Nov. 27, 2018 – The Wisconsin Supreme Court may decide whether a police officer unlawfully extended a legal traffic stop for moving and seatbelt violations when he ordered the driver to exit the vehicle to conduct a search, which uncovered drugs.

The Wisconsin Appeals Court recently issued a certification in State v. Brown, asking the Supreme Court to decide whether the officer unlawfully extended the traffic stop and noting that the state’s high court has already accepted review in a similar case.

The Supreme Court is scheduled to hear State v. Wright in 2019. In that case, the Appeals Court ruled that Milwaukee police impermissibly expanded the scope of a traffic stop for a broken headlight when asking the driver about weapons, concluding that no facts supported any claim the driver, John Wright, posed a threat to officer safety.

Brown addresses a similar issue on different facts, according to the certification: “[I]n the absence of reasonable suspicion, does asking a lawfully stopped motorist to exit the car, whether he or she possesses anything of concern, and to consent to a search unlawfully extend the traffic stop” when the ticket has been written but not delivered?

The Traffic Stop

A Fond du Lac police officer stopped Courtney Brown’s vehicle after he drove away from an area of closed businesses. The officer ran the plates and learned it was a rental car. When Brown failed to properly stop at a stop sign, the officer initiated a traffic stop.

Brown, who is African-American, was not wearing a seatbelt. The officer asked Brown questions about where he was coming from and where he was going.

The officer, Christopher Deering, testified that he developed suspicion about the possibility of drugs in the car since Brown said he was from Milwaukee, a “source city for drugs,” and rental cars are often used for transporting illegal drugs.

Deering returned to his squad car to write a ticket for a seatbelt violation, and two other officers arrived to provide back-up. Deering ran a records check, which showed Brown had been convicted for distributing cocaine, armed robbery, and other drug offenses.

Deering returned to Brown’s car and asked him to step out, then asked Brown if he had any illegal weapons or drugs. Deering asked to search Brown. Brown later said he did not consent to a search; Officer Deering testified that Brown did consent.

Officer Deering still had Brown’s driver’s license and a warning ticket for a seatbelt violation in his hand when he found 13 bags of crack and $500 cash on Brown, who was arrested and charged with possession and intent to deliver cocaine.

Suppression

Brown moved to suppress the evidence on the ground that police obtained it by unlawfully extending the traffic stop beyond the initial purpose. Once the officer wrote the seatbelt ticket, Brown argued, the stop should have concluded because the officer lacked reasonable suspicion to continue the detention and to search Brown.

The circuit court said it was a close case, but police had sufficient evidence (“barely enough”) to support a reasonable suspicion that Brown was engaged in drug-related activity, which authorized the extended detention. The court assumed Brown gave consent, saying that was a separate issue. Ultimately, Brown pled no contest, and was sentenced to two years in prison with two years of extended supervision.

Certification

The Appeals Court certified the case directly to the Supreme Court to decide whether Brown’s Fourth Amendment search and seizure rights were violated in this case.

Specifically, the Appeals Court asks the Supreme Court to decide whether the officer lacked reasonable suspicion to extend the stop beyond writing the seatbelt ticket, or whether reasonable suspicion was not necessary to extend the stop in this case.

“The officer testified that the investigation sought to uncover illegal weapons or drugs,” the Appeals Court wrote in its certification to the Supreme Court. “Assuming the absence of reasonable suspicion, as in Wright, this case presents the issue of whether the weapons and/or general criminal investigation was reasonably related in scope to the purpose of the original traffic stop, and whether the duration was permissible.

“This case presents the issue of if and when an investigation involving a consent to search for drugs and weapons brings additional inquiries within the original mission of the stop.” The Supreme Court will hear the case if a majority of justices vote to hear it.