On Point

State v. Joseph R. Luebeck, 2006 WI App 87, (State’s) PFR filed 5/17/06
For Luebeck: Alex Flynn; Adam B. Stephens; Rebecca Robin Lawnicki

Issue: Whether the traffic stop, valid at inception, was impermissibly extended so as to invalidate consent to search the car.

Holding: 

¶14      … (I)n its decision reaffirming the order granting Luebeck’s motion to suppress the evidence, the circuit court stated:

I don’t think any reasonable person would have felt this encounter had concluded and that he was free to leave. I think any reasonable person, when a police officer is holding his driver’s license, had not told him he’s free to leave, and was questioning him about his passenger’s state of sobriety … would not have felt that this encounter ended.

For purposes of the Fourth Amendment, I’m satisfied that a seizure of this person had occurred. I think it’s controlled by State vs. Jones, similar to [Williams] obviously.

¶15      We agree with the circuit court’s application of the  Jones and with the court’s conclusion that a reasonable person in Luebeck’s position would not have felt free to decline the officer’s search request and simply get on his or her way. Unlike the complainants in  Gaulrapp and  Williams, Luebeck was detained for over twenty minutes, his driver’s license was held by the police, no citation or warning for lane deviation had yet been issued, he passed all of the sobriety tests and his preliminary breath test indicated a blood alcohol below the legal limit, and yet he was being questioned about his passenger’s ability to drive in his place. In Williams, the officer issued and explained the traffic warning, returned Williams’ identification, shook hands with Williams, and said, “[We’ll] let you get on your way then.”  Williams, 255 Wis. 2d 1, ¶¶7-12. In Gaulrapp, we expressly distinguished the case from others that “involve prolonged detention after the officers concluded or should have concluded that justification for the initial stop did not warrant further detention.”  Gaulrapp, 207  Wis. 2d at 608.

Though black-letter rules are difficult to come by—the reasonable-person test for custody typically thwarts such an effort—the court nonetheless comes awfully close, ¶16 (emphasis supplied):

Interestingly, the Tenth Circuit Court of Appeals has long held that a motorist’s consent to search his or her vehicle is invalid where a deputy does not return documents relating to the initial traffic stop prior to asking for consent to search the vehicle.  See, e.g., United States v. Lee, 73 F.3d 1034, 1040 (10th Cir. 1996) (an encounter that begins with a valid traffic stop may not be deemed consensual unless the driver’s documents have been returned), overruled on other grounds by United States v. Holt, 264 F.3d 1215, 1226 n.6 (10th Cir. 2001); United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995) (where an officer does not return documents to the driver, the driver will not reasonably feel “free to leave or otherwise terminate the encounter”); United States v. Walker, 933 F.2d 812, 817 (10th Cir. 1991) (detention was a seizure and Walker was not free to leave where officer retained his driver’s license and registration during the entire time of questioning), cert. denied, 502 U.S. 1093 (1992).  We are persuaded that, in a traffic stop context, where the test is whether a reasonable person would feel free to “disregard the police and go about his [or her] business,” Bostick, 501 U.S. at 434 (citation omitted), the fact that the person’s driver’s license or other official documents are retained by the officer is a key factor in assessing whether the person is “seized” and, therefore, whether consent is voluntary.

This conclusion is, really, just the flip side of the apparent holding in State v. Reginald Jones / Maurice E. O’Neal, 2005 WI App 26, ¶7 n. 4 that “a traffic stop is concluded when the driver has received his or her citation and driver’s license.” But though this rule is easily stated, it is less easily applied in any given fluid situation. Some possible implications:

• This principle—retaining a DL or other ID—establishes (ongoing) detention outside the traffic stop context, e.g., Brye v. State, FL App 1D05-0624, 4/7/06. But see Golphin v. State, 945 So.2d 1174 (Fl 2006) (no seizure where “the police officer held in her hand at that specific site the identification he had consensually and voluntarily provided and viewed it as she conducted a computerized check for warrants in his presence and without moving away from that location where the identification had been consensually and voluntarily produced”).
•  The cases string-cited with approval in ¶16 are all from the 10^th Circuit: does this mean that absent further word from either the Wis or US Supreme Court, 10^th Circuit caselaw in this area will carry great weight? Perhaps, and with that in mind, here’s another such case: US v. Lopez, 10^th Cir No. 05-1323, 4/11/06 (“continued retention of” DL to run computer check was, under circumstances, without cause and therefore amounted to illegal seizure of Lopez).
•  Left unsaid, perhaps because too obvious to bear elaboration: the officer did not have adequate cause to extend Luebeck’s traffic stop; and, consent given during an illegal stop (or, to say the same thing, a stop illegally extended) is necessarily coerced. The latter point may be perfectly obvious, but the former isn’t—you should read the facts and decide for yourself; decent advice anyway, especially in the 4th amendment context.

