State v. Lewis O. Floyd, Jr. , 377 Wis. 2d 394 ( 2017 )

2017 WI 78SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1294-CR
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Respondent,
v.
Lewis O. Floyd, Jr.,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 371 Wis. 2d 404, 885 N.W.2d 156PDC No: 2016 WI App 64 - Published
OPINION FILED: July 7, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 19, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Allan B. Torhorst
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Michael G. Soukup and Pinix & Soukup, LLC, Milwaukee, and
oral argument by Michael G. Soukup.
For the plaintiff-respondent, there was a brief filed by
Luke N. Berg, deputy solicitor general, Brad D. Schimel,
attorney general, and Misha Tseytlin, solicitor general, and
oral argument by Luke N. Berg.
An amicus curiae brief was filed by Kelli S. Thompson,
state public defender, and L. Michael Tobin, deputy state public
defender.
2017 WI 78NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1294-CR
(L.C. No. 2013CF982)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JUL 7, 2017
Lewis O. Floyd, Jr., Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DANIEL KELLY, J. A law enforcement officer
discovered a cache of controlled substances when he performed a
warrantless——but allegedly consensual——search of Lewis O. Floyd,
Jr. during a traffic stop. Mr. Floyd says that because the
officer extended the traffic stop without the necessary
reasonable suspicion, his alleged "consent" was void and the
evidence obtained from the search should have been suppressed.
Mr. Floyd also says he received ineffective assistance of
counsel at the suppression hearing because his trial counsel
No. 2015AP1294-CR
failed to present testimony Mr. Floyd believes would have
established he was not asked to consent to a search.1
I. BACKGROUND
A. The Traffic Stop
¶2 On an early July evening in 2013, Deputy Troy Ruffalo
of the Racine County Sheriff's Office stopped Mr. Floyd near
16th and Racine Streets in the City of Racine because his car
registration had been suspended for emissions violations.
Deputy Ruffalo, a six-year veteran law enforcement officer,
believed this to be a "high crime" part of the city known for
frequent drug and gang activity.
¶3 When Deputy Ruffalo approached Mr. Floyd's car, he
noted it had tinted windows and "air fresheners in every vent of
the vehicle as well as hanging off the rear view mirror and air
fresheners up on the -- where the vents were." This, he said,
is often an indicator of drug-related activity because
"[u]sually the air fresheners or the amount of them are -- is an
agent that is used to mask the smell of narcotics."2
¶4 Deputy Ruffalo's initial contact with Mr. Floyd lasted
approximately two to three minutes, during which he discovered
1
This is a review of a published decision of the court of
appeals, State v. Floyd, 2016 WI App 64, 371 Wis. 2d 404, 885
N.W.2d 156, affirming the judgment and order of the circuit
court for Racine County, as well as the denial of Mr. Floyd's
motion for postconviction relief, the Hon. Allan B. Torhorst,
presiding.
2
The record does not identify the exact number of air
fresheners present in Mr. Floyd's vehicle.
2
No. 2015AP1294-CR
Mr. Floyd had no driver's license or insurance information with
him. After obtaining Mr. Floyd's Wisconsin State identification
card, Deputy Ruffalo returned to his squad car to draft Mr.
Floyd's citations and contact dispatch to ask for a canine unit
or other "cover" squad. No canine units were available, and
Officer Aaron White, an officer with the City of Racine Police
Department, arrived on the scene while Deputy Ruffalo was
completing Mr. Floyd's citations.
¶5 Deputy Ruffalo reestablished contact with Mr. Floyd
approximately five or six minutes after pulling him over and,
while maintaining possession of Mr. Floyd's identification card
and the multiple citations, asked Mr. Floyd to exit the vehicle
so he could explain the citations. After Mr. Floyd complied,
Deputy Ruffalo asked him if he had any weapons or anything that
could harm him. After Mr. Floyd indicated he did not, Deputy
Ruffalo asked if he could perform a search for his safety. Mr.
Floyd responded "yes, go ahead."3 During the ensuing search,
Deputy Ruffalo discovered the illegal drugs that led to the
charges in this case.
B. Procedural Background
¶6 The State filed a criminal complaint against Mr. Floyd
alleging: (1) possession with intent to deliver non-narcotic
controlled substances, second and subsequent offense; (2)
3
To the extent there is a dispute as to whether Mr. Floyd
voluntarily consented to the search, we address that question in
Section III.B, infra.
3
No. 2015AP1294-CR
misdemeanor bail jumping, repeater; (3) possession with intent
to deliver or manufacture THC <= 200 GMS, second and subsequent
offense; and (4) misdemeanor bail jumping, repeater. The
subsequent Information alleged the same four counts.
¶7 Mr. Floyd moved to suppress the evidence seized during
the search, but the circuit court denied the motion. It found
that at the time Deputy Ruffalo contacted dispatch for backup,
he had suspicions Mr. Floyd was involved in criminal drug-
related activity based on several factors, including the
numerous air fresheners and the vehicle's tinted windows. It
also found that Deputy Ruffalo did not unnecessarily prolong the
traffic stop by requesting backup because the cover squad
arrived while he was in the process of drafting the citations——a
process that took only five to six minutes. The circuit court
accepted Deputy Ruffalo's explanation that having Mr. Floyd step
out of his vehicle was important because he did not have a valid
driver's license and therefore could not drive away when the
traffic stop ended.
¶8 Mr. Floyd pled no-contest to possession with intent to
deliver non-narcotic controlled substances as a repeat offender.
He moved for postconviction relief, alleging his trial counsel
was ineffective for failing to present evidence at the
suppression hearing that (he says) would have proved Deputy
Ruffalo did not ask for his consent to perform the search. The
circuit court observed that Officer White's testimony showed
"some dichotomy" with respect to whether Deputy Ruffalo had
asked for Mr. Floyd's consent to the search or instead had
4
No. 2015AP1294-CR
advised him it was going to happen. Ultimately, the circuit
court found Deputy Ruffalo did, in fact, ask Mr. Floyd whether
he would consent to the search. Thus, the court concluded Mr.
Floyd did not receive ineffective assistance of counsel because
the testimony was insufficient to demonstrate he had not
consented to the search, and so denied the motion.
¶9 The court of appeals affirmed in a published opinion,
concluding that denial of the suppression motion was proper
because Mr. Floyd was lawfully detained when Deputy Ruffalo
asked to search him and Mr. Floyd voluntarily consented to the
search. See State v. Floyd, 2016 WI App 64, ¶¶12, 20, 371
Wis. 2d 404, 885 N.W.2d 156. Relying on Pennsylvania v. Mimms,
434 U.S. 106 (1977) (per curiam), the court of appeals concluded
that Deputy Ruffalo's request that Mr. Floyd exit his vehicle
during the ongoing traffic stop was per se lawful, and it also
pointed out that Mr. Floyd could not drive away because he did
not have a valid driver's license. Floyd, 371 Wis. 2d 404, ¶12.
The court of appeals further held that even if Deputy Ruffalo
had extended the traffic stop, the extension was nevertheless
reasonable because Deputy Ruffalo reasonably suspected criminal
drug-related activity. Id., ¶13. As to the postconviction
motion, the court of appeals determined there was no reasonable
probability the result at the suppression hearing would have
been any different had Officer White been called to testify;
therefore, it affirmed the circuit court's denial of the
postconviction motion. Id., ¶27.
5
No. 2015AP1294-CR
¶10 We accepted Mr. Floyd's petition for review and now
affirm the decision of the court of appeals.
