[A]fter a ticket has been written but before delivery [of the ticket to the motorist], and in the absence of reasonable suspicion, does asking a lawfully stopped motorist to exit the car, whether he or she possesses anything of concern, and to consent to a search unlawfully extend a traffic stop?
As the certification explains, the issue in this case raises “a legally similar but factually different scenario” to the one presented in State v. Wright, 2017AP2006-CR, which the supreme court accepted for review last month.
Wright was stopped for a defective headlight, and very early in the stop was asked if he had any weapons and a concealed weapon permit. Brown was stopped for failing to properly stop at a stop sign, and upon approaching the car the officer saw Brown wasn’t wearing a seat belt. On running a check on Brown, the officer discovered he had convictions for possession of cocaine with intent to deliver and armed robbery; plus, he was from Milwaukee, a “source city” for drugs. The officer asked for back-up and a drug dog; two other officers arrived, but no K-9 was available, so the officer finished writing a warning for the seat belt violation and returned to Brown’s car with the intent of asking for consent to search. Without handing Brown the warning, the officer asked Brown to get out and walk back to the squad with his hands behind his back. Back at the squad he asked Brown for permission to search him, leading to the discovery of cocaine. (Certification at 2-4).
This looks like a clearly unlawful extension of the stop in violation of Rodriguez v. United States, 135 S. Ct. 1609 (2015), that a traffic stop cannot exceed the time needed to handle the matter for which the stop was made. “A seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.” Id. at 1612 (citation omitted). “Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id. at 1615. Here, the tasks tied to the traffic infraction were indubitably completed—the warning was written and ready to hand over—and there was no reasonable suspicion of some other offense that would justify extending the investigation.
As it does in Wright, the state disagrees, relying on State v. Floyd, 2017 WI 78, 377 Wis. 2d 394, 898 N.W.2d 560, to argue that a driver can be asked to exit the car and to respond to questions about possession of drugs and weapons as part of any routine traffic stop, given the “inherent danger” of traffic stops and the “negligibly burdensome” nature of these steps. (Certification at 7-8). But as the court reasonably asks, “[u]nder Floyd and the totality of facts [in this case], would these requests be considered part of the original mission of the stop—to ensure officer safety—particularly given that the traffic ticket had been written and the three officers could have sent Brown on his way?” (Id. at 8).
So the state has a back-stop argument: Even under Rodriguez, some additional time for an unrelated criminal investigation, and specifically for consent to search, is permissible, given that Rodriguez recognized Arizona v. Johnson, 555 U.S. 323 (2009), which said that police inquiries into matters unconnected to the original basis for the stop do not change the encounter into an unlawful seizure as “long as [unrelated] inquiries do not measurably extend the duration of the stop.” Rodriguez, 135 S. Ct. at 1615 (brackets in original; italics added) (quoting Johnson, 555 U.S. at 333). (Certification at 9-10). The upshot, then, is that:
This case presents the issue of whether the request to exit the vehicle, walking Brown with his hands behind his back to the squad car, inquiry about the possession of anything concerning, and request for consent to search—all performed after the ticket had been written and was ready to be delivered to Brown—are permissible after Rodriguez’s statement that any unrelated criminal investigation that “adds time” to the stop is impermissible. Or does Arizona v. Johnson’s statement that unrelated inquiries are permissible if they do not “measurably extend” the stop, control.
(Id. at 12). Or to put it a more bluntly, can an officer extend a valid stop on nothing more than a hunch so long as an officer does not “unnecessarily delay” or “measurably extend” the stop for an “unreasonable” amount of time. The certification notes this is a troubling proposition: “As has been pointed out, this additional time provides for officer discretion to engage in a criminal investigation beyond the scope of the stop and without the solid foundation of reasonable suspicion and subjects our criminal justice system to charges of profiling and unequal application based on hunches. See Floyd, 377 Wis. 2d 394, ¶48 (Bradley, Ann Walsh, J., dissenting). (Certification at 13).