                                                                     2015 WI 76

                  SUPREME COURT            OF    WISCONSIN
CASE NO.:                2013AP430-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Patrick I. Hogan,
                                   Defendant-Appellant-Petitioner.




                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                           (Reported at 354 Wis. 2d 622, 848 N.W.2d 903)
                                    (Ct. App. 2014 – Unpublished)

OPINION FILED:           July 10, 2105
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           March 4, 2015

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Grant
   JUDGE:                Craig R. Day

JUSTICES:
   CONCURRED:            ZIEGLER, J., concurs. (Opinion Filed)
   DISSENTED:
   NOT PARTICIPATING:    BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion
                         Filed.)

ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Nicholas J. Passe and Moen Sheehan Meyer, Ltd., La Crosse,
and oral argument by Nicholas J. Passe.




       For    the       plaintiff-respondent,   the   cause   was   argued   by
Tiffany M. Winter, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.
                                                                            2015 WI 76
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.     2013AP430-CR
(L.C. No.     2012CF147)

STATE OF WISCONSIN                                :            IN SUPREME COURT

State of Wisconsin,

               Plaintiff-Respondent,
                                                                         FILED
        v.
                                                                    JUL 10, 2015
Patrick I. Hogan,
                                                                       Diane M. Fremgen
               Defendant-Appellant-Petitioner.                      Clerk of Supreme Court




        REVIEW of a decision of the Court of Appeals.                  Affirmed.


        ¶1     DAVID    T.     PROSSER,   J.     This     is    a    review      of     an
unpublished decision of the court of appeals,1 which affirmed a
judgment convicting Patrick I. Hogan (Hogan) of possession of
methamphetamine and child neglect.                 Hogan pled no contest to
these       charges    after    the   Grant    County    Circuit      Court2      denied

Hogan's motion to suppress evidence obtained during a search of
his truck.

        1
       State v. Hogan, No. 2013AP430-CR, unpublished slip op.
(Wis. Ct. App. May 15, 2014).
        2
            Craig R. Day, Judge.
                                                                     No.         2013AP430-CR



       ¶2      This fact-intensive case focuses on the reasonableness
of    police     conduct      after     a    lawful       traffic    stop.         After     a
sheriff's       deputy       stopped        the   defendant        for     a    seat    belt
violation, the deputy observed what he believed to be indicia of
the defendant's drug use.                   With this in mind, he called for
backup.     He then wrote out seat belt citations for the defendant
and the defendant's wife, who was not wearing her seat belt
properly.       Before the deputy had finished the citations, a local
officer who knew of the defendant arrived on the scene.
       ¶3      The officer reported that his department had received
tips that the defendant had "961 issues" and was a "shake and
bake" methamphetamine cooker.

       ¶4      With    his    suspicions          about    the     defendant       somewhat
confirmed, the deputy asked the defendant to perform a series of
field sobriety tests.            When the defendant passed all tests, he
was told he was free to leave.                    At this point about 24 minutes
had elapsed from the time the deputy initiated the traffic stop.
       ¶5      Approximately       16       seconds       later,     the       deputy    re-
approached the defendant and asked several questions, including
whether the defendant would consent to a search of his truck.
The defendant consented and the officers found methamphetamine,
equipment        and      supplies          commonly        used     to         manufacture
methamphetamine, and two loaded handguns.                        One gun was close to
the   defendant's        two-year-old         daughter,      who    was    sitting      in   a
child's car seat behind her mother in the back of the truck.
       ¶6      The     defendant      sought       to     suppress       this     evidence.
Suppression hinges on the answer to three questions.                            First, did
                                              2
                                                                                No.         2013AP430-CR



the deputy have reasonable suspicion to extend a lawful traffic
stop about seat belts to investigate whether the defendant was
under the influence of drugs in the operation of his vehicle by
having the defendant perform field sobriety tests?                                          Second, if
the traffic stop was not lawfully extended to investigate drug
use by the defendant, was the defendant's subsequent consent to
search       his    truck       tainted         by    prior       illegality,         so     that      the
evidence      seized          was   inadmissible?                Third,    was        the    defendant
constructively           seized        without         reasonable         suspicion          when      the
deputy re-approached the defendant's vehicle to request consent
to search?
       ¶7      The defendant argues that the deputy lacked reasonable

suspicion         to    ask     that      the    defendant          perform       field       sobriety
tests.        He contends that there were innocent explanations for
the observations that the deputy made, and that the deputy was
acting       on     nothing         more     than          a    hunch     and    unsubstantiated
information            from     a    fellow          law       enforcement       officer.              The
defendant further argues that the taint of an illegal extension
affected the deputy's request for consent to search, rendering
the    consent         invalid      and    all       evidence      obtained       in        the    search
inadmissible.                 Finally,     the        defendant         argues        that        he   was
constructively           seized        without         reasonable         suspicion          when      the
deputy re-approached his vehicle to ask for consent to search.
       ¶8      The State counters that possible innocent explanations
do not render the deputy's observations meaningless in analyzing
the basis for reasonable suspicion.                             The State also argues that,
even    if    the      extension       was      illegal,         the    stop     ended       when      the
                                                      3
                                                                                No.        2013AP430-CR



deputy told the defendant he was free to leave.                                            The State
argues the defendant was not seized within the meaning of the
Fourth Amendment when the deputy asked him for consent to search
his    truck,    and     the       defendant's          consent      was        therefore      valid.
Alternatively, the State contends that any illegality was so
attenuated from the defendant's consent that the taint of the
illegality      had      dissipated          by       the     time        the    defendant         gave
consent.
        ¶9    Although        the     question          of     whether          the    deputy       had
reasonable suspicion to extend the traffic stop to administer
field    sobriety        tests      is   a     close         one,    we    conclude         that    the
extension       was      unlawful        based          on     the    evidence             presented.

However,      the     defendant's            subsequent         consent          to    search       his
vehicle came after the traffic stop had ended and the defendant
was told he was free to leave.                              Because the police did not
exploit the unlawful extension of the stop in order to gain
Hogan's consent to search his vehicle, attenuation analysis is
unnecessary         in      this     case.              Furthermore,            Hogan       was     not
constructively seized when he gave consent to search his truck.
We therefore conclude that the defendant's consent was valid and
that    it    was     not    error       for      the    circuit          court       to    deny    the
defendant's motion to suppress the evidence recovered from his
truck.
        ¶10   Accordingly, we affirm the decision of the court of
appeals.
                      I. FACTUAL AND PROCEDURAL BACKGROUND


