State v. Frederick S. Smith

• Court: Wisconsin Supreme Court
• Decided: January 9, 2018
• Docket: 2015AP000756-CR
• Status: Published

Opinion

2018 WI 2

SUPREME COURT OF WISCONSIN CASE NO.: 2015AP756-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Frederick S. Smith, Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 372 Wis. 2d 184, 888 N.W.2d 22 (2016 – Unpublished)

OPINION FILED: January 9, 2018 SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 5, 2017

SOURCE OF APPEAL: COURT: Circuit COUNTY: Dane JUDGE: Stephen E. Ehlke

JUSTICES: CONCURRED: DISSENTED: A.W. BRADLEY, J. dissents joined by ABRAHAMSON J. (opinion filed). KELLY, J. dissents joined by ABRAHAMSON, J. and A.W. BRADLEY, J. (opinion filed). NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-respondent-petitioner there were briefs by Tiffany M. Winter, assistant attorney general, with whom on the briefs were Brad D. Schimel, attorney general, and Lisa E.F. Kumfer, assistant attorney general. There was an oral argument by Tiffany M. Winter.

For the defendant-appellant there was a brief and oral argument by Christopher D. Sobic, assistant state public defender. 2018 WI 2 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP756-CR (L.C. No. 2014CF667)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner, FILED v. JAN 9, 2018 Frederick S. Smith, Diane M. Fremgen Clerk of Supreme Court Defendant-Appellant.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 REBECCA GRASSL BRADLEY, J. We are asked to decide

whether the police violated Frederick S. Smith's Fourth

Amendment rights when a police officer asked for his driver's license during a traffic stop even though reasonable suspicion

for the stop dissipated as the officer approached the car, or

when the police officer opened the passenger door after being

told the driver's door and window were broken. The Fourth

Amendment protects "against unreasonable searches and seizures,"1

1 The Fourth Amendment to the United States Constitution provides:

(continued) No. 2015AP756-CR

and our analysis focuses on what is reasonable in light of the

particular circumstances. See Terry v. Ohio, 392 U.S. 1, 21

(1968); see also Elkins v. United States, 364 U.S. 206, 222

(1960)("What the Constitution forbids is not all searches and

seizures, but unreasonable searches and seizures.").

¶2 We hold that when an officer conducts a valid traffic

stop, part of that stop includes checking identification, even

if the reasonable suspicion that formed the basis for the stop

in the first place has dissipated. See Rodriguez v. United

States, 135 S. Ct. 1609, 1615 (2015) ("Beyond determining

whether to issue a traffic ticket, an officer's mission includes

'ordinary inquiries incident to [the traffic] stop.'" (citing

Illinois v. Caballes, 543 U.S. 405, 408 (2005)); State v.

Williams, 2002 WI App 306, ¶1, 258 Wis. 2d 395, 655 N.W.2d 462

("We conclude the officer had the requisite reasonable suspicion

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.

Article I, § 11 of the Wisconsin Constitution likewise provides:

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.

2 No. 2015AP756-CR

to stop Williams's vehicle to determine if he was the suspect in

a domestic abuse incident. We also conclude that, because the

initial detention was lawful, the officer could properly ask

Williams his name and for identification even if she had already

decided he was not the suspect."). Asking for a driver's

license does not impermissibly extend a stop because it is part

of the original mission of the traffic stop. However, the

"ordinary inquiries," which are related in scope to the purpose

of a traffic stop, must be executed within the time it should

have reasonably taken to complete them. Rodriguez, 135 S. Ct.

at 1614.

¶3 We further hold the police officer's act of opening

the passenger door in order to effectively communicate with a

driver otherwise inaccessible due to the malfunctioning driver's

door and window did not constitute an unreasonable search

because the officer's actions, viewed objectively, would warrant

a person of reasonable caution to believe the action taken was

appropriate. See Terry, 392 U.S. at 21-22. Because Smith's stop was reasonably executed, we hold that no Fourth Amendment

violation occurred. The circuit court2 correctly denied Smith's

suppression motion. Accordingly, the decision of the court of

appeals3 is reversed and Smith's judgment of conviction stands.

2 The Honorable Stephen E. Ehlke, Dane County Circuit Court, presiding. 3 State v. Smith, No. 2015AP756-CR, unpublished slip op., ¶1, (Wis. Ct. App. Sept. 29, 2016) (per curiam).

3 No. 2015AP756-CR

I. BACKGROUND

¶4 On April 6, 2014, Madison Police Sergeant Bernard

Gonzalez's duties included monitoring a Madison neighborhood for

gang retaliation following what police believed to be gang-

related shots fired the previous night. At about 10:45 p.m.,

Gonzalez, while parked in the watch area, observed a car with

dark tinted windows drive by and stop in the middle of the

street for 10 to 15 seconds.4 This drew Gonzalez's attention

"because [the car] did not pull to the curb. It stopped in the

middle of the street."5 Then, a passenger got out of the car and

walked to apartment buildings, after which the car drove away.

Gonzalez followed the car, checked the license plate, and

learned the registered owner, Amber Smith, had a suspended

driver's license. Gonzalez activated the squad's lights to get

the car to pull over. The car did not pull over right away, but

proceeded to turn off the main street and turn again into a

parking lot before finally pulling into a parking space and

stopping. When Gonzalez was five-to-ten feet from the driver's door, he "was pretty sure" the driver was not Amber Smith

because the driver appeared to be a man. When the sergeant

4 The record indicates that at the preliminary hearing, held ten days after the stop, the sergeant testified Smith's car stopped in the middle of the road "[f]or about three minutes." At the suppression hearing, four months later, the testimony described the time as 10 to 15 seconds. This discrepancy does not affect our analysis. 5 The facts are presented in chronological order; all quoted testimony comes from the suppression hearing.

4 No. 2015AP756-CR

asked6 the driver, later identified as Frederick Smith, to open

the door or roll down the window, Smith shrugged his shoulders

and responded that both the door and window were broken. As is

his typical practice in a traffic stop with an inoperable

driver's side door and window, Gonzalez walked to the passenger

side of the car to speak "more effectively" with Smith. Smith

appeared to be cooperating and moving toward the passenger seat,

either activating the lock or reaching for the passenger door

handle. Gonzalez did not ask Smith to open the passenger side

door or window; rather, the sergeant put his hand on the door

handle, and testified that "together we opened the door."

"[Smith] reached over and worked the door handle." Gonzalez,

believing Smith was cooperating by moving toward the passenger

seat and trying to open the passenger door, testified that they

"simultaneously . . . opened the door."7

¶5 Smith admitted that he "was maneuvering to the

passenger seat" after telling Gonzalez the driver's door and

6 The record is unclear as to whether Gonzalez simply motioned for Smith to roll down the window and open the door or verbally asked Smith to do so. This uncertainty does not impact our analysis. 7 The circuit court initially noted: "So whether Sergeant Gonzalez first started to open the door or whether they opened it simultaneously, either way I conclude that under the Fourth Amendment reasonableness standards that it was a reasonable thing to do." When Smith's lawyer asked the circuit court to find "Gonzalez was the one that opened the door," the circuit court found that "the sergeant went to open the door and began to open the door." In doing so, the circuit court did not impugn the credibility of Gonzalez's testimony.

5 No. 2015AP756-CR

window were broken. Smith explained that "every day I use the

car, I pull on the handle to get out because the driver's side

don't open." Smith also said he stopped in that parking lot

because he lived in a building next to it.

¶6 With the door open, Gonzalez observed that Smith had

red, bloodshot eyes, and smelled of alcohol. When Gonzalez

asked Smith for his driver's license, Smith responded that his

license had been revoked. After conducting field sobriety

tests, Gonzalez arrested Smith and took him to the police

station where Smith refused to voluntarily give a blood sample.

Gonzalez obtained a warrant and transported Smith to the

hospital for the evidentiary blood test. Afterwards, Gonzalez

drove Smith to the Dane County Jail where he agreed to provide a

breath sample pursuant to the jail admitting procedures. The

breath test showed Smith's blood alcohol to be .38. The State

charged Smith with operating a motor vehicle under the influence

of an intoxicant, seventh offense.

¶7 Smith moved to suppress all evidence acquired from the traffic stop, arguing that when Gonzalez saw a man (rather than

a woman) driving the car, reasonable suspicion dissolved, and

the stop should have immediately ceased. He also argued

Gonzalez violated the Fourth Amendment when he opened the

passenger door without any lawful basis to do so. The trial

court denied Smith's motion and he pled guilty to operating a

6 No. 2015AP756-CR

motor vehicle under the influence, seventh offense, contrary to

Wis. Stat. §§ 346.63(1)(a) and 939.62(1)(b) (2015-16).8

¶8 Smith did not file a postconviction motion but

appealed to the court of appeals, arguing that all evidence

should be suppressed and his judgment should be vacated because:

(1) once Gonzalez saw a man (instead of a woman) behind the

wheel, reasonable suspicion for the initially lawful stop

evaporated, and the sergeant's failure to immediately release

Smith improperly extended the duration of the seizure; and (2)

the sergeant conducted an unlawful search in violation of the

Fourth Amendment by opening the passenger door without consent

or probable cause. The court of appeals declined to decide the

case on the merits; instead, it determined the State's response

to Smith's arguments on appeal were too cursory to warrant a

review on the merits. The court of appeals vacated Smith's

conviction and remanded the case to the circuit court ordering

it to grant Smith's suppression motion; it sua sponte ordered

that Smith be allowed to withdraw his plea. State v. Smith, No. 2015AP756-CR, unpublished slip op., ¶1 (Wis. Ct. App. Sept. 29,

2016) (per curiam). We granted the State's petition for review.

II. STANDARD OF REVIEW & APPLICABLE LAW

¶9 A suppression issue presents a question of

constitutional fact. See State v. Floyd, 2017 WI 78, ¶11, 377

Wis. 2d 394, 898 N.W.2d 560. "We review the circuit court's

8 All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated.

7 No. 2015AP756-CR

findings of historical fact under the clearly erroneous

standard. But the circuit court's application of the historical

facts to constitutional principles is a question of law we

review independently." Id. (internal citations omitted).

