Court considers police questioning during routine stops
Officers trained to ask questions unrelated to traffic violations
By Richard Moore
When it comes to the Fourth Amendment, recent state Supreme Court decisions have come under fire from both civil-libertarian conservatives and liberals, and now yet another potentially important search and seizure case is headed its way.
This time the court will consider when and under what conditions police can expand their scope of questioning when they make routine traffic stops.
In the case, State v. John Wright, an appeals court judge, Joan Kessler, agreed with a Milwaukee circuit court that police violated the constitutional rights of John P. Wright after they stopped him for a broken headlight and then subsequently arrested him for carrying a gun in his glove compartment without a concealed carry permit.
Wright later sued to suppress the firearm evidence. He says police had no reasonable suspicion to question him about firearms, and questions unrelated to the broken headlight led to an unreasonable search and seizure.
“Based on the lack of any articulable facts supporting an actual fear that Wright posed a threat to officer safety, we conclude that police impermissibly expanded the scope of Wright’s traffic stop,” Kessler wrote in the June 12 decision.
State v. Wright is one of seven new cases the Supreme Court agreed to review last week. It will be closely watched by Fourth Amendment advocates after a string of rulings in the past several years that have expanded law enforcement’s rights under the Fourth Amendment.
In a major case in 2016, State v. Richard Weber, the court ruled 4-3 that police can follow people who refuse to stop for minor traffic violations into their garages and homes without a warrant.
In that case, conservative justice Rebecca Bradley broke ranks with her fellow conservatives and dissented along with liberal justices Ann Walsh Bradley and Shirley Abrahamson, with chief justice Patience Roggensack and justices Dan Kelly, Annette Ziegler, and Michael Gableman forming the majority.
In another 2016 decision, State v. Brett W. Dumstrey, the high court ruled that the garage of an apartment building does not constitute the curtilage of the residences of those apartments and so is not constitutionally protected against warrantless entry. Typically, garages are considered the curtilage of a single-family residence if they are located reasonably near the home.
The court’s composition has changed since those decisions. This past spring, Rebecca Dallet, a candidate supported by Democrats and liberals, won election to the court, replacing conservative Michael Gableman. Conservatives still have a one-vote edge, but, especially on Fourth Amendment cases, all eyes will be on Rebecca Bradley after the Weber decision.
The Wright case
In the summer of 2016, according to the appeals court decision, Wright was charged with one count of carrying a concealed weapon. He was charged after being stopped by two police officers on the north side of Milwaukee.
The reason for the stop: the passenger-side headlight was out.
“Wright was asked whether he had a concealed carry permit (CCW permit) and whether he had any weapons in the car,” Kessler recounted in her decision. “Wright answered that he recently took a CCW permit course and admitted that he had a firearm in the car. [The officer] subsequently found a firearm in the glove compartment. Wright was arrested and subsequently charged.”
Wright claimed there was no reason for the officers to ask him about the CCW permit or firearms.
“At a hearing on the motion, [the officer] testified that he pulled Wright over for a defective headlight on the night of June 15, 2016,” Kessler wrote. “[The officer] stated that Wright pulled over immediately and responsibly and did not make any furtive movements. [The officer] stated that upon approaching Wright’s driver-side window, [the officer] identified himself, told Wright the reason for the stop and asked for Wright’s identification.”
At that point, the officer testified, he asked Wright if he was a CCW permit holder and whether there were any weapons in the car. The officer further testified that he asked the question early in the stop and that officers were trained to ask such questions.
When asked, the court documents show, Wright answered truthfully, telling the officer he had just taken the CCW permit class, that he had finished it, and that he indeed did have a firearm in his vehicle.
Wright subsequently gave the officer permission to remove the firearm “just for the traffic stop,” the officer testified.
On cross-examination, Wright’s attorney questioned the officer about the length of the stop, the order in which the officer questioned Wright, the lack of suspicion that Wright committed or was committing a crime, and standard police procedures, the decision states.
The officer affirmed that Wright had pulled over immediately, the officer did not notice any furtive movements as he approached the car, the officer did not smell alcohol or marijuana, the officer was not aware of any prior criminal history, there were no outstanding warrants, and the officer noticed no firearms when he approached the car.
