*1 Wisconsin, State Plaintiff-Appellant-Petitioner,
v.
Defendant-Respondent.
S.
Daniel
Iverson,
Supreme Court
8, 2015.
argument September
2014AP515-FT. Oral
No.
25, 2015.
—Decided November
For the defendant-respondent, Collins, Johns, & Flaherty Veenstra and G. Joseph G. Crosse, by Joseph La and oral S.C., argument Veenstra. ZIEGLER, J. This 1. ANNETTE KINGSLAND a review of an decision of the court of unpublished Iverson, 2014AP515-FT, v. unpub- State No.
appeals, (Wis. 9, 2014), Ct. Oct. which slip op. App. lished the La circuit County affirmed the order of Crosse court1 defendant Daniel S. Iverson's granting ("Iverson") of drunk driv- motion to evidence suppress obtained an officer of the state traffic ing patrol vehicle. during a traffic Iverson's Iverson asserts the officer lacked au- vehicle to thority investigate to seize Iverson's violation of a state statute Wis. prohibiting littering, (2011-12).2 in the argues Stat. 287.81 Iverson alter- native officer lacked cause or probable that the reason- able that a violation of the statute suspicion *7 had occurred. in this 3. The central issue before us case is
¶ the Fourth Amendment of the United States whether I, Article 11 of the Wisconsin Constitution and Section an traffic patrol Constitution officer of the state permit a on the officer's observa- stop solely vehicle based a non-traffic civil forfeiture tion of the commission of offense an of that vehicle. by occupant (1) Legisla- 4. We conclude that: the Wisconsin ture has authorized state conduct explicitly troopers traffic in order to violations of Wis. stops investigate the statute Stat. 287.81 and to arrest violators of § (2) to enforce conditions; under a traffic specified if prob- 287.81 is reasonable an officer has generally that a violation of able cause or reasonable suspicion (3) occurred; a butt discarding 287.81 has presided. A. Gonzalez The Honorable Ramona Statutes are subsequent All references to the Wisconsin indicated. to the 2011—12 version unless otherwise (4) highway on his 287.81; and based a violates onto probable in this case had observations, the officer occupant an of Iverson's vehicle cause to believe that by throwing cigarette butt onto violated 287.81 had highway. suppress motion to evidence 5. The defendant's during traffic and to dismiss this obtained this denied. We reverse the decision case should have been appeals and remand the case to the of the court of charges and further circuit court for reinstatement opinion. proceedings with this consistent BACKGROUND I. FACTUAL January 9, 2014, State Patrol 6. On Wisconsin Larsen") Trooper ("Trooper Michael Larsen testified at hearing suppress on Iverson's motion to evidence. following testimony. facts are taken from his September 18, 2013, a.m., 7. On at about 1:00 Trooper traveling Larsen on Rose was northbound City Street in the 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 approached centerline or strike the curb. The vehicle flashing yellow an intersection secured traffic light. Although intersection, was no traffic at the there complete stop light the vehicle came to a at the before *8 continuing past The the intersection. vehicle then flashing yellow light. Again, despite arrived at a second stopped intersection, a lack of traffic at the the vehicle light continuing Trooper at the before north. Larsen point testified that at this in time he did not feel that suspicion possessed necessary he the reasonable stop.3 conduct a traffic Trooper cigarette
¶ 8. Larsen then observed a "being passenger butt thrown from side of the cigarette ground butt hit the and scat- vehicle." right lane tered ashes across the of the road. After crossing overpass, Trooper an Larsen initiated a traffic Trooper of the vehicle. Larsen testified that the ejection cigarette for the was the of the reason following. butt from the vehicle he had been He relied upon "Littering," § 287.81, entitled Wis. Stat. which part: in states relevant person any following may
[A] who does of the be required to forfeit not more than $500:
(a) Deposits discharges any or solid waste on or state, along any highway, any waters of the on the any any public ice of or on other waters state private property.
(b) any Permits solid waste to be thrown from a operated by person. vehicle 287.81(2)(a)-(b). Trooper Wis. Stat. Larsen informed vehicle, Iverson, the driver of the that a butt had thrown out of Iverson's vehicle. Iverson been knowledge, passenger respon- denied but the admitted sibility and stated that he had not known that illegal. action was eventually Trooper
¶ 9. Larsen cited Iverson operation while under the influ- for of motor vehicle intoxicant, ence of an in violation of Wis. Stat. necessarily accept We do not the officer's conclusion regard this as our own. We need not address its soundness for purposes analyzing the issues before the court. *9 vehicle with a of a motor 346.63(l)(a), operation and offense, in viola- concentration, first alcohol
prohibited 346.63(l)(b).4 tion BACKGROUND
II. PROCEDURAL 2013, not 17, pleaded Iverson 10. On October traffic citations alleged to the violations guilty filed a 27, 2013, Iverson he had received. On December and all evidence obtained any motion to suppress and to dismiss the of his vehicle following motion, 9,2014 on January hearing case. At the Iverson's mo- granted circuit court County La Crosse tion. The court stated: him stopping [Iverson] to cite
[Trooper Larsen] wasn't stopping him to see if he was a for the litter. He was excuse, if that The litter is the drunk driver.... side, I'm with comes out of the driver's butt passenger side. you, Trooper ... but not out of the 14, 2014, the court entered an order January On evidence and to dis- the motion to granting suppress 2014, State filed a 26, miss the case. On February of appeal. notice appeals 11. On October the court of court's order on different grounds.
affirmed the circuit or probable It found that "an articulable suspicion of a forfeiture that is not a violation cause of violation sufficient for regulation justification [not] of a traffic Iverson, seizure of a citizen." See State v. warrantless (Wis. 2014AP515-FT, slip unpublished op., ¶ No. 2014). App. Ct. Oct. conclusion, the court of reaching In its 968.24, which it first examined Wis. Stat.
appeals the citations upon Trooper The facts which Larsen based are not at issue in this case. characterized as a codification" of "legislative
properly
*10
(1968).
Ohio,
Iverson,
1
v.
392 U.S.
No.
Terry
2014AP515-FT,
6; see
unpublished slip op.,
State v.
