State v. Burgess, 2021AP1067-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtGRAHAM, J.
PartiesState of Wisconsin, Plaintiff-Respondent, v. Bradley C. Burgess, Defendant-Appellant.
Docket Number2021AP1067-CR
Decision Date21 April 2022

State of Wisconsin, Plaintiff-Respondent,

Bradley C. Burgess, Defendant-Appellant.

No. 2021AP1067-CR

Court of Appeals of Wisconsin, District IV

April 21, 2022

Not recommended for publication in the official reports.

APPEAL from judgments of the circuit court for Lafayette County: No. 2019CF29 KARL HANSON, Judge.

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.


¶1 Bradley Burgess was a passenger in a vehicle that was pulled over by a police officer because it had a defective muffler. During the traffic stop, the officer developed reasonable suspicion that Burgess was obstructing his investigation by providing a false name. The officer eventually searched the


vehicle, and contraband that the police attributed to Burgess was found in the search. Burgess filed a motion to suppress the contraband, which was denied, and Burgess pled no contest to four offenses.

¶2 Burgess appeals his judgments of conviction, arguing that the circuit court should have granted his motion to suppress. On appeal, he does not argue that the arresting officer lacked a valid basis for the initial traffic stop, that the officer lacked a valid basis to search the vehicle, or that there was not reasonable suspicion that a crime was being committed when Burgess gave the officer a false name. Burgess's argument is that the arresting officer unlawfully prolonged the duration of the stop, contrary to Rodriguez v. U.S., 575 U.S. 348 (2015), first by asking the passengers for their names, dates of birth, and telephone numbers and running records checks on the passengers, and second by asking the driver questions unrelated to the defective muffler. We do not address Burgess's second claim of error because he does not develop an argument to support it. As for Burgess's argument related to the passenger identification and records checks, we conclude that Wisconsin law already recognizes such checks to be ordinary inquiries that are incident to a traffic stop. Therefore, these checks did not unconstitutionally prolong the stop, and we affirm the judgments of conviction.


¶3 In the early morning hours of January 24, 2019, Officer Nicholas Mantsch conducted the traffic stop that led to Burgess's arrest. The following summary of undisputed facts is derived from the circuit court's findings of fact and Mantsch's testimony, which the court found to be "clear and credible." It is supplemented by our observations from Mantsch's body camera footage, which was


played during the suppression hearing. Our observations are all consistent with the facts found by the circuit court.

¶4 Mantsch was on patrol when he observed an unoccupied vehicle he did not recognize that was legally parked outside the residence of a person he believed to use illegal drugs. Mantsch ran a license plate check and determined that the vehicle was registered to a person we identify throughout this opinion as "the driver." Mantsch learned that the driver had a valid driver's license and no active warrants, and that he was under supervision with the state department of corrections.

¶5 Shortly thereafter, Mantsch observed four individuals enter the parked vehicle, although he did not see where they came from. When the vehicle began moving, Mantsch could hear that it had a defective muffler. Mantsch suspected drug activity, and he contacted police dispatch to ask if a K-9 unit was available to respond to a traffic stop.

¶6 Mantsch followed the vehicle. Shortly after 2:00 a.m., he activated the emergency lights on his squad car, and the vehicle pulled to the side of the road. In his initial report of the incident, Mantsch stated that he stopped the vehicle to address its defective muffler. Mantsch's subsequent interactions with its occupants were recorded on his body camera, and we refer to the timestamps from the body camera footage below.

¶7 At 00:00:22, Mantsch approached the vehicle on foot. The driver handed Mantsch his license, and Mantsch engaged him in a conversation about the muffler. Mantsch told the driver that he had stopped the vehicle because the muffler was loud, and the driver agreed it was loud. Mantsch asked if the driver was aware of that, and the driver said he was. Mantsch asked if the driver planned on getting the muffler taken care of, and the driver said he did.


¶8 At 00:00:52, Mantsch turned to the passengers and asked, "You guys got IDs on you as well?" The passengers communicated that they did not have identification, and Mantsch asked each passenger for their name, date of birth, and phone number. One of the passengers declined to answer, but the other two, including Burgess, answered Mantsch's questions. Burgess identified himself as "Cody R. Kitsemble" and provided a date of birth.

