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Reasonable Suspicion — Stop – Duration – Routine Traffic Offense – Prolonged to Seek Consent to Search Automobile

State v. Joseph R. Luebeck, 2006 WI App 87, (State’s) PFR filed 5/17/06
For Luebeck: Alex Flynn; Adam B. Stephens; Rebecca Robin Lawnicki

Issue: Whether the traffic stop, valid at inception, was impermissibly extended so as to invalidate consent to search the car.


¶14      … (I)n its decision reaffirming the order granting Luebeck’s motion to suppress the evidence, the circuit court stated:

I don’t think any reasonable person would have felt this encounter had concluded and that he was free to leave. I think any reasonable person, when a police officer is holding his driver’s license, had not told him he’s free to leave, and was questioning him about his passenger’s state of sobriety … would not have felt that this encounter ended.

For purposes of the Fourth Amendment, I’m satisfied that a seizure of this person had occurred. I think it’s controlled by State vs. Jones, similar to [Williams] obviously.

¶15      We agree with the circuit court’s application of the  Jones and with the court’s conclusion that a reasonable person in Luebeck’s position would not have felt free to decline the officer’s search request and simply get on his or her way. Unlike the complainants in  Gaulrapp and  Williams, Luebeck was detained for over twenty minutes, his driver’s license was held by the police, no citation or warning for lane deviation had yet been issued, he passed all of the sobriety tests and his preliminary breath test indicated a blood alcohol below the legal limit, and yet he was being questioned about his passenger’s ability to drive in his place. In Williams, the officer issued and explained the traffic warning, returned Williams’ identification, shook hands with Williams, and said, “[We’ll] let you get on your way then.”  Williams, 255 Wis. 2d 1, ¶¶7-12. In Gaulrapp, we expressly distinguished the case from others that “involve prolonged detention after the officers concluded or should have concluded that justification for the initial stop did not warrant further detention.”  Gaulrapp, 207  Wis. 2d at 608.

Though black-letter rules are difficult to come by—the reasonable-person test for custody typically thwarts such an effort—the court nonetheless comes awfully close, ¶16 (emphasis supplied):

Interestingly, the Tenth Circuit Court of Appeals has long held that a motorist’s consent to search his or her vehicle is invalid where a deputy does not return documents relating to the initial traffic stop prior to asking for consent to search the vehicle.  See, e.g., United States v. Lee, 73 F.3d 1034, 1040 (10th Cir. 1996) (an encounter that begins with a valid traffic stop may not be deemed consensual unless the driver’s documents have been returned), overruled on other grounds by United States v. Holt, 264 F.3d 1215, 1226 n.6 (10th Cir. 2001); United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995) (where an officer does not return documents to the driver, the driver will not reasonably feel “free to leave or otherwise terminate the encounter”); United States v. Walker, 933 F.2d 812, 817 (10th Cir. 1991) (detention was a seizure and Walker was not free to leave where officer retained his driver’s license and registration during the entire time of questioning), cert. denied, 502 U.S. 1093 (1992).  We are persuaded that, in a traffic stop context, where the test is whether a reasonable person would feel free to “disregard the police and go about his [or her] business,” Bostick, 501 U.S. at 434 (citation omitted), the fact that the person’s driver’s license or other official documents are retained by the officer is a key factor in assessing whether the person is “seized” and, therefore, whether consent is voluntary.

This conclusion is, really, just the flip side of the apparent holding in State v. Reginald Jones / Maurice E. O’Neal, 2005 WI App 26, ¶7 n. 4 that “a traffic stop is concluded when the driver has received his or her citation and driver’s license.” But though this rule is easily stated, it is less easily applied in any given fluid situation. Some possible implications:

  • This principle—retaining a DL or other ID—establishes (ongoing) detention outside the traffic stop context, e.g., Brye v. State, FL App 1D05-0624, 4/7/06. But see Golphin v. State, 945 So.2d 1174 (Fl 2006) (no seizure where “the police officer held in her hand at that specific site the identification he had consensually and voluntarily provided and viewed it as she conducted a computerized check for warrants in his presence and without moving away from that location where the identification had been consensually and voluntarily produced”).
  •  The cases string-cited with approval in ¶16 are all from the 10th Circuit: does this mean that absent further word from either the Wis or US Supreme Court, 10th Circuit caselaw in this area will carry great weight? Perhaps, and with that in mind, here’s another such case: US v. Lopez, 10th Cir No. 05-1323, 4/11/06 (“continued retention of” DL to run computer check was, under circumstances, without cause and therefore amounted to illegal seizure of Lopez).
  •  Left unsaid, perhaps because too obvious to bear elaboration: the officer did not have adequate cause to extend Luebeck’s traffic stop; and, consent given during an illegal stop (or, to say the same thing, a stop illegally extended) is necessarily coerced. The latter point may be perfectly obvious, but the former isn’t—you should read the facts and decide for yourself; decent advice anyway, especially in the 4th amendment context.
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