¶
Post,
60,
11,
1,
2007 WI
¶ permits Wis. Stat. 345.22 warrantless arrests for Iverson, violations traffic No. regulations. 2014AP515-FT, 10. The court unpublished slip op., ¶ reviewed our decision in State v. 2009 appeals Popke, 37, 118, 569, 2d we WI 317 Wis. 765 N.W.2d where held exist[s], if no cause a probable police "[e]ven when, officer a traffic under the may still conduct circumstances, grounds he or she has totality that a has reasonably crime or violation suspect traffic Id., or will committed." State v. (quoting been be ¶ 118, 2d 765 N.W.2d 2009 WI 317 Wis. Popke, ¶ 569) added) (citation omitted). (emphasis the court of from Finally, appeals quoted
¶
Krier,
2d
decisions,
one of its own
State v.
165 Wis.
(Ct.
1991), in which it had held
App.
III. STANDARD OF REVIEW
*11
granting
deny-
¶ 17. "Our review of an order
or
ing
suppress
presents
question
a motion to
evidence
Robinson,
80,
of constitutional fact." State v.
2010 WI
(citation
¶ 22,
302,
327 Wis. 2d
¶ 18. "When with consti- engages two-step inquiry. fact, tutional this court in a findings First, we review the circuit court's ofhistorical 5 (2m) (violation 287.81(2), Compare Wis. Stat. of litter forfeiture), ing punishable by statute Stat. with Wis. 939.12 ("Conduct crime"), punishable only by a forfeiture is not a and 345.20(l)(b) (defining regulation" "[t]raffic Wis. Stat. "a as provision penalty of chs. 194 or 341 to 349 for which the for violation is a forfeiture or an ordinance enacted in accordance 349.06"). with s.
314
upholding
standard,
fact under a deferential
them
they
clearly
indepen-
Second,
are
erroneous.
we
unless
dently apply
principles
constitutional
to those facts."
(citations omitted).
Robinson,
302,
327 Wis. 2d
requires
interpret
¶ 19. This case also
us to
and
apply
relevant
Wis. Stat.
287.81 and other
statutes.
"Statutory interpretation
application present
and
questions
review novo while benefit-
of law that we
de
ing
analyses
appeals
from the
of the court of
and
Kenosha,
DOT,
circuit court." 118th St.
LLC v.
2014 WI
(citations
¶ 19,
30,
125,
359 Wis. 2d
IV.ANALYSIS driving gives drunk 21. Iverson's citation for he contends rise to the issues before the court because stop was in violation of his constitutional argues rights. Specifically, Iverson that the citations Trooper was without stand because Larsen cannot solely authority legal stop vehicle based to Iverson's littering upon statute, a non-traffic violation of the argues that the addition, law. In Iverson civil forfeiture stop Trooper upon did which Larsen based conduct words, In we not violate the statute. other Trooper address whether Larsen was endowed must legal authority stop to Iverson's vehicle after with observing being high- thrown onto a butt Consequently, way the focus of this from the vehicle. opinion upon centers whether this conduct constitutes "littering" justify stop traffic and whether so as to this upon stop of this this traffic can be based violation non-traffic civil forfeiture law.
¶ 22. As it to the constitutional issues relates court, not contend that he now before this Iverson does driving otherwise has a viable defense to the drunk charges. Similarly, he does not assert that we should totality of the circumstances undertake traditional driving particu- test so to evaluate whether his on that evening justify stop. lar would otherwise a traffic analyze totality Indeed, if we were might issue, circumstances of the at we not reach analysis question court, the only before the and that would longstanding legal principles. See, serve to restate e.g., ¶¶ Post, Malone, 12-13; 301 Wis. 2d State v. ¶¶ 21-24, 2004 WI 683 N.W.2d accept reject Thus, we neither nor the officer's stated suspicion that he was without belief reasonable alleged littering conduct a traffic oc- before curred. inquiry shaped by
¶ 23. Our method of a few important Trooper First, Larsen, an considerations. patrol, stopped officer of the traffic Iverson's state *13 § Second, to enforce Wis. Stat. 287.81. vehicle in order powers and duties of 110.07 delineates Wis. Stat. patrol. third, And the auto- the state traffic officers of constitutionally must not be mobile at issue Popke, See under the circumstances. unreasonable (citation omitted). ¶ 11 Wis. 2d the lawful- Therefore, 24. in order to determine analyze stop, Trooper two traffic we ness of Larsen's questions: statutory questions and two constitutional (1) cigarette highway throwing onto a whether a butt (2) § 287.81; a violation of Wis. Stat. constitutes authority Trooper possesses under Larsen whether stops traffic 110.07 to conduct warrantless Wis. Stat. (3) enforcing § 287.81; whether a state as a means of may patrol conduct a warrantless traffic traffic officer suspicion probable or reasonable based on cause law has a violation of a non-traffic civil forfeiture that (4) possessed Trooper occurred; and whether Larsen suspicion probable or reasonable that a violation cause § 287.81 had occurred. Authority Stop Statutory the Traffic A. to Conduct Throwing Cigarette Butt onto a 1. Whether Highway § 287.81 Violates Wis. Stat. cigarette argues throwing Iverson highway Stat. does not violate Wis. butt onto prohibits depositing Although 287.81. the statute highway, discharge Iverson of "solid waste" onto a or waste" under that a butt is not "solid claims disagree. the statute. We in relevant Stat. 287.81 states 26. Wisconsin may following any
part: person "[A] be does who (a) Deposits required more than to forfeit not $500: solid waste on or discharges any along any high- *14 287.81(2) (2)(a). way.. . ."6 Wis. Stat. § — definitional provision chapter 27. The 287.81 falls defines "solid within which Wis. Stat. § 289.01(33)." in meaning given waste" as "the s. having 289.01(33) 287.01(10). Wis. Stat. Wisconsin Stat. § § reads: refuse, any garbage, sludge
