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SCOW will decide whether asking a driver about weapons is a permissible part of the “ordinary inquiry” allowed during a traffic stop

State v. John Patrick Wright, 2017AP2006-CR, review of an unpublished court of appeals decision; case activity (including briefs)

Issue (from state’s petition for review)

Does asking a lawfully stopped motorist whether he is carrying any weapons, in the absence of reasonable suspicion, unlawfully extend a routine traffic stop?

Wright was stopped for a defective headlight. During his initial contact with Wright, after telling him the reason for the stop and asking for Wright’s identification, the officer Wright if he had a permit to carry a concealed weapon and whether there were weapons in the car. Wright said he’d just taken the CCW permitting class and that he had a gun in the car which, upon the request of the officer, Wright agreed to have removed while the stop was ongoing. It turned out his permit wasn’t yet valid, so he was charged with CCW.

Why did the officer ask about the permit and the presence of weapons? Not because he had any reasonable basis, or even a hunch, to suspect Wright was armed, legally or illegally, or that he posed a threat to the officer. Instead, as explained in the court of appeals decision, the officer asked those questions simply because he was “trained” to do so because they’re on the police department’s “traffic stop question card.” (¶¶4-5, 15). As explained in our prior post on the case, the trial court and court of appeals ruled that training guidelines for officer safety don’t trump the Fourth Amendment. The state, greatly unhappy with this result, petitioned for review, and now the supreme court will weigh in.

Under the Fourth Amendment, and in particular Rodriguez v. United States, 135 S. Ct. 1609 (2015), a police stop cannot exceed the time needed to handle the matter for which the stop was made. “A seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.” Id. at 1612 (citation omitted). “Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id. at 1615. True, a driver “may be asked questions reasonably related to the nature of the stop—including his or her destination and purpose,” State v. Betow, 226 Wis. 2d 90, 93, 593 N.W.2d 499 (Ct. App. 1999); and the stop may be extended if police learn of additional suspicious factors sufficient to provide articulable suspicion regarding an offense separate and distinct from the traffic stop, id. at 94-95. But in Wright’s case, the trial court and court of appeals held, the officer’s questions about a CCW permit and weapons were neither reasonably related to the initial reason for the stop nor based on additional information learned during the stop.

To the state’s claim the extra questions were “negligibly burdensome and did not add much time to the traffic stop,” the court of appeals curtly replied the state “misses the point. Authority for [Officer] Sardina’s seizure ended when he reasonably could have issued a citation for Wright’s traffic violation. See Rodriguez, 135 S. Ct. at 1615.” (¶15). The state takes umbrage at this, as evidenced by the language in its petition for review calling the court of appeals decision an “egregious” error (PFR at 2) and asking for summary reversal, without the bother of argument or briefing, as it’s so clearly wrong (PFR at 8). It’s wrong, says the state, because the court of appeals misread Rodriquez and ignored State v. Floyd, 2017 WI 78, 377 Wis. 2d 394, 898 N.W.2d 560, which authorizes exactly what happened here. Citing Floyd‘s general discussion about how traffic stops are “especially fraught with danger to police” and therefore police may take “negligibly burdensome precautions to complete [their] mission safely,” id., ¶¶26, 27 (quoting Rodriquez, 135 S. Ct. at 1616), the state posits that “[o]fficer safety questions do not extend a traffic stop. They are part of the stop, as officer safety concerns are present in all traffic stops, regardless of the reasons that precipitated the contact.” (PFR at 6).

But as Floyd also reminds us, this is an area of law where bright lines are rare (though it noted this in discussing the bright-line rule that a person may always be ordered out of the car at a stop). 377 Wis. 2d 394, ¶24. If the state’s reading of Floyd prevails, the result will be a bright-line rule that, when questioning any driver at any traffic stop, police always have a legitimate safety interest in asking a question about whether the driver has a weapon. So every honest citizen who has elected to exercise their Second Amendment right to bear arms will be subject to a longer traffic stop than other citizens, for the officer may question them about their possession of a weapon—and, as happened in this case, ask to seize any weapon in the car, if only for the duration of the stop, for “officer safety” and then await the results of a check into the CCW permit—regardless of whether there’s any basis to suspect the person is violating a law regulating the possession of weapons. We’ll see whether the supreme court agrees with the notion these are always “negligibly burdensome” intrusions.

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