from Smith's.
¶35 Finally, Gonzalez's act of opening the passenger door
did not violate the Fourth Amendment because under all the facts
and circumstances, the action was reasonable and this intrusion
on Smith's personal liberty was an incremental, de minimus one.
See Mimms, 434 U.S. at 109-11. Under Mimms, a police officer
20
Again, we acknowledge the circuit court found it was the
officer who opened the door. Nonetheless, the circuit court did
not find the officer's testimony in this regard not credible.
30
No. 2015AP756-CR
has the right to a face-to-face encounter with a driver during a
lawful traffic stop. "[T]his additional intrusion can only be
described as de minimus." Id. at 111.21
IV. CONCLUSION
¶36 We acknowledge that the police are not infallible, and
a police officer may intentionally or unintentionally infringe
upon the constitutional rights of Wisconsin citizens. If that
happens, it is the duty of this court to impose consequences for
such violations. Terry, 392 U.S. at 12 ("[E]xcluding evidence
seized in violation of the Fourth Amendment has been recognized
as a principal mode of discouraging lawless police conduct.").
Likewise, when the police abide by the rules and act reasonably,
the Fourth Amendment is not violated and we must uphold
convictions.
¶37 The Supreme Court's most recent pronouncement on the
scope of constitutionally reasonable traffic stop seizures,
Rodriguez v. United States, 135 S. Ct. 1609 (2015), requires
upholding Smith's conviction. Rodriguez acknowledges that
"ordinary inquiries" are part of the mission of every lawful and
reasonably executed traffic stop. The mission of such stops is
not completed until the police officer checks a driver's
identification, even if reasonable suspicion for stopping the
21
Justice Ann Walsh Bradley's dissent assumes that Smith
had permission to drive his sister's car. See Justice Ann Walsh
Bradley's dissent, ¶11. There is nothing in the record
establishing that Smith had permission to drive his sister's
car.
31
No. 2015AP756-CR
vehicle dissipates as the officer approaches the vehicle.
Further, the officer's act of opening the passenger door to
facilitate safe, face-to-face contact with the otherwise
inaccessible driver did not constitute an unreasonable search.
By the Court.—The decision of the court of appeals is
reversed.
32
No. 2015AP756-CR.awb
¶38 ANN WALSH BRADLEY, J. (dissenting). I join Justice
Kelly's dissent. However, I write separately because I
determine that the majority compounds its error when it departs
from the clear directive of Pennsylvania v. Mimms, 434 U.S. 106
(1977) (per curiam), extending the holding past its breaking
point and further eroding the protections of the Fourth
Amendment.
¶39 Contrary to the majority, I apply the clear precedent
and conclude that Smith's Fourth Amendment rights were violated
when Sergeant Gonzalez opened Smith's passenger side door
without a warrant or consent. Accordingly, I respectfully
dissent.
I
¶40 In Mimms, law enforcement officers pulled the
defendant over for driving a vehicle with an expired license
plate. Id. at 107. One of the officers approached the car and
asked the defendant to step out. Id. When the defendant did
so, the officer noticed a bulge in his jacket, which turned out
to be a gun. Id. After the State indicted the defendant on two
weapons related offenses, the defendant moved to suppress the
gun as evidence. Id.
¶41 The United States Supreme Court concluded that the
police officers acted properly because law enforcement officers
are allowed to order occupants to exit a lawfully stopped
vehicle even if there is nothing unusual or suspicious about
their behavior. Id. at 111. This court has recognized Mimms as
1
No. 2015AP756-CR.awb
establishing a clear directive, "a per se rule that an officer
may order a person out of his or her vehicle incident to an
otherwise valid stop for a traffic violation." State v.
Johnson, 2007 WI 32, ¶23, 299 Wis. 2d 675, 729 N.W.2d 182
(emphasis added); State v. Floyd, 2017 WI 78, ¶24, 377
Wis. 2d 394, 898 N.W.2d 560.
¶42 Therein lies the rub. As set forth in Justice Kelly's
dissent, the facts here do not support the conclusion that this
was "an otherwise valid stop." Indeed, the State conceded that
reasonable suspicion had dissipated when the officer realized
the male driver was not the female registered owner. Majority
op., ¶14.
II
¶43 Not only does the majority violate Mimms' clear
directive, it extends the holding beyond what is
constitutionally permissible. Mimms explains that law
enforcement officers may order occupants out of a vehicle during
a traffic stop. It does not suggest that police may open a
vehicle door and invade the space inside absent a warrant. See
State v. Woodson, 566 A.2d 550, 552 (N.J. Super. Ct. App. Div.
1989) ("There is a significant difference between ordering one
out of a car and opening a car door without warning. In the
former case, the occupant has an opportunity, before opening the
door and leaving the car, to safeguard from public view matters
as to which he has a privacy interest").