II. STANDARD OF REVIEW
¶11 "Whether evidence should be suppressed is a question
of constitutional fact." State v. Knapp, 2005 WI 127, ¶19, 285
Wis. 2d 86, 700 N.W.2d 899 (quoting State v. Samuel, 2002 WI 34,
¶15, 252 Wis. 2d 26, 643 N.W.2d 423). We review the circuit
court's findings of historical fact under the clearly erroneous
standard. State v. Turner, 136 Wis. 2d 333, 343-44, 401
N.W.2d 827 (1987). But the circuit court's application of the
historical facts to constitutional principles is a question of
law we review independently. Id. While we are not bound by the
circuit court's or court of appeals' decisions on questions of
law, we benefit from their analyses. State v. Kyles, 2004
WI 15, ¶7, 269 Wis. 2d 1, 675 N.W.2d 449.
¶12 We review the voluntariness of consent to a search in
a similar fashion. See State v. Artic, 2010 WI 83, ¶23, 327
Wis. 2d 392, 786 N.W.2d 430. We review the circuit court's
findings of historical fact to determine whether they are
clearly erroneous. Id. We then independently apply
constitutional principles to those facts. Id.¶13 Whether trial counsel's actions constitute ineffective
assistance of counsel presents a mixed question of fact and law.
State v. Tourville, 2016 WI 17, ¶16, 367 Wis. 2d 285, 876
N.W.2d 735. We will not reverse the circuit court's findings of
fact unless they are clearly erroneous. Id. However, we
6
No. 2015AP1294-CR
independently review, as a matter of law, whether those facts
demonstrate ineffective assistance of counsel. Id.III. DISCUSSION
¶14 We must determine whether the drug-disclosing search
of Mr. Floyd was consonant with the constitutional mandate that
we be free of unreasonable searches and seizures. The State
says the search was proper because it occurred during a lawful
traffic stop and Mr. Floyd consented to it. Mr. Floyd says this
is not so——the search took place after the traffic stop should
have ended, and so he was unlawfully seized when it took place,
which rendered any alleged "consent" void as a matter of law.
In any event, he says, he did not actually consent to the
search, and if his counsel had not been ineffective the court
would have heard testimony to prove that point.
¶15 The disagreement between the State and Mr. Floyd is
really quite narrow, although no less important for that. The
parties agree that Mr. Floyd's expired tags provided a
sufficient basis for Deputy Ruffalo to initiate the traffic
stop. And Mr. Floyd did not contest an officer's authority to
ask a driver to exit his vehicle during such an encounter. Nor
did he offer any argument against an officer's authority to ask
a lawfully-seized person to consent to a search. Their
disagreement centers on where we draw the line separating
traffic stops of acceptable duration from those that have been
impermissibly extended. A motorist is lawfully seized during
the proper duration of a traffic stop, but unlawfully seized if
it lasts longer than necessary to complete the purpose of the
7
No. 2015AP1294-CR
stop. So the location of the line is important because of the
constitutional rights affected. As we discuss below, if Mr.
Floyd was unlawfully seized when Deputy Ruffalo requested
permission to search him, his "consent" would be
constitutionally invalid, and the evidence discovered during the
search would need to be suppressed.
¶16 Mr. Floyd says the court of appeals drew the line in
the wrong place. He argues that when Deputy Ruffalo finished
writing the citations, the Constitution permitted no further
interaction between the two of them beyond Deputy Ruffalo
explaining the citations and informing him he was free to go.
So when Deputy Ruffalo instead asked him if he would consent to
a search, Mr. Floyd says Deputy Ruffalo extended the traffic
stop with no justifiable basis.
¶17 The State says the constitutionally-permissible
duration of the traffic stop did not conclude before Deputy
Ruffalo asked Mr. Floyd if he would consent to a search. Thus,
as the fruit of a consensual search, the illegal drugs comprised
proper evidence against Mr. Floyd. And even if Deputy Ruffalo
extended the stop, the State says, the totality of the
circumstances gave him reasonable suspicion to believe Mr. Floyd
had committed, was committing, or was about to commit a crime.
¶18 Thus, our task is to espy the point at which the
traffic stop should have ended and assess how the search related
to that point. Because the purpose of the stop determines its
proper scope, we must identify what an officer may lawfully do
when detaining someone for a suspended vehicle registration.
8
No. 2015AP1294-CR
See, e.g., Rodriguez v. United States, 575 U.S. ___, 135
S. Ct. 1609, 1614 (2015) ("the tolerable duration of police
inquiries in the traffic-stop context is determined by the
seizure's 'mission'——to address the traffic violation that
warranted the stop, . . . and attend to related safety
concerns . . . . Authority for the seizure thus ends when tasks
tied to the traffic infraction are——or reasonably should have
been——completed." (internal citations omitted)).
A. Constitutional Implications Of Traffic Stops
¶19 We begin where we should, with the constitutional
prohibitions against unreasonable searches and seizures. The
Fourth Amendment to the United States Constitution says:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV. Its Wisconsin counterpart, found in
Article I, section 11 of the Wisconsin Constitution,4 is
substantively identical, and we normally interpret it
coextensively with the United States Supreme Court's
interpretation of the Fourth Amendment. See, e.g., State v.
4
"The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures shall not be violated; and no warrant shall issue but
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and the persons
or things to be seized." Wis. Const. art. I, § 11.
9
No. 2015AP1294-CR
Dumstrey, 2016 WI 3, ¶14, 366 Wis. 2d 64, 873 N.W.2d 502 (citing
State v. Arias, 2008 WI 84, ¶20, 311 Wis. 2d 358, 752
N.W.2d 748).
¶20 It is an unremarkable truism that a traffic stop is a
seizure within the meaning of our Constitutions. "'The
temporary detention of individuals during the stop of an
automobile by the police, even if only for a brief period and
for a limited purpose, constitutes a seizure of persons within
the meaning of the Fourth Amendment.'" State v. Popke, 2009
WI 37, ¶11, 317 Wis. 2d 118, 765 N.W.2d 569 (citations and one
set of quotations omitted). Reasonable suspicion that a driver
is violating a traffic law is sufficient to initiate a traffic
stop. State v. Houghton, 2015 WI 79, ¶30, 364 Wis. 2d 234, 868
N.W.2d 143 ("[R]easonable suspicion that a traffic law has been
or is being violated is sufficient to justify all traffic
stops."). Reasonable suspicion requires that "[t]he officer
must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts,
reasonably warrant the intrusion of the stop." Popke, 317
Wis. 2d 118, ¶23 (two sets of quotation marks and citation
omitted).
¶21 Traffic stops are meant to be brief interactions with
law enforcement officers, and they may last no longer than
required to address the circumstances that make them necessary.
"A routine traffic stop . . . is a relatively brief encounter
10
No. 2015AP1294-CR
and 'is more analogous to a so-called Terry[5] stop . . . than to
a formal arrest.'" Knowles v. Iowa, 525 U.S. 113, 117 (quoting
Berkemer v. McCarty, 468 U.S. 420, 439 (1984)) (footnote added;
second ellipses in Knowles; one set of quotation marks omitted).
"Because addressing the infraction is the purpose of the stop,
it may 'last no longer than is necessary to effectuate th[at]
purpose.'" Rodriguez, 135 S. Ct. at 1614 (citation omitted;
alteration in Rodriguez). "Authority for the seizure thus ends
when tasks tied to the traffic infraction are——or reasonably
should have been——completed." Id.¶22 Thus, we draw the line between traffic stops of proper
duration and those that extend into unconstitutional territory
according to functional considerations. We assess those
considerations in the context of the "totality of the
circumstances." See, e.g., United States v. Everett, 601
F.3d 484, 493-94 (6th Cir. 2010). And while the temporal
duration of the stop may inform those considerations, it is not
in itself dispositive. See United States v. Sharpe, 470
U.S. 675, 686 ("In assessing whether a detention is too long in
duration to be justified as an investigative stop, we consider
it appropriate to examine whether the police diligently pursued
a means of investigation that was likely to confirm or dispel
their suspicions quickly, during which time it was necessary to
detain the defendant."); see also United States v. Peralez, 526
5
Terry v. Ohio, 392 U.S. 1 (1968).
