                                                             2020 WI 63

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2017AP774-CR


COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Courtney C. Brown,
                                 Defendant-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 388 Wis. 2d 161,931 N.W.2d 890
                              PDC No:2019 WI App 34 - Published

OPINION FILED:         July 3, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 21, 2020

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Fond du Lac
   JUDGE:              Richard J. Nuss

JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ROGGENSACK, C.J., ZIEGLER, and KELLY, JJ.,
joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion
in which KELLY, J., joined. DALLET, J., filed a dissenting
opinion.
NOT PARTICIPATING:
ANN WALSH BRADLEY, J., withdrew from participation. BRIAN
HAGEDORN, J., did not participate.

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed by Elizabeth Nash, assistant state public defender. There
was an oral argument by Elizabeth Nash.


       For the plaintiff-respondent, there was a brief filed by
Michael C. Sanders, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Michael C. Sanders.
    An amicus curiae brief was filed on behalf of The American
Civil   Liberties   Union   Foundation   of   Wisconsin   by   Kendall   W.
Harrison, Linda S. Schmidt, Maxted M. Lenz, and Godfrey & Kahn,
S.C., Madison. With whom on the brief was Karyn Rotker and ACLU
of Wisconsin Foundation, Milwaukee.




                                   2
                                                                    2020 WI 63
                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.   2017AP774-CR
(L.C. No.   2013CF428)

STATE OF WISCONSIN                   :               IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,                              FILED
      v.                                                   JUL 3, 2020
Courtney C. Brown,                                           Sheila T. Reiff
                                                          Clerk of Supreme Court
            Defendant-Appellant-Petitioner.



REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ROGGENSACK, C.J., ZIEGLER, and KELLY, JJ.,
joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion
in which KELLY, J., joined.    DALLET, J., filed a dissenting
opinion.

ANN WALSH BRADLEY, J., withdrew from participation.

BRIAN HAGEDORN, J., did not participate.




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



      ¶1    REBECCA GRASSL BRADLEY, J.      Courtney Brown failed to

fully stop his car at a stop sign, prompting a police officer to

initiate     a   traffic   stop.    Brown     contends        the     officer

impermissibly extended the stop after writing a ticket for the
traffic violation by asking Brown to exit the car, inquiring
                                                                         No.     2017AP774-CR



about anything concerning in Brown's possession, and requesting

consent to search him.             Brown seeks suppression of the cocaine

the officer found in Brown's possession when he searched him,

claiming that in the absence of reasonable suspicion, the Fourth

Amendment prohibited the officer's actions after he wrote the

traffic ticket, which Brown argues should have ended the mission

of    the    stop.         We    conclude         the    Constitution          permits   law

enforcement to ask a driver to exit the vehicle, inquire about

the   presence       of    weapons,     and   request         consent     to    search   the

driver, all of which are negligibly burdensome actions relating

to officer safety, a well-established part of a traffic stop's

mission.1     We affirm the court of appeals.

                                   I.    BACKGROUND

      ¶2      At about 2:44 a.m. on August 23, 2013, Fond du Lac

Police      Officer   Christopher        Deering,        while      on   regular    patrol,

noticed a car coming from a dead end street containing only

closed commercial properties.                 A record check revealed the car

belonged to a car rental company.                   After observing the car fail
to make a complete stop at a stop sign, Deering initiated a

traffic     stop.         He   approached     the       car   and    observed     that   the

driver, identified as Brown, was not wearing a seatbelt.




      1Because we conclude that the officer did not impermissibly
extend the traffic stop, we need not decide whether he had
reasonable suspicion to do so.       See Gross v. Hoffman, 227
Wis. 296, 300, 277 N.W. 663 (1938) ("As one sufficient ground
for support of the judgment has been declared, there is no need
to discuss the others urged.").

                                              2
                                                                  No.     2017AP774-CR



    ¶3      Officer        Deering     asked   Brown     questions       about     his

whereabouts and destination that evening.                 Brown stated he was

going "nowhere really."              Deering learned that Brown was from

Milwaukee, which Deering testified was a "source city for drugs"

because dealers can sell them at a higher price in the suburbs.

Brown told Deering he was visiting a friend in Fond du Lac.

Brown claimed to have been at this friend's house before Deering

pulled him over, although Brown was unable to provide the last

name of the friend or the street address of the house.                           Brown

also indicated that he came directly from Speedway, although

Deering had just witnessed Brown come from a dead end street of

closed    businesses.         During    Deering's      initial    encounter       with

Brown, two other officers arrived on the scene to provide safety

assistance,    although        neither     made   contact        with    Brown    and

remained outside of his car on the passenger side.

    ¶4      Upon returning to his squad car, Officer Deering wrote

Brown a ticket for failing to wear a seat belt.                        While writing

the ticket, Deering ran a records search, which revealed Brown
had multiple prior arrests for drug crimes and an armed robbery

arrest.     Based     on    Brown's     suspicious     story     and    these    prior

arrests, Deering asked the dispatcher if any canine units were

available to perform a dog sniff of Brown's vehicle for drugs.

No dogs were available.          Deering then re-approached Brown's car

with the completed traffic ticket in hand.

    ¶5      After making contact with Brown for a second time,

Officer Deering asked him to step out of the car.                       Deering led
Brown from the driver's side of Brown's car to the front of
                                          3
                                                                          No.       2017AP774-CR



Deering's squad car.                Deering testified he "had [Brown] walk

back        to    [the]    squad    car."        Brown       claimed     Deering       "placed

[Brown's] hands behind [his] back and walked [him] to the front

of [Deering's] car."               Both agreed that Deering did not handcuff

Brown while leading him back to Deering's squad car.                                   Deering

then asked Brown if there was anything on Brown's person that

Deering "needed to know about" or "be concerned about."                                Deering

testified         he   asked    this   question         to    see   if    Brown      "had   any

illegal          weapons   or    drugs"     although         he   did    not    subjectively

consider         the   traffic     stop     to   be     high-risk       and    no    "specific

factors"          caused    concern       that       Brown    had   weapons.           Deering

testified Brown "could have [had weapons]."                         Brown answered that

he had nothing, but Deering asked for consent to search Brown's

person in order to verify Brown's response and then searched

him.2       The search uncovered 13 bindles, or approximately 4 grams,

of crack cocaine plus cash over $500.                         During this exchange and

search, Deering remained in possession of the traffic ticket and

Brown's driver's license.                 At no point prior to the search did
Deering return these documents or instruct Brown that he was

free to leave.