                                                  4
                                                                     No.        2013AP430-CR



       ¶11    On    May    12,    2012,    Deputy     Andrew     Smith     of   the    Grant
County Sheriff's Department was driving his squad car north on
Wisconsin Avenue in the City of Boscobel.                          It was about 6:10
p.m.     Deputy Smith stopped at the corner of Wisconsin Avenue and
Oak Street.          He saw a Chevrolet truck pass in front of him
traveling east.            The driver, Patrick Hogan, was not wearing a
seat     belt.       Deputy       Smith     turned      right      and     activated     his
emergency lights.           The truck promptly pulled to a stop in front
of the Blaine Theatre.
       ¶12    When Deputy Smith approached the truck, he saw Hogan's
wife in the front passenger seat.                    She was wearing her seat belt
improperly with the shoulder strap underneath her arm.                             He also

saw the couple's two-year-old child seated directly behind Mrs.
Hogan in a child safety seat.
       ¶13    As soon as Deputy Smith began speaking with Hogan, he
noticed      that    Hogan       was   "very       nervous,"     "real     nervous,"     and
"shaking real bad" with upper body tremors.                              He also noticed
that Hogan's "pupils were restricted," which he believed was "an
indicator of drug use."                Deputy Smith acknowledged later that he
was    not   a     drug    recognition      "expert"       but    said     he   based    his
observations on his 12-1/2 years experience as a deputy and his
frequent review of a "pupilometer," which he described as "a
little    card      that    has    different        size   black    marks"      which    are
"measured in millimeters."                 The card was provided to him in
connection with his field sobriety training.
       ¶14    Deputy Smith collected the licenses of both Mr. and
Mrs. Hogan and returned to his squad.                      He immediately requested
                                               5
                                                                        No.        2013AP430-CR



backup from Boscobel police and stressed his observations about
Hogan's extreme nervousness and constricted pupils.
        ¶15    Shortly thereafter, the audio portion of the squad car
video       reflects       a    repeated      announcement,        "Warning,        potential
hit."         The record does not explain whether this announcement
pertained          to   Hogan,      who     was   on     probation     for    second-degree
reckless injury and had a number of other criminal convictions.
        ¶16    Before Deputy Smith completed the citations, he was
joined by Boscobel Police Officer Travis Dregne.                              Upon learning
of Hogan's identity, Officer Dregne immediately remarked that
Hogan had "961 issues," referring to the Wisconsin statutory
chapter       on    controlled         substances.           Officer   Dregne      also    told

Deputy Smith that "he received tips that Mr. Hogan's a shake and
bake methamphetamine cooker."3                        Deputy Smith then requested a
police K9 unit via radio.
        ¶17    Upon learning that the K9 unit was unavailable, Deputy
Smith       determined         that    he    would     ask    Hogan    to     perform     field
sobriety tests.            Approximately three minutes later, he completed
the citations and printed them out.                       A total of approximately 13
minutes had passed since Deputy Smith initiated the stop.
        ¶18    Deputy Smith then approached Hogan and asked him to
step out of the truck.                  He explained to Hogan that he had made
observations            that   he     thought     were    consistent        with   drug   use.

        3
       "Shake and bake" or "one pot" methamphetamine production
is a manufacturing process used to produce small amounts of
methamphetamine, often for personal use. See Raphael S. Nemes,
Note, Shake and Bake: The Meth Threat and the Need to Rethink 21
U.S.C. § 841(C)(2), 88 Wash. U. L. Rev. 993, 999 (2011).

                                                  6
                                                                  No.      2013AP430-CR



Hogan's    quick    response     was    "I     don't    use     drugs."        He   then
suggested    that    Deputy     Smith's       observations       might    be    due    to
Hogan's     use    of    Adderall,      for     which     he     said     he    had     a
prescription.       Deputy Smith replied that Adderall does not cause
the symptoms he was observing, and he asked Hogan if he would
perform a series of field sobriety tests.                 Hogan complied.
     ¶19    Deputy      Smith   had     Hogan     perform        four     tests:      the
horizontal gaze nystagmus test, the walk and turn, the one leg
stand, and the alphabet test.                 These tests took approximately
eight minutes.       Deputy Smith determined that Hogan did not show
any signs of impairment and informed Hogan he was free to leave.
     ¶20    Hogan got back into his vehicle and closed the door

but did not start the truck and leave, even though his house was
across the street.         Deputy Smith returned to his squad car and
spoke with Officer Dregne.             They discussed asking for a consent
search.     Approximately 16 seconds after Deputy Smith told Hogan
he could leave, he returned to Hogan's stationary vehicle and
said, "Hey, sir, can I talk to you again?"
     ¶21    Hogan got out of his truck.                Deputy Smith asked Hogan
if there were any weapons or drugs in the truck.                        Hogan replied
that there were not.          Deputy Smith then asked Hogan if he could
search the vehicle.         Hogan assented to Deputy Smith's request,
motioning for Deputy Smith to take a look.                      Deputy Smith asked
for verbal confirmation of Hogan's consent and Hogan replied
"Why not.    Yeah.      Go ahead."
     ¶22    Deputy      Smith   and     Officer        Dregne    searched      Hogan's
truck.     Hogan's wife disclosed to Officer Dregne that she had a
                                          7
                                                                     No.         2013AP430-CR



handgun in her purse, but did not have a concealed carry permit.
In addition to that gun——a .380 caliber Taurus semi-automatic
pistol——they found a loaded Walther .22 caliber pistol behind
the passenger seat near the couple's child.
        ¶23      Deputy   Smith        and     Officer    Dregne      also        recovered
muriatic acid, two glass bottles containing clear liquids, and a
medicine bottle bearing Hogan's name that contained a substance
later        identified    as     methamphetamine.             The     officers         also
recovered         paraphernalia        used    to    manufacture      methamphetamine,
including coffee filters, syringes, rubber gloves, and a heating
canister.          These items, including the loaded .22 pistol, were
stored approximately one foot from the child.

        ¶24      On May 14, 2012, Hogan was charged with possession of
methamphetamine, manufacturing methamphetamine, possession of a
firearm by a felon, and child neglect.4
        ¶25      On June 12, 2012, Hogan filed a motion to suppress
evidence from the search.               He argued that any evidence recovered
after        Deputy   Smith     told     him    he    could   leave        was    illegally
obtained because Deputy Smith seized Hogan for a second time
when        he   re-approached    Hogan's       vehicle   even     though        he   lacked
reasonable suspicion to do so.                     On the same day, Hogan filed a




        4
       Contrary to Wis. Stat. §§ 961.41(3g)(g), 961.41(1)(e1),
941.29(2)(a), and 948.21(1)(a).  All subsequent references to
the Wisconsin Statutes are to the 2011-12 version unless
otherwise indicated.

                                               8
                                                                          No.         2013AP430-CR



motion to dismiss, arguing that the State failed to preserve
evidence material to his guilt or innocence.5
       ¶26     On     June    21,     2012,      Hogan      filed       another       motion    to
suppress, this time arguing that the traffic stop was illegally
extended       when    Deputy        Smith    required          Hogan    to     perform      field
sobriety tests.          Hogan based this contention on the premise that
Deputy Smith lacked reasonable suspicion that Hogan was under
the influence of drugs.
       ¶27     That     same     day,      the       circuit      court       denied     Hogan's
original motion to suppress the evidence from his truck.                                        The
court reasoned that Hogan had freely consented to a search of
his vehicle and therefore it was not an unlawful extension of

the    stop.          However,       the     court      expressed       uncertainty          about
whether the field sobriety tests were a lawful extension of the
original stop, and requested informal briefing on the matter.
       ¶28     The circuit court denied Hogan's second motion on July
10,    2012.        Although        the    court      determined        that     Deputy      Smith
illegally       extended       the     stop      when      he   administered          the    field
sobriety     tests,      it    concluded         that      Hogan's      subsequent       consent
sufficiently tempered the illegality of the extension and that
suppression was not necessary.
       ¶29     On July 27, 2012, Hogan pled no contest to possession
of    methamphetamine          and    child      neglect.         As    part     of    the     plea
agreement,      the     State       dismissed        the    charges      for    manufacturing


