SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 19, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 371 Wis.2d
404, 885 N.W.2d 156');">885 N.W.2d 156 PDC No: 2016 WI.App. 64 - Published
county Racine Allan B. Torhorst, Judge L.C. No. 2013CF982
the defendant-appellant-petitioner, there were briefs by
Michael G. Soukup and Pinix & Soukup, LLC, Milwaukee, and
oral argument by Michael G. Soukup.
the plaintiff-respondent, there was a brief filed by Luke N.
Berg, deputy solicitor general, Brad D. Schimel, attorney
general, and Misha Tseytlin, solicitor general, and oral
argument by Luke N. Berg.
amicus curiae brief was filed by Kelli S. Thompson, state
public defender, and L. Michael Tobin, deputy state public
A law enforcement officer discovered a cache of controlled
substances when he performed a warrantless-but allegedly
consensual-search of Lewis 0. Floyd, Jr. during a traffic
stop. Mr. Floyd says that because the officer extended the
traffic stop without the necessary reasonable suspicion, his
alleged "consent" was void and the evidence
obtained from the search should have been suppressed. Mr.
Floyd also says he received ineffective assistance of counsel
at the suppression hearing because his trial counsel failed
to present testimony Mr. Floyd believes would have
established he was not asked to consent to a
On an early July evening in 2013, Deputy Troy Ruffalo of the
Racine County Sheriff's Office stopped Mr. Floyd near
16th and Racine Streets in the City of Racine because his car
registration had been suspended for emissions violations.
Deputy Ruffalo, a six-year veteran law enforcement officer,
believed this to be a "high crime" part of the city
known for frequent drug and gang activity.
When Deputy Ruffalo approached Mr. Floyd's car, he noted
it had tinted windows and "air fresheners in every vent
of the vehicle as well as hanging off the rear view mirror
and air fresheners up on the -- where the vents were."
This, he said, is often an indicator of drug-related activity
because "[u]sually the air fresheners or the amount of
them are -- is an agent that is used to mask the smell of
Deputy Ruffalo's initial contact with Mr. Floyd lasted
approximately two to three minutes, during which he
discovered Mr. Floyd had no driver's license or insurance
information with him. After obtaining Mr. Floyd's
Wisconsin State identification card, Deputy Ruffalo returned
to his squad car to draft Mr. Floyd's citations and
contact dispatch to ask for a canine unit or other
"cover" squad. No canine units were available, and
Officer Aaron White, an officer with the City of Racine
Police Department, arrived on the scene while Deputy Ruffalo
was completing Mr. Floyd's citations.
Deputy Ruffalo reestablished contact with Mr. Floyd
approximately five or six minutes after pulling him over and,
while maintaining possession of Mr. Floyd's
identification card and the multiple citations, asked Mr.
Floyd to exit the vehicle so he could explain the citations.
After Mr. Floyd complied, Deputy Ruffalo asked him if he had
any weapons or anything that could harm him. After Mr. Floyd
indicated he did not, Deputy Ruffalo asked if he could
perform a search for his safety. Mr. Floyd responded
"yes, go ahead." During the ensuing search, Deputy
Ruffalo discovered the illegal drugs that led to the charges
in this case. B. Procedural Background
The State filed a criminal complaint against Mr. Floyd
alleging: (1) possession with intent to deliver non-narcotic
controlled substances, second and subsequent offense; (2)
misdemeanor bail jumping, repeater; (3) possession with
intent to deliver or manufacture THC <= 200 GMS, second
and subsequent offense; and (4) misdemeanor bail jumping,
repeater. The subsequent Information alleged the same four
Mr. Floyd moved to suppress the evidence seized during the
search, but the circuit court denied the motion. It found
that at the time Deputy Ruffalo contacted dispatch for
backup, he had suspicions Mr. Floyd was involved in criminal
drug-related activity based on several factors, including the
numerous air fresheners and the vehicle's tinted windows.
It also found that Deputy Ruffalo did not unnecessarily
prolong the traffic stop by requesting backup because the
cover squad arrived while he was in the process of drafting
the citations-a process that took only five to six minutes.
The circuit court accepted Deputy Ruffalo's explanation
that having Mr. Floyd step out of his vehicle was important
because he did not have a valid driver's license and
therefore could not drive away when the traffic stop ended.
