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Reasonable Suspicion — Stop — Duration — Traffic Offense — Questioning Passenger Following Lawful Stop

State v. Donavan W. Malone, 2004 WI 108, on certification
For Malone: John A. Cabranes

Issue: Whether, during a routine traffic stop, the officer may request passengers to get out of the vehicle and question them on matters reasonably related to the nature of the stop.

Holding: Because lawfulness of the stop of the car in which Malone was riding was undisputed, the applicable framework of analysis is found in State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72:

¶26 We promulgated a framework to assess such claims in Griffith. The reasonableness of a seizure that is alleged to impermissibly detain an individual for questioning can be measured by examining two variables. First, the nature of an officer’s actions may exceed the scope justified by the original stop, raising the question whether “the incremental intrusion” of additional questions is unreasonable when balanced against the public interest. Id., ¶37-38. Second, the duration of law enforcement questioning during a valid traffic stop “can transform a reasonable seizure into an unreasonable one if it extends the stop beyond the time necessary to fulfill the purpose of the stop.” Id., ¶54 (citing United States v. Sharpe, 470 U.S. 675, 684-85 (1985) (“[I]f an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.”)).

Basis for intrusion

¶44 On balance, Hyer’s conduct toward Malone was reasonable when viewed in light of the objective indications that criminal narcotics activity might be afoot: (1) the presence of an abnormal number of air fresheners, which may be used to mask the odor of narcotics; (2) the radically different accounts of the group’s travel plans; (3) Marohl’s statement that the group was headed to a rave party, which the driver may have attempted to conceal from the officer; (4) the nervousness of the driver and the passengers, e.g., putting their hands in and out of their pockets; and (5) the other passenger’s unsolicited statement that he was on probation for a drug-related offense. The nature of the intrusion——that is, the subject matter of the questions——lined up with Hyer’s suspicion and was supported by a number of specific and articulable facts, which, under the totality of the circumstances, suggested that the group might be involved in narcotics. Though Hyer asked somewhat intrusive questions, Hyer’s reasonable level of suspicion justified these questions. Accordingly, we conclude that Hyer’s conduct in posing these four questions to Malone was reasonable under the circumstances.

Duration of intrusion:

¶45 Duration is a second factor to consider in evaluating whether Trooper Hyer’s conduct in “seizing” Malone and subsequently questioning him was unreasonable under the Fourth Amendment. As we noted in Griffith, “questioning can transform a reasonable seizure into an unreasonable one if it extends the stop beyond the time necessary to fulfill the purpose of the stop.” 236 Wis. 2d 48, ¶54 (citing Sharpe, 470 U.S. at 684-85). The original purpose of the stop was to investigate the traffic violation. The purpose of the stop was transformed as Hyer became aware of additional information that justified expanding his investigation to pursue his reasonable suspicion that the occupants of the vehicle might be committing or about to commit a crime involving narcotics. Thus, Hyer had a new purpose——to investigate his suspicion regarding criminal activity. However, Hyer’s lawful authority to pursue his suspicion of criminal activity did not mean that the stop could last indefinitely.

¶46 Malone does not claim that either the overall length of time or the length of time Hyer questioned Malone exceeded the outer limits of the Fourth Amendment. Rather, we understand Malone to argue that any extension of the stop was unjustified. We disagree. Malone fails to present an alternative argument regarding the permissible length of the detention if we were to find that Hyer was justified in pursuing his suspicion of criminal activity in a reasonable manner. Because Malone does not address this issue, neither do we.

The court disdains reliance on any bright-line rule, ¶¶17, 20, 34. Thus, the fact-specific determination of reasonable suspicion in this case will have to be compared to and contrasted with the absence of reasonable suspicion on somewhat overlapping considerations, in State v. Betow, 226 Wis.2d 90, 593 N.W.2d 499 (Ct. App. 1999), summarized above. Malone certainly doesn’t overrule Betow on the issue of reasonable suspicion. On the more overarching problem — just how far can a police inquiry go during a routine traffic stop — the court cites (¶33) Betow, if not with explicit approval, then at worst in neutral terms, for the idea that “once stopped, the driver may be asked questions reasonably related to the nature of the stop—including his or her destination and purpose.” Of course, such an inquiry does open the door to further inquiry, as the officer actively seeks to heighten his/her suspicions. But the corollary is that the driver may not be asked questions not reasonably related, etc. Or, as Betow puts it more directly, 226 Wis. 2d at 94: “the scope of the officer’s inquiry, or the line of questioning, may be broadened beyond the purpose for which the person was stopped only if additional suspicious factors come to the officer’s attention.” Don’t lose sight of the fact that Malone upheld questioning only after determining the existence of reasonable suspicion. The narrow holding of Malone is that, on the particular facts presented, the police didn’t exceed the scope of the permissible inquiry. As discussed in other cases immediately below (scroll down), a nation-wide divide seems to be developing on this point: some jurisdictions limit police authority to question the motorist during a routine traffic stop, others don’t; Wisconsin at least for now and in theory appears to be on the side of limited authority.

NOTE: The New Mexico SCT underscores the commentary immediately above, State v. Duran, NM SC, No. 28,241, 8/31/05 (interprets Malone to “require such questions to be reasonably related to the intial justification for the stop,” ¶32, a view the court adopts, ¶35; court also catalogs national split of authority on issue. See also People v. Andrews, Ill App No. 3–02–0569, 4/9/07 (“However, the background check of defendant was not related to the initial justification for the stop. Defendant was simply a passenger in the truck and was not implicated in the traffic violation. … Regardless of the duration of any extended detention, however, the background check was impermissible because it changed the fundamental nature of the traffic stop.”); State v. Morlock, KS App No. 97,447, 8/29/08 (“a law enforcement officer exceeds the reasonable scope and duration of a traffic stop by running a warrant check on the passengers in the absence of reasonable suspicion of criminal activity”).

Different but somewhat related point: a passenger may be ordered out of a car during a routine traffic stop; however, “ancillary requests” (such as rolling up window, closing vent) may exceed scope of detention, U.S. v. Ladeaux, 10th Cir No. 05-8097, 7/12/06.


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