¶10 The reasonableness of a traffic stop involves a two-

part inquiry: first, whether the initial seizure was justified

and, second, whether subsequent police conduct "was reasonably

related in scope to the circumstances that justified" the

initial interference. See Terry, 392 U.S. at 19-20; see United

States v. Sharpe, 470 U.S. 675, 682 (1985). The mission of a

traffic stop includes "determining whether to issue a traffic

ticket" and the ordinary inquiries incident to the stop.

Rodriguez, 135 S. Ct. at 1615. As long as the initial stop was

lawful, requesting identification is a permissible part of the

dual mission of every traffic stop. Id. The ordinary inquiries

portion of the traffic stop's mission includes "checking the

driver's license, determining whether there are outstanding

warrants against the driver, and inspecting the automobile's registration and proof of insurance."9 Id.

9 The United States Supreme Court in Rodriguez v. United States, 135 S. Ct. 1609 (2015), distinguished between inquiries that are related to a traffic stop and those that are unrelated. It concluded that asking for identification is an ordinary inquiry that is related to the purpose of a lawful stop as part of its dual mission and the stop "may last no longer than is necessary to effectuate that purpose." Id. at 1614-15. Unrelated inquiries, such as a dog sniff, occurring after the dual mission has been completed, violate the Fourth Amendment unless supported by additional reasonable suspicion or probable cause. Id. at 1612-14.

8 No. 2015AP756-CR

III. DISCUSSION

A. Initial Stop and Ordinary Inquiries

¶11 Smith insists the circuit court should have suppressed

the evidence that led to his seventh drunk-driving conviction

because the officer unlawfully extended the duration of the

seizure by continuing to question Smith after reasonable

suspicion dematerialized. The State contends that because a

traffic stop's mission includes the ordinary inquiries, such as

checking a driver's license, an officer who lawfully stops a

vehicle should be able to complete that mission even if the

reason for the traffic stop ended during the officer's walk to

the stopped vehicle.10 The State is correct.

¶12 The United States Supreme Court recently reaffirmed

that a police officer's "ordinary inquiries," reasonably

executed during a lawful traffic stop—including "checking the

driver's license"—do not violate the Fourth Amendment because

these "routine measures" are "fairly characterized as part of

the officer's traffic mission." See Rodriguez, 135 S. Ct. at 1615. "Because the Fourth Amendment and Article I, § 11 provide

10 We note, however, that other facts of record in this case support ongoing reasonable suspicion that did not dissipate during this traffic stop and therefore provide further basis for upholding Smith's conviction. For example, Gonzalez could have issued a ticket to Smith under Wis. Stat. § 346.51 for stopping his car "upon the roadway." Nonetheless, because this case comes to us for a decision on whether an officer may continue with the ordinary inquiries when reasonable suspicion dissipates, our analysis focuses on that question. For the purposes of our analysis, we assume without deciding that reasonable suspicion had dissipated.

9 No. 2015AP756-CR

substantively identical protections, we have historically

interpreted this section of the Wisconsin Constitution in

accordance with United States Supreme Court interpretations of

the Fourth Amendment." State v. Asboth, 2017 WI 76, ¶11, 376

Wis. 2d 644, 898 N.W.2d 541. Thus, we apply Rodriguez's

interpretation of the Fourth Amendment.

¶13 There is no dispute that the initial seizure of Smith

(the traffic stop) was justified.11 Gonzalez had a legal basis

to stop the car Smith was driving. Specifically, Gonzalez

observed the driver of the car engage in suspicious activity in

an area being watched for gang retaliation; these concerns

prompted Gonzalez to run the license plate, which in turn came

back registered to an owner who could not be legally driving.

These facts provide reasonable suspicion sufficient to conduct a

traffic stop. See State v. Newer, 2007 WI App 236, ¶¶5, 7, 306

Wis. 2d 193, 742 N.W.2d 923 (reasonable suspicion exists to stop

a vehicle if an officer has knowledge the owner of the vehicle

has an invalid license); see also Floyd, 377 Wis. 2d 394, ¶20 ("Reasonable suspicion that a driver is violating a traffic law

is sufficient to initiate a traffic stop."). Thus, part one of

the two-part test we apply to determine whether a traffic stop

was reasonable is satisfied. See Terry, 391 U.S. at 19-20.

11 As this court acknowledged recently, "It is an unremarkable truism that a traffic stop is a seizure within the meaning of our Constitutions." State v. Floyd, 2017 WI 78, ¶20, 377 Wis. 2d 394, 898 N.W.2d 560.

10 No. 2015AP756-CR

¶14 We turn our attention to part two of the

reasonableness test——whether subsequent police conduct "was

reasonably related in scope to the circumstances that justified"

the initial interference. After Sergeant Gonzalez stopped

Smith, he approached the driver's door. Moments before reaching

the door, Gonzalez was "pretty sure" the driver was a man and

not Amber Smith, the woman identified as the registered owner,

who could not legally drive her car because her license had been

suspended. The State conceded that the reasonable suspicion

underpinning the traffic stop dissipated at that moment.

¶15 But in these particular circumstances, does the Fourth

Amendment require a police officer to freeze, do an about-face,

and walk away? Such a reaction is neither practical nor

required.12 According to the Supreme Court, the Fourth Amendment

does not compel such an about-face because the mission of any

lawful traffic stop includes routine measures like checking a

driver's license. See Rodriguez, 135 S. Ct. at 1615 (the

12 Justice Kelly asserts an officer can speak with the driver under these circumstances, but only to "inform him he was free to leave." Justice Daniel Kelly's dissent, ¶33. But, under Justice Kelly's analysis, any further contact with the driver is not permitted under the Fourth Amendment because the officer cannot continue the seizure past the moment reasonable suspicion dissipates. Justice Kelly can't have it both ways. The idiocracy of having to waive a driver off who has been legally seized without any explanation is another reason why the ordinary inquiries do not violate the Fourth Amendment. The officer must be able to complete the traffic stop by speaking with the driver, documenting a name for the officer's reporting requirements, and providing the stopped driver with the courtesy of an explanation for the seizure.

11 No. 2015AP756-CR

mission of a lawful traffic stop includes both "determining

whether to issue a traffic ticket" and conducting the ordinary

inquiries).

¶16 Before applying Rodriguez to the particular

circumstances in Smith's case, we first examine the conditions

surrounding the Supreme Court's holding in Rodriguez. In its

2014-15 term, the Supreme Court had before it petitions for

certiorari in two related cases: (1) Rodriguez v. United

States, 135 S. Ct. 1609 (2015), where the Eighth Circuit Court

of Appeals upheld Dennys Rodriguez's drug conviction arising

from drugs discovered by a narcotics dog after all the business

related to a traffic stop had been completed; and (2) People v.

Cummings, 2014 IL 115769, ¶¶1-2, 6 N.E.3d 725 (hereinafter

Cummings I), where the Illinois Supreme Court granted the

defendant's motion to suppress evidence police discovered during

a traffic stop. In Cummings I, an outstanding warrant for the

registered owner of the vehicle, who was a woman, generated

reasonable suspicion for the traffic stop. Cummings I, 6 N.E.3d 725, ¶5. As the officer approached the stopped vehicle,

however, the officer saw the driver was a man, not a woman.

Id., ¶7. All three levels of Illinois courts held that

suppression was appropriate because reasonable suspicion for the

lawful stop disappeared when the officer saw a man (not a woman)

behind the wheel. Id., ¶¶8-9. The Illinois Supreme Court held

that by asking the driver for identification, the officer

"impermissibly extended the stop." Id., ¶26.

12 No. 2015AP756-CR

¶17 Rodriguez and Cummings are both Fourth Amendment cases

involving traffic stops where defendants sought suppression of

evidence based on arguments that police unlawfully extended the

stop. Six days after the Supreme Court decided Rodriguez, it

vacated the judgment in Cummings I, and "remanded to the Supreme

Court of Illinois for further consideration in light of"

Rodriguez. See Illinois v. Cummings, 135 S. Ct. 1892 (Mem)

(Apr. 27, 2015).

¶18 On remand, the Illinois Supreme Court set forth the

Supreme Court's conclusions in Rodriguez:

 A dog sniff that prolongs a stop in an attempt to detect

evidence of wrongdoing is "not part of the officer's

'mission' for the stop."

 "The Court defined the mission of the stop as 'to address

the traffic violation that warranted the stop' and to

'attend to related safety concerns.'"

 The mission's safety concerns permit officers to make

"ordinary inquiries incident to [the traffic stop]."  "Typically such inquiries involve checking the driver's

license, determining whether there are outstanding

warrants against the driver, and inspecting the

automobile's registration and proof of insurance."

 Actions outside the mission of the stop that "measurably

extend the duration of the stop" "cause the stop to

become unlawful" unless reasonable suspicion supports the

extension.

13 No. 2015AP756-CR

 The Court drew a bright line against extending a stop

"with inquiries outside the mission of a traffic stop"

absent reasonable suspicion for the outside inquiries.

 The Court precisely defined what inquiries are part of

the traffic stop and what inquiries fall outside the

mission of a traffic stop.

See Cummings, 2016 IL 115769, ¶7, 46 N.E.3d 248 (hereinafter

Cummings II) (citations omitted). Based on the directives of

Rodriguez, the Illinois Supreme Court reversed its earlier

determination that the stop in Cummings I violated the Fourth

Amendment. Id., ¶13. Instead, it ruled a police officer may

lawfully check a driver's license even though reasonable

suspicion for the stop ended when the officer saw a man (not a

woman) behind the wheel. Id. The Illinois Supreme Court held

this did not render the seizure unreasonable because Rodriguez

recognized the purpose of a traffic stop includes the "ordinary

inquiries" of checking a driver's license. Id. In other words,

when a traffic stop is lawful at its inception, a police officer may complete the ordinary inquiries even if reasonable suspicion

"vanished upon seeing the defendant" because the purpose of the

stop is not concluded until the ordinary inquiries are

completed. Id., ¶18. "Such ordinary inquiries are part of the

stop's mission and do not prolong the stop, for fourth amendment

purposes." Id.

