State v. Joshua D. Winberg, 2013AP2661-CR, District 3, 5/28/14 (1-judge; ineligible for publication); case activity
The driver of a car stopped based on officer’s knowledge that the car owner’s license was revoked was not unlawfully seized because, even thought it was immediately apparent the car owner was not driving, the police also immediately observed additional suspicious information that justified the continued detention of the driver.
Officer Bjorkman stopped a car registered to a woman whose license was revoked. He couldn’t see who was driving before he stopped the car, but before he made contact with the driver Bjorkman realized the driver was male, and therefore not the revoked owner. (¶3). Immediately upon making contact with the driver, however, Bjorkman detected an odor of intoxicants, slurred speech, and glazed, bloodshot eyes. (¶9). The stop and detention were lawful because:
- Under State v. Newer, 2007 WI App 236, 306 Wis. 2d 193, 742 N.W.2d 923, Bjorkman could assume the person driving a particular vehicle is the owner as long as he was unaware of any facts that would render that assumption unreasonable. (¶¶13-14).
- Under State v. Williams, 2002 WI App 306, 258 Wis. 2d 395, 655 N.W.2d 462, Bjorkman was permitted to make contact with the driver and ask for identification as part of his initial lawful stop, even after he realized the driver was not the revoked owner. (¶¶15-16). The court distinguishes State v. House, 2013 WI App 111, 350 Wis. 2d 478, 837 N.W.2d 645, as that case involved continued detention clearly beyond the circumstances justifying the initial stop. (¶¶17-19).
- Finally, under State v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App. 1999), Bjorkman could extend the stop based on observations made while asking for the driver’s identification; nothing limits the basis for an extension of the stop to what the officer observed before making the stop. (¶¶20-22). And in any event, Winberg didn’t challenge the stop based on an argument that the officer’s observations after the stop couldn’t be a basis for extending the stop, so the court declines to address the claim further. (¶22).
UPDATE (1/11/2017): For further proceedings in this case, see here.
Though it doesn’t appear to have been presented to the court here, there is a significant body of foreign cases rejecting the Ellenbecker/Williams holdings that an officer may continue to detain a motorist to ask for ID even after reasonable suspicion has dissipated (a holding Professor LaFave also calls “questionable”). The seminal case may be United States v. McSwain, 29 F.3d 558 (10th Cir. 1994), in which the court held unlawful an officer’s request for identification after his initial reason for the stop–a belief that the vehicle had an invalid registration sticker–proved mistaken. Quite a few courts have reached similar conclusions – most recently the Supreme Court of Illinois in People v. Cummings, 6 N.E.3d 725 (Ill. 2014). The Wisconsin appellate courts have never grappled with these cases so the issue may still be viable, at least in the supreme court, which is of course not bound by Williams.