State v. Frank C. Newer, 2007 WI App 236, PFR filed 11/8/07; prior history: Certification, 8/8/07, denied, 9/10/07
For Newer: Francis R. Lettenberger
Issue/Holding: ¶4, n. 2.
The circuit court also refused to consider the alternative grounds of the observed speeding violation because the officer “wasn’t using that as a basis for the stop.” We note that the officer’s subjective motivation for making a stop is not the issue; if the officer has facts that could justify reasonable suspicion (or probable cause), it is of no import that the officer is not subjectively motivated by a desire to investigate this suspicion. See, e.g., State v. Baudhuin, 141 Wis. 2d 642, 650-51, 416 N.W.2d 60 (1987); Whren v. United States, 517 U.S. 806, 813 (1996). We question the wisdom of this rule when it comes to extremely minor traffic violations, but that is for another day.
Newer was going 3 miles over the limit when stopped. Because the court upholds the stop on a different ground, it doesn’t need to reach the question of whether this “extremely minor” transgression would have alternatively supported the stop. Hence the footnote. The Certification contains a somewhat more explicit statement of the court’s disquiet (“we find the implications of the Whren rule in this case troubling”), and notes that “the high courts of at least two states have rejected pretextual stops under the search and seizure provisions of their state constitutions. See State v. Sullivan, 74 S.W.3d 215 (Ark. 2002); State v. Ladson, 979 P.2d 833 (Wash. 1999). See also 1 LaFave § 1.4(e) and (f), 125-55 (discussing pretext issues generally).” Just something to keep in mind.
What about an equal protection argument? See U.S. v. Nichols, 6th Cir No. 06-5862, 1/15/08 (“While we, of course, agree with the general proposition that selective enforcement of the law based on a suspect’s race may violate the Fourteenth Amendment, we do not agree that the proper remedy for such violations is necessarily suppression of evidence otherwise lawfully obtained. … Rather, we believe the proper remedy for any alleged violation is a 42 U.S.C. § 1983 action against the offending officers.”)