¶19 When the Supreme Court vacated the judgment in

Cummings I and remanded the case to the Illinois Supreme Court for further consideration in light of Rodriguez it signaled that 14 No. 2015AP756-CR

"ordinary inquiries" remain reasonable for the duration of an

otherwise lawful stop. The Illinois Supreme Court's

interpretation of Rodriguez in Cummings II is correct.

Rodriguez concludes that an officer's mission in conducting a

traffic stop includes "whether to issue a traffic ticket" and

the "ordinary inquiries incident to [the traffic stop]."

Rodriguez, 135 S. Ct. at 1615. These include: "checking the

driver's license, determining whether there are outstanding

warrants against the driver, and inspecting the automobile's

registration and proof of insurance." Id. The justification

for the ordinary inquiries is two-fold: (1) these checks serve

to enforce the traffic code by "ensuring that vehicles on the

road are operated safely and responsibly"; and (2) for officer

safety.13 Id. at 1615-16. The Supreme Court protected Fourth

Amendment rights by emphasizing that a traffic stop's mission

13 This court just last term acknowledged the "legitimate and weighty" concern for officer safety attendant to every traffic stop:

Traffic stops are "especially fraught with danger to police officers...." Rodriguez, 135 S. Ct. at 1616 (quoting [Arizona v.] Johnson, 555 U.S. [323, 330 (2009)]); see also [Pennsylvania v.] Mimms, 434 U.S. [106, 110 (1977)] ("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.").

Floyd, 377 Wis. 2d 394, ¶26.

15 No. 2015AP756-CR

should not extend beyond the amount of time reasonably required

to complete it, and an officer must proceed diligently, id. at

1616, thereby eliminating the potential for police to delay the

ordinary inquiries to delve into unrelated and undiscovered

criminal wrongdoing.

¶20 We return to the particular facts in Smith's case in

light of Rodriguez's conclusion that the lawfully initiated

traffic stop includes both considering whether to issue a ticket

and conducting the ordinary inquiries. When Gonzalez saw the

driver of the stopped car was a man, the first part of the

mission ended. Gonzalez would not be issuing a ticket to Amber

Smith for driving with a suspended license. The second mission

of the traffic stop, however, had not been performed——checking

the driver's license, registration, and insurance. To

accomplish this, Gonzalez followed his normal practice where a

driver's door does not work and walked around to the passenger

side of the car. Smith concedes he was moving over to the

passenger side and reaching for a handle on the passenger door. He even explained this is a movement he makes every time he has

to get in and out of the car. In fact, unless Smith planned to

sleep in the car, it is logical that Smith would get out of the

car because he had pulled into a parking spot in the lot where

his residence is located. Gonzalez thought Smith was struggling

to open the passenger door so he put his hand on the outside

door handle and pulled the door open. Upon opening the door,

Gonzalez learned Smith did not have a valid driver's license

16 No. 2015AP756-CR

either. It is at this point Gonzalez suspected Smith had been

driving drunk.

¶21 Thus, applying the directives from Rodriguez, we hold

the stop in Smith's case did not violate the Fourth Amendment.

The mission of the lawful traffic stop did not end when

reasonable suspicion dissipated because at that moment, the

sergeant had not completed the ordinary inquiries of checking

Smith's license, registration, and insurance. Before Gonzalez

could complete the ordinary inquiries incident to the stop, he

discovered Smith did not have a valid driver's license and saw

signs Smith had been driving drunk. At this point, the sergeant

had probable cause to extend the stop to investigate and

eventually arrest Smith for drunk driving.

¶22 In addition, the record shows Gonzalez acted promptly

in his attempt to accomplish the mission of this traffic stop;

there is nothing to suggest Gonzalez slothed through the mission

to fish for wrongdoing. We emphasize, as did the Rodriguez

Court, that "[a]uthority for the seizure thus ends when tasks tied to the traffic infraction are——or reasonably should have

been——completed." Rodriguez, 135 S. Ct. at 1614. Police

actions in all traffic stops will be scrutinized to ensure a

temporary detention "last[s] no longer than is necessary to

effectuate the purpose of the stop." Sharpe, 470 U.S. at 684;

Rodriguez, 135 S. Ct. at 1614. Neither the Fourth Amendment nor

the cases interpreting it require this traffic stop seizure to

end at the moment Gonzalez saw a man instead of a woman in the driver's seat. The Fourth Amendment presented no bar to 17 No. 2015AP756-CR

Gonzalez taking the minimally intrusive, routine measure of

checking the identification of the driver. Because Gonzalez did

so in a reasonable manner and within a reasonable amount of

time, Smith's stop was not unlawfully prolonged. See Rodriguez,

135 S. Ct. at 1615; see also, State v. House, 2013 WI App 111,

¶¶6, 9, 350 Wis. 2d 478, 837 N.W.2d 645 (concluding the purpose

of traffic stop ended when "everything related to the initial

stop" had been completed including running a check on

defendant's license and returning license to the defendant);

State v. Gammons, 2001 WI App 36, 241 Wis. 2d 296, 625

N.W.2d 623 (holding the purpose of the traffic stop had

concluded after the reason for the initial seizure had been

satisfied, the driver and the two passengers had provided

identification, and the officer had run computer checks on all

three).

¶23 Our conclusion that this traffic stop comports with

the Fourth Amendment is further supported by existing Wisconsin

case law. Before the United States Supreme Court decided Rodriguez, our court of appeals already decided that when "the

initial detention was lawful" an officer can properly ask for a

driver's name and identification card even when the officer "had

already decided" the driver "was not the suspect." See State v.

Williams, 2002 WI App 306, ¶1, 258 Wis. 2d 395, 655 N.W.2d 462.

In Williams, a police officer stopped a vehicle thinking the

driver was a wanted domestic abuse suspect named Demetrius

Phillips. Id., ¶¶2-3. The driver told the officer his name was Vernell Williams, but he did not have any identification to 18 No. 2015AP756-CR

prove his identity. Id. The officer called another officer who

knew a lot of people in the neighborhood to see if Williams'

identity could be verified. Id., ¶4. The second officer

confirmed that Williams was who he said he was. Id. At this

point, the police knew the driver was not the domestic abuse

suspect, but they had the dispatcher run his name and birthdate

anyway and found Williams did not have a valid driver's license.

Id. Further investigation led to the discovery of cocaine in

the car and Williams filed a motion to suppress the evidence.

Id., ¶¶4-5, 8. The court of appeals concluded the officer's

actions were lawful because the request for the driver's name

and identification was reasonable, even if the request came

after the officer realized the driver was not the suspect the

officer sought.14 Id., ¶18. The court of appeals further held

that when "Williams stated that he had no identification, there

was a reasonable ground for further detention," id., ¶22, based

on Wis. Stat. § 343.18(1)'s requirement that persons operating

14 The court of appeals also relied on a community caretaker vehicle case, State v. Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (Ct. App. 1990), in reaching its conclusion. See State v. Williams, 2002 WI App 306, ¶¶18-21, 258 Wis. 2d 395, 655 N.W.2d 462. We question whether Ellenbecker was properly decided but decline to address that specific issue as it is not dispositive here.

19 No. 2015AP756-CR

motor vehicles must have their driver's licenses with them.15

These routine measures are reasonable because they ensure the

driver has a valid license and they document the driver's

identity in case there is a complaint after the stop.

¶24 Smith distinguishes his case from Rodriguez because

reasonable suspicion for the traffic stop in that case continued

for the duration of the stop, whereas here, the State conceded

that reasonable suspicion dissipated as Sergeant Gonzalez

approached Smith's car. We need not guess whether the Supreme

Court would rule differently if faced with a case where

reasonable suspicion dissipated after a lawful stop but before

the ordinary inquiries could take place. The Supreme Court in

fact had that very case before it——Cummings I——concomitantly

with Rodriguez and although the Court never issued an opinion,

its procedural actions signal that the Fourth Amendment does not

compel an officer to prematurely terminate a lawful stop by

dispensing with the ordinary inquiries.

¶25 First, Rodriguez does not specifically limit its holding to a lawful stop where reasonable suspicion does not

dissipate. Given that the Supreme Court had before it both

Rodriquez——a case where reasonable suspicion remained until the

15 Wisconsin Stat. § 343.18(1)'s requirement that all drivers possess a driver's license while driving and display it "upon demand from any judge, justice, or traffic officer" further supports our opinion. It is reasonable to expect to show a driver's license when a police officer conducts a traffic stop.

20 No. 2015AP756-CR

ordinary inquiries had been completed, and Cummings——a case

where reasonable suspicion vanished before the ordinary

inquiries could be made, the Supreme Court most certainly would

have pointed out this distinction if the Court determined it

commands opposite Fourth Amendment outcomes.

¶26 Second, six days after deciding Rodriguez, the Supreme

Court vacated the judgment in Cummings I and told the Illinois

Supreme Court to reconsider its ruling. See Illinois v.

Cummings, 135 S. Ct. 1892 (Mem) (2015). Again, the Illinois

Supreme Court initially ruled in favor of the defendant in

Cummings I, holding that the police officer could not ask to see

his driver's license after reasonable suspicion vanished. See

Cummings I, 6 N.E.3d 725, ¶20. It is not logical or reasonable

for the Supreme Court to have vacated Cummings I if it believed

the Illinois Supreme Court reached the correct result. There

would be no reason to make the Illinois Supreme Court redo its

decision if the Supreme Court believed the law prohibits a

license check when reasonable suspicion dissipates before the officer speaks with the driver. That is what the Illinois

Supreme Court had already ruled. If the Supreme Court wanted to

limit the ordinary inquiries only to cases where reasonable

suspicion remained until those routine procedures were

completed, presumably the Court would have simply let the

Illinois Supreme Court ruling in Cummings I stand. If the

disappearance of reasonable suspicion extinguished an officer's

ability to proceed with ordinary inquiries, logically the

21 No. 2015AP756-CR

Supreme Court would have said so either in Rodriguez itself or

by writing an opinion in Cummings I.