       5
       This issue has not been argued before this court, and we
do not address it.

                                                 9
                                                              No.      2013AP430-CR



methamphetamine, possession of a firearm by a felon, and the
seat belt citation.          The court found Hogan guilty and entered a
judgment of conviction on September 27.
        ¶30   On October 12, 2012, Hogan gave notice of his intent
to     seek   postconviction      relief     from   the    orders    denying     his
motions to dismiss and suppress.             On May 15, 2014, the court of
appeals affirmed the conviction and the circuit court's denial
of the motions.           State v. Hogan, No. 2013AP430-CR, unpublished
slip op. (Wis. Ct. App. May 15, 2014).                 The court reasoned that
Hogan was not constructively seized when Deputy Smith conducted
a search of his vehicle.          Id., ¶12.     The court also affirmed the
circuit court's ruling that Hogan's consent "was sufficiently

attenuated from the taint of the illegal detention."                  Id., ¶19.
        ¶31   On June 16, 2014, Hogan filed a petition for review
with this court, which we granted on November 13, 2014.
                             II. STANDARD OF REVIEW
        ¶32   Whether a defendant's constitutional rights, including
his rights under the Fourth Amendment, have been violated is a
question      of    constitutional     fact.          Resolving     questions    of
constitutional fact is a two-step process.                   State v. Martwick,
2000    WI    5,   ¶17,   231   Wis. 2d 801,    604    N.W.2d 552.      We     first
uphold the circuit court's findings of historical fact unless
they are clearly erroneous.            Id., ¶18.          We then independently
apply constitutional principles to those facts.                Id.
                                 III. DISCUSSION
        ¶33   This case requires us to analyze different segments of
an extended traffic stop.           The evidence that the defendant seeks
                                        10
                                                                        No.          2013AP430-CR



to suppress was not acquired until a third distinct period of
the stop about 28 minutes after its initiation.
                                A. Extension of the Stop
        ¶34   The Fourth Amendment to the U.S. Constitution protects
individuals        from        unreasonable       searches      and     seizures.             U.S.
Const. amend. IV.               "There is no question that a police officer
may stop a vehicle when he or she reasonably believes the driver
is     violating      a       traffic     law . . . ."          State    v.         Betow,     226
Wis. 2d 90, 93, 593 N.W.2d 499 (Ct. App. 1999) (citing United
States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995)).                                  However,
"a traffic stop 'can become unlawful if it is prolonged beyond
the    time   reasonably          required     to     complete        th[e]     mission'       of

issuing a . . . ticket."                  Rodriguez v. United States, 575 U.S.
___,    135   S.    Ct.        1609,     1614-15     (2015)     (quoting        Illinois        v.
Caballes, 543 U.S. 405, 407 (2005)).
        ¶35   After       a    justifiable     stop      is    made,    the     officer       may
expand the scope of the inquiry only to investigate "additional
suspicious     factors          [that]     come    to    the    officer's           attention."
Betow, 226 Wis. 2d at 94 (citing United States v. Perez, 37 F.3d
510, 513 (9th Cir. 1994)).                  See also State v. Gammons, 2001 WI
App 36, ¶¶18-19, 214 Wis. 2d 296, 625 N.W.2d 623.                              An expansion
in the scope of the inquiry, when accompanied by an extension of
time longer than would have been needed for the original stop,
must     be   supported          by     reasonable      suspicion.            See     State     v.
Colstad, 2003 WI App 25, ¶13, 260 Wis. 2d 406, 659 N.W.2d 394.
See also Navarette v. California, 572 U.S. ___, 134 S. Ct. 1683,
1687 (2014); Terry v. Ohio, 392 U.S. 1, 21-22 (1968).                                   In this
                                              11
                                                                            No.          2013AP430-CR



regard, the legal extension of a traffic stop is essentially a
Terry investigatory stop.                    State v. Arias, 2008 WI 84, ¶35, 311
Wis. 2d 358, 752 N.W.2d 748.
        ¶36    "The        focus        of      an     investigatory              stop      is     on
reasonableness, and the determination of reasonableness depends
on the totality of circumstances . . . ."                          State v. Richardson,
156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990).                            Although officers
sometimes will be confronted with behavior that has a possible
innocent explanation, a combination of behaviors——all of which
may provide the possibility of innocent explanation——can give
rise to reasonable suspicion.                    See United States v. Arvizu, 534
U.S. 266, 274-75 (2002).

        ¶37    It follows that the legality of the extension of the
traffic       stop    in    this    case      turns     on   the   presence          of     factors
which, in the aggregate, amount to reasonable suspicion that
Hogan    committed         a    crime     the    investigation         of    which        would    be
furthered       by    the       defendant's          performance       of    field         sobriety
tests.        See State v. Post, 2007 WI 60, ¶10, 301 Wis. 2d 1, 733
N.W.2d 634.
        ¶38    In    his       incident      report,    Deputy     Smith          explained       the
basis for extending the stop: "Based upon Patrick shaking and
his pupils being restricted, I asked him if he would be willing
to attempt some field sobriety tests and he indicated he would."
        ¶39    Hogan's          post-arraignment             motions        challenged            the
sufficiency of this explanation as well as the sufficiency of
the deputy's observations at the preliminary hearing——"he was
very     nervous,      shaking,         and     his     pupils     were      restricted"——as
                                                 12
                                                                         No.         2013AP430-CR



providing reasonable suspicion to extend the stop to perform
field sobriety tests.
        ¶40     At        the     subsequent        motion      hearing,       Deputy     Smith
testified at greater length and the State's evidence included
video of the entire incident taken from the deputy's squad car
and     audio        of    the       deputy's     statements      and    discussions         with
others.       At the conclusion of the hearing, Judge Day asked for
letter briefs.
        ¶41     In his brief, the assistant district attorney did not
emphasize reasonable suspicion for the field sobriety tests as
much as he emphasized Hogan's consent to search, and he did not
rely on information the Boscobel police officer gave to Deputy

Smith    about        Hogan       as    an    important      element    of   the     reasonable
suspicion for the tests.                     Hogan's attorney said a bit more about
Officer       Dregne's           statements       but   he     pointedly       observed      that
"Officer Dregne . . . had heard (from some unknown source) that
the defendant had a drug history."                      (Emphasis added.)
        ¶42     Judge Day concluded that the field sobriety tests were
"an unlawful extension of the stop."                         He attributed no "power or
persuasive       force          to     Deputy     Smith's     observation       of    [Hogan's]
pupils," saying it "doesn't mean anything on this record."                                     He
did not refer to the deputy's acquired information about Hogan's
alleged       "961          issues"          or   his     alleged       involvement          with
methamphetamine.
        ¶43     Upon careful examination of the record, we believe the
State    could        have       made     a    valid    case    that    Deputy       Smith    had
reasonable suspicion to pursue field sobriety tests with Patrick
                                                   13
                                                                      No.      2013AP430-CR



Hogan.     However, the case the State could have made in circuit
court was not made, and, consequently, Judge Day's ruling on
this point was not error.
     ¶44     We    review       the       totality    of    the     circumstances          to
illustrate the problems.
     ¶45     There was no evidence and no suspicion that Hogan was
driving    under     the   influence         of    alcohol.       There      also    was    no
evidence that Hogan's driving had been impaired by drugs.                                  The
deputy's observations suggested that Hogan might have been using
drugs and thus might have violated Wis. Stat. § 346.63(1)(am),
which makes it illegal for a person to drive or operate a motor
vehicle with "a detectable amount of a restricted controlled

substance    in    his     or    her      blood."      As     a   result,      the     issue
presented to the circuit court was whether there was reasonable
suspicion     that    Hogan       had      been     using     controlled       substances
recently enough that evidence of that use would be detected in
his blood.
     ¶46     Any   order    for       a    blood    test    would   require         probable
cause.     State v. Tullberg, 2014 WI 134, ¶31, 359 Wis. 2d 421,
857 N.W.2d 120.          Field sobriety tests were intended to secure
evidence to establish probable cause.
     ¶47     Deputy Smith was an experienced officer with 12-1/2
years of service in the Grant County Sheriff's Department.                                 His
experience    should       have       been   a     plus.      State     v.    Meyer,       216
Wis. 2d 729, 752-53, 576 N.W.2d 260 (1998).                       His instincts were,
in fact, correct.           However, Deputy Smith conceded that he was
not a drug recognition expert and his testimony about restricted
                                             14
                                                          No.     2013AP430-CR



pupils    undermined    his   credibility   in   the   court's   eyes.    The
court heard the following testimony on cross-examination:

     Q:   You also indicated that you observed his pupils
     to be restricted, right?

