State v. Brown

Decision Date05 June 2019
Docket NumberAppeal No. 2017AP774-CR
Citation931 N.W.2d 890,388 Wis.2d 161,2019 WI App 34
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Courtney C. BROWN, Defendant-Appellant.
CourtWisconsin Court of Appeals

388 Wis.2d 161
931 N.W.2d 890
2019 WI App 34

STATE of Wisconsin, Plaintiff-Respondent,
v.
Courtney C. BROWN, Defendant-Appellant.

Appeal No. 2017AP774-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: March 14, 2018
Opinion Filed: June 5, 2019


On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy T. O’Connell of O’Connell Law Office, Green Bay.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of David H. Perlman, assistant attorney general, and Brad D. Schimel, attorney general.

Before Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

NEUBAUER, C.J.

¶1

388 Wis.2d 164

Courtney C. Brown appeals

388 Wis.2d 165

from 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),1 as a repeater. Brown’s conviction followed the discovery of cocaine on

931 N.W.2d 892

his person after he was pulled over by a police officer for a noncriminal traffic violation. Brown contends that the circuit court erred in denying his motion to suppress evidence. He argues that the officer lacked reasonable suspicion to continue the detention of Brown during the traffic stop when the officer requested that Brown exit the car and consent to a search of Brown’s person after the officer wrote a warning ticket. Brown contends that the requests unlawfully extended the duration of the traffic stop. We disagree and therefore affirm.

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

388 Wis.2d 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

388 Wis.2d 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

931 N.W.2d 893

found 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."2

388 Wis.2d 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 , 2017 WI 78, ¶11, 377 Wis. 2d 394, 898 N.W.2d 560. We uphold a circuit court’s findings of historical fact unless clearly erroneous, but whether those facts pass constitutional muster is a question of law we review de novo. Id.

DISCUSSION

¶16 Here, the circuit court found the initial stop to be lawful.3 Brown does not challenge that determination on appeal. While Brown denied consenting at the motion hearing, the circuit court held the consent issue in abeyance for a further hearing, finding that reasonable suspicion supported the extension and request

388 Wis.2d 169

to search, and denying the motion to suppress. Brown pled to the charge without further pursuing a challenge to the voluntariness of his consent. On appeal, he argues only that the requests to exit the vehicle and to consent to a frisk improperly extended the stop, such that his consent was constitutionally invalid.

¶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 , 2019 WI 45, 386 Wis. 2d 495, ¶11, 386 Wis. 2d 495, 926 N.W.2d 157, Floyd , 377 Wis. 2d 394, 898 N.W.2d 560, and the United States Supreme Court cases upon which they are based clearly establish that the requests were part of the mission of the traffic stop, and thus were not an extension of the stop.

931 N.W.2d 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 , 377 Wis. 2d 394, ¶19, 898 N.W.2d 560 ("[W]e normally interpret [the Wisconsin counterpart] coextensively with the United States Supreme Court’s interpretation of the Fourth Amendment."). A traffic stop is a form of seizure entitled to Fourth Amendment protections from unreasonable search and seizures. Floyd , 377 Wis. 2d 394, ¶20, 898 N.W.2d 560 ; State v. Guzy , 139 Wis. 2d 663, 675, 407 N.W.2d 548 (1987).

¶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 , 377 Wis. 2d 394, ¶20, 898 N.W.2d 560. The "tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop and

388 Wis.2d 170

attend to related safety concerns." Wright , ...

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5 cases
  • State v. Brown
    • United States
    • United States State Supreme Court of Wisconsin
    • July 3, 2020
    ...as the search itself, were part of the mission of the traffic stop and not an unlawful extension under the Fourth Amendment. See State v. Brown, 2019 WI App 34, ¶¶17, 25, 388 Wis. 2d 161, 931 N.W.2d 890. Brown filed a petition for review, which we granted.II. STANDARD OF REVIEW ¶8 A party s......
  • State v. Sanders
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    • Court of Appeals of Wisconsin
    • August 7, 2019
    ..., 2019 WI 45, ¶¶32-34, 386 Wis. 2d 495, 926 N.W.2d 157 ; State v. Floyd , 2017 WI 78, ¶¶26-28, 377 Wis. 2d 394, 898 N.W.2d 560 ; State v. Brown , 2019 WI App 34, ¶¶19-21, 388 Wis. 2d 161, 931 N.W.2d 890. The jury is a foundation of our justice system as it removes the government from being ......
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    • Court of Appeals of Wisconsin
    • January 14, 2020
    ...for any of Stone’s or Puetz’s conduct.The Supreme Court of Wisconsin recently granted a petition for review in State v. Brown , 2019 WI App 34, 388 Wis. 2d 161, 931 N.W.2d 890. That case involved a request during a traffic stop that the defendant exit his vehicle and consent to a search of ......
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    ...near the end of the stop, the precaution of requesting a search was still justifiable, as the officer was still at risk. See State v. Brown, 931 N.W.2d 890, ¶¶ 23-24 (Wis. Ct. App. 2019) (detainee's criminal history supported request for consent to search near the end of traffic stop becaus......
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