       The parties dispute whether Brown gave consent.
        2                                                Officer
Deering testified that he asked Brown "mind if I search you to
double check" and Brown answered "no."     Brown testified that
Deering asked "could he search me," to which Brown responded
"no."   The circuit court did not resolve this factual dispute
and we conclude it is not necessary to address it.     See infra
n.8.

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                                                                        No.    2017AP774-CR



      ¶6      The State charged Brown with possession with intent to

deliver     cocaine        as   a    repeater,     in   violation       of    Wis.       Stat.

§ 961.41(1m)(cm)1r (2017-18).               Brown moved to suppress the drugs

and   money     found       during     Deering's       search,   arguing       they      were

fruits     of       an     unlawful      search     because       Deering's          actions

unlawfully extended the stop and he lacked reasonable suspicion.

The circuit court denied the suppression motion.3                         It found "the

scope of the stop and length of the stop were extended due to

the officer's suspicions of drug possession or drug activity[,]"

but the extension was supported by reasonable suspicion.                                 Brown

thereafter      pled       no   contest    to    one    count    of   possession          with

intent to deliver cocaine.                The circuit court sentenced him to

two   years     of       initial     confinement    and    two    years       of    extended

supervision.4        Brown appealed.5

      ¶7      The    court      of    appeals     concluded      that    the       officer's

requests for Brown to exit the vehicle and consent to search, as

well as the search itself, were part of the mission of the

traffic stop and not an unlawful extension under the Fourth

      3   The Honorable Dale L. English presided over this hearing.
      4The Honorable Richard J. Nuss presided over                                 the    plea
hearing and sentencing, and entered the conviction.
      5The court of appeals certified the following question to
this court:    "[A]fter a ticket has been written but before
delivery, and in the absence of reasonable suspicion, does
asking a lawfully stopped motorist to exit the car, whether he
or she possesses anything of concern, and to consent to a search
unlawfully extend a traffic stop?"        State v. Brown, No.
2017AP774-CR, unpublished slip op., *1 (Wis. Ct. App. Nov. 21,
2018).   We declined review.   State v. Brown, 2019 WI 21, 385
Wis. 2d 611, 926 N.W.2d 499.

                                            5
                                                                       No.     2017AP774-CR



Amendment.      See State v. Brown, 2019 WI App 34, ¶¶17, 25, 388

Wis. 2d 161, 931 N.W.2d 890.                 Brown filed a petition for review,

which we granted.

                             II.   STANDARD OF REVIEW

      ¶8    A     party      seeking         suppression       based     on    a     Fourth

Amendment violation presents a question of constitutional fact.

State v. Smith, 2018 WI 2, ¶9, 379 Wis. 2d 86, 905 N.W.2d 353

(citing State v. Floyd, 2017 WI 78, ¶11, 377 Wis. 2d 394, 898

N.W.2d 560).           "We   review      the       circuit     court's       findings    of

historical fact under the clearly erroneous standard.                               But the

circuit    court's        application          of    the     historical        facts     to

constitutional         principles       is     a    question      of   law     we    review

independently."        Id. (quoting Floyd, 377 Wis. 2d 394, ¶11).

                                   III.       ANALYSIS

                  A.   Fourth Amendment General Principles

      ¶9    The Fourth Amendment provides:

      The right of the people to be secure in their persons,
      houses, papers, and effects, against unreasonable
      searches and seizures, shall not be violated, and no
      Warrants shall issue, but upon probable cause,
      supported by Oath or affirmation, and particularly
      describing the place to be searched, and the persons
      or things to be seized.
U.S. Const. amend. IV.             The Fourth Amendment is "indispensable

to   the   full    enjoyment       of    the       rights    of   personal      security,

personal     liberty,        and    private          property."          3     J.     Story

Commentaries on the Constitution of the United States § 1895

(1833).      Although many treat the warrant requirement as the
heart of the Fourth Amendment's prohibition against searches and


                                              6
                                                                              No.     2017AP774-CR



seizures,         the    Supreme       Court       repeatedly           characterizes          the

reasonableness           of     searches     and     seizures           as     its     "ultimate

touchstone."         See Riley v. California, 573 U.S. 373, 381 (2014)

("[T]he      ultimate          touchstone      of         the     Fourth           Amendment    is

'reasonableness.'"              (quoted source omitted));                    Elkins v. United

States,      364    U.S.       206,   222    (1960)       ("[W]hat           the    Constitution

forbids      is    not    all    searches      and    seizures,              but    unreasonable

searches and seizures.").

       ¶10    Searches or seizures without a warrant are generally

"per se unreasonable under the Fourth Amendment."                                     Arizona v.

Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States,

389   U.S.    347,       357    (1967)).       Although          the    Supreme       Court    has

carved out certain exceptions to the warrant requirement, these

exceptions         remain         subject      to          the        Fourth         Amendment's

reasonableness requirement.                 Kentucky v. King, 563 U.S. 452, 459

(2011)    (citing        Brigham      City     v.    Stuart,           547    U.S.     398,    403

(2006)).          One    such    exception     exists           for    short       investigative

stops if law enforcement has "a particularized and objective
basis" to suspect a person of criminal activity.                                    Navarette v.

California, 572 U.S. 393, 396-97 (2014) (quoted source omitted);

see also Terry v. Ohio, 392 U.S. 1, 21 (1968) (investigatory

stop is reasonable when police have "specific and articulable

facts which, taken together with rational inferences from those

facts, reasonably warrant that intrusion").                              This exception is

well-known as a "Terry" stop and "reasonable suspicion" renders

it    constitutionally          reasonable         even    without       a     warrant.        See
Alabama      v.    White,       496   U.S.    325,        329-31       (1990);       Smith,    379
                                               7
                                                                         No.     2017AP774-CR



Wis. 2d 86, ¶13.             While a traffic stop constitutes a seizure

under    the        Fourth     Amendment,          it    requires       only     reasonable

suspicion of a legal violation.                    See Rodriguez v. United States,

575 U.S. 348, 354-55 (2015); Floyd, 377 Wis. 2d 394, ¶¶20-21.

The   reasonable          length     of    a   traffic        seizure    depends    on    the

"mission"      of    the     stop,      including       law   enforcement's       "ordinary

inquiries" and "related safety concerns."                          Rodriguez, 575 U.S.

at 354; State v. Wright, 2019 WI 45, ¶9, 386 Wis. 2d 495, 926

N.W.2d 157; Smith, 379 Wis. 2d 86, ¶12 (citing Rodriguez, 575

U.S. at 355).         A stop's length becomes unreasonable if extended

past the point "when tasks tied to the traffic infraction are——

or    reasonably          should     have      been——completed."                Floyd,     377

Wis. 2d 394, ¶21 (quoting Rodriguez, 575 U.S. at 354).