¶44 The majority fails to acknowledge the limitations of
Mimms and extends its holding past its breaking point, reading
2
No. 2015AP756-CR.awb
language into that opinion that is not present. Mimms does not
permit the officer's conduct in this case. Contrary to the
majority's assertion, Mimms does not imply that a police officer
has "the right to a face-to-face encounter." See Majority op.,
¶35. And, it certainly does not extend such a right once the
validity of the stop has been undermined because reasonable
suspicion has dissipated.
¶45 Rather, Mimms is limited to an officer verbally
ordering an occupant out of a vehicle. In determining that
Mimms allows an officer to not only order an occupant out of a
vehicle but to also invade the interior space of a vehicle by
opening the door, the majority departs from what is
constitutionally permissible and disregards the facts of this
case.
¶46 The Fourth Amendment protects against unreasonable
searches and seizures and focuses on the reasonable expectation
of privacy. U.S. Const., amend. IV; Katz v. United States, 389
U.S. 347, 360 (1967) (Harlan, J., concurring); State v. Bruski,
2007 WI 25, ¶22, 299 Wis. 2d 177, 727 N.W.2d 503; see also Wis.
Const. art I, § 11. Yet, the majority's conclusion ignores that
a defendant in Smith's position has a reasonable expectation of
privacy in the interior of a vehicle. See State v. Dixon, 177
Wis. 2d 461, 470, 501 N.W.2d 442 (1993) ("This relationship
[between the vehicle owner and the driver] and prior use of the
vehicle point to the defendant having an expectation of privacy
in the interior of the truck that society is willing to
recognize as reasonable").
3
No. 2015AP756-CR.awb
¶47 The record reflects that the vehicle Smith was driving
belonged to his sister. A person who borrows a car and drives
it with the owner's permission has an expectation of privacy in
the interior of the vehicle which society is willing to
recognize as reasonable, especially where the owner of the car
is a family member.1 See id. at 470-72 (citing United States v.
Griffin, 729 F.2d 475, 483 n.11 (7th Cir. 1984), cert. denied,
469 U.S. 830 (1984) (accused who borrowed a car from his brother
had a protectable privacy interest in the vehicle)). Opening
the door of a vehicle is clearly contrary to this reasonable
expectation of privacy.2
¶48 With no reasonable suspicion remaining to support the
stop, the objective of the stop at the point Gonzalez opened the
door was simply to communicate with Smith. But this easily
could have been accomplished without invading the interior of
the car. The record reflects that Sergeant Gonzalez
successfully communicated with Smith through the closed door and
1
The record indicates that the prosecutor never contended
that Smith used the vehicle without permission. During cross
examination, Smith reiterated that the car was his sister's.
The prosecutor did not elicit any testimony about consent and
there is nothing in the record indicating that Smith's use of
the vehicle was without his sister's permission.
2
I further observe that Officer Gonzalez violated the
United States Supreme Court's decree that law enforcement must
employ "investigative methods" that are the "least intrusive
means reasonably available to verify or dispel the officer's
suspicion in a short period of time." Florida v. Royer, 460
U.S. 491, 500 (1983). The record does not support the assertion
that opening Smith's passenger side door was the least intrusive
means of completing the objective of the stop.
4
No. 2015AP756-CR.awb
window on the driver's side of the car and understood Smith's
responses without having to repeat himself. Why then was it
necessary to open the door?
¶49 Applying the clear precedent under the facts
presented, I conclude that Smith's Fourth Amendment rights were
violated when Sergeant Gonzalez opened Smith's passenger side
door without a warrant or consent.
¶50 Finally, I observe that once again a majority of this
court continues the trend of diminishing Fourth Amendment
protections we have seen in recent years. See Floyd, 377
Wis. 2d 394, ¶¶83-89 (Ann Walsh Bradley, J., dissenting). To
give meaning to the Fourth Amendment, we must use it as a check
on governmental power. This court's decision fails to provide
this check, instead giving law enforcement carte blanche to
detain individuals when there is no reasonable suspicion that
they have done anything wrong. The majority further gives
officers free reign to invade a space in which a person has a
reasonable expectation of privacy without a warrant or consent
when less intrusive means of communication demonstrably suffice.
¶51 Accordingly, I respectfully dissent.
¶52 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
5
No. 2015AP756-CR.dk
¶53 DANIEL KELLY, J. (dissenting).
I
¶54 Frederick Smith is not a sympathetic character. This
case is here only because he was driving an automobile while
drunk——really drunk: his blood alcohol level was .38 when he
was arrested.1 This is not his first time, or even his second.
In fact, this is the seventh time he has been arrested and
convicted of driving while intoxicated. And because we can be
pretty confident that drunk drivers are not caught every time
they go abroad with too much alcohol in their system, it's
reasonable to believe that seven-time offenders make a habit of
putting at risk the lives of everyone around them. It is not
without reason that drunk drivers have been described as a
scourge. See, e.g., State v. Nordness, 381 N.W.2d 300, 307, 128
Wis. 2d 15 (1986) (describing drunk driving as "transform[ing]
an innocent user of a highway into a victim at any time . . . "
and as "a scourge on society"). To live in society peacefully,
we must have at least a minimal level of trust that our
neighbors won't habitually place us in mortal danger. We can
count ourselves fortunate that Officer Gonzalez apprehended Mr.
