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Traffic stop was not unlawfully extended, and defendant consented to search conducted during stop

State v. Lewis O. Floyd, Jr., 2016 WI App 64, petition for review granted 1/9/2017, affirmed, 2017 WI 78; case activity (including briefs)

Police found drugs on Floyd after they searched him during a traffic stop. Floyd claims the traffic stop was extended beyond what was necessary to issue the citations he was given and that he didn’t consent to the search. The court of appeals turns back both challenges.

The court first rejects the claim the traffic stop was extended. Floyd was stopped because the car’s registration was suspended. During the officer’s initial contact with Floyd he learned Floyd had neither a driver’s license nor insurance. (¶3). The officer prepared citations for the violations, and before returning Floyd’s identification card the officer explained the citations to Floyd. While the officer could have explained the citations while Floyd sat in the car, he had Floyd get out because he didn’t want Floyd to drive away. (¶5). This was neither per se unlawful nor, under the circumstances, unreasonable, as Floyd couldn’t lawfully drive the car because he had no license and the car was not registered. (¶¶5, 12).  The upshot, then, is that when Floyd stepped out of the car, the traffic stop had not concluded, and the search, which occurred right after Floyd got out of the car, wasn’t conducted during an unlawfully extended stop. (¶11).

In any event, even if the stop was extended Floyd’s continued detention was lawful because there was reasonable suspicion to believe he was engaged in “criminal drug-related activity.” (¶13).

¶15     The deputy in this case observed “air fresheners in every vent of the vehicle as well as hanging off the rear view mirror,” and he found this “unusual.” Based upon his training and experience, the deputy was aware “air fresheners or the amount of them are—is an agent that is used to mask the smell of narcotics,” and he suspected Floyd was involved with illegal drugs at that time. Additionally, the deputy was aware Floyd was operating his vehicle in a “high crime area” where “large quantities” of drug and gang activity occurs, and that Floyd’s vehicle had tinted windows….

To its credit, the court does say that it is “a very close call” whether there was reasonable suspicion to extend the stop beyond the time needed to deal with the traffic violations. (¶16). (But then why take up the issue at all, given the ruling that the stop wasn’t even extended?) And unlike the officer and the circuit court, it can’t discern how reasonable suspicion was supported by the time of the stop—which (and we are not making this up) was 6:45 p.m. (¶¶3, 15 n.2). It also discounts the significance of the car’s tinted windows—though not much, for after all, the court says, Floyd was driving “in a high-crime, high-drug-activity area” with all those air fresheners. (¶16 n.3).

Close call or not, Judge Reilly’s concurrence expresses concern about the current state of the reasonable suspicion analysis:

¶29     …. I agree that the current state of case law referenced by the majority opinion supports the finding of reasonable suspicion for drug-related activity. …. I write separately to address my concern that our jurisprudence has tacitly accepted the profiling of suspects in the application of our reasonable suspicion test. In my opinion, the Fourth Amendment’s “objectively reasonable suspicion” test has become meaningless as evidenced by the following example.

¶30      Applying the Floyd facts to the “objectively reasonable suspicion” test dictates that a white, suburban, soccer mom from Kenosha, driving alone at 6:45 p.m. in the month of July near the S.C. Johnson plant in Racine, Wisconsin, with multiple air fresheners (perhaps to mask the smell of old happy meals, spilled milk, and soiled athletic gear), and tinted windows (to protect the privacy of her children) evidences reasonable suspicion that she is involved in drug-related criminal activity. Substitute young, black male for soccer mom in this hypothetical and we have the facts of this case.

¶31     The issue is whether we as a judicial system have tacitly accepted, condoned, and blessed the profiling of our citizens by taking age and color of skin into the “objectively reasonable suspicion” test in order to combat crime. An effective judicial system must be true to its ideals; ideals which rest upon the constitutional protection against unreasonable government searches and seizures regardless of age or skin color.

The concurrence is right to be concerned, but the problem isn’t that age and skin color are taken into account under the objectively reasonable suspicion test, thus allowing profiling; the problem is the test excludes the officer’s subjective thought-process from consideration, therefore eliding (or accepting, condoning, or blessing) the profiling the concurrence is concerned about. Do we want to banish profiling—or at lease discern it and make it a basis to invalidate a stop? Then let the defense inquire into why the officer ran a registration check on Floyd’s car, which is what led to the stop. Was it because the driver was black? Because of the tinted windows? Because of where the car was driving? Does the officer run checks on every black driver? On every car on that street? On every car with tinted windows? Can we see logs of the officer’s calls to dispatch to discern any sort of pattern, or to impeach his avowals that he doesn’t profile anybody? That’s the kind of inquiry it will take to assure the objectively reasonable suspicion test doesn’t tacitly accept, condone, or bless profiling.

Finally, the court rejects Floyd’s claim that he didn’t consent to the search of his person. The officer testified Floyd answered “yes, go ahead” when he asked Floyd if he could search Floyd for officer safety, and the circuit court accepted that testimony. (¶¶6-7, 18-19). While Floyd argued in a postconviction motion that his lawyer should have presented the testimony of a back-up officer whose report said the first officer simply told Floyd he was going to be patted down, at the postconviction hearing the back-up officer weaseled out of the statement in his report and the circuit court reaffirmed its original finding that Floyd consented to the search. (¶¶8, 21, 23-27).

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