“But your first question I guess after maybe your second question after license was ... are you a CCW permit holder, right?” Wright’s attorney asked.
The officer replied that he did not know what order he asked the questions, but he said it was a “fair estimate” that the question was likely asked within a few moments of approaching the vehicle. The officer said the Milwaukee Police Department trains its offers to ask if they are concealed carry permit holders.
The issue, Kessler wrote, is whether Wright’s Fourth Amendment rights were violated when police asked Wright whether he held a CCW permit and whether he had any weapons in his vehicle.
“The state argues that the circuit court erroneously granted Wright’s motion to suppress because police had a legitimate safety interest when questioning Wright and therefore did not unlawfully extend the traffic stop,” she wrote.
Usually, Kessler observed, in a motion to suppress evidence, the court of appeals will uphold the circuit court’s findings of fact unless they are clearly erroneous, but the application of constitutional principles to those facts is a question of law that the court can decide without deference to the circuit court’s decision.
Kessler also reviewed past court decisions, observing that those decisions have established that a police officer may stop a vehicle when he or she reasonably believes the driver is violating a traffic law, and, once stopped, the driver may be asked questions reasonably related to the nature of the stop — including his or her destination and purpose.
In addition, Kessler wrote in summarizing other decisions, a stop and detention is constitutionally permissible if the officer has an “articulable suspicion that the person has committed or is about to commit [an offense].” However, that suspicion must not be based on an inchoate and “unparticularized suspicion or hunch,” she stated.
The bottom line is, Kessler quoted other decisions,“[T]he scope of questions asked during an investigative stop must bear a reasonable relationship to the reasons for which the stop was made in the first place,” and “once a justifiable stop is made ... the scope of the officer’s inquiry, or the line of questioning, may be broadened beyond the purpose for which the person was stopped only if additional suspicious factors come to the officer’s attention — keeping in mind that these factors, like the factors justifying the stop in the first place, must be ‘particularized’ and ‘objective.’”
Extending the stop
Kessler also reviewed a federal decision, Rodriguez v. United States, because, she stated, the circuit court relied on that federal decision when it found that police unlawfully extended the traffic stop by asking Wright about his CCW permit and whether Wright had a firearm.
The questions posed to Wright were unrelated to the stop, the circuit court found. In addition, the circuit court decided and Kessler agreed, Wright was not free to leave, and police training materials do not preempt Wright’s constitutional rights.
“In Rodriguez, the United States Supreme Court addressed the ‘question [of] whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff,’” Kessler wrote. “The court concluded that ‘a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation. … Authority for the seizure thus ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.’”
In the case at hand, Kessler wrote, Wright did not dispute that the initial stop for a broken headlight was justifiable.
“Rather, both his motion and the circuit court’s decision were based on the lack of any articulated ‘additional suspicious factors’ suggesting that Wright ‘committed or [was] committing an offense or offenses separate and distinct from’ the traffic violation,” she wrote. “The principles articulated in Rodriguez support Wright’s position.”
Indeed, Kessler continued, the officer testified that he asked Wright whether Wright was a CCW permit holder simply because he was “trained” to do so for “officer safety.”
“[The officer’s] testimony established that he had no particularized suspicion suggesting that Wright posed a risk to officer safety,” she wrote. “[The officer] testified that Wright pulled over promptly and responsibly, was cooperative, and did not make any furtive movements. There was no claim that Wright appeared nervous or was trying to hide anything.”
What’s more, Kessler continued, the officer did not see a firearm in the car, nor did he see anything associated with firearms in the car.
“Simply put, [the officer] could not articulate anything suspicious about the circumstances of the stop ‘separate and distinct’ from the broken headlight,” she wrote. “Nonetheless, the state contends that [the officer’s] questions were lawful because they were negligibly burdensome and did not add much time to the traffic stop.”
The state missed the point, Kessler wrote.
“Authority for [the officer’s] seizure ended when he reasonably could have issued a citation for Wright’s traffic violation,” she wrote. “Instead of inquiring about the initial purpose of the stop, however, [the officer] asked questions completely unrelated to the traffic violation.”