                                   B.     Floyd & Wright

      ¶11   In State v. Floyd and State v. Wright, we recently

addressed      constitutional           challenges       similar    to    the    one     Brown

presents.      These cases control the resolution of Brown's case.

                                   1.     State v. Floyd
      ¶12   In Floyd, this court considered "where we draw the

line separating traffic stops of acceptable duration from those

that have been impermissibly extended."                          377 Wis. 2d 394, ¶15.

In that case, law enforcement conducted a traffic stop of Lewis

Floyd, Jr., and upon initial contact, learned Floyd did not have

a driver's license or insurance information.                        Id., ¶4.        The on-

scene deputy took Floyd's identification card and returned to

his squad car to write a ticket and inquire about available
canines;    in      the    interim,       another       police    officer      arrived    for
                                               8
                                                                              No.    2017AP774-CR



safety assistance.            Id.      When the on-scene deputy returned to

Floyd's       car     and     while     still      in        possession             of    Floyd's

identification         card    and     completed       ticket,          the     deputy       asked

Floyd:       (1) to exit the car; (2) if he had "any weapons or

anything      that    could    harm    him";     and    (3)        if    the    deputy      could

search Floyd.          Id., ¶5.       The deputy found illegal drugs during

the search.         Id.     Floyd moved to suppress the evidence, arguing

on appeal that the search occurred after the traffic stop should

have    been    completed.            Id.,   ¶¶7-9,      14.            Floyd       argued     the

Constitution's prohibition against unreasonable seizures bars an

officer who has completed a traffic ticket from doing anything

beyond delivering the ticket and explaining it to the driver.

Id., ¶¶16, 25.            Because the search of Floyd's person occurred

after    this       point,    Floyd    argued     the        stop       was     impermissibly

extended.       Id.

       ¶13     The court explained "an officer is on the proper side

of the line so long as the incidents necessary to carry out the

purpose of the traffic stop have not been completed, and the
officer has not unnecessarily delayed the performance of those

incidents."          Id., ¶22 (citing Rodriguez, 575 U.S. at 353-55).

An   officer        crosses    the    line   when       he    continues             the   traffic

seizure      "after    he     has    completed    all        the    necessary            functions

attendant on the traffic stop."                   Floyd, 377 Wis. 2d 394, ¶22.

We then concluded the purpose of the stop included "tak[ing] the

time    reasonably        necessary     to   draft"      the       tickets          and   explain

them.        Id., ¶23.        "Until that is done, and so long as [law
enforcement]         does    not    unnecessarily        delay          the    process,"      the
                                             9
                                                                             No.    2017AP774-CR



stop's duration remains permissible.                         Id.      We recognized that

Supreme     Court    precedent,         as    well      as     our    own,        rendered      the

deputy's        request    to    have        Floyd      exit       the     vehicle        of   "no

constitutional moment[.]"              Id., ¶24 (citation omitted).

      ¶14       Turning to the search request, Floyd made clear that

the mission of a traffic stop includes actions taken pursuant to

officer      safety,      so    long    as     those         actions        are    "negligibly

burdensome."         Id.,      ¶¶26-27.        Because         both       questions——whether

Floyd had weapons on him and whether the deputy could search to

verify      their    absence——"related             to    officer          safety     and       were

negligibly burdensome," we determined "they were part of the

traffic stop's mission, and so did not cause an extension."

Id., ¶28 (footnote omitted).                  Floyd reaffirmed the "request to

perform     a    search    of    [one's       person]        was     part    of     the    stop's

mission."       Id., ¶43.

                                2.     State v. Wright

      ¶15       Wright addressed whether law enforcement violated the

Fourth      Amendment       when     police        officers,          without       reasonable
suspicion of criminal activity:                 (1) asked about the presence of

weapons in the car; (2) asked whether the driver was a concealed

carry weapon permit ("CCW") holder; and (3) conducted a CCW

check.      Wright, 386 Wis. 2d 495, ¶6.                      In that case, Milwaukee

police      officers      stopped      John     Patrick         Wright       for     a     broken

headlight.        Id., ¶15.        During the stop, an officer asked Wright

for   his    driver's     license,       whether        he     had    a    CCW     permit,      and

whether he had weapons in the car.                      Id., ¶16.           Wright disclosed
the existence of a firearm in the glove compartment, which the
                                              10
                                                                  No.     2017AP774-CR



officers retrieved.          Id., ¶17.        One of the officers ran a CCW

check and discovered Wright did not have a valid permit.                           Id.,

¶18.       The officers arrested Wright for unlawfully carrying a

concealed weapon.         Id.    Wright moved to suppress the evidence.

Id., ¶19.      The circuit court granted Wright's motion, concluding

that the questions about having a CCW permit and the presence of

weapons impermissibly extended the traffic stop.                   Id.     The court

of appeals agreed with the circuit court and affirmed.                             Id.,

¶20.

       ¶16    On review in this court, we repeated in Wright what we

stated in Floyd:         a traffic stop's permissible duration depends

on   the     stop's   "mission,"     which    includes    "(1)    addressing       the

traffic      violation    that      warranted    the    stop;     (2)     conducting

ordinary      inquiries    incident      to     the    stop;     and     (3)    taking

negligibly      burdensome      precautions     to    ensure    officer        safety."

Wright, 386 Wis. 2d 495, ¶¶23-24 (footnotes omitted).                          We held

that a stop is impermissible if it extends past the point when

the mission is, "or reasonably should have been, completed."
Id., ¶24.        We explicitly stated that questions related to an

officer's       safety       "are     part      of     the       traffic        stop's

mission . . . [and] those questions do not cause an extension of

the stop."       Id., ¶26 (citing Floyd, 377 Wis. 2d 394, ¶28).                     We

noted the Supreme Court "concluded that the Fourth Amendment

tolerate[s]" even those investigations unrelated to the stop's

mission, "so long as those inquiries do not measurably extend

the duration of the stop."             Wright, 386 Wis. 2d 495, ¶27; see
Illinois v. Caballes, 543 U.S. 405, 407 (2005) ("A seizure that
                                         11
                                                                 No.     2017AP774-CR



is justified solely by the interest in issuing a warning ticket

to the driver can become unlawful if it is prolonged beyond the

time reasonably required to complete that mission.").

