State v. Iverson, No. 2014AP515–FT.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtANNETTE KINGSLAND ZIEGLER, J.
Citation871 N.W.2d 661,365 Wis.2d 302
Decision Date25 November 2015
Docket NumberNo. 2014AP515–FT.
Parties STATE of Wisconsin, Plaintiff–Appellant–Petitioner, v. Daniel S. IVERSON, Defendant–Respondent.

365 Wis.2d 302
871 N.W.2d 661

STATE of Wisconsin, Plaintiff–Appellant–Petitioner,
v.
Daniel S. IVERSON, Defendant–Respondent.

No. 2014AP515–FT.

Supreme Court of Wisconsin.

Argued Sept. 8, 2015.
Decided Nov. 25, 2015.


871 N.W.2d 663

For the plaintiff-appellant-petitioner, the cause was argued by Donald V. Latorraca, assistant attorney general, with whom on the briefs was Brad D. Schimel, Attorney General.

871 N.W.2d 664

For the defendant-respondent, there was a brief by Joseph G. Veenstra and Johns, Flaherty & Collins, S.C., La Crosse, and oral argument by Joseph G. Veenstra.

ANNETTE KINGSLAND ZIEGLER, J.

365 Wis.2d 309

¶ 1 This is a review of an unpublished decision of the court of appeals, State v. Iverson, No. 2014AP515–FT, unpublished slip op., 2014 WL 5028203 (Wis.Ct.App. Oct. 9, 2014), which affirmed the order of the La Crosse County circuit court1 granting defendant Daniel S. Iverson's ("Iverson") motion to suppress evidence of drunk driving obtained by an officer of the state traffic patrol during a traffic stop of Iverson's vehicle.

¶ 2 Iverson asserts that the officer lacked authority to seize Iverson's vehicle to investigate the violation of a state statute prohibiting littering, Wis. Stat. § 287.81 (2011–12).2 Iverson argues in the alternative that the officer lacked probable cause or reasonable suspicion that a violation of the littering statute had occurred.

¶ 3 The central issue before us in this case is whether the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution permit an officer of the state traffic patrol to stop a vehicle based solely on the officer's observation of the commission of a non-traffic civil forfeiture offense by an occupant of that vehicle.

¶ 4 We conclude that: (1) the Wisconsin Legislature has explicitly authorized state troopers to conduct traffic stops in order to investigate violations of Wis. Stat. § 287.81 and to arrest violators of the statute under specified conditions; (2) a traffic stop to enforce § 287.81 is generally reasonable if an officer has probable cause or reasonable suspicion that a violation of § 287.81 has occurred; (3) discarding a cigarette butt

365 Wis.2d 310

onto a highway violates § 287.81 ; and (4) based on his observations, the officer in this case had probable cause to believe that an occupant of Iverson's vehicle had violated § 287.81 by throwing a cigarette butt onto the highway.

¶ 5 The defendant's motion to suppress evidence obtained during this traffic stop and to dismiss this case should have been denied. We reverse the decision of the court of appeals and remand the case to the circuit court for reinstatement of charges and further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

¶ 6 On January 29, 2014, Wisconsin State Patrol Trooper Michael Larsen ("Trooper Larsen") testified at a hearing on Iverson's motion to suppress evidence. The following facts are taken from his testimony.

¶ 7 On September 18, 2013, at about 1:00 a.m., Trooper Larsen was traveling northbound on Rose Street in the City of La Crosse. He observed a silver jeep in front of him drift within its lane toward the centerline and back. The vehicle did not cross the centerline or strike the curb. The vehicle approached an intersection secured by a flashing yellow traffic light. Although there was no traffic at the intersection, the vehicle came to a complete stop at the light before continuing past the intersection. The vehicle then arrived at a second flashing yellow light. Again, despite a lack of traffic at the intersection,

871 N.W.2d 665

the vehicle stopped at the light before continuing north. Trooper Larsen testified that at this point in time he did not feel that

365 Wis.2d 311

he possessed the reasonable suspicion necessary to conduct a traffic stop.3

¶ 8 Trooper Larsen then observed a cigarette butt "being thrown from the passenger side of the vehicle." The cigarette butt hit the ground and scattered ashes across the right lane of the road. After crossing an overpass, Trooper Larsen initiated a traffic stop of the vehicle. Trooper Larsen testified that the reason for the stop was the ejection of the cigarette butt from the vehicle he had been following. He relied upon Wis. Stat. § 287.81, entitled "Littering," which states in relevant part:

[A] person who does any of the following may be required to forfeit not more than $500:

(a) Deposits or discharges any solid waste on or along any highway, in any waters of the state, on the ice of any waters of the state or on any other public or private property.