1
To put this in context, a person with a blood alcohol
concentration of .31 (that is, less than Mr. Smith), is at risk
of death by alcohol poisoning. See, e.g., National Institute on
Alcohol Abuse and Alcoholism, Alcohol Overdose: The Dangers of
Drinking Too Much,
https://pubs.niaaa.nih.gov/publications/alcoholoverdosefactsheet
/overdosefact.htm (last visited Dec. 1, 2017).
1
No. 2015AP756-CR.dk
Smith before he could maim or kill someone with the car he was
driving. The people of Wisconsin want drunk drivers to be
stopped. They need drunk drivers to be stopped.
¶55 None of that, however, has anything to do with the
proper understanding of the Fourth Amendment's proscription
against unreasonable searches and seizures. Whatever rule of
police conduct we derive from that provision must be just as
applicable to a soccer mom taking the neighborhood children to
practice as it is to habitual drunk drivers like Mr. Smith.
Indeed, the rule we announce today would probably benefit from
considering how it would apply in a legally identical but less
emotionally-fraught situation.
¶56 So let's consider the soccer mom, Mrs. Brown. Her
automobile is in the shop for maintenance, so Mrs. Jones (Mrs.
Brown's neighbor and best friend) lent her the family's minivan.
While Mrs. Brown is en route to soccer practice with a vehicle
full of children, Officer Doe runs the plates and discovers the
registered owner, Mr. Jones, has a suspended driver's license.
Believing Mr. Jones is driving the minivan, he pulls it over.
Upon approaching the driver's window, he realizes his mistake.
But instead of apologizing for his interference with Mrs.
Brown's liberty, the following conversation takes place:
"Good afternoon, ma'am," said Officer Doe. "I pulled
you over because I thought you were Mr. Jones.
Obviously, I couldn't be more wrong. You needn't be
alarmed——I don't believe you have broken any laws, nor
does it appear you are contemplating doing so."
"Oh," replied Mrs. Brown, somewhat disconcerted.
"Just so I understand, you presently have no
2
No. 2015AP756-CR.dk
reasonable suspicion to believe I have done anything
wrong?"
"That is correct, ma'am."
"Then I may leave?" Mrs. Brown inquired.
"Actually, no," said Officer Doe. "You see, I'm
curious about a few things. I want to know whether
you have your driver's license with you. I'm also
curious about whether it is valid, and whether there
are any warrants for your arrest, or if there are any
other reasons law enforcement might be interested in
you."
"Please understand that I have no reason to believe
you don't have a valid driver's license with you, or
that law enforcement has any reason to be interested
in you," Officer Doe continued. "And, of course, this
has absolutely nothing to do with the reason I
mistakenly pulled you over in the first place.
However, a new Wisconsin Supreme Court decision, State
v. Smith, says I can compel you to remain here until I
finish satisfying my curiosity on these subjects."
¶57 That's enough of a vignette for the analysis. But
it's important to note that this is not the full extent of the
intrusion Officer Doe could command under these entirely
innocent circumstances. If our decision today is correct, he
could also have his narcotics-detection dog sniff the perimeter
of the automobile to see if it would alert for the presence of
illegal substances while awaiting the report on Mrs. Brown.2 And
he could order Mrs. Brown out of the minivan.3 He could even
order all of the children to stand along the roadside while he
2
Illinois v. Caballes, 543 U.S. 405, 409 (2005).
3
Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per
curiam).
3
No. 2015AP756-CR.dk
completed his "incidental" questioning.4 His authority to do all
of this comes not from anything Mrs. Brown did, but from a
mistake of Officer Doe's own making.5
II
¶58 This case requires us to identify the point at which
the Fourth Amendment says a traffic stop must end. Is it when
the purpose for initiating the stop is satisfied, or may a
police officer continue the seizure to pursue other objectives?
That is, must Officer Doe end Mrs. Brown's seizure when he
discovers she is not Mr. Jones, or may he maintain the seizure
to ask questions that have no connection to a reasonable
suspicion of wrongdoing?
¶59 In giving our imprimatur to the latter, we erred, and
significantly so. In adopting the constitutionally-unique
concept of a "dual mission" traffic stop, we created a mission
4
See Rodriguez v. United States, 575 U.S. ___, 135 S.
Ct. 1609, 1615 (2015) (citing Mimms, 434 U.S. at 110-11 (no
Fourth Amendment violation occurs where an officer orders "a
driver, already lawfully stopped, to exit the vehicle") and
Maryland v. Wilson, 519 U.S. 408, 413-15 (1997) (an officer may
require passengers to exit a vehicle lawfully stopped for a
traffic violation).
