from a judgment and an order of the circuit court for Racine
County, No. 2013CF982 ALLAN B. TORHORST, Judge.
Reilly, P.J., Gundrum and Hagedorn, JJ.
Lewis Floyd, Jr., appeals his judgment of conviction, arguing
the circuit court erred in denying his motion to suppress
evidence of illegal drugs discovered on him during a traffic
stop. He contends the arresting deputy unlawfully (1)
extended the stop beyond the time necessary to issue various
citations and (2) searched Floyd's person without his
voluntary consent. Floyd also appeals the denial of his
postconviction motion, asserting his trial counsel performed
ineffectively by failing to call as a witness at the
suppression hearing another officer at the scene to testify
that the deputy did not ask Floyd if he could search
him but told Floyd he was going to do so. Floyd
contends that if this officer had been called to the stand,
the circuit court would not have found Floyd's consent to
the search to have been voluntary and the evidence of illegal
drugs would have been suppressed. For the following reasons,
Based upon evidence discovered during a traffic stop, the
State charged Floyd with two counts of possession with intent
to deliver a controlled substance, as second and subsequent
offenses, and two related counts of bail jumping. Floyd moved
to suppress the evidence. The Racine County Sheriff's
deputy who conducted the traffic stop was the only witness to
testify at the hearing on the motion, and his relevant
testimony is as follows.
Around 6:45 p.m. on July 23, 2013, the deputy stopped
Floyd's vehicle due to the registration being suspended.
During the deputy's two-to-three-minute initial contact
with Floyd, Floyd informed the deputy he had neither a
driver's license nor insurance, but provided his
Wisconsin identification card, from which the deputy
eventually determined Floyd's address was in Kenosha.
During this initial contact, the deputy also observed
"air fresheners in every vent of the vehicle as well as
hanging off the rear view mirror." Based on his six
years of training and experience as a law enforcement
officer-in which the majority of his duties for five and
one-half years consisted of performing traffic stops-the
deputy suspected "there might be some criminal activity
going on in the vehicle" because "[u]sually the air
fresheners or the amount of them are-is an agent that is used
to mask the smell of narcotics." The deputy knew the
area of the stop to be a "high crime area" with
"large quantities" of drug and gang activity, and
further suspected possible criminal activity because of the
time of day, the windows of Floyd's vehicle were tinted,
and Floyd was alone in the vehicle. There was both vehicular
and pedestrian traffic in the area at the time of the stop.
After observing the air fresheners, the deputy returned to
his squad and prepared three citations for Floyd related to
the suspended registration and lack of insurance and a
driver's license, and contacted dispatch to request a
canine unit or alternatively a "cover" squad. No
canine unit was available, but a City of Racine police
officer was sent to the scene.
After about five or six minutes, the deputy reinitiated
contact with Floyd. Still in possession of the three
citations and Floyd's identification card, the deputy
asked Floyd to exit the vehicle, which Floyd did, so that the
deputy could explain the citations to him. According to the
deputy, at that point Floyd was "not free to leave"
because the deputy still had to explain the citations to him
and return his identification. The deputy confirmed at the
hearing that he could have explained the citations to Floyd
while Floyd remained seated in the vehicle, however, he had
Floyd exit the vehicle "to make sure that he did not
I wanted to obviously make sure that he understood I was not
going to allow him to drive away from the scene. He did not
have a valid driver's license. Whether or not he needed a
ride, I would give him a ride to somewhere, if he wanted to
walk from there, but I was not going to allow him to drive
away from the scene.
As Floyd exited the vehicle, the deputy asked him if he had
"any weapons or anything on him that could hurt"
the deputy, to which Floyd responded that he did not. The
deputy "asked him then if I could search him for my
safety and he said yes, go ahead." During the search,
the deputy located illegal drugs that led to the charges in
The circuit court found the deputy had observed air
fresheners "all over the place, " and in the
deputy's experience "air fresheners are utilized by
people with drugs to mask odors that the drugs may emit in a
closed space." The court concluded the deputy had
reasonable suspicion to extend the traffic stop beyond just
addressing the citations because of the air fresheners, as
well as "the tinted windows, the time of the day, that
Mr. Floyd was alone in his vehicle, he's from
Kenosha." The court further found that the deputy
"[a]sked him to get out of the vehicle and Mr. Floyd in
fact consented to a search of his person." Regarding the
deputy having Floyd exit the vehicle, the court stated:
Whether the purpose of getting Floyd out was to make sure he
couldn't drive the vehicle away, clearly because he
wasn't licensed or the vehicle wasn't registered, or
whether he could have let Floyd sit in it and watched him or
observed him for a period of time to make sure he didn't
drive away, as you submit those sequences out, the second one
is ridiculous. Officers should take the person out of the
vehicle, should make him walk away, should not let the
vehicle be driven.
court denied Floyd's suppression motion.
Floyd subsequently entered a no-contest plea to one count of
possession with intent to deliver a controlled substance, and
the remaining three counts were dismissed and read in. After
the circuit court sentenced Floyd, he filed a postconviction
motion, asserting his trial counsel performed ineffectively
by not calling as a witness at the suppression hearing the
City of Racine police officer who arrived on the scene to
provide "cover" for the deputy, because that
officer would have presented testimony that the deputy did
not "ask" Floyd if he could search him but
"told" him he was going to do so. The circuit court
denied the motion. Floyd appeals the denial of his
suppression and postconviction motions. Additional facts are
included below as necessary.
Floyd's suppression motion
Floyd argues the circuit court erred in denying his
suppression motion because (1) the deputy extended the
traffic stop beyond what was necessary for the three
citations he issued and also lacked reasonable suspicion of
additional illegal activity to otherwise justify an extension
and (2) the deputy's search of Floyd's person was
unlawful because Floyd did not voluntarily consent to it. We
conclude the circuit court properly denied Floyd's
suppression motion because Floyd was being lawfully detained
when the deputy asked to search him and Floyd voluntarily
consented to the search.
"When we review a circuit court's ruling on a motion
to suppress evidence, we apply the clearly erroneous standard
to the circuit court's findings of fact. However, we
review the circuit court's application of constitutional
principles to the findings of fact de novo." State
v. Smiter, 2011 WI.App. 15, ¶9, 331 Wis.2d 431, 793
N.W.2d 920 (2010) (citations omitted).
Floyd was lawfully detained at the time of the
The traffic stop was not "extended"
At the time the deputy asked Floyd for permission to search
him, Floyd was still lawfully detained pursuant to his
violations for operating a motor vehicle with a suspended
registration and without a driver's license or insurance.
That part of this traffic stop had not concluded in that the
deputy had yet to return Floyd's identification to him
and issue and explain the three citations. The deputy
properly could have explained the citations to Floyd either
while Floyd was still seated in the vehicle or after asking
Floyd to exit it. The deputy chose the latter.
The deputy's request that Floyd step out of the vehicle
during the ongoing traffic stop was per se lawful. See
Pennsylvania v. Mimms, 434 U.S. 106, 107, 109-10 (1977)
(holding that even without suspicion of additional "foul
play, " officer properly ordered motorist out of vehicle
for execution of traffic stop related to expired license
plate) (per curiam); State v. Johnson, 2007 WI 32,
¶23, 299 Wis.2d 675, 729 N.W.2d 182 (2007) (recognizing
the "per se rule" of Mimms "that an
officer may order a person out of his or her vehicle incident
to an otherwise valid stop for a traffic violation").
That said, in this particular case, the deputy also knew that
Floyd could not lawfully drive away in the vehicle after
completion of the traffic stop due to the vehicle's
suspended registration and Floyd's lack of a ...