State v. Richard E. Houghton, 2015 WI 79, 7/14/14, reversing an unpublished court of appeals opinion, 2013AP1581-CR; majority by Prosser, dissent by Abrahamson (joined by Bradley); case activity (including briefs)
You’ve seen this before. An officer makes a traffic stop based on a “misunderstanding” of the law, then conducts a search and finds incriminating evidence. Last July, in State v. Antonio Brown, SCOW held that a seizure based on such a mistake violates the 4th Amendment. Six months later, SCOTUS reached the opposite result in Heien v. North Carolina. In this case, SCOW overturns Brown to hold that: (1) “pretextual stops . . . are not per se unreasonable under the 4th Amendment”; (2) probable cause is never required for a traffic stop; (3) the officer here “misunderstood” multiple provisions of Ch. 346, but his mistakes were “objectively reasonable”; and (4) Article I §11 of Wisconsin’s Constitution extends no further than the 4th Amendment. Slip op. ¶¶ 4, 5, 6, 50.
Officer Price pulled Houghton over because he thought Houghton’s vehicle should have had a front and back license plate even though the back plate was issued by Michigan, not Wisconsin. Price also thought that a pine tree air freshener hanging from Houghton’s rear view mirror and a GPS unit visible through his front windshield “obstructed the driver’s view” in violation of Ch. 346. Officer Price was wrong on both counts, yet SCOW upheld the subsequent search and seizure of marijuana from Houghton’s vehicle.
First off, there’s been some debate about whether law enforcement needs “probable cause” or “reasonable suspicion” to stop a vehicle for a traffic violation. Not any more. Here, SCOW declares: “reasonable suspicion that a traffic law has been or is being violated is sufficient to justify all traffic stops.” Slip op. ¶30 (emphasis supplied).
Next, SCOW overruled State v. Longcore, 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999), which held that a traffic stop may not be predicated on an officer’s mistake of law. SCOW now says: “All Wisconsin cases holding otherwise are hereby overruled to the extent they conflict with this holding.” Slip op. ¶52. It further held that Officer Price’s mistakes of law were “objectively reasonable” and that “standard practice dictates” that it interpret Wisconsin’s Constitution consistent with the federal constitution. Slip op. ¶¶50, 65-78. SCOW thus reversed the court of appeals and overruled Brown.
SCOW did not adopt a test for determining when an officer’s mistake of law is objectively reasonable or unreasonable. In her Heien concurrence, Justice Kagan said the test should be whether the law at issue is so doubtful in construction that a reasonable judge could agree with the officer’s interpretation. See our Heien post. Defense counsel should litigate this issue.
As for the vitality of Wisconsin’s Constitution, Justice Abrahamson’s dissent notes: “The drafters of the Wisconsin Constitution could have simply said ‘ditto’ and incorporated the federal bill of rights into the Wisconsin Constitution. But they did not.” Slip. op. ¶87. Indeed, this case does make you wonder if there is any point in citing a provision of the Wisconsin Constitution, if it has a federal counterpart. Seems like quite a demotion for a document that Wisconsin took pains to craft long after its federal counterpart was adopted.
Just as troubling, Justice Abrahamson (quoting Justice Sotomayor in Heien) asks “how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters [traffic stops] could do so.” Slip. op. ¶92. It’s a valid question. This case suggests that an officer may stop any vehicle for any reason and say he thought that there was a traffic violation, but he was mistaken. As Abrahamson (citing SCOWstats.com) observes, Wisconsin courts have become increasingly inhospitable to the 4th Amendment. Slip op. ¶92 n.8. So it feels unlikely that SCOW will reign in its holding with, shall we say, an “objectively reasonable” reasonableness” test. But perhaps SCOTUS will.
How now Brown, SCOW?