State v. Brown
State v. Brown
Opinion of the Court
¶1 *164Courtney C. Brown appeals *165from a judgment of conviction for one count of possession with intent to deliver cocaine, in violation of WIS. STAT. § 961.41(1m)(cm)1r. (2017-18),
BACKGROUND
¶2 The relevant facts were testified to by Officer Christopher Deering of the Fond du Lac Police Department at the hearing on Brown's motion to suppress and are largely undisputed, except as noted. Brown also testified.
¶3 On August 23, 2013, at 2:44 a.m., Deering observed a vehicle coming from a cul-de-sac of closed businesses. Deering ran a check and learned that the vehicle was a rental car. According to Deering, "people that traffic drugs often use rental cars." Deering followed the car and saw that it did not properly stop at a stop sign. He initiated a traffic stop.
¶4 As Brown identified himself, the officer noticed that Brown was not wearing a seat belt. When asked, Brown stated that he was coming from the *166"Speedway," which was inconsistent with Deering's observation that Brown came from the cul-de-sac. To confirm, Deering asked if Brown was "coming directly from Speedway to here," to which Brown replied in the affirmative. Brown stated that he had been at his girlfriend's house earlier. He knew the intersection by the house, but he did not know the address or her last name. When asked where he was headed, Brown said, "nowhere really, right now." Brown said he was from Milwaukee. Deering testified that Milwaukee is considered a "source city for drugs."
¶5 Deering returned to his car with Brown's driver's license to write a warning for the no seat belt violation. Two other officers arrived in separate vehicles to assist. Both officers stood on the side of Brown's car, but made no contact with Brown at any point. Deering described their roles as "safety officer[s]."
¶6 Deering ran a records check and learned that Brown had many drug arrests and had been convicted of possession with intent to distribute cocaine and armed robbery. Deering inquired as to whether a canine was available to conduct a dog sniff, but was told neither the city nor county had one on duty. Deering completed the written warning.
¶7 Deering returned to Brown's car, opened the door, and asked him to step out. Deering and Brown walked to the officer's car. Deering asked Brown to place his hands behind his back. When asked why he wanted Brown out of the car, Deering explained it "would be an awkward encounter" to search someone by reaching through the window, as Deering had already planned to ask Brown to consent to a search.
¶8 Deering asked Brown if he had anything on him that Deering should know about. Brown said "no." Deering made this inquiry to find out if Brown had *167"any illegal weapons or drugs on him." When asked if he considered this traffic stop to be "high-risk," Deering testified "no." When asked if he had concerns that Brown had weapons, Deering testified, "He could have [weapons] but there was-I guess, there's no specific factors to lead to that."
¶9 Deering then asked for permission to search Brown. Deering testified that Brown consented; Brown testified that he said "no." Deering searched Brown and *893found thirteen bags of crack cocaine and approximately $500 in cash. Deering still had Brown's driver's license and the written warning.
¶10 Brown was charged with one count of possession with intent to deliver cocaine. Brown moved to suppress the evidence, asserting he was illegally stopped. After a hearing, the circuit court denied the motion, finding that the traffic stop was lawful. Brown does not appeal this ruling.
¶11 Brown then filed a motion to suppress the evidence on the ground that the officer unlawfully extended the noncriminal traffic stop beyond the initial purpose. He argued once Deering had completed writing the ticket, the stop should have been over, and Deering lacked reasonable suspicion to continue the detention by asking Brown to exit the car and to consent to a search.
¶12 The court denied the motion, finding that the officer had reasonable suspicion to extend the stop to request consent. The court assumed without deciding that Brown gave consent, stating that consent was "a separate issue" "for a different day, with potentially additional witnesses."
*168¶13 Brown pled no contest to the sole count, with the enhancer dismissed, and a judgment of conviction for one count of possession with intent to deliver cocaine was entered. Brown was sentenced to two years of initial confinement followed by two years of extended supervision.
¶14 Brown appeals his conviction, challenging the circuit court's order denying his motion to suppress.
STANDARD OF REVIEW
¶15 The constitutionality of a seizure is a question of constitutional fact. State v. Floyd ,
DISCUSSION
¶16 Here, the circuit court found the initial stop to be lawful.
¶17 We agree with the State that we need not determine whether reasonable suspicion supported the requests to exit the car and for consent to search during the lawful traffic stop. State v. Wright ,
*894¶18 The United States and Wisconsin Constitutions protect the right of individuals to be free from unreasonable searches and seizures. U.S. CONST. amend. IV ; WIS. CONST. art. I, § 11 ; see also Floyd ,
¶19 A law enforcement officer may temporarily detain individuals and perform an investigatory stop of a vehicle based on reasonable suspicion of a noncriminal traffic violation. Floyd ,
¶20 Deering's request that Brown exit the vehicle was plainly within the stop's mission. "Because traffic stops are 'especially fraught with danger to police officers,' " "an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely," including ordering the driver and passengers out of the car for the duration of the stop.
¶21 Deering's asking of Brown if he would consent to a search also fell within the mission of the traffic stop. See Wright ,
¶22 In Floyd , the Wisconsin Supreme Court concluded that asking the driver if he had any weapons and asking for permission to frisk him, which he granted, were part of the original traffic stop mission.
