July 24, 2015 – Police stopped a motorist for a seat belt violation, and thought he looked nervous. The driver passed a field sobriety test for possible drug use and police released him, but then asked to search his truck. He consented. Recently, the state supreme court upheld the search, which uncovered drugs and guns near a child.
Patrick Hogan, who later pleaded guilty to possession of methamphetamine and child neglect, argued on appeal that evidence from the search should have been suppressed because police violated his right against unreasonable searches and seizures.
Specifically, he said police unlawfully extended the traffic stop because they did not have reasonable suspicion to believe he was on drugs and thus evidence obtained in the search should have been suppressed as “fruit of the poisonous tree.”
In State v. Hogan, 2015 WI 76 (July 10, 2015), a supreme court majority (5-2) upheld the search as constitutional. The majority concluded that police unlawfully extended the traffic stop, based on the facts of the case, but Hogan gave valid consent to the search.
“Although the question of whether the deputy had reasonable suspicion to extend the traffic stop to administer field sobriety tests is a close one, we conclude that the extension was unlawful,” wrote Justice David Prosser for the majority.
“However, the defendant’s subsequent consent to search his vehicle came after the traffic stop had ended and the defendant was told he was free to leave.”
The majority said “police did not exploit the unlawful extension of the stop in order to gain Hogan’s consent to search the vehicle,” and he wasn’t “constructively seized” when he gave police consent to search. Thus, it was proper to deny the motion to suppress.
Justice Ann Walsh Bradley dissented, joined by Justice Shirley Abrahamson, concluding that Hogan’s consent did not purge the police’s illegal actions.
The Traffic Stop
In May 2012, police stopped Hogan in the City of Boscobel. A deputy saw Hogan driving his truck without a seatbelt. Hogan’s wife and two-year-old child were in the car.
The deputy approached the car and observed Hogan in a nervous state. He testified that Hogan, who was on probation for another crime, was shaking and his pupils were restricted, indicating possible drug use. The deputy called for back-up.
The back-up officer said he knew of Hogan’s reputation as a drug user, and had received tips that Hogan was a “shake and bake methamphetamine cooker.” While a K9 unit was en route, the deputy told Hogan he was going to perform a field sobriety test.
Hogan said he didn’t use drugs illegally, but had a prescription for Adderall. The deputy, who was not a drug recognition expert, said Adderall did not cause nervousness and restricted pupils. Hogan agreed to the field sobriety test. After he passed, the officer said Hogan was free to leave. Hogan got back in his vehicle, but 16 seconds later, the deputy came back and asked Hogan if he could search the truck. Hogan consented.
Hogan’s wife disclosed that she had an unpermitted gun in her purse, and police also found a .22 caliber gun behind the passenger seat, where their child was seated. They also uncovered methamphetamine and tools and equipment used to cook meth.
Hogan was charged with possession of methamphetamine, manufacturing methamphetamine, child neglect, and possession of a firearm by a felon.
He filed motions to suppress evidence, but the Grant County Circuit Court denied them. Ultimately, he pled guilty to the possession and child neglect charges.
The court of appeals affirmed the conviction, concluding that Hogan’s consent “was sufficiently attenuated from the taint of the illegal detention.”
Extension was Unlawful
A supreme court majority examined the stop to determine whether the evidence should have been suppressed, ultimately upholding the search based on valid consent.
First, the court said the initial stop was legal, since the deputy observed Hogan operating the truck without wearing his seatbelt.
However, the majority noted that police cannot extend a traffic stop longer than necessary without reasonable suspicion that a crime has occurred or is occurring.
That is, police could only extend the traffic stop beyond the time it took to write a seatbelt citation if they had “reasonable suspicion” to believe Hogan was under the influence of drugs. The court examined whether the deputy’s suspicion was reasonable.
The deputy said the stop was extended for a field sobriety test because Hogan looked nervous and his pupils were restricted. But the majority concluded that this wasn’t enough, highlighting the fact that the deputy was not a drug recognition expert and the circuit court judge was right to largely ignore his testimony about pupil restriction.
“The possibility that innocent explanations may exist for observed behavior does not preclude a finding of reasonable suspicion, but as a practical matter, police cannot expect to conduct field sobriety tests on every motorist who is shaking and nervous when stopped by an officer,” wrote Justice Prosser.
The majority also noted that the back-up officer’s tips – that Hogan was a meth cooker – were unreliable and could not form the basis for reasonable suspicion. The state did not argue that the police knew of Hogan’s probationary status or prior drug convictions, which would have given police more standing to assert reasonable suspicion.
Search Still Legal
Although police unlawfully extended the stop to perform a field sobriety test without reasonable suspicion that Hogan was under the influence of drugs, the majority upheld the subsequent search of his car. The majority concluded that police told Hogan was free to leave, which ended the traffic stop.
Shortly after, when police re-engaged Hogan and he gave consent to search the truck, he did not give it based on police exploitation of illegal conduct, the majority concluded.
Some circumstances require an “attenuation analysis” to determine whether evidence to must be suppressed as “fruit of the poisonous tree” – evidence obtained from an illegal stop – but the majority declined to perform an attenuation analysis, concluding that the evidence was not the product of illegal police conduct. It was a valid consent search.
“After a traffic stop has ended, police may interact with the driver as they would with any citizen on the street,” Justice Prosser wrote. “That is, if a person is not seized, police may request consent to search even absent reasonable suspicion.”
Police had no legal basis to perform a vehicle search without consent, the majority noted, but nothing prevented them from asking to conduct one. And Hogan would have been within his rights to decline, but he didn’t. He gave them voluntary consent.
Although the squad car’s emergency lights stayed on throughout the stop, that was not enough to conclude the stop never ended, Justice Prosser noted.
“We therefore conclude that even though the extension of the traffic stop has been deemed illegal, the extension of the stop was not a but-for cause of the consent.”
Concurrence and Dissent
Justice Annette Ziegler joined the majority opinion’s conclusion, but wrote separately to align the case with State v. Blatterman, in which she argued that the odor of intoxicants on a repeat drunk driver, by itself, can establish probable cause to make an arrest.
“In the present case, the circuit court’s findings of fact do not allow me to engage in this type of analysis,” Justice Ziegler wrote.
Justice Bradley’s dissent concluded that an “attenuation analysis” was required in this case. “Contrary to the majority’s assertions, this case presents the quintessential example of when an attenuation analysis is needed,” Justice Bradley wrote.
“Where consent is obtained so closely on the heels of acknowledged police misconduct, attenuation analysis is the means by which we determine ‘whether evidence objected to was obtained by exploitation of a prior police illegality or instead by means sufficiently attenuated so as to be purged of the taint,’” she wrote.
She concluded, along with Justice Abrahamson, that “an attenuation analysis reveals that the taint from the deputy’s unconstitutional actions was not removed” and the evidence should have been suppressed.
