This is a published, split decision with a vigorous, showstopping “concurrence” by Reilly. Neubauer and Hagedorn hold that after writing Brown a ticket for a seatbelt violation, an officer’s request that he exit his car and consent to a search (where he was looking for drugs and weapons) was part of the traffic stop’s original mission. Reilly “concurs” only because he can’t defy SCOW’s recent opinions in State v. Floyd and State v. Wright, which he regards as intellectually dishonest and akin to the Dred Scott decision.
An officer stopped Brown’s car, noticed he wasn’t wearing a seat belt, and asked him where he was coming from, which Brown answered untruthfully. The officer took Brown’s license, returned to the car to write a seat belt warning, discovered Brown’s history of arrests and convictions for possession with intent and armed robbery, and called (unsuccessfully) for dog sniff. He returned to the car and asked Brown to exit and walk to the squad car and put his hands behind his back. Even though he did not feel concern for his safety, he also asked Brown to consent to a search. Brown says he refused. The officer says he consented. The officer searched him and found drugs. Opinion, ¶¶4-9.
Brown moved to suppress arguing that the officer extended this noncriminal traffic stop beyond its initial purpose. The stop should have ended when the officer finished writing the seatbelt ticket. Opinion, ¶11. The majority opinion (written by Judge Neubauer) holds that the officer lawfully ordered Brown out of the car for a search pursuant to State v. Wright, 2019 WI 45, ___Wis. 2d ___, 926 N.W.2d 157 and State v. Floyd, 2017 WI 78, 377 Wis. 2d 394, 898 N.W.2d 560, which allow a stop to continue as long as it reasonably takes to address the traffic stop violation and “attend to safety related concerns.” Opinion, ¶19 (citing Wright, ¶23). Feel free to read the majority’s reasoning at ¶¶ 23-24.
Reilly takes off his gloves and delivers knockout punches to SCOW’s decisions in Wright and Floyd. See our posts here and here. He also endorses Justice Kelly’s dissent in State v. Smith, 2018 WI 2, 15, 379 Wis. 2d 86, 905 N.W.2d 353. Here is a taste of Reilly’s reasoning. Really, you “must read” the whole concurring opinion.
¶31 Wright and Floyd take general statements from Rodriguez and morph them into a global sanction allowing the removal and search of a person premised upon safety as being a part of the “mission” of every minor traffic stop. Wright, 2019 WI 45, ¶¶8-9, 11, 25-27 (citing Rodriguez, 135 S. Ct. at 1616); Floyd, 377 Wis. 2d 394, ¶28. If I happened to be stopped for going five miles over the speed limit, I can now be forced to walk from my vehicle with my hand ordered behind my back and stand over the hood of the officer’s squad so the officer can “ask” to search me. See Floyd, 377 Wis. 2d 394, ¶¶27-28. Floyd found that this walk of shame does not unlawfully extend a stop because it is a part of the “mission” of any stop and is “negligibly burdensome.” See Floyd, 377 Wis. 2d 394, ¶¶26-28. I disagree. We should have the intellectual honesty to call the “mission” what it is—an independent, but unconstitutional ground to continue an investigation and not a mission to protect officer safety.
¶33 We have made mistakes before. In 1857, the United States Supreme Court wrote in Scott v. Sandford (Dred Scott), 60 U.S. 393, 407 (1857), that blacks were “beings of an inferior order” who had “no rights which the white man was bound to respect” and therefore no black person could be a citizen of the United States. Dred Scott’s repugnant decision was made over eighty years after our founders declared (at the peril of their lives) that “all men are created equal.” Wright and Floyd continue, albeit implicitly, the bias that not all people are created equal by authorizing police to pick and choose who they will pull from cars for minor traffic violations when no articulable factors are present that the person has committed or is committing a crime. Wright and Floyd are flawed by focusing only on the government. Our Constitution was not written to protect the government or its agents; it was adopted to protect us from unfettered power in the hands of the government. Wright and Floyd flip constitutional analysis from a bill of rights that protects the people to a bill of rights that allows the government to search and seize on nothing more than a hunch.