(b) Permits any solid waste to be thrown from a vehicle operated by the person.

Wis. Stat. § 287.81(2)(a)–(b). Trooper Larsen informed the driver of the vehicle, Iverson, that a cigarette butt had been thrown out of Iverson's vehicle. Iverson denied knowledge, but the passenger admitted responsibility and stated that he had not known that the action was illegal.

¶ 9 Trooper Larsen eventually cited Iverson for operation of a motor vehicle while under the influence of an intoxicant, in violation of

365 Wis.2d 312

Wis. Stat. § 346.63(1)(a), and operation of a motor vehicle with a prohibited alcohol concentration, first offense, in violation of § 346.63(1)(b).4

II. PROCEDURAL BACKGROUND

¶ 10 On October 17, 2013, Iverson pleaded not guilty to the violations alleged in the traffic citations he had received. On December 27, 2013, Iverson filed a motion to suppress any and all evidence obtained following the stop of his vehicle and to dismiss the case. At the January 9, 2014 hearing on the motion, the La Crosse County circuit court granted Iverson's motion. The court stated:

[Trooper Larsen] wasn't stopping [Iverson] to cite him for the litter. He was stopping him to see if he was a drunk driver.... The litter is the excuse, and if that cigarette butt comes out of the driver's side, I'm with you, Trooper ... but not out of the passenger side.

On January 14, 2014, the court entered an order granting the motion to suppress evidence and to dismiss the case. On February 26, 2014, the State filed a notice of appeal.

¶ 11 On October 9, 2014, the court of appeals affirmed the circuit court's order on different grounds. It found that "an articulable suspicion or probable cause of violation of a forfeiture that is not a violation of a traffic regulation is [not] sufficient justification for a warrantless seizure of a citizen." See State v. Iverson, No. 2014AP515–FT, unpublished slip op., ¶ 11, 2014 WL 5028203 (Wis.Ct.App. Oct. 9, 2014).

¶ 12 In reaching its conclusion, the court of appeals first examined Wis. Stat. § 968.24, which it

365 Wis.2d 313

properly characterized as a "legislative codification" of

871 N.W.2d 666

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Iverson, No. 2014AP515–FT, unpublished slip op., ¶ 6; see State v. Post, 2007 WI 60, ¶ 11, 301 Wis.2d 1, 733 N.W.2d 634. The statute authorizes law enforcement officers to conduct temporary questioning without arrest "when the officer reasonably suspects that such a person is committing, is about to commit or has committed a crime." Wis. Stat. § 968.24.

¶ 13 The court of appeals further noted that Wis. Stat. § 345.22 permits warrantless arrests for violations of traffic regulations. Iverson, No. 2014AP515–FT, unpublished slip op., ¶ 10. The court of appeals reviewed our decision in State v. Popke, 2009 WI 37, 317 Wis.2d 118, 765 N.W.2d 569, where we held that "[e]ven if no probable cause exist[s], a police officer may still conduct a traffic stop when, under the totality of the circumstances, he or she has grounds to reasonably suspect that a crime or traffic violation has been or will be committed." Id., ¶ 8 (quoting State v. Popke, 2009 WI 37, ¶ 23, 317 Wis.2d 118, 765 N.W.2d 569 ) (emphases added) (citation omitted).

¶ 14 Finally, the court of appeals quoted from one of its own decisions, State v. Krier, 165 Wis.2d 673, 478 N.W.2d 63 (Ct.App.1991), in which it had held that where an individual's conduct might constitute either a civil forfeiture or a crime, depending on the nature of the conduct and on whether the individual is a repeat offender, "[j]ust as there is no prohibition for stopping [an individual] because the behavior may end up being innocent, there is also no prohibition for stopping because the behavior may end up constituting a mere forfeiture." Id., ¶ 12 (quoting State v. Krier, 165 Wis.2d 673, 678, 478 N.W.2d 63 (Ct.App.1991) ).