     ¶17    This court concluded that the question regarding the

presence of weapons was "part of the stop's mission because the

question    [was]    a    negligibly        burdensome     precaution     taken     to

ensure officer safety."             Wright, 386 Wis. 2d 495, ¶29.               "Floyd

controls."    Id., ¶34.          We next determined that the CCW question

and permit check were "[i]nquiries unrelated to the original

justification       for    the    stop"      or     officer   safety,     but     were

nevertheless "permissible under the Fourth Amendment 'so long as

those inquiries [did] not measurably extend the duration of the

stop.'"    Id.,   ¶38     (footnote    omitted).          Applying    Caballes     and

Rodriguez, we concluded neither the CCW question nor the permit

check "measurably extended the duration of the traffic stop."

Id., ¶¶45, 50.

     ¶18    In Caballes, the Supreme Court held a dog sniff of a

vehicle performed by one officer while another was writing a
traffic ticket did not unjustifiably extend the duration of the

stop and was constitutionally permissible.                    See Caballes, 543

U.S. at 406, 408-09.             The stop in Caballes was not extended

because the "dog sniff occurred while the traffic stop's mission

was still being completed."             Wright, 386 Wis. 2d 495, ¶40.               In

contrast, Rodriguez held that a dog sniff performed after law

enforcement returned the driver's license and his traffic ticket

to   the   driver        violated     the        Fourth   Amendment     because    it
"exceed[ed] the time needed to handle the matter for which the
                                            12
                                                                               No.     2017AP774-CR



stop     was     made"      and    "prolonged             beyond      the     time     reasonably

required to complete th[e] mission" of the stop.                                Rodriguez, 575

U.S. at 350-52;           see also         Wright, 386 Wis. 2d 495, ¶41 ("The

Rodriguez Court          reached this conclusion because . . . the dog

sniff . . . prolonged              the     stop           beyond      the     time     reasonably

required       to    complete      the    mission          of       the   stop.").       The   key

distinction         between       Caballes          and     Rodriguez        centered     on   the

timing of the dog sniff.                 "[I]n Caballes, the dog sniff added no

time" to the stop because it "was conducted simultaneously with

mission-related          activities[,]"              whereas         "[i]n     Rodriguez,      all

mission-related activities had been completed[.]"                                    Wright, 386

Wis. 2d 495, ¶43.

                              C.    Application to Brown

       ¶19     Brown challenges the constitutionality of every action

by     Officer      Deering       after        he     re-approached           Brown's     vehicle

without simply handing the completed seatbelt ticket to Brown.

We address each action in turn.

               1.     Asking/Ushering Brown Out of His Vehicle
       ¶20     First, Officer Deering asked Brown to step out of the

vehicle.        This action is "of no constitutional moment."                                  See

Floyd,    377       Wis. 2d 394,         ¶24.         When      a    motorist    is     "lawfully

detained for a traffic violation . . . officers may order the

driver to get out of the vehicle without violating the Fourth

Amendment[.]"            Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6

(1977).        This    is    a     per    se    rule       allowing         officers    to   order

drivers out of the vehicle during a lawful traffic stop.                                       See
State     v.     Johnson,        2007     WI        32,    ¶23,      299     Wis. 2d 675,      729
                                                13
                                                                          No.     2017AP774-CR



N.W.2d 182.       In establishing this bright-line rule decades ago,

the     Supreme      Court      weighed        the     "legitimate          and     weighty"

consideration of officer safety as well as "[t]he hazard of

accidental injury from passing traffic to an officer standing on

the driver's side of the vehicle" against "the intrusion into

the driver's personal liberty . . . by the order to get out of

the car."         Mimms, 434 U.S. at 110-11.                       Concluding that the

latter "hardly rises to the level of a 'petty indignity'" the

Supreme      Court      concluded      that      "[w]hat       is    at     most       a    mere

inconvenience cannot prevail when balanced against legitimate

concerns for the officer's safety."                        Id. at 111 (quoted source

and footnote omitted).

       ¶21    Brown argues Rodriguez narrowed the per se rule of

Mimms to allow removal from a vehicle only if attendant to the

mission      of   the   stop.       Not    quite.           With    respect       to       Mimms,

Rodriguez said only that a dog sniff did not serve the same

"highway and officer safety . . . interests" as those justifying

ordering the driver to exit the vehicle, while emphasizing that
the officer safety interest "stems from the mission of the stop

itself."      Rodriguez, 575 U.S. at 356-57.                    As Brown conceded at

oral argument, issuing a traffic ticket is part of the traffic

stop.     At the time Deering directed Brown to exit the vehicle,

Deering still had the ticket and Brown's driver's license in his

possession,       leaving       part      of     the       traffic        stop's       mission

uncompleted.         See Floyd, 377 Wis. 2d 394, ¶23 ("Until [drafting

the tickets and explaining them to the driver] is done, and so
long    as   [law     enforcement]        does       not    unnecessarily         delay      the
                                            14
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process, the permissible duration of the traffic stop has not

elapsed."        (citing Rodriguez, 575 U.S. at 354-55)).                          Finally,

Brown argues the stop "reasonably should have been completed"

because Deering had completed writing the ticket, so all that

remained was handing the ticket to Brown and ending the seizure.

We   rejected         this     argument   in    Floyd     and    have     no   reason         to

reconsider it.           Id., ¶¶25, 28.         Because the mission of the stop

continued, officer safety remained a viable concern and the per

se rule of Mimms fully applies.

  2.     Walking Brown to the Front of Officer Deering's Squad Car

       ¶22   We        next      consider           Brown's      challenge         to        the

constitutionality of Officer Deering guiding Brown to the front

of his squad car.               While the parties dispute whether Brown's

hands     were        behind    his   back      during        this     movement,        it   is

undisputed that Brown was not handcuffed.                             Deering testified

that he "had [Brown] walk back to [his] squad car," while Brown

claims Deering "placed [his] hands behind [his] back and walked

[him] to the front of [Deering's squad] car."                          The circuit court
did not make any finding regarding this factual dispute, instead

noting it was a question of whether one believes Deering or

Brown.           As     the     circuit      court      concluded,        this      factual

determination is irrelevant.                   Under either scenario, Brown was

seized    within        the    meaning    of    the    Fourth        Amendment,    but       the

placement of his hands is immaterial to whether the stop was

impermissibly extended.