11
No. 2015AP1294-CR
F.3d 1115, 1119 (8th Cir. 2008) ("Whether a traffic stop 'is
reasonable in length is a fact intensive question, and there is
no per se time limit on all traffic stops.'" (citation
omitted)). Generally speaking, an officer is on the proper side
of the line so long as the incidents necessary to carry out the
purpose of the traffic stop have not been completed, and the
officer has not unnecessarily delayed the performance of those
incidents. See, e.g., Rodriguez, 135 S. Ct. at 1614-15(explaining that authority for a traffic-stop based seizure ends
when tasks related to the infraction are, or should have been,
completed). He steps across that line (again speaking
generally) when he maintains the seizure after he has completed
all the necessary functions attendant on the traffic stop. See
State v. Malone, 2004 WI 108, ¶26, 274 Wis. 2d 540, 683 N.W.2d 1(a reasonable seizure can become unreasonable if the officer
"extends the stop beyond the time necessary to fulfill the
purpose of the stop." (citation omitted)).
¶23 Mr. Floyd's stop was not complicated——his vehicle's
registration was suspended. Deputy Ruffalo then learned Mr.
Floyd had neither insurance nor a valid driver's license. At a
minimum, this authorized Deputy Ruffalo to take the time
reasonably necessary to draft the appropriate citations and
explain them to Mr. Floyd. See, e.g., Rodriguez, 135 S. Ct. at
1614 (explaining that in the traffic stop context, "addressing
the infraction is the purpose of the stop . . . ."). Until that
is done, and so long as Deputy Ruffalo does not unnecessarily
delay the process, the permissible duration of the traffic stop
12
No. 2015AP1294-CR
has not elapsed. Id. at 1615 ("The seizure remains lawful only
'so long as [unrelated] inquiries do not measurably extend the
duration of the stop.'" (quoting Arizona v. Johnson 555
U.S. 323, 333 (2009); alteration in Rodriguez)).
¶24 We note that before Deputy Ruffalo asked Mr. Floyd to
consent to a search, he asked him to step out of his vehicle.
During a valid traffic stop, this is a matter of no
constitutional moment: "[O]nce a motor vehicle has been
lawfully detained for a traffic violation, the police officers
may order the driver to get out of the vehicle without violating
the Fourth Amendment's proscription of unreasonable searches and
seizures." Mimms, 434 U.S. at 111 n.6. In an area of the law
where bright lines are rare, we have had no difficulty
discerning one here. In State v. Johnson we recognized that
Mimms "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." 2007 WI 32, ¶23, 299
Wis. 2d 675, 729 N.W.2d 182.
¶25 That brings us to the nub of the dispute between the
State and Mr. Floyd. After writing the citations, Deputy
Ruffalo returned to Mr. Floyd's car and asked him if he would
submit to a search. Mr. Floyd says this request extended the
stop beyond its permissible duration. The only thing Deputy
Ruffalo could lawfully do after writing the citations, Mr. Floyd
says, was explain them to him and bid him good day.
¶26 Although Mr. Floyd's argument incorporates the
principle that the "mission" of the traffic stop defines its
13
No. 2015AP1294-CR
acceptable duration, he does not account for how the officer's
safety fits within that mission. "Traffic stops are 'especially
fraught with danger to police officers . . . .'" Rodriguez, 135
S. Ct. at 1616 (quoting Johnson, 555 U.S. at 330); see also
Mimms, 434 U.S. at 110 ("We think it too plain for argument that
the State's proffered justification——the safety of the officer——
is both legitimate and weighty."). That makes officer safety an
integral part of every traffic stop's mission. Rodriguez, 135
S. Ct. at 1616 ("Unlike a general interest in criminal
enforcement, however, the government's officer safety interest
stems from the mission of the stop itself.")
¶27 The danger inherent to traffic stops authorizes an
officer "to take certain negligibly burdensome precautions in
order to complete his mission safely." Id.; see also Mimms, 434
U.S. at 110-11 (discussing inherent risks a police officer faces
during a traffic stop, such as assault by seated suspects and
accidental injury from passing traffic, in concluding the
request that a person exit the vehicle during a traffic stop is
justifiable and de minimis); Johnson, 299 Wis. 2d 675, ¶¶25-27,
(acknowledging "the serious risks law enforcement officers must
undertake whenever they initiate contact with a suspect who is
seated in a vehicle"). Thus, the questions to which Mr. Floyd
objects are appropriate if they are negligibly burdensome
precautions to ensure the officer's safety during the stop.
¶28 Deputy Ruffalo asked Mr. Floyd if he had any weapons
or anything that could harm him. When Mr. Floyd said he didn't,
Deputy Ruffalo asked if he could perform a search for his
14
No. 2015AP1294-CR
safety. Both questions specifically related to the officer's
safety. According to Mr. Floyd, however, the second question
was not negligibly burdensome: "What the State entirely ignores
is that unlike questions seeking information, a request to
conduct a frisk involves 'a severe, though brief, intrusion upon
cherished personal security . . . [that] must surely be an
annoying, frightening, and perhaps humiliating experience.'"
(Quoting Terry v. Ohio, 392 U.S. 1, 24-25 (1968)). While it is
true that such a search can be all of that, a request to conduct
such a search cannot. In fact, that request is just like
"questions seeking information" because it is just seeking
information——to wit, whether Mr. Floyd would agree to be
searched. What follows the answer to the question may be a non-
negligible burden, but that says nothing about the nature of the
question itself. Mr. Floyd provided no other argument that the
questions imposed a burden forbidden by Rodriguez, and nothing
about them immediately suggests a disqualifying characteristic.
Therefore, because the questions related to officer safety and
were negligibly burdensome, they were part of the traffic stop's
mission, and so did not cause an extension.6
6
The dissent misreads our opinion with respect to whether
Deputy Ruffalo extended the stop. It says:
The majority concludes that the traffic stop was
not extended because Mr. Floyd freely and
voluntarily consented to the search. It then
determines that there is no need to consider
whether there was reasonable suspicion because it
has already concluded that the traffic stop was
not extended.
(continued)
15
No. 2015AP1294-CR
B. Constitutional Consent
¶29 Whatever additional time the actual search consumed,
or the burden it imposed, is irrelevant so long as Mr. Floyd
consented to it. Schneckloth v. Bustamonte, 412 U.S. 218, 242-
43 (1973) ("While the Fourth and Fourteenth Amendments limit the
circumstances under which the police can conduct a search, there
is nothing constitutionally suspect in a person's voluntarily
allowing a search."). When we inquire into the legitimate scope
of a traffic stop's mission, its duration, and the
burdensomeness of its incidents, we do so because these are
nonconsensual aspects of the interaction between a citizen and a
law enforcement officer. But when a person consents, the Fourth
Amendment does not bar the search (so long as it does not exceed
the scope of the person's consent). Illinois v. Rodriguez, 497
U.S. 177, 181 (1990) (explaining that although the Fourth
Amendment generally prohibits warrantless searches, "[t]he
prohibition does not apply . . . to situations in which
Dissent, ¶46 (citation omitted).
Actually, our conclusion that Deputy Ruffalo did not extend
the stop is based first and foremost on his interactions with
Mr. Floyd before he consented to the search. But the dissent
does not engage this part of our opinion at all. This is not a
small oversight. Beginning with ¶15 and ending with this note,
that has been the sole subject of our discussion. Measured by
paragraphs, that's 48% of our opinion's entire analysis. The
reason we didn't address "reasonable suspicion" is because that
is necessary only if Deputy Ruffalo extended the stop. As the
first half of our opinion demonstrates, he did not. As for the
effect of Mr. Floyd's consent to the search, that is the topic
of the next subpart.