     A:     Yes, sir.

     Q:     Okay.     Was it sunny out that day?

     A:     Yes, sir.

     Q:     And pupils restrict when it's sunny?

     A:     Yes, sir.

     Q:     You're not a drug recognition expert, right?

     A:     Correct.

     Q:     What drugs cause pupil restrictions?

     A:   Cocaine being one.   I'm sure there's others, but
     I'm not a drug recognition expert.

     Q:     Do you know what methamphetamine does to pupils?

     A:     No, sir.

     Q:   Okay. Approximately what size do you believe Mr.
     Hogan's pupils were?

     A:     Three millimeters.

            . . . .

     Q:   [D]o you know what the normal pupil size is for
     an adult male?

     A:     Four to five millimeters, I believe.
     ¶48    For a variety of reasons, the circuit court put no
stock in the deputy's testimony about restricted pupils as a

factor in establishing reasonable suspicion.            The deputy did not
have definitive information at any point on how drug use might


                                     15
                                                                   No.     2013AP430-CR



affect       pupil    size.6      He   referred     to     his   familiarity     with   a
pupilometer card but he did not bring the card to substantiate
or supplement his testimony.
        ¶49       Consequently, the case for reasonable suspicion rests
primarily on the deputy's observations that Hogan's upper body
was shaking and "he appeared to be very nervous."                        These points
appear in his suppression hearing testimony and are even more
prominent in the audio that accompanies the video.
        ¶50       Nervousness, anxiety, and tremors are consistent with
methamphetamine            use.         National      Highway       Traffic      Safety
Administration, Drugs and Human Performance Fact Sheets, Report
No. DOT HS 809 725, at 63 (April 2014).                      These characteristics,

however, may also have innocent explanations.                        The possibility
that innocent explanations may exist for observed behavior does
not     preclude      a    finding     of   reasonable       suspicion,    but    as    a
practical matter, police cannot expect to conduct field sobriety
tests on every motorist who is shaking and nervous when stopped
by an officer.
        ¶51       Officer Dregne's comments that Hogan had "961 issues"
and that Officer Dregne had "received tips that Mr. Hogan's a
shake       and    bake   methamphetamine        cooker"    undoubtedly    influenced


        6
       In fact, during the course of the discussion about pupil
size, Deputy Smith suggested that restricted pupils are
consistent with cocaine use.     However, according to a source
cited by the State, cocaine use may lead to dilated pupils, not
restricted pupils.      See National Highway Traffic Safety
Administration, Drugs and Human Performance Fact Sheets, Report
No. DOT HS 809 725, at 21 (April 2014).

                                            16
                                                                   No.      2013AP430-CR



Deputy Smith's decision to proceed as he did.                      At least some of
Deputy         Smith's    observations        meshed       with   Officer       Dregne's
information.          Ultimately, however, when a court is asked to rule
on a suppression motion, the court must evaluate whether the
information conveyed by a fellow officer, and relied upon in
taking         the    action    under     review,    was    reliable      information,
because         the    officer       conveying    the    information      had    either
firsthand knowledge or a reliable informant.                      No effort was made
in this case to show that Officer Dregne's tips came from a
reliable informant.7             Such an effort, if successful, would have
made       a    substantial          difference     in   establishing       reasonable
suspicion.

       ¶52      The audio from the incident several times records an
urgent announcement, perhaps from the squad computer: "Warning,
potential hit."               These announcements are never referred to in
the    testimony         or    the    argument,     so   that     their   import     and

       7
       To assess the reliability of an anonymous tip, a totality
of the circumstances test is used. Illinois v. Gates, 462 U.S.
213, 230-31 (1983). Courts must take into account the quantity
and quality of information received during this analysis.
Alabama v. White, 496 U.S. 325, 330 (1990).     The quantity and
quality are inversely proportionate: if one is relatively low,
the other must be relatively high for the tip to be deemed
reliable. Id. Courts consider such factors as awareness of the
informant's identity, an officer's past interactions with the
informant, and predictive information offered in the tip.    See
United States v. Am, 564 F.3d 25 (1st Cir. 2009); United States
v. Crozier, 777 F.2d 1376, 1389 (9th Cir. 1985); State v.
Richardson, 156 Wis. 2d 128, 456 N.W.2d 830 (1990).

     Officer Dregne's informant may not have been anonymous and
may have been completely reliable, but any such facts are not in
evidence.

                                             17
                                                                        No.      2013AP430-CR



relationship to Hogan, if any, are unknown.                             If either Deputy
Smith    or     Officer   Dregne      had     been    shown       to    know     of   Hogan's
criminal record, which included three felony convictions and a
drug conviction as well as his probationary status, the case for
reasonable       suspicion     would        have     been     greatly         strengthened.
After all, Hogan's statement to Deputy Smith that "I don't do
drugs"        could   have    been     challenged,          and        Hogan's    immediate
explanation that Deputy Smith's observations could be attributed
to Hogan's use of prescription Adderall could have been viewed
even    more     skeptically       because    of     background         information       from
reliable sources.
        ¶53    Reasonable suspicion here is a close question.                              But

the State's failure to tie up loose ends in circuit court should
not be rewarded just because the case is close.                           As a result, we
will     not    disturb      the    circuit        court's    conclusion          that    the
extension of the stop for field sobriety tests was not lawful.
                               B. Consent to Search
        ¶54    Our determination that the extension of the traffic
stop was not lawful, based on the record before us, does not
resolve this case.           The somewhat unusual feature of the case is
that the evidence Hogan seeks to suppress was not obtained as a
result of the field sobriety tests but rather as a result of the
consensual search of Hogan's vehicle.
        ¶55    "Warrantless        searches    are    per    se    unreasonable          under
the Fourth Amendment."              State v. Williams, 2002 WI 94, ¶18, 255
Wis. 2d 1 (2002).         However, one of the "specifically established
and well-delineated" exceptions to the warrant requirement is
                                             18
                                                                      No.         2013AP430-CR



