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Extension of traffic stop to check records of passengers wasn’t unlawful

State v. Bradley C.  Burgess, 2021AP1067-CR, District 4, 4/21/22 (not recommended for publication); case activity (including briefs)

A traffic stop should last only as long as necessary for the police to complete the “mission” of investigating the traffic infraction that justified the stop, including ordinary inquiries incident to the stop. Rodriguez v. U.S., 575 U.S. 348 (2015); State v. Smith, 2018 WI 2, 379 Wis. 2d 86, 905 N.W.2d 353. Applying that standard here, the court of appeals holds the stop of the car Burgess was riding in wasn’t unreasonably extended by the officer’s asking the passengers for identification and running records checks on them.

The officer, who suspected the occupants of the car might be involved in “drug activity,” stopped the car because it had a defective muffler, and there’s no dispute this was a valid basis for a stop. The officer questioned the driver about the muffler,  which the driver was aware of and was planning to get fixed. The officer then asked the three passengers for identification. Burgess gave a false name. The officer then asked some more questions of the driver regarding his activities that night, and then ran a record check on the passengers. He learned the birth date Burgess gave didn’t match the false name, and on further questioning Burgess admitted he’d given a false name because he feared he had warrants. After arresting Burgess police searched the car and found drugs and other contraband. (¶¶4-12).

Burgess argues the mission of the traffic stop was complete a minute into the stop, after the officer’s discussion with the driver about the defective muffler, and everything thereafter was an unlawful extension of the stop. Not so, says the court of appeals:

¶23     …. As a preliminary matter, we agree with Burgess that [Officer] Mantsch’s request for the passengers’ identification had nothing to do with his investigation of the defective muffler because the passengers were not driving the vehicle. Burgess contends that, because the passenger information was not pertinent to Mantsch’s investigation into an equipment violation, he lacked authority to prolong the stop by requesting that information and running records checks on the passengers. The State counters that Wisconsin courts have recognized that passenger records checks are part of the mission of any traffic stop, and therefore, that they are “ordinary inquiries incident to the traffic stop,” as that term is used in Rodriguez.

¶24     The State cites two cases, State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72, and [State v.] Gammons, [2001 WI App 36,] 241 Wis. 2d 296, [625 N.W.2d 623,] for the proposition that Wisconsin treats passenger identification checks as “ordinary inquiries.” Both cases predate Rodriguez. ….

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¶27     The Griffith court did not address whether the officer could conduct a records check of passenger information, nor whether such a check extended the stop beyond the time necessary to fulfill its purpose, because no such records check occurred in that case. Accordingly, Griffith does not squarely address the question posed in this case.

¶28     However, in Gammons, which this court decided the following year, we stated that our supreme court had “explained” in Griffith that passenger records checks can be performed as part of a traffic stop, and that no further justification for the passenger checks is required. Gammons, 241 Wis. 2d 296, ¶¶11-13.

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¶30     Gammons squarely addresses the issues presented in this case. Although the Gammons opinion was issued before the United States Supreme Court first started using the term “ordinary inquiry,” its analysis is consistent with the Supreme Court’s explanation and description of what constitutes an ordinary inquiry. That is, the reasoning in Gammons—that passenger checks are “reasonably related in scope to the purpose of a traffic stop,” id., ¶13—is another way of saying that they are “ordinary inquiries incident to [a traffic] stop,” as that phrase is used in … Rodriguez, 575 U.S. at 355.

Burgess also argues that the officer’s questions to the driver about his activities that night were unrelated to the muffler and therefore also unlawfully extended the stop. The court of appeals doesn’t consider this claim, as Burgess hasn’t developed an argument addressing the circuit court’s reason for rejecting Burgess’s claim—that State v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App. 1999), and U.S. v. Johnson, 58 F.3d 356 (8th Cir. 1995), establish the proposition that an officer may inquire into a driver’s purpose and destination as part of a traffic stop. (¶¶14, 16, 21-22)

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