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Court of appeals affirms “Badger stop;” defendant was free to leave despite questions and armed back-up officer

State v. Michael A. Johnson, 2017AP331-CR, District 2, 8/23/17 (1-judge opinion, ineligible for publication); case activity (including briefs)

Officer Baldwin stopped Johnson for failing to dim his headlights, then cited him for that and failing to provide proof of insurance for the car he was driving (his mom’s). Baldwin told Johnson that he was free to go, so Johnson started to walk away. Baldwin asked “do you have drugs, weapons or alcohol in the car?” Johnson replied “no.” Baldwin asked if he could search the car.  Johnson replied that the car did not belong to him. 

Beyond that, Johnson says Baldwin kept asking questions and wouldn’t accept “no” for an answer. That and armed back-up officer watching the exchange left Johnson feeling like he had no choice but to consent. Baldwin says Johnson simply consented. The search of the car and Johnson revealed THC.  Both Johnson and Baldwin testified The circuit court found Baldwin more credible so that pretty much doomed Johnson’s appeal. ¶¶9-12. The court of appeals did not regard the circuit court’s factual findings as clearly erroneous.  It further noted that:

¶8 Both parties agreed Baldwin did not raise his voice, change his tone, display his weapon, or physically touch Johnson, and the backup officer simply stood by, not participating in the interaction.

Comparing this case to the situation in State v. Williams, 2002 WI 94, 255 Wis. 2d 1, 646 N.W.2d 834 (approving a Badger stop), the court of appeals held:

¶16 Similarly, nothing about Baldwin’s behavior would have caused a reasonable person to believe he or she was not free to leave.  Baldwin specifically gave Johnson permission to go and allowed him to start walking toward the vehicle he was driving before asking—in a normal, nonthreatening tone—if he had any drugs, weapons, or alcohol in the vehicle.  Without displaying a weapon or making any physical or verbal show of force, Baldwin asked if he could search the vehicle.  Like the officer’s questions in Williams, the questions Baldwin asked were not accusatory; the two engaged in a nonconfrontational, explanatory conversation about consent.  Baldwin’s follow-up request—after explaining that Johnson could give his permission—did not transform the discussion from an innocuous interaction into a seizure.  A reasonable person, following such a discussion, would still have felt free to leave.  Like the backup officer in Williams, the backup officer here had no part of the interaction and made no threatening gestures or took authoritative measures but rather did not participate.  Under the totality of the circumstances, the inoffensive contact between Baldwin and Johnson did not amount to a seizure of Johnson’s person.

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