"Solid waste" means plant, supply from a waste treatment water treatment facility plant pollution or air control and other dis- materials, solid, salvageable including liq- carded or uid, semisolid, gaseous or contained materials result- commercial, ing industrial, mining from and community agricultural operations, and from activi- ties, but does not include solids or dissolved material sewage, in domestic or solid or dissolved materials in irrigation discharges return flows or industrial which point subject permits are sources to under ch. or material, 254.31(10), special source as defined in s. material, 254.31(11), by- nuclear as defined in s. 254.31(1). material, product as defined in s. 289.01(33) added). Wis. Stat. (emphasis "Garbage" § and "refuse" each also definitions. possess unique "means discarded materials Garbage resulting from and handling, processing, storage consumption of 289.01(9). food." Refuse "means all matters produced § life, from industrial or community subject decompo- 289.01(28). sition, not defined as sewage." § 6 "Highway" having is defined in the statute as "the mean 340.01(22)." 287.81(l)(am). ing given in s. Wis. Stat. Wiscon § " 340.01(22) part: 'High sin Stat. in turn states relevant way' ways public thoroughfares bridges means all and on boundary the same. It includes the entire width between every way open public lines of right to the use of the as a matter of purposes for the of vehicular travel." Wis. Stat. 340.01(22). easily spend day exploring could all 28. One 289.01(33)'s crannies, Wis. Stat. various nooks and ponder cigarette stop to whether but we need not butts 289.01(28), "subject decomposition," § are or "re- community activities," . Wis. Stat. . . from sulto 289.01(33), manifestly because butts consti- . . . materials." tute "other discarded policy deference to the 29. "Judicial choices legislature requires enacted into law the that statu- tory primarily language interpretation focus on the legislature's the statute. We assume that the intent is statutory language." expressed Kalal, meaning "[i]f Wis. 2d 44. And of the statute *15 ordinarily stop inquiry. Statutory plain, the is language we ordinary, given accepted common, its and meaning, except specially-defined that technical or given special phrases or are their technical or words (citations meaning." ¶ Id,., 45 internal definitional and omitted). quotation marks go, drop, dismiss, 30. To "discard" means "to let get longer pleasur- useful, valuable, rid of no or as Dictionary
able." Webster's Third New International (1961).7 Cigarette perhaps paradig- 644 are a butts example matic of "discarded" materials under this they ciga- definition, remains of as are the abandoned (at users) rettes, items that were once least to their pleasurable. useful, valuable, and singular "Material," "materials," 31. of id. 1392, and indefinite word. One sense of at is broad plausible that we find most word, and the sense
7 provided entry- This is the second sense of the word pertains playing in Webster's. The first sense cards. See (1961). Dictionary Webster's Third New International of the elements or here, part is "the whole or notable .. something physical. constituents or substance Id. isolation, clearly supports Viewed in this definition butts within the "dis- cigarette phrase inclusion of Nevertheless, term . . materials." a nebulous carded . context, so we meaning like "materials" draws from its to confirm the word's analyze further the passage import. Iverson to the list introduced points materials, including" "other discarded . . . and
phrase do not fall within of the cigarette any asserts that butts if enumerated items. But even butt ensuing did not "solid . . . materials from resulting constitute industrial, commercial, mining agricultural opera- tions, and activities" —a community proposition from we find consideration of the manufac- given doubtful ture, sale, and use of clause cigarettes "including" —the does not exhaust of "other possible applications See, Liebovich v. Minne- . e.g., discarded . . materials." Co., sota Ins. 751, 2008 WI ("The N.W.2d 764 of a comma and the word presence 'including' indicates the word phrase] [the 'including' is not meant to reference an exhaustive list."); Federal Land Bank St. Paul v. Bismarck (1941) ("[T]he Co., Lumber 314 U.S. term definition, is not one of 'including' all-embracing but connotes an simply application gen- illustrative *16 eral principle."). 33. The canon of construction longstanding our
"ejusdem generis" supports analysis. This canon general "instructs that when words follow specific statutory text, words words should general words listed." State be construed in light specific Quintana, v. 2008 WI 748 (citation omitted). specific "gar- N.W.2d words bage," "sludge "refuse," and from a waste treatment plant, supply plant pollution water treatment or air facility" general phrase control do not limit so the more cigarette "other discarded . . . materials" that butts are necessity specific fact, of excluded. In these terms clarify encompasses that the definition more conven- cigarette tional like items butts. ("dis- garbage, example
¶ 34. The definition of for resulting handling, process- carded materials from the ing, storage consumption and food," Wis. Stat. 289.01(9)), suggests objects inclusion of such as fast wrappers paper napkins. food and The definition of ("all produced refuse matters from industrial or com- munity subject decomposition, life, to not defined as 289.01(28)) sewage," apparently contemplates ob- ("industrial" refuse) jects specialized of both a nature ordinary ("community and of a more nature life" re- fuse); category might objects into latter this fall such newspapers likely waste, as and food items found in throughout "sludge," term, vehicles the state. The final specialized indicates materials of a nature. The stat- specific gamut ute's enumerations thus run the from ordinary specialized they provide waste; do not category reason to omit butts from the broad of "discarded materials."8 "policies Wisconsin Stat. 287.05 establishes of the state
concerning gener the reduction of the amount of solid waste ated, reuse, recycling composting of solid waste and recovery policy resource from waste." The first listed solid reduction, reuse, recycling, "[t]hat states maximum solid waste composting recovery and resource is in the interest of the best health, quality protect public protect state in order to energy." the natural environment and to conserve resources and 287.05(1) added). provision (emphasis Though Wis. Stat. *17 dis- of "other . . . reading natural 35. The most waste" the definition of "solid materials" affords
carded to province it not within our but is sweep, a broad of a statute without limit the obvious reach artificially of role, in the context "It is the court's reason. adequate legislation to effect to give statutory interpretation, not have that the could legislature unless we find a statute or unreasonable results intended the absurd Masters, 2013 WI Johnson v. to appears require." 647. It 2d 830 N.W.2d n.12, 347 Wis. "Littering" a statute entitled absurd for hardly the butts onto state's cigarette disposal prohibit effect Therefore, simply give we will roads.9 meaning. natural statute's court, attorney Iverson's sub- 36. At the circuit stated in part:
