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SCOW: Tossed cigarette butt justifies traffic stop

State v. Daniel S. Iverson, 2015 WI 101, 11/25/2015, reversing a 1-judge court of appeals decisioncase activity (including briefs)

Do cigarette butts decompose? Do they “result[]…from community activities”? Those are just two of the burning questions left unanswered (smoldering?) after this blaze of statutory construction.

A state trooper pulled Iverson over after seeing a passenger in his car throw a cigarette butt out the window, and thereby learned that Iverson was intoxicated. Iverson convinced both the trial court and the court of appeals to suppress the fruits of the stop; the latter on the theory that traffic stops are authorized only for crimes and violations of traffic regulations, not for non-traffic forfeiture offenses such as, in its view, littering (which subjects one to only a $500 forfeiture under Wis. Stat. § 287.81). (¶15).

The supreme court reverses, summarizing its holdings thus:

We conclude that: (1) the Wisconsin Legislature has explicitly authorized state troopers to conduct traffic stops in order to investigate violations of Wis. Stat. § 287.81 and to arrest violators of the statute under specified conditions; (2) a traffic stop to enforce § 287.81 is generally reasonable if an officer has probable cause or reasonable suspicion that a violation of § 287.81 has occurred; (3) discarding a cigarette butt onto a highway violates § 287.81; and (4) based on his observations, the officer in this case had probable cause to believe that an occupant of Iverson’s vehicle had violated § 287.81 by throwing a cigarette butt onto the highway.

(¶4). Taking these points out of order (as does the court), the fourth conclusion rests on a straightforward application to the facts of the principles announced in the first three. As to the first issue, the supreme court finds authority to stop for littering primarily in Wis. Stat. § 110.07, which lays out the powers of traffic officers. That statute specifies that they may “stop…vehicles while en route at any time upon the public highways to examine the same and make arrests for all violations” of a list of statutes including, crucially, § 287.81. (¶39). (The court of appeals had looked to another statute, Wis. Stat. § 968.24, which authorizes stops based on suspicion of a crime, as well as  State v. Popke, 2009 WI 37, 317 Wis. 2d 118, 765 N.W.2d 569, which it took to extend such authority only to the investigation of traffic violations. (¶13). In fairness, neither party cited § 110.07 in the court of appeals; it pops up for the first time in the state’s opening brief to the supreme court.)

As to the third point, the court resolves to give the littering statute its “common, ordinary, and accepted meaning” (¶20) before launching into a seven-page disquisition on the definition of such terms as “solid waste,” “garbage,” “refuse” (the noun), “discard” and “material.” (¶¶25-38). Ejusdem generis makes an appearance, as does the observation that, to their users, cigarettes are “useful, valuable, and pleasurable.” (¶¶33, 30).

The court does note that the expansive term “discarded material” gives the statute tremendous potential sweep, and raises the possibility that it could lead to “absurd results”; it concludes, however, that a prohibition on tossing cigarette butts is not absurd but rather addresses a “widely recognized problem.” (¶35 n.9).

On the second, constitutional question, the court assesses the Fourth Amendment reasonableness not of this particular stop, but of stops to enforce the littering law in general. (¶¶44-55). Building on last term’s State v. Houghton, 2015 WI 79, 364 Wis. 2d 234, 868 N.W.2d 143, and discussing the social costs and benefits of temporary detentions, it holds that, in general, either reasonable suspicion or probable cause to believe that littering has occurred will validate a traffic stop. (Id.) The court phrases its holding in terms of the littering law and employs some littering-specific justifications; we’ll leave it to the reader to decide whether the discussion is equally applicable to other (or all) non-traffic forfeitures.

Two concurring justices (Abrahamson and Ann Walsh Bradley) take issue with the court’s categorical approach to the constitutional issue; they would determine reasonableness by examination of the totality of the circumstances of the particular stop. (¶¶64-66). Justice Abrahamson also exhorts the legislature to craft a clearer littering statute, asserting that certain terms in the present one “defy almost any effort at definition.” (¶¶84-89).

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