       ¶23   Officer Deering did not impermissibly extend the stop
by moving Brown to the front of his squad car.                            In determining
                                               15
                                                                    No.    2017AP774-CR



that law enforcement may request a driver to exit the vehicle

during    a    lawful     traffic       stop,    Mimms   recognized    the   inherent

danger    of    the    driver      and   officer     standing   a   few     feet   from

passing traffic:

    The hazard of accidental injury from passing traffic
    to an officer standing on the driver's side of the
    vehicle may also be appreciable in some situations.
    Rather than conversing while standing exposed to
    moving traffic, the officer prudently may prefer to
    ask the driver of the vehicle to step out of the car
    and off onto the shoulder of the road where the
    inquiry may be pursued with greater safety to both.
Mimms, 434 U.S. at 111 (emphasis added).                      In past cases with

similar       facts,      we    have     never    declared    any     constitutional

infirmity with ordering a driver to exit the vehicle during a

lawful traffic stop.               See Johnson, 299 Wis. 2d 675, ¶¶6, 48

(driver led to the back of his vehicle, then to the curb; court

held search of person impermissible on other grounds); State v.

Malone, 2004 WI 108, ¶¶7, 47, 274 Wis. 2d 540, 683 N.W.2d 1

(driver asked to step out of the vehicle and led behind it;

court held law enforcement conduct reasonable).                           There is no

distinction         for        Fourth     Amendment      purposes      between      law

enforcement directing a driver to stand next to his car, at the

curb, or behind his car, and leading a driver to the front of

the officer's squad car.

               3.     Asking About Anything on Brown's Person

    ¶24        While Brown stood in front of the squad car, Officer

Deering asked if Brown had anything on his person about which




                                            16
                                                                     No.    2017AP774-CR



Deering should be concerned.6                While the parties dispute the

exact wording of the question, they agree on the material point:

Deering did not specify "weapon" or anything similar.                           At the

suppression hearing, Dearing indicated he asked the question to

see if Brown "had any illegal weapons or drugs."                           Deering did

not subjectively believe the stop was high-risk or that a weapon

was present.

    ¶25 Deering's subjective beliefs do not play any role under

Fourth   Amendment     analyses.        Under    the     Fourth       Amendment,     we

review law enforcement actions with an objective lens.                              See

Whren v. United States, 517 U.S. 806, 812-13 (1996) ("Not only

have we never held, outside the context of inventory search or

administrative       inspection . . . ,         that     an     officer's       motive

invalidates objectively justifiable behavior under the Fourth

Amendment;     but    we   have    repeatedly      held        and     asserted     the

contrary.";     "[Our]     cases    foreclose      any        argument      that    the

constitutional reasonableness of traffic stops depends on the

actual   motivations       of     the   individual       officers          involved.";
"Subjective intentions play no role in ordinary, probable-cause

Fourth Amendment analysis.").



    6  The testimony differed as to the exact wording, with
Officer Deering testifying he asked if there "was anything on
[Brown] I needed to know about," while Brown testified the
question was "did [Brown] have anything on [him] that [he]
shouldn't have."    Brown then clarified the exact question was
"did [Brown] have anything that [Deering] should be concerned
about."   Regardless, the general gist of each variation of the
question is the same.

                                        17
                                                                       No.     2017AP774-CR



      ¶26      Our inquiry instead examines whether an officer has a

constitutionally             reasonable     safety       concern       regarding         the

presence of a weapon after hearing a story inconsistent with the

officer's observations, from a driver with prior arrests for

drug crimes and armed robbery, who was driving a rental car,7 and

who     was     unclear      about   his     whereabouts      after          leaving    his

residence in a city the officer knew to be a source for drugs.

We conclude that he does.

      ¶27      In Floyd, we said an officer asking whether Floyd "had

any weapons or anything that could harm him" was a negligibly

burdensome question posed pursuant to officer safety and within

the mission of the stop.              Floyd, 377 Wis. 2d 394, ¶28; see also

Wright, 386 Wis. 2d 495, ¶¶29, 34 (holding the same).                                  Brown

argues        that    the     Constitution        requires   law       enforcement       to

specifically mention "weapons" as the officer did in Floyd.                              The

law generally rejects imposing "magic words" requirements.                               See

State v. Lepsch, 2017 WI 27, ¶36, 374 Wis. 2d 98, 892 N.W.2d 682

(rejecting in the context of a circuit court inquiring about
juror     bias);      Elections      Bd.    v.    Wis.   Mfrs.     &    Commerce,        227

Wis. 2d 650, 654, 669-70, 597 N.W.2d 721 (1999) (rejecting in

the context of what is required to be "express advocacy"); see

also Patchak v. Zinke, 138 S. Ct. 897, 905 (2018) (noting that

the   Supreme        Court    refrains     from    reading   statutes         to   "incant

magic words" (quoted source omitted)).


      7At the suppression hearing, Officer Deering testified that
in his experience, drug dealers "often use rental cars."

                                            18
                                                                            No.     2017AP774-CR



       ¶28   We have expressly declined to impose a "magic words"

requirement in the Fourth Amendment context as well.                                See State

v. Wantland, 2014 WI 58, ¶33, 355 Wis. 2d 135, 848 N.W.2d 810

(rejecting        "particular       'magic        words'"         in     assessing      whether

consent is withdrawn).             Officer Deering testified the reason for

this    question     was    to     inquire       about      any     possible       weapons    on

Brown's person.            During a traffic stop, knowledge of weapons

carried by occupants of a vehicle is integral to officer safety.

See    Wright,     386     Wis. 2d 495,          ¶¶25,      29-34       (asking     about    the

presence of weapons is a less burdensome intrusion than other

authorized        intrusions     such      as    requesting            persons    out   of   the

vehicle; "traffic stops are 'especially fraught with danger to

police officers'" (quoting Michigan v. Long, 463 U.S. 1032, 1047

(1983)).          Deering's      question        was     negligibly         burdensome        and

pursuant     to    the   stop's     mission          because      it     concerned      officer

safety.

       ¶29   The     Fourth      Amendment        allows     unrelated           investigative

inquiries not related to the mission of the stop, provided such
inquiries do not "measurably extend the duration of the stop."

Wright, 386 Wis. 2d 495, ¶38 (quoted source omitted).                                Deering's

question regarding Brown's possession of any concerning items

did not "measurably extend the duration of the stop" because it

was posed "concurrently with mission-related activities."                                     See

id., ¶¶45, 47, 49, 50 (holding a question about a CCW permit and

an     ensuing     check     did     not        violate      the        defendant's      Fourth

Amendment     rights       because      they         were   done        "concurrently        with
mission-related activities" and did not "measurably extend the
                                                19
                                                                No.     2017AP774-CR



duration   of    the    traffic     stop");    Floyd,   377   Wis. 2d 394,         ¶23

("Until [drafting the tickets and explaining them to the driver]

is done, and so long as [law enforcement] does not unnecessarily

delay the process, the permissible duration of the traffic stop

has not elapsed."        (citing Rodriguez, 575 U.S. at 354-55)).