mitted an affidavit that call from my legal experience had a I have never was cited for or represented someone who throwing cigarette any due to the other offense fact, cigarette hundreds of In I have witnessed butt. office, along grounds outside our butts on the waste," determining meaning of "solid we helpful is not that definition inclusion of butts within note purposes. serves these widely fact, cigarette recognized litter is a In butt See, Kaufman, Tiny e.g., Cigarette Butts: problem. Leslie 2009), (May 28, Up, N.Y. Times Trash That Piles http://www.nytimes.com/2009/05/29/us/29cigarettes.html?_r=0; Litter, Butts, Howard, #1 Cigarette World's Brian Clark Watch: Benches, 5, 2015), Geographic (May Recycled Nat'l as Park http://news.nationalgeographic.com/2015/05/150504-cigarette butt-litter-recycling-environment/. Cigarette pollutes butt litter costs, waterways, clean-up of dollars in costs millions surroundings. appearance attractive spoils of otherwise counts, Kaufman, are, by supra. "Cigarette butts some See Howard, supra. problem." one litter world's number
streets near our office and outside of taverns and other businesses located downtown La Crosse and have anyone being never heard disposal of cited for such of cigarette butts. image cigarette
If the of masses of butts strewn throughout city the streets of a Wisconsin is meant to suggest disposal cigarette along that of butts highways is somehow a de minimis offense under Wis. persuade. § 287.81, Stat. it fails to The cumulative improper disposal effect of waste ais demonstrable example why littering problematic. of is The statement merely highlights from the affidavit the ills that the rectify by plain statute seeks its terms. any
¶ 37. In event, the structure of the statute legislature easily demonstrates that could have quantitative created a threshold for the of- 287.81(2m) § fense but did not. Wisconsin Stat. im- poses larger person a $1,000 forfeiture of on "a who deposits any large along any highway item on or . . . ." 287.81(2m). "Large § Wis. Stat. item" is defined in the appliance, statute "an as an item furniture, tire, a a building vehicle, boat, an aircraft, materials, or 287.81(l)(as). legislature demolition waste." The quantity thus considered terms but did not set an necessary trigger something amount statute, legislature proven capable doing has itself in other e.g., (setting See, §§ contexts. Wis. Stat. 348.15-348.16 limitations). pound-specific weight vehicle discarding 38. We conclude that highway butt onto violates Wis. Stat. 287.81. Authorized Statutorily is Larsen Trooper 2. Whether to Enforce Traffic Stops to Conduct Stat. 287.81 Wis. Larsen Trooper Iverson asserts 39. How- stop. this to effectuate authority legal without 110.07, "Traffic of Wis. Stat. meaning ever, plain otherwise. duties," instructs officers; powers part: in relevant statute states patrol shall: of the state traffic Members the administration . and assist in of.. Enforce .... [Wis. Stat.§]287.81 *19 any where ve- authority place to enter 3. Have (d) l(2)(b) to and chapter, ss. 167.3 subject to this hicles stored or 341 to 350 are 287.81 and chs. 218 and or to vehicles, any examine such at time to parked public any upon time while en route at such vehicles make arrests all the same and highways to examine for violations thereof. added). (a)3. 110.07(l)(a)l., (emphases
Wis. Stat. § officers of the further grants 40. The statute of a law enforce- "the arrest powers traffic patrol state 968.07, of regardless under Stat. [Wis. §] ment officer or forfeiture by punishable the violation is whether 110.07(2m). Wis. Stat. penalty." § criminal ad- is also authority troopers of state 41. 23, entitled "Conservation." in Stat. ch. dressed Wis. enforcing "an Stat. 23.58 authorizes Wis. Specifically, § for a place in a person public to "stop officer"10 "10 person who has author 'Enforcing officer'. .. means 23.51(3). specific statute." Wis. Stat. ity pursuant § to a to act of reasonable time when the period reasonably officer such suspects person is about committing, to commit or has committed a violation of those statutes 23.50(1)" enumerated s. to and "demand the name and address and an person explanation of the conduct." Wis. person's Stat. 23.58.11 Stat. § Wisconsin 287.81 is one statutes § enumerated in Wis. Stat. 23.50(1). 23.50(1). Stat. Wis. § Finally, 42. Wis. Stat. 23.56 and 23.57 pro- §§ vide certain to authority arrests, conduct with both and warrants, without for violations of the statutes 23.50(1).12 listed in Stat. Wis. sum, In the Wisconsin Legislature has ex-
plicitly authorized state troopers to conduct traffic to stops order investigate violations of Wis. Stat. 287.81 and to arrest violators under statute specified conditions. Larsen therefore Trooper pos- sessed statutory authority stop Iverson's vehicle stop may only "Such enforcing be made where the proper authority officer has make an arrest for such viola tion," temporary questioning "[s]uch detention and shall vicinity person be conducted in the stopped." where was Wis. 23.58. Additionally, enforcing Stat. officer must Id. identify himself herself as such. authority This is limited various Warrant- conditions. particular only less arrests in are authorized where: *20 (a) person accept The refuses to a citation make a or to deposit 23.66; under s. or (b) person identify The refuses to himself or herself satisfac- torily grounds or officer has the reasonable to believe the person identification; supplying is false or (c) necessary prevent bodily Arrest is imminent harm to enforcing the officer or to another. 23.57(l)(a)-(c). Wis. Stat. §
325 disposal upon witnessing butt onto the constitutionally stop highway. the was Whether question now to which we reasonable, however, is the turn. Authority to
B. Constitutional Stop Traffic Conduct the May Patrol Officer 1. Whether a State Traffic Stop Traffic Based on Conduct Warrantless Suspicion or Cause Reasonable Probable Civil that a of a Non-Traffic Violation Forfeiture Law Has Occurred patrol stop traffic of a 44. A state traffic officer's "persons" is a "seizure" of under Fourth vehicle (cita- Popke, 118, Amendment.13 See omitted). stop not un- tions "An must be automobile stop A traffic is reasonable under circumstances. probable generally if cause reasonable the officers have occurred, has have to believe that a traffic violation or grounds reasonably suspect has a violation been (citations quota- Id. internal will be committed." omitted). The it tion marks issue before us is whether effectuate a for a non-traffic civil reasonable to forfeiture offense. appeals that a court of below concluded may premised solely
traffic
not be
on non-traffic
In
if
words,
civil forfeiture offense.
other
even an officer
littering statute,
observes a violation of the
the officer
traditionally
have
Con
"[W]e
understood
Wisconsin
provision on search and seizure to be coextensive
stitution's
Houghton,
with
Fourth Amendment." State v.
2015 WI
(citation omitted).