16
No. 2015AP1294-CR
voluntary consent has been obtained . . . ."); see also
Schneckloth, 412 U.S. at 219 ("It is equally well settled that
one of the specifically established exceptions to the
requirements of both a warrant and probable cause is a search
that is conducted pursuant to consent."); United States v.
Strickland, 902 F.2d 937, 941 (11th Cir. 1990) ("When an
individual gives a general statement of consent without express
limitations, the scope of a permissible search is not limitless.
Rather it is constrained by the bounds of reasonableness: what
a police officer could reasonably interpret the consent to
encompass."). Thus, we inquire now into whether Mr. Floyd
provided constitutionally-valid consent to Deputy Ruffalo's
search.
¶30 The circuit court found that after Deputy Ruffalo
asked whether Mr. Floyd would consent to a search, Mr. Floyd
said "yes, go ahead." This is an unequivocal assent, and so it
is sufficient to authorize the search so long as Mr. Floyd's
response was given "freely and voluntarily." Johnson, 299
Wis. 2d 675, ¶16 ("When the purported legality of a warrantless
search is based on the consent of the defendant, that consent
must be freely and voluntarily given."). The State bears the
burden of establishing by clear and convincing evidence that a
person's consent to a search was voluntary. State v. Phillips,
218 Wis. 2d 180, 197, 577 Wis. 2d 794 (1998). Generally, a
response is voluntary if it "was given in the absence of duress
or coercion, either express or implied." State v. Bons, 2007
17
No. 2015AP1294-CR
WI App 124, ¶17, 301 Wis. 2d 227, 731 N.W.2d 367 (quoting
Phillips, 218 Wis. 2d at 196). Relevant considerations include:
[W]hether any misrepresentation, deception or trickery
was used to persuade the defendant to consent; whether
the defendant was threatened or physically
intimidated; the conditions at the time the search was
made; the defendant's response to the officer's
request; the defendant's physical and emotional
condition and prior experience with police; and
whether the officers informed the individual that
consent could be withheld.
Bons, 301 Wis. 2d 227, ¶17.
¶31 Mr. Floyd argued his "consent" was not valid because
the circumstances demonstrate it was not voluntarily given.
Specifically, he argued that because Deputy Ruffalo had not
returned his identification card prior to asking whether he
would consent to a search, his response could not be voluntary
because he was unlawfully seized. He said "the record shows
that Floyd's consent was not voluntary, where in the absence of
any suspicion, the deputy withheld [his] documents to prevent
the stop from terminating in order to procure [his] agreement to
the pat-down." It is true that these facts can be useful in
determining the voluntariness of someone's consent. But it is
useful to a part of the analysis we have already resolved
against Mr. Floyd's position. If an officer withholds a
person's documents, there is good reason to believe the person
was not "free to leave" at that time. That, in turn, helps us
decide whether the person was seized. See, e.g., State v.
Hogan, 2015 WI 76, ¶63, 364 Wis. 2d 167, 868 N.W.2d 124 ("a
traffic stop ends when a reasonable person, under the totality
18
No. 2015AP1294-CR
of the circumstances, would feel free to leave."). If the
seizure is unlawful, the consent is invalid. See, e.g., State
v. Jones, 2005 WI App 26, ¶9, 278 Wis. 2d 774, 693 N.W.2d 104("a search authorized by consent is wholly valid unless that
consent is given while an individual is illegally seized."
(citing State v. Williams, 2002 WI 94, ¶¶19-20, 255 Wis. 2d 1,
646 N.W.2d 834)); see also United States v. Jerez, 108 F.3d 684,
694-96 (7th Cir. 1997). Here, however, we have concluded the
traffic stop was not extended and that Mr. Floyd was seized——
lawfully——when Deputy Ruffalo requested his consent to the
search.7
¶32 Requesting permission to search a person who has been
lawfully seized does not invalidate the person's consent. See
Schneckloth, 412 U.S. at 248-49 (consent given while seized
pursuant to a traffic stop was constitutionally valid); United
States v. Watson, 423 U.S. 411, 424 (1976) ("[T]he fact of
custody alone has never been enough in itself to demonstrate a
coerced confession or consent to search."). The routine act of
retaining an identification card or driver's license during a
7
The cases on which Mr. Floyd relies to invalidate his
consent all address the effect of an illegal seizure on the
voluntariness of the subject's consent. See Rodriguez v. United
States, 575 U.S. ___, 135 S. Ct. 1609 (2015) (unlawful seizure
because traffic stop impermissibly extended); State v. Hogan,
2015 WI 76, 364 Wis.2d 167, 868 N.W.2d 124 (illegal extension of
traffic stop can negate consent to a search); State v. Luebeck,
2006 WI App 87, ¶17, 292 Wis. 2d 748, 715 N.W.2d 639 ("[C]onsent
to search was tainted by the illegal seizure."). These cases
have no instructive value here because Mr. Floyd's seizure was
not unlawful.
19
No. 2015AP1294-CR
traffic stop, without more, is insufficient evidence of the type
of duress or coercion capable of making consent something less
than voluntary. If it were otherwise, it would be virtually
impossible to obtain consent to a search during a traffic stop.
We see no authority to support such a proposition, and Mr. Floyd
offers none. So retaining the identification card presented no
structural impediment to Deputy Ruffalo's request for permission
to perform a search; we continue with the inquiry into the
voluntariness of Mr. Floyd's response.
¶33 The record does not indicate Deputy Ruffalo employed
any misrepresentation, deception, or trickery in seeking Mr.
Floyd's consent. There is likewise nothing in the record
suggesting Deputy Ruffalo used any threats or physical
intimidation of any type in seeking Mr. Floyd's consent. Deputy
Ruffalo was the only officer conducting the search, there is no
indication Mr. Floyd was handcuffed or that Deputy Ruffalo
threatened to use them, there is no suggestion Deputy Ruffalo
drew his weapon, and the traffic stop and search occurred during
daylight hours with pedestrian and vehicular traffic nearby. As
to the remaining factors we are to consider, there is no
evidence regarding Mr. Floyd's physical or emotional condition
at the time. Similarly, there is nothing in the record
indicating Deputy Ruffalo informed Mr. Floyd he could withhold
20
No. 2015AP1294-CR
consent, but this factor is not sufficient, in and of itself, to
question the voluntariness of Mr. Floyd's consent.8
¶34 Under the totality of these circumstances, we conclude
the search was constitutionally sound because Mr. Floyd freely
and voluntarily consented to it. Deputy Ruffalo discovered the
illegal drugs while conducting a lawful search, so there was no
reason to suppress that evidence. Because we conclude Deputy
Ruffalo did not extend the traffic stop, we do not address the
State's alternative argument that Deputy Ruffalo had reasonable
suspicion of illegal drug activity sufficient to support an
extension.9
C. Ineffective Assistance of Counsel
¶35 Mr. Floyd claims he received ineffective assistance of
counsel because his trial counsel failed to call Officer White
(the "cover" officer) as a witness at the suppression hearing.
According to Mr. Floyd, Officer White's testimony would have
8
Although this is a factor to consider, it is not a sine
qua non to the voluntariness of a subject's consent to a search.
See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
9
The dissent focuses on whether the circumstances of Mr.
Floyd's stop were sufficient to create reasonable suspicion of
criminal activity. But there is no reason at all to address
this question unless Deputy Ruffalo extended the stop. The
dissent says he did, and he did it by calling and waiting for a
cover squad to arrive. Dissent, ¶80. But the dissent misses a
critical part of the factual record. The uncontradicted facts
show that the cover squad arrived while Deputy Ruffalo was still
filling out the citations. So it is impossible for this to have
extended the stop. Thus, the dissent lacks a raison d'être, and
so we do not address it further.