State v. Calvin R. Kolk, 2006 WI App 261
For Kolk: Michael Zell

Issue/Holding:

¶12      … Though there is some confusion in the case law, we believe that the distinction is that a confidential informant is a person, often with a criminal past him- or herself, who assists the police in identifying and catching criminals, while a citizen informant is someone who happens upon a crime or suspicious activity and reports it to police. See State v. Doyle, 96 Wis. 2d 272, 286-87, 291 N.W.2d 545 (1980) (“[T]here is a difference between ‘citizen-informers’ and ‘police contacts or informers who usually themselves are criminals.’”) (citation omitted), overruled on other grounds, State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991). The difference between the two calls for different means of assessing credibility; in particular, a confidential informant may be trustworthy where he or she has previously provided truthful information, State v. Paszek, 50 Wis. 2d 619, 630, 184 N.W.2d 836 (1971), while a citizen informant’s reliability is subject to a much less stringent standard. Doyle, 96 Wis. 2d at 287; see also (Roosevelt) Williams, 241 Wis. 2d 631, ¶36 n.12 (maintaining lower scrutiny for citizen informant despite abrogation of test stated in Aguilar v. Texas, 378 U.S. 108 (1964)). Both may be distinguished from an anonymous informer, one whose identity is unknown even to the police and whose veracity must therefore be assessed by other means, particularly police corroboration. See Alabama v. White, 496 U.S. 325, 329 (1990).

¶13      Our courts recognize the importance of citizen informants and accordingly apply a relaxed test of reliability that shifts from a question of “personal reliability” to one of “observational reliability.” (Roosevelt) Williams, 241 Wis. 2d 631, ¶36 (citations omitted). However, “there must be some type of evaluation of the reliability of victim and witness informants, although the standard to be applied is much less stringent.” Doyle, 96 Wis. 2d at 287. “(T)he reliability of such a person should be evaluated from the nature of his report, his opportunity to hear and see the matters reported, and the extent to which it can be verified by independent police investigation.” Id. (citation omitted).

State v. Calvin R. Kolk, 2006 WI App 261
For Kolk: Michael Zell

Issue/Holding: Information provided by a named, citizen informant (that Kolk had picked up drugs in Milwaukee and would be driving to Madison) was insufficiently reliable to support reasonable suspicion of criminal activity:

¶17      To recapitulate, the police were able to corroborate: (1) Kolk’s identity; (2) what kind of vehicle he drove; and (3) the fact that he would drive it, possibly on the way to Madison. This information strikes us as both more widely available and less significant than that in (Roosevelt) Williams, in which the informant provided specific information about the drug transactions that she was witnessing, and we hold it insufficient to uphold Kolk’s detention.

¶18      The State nevertheless argues that the informant in this case was able to supplypredictive information that further strengthened the reliability of the tip. Predictive information is not necessary for a tip to be reliable, but it is one of the indicia of reliability that can bolster a tip’s credibility. (Roosevelt) Williams, 241 Wis. 2d 631, ¶42. However, the informant’s prediction, as discussed above, essentially amounts to the prognostication that Kolk would drive his vehicle in a direction that would not preclude his being headed to Madison. This is a much more general prediction than the ones police relied upon in White. … Here, we have identification of a person and his vehicle, and the prediction that the person would drive the vehicle on a particular day, but we lack the precise confirmation of the time of departure or the destination found in White. ^[5]

¶19      The State correctly points out that neither direct observation of a crime nor predictive information are rigid requirements for a tip to be reliable. Rather, the presence of either can provide reason to believe that the tipster has truthful and accurate information. In a case like (Roosevelt) Williams, the fact that an informant is an eyewitness shows a basis for the informant’s knowledge that makes it reasonable to believe in its accuracy. In a case like White, the basis for an informant’s knowledge is not known by the police, but confirmed predictions can show that he or she is familiar enough with a person or situation to nevertheless be trusted. In this case, the officers received a tip that neither demonstrated a basis of knowledge nor allowed for much significant corroboration. We hold that under all of the facts and circumstances, the information possessed by the police was of insufficient reliability to justify Kolk’s continued detention.