consent; if an individual freely gives consent for police to
search    his    or    her   vehicle,    the        police    may    do     so    without    a
warrant.    Id.
      ¶56   Hogan does not dispute that he gave his consent for
Deputy Smith to search his truck.                       Instead, Hogan argues that
his illegal detention immediately prior to his consent tainted
the   consent     and   Deputy      Smith     was       therefore    not     excused     from
obtaining a warrant to search Hogan's vehicle.
      ¶57   Consent analysis proceeds under a distinct framework
if consent was given following some illegal action by police.
Consent, even when voluntary, is not valid when obtained through
exploitation of an illegal action by police.                        State v. Phillips,
218      Wis. 2d 180,         204       (1998).               Stated          differently,
"[w]hen . . . consent          to    search        is     obtained        after    a   Fourth
Amendment violation, evidence seized as a result of that search
must be suppressed as 'fruit of the poisonous tree' unless the
State can show a sufficient break in the causal chain between
the illegality and the seizure of evidence."                        Id.
      ¶58   Attenuation         analysis           examines     three         factors       to
determine       whether      consent     is        sufficiently       attenuated         from
illegal action to be removed from the taint of illegality: "(1)
the temporal proximity of the official misconduct and seizure of
evidence; (2) the presence of intervening circumstances; and (3)
the   purpose         and    flagrancy        of     the     official         misconduct."
Phillips, 218 Wis. 2d at 206 (citing Brown v. Illinois, 422 U.S.
590, 603-04 (1975)).          The application of these factors will vary
on a case-by-case basis.             Our focus here is determining whether
                                            19
                                                                              No.      2013AP430-CR



these factors sufficiently safeguard constitutional protections
when the illegal action is the unlawful extension of a traffic
stop.
        ¶59    Hogan suggests that the third factor is inappropriate
in    this     analysis    because        the    "subjective          intent        of . . . law
enforcement officers is irrelevant to whether . . . officers are
unfairly       benefitting         from     the        violation         of . . . suspects'
rights."          Hogan     further        contends         that        the     focus     in    the
attenuation       analysis       should         be    on    why    the        individual       gave
consent.        He offers a hybrid test that combines the first two
factors from Phillips with a constructive seizure analysis like
that in Williams.

        ¶60    Considering the closeness of this case with regard to
reasonable suspicion, it is no surprise that Hogan downplays the
importance of the third factor, i.e., the purpose and flagrancy
of the official misconduct.                     While flagrant violations of the
law     by     police     should     weigh           against      the     validity        of    any
subsequent consent, see United States v. Edmons, 432 F.2d 577
(2d     Cir.    1970),     the     mere     failure         to     establish           reasonable
suspicion because the State did not submit all the evidence that
it had available is a different matter.
        ¶61    Hogan's desired focus on why a person gives consent
implicates questions of voluntariness.                            Involuntary consent is
invalid,       regardless     of     any        prior      illegality          or   attenuation
therefrom.         See    State     v.     Vorburger,          2002      WI     105,    ¶89,    255
Wis. 2d 537, 648 N.W.2d 829 (citing Schneckloth v. Bustamonte,
412 U.S. 218 (1973)).             Attenuation analysis is not voluntariness
                                                20
                                                                               No.         2013AP430-CR



analysis, and it is not meant to cure the involuntary waiver of
rights.       Rather, attenuation analysis examines whether voluntary
consent       is     tainted          by    prior          illegality.              Phillips,        218
Wis. 2d at 204-05.
        ¶62    Viewed in this light, we conclude that the attenuation
test    laid       out    in    Phillips       is       the    proper       test     to    apply     for
analyzing       voluntary            consent       to      search      a    vehicle        when    that
consent comes after the illegal extension of a traffic stop.
The    three       Phillips         factors    adequately           protect        the     rights     of
motorists in such situations.                              In many ways, the concept of
constructive seizure——which Hogan argues should be included in
the    analysis——is            already      built       into     the       Phillips       attenuation

test.
        ¶63    We    have           held    that       a    traffic         stop     ends     when     a
reasonable         person,          under   the        totality     of      the      circumstances,
would feel free to leave.                    Williams, 255 Wis. 2d 1, ¶35.                        Given
the wide range of possible "circumstances" in a traffic stop, it
is    not     possible         to    expound       a    bright-line          rule     of    when     the
reasonable driver would feel free to leave.                                  However, it is not
uncommon for officers to tell drivers they are "free to leave,"
may be "on their way," or to "have a nice day" at the conclusion
of a traffic stop.
        ¶64    The end of a traffic stop is important to two of the
factors in the attenuation analysis.                             First, the circumstances
giving rise to the end of a traffic stop will often (though
perhaps       not        always)       include          the     passage       of      time,       which
implicates         the     first       attenuation            factor.        Second,        and    more
                                                   21
                                                                           No.      2013AP430-CR



important,        the    end     of     a    traffic         stop     is     a     significant
intervening event for purposes of attenuation analysis.
     ¶65     Thus,      Hogan's       proposed          hybrid      attenuation          test    is
unnecessary because it would focus on improper factors while
placing redundant value on other factors.                           We see no reason to
replace the Phillips attenuation analysis in this context.
     ¶66     It is important to note that attenuation analysis may
not be necessary in all cases.                    "[A]ttenuation analysis is only
appropriate where, as a threshold matter, courts determine that
'the challenged evidence is in some sense the product of illegal
governmental activity.'"               New York v. Harris, 495 U.S. 14, 19
(1990) (citation omitted).                  If the unlawful police conduct was

not a "but-for" cause of the search, attenuation analysis is
unnecessary because the consent is not tainted by the unlawful
conduct in such a case.               See Hudson v. Michigan, 547 U.S. 586,
592 (2006).
     ¶67     After a traffic stop has ended, police may interact
with the driver as they would with any citizen on the street.
See Williams, 255 Wis. 2d 1, ¶35.                       That is, if a person is not
seized,    police       may    request        consent        to     search        even    absent
reasonable suspicion.            See Florida v. Bostick, 501 U.S. 429, 431
(1991).      In    a    sense,    the       end    of    a   traffic       stop    places       the
officer and driver back on equal footing, with the driver free
to leave if he wishes (because if the driver were not free to
leave, the traffic stop would not in fact have ended).
     ¶68     Given the myriad possible scenarios in which police
and the public may interact on the side of the road, we cannot
                                              22
                                                            No.     2013AP430-CR



postulate that the end of a traffic stop will always render
attenuation analysis unnecessary.               However, the end of the stop
will be a significant factor in determining the necessity of
attenuation analysis, at the very least.
       ¶69        In this case, we conclude that the end of the traffic
stop       does    render   attenuation   analysis    unnecessary   because   it
cannot be said that the extension of the stop was a but-for
cause of Hogan's consent.            Deputy Smith told Hogan that he was
free to leave, encouraged him to wear his seat belt, and advised
him to get his windshield fixed.                He then returned to his squad
car.        Deputy Smith waited approximately 16 seconds before re-
engaging Hogan.             When we compare these facts to the facts in

Williams,8 we have little trouble concluding that Hogan was not
constructively seized at the time Deputy Smith requested his
consent to search the vehicle.                 A reasonable person, under the
totality of the circumstances, would have felt free to leave——to
drive across the street to his home.
       8
       In Williams, a police officer stopped the defendant's
vehicle for a traffic violation, for which the officer issued a
warning. The defendant signed the warning, the two shook hands,
and the officer told the defendant in a conversational tone he
could "get on [his] way."    State v. Williams, 2002 WI 94, ¶¶9-
12, 255 Wis. 2d 1, 646 N.W.2d 834.       After taking two steps
toward his squad car, the officer asked for and was granted
consent to search the vehicle, where the officer found heroin
and a weapon. Id., ¶12-13. This court determined the officer's
words   and  actions,   considered   as  a   whole,  communicated
permission to leave and, therefore, the defendant was no longer
seized after the officer stated the defendant could "get on his
way."   Id., ¶29.   Because a reasonable person would have felt
able to leave the scene, the officer's subsequent questioning
did not constitute a seizure for purposes of the Fourth
Amendment and the defendant's consent was valid. Id., ¶28.