Wis. 2d
without arrest" to suspected of statutes, violations certain enumerated including 287.81), impact analysis.14 § Wis. Stat. appeals' interpretation,
¶ 47. Under court of required idly by an would officer be to sit if an even bag garbage individual threw an entire out of a simply window, vehicle's because is a non- controlling Krier not for this In Krier court reason. appeals relied on Stat. Wis. 968.24 for its definition of the § permissible police E.g., bounds of the conduct. v. officer's State (Ct. 1991) ("We Krier, 673, 678, 478 Wis. 2d App. N.W.2d 63 person's activity when a hold that can a civil constitute either crime, may or a police validly perform forfeiture officer an 968.24, investigative stop pursuant (emphasis to s. Stats." added)). case, however, In Trooper this Larsen his derived authority from Wis. Stat. 110.07 and Wis. Stat. 23.58. § statutes, 968.24, These in contrast to Wis. Stat. authorize stops punishable traffic based on conduct civil forfeiture 110.07(l)(a)3.; alone. See Wis. Stat. Stat. Wis. 23.58. *22 Wis. Stat. offense.15 Neither
traffic civil forfeiture 345.22, Popke require nor 968.24, nor Wis. Stat. § 345.22 per 968.24 and Although this conclusion. regulations, violations of traffic tain to crimes and only to enforce non- traffic stops neither statute forecloses Similarly, while Popke traffic civil forfeiture offenses. to traffic authority an officer's effectuate analyzed traffic regula and for violations of stops for crimes tions, 2d our statement 317 Wis. Popke, ¶¶ . "a officer .. conduct a traffic Popke may in police circumstances, the he when, totality under the of stop reasonably to that a crime grounds suspect or she has id., committed," has been or will be or violation traffic added) (citation omitted), not did (emphasis circumscribe to the universe of sce possible purport may traffic stops permissibly narios within which occur, to make such limits on whether contingent or might suggest that an officer who witnesses litter Some get a in the ing highway on a warrant or issue ticket the should mail, in of quickly one how these are remedies search but sees First, notably is problem. a the issuance of a citation ticket; of, example, parking the a different from issuance for placed a and tracks the stopped the latter is on vehicle registered person the rather than the who owner of vehicle See, actually parked e.g., Depart car. State of Wisconsin the Vehicles, Transportation, Unpaid ment of Motor Division Tickets, Fees, Towing Judgments Storage Parking and and http://wisconsindot.gov/Pages/dmv/vehicles/prkg-tckt/unpaid 2015) (last Sept. 30, (describing Traffic tickets.aspx visited the that noting Registration Program "[a]n and Violation issuing authority parking a ticket will send two notices to vehicle"). Second, registered if an were owner of the officer remedies, likely relegated such officer most be to would determining precluded from whom a citation should be to effect, In the officerwould not be able to issue the ticket issued. responsible ap the person who is for the offense. These proaches for a like Wis. Stat. 287.81. are ill-suited statute has titled a legislature particular law a "traffic regulation." facts involved a Popke based on criminal and offenses, traffic not non-traffic civil Thus, forfeiture offense. language was Popke limited to the issue then before the court. The question whether non-traffic civil forfeiture offense can justify vehicular before the court today. Iverson would attach signifi- constitutional cance legislature's to the categorization of civil forfei- tures as either traffic-related non-traffic-related, with the effect of limiting ability of law enforce- ment officers administer laws that the legislature *23 saw fit to enact. But the did legislature not place any such on limits law enforcement. 49. Some violations, civil as littering, such can
occur whether or not a Indeed, vehicle is involved. the legislature may have found of characterization Wis. Stat. 287.81 as a "traffic regulation" § improper simply all littering because not on roads; done the the prohibition contained in the applies statute to all areas of Wisconsin, just not state's highways. See Wis. 287.81(2)(a). Stat. legislature found Perhaps it more to appropriate classify littering offense as one Reduction, to "Solid pertaining Recovery Waste and Wis. 287, Stat. ch. it similar Recycling," group with ("Pure see legislation, Wis. ch 280 Stat. Drinking Water") ("Air Pollution"), and Wis. Stat. ch. 285 rather than with traffic laws. Whatever the reason for Wis. separation laws, Stat. 287.81's the traffic from the legislature did not limit the to littering just statute one Instead, domain. the broad of the statute language applies to Wisconsin's and the traffic highways state patrol given authority has been to enforce it under Wis.
