Issue/Holding: Though the facts are almost indistinguishable from those in State v. Lawrence A. Williams, 2002 WI 94, 255 Wis. 2d 1, 646 N.W.2d 834, consent to search a car immediately after conclusion of a routine traffic stop was (unlike Williams) the product of an illegal detention. As in Williams, the police: made a late-night I-stop for a routine traffic violation; called back-up assistance to the scene; asked the driver to get out and go to the rear of the car; issued a warning citation; returned the driver’s ID; and, mere seconds later, sought and obtained consent to search (the aptly named “Badger” process, ¶4). Consent was upheld in Williams, but not here; the crucial difference was police failure to inform the driver that the stop was over:
¶17 As noted above, the officer’s invitation to Williams to “get on [his] way” strongly influenced the supreme court’s conclusion. Id., ¶29. While we agree with the State that the supreme court did not establish a bright-line rule that an officer must say “have a nice day” or shake hands with an individual in order for an ensuing encounter to be consensual, it is clear that the court saw those facts as sufficient to tip the scale in favor of a finding that the subsequent encounter was consensual. We therefore read Williams to require some verbal or physical demonstration by the officer, or some other equivalent facts, which clearly convey to the person that the traffic matter is concluded and that the person should be on his or her way. Absent that, it is a legal fiction to conclude that a reasonable person would deduce, infer or believe that he or she is free to depart the scene.
That isn’t quite all there is to it.
The court drops a cryptic footnote (¶7 n. 4) that is potentially every bit as significant as the text: The court first seems to hold that, as a bright-line rule, “a traffic stop is concluded when the driver has received his or her citation and driver’s license.” To be sure, substantial authority exists for that idea, see, e.g., cases cited in State v. Smith, 683 N.W.2d 542 (Iowa 2004); U.S. v. Ramirez, 11th Cir No. 05-12765, 2/1/07 (and collecting cases re: return of documents suggests that stop has concluded and motorist free to leave). Contrast, State v. Campbell, Fla App No. 4D04-2442, 9/21/05 (failure to return driver’s license without justification tainted consent). It follows that, because the documents had been returned, the stop was over, and therefore the issue is whether a reasonable person nonetheless would believe himself in custody under totality of the circumstances. Those concepts form the backbone of the ultimate holding, that “the two matters [conclusion of stop; attempt to gain consent] were seamlessly woven together,” and therefore the driver would have regarded himself as still in custody, ¶18. (Illegally so, because custody was unsupported by reasonable suspicion at that point, given that the stop was over; in other words, the purpose for the stop ends when the stop ends and simply can’t extend to continued detention.) That analysis is deceptively simple, as significant for what it leaves unsaid as for what it does say.
The court stresses (fn. 4) that, because the stop was over, “this case does not involve a question of whether Multer impermissibly exceeded the scope of an ongoing traffic stop. See State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996) (officer had not issued citation at the time request to search was made).” But, Gaulrapp allowed consent to be sought during a stop, and what the court leaves unsaid now is that there is a national split on the question of whether such action is indeed proper during a routine traffic stop. Indeed, the reference to Gaulrapp reinforces the idea that Wisconsin comes down on the side of permitting such police action. The premise is that asking for consent during a legal stop negligibly if at all prolongs the stop; any additional seizure is so incremental as to not really be measurable. And that is the virtue of the Jones / O’Neal approach; it avoids this swamp by establishing firmer analytical footing: given that the stop was over once the documents were returned, did the driver nonetheless see himself as being in custody? He did, and because the state conceded lack of reasonable suspicion at that point (again: given that the stop was over), further custody was illegal, and consent perforce tainted. All in all, a potentially important brake on the process of badgering motorists in Wisconsin, who heretofore were subjected without seeming limitation to requests for consent both during (Gaulrapp) and after (Williams; State v. Vernell T. Williams, 2002 WI App 306, ¶¶24-25) a routine stop.
