State v. Floyd

377 Wis.2d 394

898 N.W.2d 560

2017 WI 78

STATE of Wisconsin, Plaintiff-Respondent,

v.Lewis O. FLOYD, Jr., Defendant-Appellant-Petitioner.

No. 2015AP1294-CR

Supreme Court of Wisconsin.

Oral Argument: April 19, 2017

Opinion Filed: July 7, 2017

For the defendant-appellant-petitioner, there were briefs by Michael G. Soukup and Pinix & Soukup, LLC, Milwaukee, and oral argument by Michael G. Soukup.

For the plaintiff-respondent, there was a brief filed by Luke N. Berg, deputy solicitor general, Brad D. Schimel, attorney general, and Misha Tseytlin, solicitor general, and oral argument by Luke N. Berg.

An amicus curiae brief was filed by Kelli S. Thompson, state public defender, and L. Michael Tobin, deputy state public defender.

DANIEL KELLY, J.

¶1 A law enforcement officer discovered a cache of controlled substances when he performed a warrantless—but allegedly consensual—search of Lewis O. Floyd, Jr. during a traffic stop. Mr. Floyd says that because the officer extended the traffic stop without the necessary reasonable suspicion, his alleged "consent" was void and the evidence obtained from the search should have been suppressed. Mr. Floyd also says he received ineffective assistance of counsel at the suppression hearing because his trial counsel failed to present testimony Mr. Floyd believes would have established he was not asked to consent to a search.¹

I. BACKGROUND

A. The Traffic Stop

¶2 On an early July evening in 2013, Deputy Troy Ruffalo of the Racine County Sheriff's Office stopped Mr. Floyd near 16th and Racine Streets in the City of Racine because his car registration had been suspended for emissions violations. Deputy Ruffalo, a six-year veteran law enforcement officer, believed this to be a "high crime" part of the city known for frequent drug and gang activity.

¶3 When Deputy Ruffalo approached Mr. Floyd's car, he noted it had tinted windows and "air fresheners in every vent of the vehicle as well as hanging off the rear view mirror and air fresheners up on the—where the vents were." This, he said, is often an indicator of drug-related activity because "[u]sually the air fresheners or the amount of them are—is an agent that is used to mask the smell of narcotics."²

¶4 Deputy Ruffalo's initial contact with Mr. Floyd lasted approximately two to three minutes, during which he discovered Mr. Floyd had no driver's license or insurance information with him. After obtaining Mr. Floyd's Wisconsin State identification card, Deputy Ruffalo returned to his squad car to draft Mr. Floyd's citations and contact dispatch to ask for a canine unit or other "cover" squad. No canine units were available, and Officer Aaron White, an officer with the City of Racine Police Department, arrived on the scene while Deputy Ruffalo was completing Mr. Floyd's citations.

¶5 Deputy Ruffalo reestablished contact with Mr. Floyd approximately five or six minutes after pulling him over and, while maintaining possession of Mr. Floyd's identification card and the multiple citations, asked Mr. Floyd to exit the vehicle so he could explain the citations. After Mr. Floyd complied, Deputy Ruffalo asked him if he had any weapons or anything that could harm him. After Mr. Floyd indicated he did not, Deputy Ruffalo asked if he could perform a search for his safety. Mr. Floyd responded "yes, go ahead."³ During the ensuing search, Deputy Ruffalo discovered the illegal drugs that led to the charges in this case.

B. Procedural Background

¶6 The State filed a criminal complaint against Mr. Floyd alleging: (1) possession with intent to deliver non-narcotic controlled substances, second and subsequent offense; (2) misdemeanor bail jumping, repeater; (3) possession with intent to deliver or manufacture THC <= 200 GMS, second and subsequent offense; and (4) misdemeanor bail jumping, repeater. The subsequent Information alleged the same four counts.

¶7 Mr. Floyd moved to suppress the evidence seized during the search, but the circuit court denied the motion. It found that at the time Deputy Ruffalo contacted dispatch for backup, he had suspicions Mr. Floyd was involved in criminal drug-related activity based on several factors, including the numerous air fresheners and the vehicle's tinted windows. It also found that Deputy Ruffalo did not unnecessarily prolong the traffic stop by requesting backup because the cover squad arrived while he was in the process of drafting the citations—a process that took only five to six minutes. The circuit court accepted Deputy Ruffalo's explanation that having Mr. Floyd step out of his vehicle was important because he did not have a valid driver's license and therefore could not drive away when the traffic stop ended.