                                          23
                                                                         No.         2013AP430-CR



        ¶70    It is true that the emergency lights on Deputy Smith's
squad    car     remained       on   for   the      entire       duration      of    the    stop,
including      the     time     in    which    Deputy        Smith      re-engaged         Hogan.
However, that alone is not enough for us to conclude that the
stop had not ended.                  Police often may leave their emergency
lights on for safety reasons when they and the motorist are
pulling       back    onto     the    roadway       after     a    traffic       stop.        The
continuing illumination of the emergency lights was not enough
to create an ongoing——or new——seizure of Hogan.
        ¶71    We therefore conclude that even though the extension
of the traffic stop has been deemed illegal, the extension of
the stop was not a but-for cause of the consent.                                    The traffic

stop had concluded.              Hogan had returned to his truck and was
free to leave.          He gave consent to search after Deputy Smith re-
approached him and asked for consent.
        ¶72    Our     conclusion       that     Hogan       was     not       constructively
seized when Deputy Smith requested consent to search Hogan's
truck     also       resolves    Hogan's       argument          that   his     consent       was
invalid       because     it     occurred        during      a     constructive         seizure
initiated      without       reasonable       suspicion.           As    discussed         above,
without a constructive seizure, police do not need reasonable
suspicion to request consent to search.                           See Bostick, 501 U.S.
at 431.
        ¶73    Because Hogan's rights were not violated, it was not
error for the circuit court to deny his motions to suppress.
                                      IV. CONCLUSION


                                               24
                                                                           No.         2013AP430-CR



        ¶74    Although       the    question          of    whether        the      deputy      had
reasonable suspicion to extend the traffic stop to administer
field    sobriety         tests     is   a     close       one,    we    conclude       that     the
extension       was       unlawful       based        on     the    evidence           presented.
However,       the    defendant's            subsequent       consent        to      search      his
vehicle came after the traffic stop had ended and the defendant
was told he was free to leave.                          Because the police did not
exploit the unlawful extension of the stop in order to gain
Hogan's consent to search his vehicle, attenuation analysis is
unnecessary          in     this     case.            Furthermore,          Hogan        was     not
constructively seized when he gave consent to search his truck.
We therefore conclude that the defendant's consent was valid and

that    it     was    not    error       for    the     circuit         court     to    deny     the
defendant's motion to suppress the evidence recovered from his
truck.
        ¶75    Accordingly, we affirm the decision of the court of
appeals.


        By    the    Court.—The      decision          of    the    court       of     appeals    is
affirmed.




                                                25
                                                                               No.    2013AP430-CR.akz


       ¶76        ANNETTE KINGSLAND ZIEGLER, J.                         (concurring).            I join
the majority opinion.                    I write separately to note that, had the
circuit       court          determined        that       the    facts    were       as    the    State
asserts, I would engage in the analysis that I put forth in my
concurrence in State v. Blatterman.                               See State v. Blatterman,
2015     WI       46,       362     Wis. 2d 138,           864    N.W.2d 26          (Ziegler,        J.,
concurring)                (arguing      that,        because       a     prohibited            alcohol
concentration violation under Wis. Stat. § 346.63(1)(b) does not
require proof of impairment, standard field sobriety tests are

of limited value for determining whether a driver violated this
statute).
       ¶77        In       the    present      case,      Deputy    Andrew       Smith      suspected
Patrick Hogan of operating a motor vehicle with a detectable
amount       of        a    restricted         controlled        substance       in       his    blood,
contrary to Wis. Stat. § 346.63(1)(am).                                 This offense does not
require proof of impairment.                          State v. Smet, 2005 WI App 263,

¶23,   288        Wis. 2d 525,           709    N.W.2d 474.             This    offense         has   two

elements: (1) the defendant drove or operated a motor vehicle on
a highway; and (2) the defendant had a detectable amount of a
restricted controlled substance in his or her blood at the time
the defendant drove or operated a motor vehicle.                                     See Wis. Stat.
§ 346.63(1)(am);                  Wis.    JI——Criminal            2664B.             Although         poor
performance on standard field sobriety tests would support a
determination that there is probable cause to arrest someone who
is suspected of violating § 346.63(1)(am), operators may violate
this statute even though they are able to pass standard field
sobriety tests.                  Accordingly, whether a driver who violates this

                                                      1
                                                             No.   2013AP430-CR.akz


statute    is   brought   to   justice       might   often   depend   on   whether
there is probable cause to arrest the driver and take him or her
to a hospital for further testing, regardless of how he or she
performs on standard field sobriety tests.               In the present case,
the circuit court's findings of fact do not allow me to engage
in this type of analysis.
     ¶78    For the foregoing reasons, I respectfully concur.




                                         2
                                                                      No.    2013AP430-CR.awb




      ¶79    ANN WALSH BRADLEY, J.                  (dissenting).            I agree with
the majority that "[c]onsent analysis proceeds under a distinct
framework if consent was given following some illegal action by
police.        Consent,     even       when     voluntary,       is     not    valid     when
obtained through exploitation of an illegal action by police."
Majority op., ¶57.
      ¶80    I also agree that "[w]hen . . . consent to search is
obtained after a Fourth Amendment violation, evidence seized as

a result of that search must be suppressed as 'fruit of the
poisonous tree' unless the State can show a sufficient break in
the   causal     chain    between       the     illegality      and     the     seizure      of
evidence."         Id. (quoting State v. Phillips, 218 Wis. 2d 180,

204, 577 N.W.2d 794 (1998)) (alteration in majority).
      ¶81    I part ways with the majority, however, when it comes
to the necessity of conducting an attenuation analysis.                                     The
majority concludes that it is unnecessary "[b]ecause the police

did   not   exploit      the    unlawful        extension . . . to            gain    Hogan's
consent."        Majority       op.,    ¶9.        Yet,   the    very       purpose    of    an
attenuation        analysis      is     to     determine       whether       the     evidence
objected    to     was   obtained       by     exploitation      of     a     prior    police
illegality.
      ¶82    Contrary      to     the        majority's    assertions,          this    case
presents     the    quintessential            example     of    when     an    attenuation
analysis is needed.            It is undisputed that the extension of the
traffic stop was unconstitutional.                   The deputy reengaged Hogan a
mere 16 seconds later, seeking consent to search.