State v. Eugene Patton, 2006 WI App 235
For Patton: Daniel R. Clausz

Issue/Holding

¶10   Under appropriate circumstances, an informant’s tip can provide a law enforcement officer with reasonable suspicion to effectuate a Terry stop. Rutzinski, 241 Wis.  2d 729, ¶17;  J.L., 529 U.S. at 270. However, before acting on an informant’s tip, the police must consider its reliability and content. Rutzinski, 241 Wis.  2d 729, ¶¶17-18. In other words, “Tips should exhibit reasonable indicia of reliability.” Id., ¶18. When the tipster is anonymous, the police must corroborate the information through independent investigation. Id., ¶22.^[4] The degree of necessary corroboration will vary with the particular case. The less reliable the tip, the more the necessity for additional information to establish reasonable suspicion. Id., ¶23. Tips from anonymous informants may be reliable if the tip contains “inside information or a similar verifiable explanation of how the informant came to know of the information in the tip, which the police in turn independently corroborate.” Id., ¶25. “Stated another way, if a tip contains strong indicia of an informant’s basis of knowledge, there need not necessarily be any indicia of the informant’s veracity.” Id.

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^[4] This is opposed to the situation where the police receive a tip from an informant that they are reasonably justified in believing to be truthful. In such a situation, the police may rely solely on the tip to provide reasonable suspicion for a stop. State v. Rutzinski, 2001 WI 22, ¶¶19-21, 241 Wis.  2d 729, 623 N.W.2d 516. This may occur in cases where the tipster’s identify is known and/or where the police have received reliable tips from the person in the past. Id.

State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: The police had reasonable suspicion to stop Young because: he was in a parked car with Illinois plates, which had “lingered” for 5 or 10 minutes around midnight around the corner from a bar, in a “problem area”:

¶64      Although there are innocent explanations for why five people would be sitting in a car for five to 10 minutes, Alfredson was not required to rule out all these potential explanations before initiating his investigation. The officer described the particular facts that made him suspicious and linked those facts to his seven years of experience patrolling the neighborhood. At the time Alfredson stopped his squad car, turned on his flashers, and illuminated Young’s car, we think there were sufficient facts for Alfredson to initiate an investigatory stop. ^[17]

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 ^[17]  The court of appeals believed it was doubtful whether Alfredson had reasonable suspicion to detain Young and the occupants of the car based on these facts. Young, 277 Wis. 2d 715, ¶10 n.4.

“Lingering” in a car parked 5-10 minutes? Guess what the court would’ve concluded had the car taken off at first sight of the marked squad? Yep, that would’ve been “police avoidance” behavior and suspicious on that account. And Illinois plates raise a suspicion in the border county of Kenosha?)

State v. Damian Darnell Washington, 2005 WI App 123
For Washington: Diana M. Felsmann, SPD, Milwaukee Appellate

Issue/Holding:

¶13      In United States v. Mendenhall, 446 U.S. 544 (1980), the Supreme Court stated that “[w]e adhere to the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained[,]” id. at 553, and concluded that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave[,]” id. at 554. …

¶14      … The trial court found that Washington stopped when ordered to do so. Though he also continued to take a few steps backwards, and the officer may have thought that he might run, that does not equate his actions with fleeing. Indeed, he stopped and addressed the police, allegedly inquired as to what he had done,^[5] and eventually threw his hands up in the air. He stopped walking towards the store, or wherever he was going, when the police stopped within a few feet of him, and ordered him to stop. We cannot conclude, under these facts, that Washington did not yield until after he threw his hands in the air.

The wrinkle here is that, when Washington threw up his hands, cocaine flew out, ¶2. If he hadn’t first been “seized,” then there would be no arguable illegality whose exploitation led to the tainted recovery of this contraband. The trial court denied suppression on the theory that no seizure occurred before the cocaine was dropped, and that California v. Hodari D., 499 U.S. 621 (1991) applied, ¶¶8-9. The court of appeals distinguishes the two cases: Hodari fled at police approach, in other words, “he did not yield to a show of authority,” but had to be tackled; contrastingly, Washington not only didn’t flee, “(t)he trial court found that Washington stopped when ordered to do so,” ¶14. That he took a few steps backward coupled with police perception that he might run doesn’t add up to flight, id. (The court actually leaves a bit unsaid. Its dry analysis is fine but it’s not hard to imagine this subtext: the police were in what they described as a high-crime area, investigating drug trafficking—more than a little tension in the air—and as they approached, one of the cops trained his gun on Washington. Now, imagine someone suddenly points a gun at you while you’re walking down the street: wouldn’t you reflexively step back?)

