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  • WisBar News
    November 25, 2015

    Supreme Court: Trooper Legally Stopped OWI Suspect for Discarded Cig Butt

    Joe Forward

    Nov. 25, 2015 – The Wisconsin Supreme Court has ruled that a state trooper legally stopped a vehicle for littering, which led to a drunk driving arrest, despite the defendant’s argument that troopers can’t make traffic stops for non-traffic offenses.

    It was 1 a.m. on Jan. 29, 2014, when a state trooper observed defendant driver Daniel Iverson drift toward the centerline and back before twice stopping completely at an intersection with yellow flashing lights, even though there was no traffic in sight.

    The trooper later testified that at that time, he did not believe he had reasonable suspicion to make a traffic stop. However, he then observed an occupant flick a cigarette butt out the window. After this observation, the trooper initiated a traffic stop, relying on a non-traffic statute that prohibits “littering” on roadways in Wisconsin.

    The passenger admitted that he discarded the cigarette. Through the stop, the trooper developed probable cause to believe Iverson was driving drunk and made the arrest. Iverson pleaded not guilty to his first offense OWI and filed a motion to suppress.

    Iverson asked the circuit court to dismiss the case, arguing that the trooper illegally used the littering offense as a pretext to determine whether Iverson was driving drunk.

    The circuit court granted the motion, and a state appeals court affirmed in a one-judge opinion, which noted that that troopers can make stops for suspected crimes or traffic violations, but littering is neither a crime (no potential for jail time) nor a traffic violation.

    In State v. Iverson, 2015 WI 101 (Nov. 25, 2015), the state supreme court unanimously (6-0) reversed, concluding that state troopers have authority to stop vehicles based on probable cause or reasonable suspicion that a vehicle driver or occupant has littered.

    But two justices questioned whether the traffic stop intrusion was “reasonable,” despite a littering offense, when considering the “totality of the circumstances.”

    Is Discarding Cigarette Butts Out of Cars Littering?

    Wis. Stat. section 287.81 imposes a maximum fine of $500 for “depositing or discharging any solid waste on or along any highway” or permitting any solid waste “to be thrown from a vehicle operated by the person.” Iverson first argued that cigarette butts are not “solid waste” material, so the trooper had no basis to make a traffic stop.

    Wis. Stat. ch. 287 defines “solid waste” to include “discarded or salvageable materials,” and the majority held that cigarette butts “manifestly constitute” discarded materials.

    Iverson’s attorney suggested that discarding cigarette butts is not littering, because people do it all the time and rarely if ever receive citations for doing so.

    “If the image of masses of cigarette butts strewn throughout the streets of a Wisconsin city is meant to suggest that the disposal of cigarette butts along highways is somehow a de minimis offense … it fails to persuade,” wrote Justice Annette Ziegler. “We conclude that discarding a cigarette butt onto a highway violates Wis. Stat. § 287.81.”

    Was the Stop Constitutionally Reasonable?

    The supreme court majority rejected Iverson’s claim that the state trooper did not have authority to stop him for a littering offense, noting that state traffic patrol officers have specific authority, under Wis. Stat. section 110.07, to enforce the littering statute.

    The majority also held that state troopers can stop motorists based on probable cause or reasonable suspicion of non-traffic civil forfeiture violations, rejecting the lower court’s conclusion that stops must be based on suspicion of crimes or specific traffic violations.

    “Under the court of appeals’ interpretation, an officer would be required to sit idly by even if an individual threw an entire bag of garbage out of a vehicle’s window, simply because littering is a non-traffic civil forfeiture offense,” Justice Ziegler wrote.

    “We conclude that a traffic stop to enforce Wis. Stat. section 287.81 is generally reasonable if an officer has probable cause or reasonable suspicion that a violation of § 287.81 has occurred,” Justice Ziegler explained.

    In this case, the majority concluded that the state trooper had probable cause to stop the car for a littering offense because he witnessed an occupant discharge the cigarette butt from the passenger window, and the butt scattered ash across the highway.

    The majority said the motion to suppress should have been denied, and remanded the case for reinstatement of the drunk driving charges.


    Justice Shirley Abrahamson wrote a concurring opinion, joined by Justice Ann Walsh Bradley. They agreed that state troopers can make traffic stops based on probable cause or reasonable suspicion that a littering offense occurred, but voiced concern.

    “My concern is that the majority opinion seems to explicitly reject the touchstone of Fourth Amendment jurisprudence,” wrote Justice Abrahamson, noting that the touchstone is whether a search is “reasonable” under the “totality of the circumstances.”

    The test includes “balancing the public interest against an individual’s right to personal security free from interference by law enforcement,” she continued.

    “In striking this balance, a court must carefully scrutinize the totality of the circumstances,” she wrote. “The majority opinion does not apply this balancing test.”

    Instead, Abrahamson said the majority examined whether traffic stops for littering are constitutionally allowed, determined that they are, and ended the analysis there.

    “When an officer has reasonable suspicion to issue a parking ticket or a littering citation, in the absence of some public safety risk or other significant public interest, the public interest in issuing the citation does not automatically overcome an individual’s right to be free from the intrusion of having the vehicle stopped,” Abrahamson wrote.

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