¶27 Third, the Illinois Supreme Court's analysis in

Cummings II upon remand from the Supreme Court is sound. That

court certainly could have distinguished Cummings from Rodriguez

based on the vanishing reasonable suspicion factor, but did not.

A unanimous court interpreted Rodriguez and the Supreme Court's

granting, vacating, and remanding in Cummings I to mean a police

officer who lawfully stops a vehicle may engage in the ordinary

inquiries even if the reasonable suspicion initiating the stop

dissipates.

¶28 Fourth, our court of appeals recently interpreted

Rodriguez in the same way the Illinois Supreme Court did. In

State v. Cotter, No. 2015AP1916-CR, unpublished slip op. (Wis.

Ct. App. Aug. 25, 2016)(per curiam) a police officer stopped a

car based on information that the registered owner (a woman) had

a non-valid license.16 Id., ¶¶7, 9. The driver of the car,

however, turned out to be a man, not a woman. Id., ¶9. One of the car's passengers, Charles Cotter, challenged his narcotic

drug conviction resulting from the discovery of heroin on his

person during a pat-down search. Id., ¶¶10-14. Cotter argued

16 We note that State v. Cotter, No. 2015AP1916-CR, unpublished slip op. (Wis. Ct. App. Aug. 25, 2016)(per curiam) is an unpublished per curiam, which according to Wis. Stat. § 809.23(3) may not be cited by the parties. This court, of course, is not a party. Moreover, Cotter is cited for the fact that the decision exists rather than for reliance on its legal analysis and holding.

22 No. 2015AP756-CR

this evidence should have been suppressed because once the

officer saw the driver was a man, and not the woman with the

invalid license, the officer no longer had any valid reason to

extend the stop. Id., ¶14. That case also involved a broken

driver's-side window, resulting in the officer having to open

the passenger door to speak with the occupants. Id., ¶10. Our

court of appeals held that Rodriguez controlled and this stop

did not violate the Fourth Amendment because (1) the police

lawfully stopped the car based on the registered owner's invalid

license; and (2) even though the officer "could not issue a

ticket on the basis for which the stop was initiated" the

officer could "continue the stop for purposes of completing

routine matters such as gathering [the driver's] license

information, making attendant observations in the process."

Id., ¶18. The court of appeals concluded that the reasonable

suspicion that developed while the ordinary inquiries occurred

"provided a basis for the officers to extend the stop" and as a

result, the discovery of heroin during Cotter's pat-down did not violate the Fourth Amendment. Id., ¶19. Cotter correctly

points out that conducting the ordinary inquiries is not an

extension of the stop; it is part of the mission of the stop

itself. Discovering additional reasonable suspicion during the

ordinary inquiries can lead to a legal basis upon which to

extend the stop beyond the ordinary inquiries.

¶29 The three cases on which Smith heavily relies in

advancing his contrary position, Delaware v. Prouse, 440 U.S. 648 (1979), Florida v. Royer, 460 U.S. 491 (1983), and State v. 23 No. 2015AP756-CR

Coleman, 890 N.W.2d 284 (Iowa 2017), are either distinguishable

or not controlling.

¶30 First, Smith argues Delaware v. Prouse shows

Gonzalez's conduct violated his Fourth Amendment rights. Prouse

held that random traffic stops simply to check a driver's

license and registration absent any basis to stop the vehicle

violated the Fourth Amendment. 440 U.S. at 650. But this is

not what happened to Smith. Here, it is undisputed there was a

lawful basis to stop the car Smith drove.

¶31 Second, Smith turns to Florida v. Royer for its

holding that police may not detain a person for "longer than is

necessary to effectuate the purpose of the stop," and the

"methods employed should be the least intrusive means reasonably

available to verify or dispel the officer's suspicion in a short

period of time." 460 U.S. at 500. Royer involved an airport

traveler suspected of transporting narcotics in his suitcase.

Id. at 493-94. After approaching the traveler and questioning

him, undercover officers took him into a large closet with a desk and two chairs, where he was in essence under arrest. Id.

at 494-97. Smith's situation, unlike Royer, involved a traffic

stop based on reasonable suspicion. As already explained,

Rodriguez tells us the purpose and scope of any lawful traffic

stop includes both the officer's decision on whether to issue a

ticket (which Gonzalez could not do because reasonable suspicion

on that aspect dissipated), as well as the officer's completion

of ordinary inquiries (which Gonzalez was attempting to do when he saw signs that Smith was driving drunk). We are also not 24 No. 2015AP756-CR

persuaded by Smith's assertion that Gonzalez violated Royer's

requirement that an officer should use the "least intrusive

means" in an investigative detention. Smith argues the least

intrusive means here required Gonzalez to speak to Smith through

the closed and inoperable window. Even if we could agree that

requiring Gonzalez to shout through a closed window late at

night constitutes the least intrusive means, it is unreasonable

to expect Gonzalez to accomplish the ordinary inquiries through

a closed window. Under Pennsylvania v. Mimms, 434 U.S. 106, 110

(1977), an officer may ask a driver to step out of the car

during a traffic stop because "[e]stablishing a face-to-face

confrontation diminishes the possibility, otherwise substantial,

that the driver can make unobserved movements" which could

threaten the officer's safety. A face-to-face confrontation is

also necessary to accomplish the ordinary inquiries, as it would

be difficult if not impossible to check a driver's license,

registration, and insurance without having those documents in

hand. Requiring Gonzalez to accomplish the ordinary inquiries in the dark through a closed window is illogical and

unreasonable.

¶32 The third case Smith proffers to support his position

is State v. Coleman, 890 N.W.2d 284 (Iowa 2017). Coleman is a

post-Rodriguez case in which a sharply divided Iowa Supreme

Court held, based on the Iowa Constitution, that an officer

cannot conduct the ordinary inquiries if reasonable suspicion

dispels after the initially lawful stop. Id. at 285. The majority in Coleman rejected Rodriguez's recitation of the long- 25 No. 2015AP756-CR

established rule that ordinary inquiries are part of a lawful

traffic stop as "dicta." Id. at 300. Three Iowa Supreme Court

Justices dissented in Coleman, criticizing the majority for

disregarding Rodriguez, for ignoring Iowa's statute that

requires drivers to carry a driver's license and "display it

upon an officer's request," for overruling prior Iowa case law

consistent with Rodriguez, and for concluding for the first time

that the search and seizure provision in Iowa's Constitution

provides greater protection than the Fourth Amendment to the

United States Constitution. Id. at 301-05. We are not

persuaded by Coleman for several reasons. First, we are not

bound by Iowa law, particularly judicial interpretations of its

own constitution. Second, it applies an untenably cramped

interpretation of the holding in Rodriguez. Third, it ignores

the clear message the Supreme Court conveyed in its handling of

Cummings I, resulting in the Illinois Supreme Court's reversal.

Notably, Coleman is the only post-Rodriguez case in the country

to conclude that checking a driver's license during an initially lawful traffic stop constitutes an unreasonable seizure when

reasonable suspicion for the stop evaporates as the officer

approaches the stopped car.17 We agree with the dissenters in

17 Smith also cites numerous other state and federal cases he contends prohibit police from asking for identification if reasonable suspicion triggering the traffic stop dissipated as the officer approached the vehicle. All of these cases, however, pre-date the Supreme Court's decision in Rodriguez v. United States, 135 S. Ct. 1609 (2015).

26 No. 2015AP756-CR

Coleman in regarding an officer's request to see a driver's

license during a traffic stop as "completely unobjectionable

and, indeed, mundane" and therefore unquestionably

constitutional. Id. at 302.18

18 Justice Daniel Kelly's dissent conjures a law enforcement boogeyman but if speculation and storytelling determine the reasonableness of a police officer's actions, consider this reworked storyline:

Female driver (name unknown as the officer will not be permitted to ask): What are you stopping me for officer?

Officer Doe: I'm sorry. I stopped this minivan because it is registered to Mr. Jones whose license is suspended. But, you are not Mr. Jones. I apologize for any inconvenience. You are free to go.

Female driver drives away.

Officer Doe returns to his squad car and 30 minutes later hears a radioed alert to be on the lookout for a female suspect wanted for sex trafficking. There are warrants out for her arrest. The female is thought to be driving a minivan with six kidnapped girls. The suspect matches the description of the driver Officer Doe just let go. The female driver is never caught and five of the six girls are never heard from again. When the police locate the minivan, they find the sixth missing girl who has been badly beaten and drugged. She reports the girls were forcibly drugged and physically and sexually abused and further reveals the trafficker's plan to transport the girls overseas to be sold as sex slaves. The sixth girl later dies at the hospital during surgery to stop her internal bleeding.

(continued) 27 No. 2015AP756-CR

Justice Kelly's strawman overlooks a significant restraint on law enforcement: constitutional reasonableness. The parade of horribles Justice Kelly proffers is as probable as the proverbial boogeyman's existence. They are designed to frighten despite materializing only in imagination and myth. The principles declared today are not new. Nearly 40 years ago, the United States Supreme Court recognized that checking a driver's license during an otherwise lawful traffic stop constitutes a permissible inquiry. See Rodriguez, 135 S. Ct. at 1615 (citing Delaware v. Prouse, 440 U.S. 648, 658-660 (1979)). No court has expanded the ordinary inquiries incident to a traffic stop to include headlight, horn, or exhaust performance because the Fourth Amendment commands reasonableness. We think the typical scenario in Officer Doe's stop of Mrs. Brown's minivan would be:

Officer Doe: License and registration please.

Mrs. Brown: Yes Officer. Here it is. Did I do something wrong?

Officer Doe: The car you are driving is registered to a Mr. Jones whose license is suspended.

Mrs. Brown: Oh no. I borrowed this minivan to get these kids to soccer practice. The Jones' are my neighbors.

Officer Doe: Got it. Give me a couple minutes to clear this up.

Officer Doe goes back to the squad car and runs Mrs. Brown's license. He comes back moments later, returns Mrs. Brown's license, and says: "I'm sorry for the inconvenience. Everything checks out. You may be on your way."