5
The court says my hypothetical is a strawman. Majority
op., ¶32 n.18. A strawman is a debate technique in which one
participant pursues a rhetorical advantage by positing and
refuting an argument the other participant didn't make. All I
have done with this vignette is remove the elements that make
Mr. Smith an unsympathetic character and replace them with
elements that make the subject of the seizure neutral or
sympathetic——elements, that is, that should not affect our
analysis. Because the court has identified no constitutionally-
significant difference between Mrs. Brown and Mr. Smith, I
disagree with its conclusion that this is a strawman.
4
No. 2015AP756-CR.dk
that allows a police officer to seize an individual without any
reasonable suspicion of wrongdoing. And we took this ground-
breaking step based largely on a "signal" we discerned from the
vacation of the Cummings I6 judgment by the United States Supreme
Court.
A
¶60 Let's start with this——we should never countenance a
traffic stop "mission" that is not tied to the Constitution.
Power bristles at restraint, which is why we chain it firmly to
constitutional anchor points. That is true whether the exercise
of power involves the taking of personal property for public
use, or inhibiting speech or publications, or the possession of
arms, or conducting a traffic stop. We may disagree about the
length of the chain, but we have always agreed that the
Constitution must hold its anchor. Until today. Today we have
dual mission traffic stops in which one mission is tethered to
the Fourth Amendment and the other is not.
¶61 The first mission we describe in our opinion is the
conventional one, the one which we have always understood to be
inexorably linked to the purpose for the traffic stop, and thus
to the Constitution. Notwithstanding our suggestion to the
contrary, Rodriguez didn't say a single word from which we may
infer the existence of any other mission. It started with the
6
Like the majority, I will refer to People v. Cummings, 6
N.E.3d 725 (Ill. 2014), vacated, 135 S. Ct. 1892 (2015), as
"Cummings I." I will likewise refer to People v. Cummings, 46
N.E.3d 248 (Ill. 2016) as "Cummings II."
5
No. 2015AP756-CR.dk
broad observation that "[l]ike a Terry[7] stop, 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, . . . and attend to related
safety concerns[.]" Rodriguez v. United States, 575 U.S. ___,
135 S. Ct. 1609, 1614 (2015) (citations omitted). And it
recognized that "'[t]he scope of the detention must be carefully
tailored to its underlying justification.'" See id. (quoting
Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion)).
The underlying justification that defines the scope of the
detention is the event that caused the officer to initiate the
stop: "Because addressing the infraction is the purpose of the
stop, it may last no longer than is necessary to effectuate that
purpose." Rodriguez, 135 S. Ct. at 1614 (internal marks and
citation omitted). From this the Rodriguez Court concluded that
the authority for a traffic stop cannot outlast its purpose:
"Authority for the seizure thus ends when tasks tied to the
traffic infraction are——or reasonably should have been——
completed." Id. Most importantly to our decision today,
Rodriguez confirmed that even if a seizure was constitutional
when it began, it can lose this status if it continues after the
purpose for the stop has been satisfied. "[A] traffic stop 'can
become unlawful if it is prolonged beyond the time reasonably
required to complete th[e] mission' of issuing a warning
ticket." Id. at 1614-15 (quoting Illinois v. Caballes, 543
7
Terry v. Ohio, 392 U.S. 1 (1968).
6
No. 2015AP756-CR.dk
U.S. 405, 407 (2005)). Everything Rodriguez said about the
traffic mission——everything——describes it in terms of the
singular mission we have always ascribed to a valid traffic
stop, to wit, the investigation of an officer's reasonable
suspicion of wrongdoing. As discussed at length, infra,
"officer safety" and "the usual inquiries" have always been
incidents to the purpose of the traffic stop, and Rodriguez said
not a single word to the contrary.
¶62 And everything Rodriguez said about the constraining
chain refers back to the constitutional anchor: Reasonable
suspicion of wrongdoing. That, and that alone, is what defines
the purpose of the stop. That purpose, in turn, defines "the
tolerable duration of police inquiries." And the tolerable
duration of police inquiries defines, in its own turn, the
uttermost extent of the authority to seize a person. If the
seizure goes beyond that, the police are on forbidden ground.
Link by link by link, courts test the soundness of the
connection between the constitutional anchor and the exercise of
power. This has been the state of the law for long enough to
consider it settled. Inasmuch as Rodriguez did nothing but
recite these principles, we can safely conclude it hasn't
disturbed the chain's continued integrity. And nothing in that
recitation of well-established principles hints at the existence
of a companion mission.
¶63 The second mission, the one we created today, breaks
the link to the constitutional anchor point. This mission is
triggered by a constitutional traffic stop, but after its
7
No. 2015AP756-CR.dk
genesis it lives separately and apart from the purpose of the
stop and, hence, its constitutional limits. We called this
second mission into existence by promoting the "usual
inquiries,"8 which used to occupy the lowly office of incidents
to a traffic stop, all the way up to a rank of equal dignity
with the purpose of the traffic stop itself.
