State v. Brown

392 Wis.2d 454

945 N.W.2d 584

2020 WI 63

STATE of Wisconsin, Plaintiff-Respondent,

v.Courtney C. BROWN, Defendant-Appellant-Petitioner.

No. 2017AP774-CR

Supreme Court of Wisconsin.

Oral Argument: January 21, 2020

Opinion Filed: July 3, 2020

For the defendant-appellant-petitioner, there were briefs filed by Elizabeth Nash, assistant state public defender. There was an oral argument by Elizabeth Nash.

For the plaintiff-respondent, there was a brief filed by Michael C. Sanders, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Michael C. Sanders.

An amicus curiae brief was filed on behalf of The American Civil Liberties Union Foundation of Wisconsin by Kendall W. Harrison, Linda S. Schmidt, Maxted M. Lenz, and Godfrey & Kahn, S.C., Madison. With whom on the brief was Karyn Rotker and ACLU of Wisconsin Foundation, Milwaukee.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ZIEGLER, and KELLY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion in which KELLY, J., joined. DALLET, J., filed a dissenting opinion.

REBECCA GRASSL BRADLEY, J.

¶1 Courtney Brown failed to fully stop his car at a stop sign, prompting a police officer to initiate a traffic stop. Brown contends the officer impermissibly extended the stop after writing a ticket for the traffic violation by asking Brown to exit the car, inquiring about anything concerning in Brown's possession, and requesting consent to search him. Brown seeks suppression of the cocaine the officer found in Brown's possession when he searched him, claiming that in the absence of reasonable suspicion, the Fourth Amendment prohibited the officer's actions after he wrote the traffic ticket, which Brown argues should have ended the mission of the stop. We conclude the Constitution permits law enforcement to ask a driver to exit the vehicle, inquire about the presence of weapons, and request consent to search the driver, all of which are negligibly burdensome actions relating to officer safety, a well-established part of a traffic stop's mission.¹ We affirm the court of appeals.

I. BACKGROUND

¶2 At about 2:44 a.m. on August 23, 2013, Fond du Lac Police Officer Christopher Deering, while on regular patrol, noticed a car coming from a dead end street containing only closed commercial properties. A record check revealed the car belonged to a car rental company. After observing the car fail to make a complete stop at a stop sign, Deering initiated a traffic stop. He approached the car and observed that the driver, identified as Brown, was not wearing a seatbelt.

¶3 Officer Deering asked Brown questions about his whereabouts and destination that evening. Brown stated he was going "nowhere really." Deering learned that Brown was from Milwaukee, which Deering testified was a "source city for drugs" because dealers can sell them at a higher price in the suburbs. Brown told Deering he was visiting a friend in Fond du Lac. Brown claimed to have been at this friend's house before Deering pulled him over, although Brown was unable to provide the last name of the friend or the street address of the house. Brown also indicated that he came directly from Speedway, although Deering had just witnessed Brown come from a dead end street of closed businesses. During Deering's initial encounter with Brown, two other officers arrived on the scene to provide safety assistance, although neither made contact with Brown and remained outside of his car on the passenger side.

¶4 Upon returning to his squad car, Officer Deering wrote Brown a ticket for failing to wear a seat belt. While writing the ticket, Deering ran a records search, which revealed Brown had multiple prior arrests for drug crimes and an armed robbery arrest. Based on Brown's suspicious story and these prior arrests, Deering asked the dispatcher if any canine units were available to perform a dog sniff of Brown's vehicle for drugs. No dogs were available. Deering then re-approached Brown's car with the completed traffic ticket in hand.

¶5 After making contact with Brown for a second time, Officer Deering asked him to step out of the car. Deering led Brown from the driver's side of Brown's car to the front of Deering's squad car. Deering testified he "had [Brown] walk back to [the] squad car." Brown claimed Deering "placed [Brown's] hands behind [his] back and walked [him] to the front of [Deering's] car." Both agreed that Deering did not handcuff Brown while leading him back to Deering's squad car. Deering then asked Brown if there was anything on Brown's person that Deering "needed to know about" or "be concerned about." Deering testified he asked this question to see if Brown "had any illegal weapons or drugs" although he did not subjectively consider the traffic stop to be high-risk and no "specific factors" caused concern that Brown had weapons. Deering testified Brown "could have [had weapons]."

Brown answered that he had nothing, but Deering asked for consent to search Brown's person in order to verify Brown's response and then searched him.² The search uncovered 13 bindles, or approximately 4 grams, of crack cocaine plus cash over $500. During this exchange and search, Deering remained in possession of the traffic ticket and Brown's driver's license. At no point prior to the search did Deering return these documents or instruct Brown that he was free to leave.

¶6 The State charged Brown with possession with intent to deliver cocaine as a repeater, in violation of Wis. Stat. § 961.41(1m)(cm) 1r (2017-18). Brown moved to suppress the drugs and money found during Deering's search, arguing they were fruits of an unlawful search because Deering's actions unlawfully extended the stop and he lacked reasonable suspicion. The circuit court denied the suppression motion.³ It found "the scope of the stop and length of the stop were extended due to the officer's suspicions of drug possession or drug activity[,]" but the extension was supported by reasonable suspicion. Brown thereafter pled no contest to one count of possession with intent to deliver cocaine. The circuit court sentenced him to two years of initial confinement and two years of extended supervision.⁴ Brown appealed.⁵

¶7 The court of appeals concluded that the officer's requests for Brown to exit the vehicle and consent to search, as well as the search itself, were part of the mission of the traffic stop and not an unlawful extension under the Fourth Amendment. See State v. Brown, 2019 WI App 34, ¶¶17, 25, 388 Wis. 2d 161, 931 N.W.2d 890. Brown filed a petition for review, which we granted.

II. STANDARD OF REVIEW

¶8 A party seeking suppression based on a Fourth Amendment violation presents a question of constitutional fact. State v. Smith, 2018 WI 2, ¶9, 379 Wis. 2d 86, 905 N.W.2d 353 (citing State v. Floyd, 2017 WI 78, ¶11, 377 Wis. 2d 394, 898 N.W.2d 560 ). "We review the circuit court's 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. (quoting Floyd, 377 Wis. 2d 394, ¶11, 898 N.W.2d 560 ).

III. ANALYSIS

A. Fourth Amendment General Principles

¶9 The Fourth Amendment 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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Fourth Amendment is "indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property." 3 J. Story, Commentaries on the Constitution of the United States § 1895 (1833). Although many treat the warrant requirement as the heart of the Fourth Amendment's prohibition against searches and seizures, the Supreme Court repeatedly characterizes the reasonableness of searches and seizures as its "ultimate touchstone." See Riley v. California, 573 U.S. 373, 381, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ("[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ " (quoted source omitted)); Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ("[W]hat the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.").

¶10 Searches or seizures without a warrant are generally "per se unreasonable under the Fourth Amendment." Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). Although the Supreme Court has carved out certain exceptions to the warrant requirement, these exceptions remain subject to the Fourth Amendment's reasonableness requirement. Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (citing Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ). One such exception exists for short investigative stops if law enforcement has "a particularized and objective basis" to suspect a person of criminal activity.

Navarette v. California, 572 U.S. 393, 396-97, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) (quoted source omitted); see also Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (investigatory stop is reasonable when police have "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion"). This exception is well-known as a " Terry" stop and "reasonable suspicion" renders it constitutionally reasonable even without a warrant. See Alabama v. White, 496 U.S. 325, 329-31, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ; Smith, 379 Wis. 2d 86, ¶13, 905 N.W.2d 353. While a traffic stop constitutes a seizure under the Fourth Amendment...