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SCOW: Extension of stop illegal, but seizure upheld based on consent given 16 seconds later

State v. Patrick Hogan, 2015 WI 76, 7/10/2015, affirming a court of appeals per curiam decision, 2013AP430-CR, majority opinion by Prosser; concurrence by Ziegler, dissent by Bradley (joined by Abrahamson); case activity (including briefs)

Sixteen seconds. It takes longer than that just to find your keys, get into your car, buckle up and start your engine. Keep that in mind as you read on. SCOW found that a traffic stop (due to a seatbelt violation) was unconstitutionally extended to perform field sobriety tests, but then upheld the subsequent vehicle search based on consent given 16 seconds after law enforcement told Hogan he was “free to leave.” SCOW saw no need to perform an attenuation analysis.

Extension of traffic stop

A deputy stopped Hogan’s vehicle for a seatbelt violation. He observed that Hogan seemed very nervous, was shaking, and had restricted pupils–all alleged signs of drug use.  The deputy called for a backup, a police officer who told the deputy that Hogan had “961” (think controlled substances) issues and was a “shake and bake methamphetamine cooker.” The deputy then asked Hogan to perform 4 field sobriety tests. Hogan passed all of them, and the deputy told him he was free to leave. From start to finish, this part of the traffic stop lasted 24 minutes.

Hit “pause” for a second. The first issue for review was whether the deputy had reasonable suspicion that Hogan had a committed a crime that warranted requiring him to perform FSTs. Slip op. ¶37 (citing State v. Post, 2007 WI 60, ¶10, 301 Wis. 2d 1, 733 N.W.2d 634). While observing that nervousness and tremors are signs of methamphetamine use, SCOW noted that there may also be innocent explanations for such behavior. “[P]olice cannot expect to conduct field sobriety tests on every motorist who is shaking and nervous when stopped by an officer.” Slip op. ¶50.  SCOW tempered this victory with the observation that the DA could have made a valid case for reasonable suspicion based on this record, but he botched it. Slip op. ¶¶43, 51, 53.

Consent to search vehicle

Now hit “play.” Sixteen seconds after Hogan was told he could leave, the deputy re-approached Hogan (now in his truck) and asked for permission to search his truck. The light on the deputy’s squad car was still flashing, so, as you might guess, Hogan consented. The deputy found guns, methamphetamine and other incriminating evidence. Ordinarily, if consent follows right after a 4th Amendment violation, the evidence seized must be suppressed unless the State can show a break between the illegality and the seizure. Slip op. ¶57. The majority held that an attenuation analysis was not necessary because the traffic stop had ended. The deputy told Hogan he could leave and encouraged him to wear his seatbelt and fix his windshield. “A reasonable person, under the totality of the circumstances, would have felt free to leave–to drive across the street to his home.” Slip op. ¶69.

Justice Bradley’s dissent notes that there was no real break between the unconstitutional FSTs and the deputy’s request to search. Slip op. ¶94. She cites extensive social research showing that people do not feel free to ignore the police in the circumstances in which Hogan found himself. Slip op. ¶¶91-93. She argues that SCOW should have performed an attenuation analysis per State v. Phillips, 218 Wis. 2d 180, 204, 577 N.W.2d 794 (1998). And she highlights significant non-Wisconsin cases holding that a lapse of a few minutes between the end of the stop and the request to search weighs against consent. Slip op. ¶11. Here just 16 seconds elapsed, which raises a question about how short the break has to be before the majority will require an attenuation analysis.


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