¶64 Rodriguez referred to these usual inquiries as
"incident to the traffic stop." 135 S. Ct. at 1615 (citation,
brackets, and internal quotation marks omitted). So did
Caballes, in which the court observed that "the duration of the
stop in this case was entirely justified by the traffic offense
and the ordinary inquiries incident to such a stop." 543
U.S. at 408; see also Berkemer v. McCarty, 468 U.S. 420, 439
(1984) ("Typically, this means that the officer may ask the
detainee a moderate number of questions to determine his
identity and to try to obtain information confirming or
dispelling the officer's suspicions.").
¶65 As "incidents" to a traffic stop, the usual inquiries
are logically and constitutionally subordinate to the purpose of
the stop. An incident does not exist on the same plane as its
premise. That is true as a matter of definition. An incident
is "something dependent upon, appertaining or subordinate to, or
accompanying something else of greater or principal importance."
Incident, Webster's Third New International Dictionary (1986).
8
The usual inquiries, of course, refer to a police
officer's request to see a person's driver's license and proof
of registration and insurance.
8
No. 2015AP756-CR.dk
Because the usual inquiries, according to Rodriguez and
Caballes, are incidents to a traffic stop, they can have no
independent existence. In the world of logic, that's what it
means to be dependent on something. That's why a seizure that
begins with a constitutional basis can become unconstitutional:
"[A] traffic stop 'can become unlawful if it is prolonged beyond
the time reasonably required to complete th[e] mission' of
issuing a warning ticket." Rodriguez, 135 S. Ct. at 1614-15
(quoting Caballes, 543 U.S. at 407).
¶66 Therefore, by main force of precedent and logic, the
usual inquiries cannot be made after the purpose for the traffic
stop——investigation of a reasonable suspicion of wrongdoing——no
longer exists. The usual inquiries are thereby subjected to
constitutional restraint, but only because they are subordinate
to the purpose of the traffic stop, which is textually bound to
the Fourth Amendment.
¶67 That is why we had to give the usual inquiries a
promotion. As mere incidents they can have no existence beyond
the purpose of the traffic stop. If Officer Doe is to
authoritatively maintain Mrs. Brown's seizure after the
dissipation of reasonable suspicion (the constitutional anchor
point), the usual inquiries must be more than incidents. We
accomplished the promotion with some clever melding of our voice
with Rodriguez. We said that Rodriguez "concluded that asking
for identification is an ordinary inquiry that is related to the
purpose of a lawful stop as part of its dual mission and the
stop 'may last no longer than is necessary to effectuate that
9
No. 2015AP756-CR.dk
purpose.'" Majority op., ¶10 n.9 (quoting Rodriguez, 135
S. Ct. at 1614-15). Placing "dual mission" in the sentence
where we did suggests that Rodriguez says the "purpose" of the
stop includes both the traffic infraction and the desire to make
the ordinary inquiries. Notwithstanding our voice-melding,
however, Rodriguez still says the purpose of the stop is to
address the traffic infraction.
¶68 With this promotion from "incident" to parity with the
"purpose of the traffic stop," we freed the usual inquiries from
their constitutional anchor point. We observed that "[w]hen
Gonzalez saw the driver of the stopped car was a man, the first
part of the mission ended." Majority op., ¶20. That is to say,
the mission anchored in the Fourth Amendment ended. But because
of the promotion, Officer Gonzalez didn't need to end the
traffic stop: "The second mission of the traffic stop, however,
had not been performed——checking the driver's license,
registration, and insurance." Id. So we concluded that "[t]he
mission of the lawful traffic stop did not end when reasonable
suspicion dissipated because at that moment, the sergeant had
not completed the ordinary inquiries of checking Smith's
license, registration, and insurance." Majority op., ¶21. Et
voilà: The advent of a traffic mission that allows a police
officer to seize a person with no reasonable suspicion of
wrongdoing whatsoever.
¶69 This should shock us. The "reasonable suspicion"
requirement is not an archaic formula to which we give rote
obeisance. It is, instead, the only textual link to the Fourth
10
No. 2015AP756-CR.dk
Amendment's promise that we shall be free of "unreasonable"
seizures. This is the stuff of our deepest bedrock principles:
"[A person] may not be detained even momentarily without
reasonable, objective grounds for doing so . . . ." Royer, 460
U.S. at 498. Courts have spent decades fine-tuning what this
principle means in the context of traffic stops. They have
scrupled over, for just a few examples, whether the officer may
require drivers to exit their vehicles,9 or make passengers exit
a vehicle,10 or request permission to perform a pat-down search,11
or ask questions unrelated to the traffic stop,12 or conduct a
canine sniff,13 or extend the stop based on discoveries made
while reasonable suspicion exists.14 We went through this very
exercise just last term, when we said:
[W]e draw the line between traffic stops of proper
duration and those that extend into unconstitutional
territory according to functional
considerations. . . . Generally speaking, 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. . . . He steps across that line (again
speaking generally) when he maintains the seizure
9
Mimms, 434 U.S. 106.