                                               1
                                                                        No.   2013AP430-CR.awb


        ¶83    Where consent is obtained so closely on the heels of
acknowledged         police       misconduct,       attenuation         analysis      is     the
means by which we determine "whether the evidence objected to
was obtained by exploitation of a prior police illegality or
instead by means sufficiently attenuated so as to be purged of
the taint."          State v. Anderson, 165 Wis. 2d 441, 447-48, 477
N.W.2d 277 (1991).
        ¶84    In this case an attenuation analysis reveals that the
taint     from       the    deputy's        unconstitutional            actions      was     not

removed.       Therefore the evidence obtained from that search must
be suppressed.          Accordingly, I respectfully dissent.
                                              I
        ¶85    The    majority       spends     a    substantial         portion      of     its
analysis attempting to re-litigate the facts of this case to
determine       whether       the    extension        of    the     traffic         stop     was
unconstitutional.             Majority        op.,    ¶¶38-52.            Ultimately,         it
acquiesces, as it must, to the conclusion reached by the circuit

court and the court of appeals——the extension of the stop was
illegal.       Id., ¶53.
        ¶86    Acknowledging that designating the extension unlawful
does    not    resolve      the     case,    the    majority      turns       its    focus    to
whether       Hogan's      consent    for     the    search       was     tainted     by     the
extension.       Id., ¶56.           It observes that consent "is not valid
when    obtained       through      exploitation       of    an    illegal          action    by
police."         Id.,      ¶57.      It     then    explains      that        "[a]ttenuation
analysis examines three factors to determine whether consent is
sufficiently attenuated from illegal action to be removed from

                                              2
                                                                               No.   2013AP430-CR.awb


the taint of illegality."                    Id., ¶58.          This statement is followed
by a lengthy discussion of those three factors.                                  Id., ¶¶58-65.
      ¶87    Abruptly shifting paths, the majority fails to apply
the three factors.               Instead, it considers whether a person in
Hogan's     position           would     have     felt          free     to     leave      after     the
unlawful     extension           of     the     traffic          stop.          Id.,       ¶63.       It
determines     that        a    reasonable       person          would        have   felt    free     to
leave due to the deputy's statement: "you're free to go."                                           See
id., ¶69.      Based on this rationale, the majority sets aside the

preceding illegality in the traffic stop and determines that an
attenuation analysis is unnecessary.                             It states: "[b]ecause the
police did not exploit the unlawful extension of the stop in
order to gain Hogan's consent to search his vehicle, attenuation
analysis    is    unnecessary            in     this       case."         Id.,       ¶9.      Without
conducting       an    attenuation            analysis,           the     majority         ultimately
concludes that Hogan's consent to the search was valid.                                             Id.,
¶¶69, 71.

                                                 II
      ¶88    In asserting a reasonable person would have felt free
to leave after the unlawful extension of the traffic stop, the
majority constructs a fiction.
      ¶89    Hogan         had    been        pulled       over        for     not     wearing      his
seatbelt.         After          the     deputy        checked          Hogan's        license       and
registration,         he       asked     Hogan       to        step     out     of   his     vehicle.
Despite Hogan's clear agitation and expressed desire to go home,
the   deputy      prolonged            the    stop        to     such     an     extent      that     it
constituted an unconstitutional extension of the stop when he

                                                  3
                                                                      No.    2013AP430-CR.awb


asked Hogan to perform multiple sobriety tests.                         After the tests
were completed, the Deputy told Hogan he was free to leave.
       ¶90    However, sixteen seconds after Hogan got back into his
vehicle, with the lights on the patrol car still flashing, the
deputy walked back to the defendant and reengaged.                            After asking
for and receiving Hogan's consent to search, the deputy found
methamphetamine,           drug   paraphernalia,         and    two     loaded     guns    in
Hogan's vehicle.
       ¶91    Like     United     States   Supreme       Court     Justice       Souter,    I

have   a     hard    time   imagining      that    an    average      individual       would
believe that he has nothing to lose if he refuses to cooperate
with the police or that he had any free choice to ignore the
police altogether.           United States v. Drayton, 536 U.S. 194, 212

(2002) (Souter, J., dissenting) ("It is very hard to imagine
that either [defendant] would have believed that he stood to
lose nothing if he refused to cooperate with the police, or that
he   had     any    free    choice   to    ignore   the        police       altogether.    No

reasonable          passenger     could     have        believed        that,     only     an
uncomprehending one.").
       ¶92    The reasonable person "free to leave" standard bears
little relationship to what individuals actually believe:

       Courts and scholars have repeatedly noted that the
       free-to-leave test is a highly unrealistic judicial
       construct that stretches credulity to its limits in
       assuming that any reasonable person (young or old;
       guilty or innocent) would literally feel free to leave
       and ignore a police officer's questions without
       consequence.
Jonathan S. Carter, You're Only as "Free to Leave" as You Feel:
Police       Encounters       with    Juveniles          and     the         Trouble     with
                                            4
                                                                         No.    2013AP430-CR.awb


Differential Standards for Investigatory Stops In Re I.R.T., 88
N.C. L. Rev. 1389, 1410-11 (2010); see also Cty. of Grant v.
Vogt, 2014 WI 76, ¶31 n.14, 356 Wis. 2d 343, 850 N.W.2d 253 ("To
some extent, the 'reasonable person' here is a legal fiction.
That defendants often consent to searches of areas that reveal
incriminating           evidence     demonstrates          that       people    often        do   not
feel     free      to    decline     an        officer's       request,        even    absent      a
manifest show of authority.").
        ¶93     "[E]mpirical studies over the last several decades on

the     social          psychology        of     compliance,           conformity,           social
influence,         and    politeness           have     all    converged        on     a     single
conclusion: the extent to which people feel free to refuse to
comply        is    extremely        limited          under       situationally             induced
pressures."         Janice Nadler, No Need to Shout: Bus Sweeps and the

Psychology         of    Coercion,    2002       Sup.     Ct.     Rev.    153,       155.          As
Professor LaFave has observed "only the most thick-skinned of
suspects" would feel free to leave in some of the circumstances

that the Court has found such a freedom.                                 Wayne R. LaFave,
Pinguitudinous            Police,     Pachydermatous              Prey:        Whence        Fourth
Amendment "Seizures?", 1991 U. Ill. L. Rev. 729, 739-40.
        ¶94     In the present case, the very nature of the stop was
coercive.          The deputy necessarily displayed his power and the
accoutrements of his authority in order to get Hogan to pull
over his vehicle.            Once there, the deputy used his authority to
require Hogan's compliance with unconstitutional sobriety tests,
while    another         officer     looked       on.         There    was     no     real    break
between this series of events and the deputy's request to search

                                                  5
                                                                        No.    2013AP430-CR.awb


Hogan's vehicle.          Although the deputy told Hogan he was free to
leave, within a mere 16 seconds, he reengaged seeking consent to
search Hogan's vehicle.
                                             III
      ¶95    The       majority's      suggestion            that    Hogan's     consent     to
search     his    vehicle    was       unrelated        to    the     illegality      is   also
unpersuasive.           Would a reasonable person in Hogan's situation,
who is on probation and aware that there was methamphetamine,
drug paraphernalia, and two loaded guns in his vehicle, blithely

consent     to    a    search     of   his    vehicle         absent     the    presence     of
coercion?         The answer is no.                The illegal extension of the
traffic stop unquestionably played a role in Hogan's consent.
      ¶96    An       application      of    attenuation            analysis    demonstrates
that the consent was not so attenuated from the illegality to
render it free of the taint from the unconstitutional extension
of the traffic stop.
      ¶97        Attenuation       analysis        is        well-established         in   our

jurisprudence.          Originating in the United States Supreme Court,
it   was    developed       to    help      courts      determine       whether       evidence
obtained following illegal police activity must be excluded as
the fruit of the poisonous tree.                   Wong Sun v. United States, 371
U.S. 471, 488 (1963).             The Court set forth the relevant inquiry
as   follows:         "whether,    granting        establishment          of    the    primary
illegality, the evidence to which instant objection is made has
been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary
taint."     Id. (quoting Maguire, Evidence of Guilt, 221 (1959)).

