Iverson won a motion to suppress and dismissal of his first OWI. He prevailed again on appeal. Turns out the state trooper did not stop Iverson on suspicion of OWI. He initiated the stop because he observed a cigarette butt being tossed from the passenger side of Iverson’s Jeep, which is neither a crime nor a traffic violation. Thus, traffic stops based on non-traffic forfeiture offenses are illegal.
The State claimed that the stop was justified because Iverson had committed littering in violation of § 287.81. But the court of appeals noted that a violation of that statute is punishable only by a forfeiture of not more than $500; it therefore does not qualify as a crime. See §939.12. In addition, littering is not a violation of a traffic regulation under §345.22.
Thus, according to the court of appeals, the dispositive question is “whether an articulable suspicion or probable cause of violation of a forfeiture that is not a violation of a traffic regulation is sufficient justification for a warrantless seizure of a citizen.” Slip op. ¶11. And the answer, is “no.”
¶12 In State v. Krier, 165 Wis. 2d 673, 678, 478 N.W.2d 63 (Ct. App. 1991), this court held that “when a person’s activity can constitute either a civil forfeiture or a crime, a police officer may validly perform an investigative stop pursuant to [Wis. Stat. §] 968.24.” The defendant in Krier was stopped based upon an anonymous tip that he was driving without a license, which is a civil forfeiture on the first offense, but criminal for subsequent offenses when a license is suspended or revoked. Id. at 677. The defendant argued that because the anonymous tip did not inform the officer whether the defendant had prior offenses, he was stopped only on suspicion of a forfeiture. Id. In ruling that the stop was permissible, this court stated: “[j]ust as there is no prohibition for stopping because the behavior may end up being innocent, there is also no prohibition for stopping because the behavior may end up constituting a mere forfeiture.” Id. at 678. The implication from this language that a “mere forfeiture” standing alone does not justify an investigatory stop is inescapable. See id.
¶13 . . . [T]he State “concedes [that] it is unaware of authority directly addressing the legality of traffic stops based upon non-traffic forfeiture offenses.” The State then attempts to argue policy reasons why the law ought to be different than it is. However, both Wis. Stat. § 968.24 and Terry are specific in their application to criminal behavior and it is beyond the authority of this court to substitute its own policy preferences, even if I were so inclined.
Note: Two days ago District 2 reached the opposite conclusion in State v. Qualls. Scroll down or click here for that post. Given the conflicting court of appeals’ decisions, this issue could make it to the Wisconsin Supreme Court. It’s interesting that the two districts seem to have been unaware that they were addressing and resolving the same issue differently. Or maybe they knew . . .