10
Wilson, 519 U.S. 408 (1997).
11
Arizona v. Johnson, 555 U.S. 323 (2009).
12
Id.
13
Rodriguez, 135 S. Ct. 1609; Caballes, 543 U.S. 405.
14
State v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App.
1999).
11
No. 2015AP756-CR.dk
after he has completed all the necessary functions
attendant on the traffic stop.
State v. Floyd, 2017 WI 78, ¶22, 377 Wis. 2d 394, 898 N.W.2d 560
(internal citations omitted; emphasis added). In all of this,
the courts microscopically examined the purpose of the stop so
that they could identify the point at which it must end.
¶70 Identifying the end point of the second mission
requires no such fastidiousness. This mission is not based on
"reasonable, objective grounds" to believe legal mischief is
afoot. Until today, those grounds had always been the
constitutional anchor to which we tethered the exercise of an
officer's power during a traffic stop. And it is the anchor we
now discard. This mission has no textual link to the Fourth
Amendment, so our new "usual inquiries" jurisprudence sets us at
odds with Royer (and the rest of the Fourth Amendment "seizure"
canon): The police may detain a person without "reasonable,
objective grounds" for doing so.
¶71 This frees traffic stops from constitutionally-defined
limitations on at least two dimensions——length and content. In
the pre-Smith world, the duration of the stop was subject to an
externally imposed limitation——it could last no longer than
necessary to investigate the officer's reasonable suspicion of
wrongdoing. The second mission has no such limitation. So how
long may it last? Well, we said "the 'ordinary inquiries,'
which are related in scope to the purpose of a traffic stop,
must be executed within the time it should have reasonably taken
to complete them." Majority op., ¶2. In other words, the
inquiries must be executed in the time it takes to execute them.
12
No. 2015AP756-CR.dk
We also said that Rodriguez "signaled that 'ordinary inquiries'
remain reasonable for the duration of an otherwise lawful stop."
Majority op., ¶19.15 Which is a different way of saying the same
thing. One of the problems with defining an activity's lawful
boundary in terms of how long the activity lasts is that it is
not possible to cross the boundary. Ever. That's the "limit"
we set today on the second part of our brand new dual mission.
¶72 The reason we have traditionally required a
constitutional anchor point is so that we may have a boundary
that is not self-referential. That is, we tie the duration of
the traffic stop to its purpose, and then we tie the purpose to
the reasonable suspicion that inspired the stop, and then we tie
the reasonable suspicion to the Fourth Amendment's text by
observing that it prevents unreasonable seizures. Thus, the
temporal aspect of the seizure had a constitutional anchor and
limit that was not self-referential. That's part of what we
lose today. Because the usual inquiries no longer require the
existence of any reasonable suspicion of wrongdoing, there is no
15
The meaning of this statement is not entirely clear. On
its face, its reference to an "otherwise lawful stop" seems to
undermine (in the space of three words) the entire rationale of
the opinion. The only "otherwise" about the lawful duration of
the traffic stop was the existence of reasonable suspicion,
which everyone acknowledges ran out before the officer engaged
in the usual inquiries. That would mean the inquiries in this
case were extra-constitutional. The other potential reading of
the statement makes it appear we are defining the lawful
duration of the stop in terms of how long it takes to conduct
the inquiries. That doesn't help at all. One can't measure
something by reference to itself. If someone asks after the
height of our Capitol and we say it is one Capitol high, we have
been perfectly accurate while conveying exactly no information.
13
No. 2015AP756-CR.dk
link between them and the Fourth Amendment. So they may last as
long as they last. We may eventually encounter a case in which
the amount of time the officer took to make the ordinary
inquiries will make us uncomfortable. But when we try to
explain why the seizure lasted too long, we'll find that we have
put our constitutional measuring stick beyond our reach. It is
not immediately apparent what will take its place.
¶73 The same is true with respect to the contents of the
"usual inquiries." These aren't spelled out in the
Constitution, and we've not given much attention to their
content because an officer may question drivers even on
unrelated subjects so long as they do not extend the traffic
stop. See Rodriguez, 135 S. Ct. at 1614-15. The Supreme Court
explained that the usual inquiries are justifiable "incidents"
of a traffic stop because they "serve the same objective as
enforcement of the traffic code: ensuring that vehicles on the
road are operated safely and responsibly." Id. at 1615. As
incidents, there was an external limitation on how far the
police could go in "enforc[ing] the traffic code" during a
traffic stop, to wit, the amount of time within which there was
reasonable suspicion of wrongdoing.
¶74 Because we have elevated the usual inquiries beyond
the status of incidents, however, there is no longer any
external limitation on how far they can go. If demanding
presentation of a driver's license during a traffic stop is
constitutionally permissible because it "serves the same
objective as enforcement of the traffic code," then it must
14
No. 2015AP756-CR.dk
certainly be true that ascertaining compliance with the actual
traffic code can be no less constitutional.