*895¶23 Before he returned to Brown's vehicle, Deering was aware of Brown's many drug-related arrests and convictions for possession with intent to deliver cocaine and armed robbery. It was 2:44 a.m.; the vehicle was coming from a dead-end road of closed businesses; the vehicle was a rental; Brown falsely claimed that he was coming from a gas station; and he claimed he drove from Milwaukee to Fond du Lac to visit his girlfriend, although he did not know her last name or precise address. While Deering testified that he was focused on a search for both weapons and drugs, it is the objective conduct of the officer we analyze for reasonableness; an officer's subjective intent or hope to uncover unrelated criminal conduct is irrelevant unless it manifests objectively. See Whren v. United States ,
*172¶24 The totality of the facts relating to Brown's behavior and his criminal past added to the safety hazard inherent in all traffic stops and thus supported the request for consent to search. See State v. Richardson ,
CONCLUSION
¶25 The law enforcement officer's request that Brown exit the car and for consent to search did not violate the Fourth Amendment. We therefore uphold the circuit court's order denying Brown's motion to suppress and affirm the judgment.
By the Court. -Judgment affirmed.
All references to the Wisconsin Statutes are to the 2017-18 version.
The Honorable Dale English presided over the case at the time of this hearing.
We note the circuit court also concluded that, before the requests to exit the car and for consent to search, Deering had not returned Brown's license or handed him the written warning. This finding was not clearly erroneous. Although Deering testified that he did not remember whether he handed Brown the license and warning before the requests, he also indicated that he "probably [did] not." Brown testified that he did not receive his license or the warning before the requests.
Although Brown disagrees with the State's characterization of Deering's request for consent as "quick" in that Deering had Brown first exit the vehicle and walk to the police car, Brown does not assert that the length of the stop itself was substantial or unreasonable. Brown does not point to anything in the record, and we see none, indicating that the length of time between Deering's first contact with Brown and the request to consent was anything but short.
Concurring Opinion
¶26 I respectfully concur, but I do so because I must. See *173Cook v. Cook ,
¶27 Absent from Wright and Floyd is the well-known Fourth Amendment jurisprudence that prohibits extending a traffic stop unless "during a valid traffic stop, the officer becomes aware of additional suspicious factors which are sufficient to give rise to an articulable suspicion that the person has committed or is committing an offense or offenses separate and distinct from the acts that prompted the officer's intervention in the first place," which would allow the stop to "be *174extended and a new investigation begun." State v. Betow ,
¶28 The "request" to search in both Floyd and this case were made after the reason for the stop was over. The officer in Floyd had finished writing the traffic citations and had returned to Floyd's car to give him his citations, but he first ordered Floyd out of the car, asked Floyd if he had any weapons, and when Floyd said "he did not," the officer searched Floyd "for his safety" whereupon he found drugs. Floyd ,
¶29 Here, the officer had also finished writing the traffic warning. Brown was stopped for not properly stopping at a stop sign, and when Officer Deering made contact with Brown, he noticed that Brown was not wearing his seatbelt. Majority, ¶¶3-4. Deering wrote a warning for the seat belt violation, and upon returning to Brown's car to give him the completed warning, Deering opened Brown's car door, asked him to step out, walked him to the squad car, asked him to place his hands behind his back, and asked Brown for permission *175to search his person. Majority, ¶¶5-7, 9. Deering admitted that he did not consider his encounter with Brown to be a "high-risk" stop and that he had "no specific factors" that led him to be concerned that Brown had any weapons. Majority, ¶8. Brown, like Floyd, also happened to be a black male who was driving in the wrong place at the wrong time: in Fond du Lac with a rental car from a city (Milwaukee) that Deering considered a known "drug source city."
¶30 Common sense dictates that when an officer walks up to a person's car with a warning or minor traffic ticket that the reason for the seizure is over absent any new factors. See Wright ,
¶31 Wright and Floyd take general statements from Rodriguez
¶32 The rub of Wright and Floyd is that the removal and consent to frisk is left to officer discretion without any foundational requirement of reasonable suspicion to do so. If reasonable suspicion is not required, then we are authorizing and condoning the profiling of persons on something other than "additional suspicious factors which are sufficient to give rise to an articulable suspicion" that the person has or is committing a crime separate and distinct from the minor traffic violation. See Betow ,
¶33 We have made mistakes before. In 1857, the United States Supreme Court wrote in *177Scott v. Sandford (Dred Scott) ,
¶34 I also object to Wright and Floyd on practical grounds as we do not protect police officers by having them continue a seizure beyond its lawful purpose. See State v. Smith ,
¶35 I reiterate my concurrence in State v. Floyd ,
"Worked quickly" is in reference to the mandate found in Rodriguez v. United States , --- U.S. ----,
Statements including that the government's interest in officer safety "stems from the mission of the stop itself," that "[t]raffic stops are 'especially fraught with danger to police officers,' " and that "an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely." Rodriguez ,
Reference
- Full Case Name
- STATE of Wisconsin, Plaintiff-Respondent v. Courtney C. BROWN
- Cited By
- 5 cases
- Status
- Published