Keep in mind, too, Jones’ argument, fn. 4, that he was in custody precisely because transition from custody to supposedly consensual encounter was “seamless” — an argument that, as noted, the court bought, ¶18 (“the two matters were seamlessly woven together”). But if the events were “seamless,” then how can it properly be said that one had “concluded”? As LaPoint (immediately below) indicates, a “transition” this “seamless” is a continuation of custody; it is just that at that point, there is no reasonable suspicion. Better, perhaps, to say that the basis for the traffic stop had concluded and yet the driver remained in custody, without cause. Same result, slightly different analysis (one that stresses that the stop was unnecessarily prolonged, rather than that it ended at a discrete point and then immediately picked up again but without cause).
(You’ll find a better analysis of this problem in State v. Pichardo, 367 SC 84, 623 S.E.2d 840 (Ct. App. 2005) (“the return of documents does not conclusively establish that a traffic stop has de-escalated into a consensual encounter”; instead, there “was an immediate transition from the valid traffic stop to the search such that they may not have realized the initial seizure was over” the court may view continued interaction as a “detention seamlessly [which] followed a pre-existing lawful stop”). Compare, State v. Thompkin, OR SCt No. S51405, 9/14/06 (retention of ID to run warrant check changed encounter from consensual to one of restraint of liberty). But it is certainly hazardous to draw hard-and-fast rules, and other cases dealing with the effect of returned documentation are included in the ensuing discussion.)
Back to Lawrence Williams: The court’s determination that the encounter was voluntary after the stop’s basis (speeding) was resolved (by issuance of a warning citation) discounts on the one hand the tone, tenor, and rapidity of Fetherston’s questioning; the presence and stance of the back-up officer, whose squad lights were still flashing; the location; and the time of night, ¶¶31-34, but on the other makes the holding very narrow — the stop wasn’t prolonged, it was terminated, and the subsequent interaction was simply voluntary. But this also illustrates the fact-intensive nature of the issue. A different result may well result from even a slight variation of the facts — Bedsole v. State, ARK App No. CACR08-376, 1/9/09 (routine stop concluded with warning and return of license, but trooper’s immediate questioning supported non-consensual encounter); State v. Henderson, 2007-Ohio-2315 (handing citation to driver and telling him “he was ‘free to go’ was ephemeral. A reasonable person would not perceive that he was free to go when the officer moves into the next round of questioning with the lights from his patrol vehicle still flashing”); Commonwealth v. Moyer, 2008 PA Super 173 (en banc 8/1/08 (though warning ticket processed and defendant told free to go, nonetheless deemed in custody where stop was late at night on dark rural road and officer asked pointed questions);Sizemore v. State, Fl App No. 1D05-2764, 10/11/06 (custody continued despite officer telling defendant free to go, given “presence of a canine unit at the scene and the positioning of the officers’ vehicles in such a manner as to make the defendant’s departure from the scene difficult, if not impossible”); State v. Thompson, KS App No. 94,254, 7/21/06 (return of ID necessary but not sufficient to onset of consensual encounter; continued activation of emergency lights, officer’s failure to disengage, et al., compel conclusion of continuing detention; note court’s reference to “Lt. Columbo gambit”); State v. Hayes, KS App No. 94,313, 4/28/06 (still in custody though warning ticket issued and driver’s license returned where squad lights were still activated, officer didn’t tell driver she was free to go, and made a statement which implied other matters remained to be addresssed); State v. Huffstutler, ID App No. 31821, 4/27/06 (custody where, though license returned, officer gave no indication citation would not be issued, officer told driver’s companion she could leave (without similar advice to driver), and police questions were accusatory (which suggested show of authority); People v. Brandon, Colo App No. 03CA1176, 7/14/05 (normally, officer must return driver’s documentation before detention ends, but such return doesn’t necessarily establish that ensuing interaction consensual: stop in isolated area, and officer’s barrage of questions made driver burst into tears, construed by court “escalat(ion) into an ulawful detention”); People v. LaPoint, Ill App 3rd Dist No. 3-02-1002, 10/29/04 (officer’s failure to return driver’s documents, coupled with having her get out of car, communicated