It is often easy for a court, which has the luxury to study the cold transcripts and ponder the nuances of case law, to criticize an officer's split-second decisions in high crime areas late at night. But reasonableness cannot be measured with 20/20 hindsight; instead, "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments——in circumstances that are tense, uncertain, and rapidly evolving . . . " Graham v. Connor, 490 U.S. 386, 396-97 (1989). Sergeant Gonzalez's actions here were reasonable. (continued) 28 No. 2015AP756-CR

B. Opening of the Passenger Door

¶33 Smith also argues that opening the passenger door

constituted a separate Fourth Amendment event requiring

additional reasonable suspicion. We do not agree. Whether a

search or seizure is reasonable depends upon the particular

facts of each case, and what Gonzalez did under these facts was

reasonable. See South Dakota v. Opperman, 428 U.S. 364, 375

(1976) (citation omitted).19 Gonzalez approached the driver's

door and asked Smith to open the door or the window. Smith

responded that both were broken. As Gonzalez walked around to

the passenger door, Smith appeared to be cooperating and moving

toward the passenger seat, and seemed to be trying to open the

passenger door. The officer testified that Smith and he

simultaneously opened the door and that they opened it

19 Courts have recognized a variety of circumstances where a search of a car does not infringe upon the Fourth Amendment: (1) when the driver consents, see Florida v. Jimeno, 500 U.S. 248 (1991); (2) when an officer sees contraband in plain view, see State v. Buchanan, 2011 WI 49, ¶¶26-27, 334 Wis. 2d 379, 799 N.W.2d 775; (3) incident to an arrest, see Arizona v. Gant, 556 U.S. 332 (2009); (4) when an officer has probable cause to suspect a crime, see United States v. Ross, 456 U.S. 798 (1982); and (5) when a car has been impounded, see South Dakota v. Opperman, 428 U.S. 364 (1976). Police may also order the driver out of a vehicle for officer safety. See Pennsylvania v. Mimms, 434 U.S. 106 (1977); see also United States v. Stanfield, 109 F.3d 976, 981 (4th Cir. 1997) (recognizing certain circumstances in which opening at least one of the vehicle's doors is consistent with concerns of officer safety).

29 No. 2015AP756-CR

together.20 An officer may make reasonable inferences based on

the facts drawn from his experience. Terry, 392 U.S. at 21-22.

It was reasonable for Gonzalez to infer that Smith's movements

indicated he was willingly opening (or attempting to open) the

passenger door. The sergeant needed to communicate with and

identify the driver whom he had stopped and there was no avenue

to do that on the driver's side of the car due to the inoperable

driver's window and door.

¶34 Smith offers New Jersey v. Woodson, 566 A.2d 550 (N.J.

Super. Ct. App. Div. 1989), in support of his argument that

Gonzalez unreasonably opened the door. Smith's reliance on

Woodson is misplaced. We are neither bound by New Jersey

authority nor persuaded that it presents similar facts. In

Woodson, police conducted a traffic stop and immediately opened

the car door without making any attempt to speak with the

driver. Id. at 551. The New Jersey court held this police

conduct violated the Fourth Amendment. Id. at 552. Woodson's

facts are clearly distinguishable from Smith's. ¶35 Finally, Gonzalez's act of opening the passenger door

did not violate the Fourth Amendment because under all the facts

and circumstances, the action was reasonable and this intrusion

on Smith's personal liberty was an incremental, de minimus one.

See Mimms, 434 U.S. at 109-11. Under Mimms, a police officer

20 Again, we acknowledge the circuit court found it was the officer who opened the door. Nonetheless, the circuit court did not find the officer's testimony in this regard not credible.

30 No. 2015AP756-CR

has the right to a face-to-face encounter with a driver during a

lawful traffic stop. "[T]his additional intrusion can only be

described as de minimus." Id. at 111.21

IV. CONCLUSION

¶36 We acknowledge that the police are not infallible, and

a police officer may intentionally or unintentionally infringe

upon the constitutional rights of Wisconsin citizens. If that

happens, it is the duty of this court to impose consequences for

such violations. Terry, 392 U.S. at 12 ("[E]xcluding evidence

seized in violation of the Fourth Amendment has been recognized

as a principal mode of discouraging lawless police conduct.").

Likewise, when the police abide by the rules and act reasonably,

the Fourth Amendment is not violated and we must uphold

convictions.

¶37 The Supreme Court's most recent pronouncement on the

scope of constitutionally reasonable traffic stop seizures,

Rodriguez v. United States, 135 S. Ct. 1609 (2015), requires

upholding Smith's conviction. Rodriguez acknowledges that "ordinary inquiries" are part of the mission of every lawful and

reasonably executed traffic stop. The mission of such stops is

not completed until the police officer checks a driver's

identification, even if reasonable suspicion for stopping the

21 Justice Ann Walsh Bradley's dissent assumes that Smith had permission to drive his sister's car. See Justice Ann Walsh Bradley's dissent, ¶11. There is nothing in the record establishing that Smith had permission to drive his sister's car.

31 No. 2015AP756-CR

vehicle dissipates as the officer approaches the vehicle.

Further, the officer's act of opening the passenger door to

facilitate safe, face-to-face contact with the otherwise

inaccessible driver did not constitute an unreasonable search.

By the Court.—The decision of the court of appeals is

reversed.

32 No. 2015AP756-CR.awb

¶38 ANN WALSH BRADLEY, J. (dissenting). I join Justice

Kelly's dissent. However, I write separately because I

determine that the majority compounds its error when it departs

from the clear directive of Pennsylvania v. Mimms, 434 U.S. 106

(1977) (per curiam), extending the holding past its breaking

point and further eroding the protections of the Fourth

Amendment.

¶39 Contrary to the majority, I apply the clear precedent

and conclude that Smith's Fourth Amendment rights were violated

when Sergeant Gonzalez opened Smith's passenger side door

without a warrant or consent. Accordingly, I respectfully

dissent.

I

¶40 In Mimms, law enforcement officers pulled the

defendant over for driving a vehicle with an expired license

plate. Id. at 107. One of the officers approached the car and

asked the defendant to step out. Id. When the defendant did so, the officer noticed a bulge in his jacket, which turned out

to be a gun. Id. After the State indicted the defendant on two

weapons related offenses, the defendant moved to suppress the

gun as evidence. Id.

¶41 The United States Supreme Court concluded that the

police officers acted properly because law enforcement officers

are allowed to order occupants to exit a lawfully stopped

vehicle even if there is nothing unusual or suspicious about their behavior. Id. at 111. This court has recognized Mimms as

1 No. 2015AP756-CR.awb

establishing a clear directive, "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." State v.

Johnson, 2007 WI 32, ¶23, 299 Wis. 2d 675, 729 N.W.2d 182

(emphasis added); State v. Floyd, 2017 WI 78, ¶24, 377

Wis. 2d 394, 898 N.W.2d 560.

¶42 Therein lies the rub. As set forth in Justice Kelly's

dissent, the facts here do not support the conclusion that this

was "an otherwise valid stop." Indeed, the State conceded that

reasonable suspicion had dissipated when the officer realized

the male driver was not the female registered owner. Majority

op., ¶14.

II

¶43 Not only does the majority violate Mimms' clear

directive, it extends the holding beyond what is

constitutionally permissible. Mimms explains that law

enforcement officers may order occupants out of a vehicle during

a traffic stop. It does not suggest that police may open a vehicle door and invade the space inside absent a warrant. See

State v. Woodson, 566 A.2d 550, 552 (N.J. Super. Ct. App. Div.

1989) ("There is a significant difference between ordering one

out of a car and opening a car door without warning. In the

former case, the occupant has an opportunity, before opening the

door and leaving the car, to safeguard from public view matters

as to which he has a privacy interest").

¶44 The majority fails to acknowledge the limitations of Mimms and extends its holding past its breaking point, reading

2 No. 2015AP756-CR.awb

language into that opinion that is not present. Mimms does not

permit the officer's conduct in this case. Contrary to the

majority's assertion, Mimms does not imply that a police officer

has "the right to a face-to-face encounter." See Majority op.,

¶35. And, it certainly does not extend such a right once the

validity of the stop has been undermined because reasonable

suspicion has dissipated.

¶45 Rather, Mimms is limited to an officer verbally

ordering an occupant out of a vehicle. In determining that

Mimms allows an officer to not only order an occupant out of a

vehicle but to also invade the interior space of a vehicle by

opening the door, the majority departs from what is

constitutionally permissible and disregards the facts of this

case.

¶46 The Fourth Amendment protects against unreasonable

searches and seizures and focuses on the reasonable expectation

of privacy. U.S. Const., amend. IV; Katz v. United States, 389

U.S. 347, 360 (1967) (Harlan, J., concurring); State v. Bruski, 2007 WI 25, ¶22, 299 Wis. 2d 177, 727 N.W.2d 503; see also Wis.

Const. art I, § 11. Yet, the majority's conclusion ignores that

a defendant in Smith's position has a reasonable expectation of

privacy in the interior of a vehicle. See State v. Dixon, 177

Wis. 2d 461, 470, 501 N.W.2d 442 (1993) ("This relationship

[between the vehicle owner and the driver] and prior use of the

vehicle point to the defendant having an expectation of privacy

in the interior of the truck that society is willing to recognize as reasonable").

3 No. 2015AP756-CR.awb

¶47 The record reflects that the vehicle Smith was driving

belonged to his sister. A person who borrows a car and drives

it with the owner's permission has an expectation of privacy in

the interior of the vehicle which society is willing to

recognize as reasonable, especially where the owner of the car

is a family member.1 See id. at 470-72 (citing United States v.

Griffin, 729 F.2d 475, 483 n.11 (7th Cir. 1984), cert. denied,

469 U.S. 830 (1984) (accused who borrowed a car from his brother

had a protectable privacy interest in the vehicle)). Opening

the door of a vehicle is clearly contrary to this reasonable

expectation of privacy.2

¶48 With no reasonable suspicion remaining to support the

stop, the objective of the stop at the point Gonzalez opened the

door was simply to communicate with Smith. But this easily

could have been accomplished without invading the interior of

the car. The record reflects that Sergeant Gonzalez

successfully communicated with Smith through the closed door and

1 The record indicates that the prosecutor never contended that Smith used the vehicle without permission. During cross examination, Smith reiterated that the car was his sister's. The prosecutor did not elicit any testimony about consent and there is nothing in the record indicating that Smith's use of the vehicle was without his sister's permission. 2 I further observe that Officer Gonzalez violated the United States Supreme Court's decree that law enforcement must employ "investigative methods" that are the "least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Florida v. Royer, 460 U.S. 491, 500 (1983). The record does not support the assertion that opening Smith's passenger side door was the least intrusive means of completing the objective of the stop.