Mr. Floyd pled no-contest to possession with intent to
deliver non-narcotic controlled substances as a repeat
offender. He moved for postconviction relief, alleging his
trial counsel was ineffective for failing to present evidence
at the suppression hearing that (he says) would have proved
Deputy Ruffalo did not ask for his consent to perform the
search. The circuit court observed that Officer White's
testimony showed "some dichotomy" with respect to
whether Deputy Ruffalo had asked for Mr. Floyd's
consent to the search or instead had advised him it
was going to happen. Ultimately, the circuit court found
Deputy Ruffalo did, in fact, ask Mr. Floyd whether he would
consent to the search. Thus, the court concluded Mr. Floyd
did not receive ineffective assistance of counsel because the
testimony was insufficient to demonstrate he had not
consented to the search, and so denied the motion.
The court of appeals affirmed in a published opinion,
concluding that denial of the suppression motion was proper
because Mr. Floyd was lawfully detained when Deputy Ruffalo
asked to search him and Mr. Floyd voluntarily consented to
the search. See State v. Floyd, 2016 WI.App. 64,
¶¶12, 20, 371 Wis.2d 404, 885 N.W.2d 156');">885 N.W.2d 156. Relying
on Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per
curiam), the court of appeals concluded that Deputy
Ruffalo's request that Mr. Floyd exit his vehicle during
the ongoing traffic stop was per se lawful, and it also
pointed out that Mr. Floyd could not drive away because he
did not have a valid driver's license. Floyd,
371 Wis.2d 404, ¶12. The court of appeals further held
that even if Deputy Ruffalo had extended the traffic stop,
the extension was nevertheless reasonable because Deputy
Ruffalo reasonably suspected criminal drug-related activity.
Id., ¶13. As to the postconviction motion, the
court of appeals determined there was no reasonable
probability the result at the suppression hearing would have
been any different had Officer White been called to testify;
therefore, it affirmed the circuit court's denial of the
postconviction motion. Id., ¶27.
We accepted Mr. Floyd's petition for review and now
affirm the decision of the court of appeals.
STANDARD OF REVIEW
"Whether evidence should be suppressed is a question of
constitutional fact." State v. Knapp, 2005 WI
127, ¶19, 285 Wis.2d 86, 700 N.W.2d 899 (quoting
State v. Samuel, 2002 WI 34, ¶15, 252 Wis.2d
26, 643 N.W.2d 423) . We review the circuit court's
findings of historical fact under the clearly erroneous
standard. State v. Turner, 136 Wis.2d 333, 343-44,
401 N.W.2d 827 (1987) . But the circuit court's
application of the historical facts to constitutional
principles is a question of law we review independently.
Id. While we are not bound by the circuit
court's or court of appeals' decisions on questions
of law, we benefit from their analyses. State v.
Kyles, 2004 WI 15, ¶7, 269 Wis.2d 1, 675 N.W.2d
We review the voluntariness of consent to a search in a
similar fashion. See State v. Artie, 2010 WI 83,
¶23, 327 Wis.2d 392, 786 N.W.2d 430. We review the
circuit court's findings of historical fact to determine
whether they are clearly erroneous. Id. We then
independently apply constitutional principles to those facts.
Whether trial counsel's actions constitute ineffective
assistance of counsel presents a mixed question of fact and
law. State v. Tourville, 2016 WI 17, ¶16, 367
Wis.2d 285, 876 N.W.2d 735. We will not reverse the circuit
court's findings of fact unless they are clearly
erroneous. Id. However, we independently review, as
a matter of law, whether those facts demonstrate ineffective
assistance of counsel. Id.
We must determine whether the drug-disclosing search of Mr.
Floyd was consonant with the constitutional mandate that we
be free of unreasonable searches and seizures. The State says
the search was proper because it occurred during a lawful
traffic stop and Mr. Floyd consented to it. Mr. Floyd says
this is not so-the search took place after the traffic stop
should have ended, and so he was unlawfully seized when it
took place, which rendered any alleged "consent"
void as a matter of law. In any event, he says, he did not
actually consent to the search, and if his counsel had not
been ineffective the court would have heard testimony to
prove that point.
The disagreement between the State and Mr. Floyd is really
quite narrow, although no less important for that. The
parties agree that Mr. Floyd's expired tags provided a
sufficient basis for Deputy Ruffalo to initiate the traffic
stop. And Mr. Floyd did not contest an officer's
authority to ask a driver to exit his vehicle during such an
encounter. Nor did he offer any argument against an
officer's authority to ask a lawfully-seized person to
consent to a search. Their disagreement centers on where we
draw the line separating traffic stops of acceptable duration
from those that have been impermissibly extended. A motorist
is lawfully seized during the proper duration of a traffic
stop, but unlawfully seized if it lasts longer than necessary
to complete the purpose of the stop. So the location of the
line is important because of the constitutional rights
affected. As we discuss below, if Mr. Floyd was unlawfully
seized when Deputy Ruffalo requested permission to search
him, his "consent" would be constitutionally
invalid, and the evidence discovered during the search would
need to be suppressed.