                                              6
                                                                      No.   2013AP430-CR.awb


       ¶98 In Brown v. Illinois, 422 U.S. 590, 603-04 (1975), the
Supreme Court declined to adopt a "but for" approach based on a
causal      connection,        and   announced       instead        three    factors     that
courts       should      consider        in     determining          if     evidence      was
sufficiently attenuated from the initial illegality to purge it
of    the    primary      taint:     temporal       proximity,        the     presence     of
intervening circumstances, and the flagrancy of the misconduct.
       ¶99    I address each factor in turn:
       ¶100 The        first    factor,        temporal      proximity,       requires      a

consideration of "both the amount of time between the illegal
[act] and the consensual search and the conditions that existed
during that time."           Phillips, 218 Wis. 2d at 206.

       ¶101 Sixteen seconds elapsed between the unconstitutional
extension of the stop and the time the deputy reengaged Hogan
seeking consent to search.               In assessing temporal proximity, we
have previously determined that the timespan of a few minutes
weighs against a consensual search.                    Id.; see also United States

v.    Macias,    658     F.3d    509,    524    (5th    Cir.    2011)       (thirty-second
interval between illegal extension of traffic stop and request
for    consent        weighed    against       attenuation);         United    States      v.
Gregory, 79 F.3d 973, 979-80 (10th Cir. 1996) (passage of less
than a minute between return of driver's license and request to
search not sufficient to purge the taint of an illegal stop);
McGaughey v. State, 37 P.3d 130, 141 (Okla. Crim. App. 2001)
(the fact that only a few minutes had passed between the illegal
detention       and    the     request    for      consent     to    search    "weigh[ed]
heavily against finding the taint cleansed").

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       ¶102 The United Stated Supreme Court has stated that in
some     circumstances           even    a    45-minute         timespan          would     be
insufficient to purge the taint.                  Rawlings v. Kentucky, 448 U.S.
98, 107 (1980).        Here, we are considering a mere 16 seconds that
passed     between    the    illegal         extension     of     the      stop    and     the
deputy's      reengagement,         seeking       consent       to      search      Hogan's
vehicle.           Such     an     abbreviated       timespan           weighs      against
attenuation.
       ¶103 In     considering      temporal       proximity,        courts       take    into

account    the     conditions      that      existed.           Admittedly,        in     some
circumstances, the existence of a congenial atmosphere may weigh
in favor of attenuation.                See Rawlings, 448 U.S. at 109.                      In

this   case   it     does   not.         Although    the    atmosphere         during      the
encounter was not overtly threatening, Hogan appeared agitated
throughout the stop, expressing his desire to leave.                                 It was
only the deputy's assertion of authority that kept him there.
The extension of the stop further enhanced the unequal power

dynamic between the deputy and Hogan.                       Far from removing the
taint of the illegality, the conditions of the illegal extension
of   the   stop    combined       with    the     short    time      span    between       the
extension and the consent suggest that the consent was tainted
by the illegality.
       ¶104 The second factor, intervening circumstances, refers
to events occurring between the illegality and the consensual
search.     Phillips, 218 Wis. 2d at 208.                  In this case, after the
extension of the stop, the deputy told Hogan that he was free to
leave and they both returned to their vehicles.                            Although these

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circumstances are significant as they could be viewed as an end
of the traffic stop, they are not sufficient to wipe clean the
slate such that the consent was untainted by the illegality.
        ¶105 This       court    described       what     intervening      circumstances
would support a determination of attenuation in Phillips, 218
Wis.    2d    180.        In    that    case,     after     illegally      entering     the
defendant's        home,       officers    had     a   short    discussion       with   the
defendant.         An    officer       informed    the    defendant       that   they   had
received information that the defendant had drug paraphernalia

and marijuana and explained that they did not have a warrant to
search       his   bedroom.         Id.     at     209.        "This   discussion       was

significant [] because it provided the defendant with sufficient
information with which he could decide whether to freely consent
to the search."           Id. at 208-09.           We stated that the discussion
"illustrates that the defendant was not improperly surprised,
frightened, or confused when he consented to the search of his
bedroom," and thus concluded that the officers did not exploit

their unlawful entry to obtain consent to search.                         Id. at 209.
        ¶106 The circumstances in Phillips are not present in this
case.     At no time did the deputy give any indication that Hogan
could     decline       the     deputy's    request       to    search     his   vehicle.
Indeed,       during     the     unlawful        extension     of   the     stop,   Hogan
expressed his belief that if he did not accede to the deputy's
requests, it would be used against him.                      Nothing in the deputy's
request for consent to search the vehicle would have dispelled
that belief.            The intervening circumstances do not remove the
taint from the unlawful extension of the stop.

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       ¶107        The    third        factor   to     consider     is    "the     purpose      and
flagrancy          of     the     official      misconduct."             Id.      This       factor
considers whether the conduct of the officers rose "to the level
of     conscious          or     flagrant       misconduct         requiring      prophylactic
exclusion."             Anderson, 165 Wis. 2d at 451 (quoting Rawlings, 448
U.S. at 110).
       ¶108 The deputy's conduct indicates a conscious attempt to
gain    consent          for     the    search.        His     exchange        with    the    other
officer       at        the     scene    suggests       that    the      entire       purpose    of

extending      the        stop     was    to    find    a    reason      to     search   Hogan's
vehicle.       Seeking consent to search is generally consistent with
exemplary work of law enforcement.                           Detaining a suspect longer
than reasonably justified by the stop in order to obtain consent
crosses the line.                 I acknowledge, however, that the deputy may
not have realized that the extension of the stop was unlawful.
Thus, it is hard to conclude that his conduct was flagrant.
Overall, this factor appears neutral in determining attenuation.

       ¶109 Having considered the three traditional factors of an
attenuation analysis, I conclude that on balance, they weigh
against    a       determination          of    attenuation.          Although         the    third
factor appears neutral, both the first and second factors weigh
against it.              The facts of this case and the relevant case law
reveal that there was no real break between the unconstitutional
extension      of        the     traffic     stop      and   the    deputy's       request      for
consent to search Hogan's vehicle.
                                                  IV



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        ¶110 Although           officers       may      conduct       brief       seizures     when
there    is     reasonable           suspicion       of    a    traffic       violation,       "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."                             Rodriguez v. United
States,        135    S.       Ct.    1609,    1614        (2015).          As    the     majority
acknowledges,             an   officer       may     not       extend      the    stop      without
additional reasonable suspicion.                           Majority op., ¶35.                Absent
such reasonable suspicion, the prolonged detention becomes an

unlawful seizure, intruding on the citizen's personal liberty.
        ¶111 Here,         consent      to    search       Hogan's      vehicle       was    sought
only seconds after the illegal extension of the traffic stop.
To conclude that consent obtained so closely on the heels of
acknowledged police misconduct was valid would lend an air of
legitimacy to questionable police tactics.                              This is the classic
example of when the exclusionary rule should apply.                                      See State

v. Scull, 2015 WI 22, ¶22, 361 Wis. 2d 288, 862 N.W.2d 562

(observing that the two rationales for the exclusionary rule are
"assurance       of       judicial      integrity         and    deterrence         of    unlawful
police conduct").              The evidence should have been suppressed.
        ¶112     Accordingly,          for     the      reasons       set     forth      above,    I
respectfully dissent.
        ¶113 I       am    authorized         to   state       that     Justice       SHIRLEY     S.
ABRAHAMSON joins this dissent.




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