4 No. 2015AP756-CR.awb

window on the driver's side of the car and understood Smith's

responses without having to repeat himself. Why then was it

necessary to open the door?

¶49 Applying the clear precedent under the facts

presented, I conclude that Smith's Fourth Amendment rights were

violated when Sergeant Gonzalez opened Smith's passenger side

door without a warrant or consent.

¶50 Finally, I observe that once again a majority of this

court continues the trend of diminishing Fourth Amendment

protections we have seen in recent years. See Floyd, 377

Wis. 2d 394, ¶¶83-89 (Ann Walsh Bradley, J., dissenting). To

give meaning to the Fourth Amendment, we must use it as a check

on governmental power. This court's decision fails to provide

this check, instead giving law enforcement carte blanche to

detain individuals when there is no reasonable suspicion that

they have done anything wrong. The majority further gives

officers free reign to invade a space in which a person has a

reasonable expectation of privacy without a warrant or consent when less intrusive means of communication demonstrably suffice.

¶51 Accordingly, I respectfully dissent.

¶52 I am authorized to state that Justice SHIRLEY S.

ABRAHAMSON joins this dissent.

5 No. 2015AP756-CR.dk

¶53 DANIEL KELLY, J. (dissenting).

¶54 Frederick Smith is not a sympathetic character. This

case is here only because he was driving an automobile while

drunk——really drunk: his blood alcohol level was .38 when he

was arrested.1 This is not his first time, or even his second.

In fact, this is the seventh time he has been arrested and

convicted of driving while intoxicated. And because we can be

pretty confident that drunk drivers are not caught every time

they go abroad with too much alcohol in their system, it's

reasonable to believe that seven-time offenders make a habit of

putting at risk the lives of everyone around them. It is not

without reason that drunk drivers have been described as a

scourge. See, e.g., State v. Nordness, 381 N.W.2d 300, 307, 128

Wis. 2d 15 (1986) (describing drunk driving as "transform[ing]

an innocent user of a highway into a victim at any time . . . "

and as "a scourge on society"). To live in society peacefully,

we must have at least a minimal level of trust that our

neighbors won't habitually place us in mortal danger. We can

count ourselves fortunate that Officer Gonzalez apprehended Mr.

1 To put this in context, a person with a blood alcohol concentration of .31 (that is, less than Mr. Smith), is at risk of death by alcohol poisoning. See, e.g., National Institute on Alcohol Abuse and Alcoholism, Alcohol Overdose: The Dangers of Drinking Too Much, https://pubs.niaaa.nih.gov/publications/alcoholoverdosefactsheet /overdosefact.htm (last visited Dec. 1, 2017).

1 No. 2015AP756-CR.dk

Smith before he could maim or kill someone with the car he was

driving. The people of Wisconsin want drunk drivers to be

stopped. They need drunk drivers to be stopped.

¶55 None of that, however, has anything to do with the

proper understanding of the Fourth Amendment's proscription

against unreasonable searches and seizures. Whatever rule of

police conduct we derive from that provision must be just as

applicable to a soccer mom taking the neighborhood children to

practice as it is to habitual drunk drivers like Mr. Smith.

Indeed, the rule we announce today would probably benefit from

considering how it would apply in a legally identical but less

emotionally-fraught situation.

¶56 So let's consider the soccer mom, Mrs. Brown. Her

automobile is in the shop for maintenance, so Mrs. Jones (Mrs.

Brown's neighbor and best friend) lent her the family's minivan.

While Mrs. Brown is en route to soccer practice with a vehicle

full of children, Officer Doe runs the plates and discovers the

registered owner, Mr. Jones, has a suspended driver's license. Believing Mr. Jones is driving the minivan, he pulls it over.

Upon approaching the driver's window, he realizes his mistake.

But instead of apologizing for his interference with Mrs.

Brown's liberty, the following conversation takes place:

"Good afternoon, ma'am," said Officer Doe. "I pulled you over because I thought you were Mr. Jones. Obviously, I couldn't be more wrong. You needn't be alarmed——I don't believe you have broken any laws, nor does it appear you are contemplating doing so."

"Oh," replied Mrs. Brown, somewhat disconcerted. "Just so I understand, you presently have no

2 No. 2015AP756-CR.dk

reasonable suspicion to believe I have done anything wrong?"

"That is correct, ma'am."

"Then I may leave?" Mrs. Brown inquired.

"Actually, no," said Officer Doe. "You see, I'm curious about a few things. I want to know whether you have your driver's license with you. I'm also curious about whether it is valid, and whether there are any warrants for your arrest, or if there are any other reasons law enforcement might be interested in you."

"Please understand that I have no reason to believe you don't have a valid driver's license with you, or that law enforcement has any reason to be interested in you," Officer Doe continued. "And, of course, this has absolutely nothing to do with the reason I mistakenly pulled you over in the first place. However, a new Wisconsin Supreme Court decision, State v. Smith, says I can compel you to remain here until I finish satisfying my curiosity on these subjects." ¶57 That's enough of a vignette for the analysis. But

it's important to note that this is not the full extent of the

intrusion Officer Doe could command under these entirely

innocent circumstances. If our decision today is correct, he

could also have his narcotics-detection dog sniff the perimeter of the automobile to see if it would alert for the presence of

illegal substances while awaiting the report on Mrs. Brown.2 And

he could order Mrs. Brown out of the minivan.3 He could even

order all of the children to stand along the roadside while he

2 Illinois v. Caballes, 543 U.S. 405, 409 (2005). 3 Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per curiam).

3 No. 2015AP756-CR.dk

completed his "incidental" questioning.4 His authority to do all

of this comes not from anything Mrs. Brown did, but from a

mistake of Officer Doe's own making.5

¶58 This case requires us to identify the point at which

the Fourth Amendment says a traffic stop must end. Is it when

the purpose for initiating the stop is satisfied, or may a

police officer continue the seizure to pursue other objectives?

That is, must Officer Doe end Mrs. Brown's seizure when he

discovers she is not Mr. Jones, or may he maintain the seizure

to ask questions that have no connection to a reasonable

suspicion of wrongdoing?

¶59 In giving our imprimatur to the latter, we erred, and

significantly so. In adopting the constitutionally-unique

concept of a "dual mission" traffic stop, we created a mission

4 See Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609, 1615 (2015) (citing Mimms, 434 U.S. at 110-11 (no Fourth Amendment violation occurs where an officer orders "a driver, already lawfully stopped, to exit the vehicle") and Maryland v. Wilson, 519 U.S. 408, 413-15 (1997) (an officer may require passengers to exit a vehicle lawfully stopped for a traffic violation). 5 The court says my hypothetical is a strawman. Majority op., ¶32 n.18. A strawman is a debate technique in which one participant pursues a rhetorical advantage by positing and refuting an argument the other participant didn't make. All I have done with this vignette is remove the elements that make Mr. Smith an unsympathetic character and replace them with elements that make the subject of the seizure neutral or sympathetic——elements, that is, that should not affect our analysis. Because the court has identified no constitutionally- significant difference between Mrs. Brown and Mr. Smith, I disagree with its conclusion that this is a strawman.

4 No. 2015AP756-CR.dk

that allows a police officer to seize an individual without any

reasonable suspicion of wrongdoing. And we took this ground-

breaking step based largely on a "signal" we discerned from the

vacation of the Cummings I6 judgment by the United States Supreme

Court.

A

¶60 Let's start with this——we should never countenance a

traffic stop "mission" that is not tied to the Constitution.

Power bristles at restraint, which is why we chain it firmly to

constitutional anchor points. That is true whether the exercise

of power involves the taking of personal property for public

use, or inhibiting speech or publications, or the possession of

arms, or conducting a traffic stop. We may disagree about the

length of the chain, but we have always agreed that the

Constitution must hold its anchor. Until today. Today we have

dual mission traffic stops in which one mission is tethered to

the Fourth Amendment and the other is not.

¶61 The first mission we describe in our opinion is the conventional one, the one which we have always understood to be

inexorably linked to the purpose for the traffic stop, and thus

to the Constitution. Notwithstanding our suggestion to the

contrary, Rodriguez didn't say a single word from which we may

infer the existence of any other mission. It started with the

6 Like the majority, I will refer to People v. Cummings, 6 N.E.3d 725 (Ill. 2014), vacated, 135 S. Ct. 1892 (2015), as "Cummings I." I will likewise refer to People v. Cummings, 46 N.E.3d 248 (Ill. 2016) as "Cummings II."

broad observation that "[l]ike a Terry[7] stop, 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[.]" Rodriguez v. United States, 575 U.S. ___,

135 S. Ct. 1609, 1614 (2015) (citations omitted). And it

recognized that "'[t]he scope of the detention must be carefully

tailored to its underlying justification.'" See id. (quoting

Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion)).

The underlying justification that defines the scope of the

detention is the event that caused the officer to initiate the

stop: "Because addressing the infraction is the purpose of the

stop, it may last no longer than is necessary to effectuate that

purpose." Rodriguez, 135 S. Ct. at 1614 (internal marks and

citation omitted). From this the Rodriguez Court concluded that

the authority for a traffic stop cannot outlast its purpose:

"Authority for the seizure thus ends when tasks tied to the

traffic infraction are——or reasonably should have been—— completed." Id. Most importantly to our decision today,

Rodriguez confirmed that even if a seizure was constitutional

when it began, it can lose this status if it continues after the

purpose for the stop has been satisfied. "[A] traffic stop 'can

become unlawful if it is prolonged beyond the time reasonably

required to complete th[e] mission' of issuing a warning

ticket." Id. at 1614-15 (quoting Illinois v. Caballes, 543

7 Terry v. Ohio, 392 U.S. 1 (1968).

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U.S. 405, 407 (2005)). Everything Rodriguez said about the

traffic mission——everything——describes it in terms of the

singular mission we have always ascribed to a valid traffic

stop, to wit, the investigation of an officer's reasonable

suspicion of wrongdoing. As discussed at length, infra,

"officer safety" and "the usual inquiries" have always been

incidents to the purpose of the traffic stop, and Rodriguez said

not a single word to the contrary.

