State Of Wis. v. Humphrey
| Decision Date | 17 November 2010 |
| Docket Number | Cir. Ct. No. 2009CF50,Appeal No. 2009AP2797-CR |
| Parties | State of Wisconsin, Plaintiff-Appellant, v. Rosalyn Y. Humphrey, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
APPEAL from an order of the circuit court for Fond du Lac County: STEVEN W. WEINKE, Judge. Reversed and cause remanded.
Before Brown, C.J., Neubauer, P.J., and Reilly, J
¶1 The State has appealed from an order suppressing evidence seized from a motor vehicle owned and operated by the defendant, Rosalyn Humphrey. A deputy sheriff seized marijuana from a duffle bag in the trunk of Humphrey's car after stopping her for speeding. Humphrey was chargedwith possession of marijuana with intent to deliver as a repeat drug offender. Because we conclude that the evidence was seized pursuant to a valid consent search, we reverse the suppression order and remand the matter for further proceedings consistent with this decision.
¶2 Fond du Lac County Deputy Sheriff Steven Kastenschmidt, the officer who conducted the search of Humphrey's vehicle, was the only witness to testify at the suppression hearing. Kastenschmidt testified that on February 25, 2009, he was working a traffic enforcement detail on Highway 41 with another officer, Deputy Borgen. Kastenschmidt indicated that Borgen was operating "laser" on Highway 41 and County B, and that he was the "chase car" positioned by the overpass. Kastenschmidt testified that shortly before 4:00 p.m., Borgen radioed him that a vehicle going 77 miles per hour and which Borgen believed to be a Chrysler was just passing beneath the overpass. Kastenschmidt testified that he looked down and saw Humphrey's green Chrysler. He testified that this was the only Chrysler that came under the overpass at this time, and that he stopped the vehicle for speeding.
¶3 Kastenschmidt testified that when he stopped the vehicle, he told Humphrey that she had been stopped because the officer on the overpass "had her on laser at 77 miles per hour." Kastenschmidt testified that Humphrey commented that she was trying to keep up with the flow of traffic.
¶4 Kastenschmidt testified that he told Humphrey to remain seated while he checked her driver's license. He testified that he then ran a check of Humphrey's license and an abbreviated criminal history check. He testified that based upon the criminal history check, he called for assistance from anotherofficer. He testified that he completed a written warning for speeding while he waited for the other squad car to arrive.
¶5 Kastenschmidt testified that after the other officer arrived, he asked Humphrey to exit her vehicle and stand off to the shoulder between Humphrey's vehicle and Kastenschmidt's squad car so that he would not be standing in traffic while he explained the warning to her. He testified that he then gave the warning to Humphrey and explained it to her. He testified that after he finished explaining the warning, he told her "that she was free to go." He testified that he then made a slight turn towards his squad car to start heading back to it, and Humphrey started walking back to her car. Kastenschmidt testified that he then asked Humphrey if she would give him consent to search her vehicle.
¶6 Kastenschmidt testified that in response to his question, Humphrey asked him what he was looking for and he told her that he was looking for any type of illegal contraband that she was not supposed to have. He testified that she asked him to explain what he meant, and he told her "guns, bombs, knives, anything illegal that she wasn't suppose to have." Kastenschmidt testified that Humphrey then told him yes, that he could search her vehicle.
¶7 The record indicates that after searching the interior of the vehicle, Kastenschmidt opened the locked trunk. At the suppression hearing, Kastenschmidt testified that he took the keys from the ignition to open the trunk, and did not specifically request consent to search it.1 Kastenschmidt indicated thatthe trunk contained a duffle bag, and that Humphrey told him that it belonged to a friend of hers, but would not give him the friend's name. Kastenschmidt opened the duffle bag, which contained a duct-taped package. Kastenschmidt testified that Humphrey denied knowing what was in the package. He testified that he then "did ask her since it was not her duffle bag and the package was not hers, if she had any objections to me opening the packaging to see what was wrapped inside it, and she said no, that I could look inside it to see what was inside." Kastenschmidt testified that he tore open a corner of the package, discovered marijuana, and arrested Humphrey. Kastenschmidt testified that Humphrey was not in custody and was free to go during the search until the time he discovered the marijuana and arrested her.
