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Unlawful stop, absent police misconduct, does not require exclusion

State v. Jason William Castillo, 2023AP398, 10/26/23, District IV (one-judge decision; ineligible for publication); case activity

Castillo refused to submit to a chemical test for intoxication and subsequently challenged the revocation of his driver’s license. In doing so, however, Castillo claims only that he was unlawfully seized prior to his refusal and that the unlawful seizure should result in the suppression of the evidence. The court of appeals and the state agree that Castillo was unlawfully seized, but Castillo’s suppression claim fails because “there was no form of misconduct by the deputy and exclusion would not “appreciably deter” any form of police misconduct.” (Op., ¶3).

It’s safe to say Castillo was in the wrong place at the wrong time. While a patrol deputy was traveling westbound on Highway 16, he observed an eastbound vehicle with its high beam lights on. The deputy initiated a U-turn with the intention of pulling over this “target vehicle,” but before the deputy could do so, Castillo’s vehicle got between the target vehicle and the deputy. The deputy followed both vehicles for about a mile, but was unable to pass Castillo’s vehicle in order to get behind the target vehicle to initiate his planned traffic stop. So, the deputy activated his emergency lights and both vehicles pulled over. Because Castillo did not leave enough room for the deputy to pull his squad car behind the target vehicle, the deputy pulled up behind Castillo. Under the circumstances, the state and court agree Castillo was stopped without reasonable suspicion regardless of the deputy’s subjective intent to only stop the target vehicle.

After the deputy exited his squad car, but before he made contact with the target vehicle, the deputy made contact with Castillo. The court presumes that the only basis for this contact was to inform Castillo that he was free to go on his way. (Op., ¶24). However, even before the deputy reached Castillo’s vehicle, the deputy observed a window being lowered and smelled a “strong odor of burnt marijuana coming from the direction of Castillo’s vehicle.” The rest is history.

Castillo does not argue that the deputy engaged in any form of police misconduct or that suppression would “appreciably deter” any form of misconduct. See State v. Burch, 2021 WI 68, ¶17, 398 Wis. 2d 1, 961 N.W.2d 314; Davis v. United States, 564 U.S. 229, 237 (2011). While the court agrees that the seizure of Castillo was not supported by reasonable suspicion, the “deputy’s conduct was objectively reasonable” and exclusion of the evidence of Castillo’s subsequent refusal is not necessary.

{ 2 comments… add one }
  • Cole October 27, 2023, 8:13 am

    Am I seeing things, or does this seemingly innocuous, unpublished one-judge refusal appeal greatly diminish 4th amendment protections? When a citizen is impermissibly seized, evidence obtained as a result of that illegal seizure must be suppressed. Now it’s not enough to prove an unlawful search or seizure to obtain suppression, we must also prove police misconduct, or that the officer lacks an “objectively reasonable good-faith belief that their conduct is lawful,” in order for exclusion to be the remedy for the unlawful search or seizure? I suppose it was only a matter of time for courts to begin applying the Burch rationale to simple traffic stops…

  • Bernardo October 28, 2023, 3:18 pm

    I agree with Cole. Hopefully other courts will treat the holding as a narrow exception given the bizarre circumstances.

    What I cannot figure out is why the second car would pull over. If I am driving and the police pull over the car behind me, I will keep going. It does not sound like there is a special siren for pulling over a row of cars. Had the second car kept going, then the police officer might have been compelled to let Castillo stay on the side of the road and go after only the target vehicle. At that point, the officer would have had a choice.

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