21
No. 2015AP1294-CR
revealed that Deputy Ruffalo did not ask Mr. Floyd for his
consent to the search, but rather that he advised Mr. Floyd he
was going to perform the search, thus rendering any consent
involuntary. See Johnson, 299 Wis. 2d 675, ¶16 ("Acquiescence
to an unlawful assertion of police authority is not equivalent
to consent." (quoting State v. Wilson, 229 Wis. 2d 256, 269, 600
N.W.2d 14 (Ct. App. 1999))).
¶36 The Sixth Amendment10 guarantees to a criminal
defendant "the effective assistance of counsel." Strickland v.
Washington, 466 U.S. 668, 686 (1984). We apply the two-prong
Strickland test when assessing a claimed violation of that
right. See, e.g., State v. Maday, 2017 WI 28, ¶54, 374
Wis. 2d 164, 892 N.W.2d 611. A successful attack on counsel's
performance requires that the defendant establish both that
trial counsel performed deficiently and that the deficiency was
prejudicial. See State v. Pitsch, 124 Wis. 2d 628, 633, 369
N.W.2d 711 (1985); see also Strickland, 466 U.S. at 697.
¶37 The first prong requires us to compare counsel's
performance to the "wide range of professionally competent
assistance." Strickland, 466 U.S. at 690. Only if his conduct
falls outside that objectively reasonable range will we find
deficient performance. State v. Thiel, 2003 WI 111, ¶19, 264
Wis. 2d 571, 665 N.W.2d 305. To show prejudice (the second
prong), a defendant must establish "a reasonable probability
10
See U.S. Const. amend. VI; Wis. Const. art. I, § 7.
22
No. 2015AP1294-CR
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Pitsch, 124 Wis. 2d at
642 (quoting Strickland, 466 U.S. at 694). If the defendant
fails to prove one element, it is unnecessary to address the
other. Strickland, 466 U.S. at 697.
¶38 Although trial counsel did not have Officer White
testify at the suppression hearing, he did offer the essence of
his story in his brief. Counsel juxtaposed Deputy Ruffalo's
report that he asked Mr. Floyd if he would allow a search with
Officer White's report that Mr. Floyd was told he would be
searched:
Deputy Ruffalo indicates he asked Mr. Floyd whether he
had any weapons and if he could search Mr. Floyd for
his (Deputy Ruffalo's) safety. Deputy Ruffalo
indicates that Mr. Floyd stated, "yeah, go ahead."
City of Racine Police Officer White (the cover
officer) reports something slightly different in
regards to the search. Officer White reports that
after having Mr. Floyd exit the vehicle, Deputy
Ruffalo told Mr. Floyd that before he could explain
the citations he was going to pat down Mr. Floyd for
weapons. Officer White indicates that after being
told he was going to be searched, Mr. Floyd stated
something similar to "go ahead."
The circuit court was not persuaded, instead finding as a
factual matter that Deputy Ruffalo asked for Mr. Floyd's
consent, and that Mr. Floyd consented.
¶39 At the postconviction hearing, Officer White reprised
the contents of his report and offered some related commentary.
He testified that, after arriving on the scene, he accompanied
Deputy Ruffalo to Mr. Floyd's vehicle where Deputy Ruffalo asked
Mr. Floyd to step outside. He then explained that "[Deputy]
23
No. 2015AP1294-CR
Ruffalo, he -- he asked him if he could do an external pat down
for weapons and which he consented." When asked whether this
was consistent with the report's indication that Mr. Floyd had
been "advised"11 he would be searched, Officer White responded
that Deputy Ruffalo "said he was going to pat him -- asked him
to pat him down for weapons . . . . He asked him for the most
part." He could not, however, remember the specific words
Deputy Ruffalo used, explaining that a cover officer "can't
always hear what's exactly going on between the officer and who
they are making contact with" because the cover officer
generally "kind of watch[es] who's driving the vehicle, you
watch the passengers inside the vehicle." When asked whether he
recalled Mr. Floyd's response to Deputy Ruffalo, he testified it
was his recollection that Mr. Floyd said something along the
lines of "go ahead."
¶40 Trial counsel also testified at the postconviction
hearing. He said he included information about Officer White's
incident report in the suppression motion but ultimately chose
not to call him as a witness because he was "happy as far as how
the evidence came out from the deputy, from Deputy Ruffalo, and
that he did not have a basis to continue his stop of Mr. Floyd."
11
The draft copy of Officer White's report in the Record
uses the word "advised" in reference to the pre-search exchange
between Deputy Ruffalo and Mr. Floyd; however, throughout his
briefing, Mr. Floyd states the report indicated Deputy Ruffalo
"told" Mr. Floyd he was going to perform a pat-down search. For
the purpose of this opinion, we use "advised" and "told"
interchangeably.
24
No. 2015AP1294-CR
He was concerned Officer White's testimony would "potentially
giv[e] additional information that potentially damaged where I
thought I was." Counsel further explained he thought he was
"doing pretty well" in terms of arguing Mr. Floyd could not
voluntarily consent because he was illegally seized at the time
Deputy Ruffalo requested consent. Although counsel could not
recall whether he discussed the ultimate decision not to call
Officer White with Mr. Floyd, he indicated it would have been
his normal practice to do so.
¶41 At the conclusion of the hearing, the circuit court
acknowledged "some dichotomy from [Officer] White's [incident]
report . . . as to what it meant" in terms of Deputy Ruffalo's
exchange with Mr. Floyd, but concluded that trial counsel's
decision not to call Officer White was "his tactical approach;
it was a reasonable approach . . . ." The circuit court also
acknowledged that "[w]e know now after Mr. White testified that
whatever [trial counsel] thought, [Officer] White would have
corroborated [Deputy] Ruffalo's version to that extent."
¶42 Trial counsel's performance was not deficient. It was
the State's burden to prove Mr. Floyd freely and voluntarily
consented to a search. We recognize that Officer White's report
created a potential ambiguity with Deputy Ruffalo's testimony,
something Mr. Floyd's counsel ably (albeit unsuccessfully)
exploited. And calling Officer White to the stand may have
removed the potential ambiguity——but this was a task for the
25
No. 2015AP1294-CR
State, if anyone. Mr. Floyd's counsel is not responsible for
clarifying the State's evidence.12 Indeed, had he done so, Mr.
Floyd might now be arguing his counsel was deficient because he
helped the State defeat his motion to suppress. We agree with
the circuit court that trial counsel's decision not to call
Officer White was a valid tactical choice and did not fall
outside "the wide range of professionally competent assistance."
See, e.g., State v. Felton, 110 Wis. 2d 485, 502, 329 N.W.2d 161(1983) (explaining that where "tactical or strategic decisions"
are "based upon rationality founded on the facts and the law[,]"
counsel will not be deemed to have provided ineffective
assistance of counsel). Therefore, Mr. Floyd did not suffer
ineffective assistance of counsel.
IV. CONCLUSION
¶43 Deputy Ruffalo did not extend Mr. Floyd's traffic stop
because the request to perform a search of his person was part
of the stop's mission. Mr. Floyd was lawfully seized at the
time of the request, and he provided his consent to the search
freely and voluntarily. This constitutionally-valid search
revealed illegal drugs in Mr. Floyd's possession, so the circuit
court properly denied his motion to suppress. And because Mr.
12
The seeming ambiguity created by Officer White's report
favored Mr. Floyd's argument because it was the State's burden
to demonstrate free and voluntary consent. If Mr. Floyd's
counsel had called Officer White to the stand, the seeming
ambiguity could have resolved against Mr. Floyd's position (as
it eventually did). Mr. Floyd's counsel was not responsible for
clarifying ambiguities that would assist the State's case.
