State appeals court clarifies law concerning passengers and roadside police stops

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 9, 2011 – A passenger who asked to leave the scene of a traffic stop cannot suppress the drug evidence that was obtained after police prevented her from leaving.

That’s what the District II Wisconsin Court of Appeals ruled in State v. Salonen, 2010AP2504 (Nov. 9, 2011), reversing a circuit court decision that marijuana seized from passenger Jamie Salonen should be suppressed because police prevented her from leaving the scene after showing them her identification and determining she had no warrants on record.

The state appealed, arguing that Arizona v. Johnson, 555 U.S. 323 (2009), forecloses Salonen’s argument and the evidence was legally obtained by police. In Johnson, the U.S. Supreme Court held that a police stop is reasonable “whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation.”

However, the Johnson court also stated that, “Normally, the stop ends when the police have no further need to control the scene. …” A lower court in Johnson suggested that passengers should be free to leave at some point, and “their fate is not entirely tied to that of the driver.”

Salonen gave police her identification after the vehicle was stopped for speeding. A database check revealed that Salonen did not have any warrants for her arrest, so she asked an officer for permission to leave the scene so she wouldn’t be late for work. But police were waiting for a K-9 unit to check the vehicle for illegal drugs and refused to let her leave.

Ultimately, the dog smelled drugs near the passenger seat where Salonen was sitting and found evidence of packaging. They hauled Salonen into the station and found a baggie of marijuana tucked inside her mouth. She was charged with possession with intent to deliver THC.

She filed a motion to suppress, which the circuit court granted. But the appeals court disagreed, explaining that resolution of cases like this involve a balancing between a citizen’s right to be free of warrantless intrusions with a public interest in officer safety.

“To determine whether the intrusion was unreasonable, we must weigh the public interest served by asking Salonen to remain at the scene against the intrusion that resulted from it,” wrote Chief Appeals Judge Richard Brown. “Put simply, has the situation evolved so that officer safety is no longer a reasonable concern?”

The appeals court concluded that officer safety outweighed the minimal intrusion that Salonen was subjected to when police ordered her to stay on the scene, noting that the dog sniff took only minutes, and an officer offered to speak with Salonen’s boss if she was late.

“We see no facts in this case that warrant an exception to Johnson’s general guideline that the detention of a passenger ordinarily remains reasonable for the duration of the stop,” Judge Brown wrote.