State v. Iverson

• Decision Date: 25 November 2015
• Docket Number: No. 2014AP515–FT.,2014AP515–FT.
• Citation: 871 N.W.2d 661,365 Wis.2d 302
• Parties: STATE of Wisconsin, Plaintiff–Appellant–Petitioner, v. Daniel S. IVERSON, Defendant–Respondent.
• Court: Wisconsin Supreme Court

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.

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.

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.

¶ 1 This is a review of an unpublished decision of the court of appeals, State v. Iverson, No. 2014AP515–FT, unpublished slip op., 2014 WL 5028203 (Wis.Ct.App.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 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, the vehicle stopped at the light before continuing north. Trooper Larsen testified that at this point in time he did not feel that 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 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 properly characterized as a "legislative codification" of 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) ).

¶ 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 Trooper Larsen's stop. Id., ¶¶ 8–10, 13. Additionally, the court of appeals read the language in Krier to imply that conduct potentially resulting only in a "mere forfeiture" does not warrant a traffic stop. The court therefore affirmed suppression of the evidence gathered by Trooper Larsen. Id., ¶¶ 12, 14.

¶ 16 On December 19, 2014, the State filed a petition for review in this court. On March 16, 2015, we granted the petition.

III. STANDARD OF REVIEW

¶ 17 "Our review of an order granting or denying a motion to suppress evidence presents a question of constitutional fact." State v. Robinson, 2010 WI 80, ¶ 22, 327 Wis.2d 302, 786 N.W.2d 463 (citation omitted). Similarly, "[w]hether there is probable cause or reasonable suspicion to stop a vehicle is a question of constitutional fact." Popke, 317 Wis.2d 118, ¶ 10, 765 N.W.2d 569 (citations omitted).

¶ 18 "When presented with a question of constitutional fact, this court engages in a two-step inquiry. First, we review the circuit court's findings of historical fact under a deferential standard, upholding them unless they are clearly erroneous. Second, we independently apply constitutional principles to those facts."

Robinson, 327 Wis.2d 302, ¶ 22, 786 N.W.2d 463 (citations omitted).

¶ 19 This case also requires us to interpret and apply Wis. Stat. § 287.81 and other relevant statutes. "Statutory interpretation and application present questions of law that we review de novo while...