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State v. Antonio Brown, 2011AP2907-CR, petition for review granted 10/14/13

Review of a published court of appeals decision; case activity

Issue  (composed by the State’s petition for review)

In determining the legality of a vehicle stop under the Fourth Amendment, did the court of appeals properly conclude that a tail lamp that is sixty-six percent functional is in “good working order” as required under Wis. Stat. § 347.13(1) and thus cannot serve as a basis for an officer’s probable cause to stop the vehicle?

Issue (added by the Wisconsin Supreme Court’s order granting review)

The parties shall also address the question whether Arizona v. Gant, 556 U.S. 332 (2009) applies to the fact situation presented in this case and if so how?

About those facts . . . The police stopped Brown’s car due, allegedly, to a traffic violation.  Section 347.13(1) states that “no vehicle originally equipped at the time of manufacture and sale with 2 tail lamps shall be operated upon a highway during hours of darkness unless both such tail lamps are in good working order.”    Brown’s car had two tail lamps–each with 3 bulbs.  According to the police, the middle bulb on the driver’s side tail lamp was out.  Brown says that particular bulb was a brake light, which would illuminate only during braking.  He also says that even if just one bulb was out, the tail lamp was till in “good working order” with just two bulbs.  The way the State’s petition frames the issue, the debate is over the proper interpretation of § 347.13(1), which District IV has said requires all bulbs to be working.  See State v. Laurence Olson, Appeal No. 2010AP149-CR (Wis. Ct. App. 8/5/10).  Seems like a pretty narrow issue.  Also seems risky for the State.  See State v. Longcore, 226 Wis. 2d 1, 593 N.W.2d 412 (Ct. App. 1999)(reasonable suspicion or probable cause cannot be based upon a mistake of law).  But there’s more.

When the police stopped the car, Brown, the owner, was in the back seat.  At some point, the police searched the car and found a revolver under the front seat.  Eventually, Brown was convicted of possession of a firearm by a felon.  The circumstances of Brown’s arrest and the search are unclear because the parties did not brief the issue before the court of appeals. Nor does the State’s petition raise it.  So SCOW’s decision to add the Gant issue is curious.

Gant holds that police may search the passenger compartment of a vehicle incident to an occupant’s arrest only if it is reasonable to believe the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest (tough here because the stop turned on a broken tail lamp).  We’ll have to wait for the supreme court briefs to learn the full facts of this case, but it seems like if the State prevails on the interpretation and application of §347.13(1), it still faces an uphill battle under Gant.

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