26
No. 2015AP1294-CR
Floyd's trial counsel did not perform deficiently with respect
to Officer White's testimony, Mr. Floyd did not receive
ineffective assistance of counsel. Accordingly, we affirm the
court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
27
No. 2015AP1294-CR.awb
¶44 ANN WALSH BRADLEY, J. (dissenting). The court of
appeals acknowledged that the question of reasonable suspicion
here "is a very close call." State v. Floyd, 2016 WI App 64,
¶16, 371 Wis. 2d 404, 885 N.W.2d 165. I land on one side of the
line and the court of appeals' decision falls on the other.
¶45 Rather than focus on the "close call" of reasonable
suspicion, the majority avoids it entirely. Instead, it focuses
primarily on the case specific fact of whether Floyd gave actual
consent to the search. Majority op., ¶29 ("[W]hen a person
consents, the Fourth Amendment does not bar the
search . . . .").
¶46 The majority concludes that the traffic stop was not
extended because Mr. Floyd freely and voluntarily consented to
the search. Majority op., ¶34. It then determines that there
is no need to consider whether there was reasonable suspicion
because it has already concluded that the traffic stop was not
extended. Id.¶47 Yet, the strictures of the Fourth Amendment remain.
If the stop was unlawfully extended, then the consent was
likewise unlawful.
¶48 I write separately not merely because I disagree with
the court of appeals as to where the line should be drawn under
the facts of this case. Rather, I write also to express my
concern that the majority opinion, in lockstep with this court's
jurisprudence, continues the erosion of the Fourth Amendment.
It is through such erosion that implicit bias and racial
1
No. 2015AP1294-CR.awb
profiling are able to seep through cracks in the Fourth
Amendment's protections.
¶49 Because I conclude that the traffic stop was extended
beyond what was reasonably necessary to complete its mission and
because I determine that there was no articulable reasonable
suspicion of additional illegal activity to otherwise justify
the extension, I respectfully dissent.
I
¶50 The Fourth Amendment to the Unites States Constitution
provides that "[t]he right of the people to be secure in their
person, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause . . . ." As the United
States Supreme Court has observed, "[n]o right is held more
sacred, or is more carefully guarded . . . than the right of
every individual to the possession and control of his own
person, free from all restraint or interference by others,
unless by clear and unquestionable authority of law." Union
Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).
¶51 Implicit in the Fourth Amendment's protection from
unreasonable searches and seizures is its recognition of
personal liberty interests. Ker v. State of Cal., 374 U.S. 23,
32 (1963). Indeed, the Fourth Amendment "is to be liberally
construed and all owe the duty of vigilance for its effective
enforcement lest there shall be impairment of the rights for the
protection of which it was adopted." Id. at 33 (quotations and
citation omitted).
2
No. 2015AP1294-CR.awb
¶52 In this case, we address the Fourth Amendment's
protection against unreasonable searches and seizures in the
context of a traffic stop. "A routine traffic stop . . . is a
relatively brief encounter and 'is more analogous to a so-called
"Terry stop" . . . than to a formal arrest.'" Knowles v. Iowa,
525 U.S. 113, 117 (1998).
¶53 A Terry stop is a brief investigatory seizure of an
individual based on an officer's reasonable and articulable
suspicion that criminal activity is afoot. Terry v. Ohio, 392
U.S. 1, 20-21 (1968). Balancing public safety and personal
liberty, the Terry court required that an investigative stop be
based on "specific and articulable facts, which, taken together
with rational inferences from those facts, warrant that
intrusion." Id. at 21.
¶54 The Terry doctrine sprouted from the blatantly
suspicious behavior of two would-be jewelry thieves. Id. at 5.
Over the course of an afternoon, the defendants in Terry took
turns walking past a jewelry store, peering inside, and then
returning to their original spot on a nearby street corner. Id.¶55 Based on this pattern of behavior and thirty years of
experience detecting thievery in the neighborhood, the police
officer in Terry suspected that the men were "casing" the store.
Id. Believing that a "stick-up" was imminent and knowing that
"American criminals have a long tradition of armed violence,"
the officer seized and searched the men. Id.¶56 Given these particularized facts, the Terry court
concluded that "where a police officer observes unusual conduct
3
No. 2015AP1294-CR.awb
which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the
person with whom he is dealing may be armed and presently
dangerous . . . he is entitled for the protection of himself and
others in the area to conduct a carefully limited
search . . . ." Id. at 30. Under Terry, the inquiry focused on
the officer's "reasonable fear for his own or others' safety"
and allowed "a carefully limited search of the outer clothing of
such persons in an attempt to discover weapons which might be
used to assault him." Id.¶57 This court, in State v. McGill, 2000 WI 38, ¶21, 234
Wis. 2d 560, 609 N.W.2d 795, explained that "Terry does
not . . . authorize officers to conduct a protective frisk as a
part of every investigative encounter." Accordingly, "Terry
limits the protective frisk to situations in which the officer
is 'justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and
presently dangerous to the officer or to others.'" Id. (citing
Terry, 392 U.S. at 24).
¶58 In this case, we consider Terry in the context of a
traffic stop. When a traffic stop concludes or is extended
beyond what is reasonably necessary to complete its mission,
continued seizure becomes unlawful. Illinois v. Caballes, 543
U.S. 405, 407 (2005); Rodriguez v. United States, 135
S. Ct. 1609, 1614–15 (2015). An officer may expand the scope of
the inquiry "only to investigate 'additional suspicious factors
[that] come to the officer's attention.'" State v. Hogan, 2015
4
No. 2015AP1294-CR.awb
WI 76, ¶35, 364 Wis. 2d 167, 868 N.W.2d 124 (quoting State v.
Betow, 226 Wis. 2d 90, 94, 593 N.W.2d 499 (Ct. App. 1999)).
¶59 Like a Terry stop, the tolerable duration of police
inquiries in the traffic stop context is determined by the
seizure's "mission," which is to address the traffic violation
that warranted the stop and attend to related safety concerns.
Rodriguez, 135 S. Ct. at 1614. On-scene investigation into
other unrelated crimes deviates from the mission of the stop.
Id. at 1616. "So too do safety precautions taken in order to
facilitate such detours." Id.¶60 Indeed, even a de minimus extension that is not made in
furtherance of the mission of the traffic stop is an unlawful
extension. Id. As the Rodriguez court explained, common
seizure techniques may unlawfully extend a stop when they are
employed for reasons beyond the scope of the original stop. Id.¶61 Having set forth the law that is to guide our inquiry,
I turn now to the facts of this case.
II
¶62 Deputy Ruffalo ran Floyd's license plate at a
stoplight and discovered that the vehicle's registration was
suspended for an emissions violation. During this initial
contact, the deputy asked for Floyd's license and insurance
information. Floyd did not have either, but provided a
Wisconsin identification card. The deputy returned to his squad
car and asked dispatch if a canine unit or "cover squad" was
available while also processing citations for the registration,
license, and insurance violations.
5
No. 2015AP1294-CR.awb
¶63 The dispatcher informed the officer that a canine unit
was not available, but that a patrol officer would arrive to
serve as a "cover squad." When the second officer arrived at
the scene, the deputy explained that he wanted to have Floyd
exit the car because he "had some indications that there might
be some criminal activity going on in the vehicle as well as
explain the citations to him."
¶64 After the second officer arrived, the deputy returned
to Floyd's vehicle and asked him to get out of the car. Floyd
complied and the deputy then asked him if he had any weapons.
Floyd stated that he did not have any weapons. The deputy then
either asked for Floyd's consent to conduct a weapons pat down
or advised Floyd that he was going to conduct a weapons pat
down.1
¶65 According to the deputy's testimony at the suppression
hearing, he "assume[s] everybody has a weapon, everyone I come
in contact with." He further testified that every time he asks
a driver to step out of the vehicle, the first thing he does is
ask if he can search them.
¶66 The deputy patted Floyd down and found a bag
containing a small amount of marijuana and 15 pills of Vicodin.