329 ll0.07(l)(a)l.16 as classification The statute's Stat. by provide grounds itself or not does not traffic-related departure Amendment our Fourth from usual for analysis. accept and sei- that the search "We cannot protections . Amendment. . can be of the Fourth zure upon U.S., v. Whren made turn such trivialities." (1996) (Fourth protec- Amendment 517 815 U.S. police dependent officers followed on whether tions not practices). enforcement analyze the reasonableness If we otherwise stop, not in terms of the traditional traffic this
totality test based on Iverson's circumstances evening question, driving ab- on the but more stractly, for in terms of whether a traffic reasonable, we arrive at the conclusion is ever e.g., Popke, See, 2d 317 Wis. such a is reasonable. Pennsylvania Mimms, v. 434 U.S. 11; see also (1977). judge in this 106, 108-09 We reasonableness public by "balancing] . . interest and the context . the right personal security free from arbi- individual's trary Malone, See interference law officers." 109). (quoting Mimms, U.S. at Wis. 2d 345.20, provision setting Stat. out We add that Wis. actions," specific procedure governing forfeiture makes *24 "traffic (emphasis Wis. 345.20 mention of the statute. Stat. § added). procedures set provides 345.20 that § Wisconsin Stat. Statutes, the chapter out in the "Conservation" of Wisconsin 23, to in court recover "apply Wis. ch. actions circuit to Stat. 345.20(g). At for violations of s. 287.81." Wis. Stat. § forfeitures time, provides that the citation § the same Wis. Stat. 23.53 chapter governs within the "Conservation" violations created chapter, "except of certain statutes enumerated within that may created under s. 345.11 be that the uniform traffic citation by. employed officer under s. 110.07 used .. traffic 23.53(1). enforcing Stat. s. 287.81." Wis. 330 relatively ¶ "A 51. routine traffic ... is a analogous brief encounter and 'is more to a so-called stop". "Terry . . than to a formal arrest.'" Knowles v. (1998) (citation omitted); Iowa, 113, 525 U.S. 117 see (analogizing Malone, 540, also 274 2dWis. 24 traffic stops Terry stops). and We last 52. clarified term that "reasonable sus-
picion being that traffic law has been isor violated is justify stops," Houghton, sufficient to all traffic State v. ¶79, 2015 WI N.W.2d "[i]n that, and noted at least circumstances, some suspicion reasonable that a non-traffic-related law has may justify stop." Id,., been broken also a traffic reviewing n.6. After the the decisions of federal courts appeals, we reasoned that the brief nature of traffic stops, "weighed against public the interest in safe roads," id., warranted our conclusion. See ¶ 53. The current case features violation of a applicable highways statutorily law to the state's patrol. enforceable state's traffic Enforcement of conceivably helps keep the law the state's roads safe.17 legislature specifi- In addition, we note has court, In its brief before this the State asserted that littering creates for other hazards motorists and that discarded cigarettes particular brush, lit can grass, cause and forest leading fires to property damage. dangers These are self- evident and at least many as serious as with interests which ap Wisconsin's traffic-related are civil forfeiture laws See, parently e.g., (prohibiting concerned. Wis. Stat. 341.04 operation unregistered improperly of an registered 346.20(1) vehicle); (requiring Wis. Stat. operators vehicle yield right-of-way at intersections to vehicles in funeral processions lighted); when headlights the latter have their (unlawful 346.29(3) bridges use certain for fishing). *25 may to which officers according defined the terms
cally of Wis. Stat. 287.81. violators potential detain briefly therefore not the traffic at issue is Our of approval that suspicion A reasonable Houghton. at with odds occurred 287.81, has statute, of violation The more traffic stop. and limited justifies brief would also there- of cause probable standard onerous 2d See 364 Wis. stop. Houghton, a traffic justify fore 234, 21. held, broadly, more that already haveWe are not se unconstitu per
"arrests for civil forfeitures
Pallone,
77,
43, 236
2d
State v.
2000 WI
Wis.
tional."
in a
intoxicants
motor
162,
(open
2. Whether
Larsen
Trooper
had Probable Cause or
Reasonable Suspicion that a Violation of Wis. Stat.
287.81 Had Occurred
56.
"Probable
cause
to the
refers
'quantum
evidence which would lead a reasonable police officer
to believe' that a traffic violation has occurred." Popke,
State,
(quoting
Johnson v.
(1977)).
344, 348,
Wis. 2d
a vehicle light despite flashing yellow aat complete "being butt cigarette He then saw traffic.19 absence of the vehicle." side the passenger thrown from ashes and scattered ground hit butt of the road. lane right across 287.81 to Stat. of Wis. It is a violation along waste on or any solid discharge [] "[d]eposit[] 287.81(2)(a). con- We . . ." Wis. Stat. any highway. *27 Larsen observations, Trooper his that, on clude based occupant20 that an to believe cause had probable throwing 287.81 had violated vehicle § Iverson's the highway. butt onto cigarette was stop traffic Larsen's Trooper Because whether need not consider cause, we on probable based 19 regard testimony Trooper Larsen's Although rely on we opinion should not be stop, this for the traffic ing the reason that upon the conduct stop based exclude a traffic read to of the his observation prior to Trooper Larsen witnessed words, Trooper Larsen In other cigarette the butt. disposal of or reasonable sus probable cause might possessed well have v. in time. State stop point at this conduct a traffic picion to Cf. ("[A] N.W.2d 634 Post, Wis. 2d 733 WI 301 unsafe, give erratic, illegal need not be driver's actions suspicion."). rise to reasonable contrary, ques to the suggestions Despite Iverson's is not out of the vehicle cigarette threw the butt tion of who today. stop traffic to be For a to our determination relevant need not establish occupants, "[t]he State as to all lawful reasonable, suspicion to seize articulable police had court, only police that the but before the particular defendant someone reasonable, suspicion to seize articulable possessed Harris, 243, 260, 557 N.W.2d vehicle." State v. (1996). possessed suspicion he also reasonable that a violation statute had occurred.
V. CONCLUSION (1) Legis- 60. We conclude that: the Wisconsin explicitly troopers lature has authorized state to con- stops investigate duct traffic in order to violations of § Wis. Stat. 287.81 and to arrest violators of the (2) specified statute under conditions; a traffic generally enforce 287.81 is if reasonable an officer probable suspicion has cause or reasonable that a (3) discarding violation of 287.81 occurred; has (4) cigarette highway butt onto a violates 287.81; and Trooper prob- based on observations, his Larsen had occupant able cause to believe that an of Iverson's by throwing vehicle had violated 287.81 highway. butt onto the suppress 61. The defendant's motion to evi- during
dence obtained
this traffic
and to dismiss
this case should have been denied.21 We
reverse
appeals
decision of the court of
and remand the case to
charges
the circuit court for reinstatement of
proceedings
opinion.
further
consistent with this
*28
21 granting
motion,
In
Iverson's
the
suggested
circuit court
that violation
of the
Trooper
statute was
Larsen's
stopping
"excuse" for
Iverson's
"pretextual
vehicle. But
traffic
stops
per
...
are not
se unreasonable
under
the Fourth
Houghton,
234,
Amendment."
364 Wis. 2d
(explaining
25
¶
(1996)).
U.S.,
holding of Whren v.