¶8 The trial court suppressed the evidence seized by Kastenschmidt on the ground that the traffic stop ended when Kastenschmidt told Humphrey she was free to go. It concluded that Kastenschmidt was not entitled to ask Humphrey for consent to search the vehicle after the traffic stop ended.
¶9 On appeal, the State contends that the search was valid because Kastenschmidt lawfully stopped Humphrey for speeding and, after the traffic stop was concluded, was entitled to ask her to consent to a search of her car for contraband. The State contends that Humphrey was not seized when she consented to the search and that her voluntary consent extended to the search of the trunk, duffle bag, and wrapped package. We agree with the State's analysis of the evidence and relevant case law, and reverse the suppression order.
¶10 Initially, we address Humphrey's contention that Kastenschmidt's initial stop of her vehicle was illegal.2 Nothing in the record supports this argument. An officer may conduct a traffic stop when he or she has probable cause to believe that a traffic violation has occurred or when, under the totality of the circumstances, he or she has grounds to reasonably suspect that a traffic violation has been committed. State v. Popke, 2009 WI 37, ¶13, ¶23, 317 Wis. 2d 118, 765 N.W.2d 569. In making a stop, an officer may rely on information received from another officer. State v. Young, 212 Wis. 2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997). The question is whether the collective information among the officers is adequate to sustain the stop. Id.
¶11 Whether undisputed facts establish reasonable suspicion justifying an investigative stop by police presents a question of constitutional fact subject to de novo review. See State v. Colstad, 2003 WI App 25, ¶8, 260 Wis. 2d 406, 659 N.W.2d 394. As set forth above, Kastenschmidt testified that Borgen radioed him that a car he believed to be a Chrysler was going 77 miles per hour and was just passing beneath the overpass. Even though the officers may have lacked more detailed information as to the license number of the car or the precise kind of vehicle it was, based on Kastenschmidt's testimony that Humphrey's green Chrysler was the only Chrysler that came under the overpass at this time, Kastenschmidt was entitled to stop the car for speeding. Because Kastenschmidt had probable cause or, at minimum, reasonable suspicion to believe that Humphrey had committed a traffic violation, no basis exists to conclude that the initial stop of Humphrey's vehicle was illegal.
¶12 The next issue is whether Humphrey validly consented to the search of her vehicle. Although warrantless searches are per se unreasonable under the Fourth Amendment, exceptions to the warrant requirement exist, including an exception for searches conducted pursuant to voluntarily given consent. State v. Luebeck, 2006 WI App 87, ¶7, 292 Wis. 2d 748, 715 N.W.2d 639. Consent searches are standard, accepted investigative law enforcement devices and are not in any general sense constitutionally suspect. State v. Williams, 2002 WI 94, ¶19, 255 Wis. 2d 1, 646 N.W.2d 834. However, a search authorized by consent is not valid if consent was given while the individual was illegally seized. Luebeck, 292 Wis. 2d 748, ¶7.
¶13 When a Fourth Amendment suppression issue is raised, this court gives deference to the trial court's findings of evidentiary or historical fact, but determines questions of constitutional fact independently. Id., ¶8. Whether a defendant was seized within the meaning of the Fourth Amendment at the time he or she consented to a search is a question of constitutional fact that we review de novo. Id.
¶14 The evidence that Humphrey consented to the search of her vehicle was undisputed. Based upon Williams, we conclude that she was not seized when she gave her consent, and that the consent was valid.
¶15 Not every encounter with a law enforcement officer is a seizure within the meaning of the Fourth Amendment. Williams, 255 Wis. 2d 1, ¶20. The general rule is that a seizure has occurred when an officer by means of physical force or show of authority has in some way restrained a citizen's liberty. Id.
Questioning by an officer does not alone effectuate a seizure. Id., ¶22. The test to determine whether a person is seized is whether, considering the totality of the circumstances, a reasonable person would have believed that he or she was free to leave or otherwise terminate the encounter. Luebeck, 292 Wis. 2d 748, ¶7. The test is an objective one, focusing not on whether the defendant felt free to leave, but whether a reasonable person, under all of the circumstances, would have felt free to leave.3 Williams, 255 Wis. 2d 1, ¶23.
¶16 In Williams, an officer stopped the defendant for speeding. Id., ¶5. After asking the defendant to step out of the car, the officer issued a...
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