Mr. Floyd says the court of appeals drew the line in the
wrong place. He argues that when Deputy Ruffalo finished
writing the citations, the Constitution permitted no further
interaction between the two of them beyond Deputy Ruffalo
explaining the citations and informing him he was free to go.
So when Deputy Ruffalo instead asked him if he would consent
to a search, Mr. Floyd says Deputy Ruffalo extended the
traffic stop with no justifiable basis.
The State says the constitutionally-permissible duration of
the traffic stop did not conclude before Deputy Ruffalo asked
Mr. Floyd if he would consent to a search. Thus, as the fruit
of a consensual search, the illegal drugs comprised proper
evidence against Mr. Floyd. And even if Deputy Ruffalo
extended the stop, the State says, the totality of the
circumstances gave him reasonable suspicion to believe Mr.
Floyd had committed, was committing, or was about to commit a
Thus, our task is to espy the point at which the traffic stop
should have ended and assess how the search related to that
point. Because the purpose of the stop determines its proper
scope, we must identify what an officer may lawfully do when
detaining someone for a suspended vehicle registration.
See, e.g., Rodriguez v. United States, 575
U.S.__, 135 S.Ct. 1609, 1614 (2015) ("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
attend to related safety concerns .... Authority for the
seizure thus ends when tasks tied to the traffic infraction
are-or reasonably should have been-completed." (internal
Constitutional Implications Of Traffic Stops
¶19 We begin where we should, with the constitutional
prohibitions against unreasonable searches and seizures. The
Fourth Amendment to the United States Constitution says:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const, amend. IV. Its Wisconsin counterpart, found in
Article I, section 11 of the Wisconsin Constitution,
substantively identical, and we normally interpret it
coextensively with the United States Supreme Court's
interpretation of the Fourth Amendment. See, e.g.,
State v. Dumstrey, 2016 WI 3, ¶14, 366 Wis.2d
64, 873 N.W.2d 502');">873 N.W.2d 502 (citing State v. Arias, 2008 WI
84, ¶20, 311 Wis.2d 358, 752 N.W.2d 748) .
It is an unremarkable truism that a traffic stop is a seizure
within the meaning of our Constitutions. "'The
temporary detention of individuals during the stop of an
automobile by the police, even if only for a brief period and
for a limited purpose, constitutes a seizure of persons
within the meaning of the Fourth Amendment.'"
State v. Popke, 2009 WI 37, ¶11, 317 Wis.2d
118, 765 N.W.2d 569 (citations and one set of quotations
omitted). Reasonable suspicion that a driver is violating a
traffic law is sufficient to initiate a traffic stop.
State v. Houghton, 2015 WI 79, ¶30, 364 Wis.2d
234, 868 N.W.2d 143 ("[R]easonable suspicion that a
traffic law has been or is being violated is sufficient to
justify all traffic stops.") . Reasonable suspicion
requires that "[t]he officer must be able to point to
specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant the
intrusion of the stop." Popke, 317 Wis.2d 118,
¶23 (two sets of quotation marks and citation omitted).
Traffic stops are meant to be brief interactions with law
enforcement officers, and they may last no longer than
required to address the circumstances that make them
necessary. "A routine traffic stop ... is a relatively
brief encounter and 'is more analogous to a so-called
Terry stop . . . than to a formal
arrest.'" Knowles v. Iowa, 525 U.S. 113,
117 (quoting Berkemer v. McCarty, 468 U.S. 420, 439
(1984)) (footnote added; second ellipses in Knowles;
one set of quotation marks omitted) . "Because
addressing the infraction is the purpose of the stop, it may
'last no longer than is necessary to effectuate th[at]
purpose.'" Rodriguez, 135 S.Ct. at 1614
(citation omitted; alteration in Rodriguez) .
"Authority for the seizure thus ends when tasks tied to
the traffic infraction are-or reasonably should have
Thus, we draw the line between traffic stops of proper
duration and those that extend into unconstitutional
territory according to functional considerations. We assess
those considerations in the context of the "totality of
the circumstances." See, e.g., United
States v. Everett, 601 F.3d 484, 493-94 (6th Cir. 2010)
. And while the temporal duration of the stop may inform
those considerations, it is not in itself dispositive.