335 appeals By court of decision the Court.—The the circuit remanded to cause is reversed, and the is opin- proceedings with this consistent for further court ion. par- not BRADLEY, J., did G. 62. REBECCA
ticipate. (concur- J. ABRAHAMSON, S. 63. SHIRLEY constitutionality addressing
ring). of a This case stop forfeiture offense a non-traffic on vehicle based trooper impression.11 that a state conclude one of first stop authority, circumstances, to certain under has suspi- probable or reasonable cause based on vehicle littering statute, Wis. of Wisconsin's cion of a violation § 287.81.2 Stat. majority opinion My concern is 64. explicitly reject Fourth the touchstone of
seems Majority op., ¶ jurisprudence.3 50. The Amendment prohibits Amendment unreasonable searches Fourth unrea- must not be "An automobile and seizures.4 1 whether, context outside the cases have considered Other offense is a non-traffic forfeiture stop, a vehicle for of Nelson, City Milwaukee v. constitutionally permissible. See of (1989). 434, 562 439 N.W.2d 2 majority op., See 3 Const, IV. U.S. amend. 4 (1996) ("Reason Robinette, 519 U.S. 39 See Ohio v. examining by ableness, turn, objective terms is measured Mimms, circumstances."); Pennsylvania v. totality (1977) ("Reasonableness, course, depends 434 U.S. individual's public interest and the between the 'on balance arbitrary security free from interference right personal officers.'") Brignoni-Ponce, States v. (quoting United law (1975)). U.S. *29 sonable under the circumstances."5 Reasonableness gauged under the totality of the circumstances.6 65. The majority
¶ opinion explains how it ana- lyzes reasonableness of the automobile in the stop instant case: in "not terms of the traditional totality of the circumstances test based on Iverson's on driving in evening but, question more abstractly, terms of whether a traffic for littering is ever reason- able . . . ."7The majority opinion does not explain what its "abstract" approach entails or how this "abstract" with approach meshes the traditional reasonableness under the totality the circumstances analysis.8 66. The court
¶
has frequently stated that
rea-
sonableness under the Fourth Amendment
on
depends
a court's balancing the public interest
an
against
individual's
right
personal
free from
security
inter-
5
37,
State
Popke,
11,
v.
2009 WI
118,
317
2d
Wis.
765
N.W.2d
(citing
569
State Gaulrapp,
600, 605,
v.
558
(Ct.
1996));
N.W.2d 696
App.
see
Houghton,
also State v.
2015
79,
("It
29,
WI
234,
364
Wis. 2d
ference totality carefully of the the scrutinize must court apply majority opinion not does The circumstances.10 balancing test. this public in interest looks at a court 67. When underlying stop is offense typical case, the vehicle
a ordinarily public The violation. or traffic a criminal safety high is ordinar- Public in such a case. is interest ily by of traffic or a violation behavior at risk criminal stopping in public the vehicle in interest The laws.11 comparatively is no low; there case is the instant single throwing butt from evidence that any civil, In the case of a hazard. car created Iverson's (like littering), the state's offense non-traffic, forfeiture combating ensuring crime travel and safe interests significantly than in weaker non-existent are either a traffic violation.12 for a crime or a vehicle 9 ("Reasonableness, course, of Mimms, at 109 434 U.S. and the public interest between depends 'on a balance arbitrary security free from personal right individual's officers.'") v. (quoting United States by law interference Malone, 873, (1975)); 274 878 see also 422 U.S. Brignoni-Ponce, Mimms). 540, (citing 21¶ Wis. 2d 10 540, Malone, 21. 11 2007) (Wash. 1265, Day, 1269 v. 168 P.3d See State (Wash. 1996)); Johnson, 293, see P.2d 306 909 (quoting State v. 234, 56, 2d 868 364 Wis. Houghton, v. 2015 WI also State Statutes contain "[t]he Wisconsin (recognizing N.W.2d safety toward on provisions directed number of a tremendous roadway"). Supreme Court's example the United States For an an non-criminal, nature of civil forfeiture considering the exigent circumstances exist determining whether offense Wisconsin, home, entry see Welsh v. into a justify a warrantless (1984). the offense is an gravity 749-51 466 U.S. Welsh, analysis. 466 U.S. important part of the constitutional at 753. countervailing
¶ 68. The individual's interest is personal security and freedom from intrusion government. majority opinion courts, Unlike other stop. of the dismissive intrusiveness of a vehicle A stop by "major vehicle a law enforcement officer is a [vehicle's] occupants." interference in the lives of the (1971). Coolidge Hampshire, v. New 403 U.S. privacy every An intrusion on occurs time a stops regardless law enforcement officer car, stop. motivation for the A vehicle interferes awith *31 person's freedom of movement and is inconvenient, time-consuming, anxiety-inducing. and Moreover, a stop provides vehicle a enforcement law officer with an opportunity passen- for further driver, intrusion on the gers, and the contents of the vehicle.13
¶
reason,
70. For this
some courts have declined
general
suspicion
to extend the
reasonable
standard in
striking
public
the balance between
and individual
stops
extremely
interests in cases of vehicle
for
minor
parking
infractions, such as a
violations.14
underlying
The seriousness of the
offense is also relevant
stop
constitutionally
permissible
to whether
a
in other
(9th
contexts. See
Griggs,
United States v.
498 F.3d
2007) (holding
assessing
investigatory
Cir.
that
in
stop
an
completed misdemeanor,
a
playing
based on
in that case
a car
volume,
stereo at excessive
reviewing
"a
court must consider
the nature
in question,
misdemeanor
offense
with
particular
potential
ongoing
attention to
repeated
the
for
danger
any
. .. and
risk of escalation .... An assessment of the
safety1
'public
totality
factor should be considered within the
circumstances,
balancing
privacy
the
when
the
interests
at
..").
Terry against
efficacy
stake
of a
..
13 See,
Williams,
e.g.,
State v.