that custody continued, such that even though consent was requested after documents returned, the transition between mandatory and consensual nature of encounter deemed too “seamless” and “subtle” to be other than continuation of custody); Lilley v. State, Ark App No. 03-1285, 12/8/04 (where driver placed in back of squad while warning ticket written, wouldn’t feel free to go after being given ticket but remained in squad without being told free to go and officer began asking if had anything illegal in car); State v. Barks, Mo. SCt, SC85735, 3/9/04 (once officer issued citation Barks should have been free to go but instead, “the patrolman positioned himself by Barks’ window” while “looking down at” Barks, left his squad’s emergency lights on, and failed to tell Barks he was indeed free to go: “Considering the totality of the circumstances, a reasonable person in Barks’ position would have understood the situation to be one of custody.”); and U.S. v. Richardson, 6th Cir. No. 02-6146, 9/24/04:
In determining whether a particular encounter between an officer and a citizen constitutes a seizure, we recognize that words alone may be enough to make a reasonable person feel that he would not be free to leave. See United States v. Buchanon, 72 F.3d 1217, 1233 (6th Cir. 1995) (quoting Mendenhall, 446 U.S. at 554). In the instant case, the traffic stop concluded when Officer Fisher handed Collier the citation and shook his hand. Collier was then free to leave, until Officer Fisher asked him to remain behind the vehicle. The United States makes much of the fact that Officer Fisher did not display an intimidating demeanor or use coercive language, but rather said, “Okay, just hang out right here for me, okay?” Regardless of Officer Fisher’s demeanor, however, his words alone were enough to make a reasonable person in Collier’s shoes feel that he would not be free to walk away and ignore Officer Fisher’s request. When the driver is not free to leave, neither are his passengers; indeed, the passengers are at the mercy of any police officer who is withholding the return of their driver. See Sitz, 496 U.S. at 450; Prouse, 440 U.S. at 653; Kimball, 25 F.3d at 5. Thus, defendant Richardson’s freedom of movement was subject to the will of Officer Fisher for as long as Officer Fisher detained Collier behind the car.
And see also, State v. Wood, 188 Or. App. 89, 69 P.3d 1263 (2003) (officer indeed told Wood he could go, but then positioned himself in such a way as to prevent Wood from going where the officer knew he intended to go: “A reasonable person in defendant’s position would have felt that the officers had significantly restricted his freedom of movement.”). As Wood notes:
This case presents a familiar pattern: A police officer lawfully stops a driver to investigate a traffic infraction and then, after citing the driver and returning documents, without any reasonable suspicion that the driver has committed a crime, asks permission to search the driver’s vehicle. The driver gives consent, and the search leads to contraband. The driver, now a defendant, moves to suppress the contraband as deriving from an unlawful search, and the state argues that defendant’s consent negates any illegality. See, e.g., State v. Toevs, 327 Or 525, 964 P2d 1007 (1998); State v. Arabzadeh, 162 Or App 423, 986 P2d 736 (1999). These cases are highly fact-specific.
“Familiar pattern”? And how. The sheer, seemingly ceaseless volume of duration-of-routine-traffic-stop suppression cases suggests that sooner or later one is going to hit your desk. Different jurisdictions have derived different analytical methodologies, not always reconcilable; eventually, the Supreme Court will have to step in. Wood upheld suppression because, even though the officer told the defendant he could go, the officer also positioned himself in such a way that the defendant couldn’t open the car door to get back in. And for a slight variation, see People v. Miller, Ill. App., 4th Dist. No. 4-02-0953, 1/15/04 (once purpose of stop — warning ticket for loud muffler — completed, officer’s retention of driver’s license and insurance card amounted to illegal seizure of driver which tainted enusing search).
And keep in mind that safety concerns may inhibit drawing a bright-line as to when the stop ends — see, e,g, State v. Vandenberg, 2003-NMSC-030, ¶¶36:
…Officer Roberts still had to get close enough to hand Swanson the citation. Although his proximity may have been only momentary, the risk to his personal safety was no less real. Therefore, we refuse to draw a bright-line, temporal cut-off point. We decline to say that an investigating officer cannot be in as much danger at the end of a traffic stop as at the beginning, or at least reasonably believe that to be so.