¶62 And everything Rodriguez said about the constraining

chain refers back to the constitutional anchor: Reasonable

suspicion of wrongdoing. That, and that alone, is what defines

the purpose of the stop. That purpose, in turn, defines "the

tolerable duration of police inquiries." And the tolerable

duration of police inquiries defines, in its own turn, the

uttermost extent of the authority to seize a person. If the

seizure goes beyond that, the police are on forbidden ground.

Link by link by link, courts test the soundness of the

connection between the constitutional anchor and the exercise of power. This has been the state of the law for long enough to

consider it settled. Inasmuch as Rodriguez did nothing but

recite these principles, we can safely conclude it hasn't

disturbed the chain's continued integrity. And nothing in that

recitation of well-established principles hints at the existence

of a companion mission.

¶63 The second mission, the one we created today, breaks

the link to the constitutional anchor point. This mission is triggered by a constitutional traffic stop, but after its

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genesis it lives separately and apart from the purpose of the

stop and, hence, its constitutional limits. We called this

second mission into existence by promoting the "usual

inquiries,"8 which used to occupy the lowly office of incidents

to a traffic stop, all the way up to a rank of equal dignity

with the purpose of the traffic stop itself.

¶64 Rodriguez referred to these usual inquiries as

"incident to the traffic stop." 135 S. Ct. at 1615 (citation,

brackets, and internal quotation marks omitted). So did

Caballes, in which the court observed that "the duration of the

stop in this case was entirely justified by the traffic offense

and the ordinary inquiries incident to such a stop." 543

U.S. at 408; see also Berkemer v. McCarty, 468 U.S. 420, 439

(1984) ("Typically, this means that the officer may ask the

detainee a moderate number of questions to determine his

identity and to try to obtain information confirming or

dispelling the officer's suspicions.").

¶65 As "incidents" to a traffic stop, the usual inquiries are logically and constitutionally subordinate to the purpose of

the stop. An incident does not exist on the same plane as its

premise. That is true as a matter of definition. An incident

is "something dependent upon, appertaining or subordinate to, or

accompanying something else of greater or principal importance."

Incident, Webster's Third New International Dictionary (1986).

8 The usual inquiries, of course, refer to a police officer's request to see a person's driver's license and proof of registration and insurance.

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Because the usual inquiries, according to Rodriguez and

Caballes, are incidents to a traffic stop, they can have no

independent existence. In the world of logic, that's what it

means to be dependent on something. That's why a seizure that

begins with a constitutional basis can become unconstitutional:

"[A] traffic stop 'can become unlawful if it is prolonged beyond

the time reasonably required to complete th[e] mission' of

issuing a warning ticket." Rodriguez, 135 S. Ct. at 1614-15

(quoting Caballes, 543 U.S. at 407).

¶66 Therefore, by main force of precedent and logic, the

usual inquiries cannot be made after the purpose for the traffic

stop——investigation of a reasonable suspicion of wrongdoing——no

longer exists. The usual inquiries are thereby subjected to

constitutional restraint, but only because they are subordinate

to the purpose of the traffic stop, which is textually bound to

the Fourth Amendment.

¶67 That is why we had to give the usual inquiries a

promotion. As mere incidents they can have no existence beyond the purpose of the traffic stop. If Officer Doe is to

authoritatively maintain Mrs. Brown's seizure after the

dissipation of reasonable suspicion (the constitutional anchor

point), the usual inquiries must be more than incidents. We

accomplished the promotion with some clever melding of our voice

with Rodriguez. We said that Rodriguez "concluded that asking

for identification is an ordinary inquiry that is related to the

purpose of a lawful stop as part of its dual mission and the stop 'may last no longer than is necessary to effectuate that

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purpose.'" Majority op., ¶10 n.9 (quoting Rodriguez, 135

S. Ct. at 1614-15). Placing "dual mission" in the sentence

where we did suggests that Rodriguez says the "purpose" of the

stop includes both the traffic infraction and the desire to make

the ordinary inquiries. Notwithstanding our voice-melding,

however, Rodriguez still says the purpose of the stop is to

address the traffic infraction.

¶68 With this promotion from "incident" to parity with the

"purpose of the traffic stop," we freed the usual inquiries from

their constitutional anchor point. We observed that "[w]hen

Gonzalez saw the driver of the stopped car was a man, the first

part of the mission ended." Majority op., ¶20. That is to say,

the mission anchored in the Fourth Amendment ended. But because

of the promotion, Officer Gonzalez didn't need to end the

traffic stop: "The second mission of the traffic stop, however,

had not been performed——checking the driver's license,

registration, and insurance." Id. So we concluded that "[t]he

mission of the lawful traffic stop did not end when reasonable suspicion dissipated because at that moment, the sergeant had

not completed the ordinary inquiries of checking Smith's

license, registration, and insurance." Majority op., ¶21. Et

voilà: The advent of a traffic mission that allows a police

officer to seize a person with no reasonable suspicion of

wrongdoing whatsoever.

¶69 This should shock us. The "reasonable suspicion"

requirement is not an archaic formula to which we give rote obeisance. It is, instead, the only textual link to the Fourth

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Amendment's promise that we shall be free of "unreasonable"

seizures. This is the stuff of our deepest bedrock principles:

"[A person] may not be detained even momentarily without

reasonable, objective grounds for doing so . . . ." Royer, 460

U.S. at 498. Courts have spent decades fine-tuning what this

principle means in the context of traffic stops. They have

scrupled over, for just a few examples, whether the officer may

require drivers to exit their vehicles,9 or make passengers exit

a vehicle,10 or request permission to perform a pat-down search,11

or ask questions unrelated to the traffic stop,12 or conduct a

canine sniff,13 or extend the stop based on discoveries made

while reasonable suspicion exists.14 We went through this very

exercise just last term, when we said:

[W]e draw the line between traffic stops of proper duration and those that extend into unconstitutional territory according to functional considerations. . . . 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. . . . He steps across that line (again speaking generally) when he maintains the seizure

9 Mimms, 434 U.S. 106. 10 Wilson, 519 U.S. 408 (1997). 11 Arizona v. Johnson, 555 U.S. 323 (2009). 12 Id. 13 Rodriguez, 135 S. Ct. 1609; Caballes, 543 U.S. 405. 14 State v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App. 1999).

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after he has completed all the necessary functions attendant on the traffic stop. State v. Floyd, 2017 WI 78, ¶22, 377 Wis. 2d 394, 898 N.W.2d 560

(internal citations omitted; emphasis added). In all of this,

the courts microscopically examined the purpose of the stop so

that they could identify the point at which it must end.

¶70 Identifying the end point of the second mission

requires no such fastidiousness. This mission is not based on

"reasonable, objective grounds" to believe legal mischief is

afoot. Until today, those grounds had always been the

constitutional anchor to which we tethered the exercise of an

officer's power during a traffic stop. And it is the anchor we

now discard. This mission has no textual link to the Fourth

Amendment, so our new "usual inquiries" jurisprudence sets us at

odds with Royer (and the rest of the Fourth Amendment "seizure"

canon): The police may detain a person without "reasonable,

objective grounds" for doing so.

¶71 This frees traffic stops from constitutionally-defined

limitations on at least two dimensions——length and content. In

the pre-Smith world, the duration of the stop was subject to an

externally imposed limitation——it could last no longer than

necessary to investigate the officer's reasonable suspicion of

wrongdoing. The second mission has no such limitation. So how

long may it last? Well, we said "the 'ordinary inquiries,'

which are related in scope to the purpose of a traffic stop,

must be executed within the time it should have reasonably taken

to complete them." Majority op., ¶2. In other words, the inquiries must be executed in the time it takes to execute them.

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We also said that Rodriguez "signaled that 'ordinary inquiries'

remain reasonable for the duration of an otherwise lawful stop."

Majority op., ¶19.15 Which is a different way of saying the same

thing. One of the problems with defining an activity's lawful

boundary in terms of how long the activity lasts is that it is

not possible to cross the boundary. Ever. That's the "limit"

we set today on the second part of our brand new dual mission.

¶72 The reason we have traditionally required a

constitutional anchor point is so that we may have a boundary

that is not self-referential. That is, we tie the duration of

the traffic stop to its purpose, and then we tie the purpose to

the reasonable suspicion that inspired the stop, and then we tie

the reasonable suspicion to the Fourth Amendment's text by

observing that it prevents unreasonable seizures. Thus, the

temporal aspect of the seizure had a constitutional anchor and

limit that was not self-referential. That's part of what we

lose today. Because the usual inquiries no longer require the

existence of any reasonable suspicion of wrongdoing, there is no

15 The meaning of this statement is not entirely clear. On its face, its reference to an "otherwise lawful stop" seems to undermine (in the space of three words) the entire rationale of the opinion. The only "otherwise" about the lawful duration of the traffic stop was the existence of reasonable suspicion, which everyone acknowledges ran out before the officer engaged in the usual inquiries. That would mean the inquiries in this case were extra-constitutional. The other potential reading of the statement makes it appear we are defining the lawful duration of the stop in terms of how long it takes to conduct the inquiries. That doesn't help at all. One can't measure something by reference to itself. If someone asks after the height of our Capitol and we say it is one Capitol high, we have been perfectly accurate while conveying exactly no information.

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link between them and the Fourth Amendment. So they may last as

long as they last. We may eventually encounter a case in which

the amount of time the officer took to make the ordinary

inquiries will make us uncomfortable. But when we try to

explain why the seizure lasted too long, we'll find that we have

put our constitutional measuring stick beyond our reach. It is

not immediately apparent what will take its place.