WI 94,
1,
does and does significant public interest is illus- violate a otherwise majority examples on which trated several *32 majority opinion opinion illuminates that The relies. cigarettes particular brush, in can cause "discarded lit leading property damage."16 grass, to and forest fires (Minn. 1997) Holmes, 181, 185-86 (concluding that 569 N.W.2d Terry sufficiently serious to merit a parking a violation was not "only solely probable on cause and stop, permitting stops based ."). See also stop necessary to enforce the violation .. . if the (Wash. 2002) Duncan, 513, 517-19 (declining to 43 P.3d State v. infractions). Terry general to civil extend 15Majority n.15. op., 47¶ 16Majority op., n.17. 53¶ majority opinion explains throwing The also a large bag moving dangerous of trash out of a vehicle is who others use road.17 examples majority opinion sug-
¶ 74. The in the gest circumstances that would relevant be under a totality analysis. of the circumstances A butt dry, fire-prone may thrown out of a vehicle in a area very pose public safety well a risk to and the environ- danger by single cigarette ment. No such in cigarette likely butt alleged. the instant case is poses Ash from a danger bag no at all.18A trash thrown out of a moving obviously may very pose danger vehicle well a single cigarette ordinarily motorists; to other butt examples totality does not. These flesh out the circumstances to be considered. proof public In case, 75. the instant no of a
safety driving risk was offered. Iverson was the wee morning city hours of the of La Crosse. There is suggesting no evidence in the record that other drivers endangered by passen- on the road were somehow ger's tossing cigarette butt, let alone that there was property damage, significant fire, a risk of danger or other cigarette. as result of discarded Rather, 76. the traffic in this case is a trooper stopped variation on familiar themes. The littering. violation, Iverson based on a minor here See pretextual. Wis. Stat. 287.81. The was The trooper's true motive was not to issue a citation for littering, investigate but a more serious traffic potentially namely offense, offense drunk criminal driving. trooper driving saw Iverson's vehicle late 17 Majority op., 2014AP141-CR, Qualls, unpublished State v. No. Cf. (Wis. 2014) (not slip op., App. reaching the issue Ct. Oct. ordinance). village of whether ash constituted "litter" under a *33 trooper the vehicle. The following at and night began lane and at two stop the vehicle drift within its saw of traffic. the absence flashing yellow lights despite a hunch that the evidently The had trooper 77. ¶ (and apparently intoxicated his hunch was driver was correct). concluded, however, that he did The trooper the vehicle.19 stop have reasonable suspicion not trooper "a-ha" moment. When the saw Then came the from the side of the passenger butt thrown cigarette that he had vehicle, grounds concluded trooper the vehicle. stop nature of the Underscoring pretextual cited neither Iverson nor his was for
stop, passenger drunk Instead, Iverson was arrested for littering. driving. on the pretextual 79. The circuit court relied motion to stop granting suppress.
nature of the
States,
However,
806,
v.
517 U.S.
under Whren United
reason-
(1996),
cases,
and other
the constitutional
does not
on the
ability
depend
subjective
19Majority
trooper
"prior to
op.,
7 & n.3. The
stated that
being
I
that I
butt
thrown ...
didn't feel..
.
had
suspicion
a traffic
. ..."
the reasonable
to initiate
majority opinion
drifting
insinuates
that
within a lane
flashing yellow lights
stopping
at
constitute
reasonable
suspicion
driving. Majority op.,
7 n.3.
conclu-
of drunk
That
Post,
60,
18-21,
See State v.
questionable.
WI
¶¶
sion is
(concluding
repeatedly
gauge assessing the of the vehicle reasonableness totality stop under the of the circumstances can be public as follows: the summarized interest this particular stop slight insubstantial; for was stop significant person's a vehicle security; is a intrusion on a statutory flimsy; violation was and the stop pretextual. reason for the vehicle was This combi- presented circumstances, nation of had the case been way, might stop this lead me to that the conclude vehicle was not reasonable under the Fourth Amendment. majority opinion
¶ 81. I caution that the should majority not be over read. I do not think the intends its opinion granting to be read as law enforcement officers extraordinarily powers stop broad vehicles without judicial meaningful review. sum, In the traditional Fourth Amendment apply
rules still
prohibits
in Wisconsin. The Fourth Amendment
Rea-
unreasonable searches
seizures.21
20
See, e.g., Wayne
This rule has been criticized.
1
R.
A
LaFave,
Search & Seizure:
Treatise on the Fourth Amend
1.4(f) (5th
2012)
ment,
States,
Whren v. United
(critiquing
ed.
Newer,
State v.
(1996));
n.2,
App
¶ that a who or person "[d]eposits tering," provides or or any along any highway" solid waste on discharges solid waste to be thrown from a vehicle "[p]ermits any be to forfeit no by may required operated person" more than $500.24 ("The
22 Mimms, at 108-09 touchstone of our 434 U.S. always 'the analysis under the Fourth Amendment is reason governmen particular in all the circumstances of the ableness security.") (quoting Terry personal tal invasion of a citizen's v. Ohio, 1, (1968)); Robinette, at 392 U.S. 19 see also 519 U.S. 39 ("Reasonableness, turn, objective in terms is measured Malone, circumstances."); examining totality of 274 (a "carefully Wis. 2d 21 court must scrutinize the ¶ circumstances."). totality of the 23 11; Popke, Houghton, 2d also 364 ¶ 317 Wis. see ("It undisputed stops 2d 29 that traffic must be Wis. ¶ circumstances.") (citing Gaulrapp, under the 207 reasonable 605). Wis. 2d at (b). 287.81(2)(a), Wis. Stat. § 287.01(10) adopts meaning 86. Section 289.01(33).25 in Wis. Stat. "solid waste" set forth materials, includ- many of "solid waste" lists definition refuse, and materials from resulting ing garbage, activities."26 "Refuse" is defined as "community part community "matters from industrial or produced life."27 activities" "community 87. The phrases industrial life" community defy from
"produced any almost effort at definition. statute not inti- littering 88. Would a simpler suffice, connected with solid waste so a court
mately spend double-spaced pages, need not paragraphs, for a discourse on dictionary and a lot of research butt violates the statute? whether gener- is a word in common with a "Littering" usage, the word is not meaning, "littering" but ally accepted in the title to subchap- used in 287 other than chapter of Wis. Stat. ter IV of 287 and the title chapter 287.81. take another look at legislature 89. Should the and 287.81? See Wis. Stat. Wis. Stat. §§287.01 13.92(2)0)- *36 forth, I write sepa- 90. For the reasons set rately. 91. I am authorized to state that Justice ANN opinion. BRADLEY 64-66 of this joins ¶¶
WALSH BRADLEY, J. I (concurring). 92. ANN WALSH conclusion that "the officer majority with the agree cause to believe that an occu- this case had probable 25Chapter 289 is titled "Solid Waste Facilities." 289.01(33). Wis. Stat. § 289.01(28). Wis. Stat. § pant had violated 287.81 of Iverson's vehicle highway." Majority throwing butt onto Op., ¶ 4. separately, I however, I write because dis- majority's employ totality
agree failure to with the analysis. As the above concurrence ex- circumstances totality analysis plains, is, of the circumstance has been, of Fourth Amend- and remains touchstone jurisprudence. Accordingly, join paragraphs I ment 64-66 of the above concurrence.