    ¶30     Wright and Floyd control; the Constitution does not

require law enforcement to use the word "weapon" when asking a

driver about his possessions during a traffic stop.                      Deering's

inquiry    was   part    of   the    stop's     mission    because      it   was    a

"negligibly      burdensome         precaution[] . . . to        complete          his

mission safely."        Rodriguez, 575 U.S. at 357.

           4.    Asking for Consent to Search Brown's Person

    ¶31     Finally, Brown challenges Officer Deering's request to

search Brown's person.           As we discussed in Floyd, while a frisk

can be a severe intrusion, "a request to conduct such a search

cannot."    377 Wis. 2d 394, ¶28.             Deering's request for consent

to search Brown in order to verify that Brown had no weapons was

constitutionally permissible as a negligibly burdensome inquiry
related to officer safety.

                                       * * *

    ¶32     We    hold    that     Officer     Deering's      actions     did   not

impermissibly extend the stop and were reasonable within the

meaning of the Fourth Amendment.               Officer Deering's actions and

inquiries each related to officer safety, which is part of any

stop's mission.        At the time Deering undertook them, the mission

of the stop had not been completed, nor should it reasonably
have been completed because Deering had not issued the seatbelt
                                        20
                                                                        No.     2017AP774-CR



ticket, explained it, or released Brown from the seizure.                                See

Arizona v. Johnson, 555 U.S. 323, 333 (2009) ("The temporary

seizure of [a] driver . . . continues, and remains reasonable,

for the duration of the stop.                     Normally, the stop ends when the

police have no further need to control the scene, and inform the

driver . . . they            are     free    to    leave."       (citing      Brendlin    v.

California,        551        U.S.     249,        258      (2007)     (discussing       law

enforcement's control over the stop includes giving permission

or indication before one is free to leave and the stop ends)));

Floyd,       377   Wis. 2d 394,             ¶23        (stop's   permissible      duration

includes drafting and explaining tickets to a driver).

                                      V.     CONCLUSION

       ¶33    Our determination in this case is governed by Floyd

and    Wright.         We    tread    no    new        ground.    Consistent     with    our

precedent, and the Supreme Court cases on which those precedents

rely, we conclude that Officer Deering did not impermissibly

extend Brown's traffic stop beyond constitutional boundaries.

Asking Brown to step out of the vehicle, ushering him a few feet
away from the road, asking Brown whether he possessed anything

that could harm Deering, and requesting consent for a search,

were    all    negligibly          burdensome          actions   directly     related     to

officer       safety        and    therefore       part     of   the   stop's     mission.

Because the mission of the stop had yet to be completed, there




                                                  21
                                                            No.   2017AP774-CR



was no impermissible extension.          The stop and Deering's actions

in conducting it were reasonable under the Fourth Amendment.8

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

affirmed.

     ¶34    ANN WALSH BRADLEY, J. withdrew from participation.

     ¶35    BRIAN HAGEDORN, J. did not participate.




     8 Brown argues this case should be remanded because there is
an unresolved factual issue of consent to Officer Deering's
request to search. The circuit court did not decide the consent
issue, but assumed Brown consented for the suppression hearing
and noted a determination on consent was "an issue for a
different day[.]"    Brown later pled no contest pursuant to a
plea agreement with the State.    During the plea hearing, Brown
acknowledged that he was giving up certain constitutional
rights.   At no point did Brown or the circuit court raise the
consent issue. Nor did Brown raise the unresolved consent issue
in the sentencing hearing.

     On appeal, Brown did not make an argument regarding the
factual issue of consent to the search until his reply brief.
He indicated "suppression issues regarding whether there was
consent need to be argued in the trial court if they are to be
raised in the appellate court; however, he has not raised said
issue on appeal."    In a footnote, Brown also indicated "[t]he
factual matter whether Brown consented to the search is moot"
given his arguments on appeal.

     Under the guilty-plea-waiver rule, Brown abandoned the
issue of whether he consented to the search.      See State v.
Kelty, 2006 WI 101, ¶18 294 Wis. 2d 62, 716 N.W.2d 886 ("The
general rule is that a guilty, no contest, or Alford plea
'waives all nonjurisdictional defects, including constitutional
claims[.]'"  (quoted source and footnote omitted)).    We also
note that Brown abandoned his consent argument in the circuit
court. See State v. Woods, 144 Wis. 2d 710, 716, 424 N.W.2d 730
(1988) (explaining that an undecided motion to suppress was
abandoned where it was not raised or pursued before final
judgment).

                                    22
                                                               No.   2017AP774-CR.rgb




     ¶36    REBECCA    GRASSL        BRADLEY,    J.    (concurring).         In    his

concurrence below, Court of Appeals Judge Paul Reilly asserts

that under Wright and Floyd,1 "our Fourth Amendment protection

against warrantless searches and seizures when stopped on the

roadway has been eliminated[,]" suggesting that a police officer

must have reasonable suspicion that the driver "has committed or

is committing an offense" separate from the traffic violation

precipitating the stop in order to conduct a search unrelated to

the reason for the stop.             State v. Brown, 2019 WI App 34, ¶¶26-

27, 388 Wis. 2d 161, 931 N.W.2d 890 (Reilly, J., concurring).

Justice    Rebecca     Dallet    repeats        this   error   in    her    dissent,

asserting that "ordering Brown out of the vehicle initiated a

Terry2    stop   requiring      independent       reasonable     suspicion        that

criminal    activity    was     in    progress."        Dissent,     ¶55.      Judge

Reilly's and Justice Dallet's perceptions of Fourth Amendment

jurisprudence are unmoored from the Constitution.                      In Caballes

and Johnson,3 the United States Supreme Court "concluded that the
Fourth Amendment tolerated certain unrelated investigations that

did not lengthen the roadside detention."                  Rodriguez v. United

States, 575 U.S. 348, 354 (2015).                Reasonable suspicion must be


     1 See State v. Wright, 2019 WI 45, 386 Wis. 2d 495, 926
N.W.2d 157; State v. Floyd, 2017 WI 78, 377 Wis. 2d 394, 898
N.W.2d 560.   Wright was a unanimous decision of this court,
authored by Justice Shirley Abrahamson.
     2   Terry v. Ohio, 392 U.S. 1 (1968).
     3 See Illinois v. Caballes, 543 U.S. 405 (2005); Arizona v.
Johnson, 555 U.S. 323 (2009).

