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SCOW upholds consent search after traffic stop; dissent criticizes “trajectory” of 4th Amendment decisions

Mike Tobin guest posts on State v. Lewis O. Floyd, Jr., 2017 WI 78, 7/7/17, affirming a published court of appeals opinion, 371 Wis. 2d 404; case activity (including briefs)

The majority opinion affirms the rulings of the lower courts that the defendant voluntarily consented to a frisk of his person following a traffic stop. The majority reached its decision without discussing the reasonableness of the officer’s suspicion of criminal activity-an issue emphasized in the dissenting opinion and previously analyzed by the court of appeals.

The reasonable suspicion issue had prompted a dissent in the court of appeals that focused on racial disparity in drug enforcement. The SPD submitted an amicus brief addressing this issue in light of “generic and innocent” factors commonly recited in support of stops and searches.

Kenosha Man Stopped in Racine at 6:45 and Suspected of Drug Possession.

Floyd’s car was stopped for expired vehicle registration. The defense did not contest the validity of the stop, and given U.S. Supreme Court precedent regarding pretext stops, Whren v. U.S., 517 U.S. 806 (1996), concerns over the officer’s subjective reason for making the stop would not have been grounds for suppression.

Although not dispositive in SCOW; factors regarding suspicion of drugs were litigated in the suppression hearing challenging the seizure of the drugs. The officer testified to six factors he relied upon in deciding to call for a canine unit while completing the traffic stop: (1) Kenosha resident in Racine; (2) Alone in vehicle; (3) Time of day (6:45 p.m.); (4) High-crime area; (5) Air fresheners; (6)Tinted windows.

How/When the Officer Found the Drugs. Rather than relying on canine assistance, however, the officer located the drugs after asking for permission to frisk Floyd (State’s theory) or telling Floyd that the officer would conduct a frisk (defense theory).  In addition to alleging that Floyd was more “told” than “asked” about the impending frisk, the defense also alleged that the consent was tainted by excessive length of the (admittedly legal) traffic stop.

During the time between the initial stop and the subsequent conversation regarding the frisk, the officer learned that Floyd had no driver’s license, obtained a state identification card from Floyd, learned that no canine unit was available, and prepared citations for the traffic violations. The officer then ordered Floyd out of the car, explained the citations, asked if Floyd had any weapons, and asked (State’s characterization) if he could search him for safety reasons.

Majority Opinion. Writing for a five-justice majority, Justice Kelly agreed with the State’s primary theory: that as a part of a valid traffic stop, the police obtained voluntary consent to search. Although the defense contested the duration of the stop, the majority found that a concern about officer safety justified not only the instruction that Floyd exit the vehicle, but also the officer’s subsequent questions. “[B]ecause the questions related to officer safety and were negligibly burdensome, they were part of the traffic stop’s mission, and so did not cause an [impermissible] extension.” ¶28.

Potentially relevant to this analysis, although not addressed regarding the security concern, is that a second officer had arrived on the scene before the first officer ordered Floyd out of the vehicle. See ¶4. Also not discussed was the Terry standard of individualized suspicion for a protective frisk (“reason to believe that [officer] is dealing with an armed and dangerous individual,” Terry v. Ohio, 392 U.S. 1, 27 (1968)).

The majority also found that Floyd voluntarily consented to the officer’s request to search, upholding the circuit court’s factual finding that the officer had asked for (and received) permission to search. Finally, despite some language in the other officer’s report suggesting that Floyd had simply acquiesced to the first officer telling him that he would search him, the majority found no ineffectiveness in defense counsel’s decision to call that officer at the suppression hearing.

Dissent. Justice A.W. Bradley’s dissent concluded that the extension of the stop was improper, even if the time involved was not great. The dissent points out actions unrelated to the traffic stop, such as the request for a backup officer and the delay in asking Floyd to exit the vehicle.

If the request for consent occurred after the traffic stop should have been completed, the issue of reasonable suspicion (of other criminal activity) would have been dispositive. On that issue, the dissent criticizes the officer’s reliance upon the generic and innocent factors articulated. The dissent agreed with concerns expressed by Court of Appeals Judge Reilly and by the SPD in the amicus brief that these generic factors frequently reflect racial profiling and implicit bias. [Neither SCOW opinion explicitly identifies Floyd’s race, but the record identifies him as African-American].

Justice Bradley includes at ¶87, n.3, a summary of recent SCOW cases showing that the court is batting nearly zero when it comes to upholding Fourth Amendment challenges in criminal cases.

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{ 3 comments… add one }
  • Robert R. Henak July 10, 2017, 10:16 am

    While I find the idea that a stop could be “negligently burdensome” intriguing, the actual language from the decision is “negligibly burdensome.”

  • Mike Tobin July 10, 2017, 10:58 am

    Thanks, Rob-we will correct the quote. The negligence was all me.

  • wm. tyroler July 10, 2017, 3:01 pm

    AWB’s caustic aside (“In the last two terms, this court is batting nearly zero when it comes to upholding Fourth Amendment challenges in criminal cases,” para. 87) is understated if anything. SCOW has opposed 4th A rights with great relish and consistency for many terms. As Alan Ball, the premier expert on quantifying SCOW’s output, has conclusively shown, “perusal of the court’s decisions over the past nineteen terms (1995-96 through 2013-14)[1] suggests that few arguments have *less* chance of success than appeals invoking the Fourth Amendment,” http://www.scowstats.com/2015/06/22/how-effective-are-fourth-amendment-arguments-in-the-wisconsin-supreme-court/. SCOW’s institutional hostility to the 4th A is a very long-standing feature, not a bug.

    But note the careful qualification by Justice Bradley, who is nothing if not a precise writer: “in criminal cases.” Indeed, the same day Floyd was released, SCOW rediscovered the sanctity of the home under the 4th A, at least for purposes of intrusions by property-tax authorities, Milewski, https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=192497.

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