¶75 Our opinion teaches that the traffic stop does not end
until inquiries related to the safe and responsible operation of
the vehicle have been conducted. Enterprising officers may
teach us, in turn, that there is a whole lot more to the safe
and responsible operation of a vehicle than a driver's license
and proof of registration and insurance. See, e.g., Wis. Stat.
§ 347.10(2) (describing the required performance of headlights);
Wis. Stat. § 347.13 (describing the required performance of
taillights); Wis. Stat. § 347.39(2) (describing required exhaust
system performance and safety requirements); Wis. Stat.
§ 347.36(1) (describing required brake system performance); Wis.
Stat. § 347.38(1) (describing the horn's required performance);
Wis. Stat. § 347.40 (describing the required performance of
rear-view mirrors). Each of these traffic-code provisions is at
least as closely related to the safe and responsible operation
of a vehicle as possession of a driver's license.
¶76 Perhaps the court will say that inquiring into these
aspects of the safe and responsible operation of a vehicle is
not part of what we call "usual." Which would be both true and
irrelevant. The "usual inquiries" are usual not because the
Constitution says they are, but because the judiciary says they
are. The only limitation any court has ever placed on them is
that they must be related to the safe and responsible operation
of vehicles, and that they be incidents to the traffic stop.
We've removed the latter limitation, so we are free to give the
15
No. 2015AP756-CR.dk
"usual" label to as many inquiries as we wish, so long as they
comply with the "safe and responsible operation" boundary.
¶77 The court says this should present no worries because
the usual inquiries are subject to the constraint of
"constitutional reasonableness." Majority op., ¶32 n.18. I had
thought this type of reasonableness consisted of "reasonable"
suspicion of wrongdoing. Our opinion today says that's wrong
(or at least incomplete), so it would have been helpful if we
had described the parameters of this constraint and identified
its reference point in the Constitution. The police and our
courts will need this guidance.
B
¶78 Authorizing a police officer to seize an individual
when there is no reasonable suspicion of wrongdoing is enough to
send a tremor through the foundation of the Fourth Amendment.
If the United States Supreme Court had explicitly commanded such
a result, we would be justified in questioning whether the
Fourth Amendment's terms really are congruent with Article I
section 11 of the Wisconsin Constitution.16 But we aren't
responding to an explicit command here——we're reading a
"signal."
16
"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." Wis. Const. art. I, § 11.
16
No. 2015AP756-CR.dk
¶79 Our opinion carefully avoids an independent analysis
of whether Rodriguez is truly responsible for this seismic
event. Instead, we focus on environmental factors at the time
of the Court's decision: "Before applying Rodriguez to the
particular circumstances in Smith's case, we first examine the
conditions surrounding the Supreme Court's holding in
Rodriguez." Majority op., ¶16. One of the conditions was the
Supreme Court's treatment of an Illinois Supreme Court case
involving the same issue we are addressing. See majority op.,
¶¶16-19; see also People v. Cummings, 6 N.E.3d 725 (Ill. 2014),
vacated, 135 S. Ct. 1892 (2015). We concluded that "[w]hen the
Supreme Court vacated the judgment in Cummings I and remanded
the case to the Illinois Supreme Court for further consideration
in light of Rodriguez it signaled that 'ordinary inquiries'
remain reasonable for the duration of an otherwise lawful stop."
Majority op., ¶19.17 And then we adopted the Cummings II
analysis of Rodriguez as our own. Id. ("The Illinois Supreme
Court's interpretation of Rodriguez in Cummings II is
correct.").
¶80 Armed with the Rodriguez "signal" and Cummings II, we
decided the merits of this case. That puts a premium on the
incisiveness of the Cummings II opinion. But it appears the
Illinois Supreme Court also relied on signaling. In relevant
part, the court said:
17
This statement is substantively problematic apart from
the importance it attaches to a Supreme Court "signal." See
supra note 15.
17
No. 2015AP756-CR.dk
The seizure's mission consists of the purpose of the
stop——in Rodriguez, traffic enforcement——and "related
safety concerns." Those related safety concerns
include "'ordinary inquiries incident to [the traffic]
stop,'" and typically "involve checking the driver's
license, determining whether there are outstanding
warrants against the driver, and inspecting the
automobile's registration and proof of insurance."
People v. Cummings, 46 N.E.3d 248, 251 (Ill. 2016) (citations
omitted). The court concluded that the traffic stop may
continue even without the existence of reasonable suspicion of
wrongdoing because "[t]he interest in officer safety permits a
driver's license request of a driver lawfully stopped." Id. at
253.
¶81 The Cummings II analysis is an unabashed bootstrap.
Between Officer Doe and Mrs. Brown, it would sound something
like this:
"Why are you continuing my seizure?" Mrs. Brown asked.
"To engage in the usual inquiries," replied Officer
Doe.
"But why do you need to engage in the usual
inquiries?" persisted Mrs. Brown.