                                          1
                                                                   No.   2017AP774-CR.rgb


present only if the traffic stop "is prolonged beyond the time

reasonably         required     to   complete      the    mission"       of   issuing    a

ticket.       Id. at 354-55 (quoted source omitted).

       ¶37        After misstating the law, Judge Reilly accuses this

court of not only approving discriminatory police practices, but

also "authorizing and condoning the profiling of persons."                              See

Brown,       388    Wis. 2d 161,      ¶32    (Reilly,      J.,     concurring).         He

suggests      that     "all     persons     stopped      for   a   traffic     violation

should be required to exit their vehicle and be searched so as

to   eliminate        the     profiling     that    is    made     necessary     by    the

reasoning of Wright and Floyd."                    Brown, 388 Wis. 2d 161, ¶32

(Reilly, J., concurring).                 After hyperbolically likening those

decisions to Dred Scott,4 Judge Reilly claims they "continue,

albeit implicitly, the bias that not all people are created

equal by authorizing police to pick and choose who they will

pull       from    cars   for   minor     traffic     violations."            Brown,    388

Wis. 2d 161, ¶33 (Reilly, J., concurring).                         Judge Reilly does

not offer any basis for his accusation that law enforcement
officers conduct their duties in a biased manner, much less that

this court requires them to do so.

       ¶38        Reasonable judges may disagree about the meaning or

application of the law.              However, intentionally inciting racial

tensions while demeaning the integrity of Wisconsin's highest

court erodes public confidence in the judiciary and damages the

institution of the court.             The Code of Judicial Conduct requires

judges to "respect and honor the judicial office as a public

       4   Dred Scott v. Sandford, 60 U.S. 393 (1857).

                                             2
                                                                           No.    2017AP774-CR.rgb


trust and strive to enhance and maintain confidence in our legal

system"      and    "uphold         the    integrity          and    independence         of   the

judiciary."         Code of Judicial Conduct, SCR ch. 60.                              Suggesting

that this court approves discriminatory police practices does

not "maintain confidence in our legal system[,]" nor does it

"respect and honor the judicial office as a public trust."                                      Id.

Rather,      such       inflammatory            rhetoric,       particularly           with    the

imprimatur         of    a     published          judicial          opinion,       impugns     the

integrity and independence of the judiciary.

       ¶39    Comparing recent decisions of this court to one of the

United       States      Supreme          Court's       most        abhorrent       cases      also

questions      the      integrity          of    this       court.         So    too   does    the

suggestion that this court knowingly allows profiling against

protected      groups        of     people.           The    Code     of    Judicial     Conduct

requires judges to "act at all times in a manner that promotes

public    confidence          in     the    integrity         and     impartiality        of   the

judiciary."         SCR 60.03(1).               Such "attacks unnecessarily tear at

the fabric of institutional legitimacy."                            Chief Justice Patience
Roggensack, Tough Talk and the Institutional Legitimacy of Our

Courts, Hallows Lecture (Mar. 7, 2017), in Marquette Lawyer,

Fall 2017, at 47.                  "It is a privilege to be a member of the

judiciary,         but        with     that        privilege          comes        considerable

responsibility. When we speak, . . . we need to choose language

that     expresses           our     concerns         about     court           opinions . . . .

However, we can do so by choosing language that maintains the

institutional legitimacy of our courts[.]"                           Id. at 51.



                                                  3
                                                                      No.    2017AP774-CR.rgb


      ¶40    Rather       than    focusing       on   the     Constitution,          Justice

Dallet     deplores       "the   real-world      consequences"          of     the    court's

decision.      Dissent, ¶74.            Citing nothing but social science

research,     Justice       Dallet    posits     "[t]he     influence          of    implicit

bias is particularly problematic in the policing context" and

"'translate[s] most readily into discriminatory behavior'" and

"racial profiling" by the police.                     Dissent, ¶77 (quoted source

omitted).      Although expressed in less provocative terms than

Judge     Reilly's    concurrence       in   the      court      of   appeals,       Justice

Dallet claims "the majority opinion turns a blind eye to the

disparities      caused          by   implicit          bias."              Dissent,    ¶78.

Considering the consequences of a decision for certain groups of

people conflicts with the judicial oath to "administer justice

without respect to persons"5 and inappropriately assumes a role

in developing policy more appropriate for the political branches

of government than an impartial judiciary tasked with declaring

what the law is rather than what it should be.                                 See Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 353 (2012).               Social science research has nothing

whatsoever to say about the meaning of the Fourth Amendment or

any other provision of the constitution and "cannot form the

basis upon which we decide matters of constitutional principle."

See   Missouri       v.    Jenkins,    515       U.S.    70,     114,       119-20     (1995)

(Thomas, J., concurring).

      ¶41    The odious outcomes of decisions grounded in social

science or majoritarian beliefs should cause jurists to recoil

      5   Wis. Stat. § 757.02.

                                             4
                                                                   No.    2017AP774-CR.rgb


from       tethering       their      opinions     to    anything        but   the   law.

"Historically, when courts contaminate constitutional analysis

with then-prevailing notions of" social scientists professing

what       is   "best"        for   society,   the      constitutionally-guaranteed

rights of the people have been trampled.                          State v. Roberson,

2019 WI 102, ¶¶84-86, 389 Wis. 2d 190, 935 N.W.2d 813 (Rebecca

Grassl          Bradley,        J.,      concurring).             "Departures        from

constitutional text have oppressed people under all manner of

pernicious pretexts:

       [T]he notion of "social harm" supporting the police
       power was completely untethered from constitutional
       text and ripe for misuse in the hands of a Justice
       such as Holmes, who believed that the Constitution
       could be reduced to ad hoc balancing.      Eugenics was
       built upon the notion of harm; indeed, it thrived on a
       sense of imminent doom: that society was degenerating
       because of what were called its "weaklings" and
       "discards."   The idea that society was being swamped
       by incompetents was a common trope for eugenicists:
       the unfit were a "menace." . . . Like the great
       popular eugenicists of the day, Holmes wrote in Buck[6]
       that eugenics would prevent society from being
       "swamped" by incompetents, that fewer criminals would
       be executed, and that fewer imbeciles would starve.
Victoria Nourse, Buck v. Bell: A Constitutional Tragedy from a

Lost World, 39 Pepp. L. Rev. 101, 114-15 (2011) (emphasis added;

footnotes omitted)."                Roberson, 389 Wis. 2d 190, ¶84 (Rebecca

Grassl Bradley, J., concurring).

