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SCOW pounds new nail in 4th Amendment coffin, exposes rift between Justices R.G. Bradley and Kelly

State v. Frederick S. Smith, 2018 WI 2, 1/9/18, reversing an unpublished court of appeals opinion; case activity (including briefs)

This 60-page, 4-3 decision authorizing an officer to continue a traffic stop even after he realizes that he does not have reasonable suspicion is worth reading. Justice Kelly says the result sends “a tremor through the Foundation of the Fourth Amendment” and should “shock” you. Opinion, ¶67, ¶79. It certainly appears to contradict Rodriguez v. United States, 135 S. Ct. 1609 (2015) and should make for a great cert petition.

Facts. A car caught an officer’s attention so he ran the license plate and discovered that it belonged to a woman who had a suspended driver’s license. The officer pulled the car over and began to approach it, but about 5 to 10 feet from the window he realized that the driver, Smith, was a man, not a woman. In other words, the officer’s reasonable suspicion for the stop vanished poof! right then and there. All 7 justices agree on this point. Opinion ¶8¶85. But, of course, that did not deter the officer. He asked Smith to open his window or the door. Smith responded that they were broken. So the officer went to the passenger side where he and Smith allegedly opened the passenger door together. The officer saw Smith’s red, glassy eyes, performed field sobriety tests, and arrested him. He had a .38 BAC and was charged with OWI 7th.

The majority holding (authored by R.G. Bradley): “We hold that when an officer conducts a valid traffic stop, part of that stop includes checking identification, even if the reasonable suspicion that formed the basis for the stop in the first place has dissipated.”  (citing Rodriguez, at 1615 (2015); Illinois v. Caballes, 543 U.S. 405, 408 (2005); and State v. Williams, 2002 WI App 306, ¶1, 258 Wis. 2d 395, 655 N.W.2d 462). Opinion ¶2. Furthermore, “[a]sking for a driver’s license does not impermissibly extend a stop because it is part of the original mission of the traffic stop.  However, the “ordinary inquiries,” which are related in scope to the purpose of a traffic stop, must be executed within the time it should have reasonably taken to complete them. Id. (citing Rodriguez at 1614).

Regarding the police officer’s act of opening the passenger door in order to communicate effectively with a driver inaccessible because of a malfunctioning door and window, “this did not constitute an unreasonable search because the officer’s actions, viewed objectively, would warrant a person of reasonable caution to believe the action taken was appropriate.  See Terry, 392 U.S. at 21-22.” Opinion ¶3.

Kelly’s dissent on the first issue (joined by A.W. Bradley and Abrahamson): Kelly’s dissent opens with a refreshing observation: “Whatever rule of police conduct we derive from [the 4th Amendment] must be just as applicable to the soccer mom taking the neighborhood children to practice as it is to habitual drunk drivers like Mr. Smith.” Opinion ¶55. He notes that the majority opinion has just created a “dual mission” traffic stop. The first mission is linked to the purpose for the traffic stop and thus the constitution. The authority for the traffic stop cannot outlast its purpose. Opinion ¶60. The second mission is the “usual inquiries” incident to  valid traffic stop. The majority authorizes the “usual inquiries” without the valid traffic stop. Opinion ¶¶64-65.

The rift—when does a traffic stop end? To expose the flaw in the majority’s reasoning, Justice Kelly poses a hypothetical. Suppose the officer ran the license of a minivan, discovered it was registered to a man with a suspended license, pulled it over, began to approach, and realized that the driver was a woman (call her Mrs. Brown) taking a bunch of kids to soccer practice. On these less emotional facts we would not want the officer to tell the woman that, while she should not have been stopped, she must nevertheless give him her driver’s license so that he can check (1) whether it is valid, (2) whether there are open warrants on her, or (3) whether there are any other reasons law enforcement should be investigating her. Opinion ¶ 56. Kelly argues that under the majority opinion, the officer could do all that and more. He could have a dog sniff the perimeter of the car and ask Mrs. Brown and all of the kids to get out and stand on the road side while he continued with his incidental questioning. Id. ¶ 57.

R.G. Bradley accuses Kelly of conjuring a “law enforcement boogeyman” and failing to appreciate the split second decisions an officer must make in the field. She counters with her own twist on Kelly’s hypothetical. Suppose the officer lets Mrs. Brown go and then 30 minutes later receives an alert about a minivan and driver fitting Mrs. Brown’s description. The minivan is carrying 6 kidnapped girls who are being hauled away for sex trafficking. Suppose all but one disappear forever and the one that is found explains that they were all beaten, drugged, sexually abused. If an officer proceeds with incidental inquiries despite his lack of reasonable suspicion he can prevent this sort of thing from occurring. Seriously. See Opinion ¶32 n. 18.

Kelly replies: “The court’s scenario could be read as favoring suspicion-free police investigations because of the results they might produce. But we don’t measure the constitutionality of a search in terms of its effectiveness in revealing hidden malefaction.” Opinion ¶86 n.19. Amen!

What the majority holding on the first issue means for future cases: Justice Kelly predicts traffic stops for the purpose of making the “usual inquiries” to see the driver’s license and proof of insurance and registration. Expect the “usual inquiries” to take a long time since they may now be made after reasonable suspicions dissipates. And expect the “usual inquiries” to expand to include inquiries about your car’s lights, exhaust systems, break system, horn and rear view mirror because these are governed by the traffic code too. Opinion ¶¶73-75.

A.W. Bradley’s dissent on the 2nd issue (joined by Abrahamson): A.W. Bradley argues that the majority’s holding on the second issue plainly violates Pennsylvania v. Mimms, 434 U.S. 106 (1977)(per curiam), which established “a per se rule that an officer may order a person out of his or her vehicle incident to an otherwise valid stop for a traffic violation.” Opinion ¶41(emphasis in original) (citations omitted). “There in lies the rub. As set forth in Justice Kelly’s dissent, the facts here do not support the conclusion that this was ‘an otherwise valid stop.'” Id¶42.

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