Though the court of appeals applies the Hodari D. test for seizure, the court also notes, ¶13 n. 4, the challenge to its viability in the then-pending State v. Young, 2004 WI App 227, 277 Wis. 2d 715, 690 N.W.2d 866; however, that case has since been affirmed, 2006 WI 98.

Note that there is no issue raised as to whether Washington “abandoned” the cocaine when it fell from his hands—this is undoubtedly because under State v. Robert F. Hart, 2001 WI App 283, ¶¶24-25, such action cannot be considered abandonment or separated out from the police illegality. This principle is mentioned because “seizure” defines the existence of police illegality: pre-seizure relinquishment of evidence is “abandoned” and thus falls outside the police illegality and the exclusionary rule; post-seizure relinquishment is the result of police “exploitation” of their illegal action and is suppressible.

State v. Eugene Patton, 2006 WI App 235
For Patton: Daniel R. Clausz

Issue: Whether the police had reasonable suspicion to detain on the basis of an anonymous tip, where the suspects not only matched the description of the anonymously-reported armed robbery, but also engaged in potentially suspicious behavior in response to police presence.

Holding:

¶21   Thus, the instant case has more than J.L., but less than Rutzinski, on the question of sufficient indicia of reliability. On the one hand, the tipster provided accurate and contemporaneous information regarding the suspects’ location, direction of travel, and attire, all corroborated by Schroeder’s observations. ^[5] On the other hand, the tipster provided no information indicating his or her basis for knowing that the suspects had committed an armed robbery or had a gun. Thus, we deem this a “close” case akin to White. See White, 496 U.S. at 332. But unlike the Supreme Court in White, we need not conclusively decide whether the tipster’s information, standing alone, provided sufficient indicia of reliability.

¶22   We began this opinion with the statement, “This is an ‘anonymous tipster’ case.” Perhaps we should have said, “This is an ‘anonymous tipster’ case and more.” We say that because this case has an additional factual component, separate and apart from the information provided by the tipster, that contributed to reasonable suspicion to detain the suspects, namely, the “siren component.” The trial court deemed this an important factor, and we do also.

¶23   When Schroeder made his initial observations of the suspects at the location indicated by the tipster, he notified other officers and waited for their assistance. Schroeder then heard the siren of one of the responding police vehicles. At the same time, Schroeder saw the suspects stop, turn around and look back in the direction of the siren. They then turned left in mid-block and entered a restaurant. Schroeder deemed this suspicious, thinking the suspects might be hiding, so he radioed to have the siren turned off. Approximately fifteen to twenty seconds after the siren was turned off, the suspects emerged from the restaurant and continued to walk westbound on Calumet Avenue, a route that could take them to the Greyhound bus station, the destination reported by the tipster. We conclude that this added factual component, in conjunction with the information provided by the tipster, provided the requisite reasonable suspicion underTerry and WIS. STAT. § 968.24 to justify the temporary detention of the suspects.

The court does not say so expressly, but its analysis nonetheless suggests that J.L. doesn’t take much to overcome. In other words, assume that Reasonable Suspicion has a value of 1. Anonymous Tip hassome positive value, but less than 1, say .5. Thus, AT alone can’t get you to RS, but it can with an additional factor which corroborates the tip. Assume further that Suspicious Behavior is corroborative and thus has a positive value, let’s assign it a minimum of .5. Therefore, AT + SB = RS. The problem is deciding when behavior is indeed suspicious so as to give it the necessary valence. Flight is one thing (see, e.g., U.S. v. Muhammad, 2nd Cir No. 05-4923-cr, 9/7/06 (“evasive conduct”—flight—in high-crime area enough to corroborate anonymous tip and thus satisfy J.L.), but Patton et al. most certainly did not flee. They merely entered a restaurant. The court doesn’t put it in these terms, but its analysis is an unfortunate recurrence to what it used to happily refer to as “police avoidance behavior.” So what if they didn’t engage in, to use the words of J.L. itself, “headlong flight”; they had the audacity to take a path away from the police, didn’t they?

One other possibly interesting feature to this case, though it is largely subtextual: there are no fewer than five references to the “black” suspect(s). And, indeed, the 3 suspects who ducked into the restaurant, Patton among them, were black. The crime allegedly occurred in downtown Manitowoc, at 8 p.m. Without delving into census data it’s probably a fair assumption that there are very few black citizens in that area, yet the court did not in any manner suggest that this match in racial characteristic could possibly provide corroboration of the tip—therefore, you can say that it did not. If you’re looking to take something positive from the case perhaps that is it. Odd, though, that the court would repeatedly refer to the race of the suspects without attempting to explain any possible significance to the references.