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SCOW to review extension of traffic stop case where Judge Reilly invoked Dred Scott

State v. Courtney C. Brown, 2019 WI App 34, petition for review granted 10/15/19 case activity (including links to briefs)

Issues (petition for review)

Whether police unlawfully extended a noncriminal traffic stop beyond its initial purpose?

As explained in our post on the court of appeals’ 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 the officer 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 contends that the court of appeal’s decision in his, which approved the stop extension, conflicts with State v. Gammons, 2001 WI App 36, 241 Wis. 2d 296, 625 N.W.2d 623, which reached the opposite conclusion under very similar facts.

Also, like Judge Reilly’s concurrence, Brown argues that two recent SCOW decisions misconstrued Rodriguez v. United States, 135 S.Ct. 1609 (2015) and eliminated 4th Amendment protection against warrantless searches and seizures on the roadway.  After State v. Wright, 2019 WI 45, 386 Wis. 2d 495, 926 N.W.2d 157, and State v. Floyd, 2017 WI 78, 377 Wis. 2d 394, 898 N.W.2d 560, officers don’t need reasonable suspicion that the person is committing a crime before asking him to exit his car and consent to a search. Judge Reilly goes further: this permits law enforcement to extend a stop for other reasons–such as profiling. He notes that courts have made mistakes before (see Dred Scott), and SCOW should admit that it made a mistake in Wright and Floyd. Those cases flipped the “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.” Concurrence, ¶34.

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