See United States v. Sharpe, 470 U.S. 675, 686
("In assessing whether a detention is too long in
duration to be justified as an investigative stop, we
consider it appropriate to examine whether the police
diligently pursued a means of investigation that was likely
to confirm or dispel their suspicions quickly, during which
time it was necessary to detain the defendant.");
see also United States v. Peralez, 52 6 F.3d 1115,
1119 (8th Cir. 2008) ("Whether a traffic stop 'is
reasonable in length is a fact intensive question, and there
is no per se time limit on all traffic
stops.'" (citation omitted)). Generally speaking, an
officer is on the proper side of the line so long as the
incidents necessary to carry out the purpose of the traffic
stop have not been completed, and the officer has not
unnecessarily delayed the performance of those incidents.
See, e.g., Rodriguez, 135 S.Ct. at 1614-15
(explaining that authority for a traffic-stop based seizure
ends when tasks related to the infraction are, or should have
been, completed). He steps across that line (again speaking
generally) when he maintains the seizure after he has
completed all the necessary functions attendant on the
traffic stop. See State v. Malone, 2004 WI 108,
¶26, 274 Wis.2d 540, 683 N.W.2d 1 (a reasonable seizure
can become unreasonable if the officer "extends the stop
beyond the time necessary to fulfill the purpose of the
stop." (citation omitted)).
Mr. Floyd's stop was not complicated-his vehicle's
registration was suspended. Deputy Ruffalo then learned Mr.
Floyd had neither insurance nor a valid driver's license.
At a minimum, this authorized Deputy Ruffalo to take the time
reasonably necessary to draft the appropriate citations and
explain them to Mr. Floyd. See, e.g.,
Rodriguez, 135 S.Ct. at 1614 (explaining that in the
traffic stop context, "addressing the infraction is the
purpose of the stop . . . ."). Until that is done, and
so long as Deputy Ruffalo does not unnecessarily delay the
process, the permissible duration of the traffic stop has not
elapsed. Id. at 1615 ("The seizure remains
lawful only 'so long as [unrelated] inquiries do not
measurably extend the duration of the stop.'"
(quoting Arizona v. Johnson 555 U.S. 323, 333
(2009); alteration in Rodriguez)).
We note that before Deputy Ruffalo asked Mr. Floyd to consent
to a search, he asked him to step out of his vehicle. During
a valid traffic stop, this is a matter of no constitutional
moment: "[O]nce a motor vehicle has been lawfully
detained for a traffic violation, the police officers may
order the driver to get out of the vehicle without violating
the Fourth Amendment's proscription of unreasonable
searches and seizures." Mimms, 434 U.S. at 111
n.6. In an area of the law where bright lines are rare, we
have had no difficulty discerning one here. In State v.
Johnson we recognized that Mimms
"established a per se rule that an officer may order a
person out of his or her vehicle incident to an otherwise
valid stop for a traffic violation." 2007 WI 32,
¶23, 299 Wis.2d 675, 729 N.W.2d 182.
That brings us to the nub of the dispute between the State
and Mr. Floyd. After writing the citations, Deputy Ruffalo
returned to Mr. Floyd's car and asked him if he would
submit to a search. Mr. Floyd says this request extended the
stop beyond its permissible duration. The only thing Deputy
Ruffalo could lawfully do after writing the citations, Mr.
Floyd says, was explain them to him and bid him good day.
Although Mr. Floyd's argument incorporates the principle
that the "mission" of the traffic stop defines its
acceptable duration, he does not account for how the
officer's safety fits within that mission. "Traffic
stops are 'especially fraught with danger to police
officers . . . .'" Rodriguez, 135 S.Ct. at 1616
(quoting Johnson, 555 U.S. at 330); see also
Mimms, 434 U.S. at 110 ("We think it too plain for
argument that the State's proffered justification-the
safety of the officer- is both legitimate and
weighty."). That makes officer safety an integral part
of every traffic stop's mission. Rodriguez, 135
S.Ct. at 1616 ("Unlike a general interest in criminal
enforcement, however, the government's officer safety
interest stems from the mission of the stop itself.")