As such, Kessler wrote, Wright was questioned and subsequently arrested with absolutely no articulated reason for the officer to be concerned for officer safety and apparently only because a department training card suggested that he ask about a CCW permit and possession of a gun.
“The permissible contact and impermissible questions were muddled together and asked in quick succession while Wright was clearly not free to leave,” she wrote. “Based on the lack of any articulable facts supporting an actual fear that Wright posed a threat to officer safety, we conclude that police impermissibly expanded the scope of Wright’s traffic stop.”
The Rodriguez case
No case more defines what police officers can and cannot do when stopping motorists for routine traffic violations than the 2015 U.S. Supreme Court decision in Rodriguez.
Technically, the Fourth Amendment issues turn not on what a police officer may or may not ask so much as whether they can extend a stop for reasons unrelated to the purpose of the stop itself.
In Rodriguez, on a 6-3 vote, the court found that the Fourth Amendment does not allow the police to extend a traffic stop for reasons unrelated to vehicle and driver safety, even for a “de minimis” amount of time, absent reasonable suspicion.
In this case, a K-9 officer stopped Dennys Rodriguez for driving on a highway shoulder, a violation of Nebraska law. The officer went about routine business, checking the driver’s license of Rodriguez and issuing a warning for the traffic offense.
After issuing the warning, the court decision states, the officer asked Rodriguez for permission to walk his dog around the vehicle. Rodriguez refused, and the officer detained him until a second officer arrived.
The officer then walked the dog around the car, and the canine detected drugs. The ensuing search yielded methamphetamine; seven or eight minutes elapsed from the time the officer issued the written warning.
Rodriguez was indicted on federal drug charges. He moved to suppress the evidence, but the district and appeals courts upheld the seizure, declaring that, while there was no reasonable suspicion for the search, prolonging the stop by “seven to eight minutes” for the dog sniff was only a de minimis intrusion on Rodriguez’s Fourth Amendment rights and was for that reason permissible.
The U.S. Supreme Court reversed.
While the Fourth Amendment may tolerate certain unrelated investigations that do not lengthen roadside detention, the court found, a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of the stop.
“Beyond determining whether to issue a traffic ticket, an officer’s mission during a traffic stop typically includes checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance,” the decision stated. “These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.”
The Supreme Court rejected the government’s argument that, even with the de minimus intrusion, the traffic stop was fast and efficient, and therefore reasonable overall. Specifically, the decision stated, the government argued that an officer may incrementally prolong a stop to conduct a dog sniff so long as the officer is reasonably diligent in pursuing the traffic-related purpose of the stop, and the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances.
The court rejected that reasoning.
“The government’s argument, in effect, is that by completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an unrelated criminal investigation,” the decision stated. “The reasonableness of a seizure, however, depends on what the police in fact do. In this regard, the government acknowledges that ‘an officer always has to be reasonably diligent.’ How could diligence be gauged other than by noting what the officer actually did and how he did it? If an officer can complete traffic-based inquiries expeditiously, then that is the amount of ‘time reasonably required to complete [the stop’s] mission.’ As we said in Caballes and reiterate today, a traffic stop ‘prolonged beyond’ that point is ‘unlawful.’ The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket …. but whether conducting the sniff ‘prolongs’ — i.e., adds time to — ‘the stop.’”
The court also rejected the government’s argument that the government’s interest in stopping the flow of illegal drugs outweighed the defendant’s rights against even a de minimus intrusion, just as past courts have ruled that extending a stop (such as by requiring a person to exit a vehicle) for the officer’s safety outweighed the delay.
In the latter instance, however, the court found that the delay for reasons of officer safety were directly related to the mission of the traffic stop, while a delay for an unrelated criminal investigation was not.
“On-scene investigation into other crimes, however, detours from that mission,” the decision stated. “So too do safety precautions taken in order to facilitate such detours. Thus, even assuming that the imposition here was no more intrusive than [an] exit order, the dog sniff could not be justified on the same basis. Highway and officer safety are interests different in kind from the government’s endeavor to detect crime in general or drug trafficking in particular.”