July 6, 2020 – The Wisconsin Supreme Court has ruled (4-1) that a police officer did not violate a driver’s constitutional rights by asking him to exit the vehicle and searching him before issuing him a traffic citation for failure to wear a seatbelt.
In 2013, a Fond du Lac police officer stopped the rental vehicle that Courtney Brown was driving after Brown rolled through a stop sign. He was not wearing a seatbelt.
The officer questioned Brown and learned Brown was from Milwaukee. Brown said he was visiting a friend but could not provide the friend’s last name or a street address.
The officer requested back up and ran a records search on Brown, discovering Brown had prior arrests for drugs and an armed robbery.
Based on this information, the officer requested a canine unit but one was not available. Brown re-approached the vehicle with a citation for failure to wear a seatbelt in hand.
Before delivering the citation to Brown and returning his driver’s license, the officer asked Brown to exit the vehicle and inquired if Brown had any illegal weapons or drugs.
Brown said he did not but the officer requested consent to search him, revealing about four grams of crack-cocaine and $500 in cash.
Brown said he did not consent to a search. The officer arrested Brown and the state charged him with possession with intent to deliver cocaine as a repeater. Brown moved to suppress the money and drugs, alleging the officer violated the Fourth Amendment.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The circuit court denied the motion to suppress and Brown pled guilty. The court imposed a two-year prison sentence with two years extended supervision.
The appeals court affirmed, concluding the traffic stop did not violate the Fourth Amendment because the search was part of the mission of the traffic stop and prior Wisconsin Supreme Court decisions have held that such searches are legal.
Majority Says Search was Legal
In State v. Brown, 2020 WI 63 (July 3, 2020), a four-justice majority affirmed, concluding the officer’s traffic stop and subsequent search did not violate the constitution.
“Consistent with our precedent, and the Supreme Court cases on which those precedents rely, we conclude that Officer Deering did not impermissibly extend Brown’s traffic stop beyond constitutional boundaries,” Justice Rebecca Bradley wrote.
The majority relied on two recent cases to reach its conclusion – State v. Floyd, 2017 WI 78, and State v. Wright, 2019 WI 45. In those cases, the court ruled that officers can take reasonable and negligibly burdensome steps related to officer safety when conducting searches incident to traffic stops without violating the Fourth Amendment.
“Our inquiry examines whether an officer has a constitutionally reasonable safety concern regarding the presence of a weapon after hearing a story inconsistent with the officer’s observations, from a driver with prior arrests for drug crimes and armed robbery, who was driving a rental car, and who was unclear about his whereabouts after leaving his residence in a city the officer knew to a be a source for drugs,” wrote Justice R. Bradley for the majority. “We conclude that he does.”
The Fourth Amendment, the majority noted, “allows unrelated investigative inquiries not related to the mission of the stop, provided such inquiries do not ‘measurably extend the duration of the stop.”
“Officer Deering’s actions and inquiries each related to officer safety, which is part of any stop’s mission,” Justice R. Bradley wrote.
“At the time Deering undertook them, the mission of the stop had not been completed, nor should it reasonably have been completed because Deering had not issued the seatbelt ticket, explained it, or released Brown from the seizure.”
Concurrence and Dissent
Justice Rebecca Dallet dissented, concluding the search of Brown’s person violated the Fourth Amendment because the traffic stop was “unreasonably extended without independent reasonable suspicion that a crime had been committed.”
“By upholding the constitutionality of this search, the majority sanctions unrestricted officer discretion to prolong a traffic stop in search of other crimes, and turns a blind eye to the discriminatory consequences of unchecked implicit bias,” Justice Dallet wrote.
Justice Dallet distinguished facts in cases relied upon by the majority to reach her conclusion, noting the officer did not order Brown out of the car for safety reasons.
“Instead, Officer Deering delayed the process of giving Brown a warning in order to investigate his hunch that Brown had committed a drug offense,” Justice Dallet wrote.
Dallet noted “empirical evidence suggests Black and Hispanic drivers are stopped more frequently, for longer, and searched more often than White drivers” and said social science research can play an important role for the U.S. Supreme Court to consider “when the law has allowed government infringement of protected civil liberties.”
“Without inquiring into the reasonableness of these delays, the duration of a traffic stop falls solely to the unfettered discretion of an officer whose judgments, like all human beings, are susceptible to implicit bias,” Justice Dallet wrote.
Justice R. Bradley, who wrote the majority opinion, also wrote a concurring opinion to rebut Justice Dallet’s dissent, and a concurrence by Appeals Court Judge Paul Reilly at the appeals court stage.
She also took issue with any suggestion that the state supreme court, in reaching prior decisions, sanctions discriminatory police practices against minority groups.
“Reasonable judges may disagree about the meaning or application of the law,” Justice R. Bradley wrote. “However, intentionally inciting racial tensions while demeaning the integrity of Wisconsin’s highest court erodes public confidence in the judiciary and damages the institution of the court.”
Justice R. Bradley also challenged Justice Dallet’s suggestion that social science research can inform court decisions in these types of cases.
“It is the Constitution itself, not the application of social science research, that protects the people from violations of their civil rights,” Justice R. Bradley wrote.
Justice Dallet responded:
“I discuss social science research on implicit bias not to depart from constitutional text as the concurrence postulates, but instead to illustrate empirically how far our jurisprudence has strayed from the original meaning of the Fourth Amendment.”
Justice Brian Hagedorn, who was on the three-judge appeals court panel that decided Brown’s first appeal in 2019, did not participate. Justice Ann Walsh Bradley withdrew from participation.