Aug. 2, 2017 – A sheriff’s deputy ran a man’s license plates in a “high-crime” area in Kenosha and learned the vehicle’s registration was suspended for emissions violations. Recently, the state supreme court ruled the subsequent stop and search, which uncovered drugs, was legal.

In State v. Floyd Jr., 2017 WI 78 (July 7, 2017), a Wisconsin Supreme Court majority (5-2) ruled that the deputy’s request to search the car for weapons did not unlawfully extend the traffic stop because he asked to ensure his own safety, and ensuring police safety is part of the mission when police make traffic stops. The search was legal because Floyd consented.

Two justices dissented, arguing the majority sidestepped the main issue: whether the deputy had reasonable suspicion that evidence of a crime would be found in the car.

The Traffic Stop

It was early evening in July 2013. The deputy ran Floyd’s plates at a stoplight and learned that Floyd’s vehicle had a suspended registration for emissions violations. The deputy noted the area as high crime with frequent drug and gang activity.

When the deputy approached the car, he saw that Floyd had air fresheners in every vent of the vehicle, in addition to one hanging off the rear view mirror. He later testified that air fresheners are often used to mask the smell of narcotics.

Floyd had a state identification card but no driver’s license. The deputy returned to his squad car and called for a canine unit but one was not available.

An officer arrived to provide back-up. The deputy reestablished contact with Floyd six minutes after stopping him and asked him to step out of the vehicle. The deputy then asked Floyd if he could conduct a pat down for weapons (Floyd said he just did it without asking).

Then the deputy said he asked Floyd if he could search the car to ensure his own safety, but the back-up officer’s report said the deputy “advised” Floyd that he was conducting a weapons search (he later testified that the deputy asked) and Floyd indicated that was okay.

The deputy found a bag of marijuana and 15 pills of Vicodin. The state charged Floyd with possession with intent to deliver non-narcotic controlled substances and possession with intent to deliver or manufacture THC.

A circuit court denied Floyd’s motion to suppress the drugs based on an unconstitutional search. Floyd then pled no contest to possession with intent to deliver non-narcotic controlled substances, the Vicodin pills, as a repeat offender.

He filed a post-conviction motion on Fourth Amendment grounds, arguing the search was not legal. He also argued that his lawyer was ineffective for not presenting evidence to rebut the deputy’s claim that he obtained consent to search the vehicle.

The circuit court noted that the back-up officer’s testimony would have shown “some dichotomy” on whether the deputy asked for consent to search or advised Floyd that a search was happening, but ultimately found that the deputy did ask for consent.

Thus, the court ruled that any failure to present that evidence was of no consequence. An appeals court affirmed, concluding that Floyd was lawfully detained when the officer asked for consent. Floyd filed his case with the supreme court, which recently affirmed.

Majority Says Extended Stop was Legal

Floyd argued that he was unlawfully seized when the deputy asked for consent, so any consent to search that the deputy says he gave was not valid. Floyd said the stop ended when the deputy wrote citations for expired registration, the purpose for the stop, and he had no justifiable basis to ask for consent to search the vehicle.

But the majority concluded that the deputy did not violate Floyd’s Fourth Amendment right to be free from unreasonable searches and seizures because the stop was legitimately extended, and thus Floyd was still lawfully seized when he consented.

The majority noted that traffic stops “may last no longer than required to address the circumstances that make them necessary,” and viewed in their totality, stops that are unjustifiably extended can cross the unconstitutional line.

“Generally speaking, an officer is on the proper side of the line so long as the incidents necessary to carry out the purpose of the traffic stop have not been completed, and the officer has not unnecessarily delayed performance of those incidents,” Kelly wrote.

“He steps across that line (again speaking generally) when he maintains the seizure after he has completed all the necessary functions attendant on the traffic stop.”

Floyd had a suspended registration, no driver’s license, and no proof of insurance, so the deputy was authorized to take the time necessary to write those citations and explain them to Floyd. The deputy asked Floyd to exit the vehicle to explain the citations.

And the majority noted that asking someone to exit the vehicle, so long as the individual is lawfully seized, does not violate the Fourth Amendment.