The danger inherent to traffic stops authorizes an officer
"to take certain negligibly burdensome precautions in
order to complete his mission safely." Id.;
see also Mimms, 434 U.S. at 110-11 (discussing
inherent risks a police officer faces during a traffic stop,
such as assault by seated suspects and accidental injury from
passing traffic, in concluding the request that a person exit
the vehicle during a traffic stop is justifiable and de
minimis); Johnson, 299 Wis.2d 675,
¶¶25-27, (acknowledging "the serious risks law
enforcement officers must undertake whenever they initiate
contact with a suspect who is seated in a vehicle") .
Thus, the questions to which Mr. Floyd objects are
appropriate if they are negligibly burdensome precautions to
ensure the officer's safety during the stop.
Deputy Ruffalo asked Mr. Floyd if he had any weapons or
anything that could harm him. When Mr. Floyd said he
didn't, Deputy Ruffalo asked if he could perform a search
for his safety. Both questions specifically related to the
officer's safety. According to Mr. Floyd, however, the
second question was not negligibly burdensome: "What the
State entirely ignores is that unlike questions seeking
information, a request to conduct a frisk involves 'a
severe, though brief, intrusion upon cherished personal
security . . . [that] must surely be an annoying,
frightening, and perhaps humiliating experience.'"
(Quoting Terry v. Ohio, 392 U.S. 1, 24-25 (1968)).
While it is true that such a search can be all of that, a
request to conduct such a search cannot. In fact,
that request is just like "questions seeking
information" because it i_s_ just seeking information-to
wit, whether Mr. Floyd would agree to be searched. What
follows the answer to the question may be a non-negligible
burden, but that says nothing about the nature of the
question itself. Mr. Floyd provided no other argument that
the questions imposed a burden forbidden by
Rodriguez, and nothing about them immediately
suggests a disqualifying characteristic. Therefore, because
the questions related to officer safety and were negligibly
burdensome, they were part of the traffic stop's mission,
and so did not cause an extension.
Whatever additional time the actual search consumed, or the
burden it imposed, is irrelevant so long as Mr. Floyd
consented to it. Schneckloth v. Bustamonte, 412 U.S.
218, 242-43 (1973) ("While the Fourth and Fourteenth
Amendments limit the circumstances under which the police can
conduct a search, there is nothing constitutionally suspect
in a person's voluntarily allowing a search."). When
we inquire into the legitimate scope of a traffic stop's
mission, its duration, and the burdensomeness of its
incidents, we do so because these are nonconsensual aspects
of the interaction between a citizen and a law enforcement
officer. But when a person consents, the Fourth Amendment
does not bar the search (so long as it does not exceed the
scope of the person's consent). Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990) (explaining that
although the Fourth Amendment generally prohibits warrantless
searches, "[t]he prohibition does not apply ... to
situations in which voluntary consent has been obtained . . .
."); see also Schneckloth, 412 U.S. at 219
("It is equally well settled that one of the
specifically established exceptions to the requirements of
both a warrant and probable cause is a search that is
conducted pursuant to consent."); United States v.
Strickland, 902 F.2d 937, 941 (11th Cir. 1990)
("When an individual gives a general statement of
consent without express limitations, the scope of a
permissible search is not limitless. Rather it is constrained
by the bounds of reasonableness: what a police officer could
reasonably interpret the consent to encompass.") . Thus,
we inquire now into whether Mr. Floyd provided
constitutionally-valid consent to Deputy Ruffalo's
The circuit court found that after Deputy Ruffalo asked
whether Mr. Floyd would consent to a search, Mr. Floyd said
"yes, go ahead." This is an unequivocal assent, and
so it is sufficient to authorize the search so long as Mr.
Floyd's response was given "freely and
voluntarily." Johnson, 299 Wis.2d 675, ¶16
("When the purported legality of a warrantless search is
based on the consent of the defendant, that consent must be
freely and voluntarily given."). The State bears the
burden of establishing by clear and convincing evidence that
a person's consent to a search was voluntary. State
v. Phillips, 218 Wis.2d 180, 197, 577 Wis.2d 794 (1998)
. Generally, a response is voluntary if it "was given in
the absence of duress or coercion, either express or
implied." State v. Bons, 2007 WI.App. 124,
¶17, 301 Wis.2d 227, 731 N.W.2d 367 (quoting
Phillips, 218 Wis.2d at 196). Relevant
[W]hether any misrepresentation, deception or trickery was
used to persuade the defendant to consent; whether the
defendant was threatened or physically intimidated; the
conditions at the time the search was made; the
defendant's response to the officer's request; the
defendant's physical and emotional condition and prior
experience with ...