365 Wis.2d 314

¶ 15 The court of appeals reasoned that, because littering in violation of Wis. Stat. § 287.81 is not a crime or traffic violation,5 NEITHER terRY, nor wis. stat. § 968.24, NOR WIS. stat. § 345.22, nor Popke authorized...

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18 practice notes
  • State v. Stietz, No. 2014AP2701-CR
    • United States
    • Wisconsin Supreme Court
    • June 13, 2017
    ...to, among others, "a person who has authority to act pursuant to a specific statute." See, e.g. , State v. Iverson , 2015 WI 101, ¶41, 365 Wis. 2d 302, 871 N.W.2d 661 (state troopers). Thus, given that many different types of law enforcement officers fall within the terms of § 23.58(1), the......
  • State v. Delap, No. 2016AP2196-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 6, 2018
    ...fact." State v. Robinson, 2010 WI 80, ¶ 22, 327 Wis. 2d 302, 786 N.W.2d 463 ; see also State v. Iverson, 2015 WI 101, ¶ 17, 365 Wis. 2d 302, 871 N.W.2d 661 (quoting Robinson ).382 Wis.2d 100 ¶ 27 "When presented with a question of constitutional fact, this court engages in a two-step inquir......
  • State v. Matalonis, No. 2014AP108–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 10, 2016
    ...Wis.2d 694, 875 N.W.2d 545 ; New Richmond News, 2015 WI 106, ¶ 4, 365 Wis.2d 610, 875 N.W.2d 107 ; State v. Iverson, 2015 WI 101, ¶ 62, 365 Wis.2d 302, 871 N.W.2d 661.366 Wis.2d 488¶ 76 The per curiam opinion in New Richmond News explained Justice Rebecca G. Bradley's non-participation thus......
  • New Richmond News v. City of New Richmond, No. 2014AP1938.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 18, 2015
    ...).5 Per curiam, ¶ 1. Justice Rebecca G. Bradley did not participate in the court's decision in State v. Iverson, 2015 WI 101, ¶ 62, 365 Wis.2d 302, 871 N.W.2d 661, heard before Justice Rebecca G. Bradley joined the court.6 At least one case suggests that an equally divided United States Sup......
  • Request a trial to view additional results
18 cases
  • State v. Stietz, No. 2014AP2701-CR
    • United States
    • Wisconsin Supreme Court
    • June 13, 2017
    ...to, among others, "a person who has authority to act pursuant to a specific statute." See, e.g. , State v. Iverson , 2015 WI 101, ¶41, 365 Wis. 2d 302, 871 N.W.2d 661 (state troopers). Thus, given that many different types of law enforcement officers fall within the terms of § 23.58(1), the......
  • State v. Delap, No. 2016AP2196-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 6, 2018
    ...fact." State v. Robinson, 2010 WI 80, ¶ 22, 327 Wis. 2d 302, 786 N.W.2d 463 ; see also State v. Iverson, 2015 WI 101, ¶ 17, 365 Wis. 2d 302, 871 N.W.2d 661 (quoting Robinson ).382 Wis.2d 100 ¶ 27 "When presented with a question of constitutional fact, this court engages in a two-step inquir......
  • State v. Matalonis, No. 2014AP108–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 10, 2016
    ...Wis.2d 694, 875 N.W.2d 545 ; New Richmond News, 2015 WI 106, ¶ 4, 365 Wis.2d 610, 875 N.W.2d 107 ; State v. Iverson, 2015 WI 101, ¶ 62, 365 Wis.2d 302, 871 N.W.2d 661.366 Wis.2d 488¶ 76 The per curiam opinion in New Richmond News explained Justice Rebecca G. Bradley's non-participation thus......
  • New Richmond News v. City of New Richmond, No. 2014AP1938.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 18, 2015
    ...).5 Per curiam, ¶ 1. Justice Rebecca G. Bradley did not participate in the court's decision in State v. Iverson, 2015 WI 101, ¶ 62, 365 Wis.2d 302, 871 N.W.2d 661, heard before Justice Rebecca G. Bradley joined the court.6 At least one case suggests that an equally divided United States Sup......
  • Request a trial to view additional results

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