"To ensure my safety," Officer Doe patiently
explained.
"Why is your safety an issue?"
"Because I'm continuing your seizure, of course,"
concluded Officer Doe.
¶82 Is it really necessary to point out that concerns over
the officer's safety would vanish if he ended the seizure? Or
that ending the seizure would make the usual inquiries moot?
¶83 So, based on nothing more than a Supreme Court signal
and the Illinois Supreme Court's interpretation of that signal,
18
No. 2015AP756-CR.dk
we decided that the Fourth Amendment permits the seizure of an
individual without reasonable suspicion of wrongdoing. That's
an awfully momentous decision to base on a signal.
III
¶84 We ask, semi-rhetorically: "But in these particular
circumstances, does the Fourth Amendment require a police
officer to freeze, do an about-face, and walk away?" Majority
op., ¶15. The answer is definitively "no." But not for the
reasons we gave, and certainly not with the same consequences.
¶85 The real reason the answer is "no" is because the
officer deprived Mr. Smith of his liberty and had no continuing
justification for withholding that liberty from him. Once
seized by a police officer during a traffic stop, a driver may
not leave until the traffic stop is finished. See Wis. Stat.
§ 346.04(2t) ("No operator of a vehicle, after having received a
visible or audible signal to stop his or her vehicle from a
traffic officer or marked police vehicle, shall knowingly resist
the traffic officer by failing to stop his or her vehicle as
promptly as safety reasonably permits."); see also, Arizona v.
Johnson, 555 U.S. 323, 333 (2009) ("Normally, the stop ends when
the police have no further need to control the scene, and inform
the driver and passengers they are free to leave."). So, in
these circumstances, the officer's clear, unequivocal, mandatory
duty was to approach Mr. Smith and inform him he was free to
19
No. 2015AP756-CR.dk
leave.18 Of course, if the officer develops a reasonable
suspicion of wrongdoing during this brief interaction, he may
proceed with the seizure just as if the reasonable suspicion had
never lapsed.
¶86 If our focus is on whether it was a good thing to
catch Mr. Smith, then this is a galling result, given what we
know about his state of inebriation when Officer Gonzalez seized
him. But the Constitution is not a Dorian Gray-like bargain in
which we accept the beauty of apprehending Mr. Smith in exchange
for the ugliness of Mrs. Brown's unreasonable seizure. The
Constitution's instruction on this question is categorical: A
person may not be "detained even momentarily without reasonable,
objective grounds for doing so." And because it is categorical,
18
The court says my analysis would not allow the officer to
excuse Mr. Smith because I eschew "any further contact with the
driver . . . past the moment reasonable suspicion dissipates."
Majority op., ¶15 n.12. I don't think that is so. Every
traffic stop must eventually end, and it ends when the officer
tells the motorist he is free to go. Johnson, 555 U.S. at 333.
The duty to release the motorist stems from the constitutional
mandate that a person "may not be detained even momentarily
without reasonable, objective grounds for doing so . . . ."
Florida v. Royer, 460 U.S. 491, 498 (1983). Actualizing that
mandate requires the officer to approach the motorist to tell
him the seizure is over. Requiring production of a driver's
license, and proof of registration and insurance, however, does
nothing to further that task.
20
No. 2015AP756-CR.dk
it applies even when it means we don't catch Mr. Smith and his
like.19
¶87 It is important, essential even, to consider how our
decision impacts Mrs. Brown. Neither she nor anyone like her
will ever come before this court, for she has done nothing wrong
and, consequently, will never be party to a case we can review.
But we have, nonetheless, decided how she may be treated. So
Mrs. Brown may spend an evening fielding calls from irate
parents asking why their children were lined up along the
roadside while a narcotics-detection dog searched the minivan.
After the last call, perhaps she will pull out her pocket
Constitution and puzzle over why the promise of freedom from
unreasonable seizures means she can be seized for no reason at
all. Because I can't explain that to her, I respectfully
dissent.
¶88 I am authorized to state that Justices SHIRLEY S.
ABRAHAMSON and ANN WALSH BRADLEY join this dissent.
19
To illustrate why my analysis is untenable, the court
proposes an alternate scenario in which the apparently innocent
minivan driver is actually a sex trafficker. Majority op., ¶32
n.18. Conducting the usual inquiries in those circumstances, it
says, would have revealed there was criminal behavior afoot.
True enough. But doesn't that just prove my point? The court's
scenario could be read as favoring suspicion-free police
investigations because of the results they might produce. But
we don't measure the constitutionality of a search in terms of
its effectiveness in revealing hidden malefaction. According to
Royer, we measure it in terms of reasonable suspicion of
wrongdoing. If the investigation is not necessary to address
the purpose of the stop, it may last only as long as there is
reasonable suspicion. Johnson, 555 U.S. at 333. Suspicion-free
investigations like the one the court described might be very
productive, but that doesn't make them constitutional.
21
No. 2015AP756-CR.dk
1