Floyd filed a motion to suppress this evidence, arguing that the
1
Officer White, the second officer at the scene, wrote in
his original report that Deputy Ruffalo "advised" Floyd that he
would conduct a weapons search. He testified that his report
was accurate, but later testified that the deputy asked Floyd's
consent to conduct a search.
6
No. 2015AP1294-CR.awb
deputy illegally extended the stop and searched his person
without his voluntary consent.
¶67 At the suppression hearing, the deputy testified that
he had reasonable suspicion to request a canine unit and a
backup officer based on the following factors:
 Floyd was from Kenosha, WI;
 Floyd was alone in his vehicle;
 The time of day (6:45 p.m. during the summer);
 Floyd was stopped in a high crime area;
 Floyd's car had air fresheners in every vent; and
 The vehicle's windows were tinted.
Relying on these factors as a basis for reasonable suspicion,
the circuit court denied Floyd's motion to suppress.
III
¶68 In applying the law to the above facts, I begin with
an examination of whether there was reasonable and articulable
suspicion as to whether criminal activity was afoot. I address
next whether the traffic stop was extended beyond the scope of
the mission.
¶69 I quickly dispatch with the first three factors
proffered as support for reasonable suspicion because they
border on the ridiculous. If residing in Kenosha can serve as a
factor supporting reasonable suspicion that criminal activity is
afoot, then lord help us (and Kenosha). Likewise, warnings
should issue to all of those who drive alone in their vehicle,
lest it serve as a basis for a traffic stop. Finally, the
7
No. 2015AP1294-CR.awb
assertion that the time of 6:45 p.m. during the summer can serve
as a factor for reasonable suspicion is bewildering.
¶70 At the outset the first three factors fail because
they are simply unpersuasive in fact. The next three factors
fail because they are also unpersuasive under the law.
¶71 It is well established that "some quantum of
individualized suspicion is usually a prerequisite to a
constitutional search or seizure." United States v. Martinez-
Fuerte, 428 U.S. 543, 560 (1976). Thus, "circumstances must not
be so general that they risk sweeping into valid law-enforcement
concerns persons on whom the requisite individualized suspicion
has not focused." State v. Gordon, 2014 WI App 44, ¶12, 353
Wis. 2d 468, 846 N.W.2d 483.
¶72 This case raises concern regarding whether generic and
innocent factors may support reasonable and articulable
suspicion without the presence of particularized behaviors or
characteristics. Take, for example, the fact that the deputy
stopped Floyd in a high crime area. As this court has
recognized, "many persons 'are forced to live in areas that have
"high crime" rates or they come to these areas to shop, work,
play, transact business, or visit relatives or friends. The
spectrum of legitimate human behavior occurs every day in so-
called high crime areas.'" State v. Morgan, 197 Wis. 2d 200,
212, 539 N.W.2d 887 (1995) (quoting People v. Bower, 597
P.2d 115, 119, (Cal. 1979)).
¶73 In Illinois v. Wardlow, the Unites States Supreme
Court reasoned that "it was not merely respondent's presence in
8
No. 2015AP1294-CR.awb
an area of heavy narcotics trafficking that aroused the
officers' suspicion but his unprovoked flight upon noticing the
police." 528 U.S. 119, 124 (2000). It instructed that "[a]n
individual's presence in an area of expected criminal activity,
standing alone, is not enough to support a reasonable,
particularized suspicion that the person is committing a crime."
Id. Importantly, the Wardlow court did not just consider the
generic factor of the location of the stop, but also the
defendant's individualized flight behavior supporting reasonable
suspicion. Id.¶74 Likewise, when considering the presence of "an unusual
number" of air fresheners in a vehicle, this court determined
that when "combined with other facts," this may raise suspicion
and justify further inquiry. State v. Malone, 2004 WI 108, ¶36,
274 Wis. 2d 540, 683 N.W.2d 1. As in Wardlow, however, the
other facts considered by the Malone court involved
particularized conduct and circumstances.
¶75 When the defendants' vehicle in Malone was stopped for
speeding, the occupants appeared nervous and gave inconsistent
accounts of where they were going. Id., ¶¶36-39. Additionally,
one occupant said that the group was en route to a rave party
and that he was on probation for drug charges. Id.; see also
Rodriguez, 135 S. Ct at 1622-23 (noting the presence of
individualized circumstances in addition to air fresheners, such
as driving onto the shoulder of the road, the nervousness of the
passenger, and the passenger's improbable explanation of the
travel itinerary).
9
No. 2015AP1294-CR.awb
¶76 Finally, legally tinted windows ought not be a factor
when considering whether the totality of the circumstances
support a finding of reasonable suspicion. See, e.g., United
States v. Diaz, 977 F.2d 163, 165 n.5 (5th Cir. 1992). Indeed,
tinted windows are the epitome of a generic and innocent factor.
As the court of appeals acknowledged here, "a significant
portion of the population purchases vehicles with tinted windows
for completely lawful reasons, including a desire to protect the
interior of the vehicle from the sun and for greater privacy of
innocent occupants." Floyd, 371 Wis. 2d 404, ¶16 n.3. Although
it may have been a relevant factor before tinted windows became
commonplace, it no longer is today.2
¶77 Equally important to the factors that were present in
this case (a high crime area, air fresheners, and tinted
windows) are the factors that were absent. There is no evidence
in the record that Floyd exhibited any particularized behaviors
that factored into the totality of the circumstances here.
Unlike in Wardlow and Malone, there is no testimony of flight or
that Floyd was nervous or evasive. Indeed, Deputy Ruffalo
2
In writing this footnote, I observe the ten vehicles
parked outside the State Capitol Building beneath my chamber's
window. They include a Volvo, Mercedes, Plymouth, Chrysler,
Ford, Nissan, Hyundai, Lexus, Kia and Chevrolet. All of the
vehicles, save the Nissan, have noticeably tinted windows.
Indeed, all of the vehicles belong to elected public officials
or their staff. Once upon a time, tinted windows may have been
a useful factor to establish reasonable suspicion that criminal
activity was afoot. Because of the omnipresence of legally
tinted windows, that time has long since passed. For further
details regarding what constitutes an illegally tinted window,
see Wis. Admin. Code Trans. 305.32 and 305.34.
10
No. 2015AP1294-CR.awb
testified at the suppression hearing that Floyd was compliant
and cooperative with his orders and that Floyd made no furtive
movements at any point during the initial portion of the stop.
¶78 Ultimately, I part ways with the court of appeals
because all of the factors relied upon by the deputy are either
baseless or are generic and innocent factors. Additionally, the
record in this case is devoid of any particularized conduct or
circumstances that would support reasonable and articulable
suspicion that criminal activity is afoot.
¶79 Absent such reasonable and articulable suspicion, the
extension of the stop was unlawful. Pursuant to Rodriguez, "the
tolerable duration of police inquiries in the traffic stop
context is determined by the seizure's 'mission,'" which is to
address the traffic violation that warranted the stop and attend
to related safety concerns. 135 S. Ct. at 1614. Neither
calling dispatch for a canine unit nor calling and waiting for
backup was done in furtherance of the mission of the stop. This
began the stop's extension and set the stage for the later
chronological delays of the exit order and request for consent
to search.
¶80 Even a de minimus extension that is not made in
furtherance of the mission of the traffic stop is an unlawful
extension. Id. Not only was involving a second officer beyond
the scope of the traffic stop, but the deputy specifically
testified that he did not want to order Floyd out of his vehicle
or request consent to search until after the "cover squad" had
arrived. See id. (explaining that an investigation into other
11
No. 2015AP1294-CR.awb
crimes deviates from the mission of the stop, as do safety
precautions taken in order to facilitate such detours). By the
time that the deputy ordered Floyd out of his vehicle and
reportedly requested consent to search, the scope of the stop
had been extended beyond its original mission——to issue Floyd a
citation for a suspended registration due to an emissions
violation.