¶8 Mr. Floyd pled no-contest to possession with intent to deliver non-narcotic controlled substances as a repeat offender. He moved for postconviction relief, alleging his trial counsel was ineffective for failing to present evidence at the suppression hearing that (he says) would have proved Deputy Ruffalo did not ask for his consent to perform the search. The circuit court observed that Officer White's testimony showed "some dichotomy" with respect to whether Deputy Ruffalo had asked for Mr. Floyd's consent to the search or instead had advised him it was going to happen. Ultimately, the circuit court found Deputy Ruffalo did, in fact, ask Mr. Floyd whether he would consent to the search. Thus, the court concluded Mr. Floyd did not receive ineffective assistance of counsel because the testimony was insufficient to demonstrate he had not consented to the search, and so denied the motion.

¶9 The court of appeals affirmed in a published opinion, concluding that denial of the suppression motion was proper because Mr. Floyd was lawfully detained when Deputy Ruffalo asked to search him and Mr. Floyd voluntarily consented to the search. See State v. Floyd , 2016 WI App 64, ¶¶ 12, 20, 371 Wis.2d 404, 885 N.W.2d 156. Relying on Pennsylvania v. Mimms , 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam), the court of appeals concluded that Deputy Ruffalo's request that Mr. Floyd exit his vehicle during the ongoing traffic stop was per se lawful, and it also pointed out that Mr. Floyd could not drive away because he did not have a valid driver's license. Floyd , 371 Wis.2d 404, ¶ 12. The court of appeals further held that even if Deputy Ruffalo had extended the traffic stop, the extension was nevertheless reasonable because Deputy Ruffalo reasonably suspected criminal drug-related activity. Id. , ¶ 13. As to the postconviction motion, the court of appeals determined there was no reasonable probability the result at the suppression hearing would have been any different had Officer White been called to testify; therefore, it affirmed the circuit court's denial of the postconviction motion. Id. , ¶ 27.

¶10 We accepted Mr. Floyd's petition for review and now affirm the decision of the court of appeals.

II. STANDARD OF REVIEW

¶11 "Whether evidence should be suppressed is a question of constitutional fact." State v. Knapp , 2005 WI 127, ¶ 19, 285 Wis.2d 86, 700 N.W.2d 899 (quoting State v. Samuel , 2002 WI 34, ¶ 15, 252 Wis.2d 26, 643 N.W.2d 423 ). We review the circuit court's findings of historical fact under the clearly erroneous standard. State v. Turner , 136 Wis.2d 333, 343-44, 401 N.W.2d 827 (1987). But the circuit court's application of the historical facts to constitutional principles is a question of law we review independently. Id. While we are not bound by the circuit court's or court of appeals' decisions on questions of law, we benefit from their analyses. State v. Kyles , 2004 WI 15, ¶ 7, 269 Wis.2d 1, 675 N.W.2d 449.

¶12 We review the voluntariness of consent to a search in a similar fashion. See State v. Artic , 2010 WI 83, ¶ 23, 327 Wis.2d 392, 786 N.W.2d 430. We review the circuit court's findings of historical fact to determine whether they are clearly erroneous. Id. We then independently apply constitutional principles to those facts. Id.

¶13 Whether trial counsel's actions constitute ineffective assistance of counsel presents a mixed question of fact and law. State v. Tourville , 2016 WI 17, ¶ 16, 367 Wis.2d 285, 876 N.W.2d 735. We will not reverse the circuit court's findings of fact unless they are clearly erroneous. Id. However, we independently review, as a matter of law, whether those facts demonstrate ineffective assistance of counsel. Id.

III. DISCUSSION

¶14 We must determine whether the drug-disclosing search of Mr. Floyd was consonant with the constitutional mandate that we be free of unreasonable searches and seizures. The State says the search was proper because it occurred during a lawful traffic stop and Mr. Floyd consented to it. Mr. Floyd says this is not so—the search took place after the traffic stop should have ended, and so he was unlawfully seized when it took place, which rendered any alleged "consent" void as a matter of law. In any event, he says, he did not actually consent to the search, and if his counsel had not been ineffective the court would have heard testimony to prove that point.

¶15 The disagreement between the State and Mr. Floyd is really quite narrow, although no less important for that. The parties agree that Mr. Floyd's expired tags provided a sufficient basis for Deputy Ruffalo to initiate the traffic stop. And Mr. Floyd did not contest an officer's authority to ask a driver to exit his vehicle during such an encounter. Nor did he offer any argument against an officer's authority to ask a lawfully-seized person to consent to a search. Their disagreement centers on where we draw the line separating traffic stops of acceptable duration from those that have been impermissibly extended. A motorist is lawfully seized during the proper duration of a traffic stop, but unlawfully seized if it lasts longer than necessary to complete the purpose of the stop. So the location of the line is important because of the constitutional rights affected. As we discuss below, if...