¶73 The same is true with respect to the contents of the

"usual inquiries." These aren't spelled out in the

Constitution, and we've not given much attention to their

content because an officer may question drivers even on

unrelated subjects so long as they do not extend the traffic

stop. See Rodriguez, 135 S. Ct. at 1614-15. The Supreme Court

explained that the usual inquiries are justifiable "incidents"

of a traffic stop because they "serve the same objective as

enforcement of the traffic code: ensuring that vehicles on the

road are operated safely and responsibly." Id. at 1615. As

incidents, there was an external limitation on how far the police could go in "enforc[ing] the traffic code" during a

traffic stop, to wit, the amount of time within which there was

reasonable suspicion of wrongdoing.

¶74 Because we have elevated the usual inquiries beyond

the status of incidents, however, there is no longer any

external limitation on how far they can go. If demanding

presentation of a driver's license during a traffic stop is

constitutionally permissible because it "serves the same objective as enforcement of the traffic code," then it must

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certainly be true that ascertaining compliance with the actual

traffic code can be no less constitutional.

¶75 Our opinion teaches that the traffic stop does not end

until inquiries related to the safe and responsible operation of

the vehicle have been conducted. Enterprising officers may

teach us, in turn, that there is a whole lot more to the safe

and responsible operation of a vehicle than a driver's license

and proof of registration and insurance. See, e.g., Wis. Stat.

§ 347.10(2) (describing the required performance of headlights);

Wis. Stat. § 347.13 (describing the required performance of

taillights); Wis. Stat. § 347.39(2) (describing required exhaust

system performance and safety requirements); Wis. Stat.

§ 347.36(1) (describing required brake system performance); Wis.

Stat. § 347.38(1) (describing the horn's required performance);

Wis. Stat. § 347.40 (describing the required performance of

rear-view mirrors). Each of these traffic-code provisions is at

least as closely related to the safe and responsible operation

of a vehicle as possession of a driver's license. ¶76 Perhaps the court will say that inquiring into these

aspects of the safe and responsible operation of a vehicle is

not part of what we call "usual." Which would be both true and

irrelevant. The "usual inquiries" are usual not because the

Constitution says they are, but because the judiciary says they

are. The only limitation any court has ever placed on them is

that they must be related to the safe and responsible operation

of vehicles, and that they be incidents to the traffic stop. We've removed the latter limitation, so we are free to give the

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"usual" label to as many inquiries as we wish, so long as they

comply with the "safe and responsible operation" boundary.

¶77 The court says this should present no worries because

the usual inquiries are subject to the constraint of

"constitutional reasonableness." Majority op., ¶32 n.18. I had

thought this type of reasonableness consisted of "reasonable"

suspicion of wrongdoing. Our opinion today says that's wrong

(or at least incomplete), so it would have been helpful if we

had described the parameters of this constraint and identified

its reference point in the Constitution. The police and our

courts will need this guidance.

B

¶78 Authorizing a police officer to seize an individual

when there is no reasonable suspicion of wrongdoing is enough to

send a tremor through the foundation of the Fourth Amendment.

If the United States Supreme Court had explicitly commanded such

a result, we would be justified in questioning whether the

Fourth Amendment's terms really are congruent with Article I section 11 of the Wisconsin Constitution.16 But we aren't

responding to an explicit command here——we're reading a

"signal."

16 "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.

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¶79 Our opinion carefully avoids an independent analysis

of whether Rodriguez is truly responsible for this seismic

event. Instead, we focus on environmental factors at the time

of the Court's decision: "Before applying Rodriguez to the

particular circumstances in Smith's case, we first examine the

conditions surrounding the Supreme Court's holding in

Rodriguez." Majority op., ¶16. One of the conditions was the

Supreme Court's treatment of an Illinois Supreme Court case

involving the same issue we are addressing. See majority op.,

¶¶16-19; see also People v. Cummings, 6 N.E.3d 725 (Ill. 2014),

vacated, 135 S. Ct. 1892 (2015). We concluded that "[w]hen the

Supreme Court vacated the judgment in Cummings I and remanded

the case to the Illinois Supreme Court for further consideration

in light of Rodriguez it signaled that 'ordinary inquiries'

remain reasonable for the duration of an otherwise lawful stop."

Majority op., ¶19.17 And then we adopted the Cummings II

analysis of Rodriguez as our own. Id. ("The Illinois Supreme

Court's interpretation of Rodriguez in Cummings II is correct.").

¶80 Armed with the Rodriguez "signal" and Cummings II, we

decided the merits of this case. That puts a premium on the

incisiveness of the Cummings II opinion. But it appears the

Illinois Supreme Court also relied on signaling. In relevant

part, the court said:

17 This statement is substantively problematic apart from the importance it attaches to a Supreme Court "signal." See supra note 15.

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The seizure's mission consists of the purpose of the stop——in Rodriguez, traffic enforcement——and "related safety concerns." Those related safety concerns include "'ordinary inquiries incident to [the traffic] stop,'" and typically "involve checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." People v. Cummings, 46 N.E.3d 248, 251 (Ill. 2016) (citations

omitted). The court concluded that the traffic stop may

continue even without the existence of reasonable suspicion of

wrongdoing because "[t]he interest in officer safety permits a driver's license request of a driver lawfully stopped." Id. at

253.

¶81 The Cummings II analysis is an unabashed bootstrap.

Between Officer Doe and Mrs. Brown, it would sound something

like this:

"Why are you continuing my seizure?" Mrs. Brown asked.

"To engage in the usual inquiries," replied Officer Doe.

"But why do you need to engage in the usual inquiries?" persisted Mrs. Brown.

"To ensure my safety," Officer Doe patiently explained.

"Why is your safety an issue?"

"Because I'm continuing your seizure, of course," concluded Officer Doe. ¶82 Is it really necessary to point out that concerns over

the officer's safety would vanish if he ended the seizure? Or

that ending the seizure would make the usual inquiries moot?

¶83 So, based on nothing more than a Supreme Court signal and the Illinois Supreme Court's interpretation of that signal,

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we decided that the Fourth Amendment permits the seizure of an

individual without reasonable suspicion of wrongdoing. That's

an awfully momentous decision to base on a signal.

III

¶84 We ask, semi-rhetorically: "But in these particular

circumstances, does the Fourth Amendment require a police

officer to freeze, do an about-face, and walk away?" Majority

op., ¶15. The answer is definitively "no." But not for the

reasons we gave, and certainly not with the same consequences.

¶85 The real reason the answer is "no" is because the

officer deprived Mr. Smith of his liberty and had no continuing

justification for withholding that liberty from him. Once

seized by a police officer during a traffic stop, a driver may

not leave until the traffic stop is finished. See Wis. Stat.

§ 346.04(2t) ("No operator of a vehicle, after having received a

visible or audible signal to stop his or her vehicle from a

traffic officer or marked police vehicle, shall knowingly resist

the traffic officer by failing to stop his or her vehicle as promptly as safety reasonably permits."); see also, Arizona v.

Johnson, 555 U.S. 323, 333 (2009) ("Normally, the stop ends when

the police have no further need to control the scene, and inform

the driver and passengers they are free to leave."). So, in

these circumstances, the officer's clear, unequivocal, mandatory

duty was to approach Mr. Smith and inform him he was free to

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leave.18 Of course, if the officer develops a reasonable

suspicion of wrongdoing during this brief interaction, he may

proceed with the seizure just as if the reasonable suspicion had

never lapsed.

¶86 If our focus is on whether it was a good thing to

catch Mr. Smith, then this is a galling result, given what we

know about his state of inebriation when Officer Gonzalez seized

him. But the Constitution is not a Dorian Gray-like bargain in

which we accept the beauty of apprehending Mr. Smith in exchange

for the ugliness of Mrs. Brown's unreasonable seizure. The

Constitution's instruction on this question is categorical: A

person may not be "detained even momentarily without reasonable,

objective grounds for doing so." And because it is categorical,

18 The court says my analysis would not allow the officer to excuse Mr. Smith because I eschew "any further contact with the driver . . . past the moment reasonable suspicion dissipates." Majority op., ¶15 n.12. I don't think that is so. Every traffic stop must eventually end, and it ends when the officer tells the motorist he is free to go. Johnson, 555 U.S. at 333. The duty to release the motorist stems from the constitutional mandate that a person "may not be detained even momentarily without reasonable, objective grounds for doing so . . . ." Florida v. Royer, 460 U.S. 491, 498 (1983). Actualizing that mandate requires the officer to approach the motorist to tell him the seizure is over. Requiring production of a driver's license, and proof of registration and insurance, however, does nothing to further that task.

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it applies even when it means we don't catch Mr. Smith and his

like.19

¶87 It is important, essential even, to consider how our

decision impacts Mrs. Brown. Neither she nor anyone like her

will ever come before this court, for she has done nothing wrong

and, consequently, will never be party to a case we can review.

But we have, nonetheless, decided how she may be treated. So

Mrs. Brown may spend an evening fielding calls from irate

parents asking why their children were lined up along the

roadside while a narcotics-detection dog searched the minivan.

After the last call, perhaps she will pull out her pocket

Constitution and puzzle over why the promise of freedom from

unreasonable seizures means she can be seized for no reason at

all. Because I can't explain that to her, I respectfully

¶88 I am authorized to state that Justices SHIRLEY S.

ABRAHAMSON and ANN WALSH BRADLEY join this dissent.

19 To illustrate why my analysis is untenable, the court proposes an alternate scenario in which the apparently innocent minivan driver is actually a sex trafficker. Majority op., ¶32 n.18. Conducting the usual inquiries in those circumstances, it says, would have revealed there was criminal behavior afoot. True enough. But doesn't that just prove my point? The court's scenario could be read as favoring suspicion-free police investigations because of the results they might produce. But we don't measure the constitutionality of a search in terms of its effectiveness in revealing hidden malefaction. According to Royer, we measure it in terms of reasonable suspicion of wrongdoing. If the investigation is not necessary to address the purpose of the stop, it may last only as long as there is reasonable suspicion. Johnson, 555 U.S. at 333. Suspicion-free investigations like the one the court described might be very productive, but that doesn't make them constitutional.

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