¶9 At 00:03:05, Mantsch turned back to the driver and asked the following questions (followed by the driver's responses) about the group's activities that night: "Where are you guys coming from tonight?" ("Over by the fair[grounds]."); "What's over by the fair[grounds]?" ("We dropped off a buddy."); "Who's your buddy?" ("Tim"); and "Do you know, was it on Louisa Street over there?" ("I don't know street names."). Mantsch looked at the driver's license, confirmed that he still lived in Platteville, and then jotted down his phone number. Mantsch resumed his questioning of the driver as follows: "Where were you guys at before where you were dropping him off?" ("Madison"); "What's in Madison?" (his buddy was "stuck at a bar."); and "Just went to pick him up and gave him a ride home?" ("Yep.").

¶10 At 00:04:02, Mantsch told the occupants of the vehicle to "hang tight," and by 00:04:12, he was back in his squad car running records checks, starting with the driver. Another officer arrived and, as Mantsch was running the records checks, he told the second officer that he was "seeing some signs of meth use on the back seat left passenger," who was later identified as Burgess.[1]


¶11 At 00:06:17, Mantsch ran a records check on the name that Burgess had provided, and at 00:06:52, Mantsch determined that "[Burgess] gave … the wrong date of birth." Mantsch returned to the vehicle at 00:07:15 and asked Burgess to step out of the vehicle. Shortly thereafter, Burgess acknowledged that he had given a false name because he was worried he had "warrants." At that point, Burgess gave a different name and date of birth. It is undisputed that, from that point onward, Mantsch could detain Burgess based on reasonable suspicion that he had committed the crime of obstructing an officer's investigation by providing a false name.

¶12 Mantsch's investigation continued and, eventually, he removed the occupants of the vehicle and searched it.[2] During the search, the officers discovered drugs, drug paraphernalia, and other contraband.

¶13 Burgess was charged with two counts of identity theft. He was also charged with possession with intent to distribute THC, two counts of possession of drug paraphernalia, and carrying a concealed knife, all as party to a crime. He filed a motion to suppress all evidence obtained in the traffic stop arguing, among other things, that Mantsch had seized the driver and passengers "beyond the time reasonably required to complete the traffic stop."


¶14 Following the suppression hearing, the circuit court denied Burgess's motion to suppress. In its oral ruling, the court cited State v. Betow, 226 Wis.2d 90, 93, 593 N.W.2d 499 (Ct. App. 1999), and U.S. v. Johnson, 58 F.3d 356 (8th Cir. 1995), for the proposition that, "[a]s part of a traffic stop, an officer may ask for the identification of the driver, ask for the driver's purpose and his/her destination," and "that is what Officer Mantsch did in this case." The court then cited State v. Gammons, 2001 WI.App. 36, ¶24, 241 Wis.2d 296, 625 N.W.2d 623, for the proposition that an officer can ask for "the identification of the other individuals in the vehicle." The court stated that, in its view, the discussion in Gammons about passenger information checks is "harmonious" with the United States Supreme Court's guidance in Rodriguez, 575 U.S. 348. Accordingly, the circuit court concluded that Mantsch did not unlawfully prolong the stop beyond the time needed to conduct its mission by asking the driver about the group's activities that night or by conducting passenger identification and records checks-that is, it was "clear to [the court] that that was all done in the initial part of [Mantsch's] investigation and detention of the vehicle and the driver, with regard to the defective muffler."

¶15 Additionally, the circuit court determined that, by the time Burgess gave an alternative name and date of birth, a "second investigation" had begun. At that point, the court concluded, Mantsch had reasonable suspicion that Burgess was


committing the crime of obstruction, and that reasonable suspicion justified continued detention.[3]

¶16 Burgess filed a motion for reconsideration, which focused on the passenger identification and records checks. He argued that Rodriguez had fundamentally changed what officers are allowed to do during a traffic stop without unlawfully prolonging its duration, and that, following Rodriguez, G ammons is no longer a correct statement of law. He argued that Mantsch's "questioning of the passengers is not one of the Rodriguez Court's narrowly defined 'ordinary inquiries incident to the traffic stop, '" and that instead, the questioning of the passengers "measurably" and "unlawfully" extended the duration of the stop beyond its mission. Burgess did not cite or discuss Betow or Johnson in his motion for reconsideration and did not specifically argue that any questions Mantsch posed to the driver unlawfully extended the duration of the stop.

¶17 The circuit court determined that "police questions about passenger identification and verification of that information" are "ordinary inquiries," as that...

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