Floyd argued the permissible duration of the stop ended before the officer asked to search the car. But again, the majority ruled that Floyd was wrong on that point because the officer’s safety is part of the mission of the traffic stop, and the deputy was within the constitutional zone when he asked to search the car for his own safety.

“The danger inherent to traffic stops authorizes an officer ‘to take certain negligibly burdensome precautions in order to complete his mission safely,'” wrote Justice Kelly, citing the U.S. Supreme Court case of Rodriguez v. U.S., 135 S. Ct. 1609 (2015).

“Therefore, because the questions related to officer safety and were negligibly burdensome, they were part of the traffic stop’s mission, and so did not cause an extension,” Justice Kelly wrote.

Consent and Ineffective Assistance

So the officer was within constitutional bounds to request a search of Floyd’s car because it related to his safety. And the search was legal because Floyd consented.

“Whatever additional time the actual search consumed, or the burden it imposed, is irrelevant so long as Floyd consented to it,” Justice Kelly wrote.

The majority rejected Floyd’s argument that his consent was not voluntary because the deputy had not yet returned his identification card to prevent the stop from ending.

“The routine act of retaining an identification card or driver’s license during a traffic stop, without more, is insufficient evidence of the type of duress or coercion capable of making consent something less than voluntary,” Justice Kelly wrote.

Finally, the majority discharged Floyd’s ineffective assistance of counsel claim. Floyd had argued that his lawyer should have questioned the back-up officer, which would have revealed that the deputy did not ask for Floyd’s consent to search.

The majority noted that the attorney had made the court aware of White’s incident report in a motion brief, and the circuit court judge was not persuaded that it helped Floyd.

The majority noted that it was the state’s task to clarify any ambiguity on consent, and a decision not to call the officer was a tactical choice that was not deficient.

Dissent

Justice Ann Walsh Bradley dissented, joined by Justice Shirley Abrahamson, concluding the traffic stop was unlawfully extended and “there was no articulable reasonable suspicion of additional illegal activity to otherwise justify the extension.”

“I write separately not merely because I disagree with the court of appeals as to where the line should be drawn under the facts of this case,” Justice A.W. Bradley wrote.

“Rather, I write also to express my concern that the majority opinion, in lockstep with this court’s jurisprudence, continues the erosion of the Fourth Amendment.”

“It is through such erosion that implicit bias and racial profiling are able to seep through cracks in the Fourth Amendment’s protections.”

The dissent noted that in reviewing whether a traffic stop is unconstitutional, a court must review whether the officer extended the stop beyond the mission, “which is to address the traffic violation that warranted the stop and attend to related safety concerns.”

In this case, the dissenters said the police unconstitutionally extended the traffic stop because the deputy did not have reasonable suspicion to believe any crimes were afoot other than the traffic violations for which Floyd received citations.

At the suppression hearing, according to the dissent, the deputy said he had reasonable suspicion because Floyd was alone and from Kenosha, it was a summer evening, it was a high-crime area, he had air fresheners in the vents, and his windows were tinted.

“I quickly dispatch with the first three factors proffered because they border on ridiculous,” A.W. Bradley wrote. “If residing in Kenosha can serve as a factor supporting reasonable suspicion that criminal activity is afoot, then lord help us (and Kenosha).”

“Likewise, a warning should issue to all of those who drive alone in their vehicle, lest it serve as a basis for a traffic stop. Finally, assertion that the time of 6:54 p.m. during the summer can serve as a factor for reasonable suspicion is bewildering.”

Justice A.W. Bradley said the other factors, innocent on their own, don’t pass the test for reasonable suspicion. “Additionally, the record in this case is devoid of any particularized conduct or circumstances that would support reasonable and articulable suspicion that criminal activity is afoot.”

The dissenters said the scope of the stop had been extended beyond its original mission – to write the traffic tickets ­– by the time the deputy requested a pat down and search.

Justice A.W. Bradley, in a separate part of her writing, directly addressed concerns about implicit bias and racial profiling that arise from Fourth Amendment erosion.

“In the last two terms, this court is batting nearly zero when it comes to upholding Fourth Amendment challenges in criminal cases,” she writes.

“I have concerns that the Fourth Amendment’s right of freedom from warrantless search and seizures has become a second class right, or worse, meaningless prose.”