¶81 Contrary to the majority, I do not address the issue
of whether Floyd voluntarily consented to the search. In fact,
the majority's reliance on consent is misplaced. "Consent, even
when voluntary, is not valid when obtained through exploitation
of an illegal action by the police." Hogan, 364 Wis. 2d 167,
¶57. When consent to search is obtained after a Fourth
Amendment violation, evidence seized as a result of that search
"must be suppressed as 'fruit of the poisonous tree' unless the
State can show a sufficient break in the causal chain between
the illegality and the seizure of evidence." Id. (citation
omitted). The State has made no such showing here.
¶82 In sum, I conclude that the traffic stop was extended
beyond what was reasonably necessary to complete its mission.
Further, I determine that there was no reasonable and
articulable suspicion of additional illegal activity to
otherwise justify the extension.
IV
¶83 I turn now to address my concerns about the erosion of
the Fourth Amendment that may give rise to implicit bias and
racial profiling.
12
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A
¶84 We've come a long way since Terry v. Ohio, but we're
headed in the wrong direction. Originally intended to prevent
crime and protect officers through investigatory stops and
protective frisks based on reasonable and articulable suspicion,
Terry's legacy is becoming a progression of thinly veiled
refusals to meaningfully check the exercise of police power.
¶85 The continual dilution of Terry has led this court far
astray from individualized suspicion. The individualized facts
in Terry stand in stark contrast to the generic and innocent
factors present in this case. In Terry, the blatantly
suspicious behavior of two would-be jewelry thieves supported
reasonable suspicion after they spent an afternoon taking turns
walking past a jewelry store and peering inside. Here, the
traffic stop extension was justified not on the basis of any
particularized behavior, but on factors that might be present in
any case.
¶86 Although this court routinely pays homage to the
importance of Fourth Amendment protections, it appears often to
be only lip service. See, e.g., State v. Dumstrey, 2016 WI 3,
¶22, 366 Wis. 2d 64, 873 N.W.2d 502 ("[I]t is axiomatic that the
physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed.") (quotations and
citations omitted); State v. Kozel, 2017 WI 3, ¶40 ("Virtually
any intrusion[n] into the human body will work an invasion of
cherished personal security that is subject to constitutional
scrutiny.") (quotations and citations omitted).
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No. 2015AP1294-CR.awb
¶87 In the last two terms, this court is batting nearly
zero when it comes to upholding Fourth Amendment challenges in
criminal cases. Even if the challenge initially meets with
success, it ultimately loses because of an asserted subsequent
consent, or community caretaker exception or inevitable
discovery rule, or whatever.3
3
Fourth Amendment challenges in criminal cases include:
State v. Howes, 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812 (a
warrantless blood draw was constitutional under the exigent
circumstances exception); State v. Kozel, 2017 WI 3, 373
Wis. 2d 1, 889 N.W.2d 423 (a warrantless blood draw was lawful
because the EMT who drew the blood was acting under a
physician's direction, the blood was drawn in a constitutionally
reasonable manner, and the defendant did not object to the blood
draw); State v. Weber, 2016 WI 96, 372 Wis. 2d 202, 887
N.W.2d 554 (an officer's entry into the defendant's garage was
constitutionally reasonable under the hot pursuit exception);
State v. Jackson, 2016 WI 56, 369 Wis. 2d 673, 882 N.W.2d 422(the inevitable discovery doctrine applied because those
portions of the warrant affidavit that were not tainted
established constitutionally sufficient probable cause to search
the residence); State v. Parisi, 2016 WI 10, 367 Wis. 2d 1, 875
N.W.2d 619 (a warrantless blood draw was constitutional under
the exigent circumstances exception); State v. Matalonis, 2016
WI 7, 366 Wis. 2d 443, 875 N.W.2d 567 (a warrantless search of a
home was constitutional pursuant to the community caretaker
exception); State v. Dumstrey, 2016 WI 3, 366 Wis. 2d 64, 873
N.W.2d 502 (the locked parking garage underneath the defendant's
building was not curtilage and therefore the officer's
warrantless entry before the seizure did not occur in a
constitutionally protected area); State v. Iverson, 2015 WI 101,
365 Wis. 2d 302, 871 N.W.2d 661 (an officer may constitutionally
conduct a traffic stop for non-traffic civil forfeitures that do
not constitute crimes); but see State v. Blackman 2017 WI __, __
Wis. 2d __, __ N.W.2d __ (declining to apply the good faith
exception to the exclusionary rule). For a more comprehensive
history of this court's Fourth Amendment decisions, see
http://www.scowstats.com/2015/06/22/how-effective-are-fourth-
amendment-arguments-in-the-wisconsin-supreme-court/.
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No. 2015AP1294-CR.awb
¶88 The Fourth Amendment's protections, particularly its
warrant requirement, are not some left over relics of the 18th
century. Rather, they are as vital today as when they were
created. Yet, I have concerns that the Fourth Amendment's right
of freedom from warrantless search and seizures has become a
second class right, or worse, meaningless prose.
¶89 The Fourth Amendment is intended to provide a check on
the unbridled exercise of police power. It grew out of a demand
that search and seizure powers be restrained. The amendment
presents a reasonable yet delicate balance between the exercise
of police power against the exercise of personal liberty.
Courts are imbued with the responsibility to oversee this
balance and to provide this check——not a blank check.
B
¶90 Having addressed the erosion of the Fourth Amendment
and the dilution of the Terry doctrine, I turn to the concern
that this trajectory may be allowing implicit bias and racial
profiling to seep through cracks in the Fourth Amendment's
protections. Indeed, amicus in this case advances that the
requirement that reasonable suspicion be supported by
individualized, particularized circumstances discourages the use
of generic and innocent factors. It contends that such factors
perpetuate and magnify the effects of implicit racial bias.4 As
one commentator explained, Terry's focus on individualized facts
can be viewed as a "commitment and promise to minority
4
The Office of the Wisconsin State Public Defender filed a
helpful amicus brief.
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No. 2015AP1294-CR.awb
communities around the nation that the Supreme Court was
seriously concerned about police practices which rode roughshod
over individual rights." Gregory Howard Williams, The Supreme
Court and Broken Promises: The Gradual but Continual Erosion of
Terry v. Ohio, 34 Howard L. J. 567, 576 (1991).
¶91 In his concurring opinion in the court of appeals,
Judge Reilly also raised the concern that the trajectory of our
Fourth Amendment jurisprudence "has tacitly accepted the
profiling of suspects in the application of our reasonable
suspicion test." Floyd, 371 Wis. 2d 404, ¶29-30 (Reilly, J.,
concurring). He provided the following example:
Applying the Floyd facts to the 'objectively
reasonable suspicion' test dictates that a white,
suburban, soccer mom from Kenosha, driving alone at
6:45 p.m. in the month of July near the S.C. Johnson
plant in Racine, Wisconsin, with multiple air
fresheners (perhaps to mask the smell of old happy
meals, spilled milk, and soiled athletic gear), and
tinted windows (to protect the privacy of her
children) evidences reasonable suspicion that she is
involved in drug-related criminal activity.
Substitute young, black male for soccer mom in this
hypothetical and we have the facts of this case.
Id. He further cautioned that:
The issue is whether we as a judicial system have
tacitly accepted, condoned, and blessed the profiling
of our citizens by taking age and color of skin into
the 'objectively reasonable suspicion test' in order
to combat crime. An effective judicial system must be
true to its ideals; ideals which rest upon the
constitutional protection against unreasonable
government searches and seizures regardless of age or
skin color.
Id. I share Judge Reilly's concern and join in his caution.
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No. 2015AP1294-CR.awb
¶92 For the reasons set forth above, I respectfully
dissent.
¶93 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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