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State v. Frederick S. Smith, 2015AP756-CR, petition granted 1/9/2017

Review of a per curiam court of appeals decision; case activity (including briefs)

Issues (from the petition for review):

1. When a police officer performs a lawful traffic stop, is it reasonable for the officer to make contact with the driver to ask for the driver’s name and identification and to explain the basis for the stop, even if the reasonable suspicion supporting the stop has dispelled by the time the officer does so?

2. When an officer is unable to request a driver’s name and identification and explain the basis for a traffic stop because, as in this case, the driver indicates that the driver’s side window and door are both broken, is the officer then permitted to open the passenger’s side door to achieve that goal?

The first issue here has been the subject of considerable litigation in Wisconsin and elsewhere. In State v. Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (1980), and State v. Williams, 2002 WI App 306, 258 Wis. 2d 395, 655 N.W.2d 462, the court of appeals held that an officer may prolong a traffic stop to ask for a driver’s identification even where the initial grounds for the stop (community caretaker concerns in Ellenbecker and reasonable suspicion in Williams) have been dispelled.

Professor LaFave calls Ellenbecker “questionable authority” and many courts across the land have taken the opposite view. See, e.g.United States v. McSwain, 29 F.3d 558 (10th Cir. 1994); People v. Redinger, 906 P.2d 81, 82, 85 & 86 (Colo. 1995) (unlawful to request identification when, on approaching stopped vehicle, officer realized he had been mistaken about absence of license plate); State v. Diaz, 850 So. 2d 435, 438-40 (Fla. 2003) (same); State v. Hickman, 491 N.W.2d 673, 675 (Minn. Ct. App. 1992). And importantly, the Wisconsin cases were decided before Rodriguez v. United States, 135 S. Ct. 1609 (2015), in which SCOTUS placed tight restrictions on the prolongation of traffic stops.

The second question represents a bit of a do-over for the state. Smith argued in the court of appeals that, even if the officer were permitted to ask for his license after suspicion had been dispelled, he was not authorized to physically open Smith’s car door without asking, and that when he did so he conducted an unconstitutional search. The state’s response? Per the court of appeals opinion it was “cursory” and did not “place its argument in any specific legal framework” nor “cite any legal authority.” Thus the court concluded that “Smith’s argument has gone without a meaningful rebuttal” and ordered suppression on that basis. (¶¶8, 12). In its petition, the state did cite a couple of cases, but the issue appears to be far from settled, in Wisconsin or elsewhere. Stay tuned.

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