       ¶42       In her dissent, Justice Dallet assigns an "important

role" to "social science research in guiding the United States

Supreme         Court    to    correct    course     when   the     law    has    allowed

government infringement of protected civil liberties."                           Dissent,

       6   Buck v. Bell, 274 U.S. 200 (1927).

                                               5
                                                              No.   2017AP774-CR.rgb


¶74 n.7.      Social science research should guide policymakers in

the legislature.       The judiciary's guide should be the law alone.

Brown v. Board of Educ., 347 U.S. 483 (1954) was rightly decided

because an original understanding of the Fourteenth Amendment's

equal protection clause forbids racial segregation, not because

psychological studies revealed its damaging effects on school

children.       See Robert H. Bork, The Tempting of America: The

Political     Seduction      of    the    Law,   74-83    (1990).         It    is    the

Constitution     itself,      not    the    application      of   social        science

research,     that   protects       the   people   from    violations          of   their

civil    rights.       "In    rebuking       his   colleagues       for    upholding

segregation, Justice John Marshall Harlan rightly relied solely

upon the Constitution:

    But in view of the constitution, in the eye of the
    law, there is in this country no superior, dominant,
    ruling class of citizens. There is no caste here. Our
    constitution is color-blind, and neither knows nor
    tolerates classes among citizens. In respect of civil
    rights, all citizens are equal before the law. The
    humblest is the peer of the most powerful.    The law
    regards man as man, and takes no account of his
    surroundings or of his color when his civil rights as
    guaranteed by the supreme law of the land are
    involved.
Plessy   v.    Ferguson,     163     U.S.   537,    559    (1896)    (Harlan,         J.,

dissenting)."        Roberson, 389 Wis. 2d 190, ¶85 (Rebecca Grassl

Bradley, J., concurring (emphasis added)).

    ¶43       More often than not, an opinion dependent upon social

science research for its conclusions is written to reach the

outcome desired by a majority of justices rather than the result
compelled by the Constitution, illustrating "how far beyond any

cognizable     constitutional        principle     the    Court   has     reached      to
                                          6
                                                                         No.   2017AP774-CR.rgb


ensure that its own sense of morality and . . . justice pre-

empts that of the people and their representatives."                               Graham v.

Florida, 560 U.S. 48, 124 (2010) (Thomas, J., dissenting).                                   For

example, in Atkins v. Virginia, 536 U.S. 304 (2002), the United

States Supreme Court held that executions of "mentally retarded"

criminals    were    "cruel       and    unusual          punishments"         prohibited     by

"evolving    standards       of    decency"          the       Court     grafted    onto     the

Eighth Amendment.          Id. at 321.             The Court's conclusion had "no

support in the text or history of the Eighth Amendment" and

constituted "an opinion of this Court rest[ing] so obviously

upon nothing but the personal views of its Members."                               Id. at 337

(Scalia, J., dissenting).                Because the meaning of the Eighth

Amendment    did     not   support       the       Court's       preferred      outcome,      it

resorted to relying on the "views of assorted professional and

religious     organizations,            members           of     the     so-called       'world

community,' and respondents to opinion polls."                                  Id. at 347,

(Scalia, J., dissenting).

      ¶44   Similarly, in another case cited in Justice Dallet's
dissent,     "[t]o    support       its       opinion          that    States      should     be

prohibited    from     imposing         the        death       penalty     on    anyone      who

committed murder before age 18, the Court looks to scientific

and   sociological         studies,       picking          and    choosing       those      that

support its position.             It never explains why those particular

studies are methodologically sound; none was ever entered into

evidence or tested in an adversarial proceeding."                                   Roper v.

Simmons, 543 U.S. 551, 616-17 (2005) (Scalia, J., dissenting).
Justice     Dallet     commits          the        same        errors,     ostensibly        "to

                                               7
                                                                          No.       2017AP774-CR.rgb


illustrate       empirically      how     far       our    jurisprudence             has    strayed

from the original meaning of the Fourth Amendment."                                        Dissent,

¶74.      Conflating        correlation         and        causation,          Justice          Dallet

proceeds to selectively cite a litany of research but neglects

to     explain     how     contemporary             social     science          studies         could

possibly inform the original meaning of the Fourth Amendment.

       ¶45    Justice Dallet says I "disregard[] the important role

of social science research in guiding" judicial decision-making.

Dissent, ¶74 n.7.           I don't disregard it; I emphatically reject

it.      Embracing       social     science         research        as    a     methodology        of

constitutional interpretation is a license for judges to inject

their subjective views into opinions rather than applying the

law as it is written.             A judicial philosophy of interpreting the

Constitution to mean whatever a majority of justices wants it to

mean    renders     our     supreme       law       pointless        and       transforms          the

judiciary        from    adjudicators         into         policymakers.                  "By    what

conceivable        warrant     can      nine         lawyers        presume          to    be     the

authoritative       conscience          of    the         Nation?             The     reason      for
insistence on legislative primacy is obvious and fundamental:

'[I]n     a   democratic       society          legislatures,             not        courts,      are

constituted to respond to the will and consequently the moral

values of the people.'"               Roper, 543 U.S. at 616 (Scalia, J.,

dissenting)        (footnote        omitted;          formatting           altered;             quoted

sources omitted).

       ¶46    We   should    be     particularly             wary    of       courts       invoking

social    science        research    as      the      basis    for       judicial          opinions
because "[d]eplorable decisions such as Plessy v. Ferguson and

                                                8
                                                                  No.    2017AP774-CR.rgb


Buck    v.    Bell    were     rooted    in        evil   concepts       supported      by

social science and            elitist        mores        antithetical          to     the

Constitution."            Roberson,    389   Wis. 2d 190,         ¶86.      A    faithful

application of the Constitution's original meaning "precludes

appalling social science-based notions of the day from infecting

constitutional analysis.              Only the Constitution can serve as a

reliable bulwark of the rights and liberty of the people."                              Id.

When applied by courts in the past, theories derived from social

science      have    been    fraught     with       error,   at     best,       and   have

repeatedly resulted in grave abuses of individual rights and

liberty.      That reason alone should suffice to persuade jurists

to reject social science when interpreting the Constitution.

       ¶47   Judge Reilly's concurrence in the court of appeals and

Justice Dallet's dissent both rest on legal fallacies.                                Judge

Reilly lodges baseless accusations against law enforcement and

this   court,       and    Justice    Dallet's       analysis     rests     heavily     on

social science research rather than the actual meaning of the

Fourth Amendment.           I write separately to underscore the dangers
of employing inflammatory rhetoric that erodes the institutional

legitimacy      of    the    judiciary       and    to    decry    the    tainting      of

constitutional analysis with social science research.

       ¶48   I am authorized to state that Justice DANIEL KELLY

joins this concurrence.




                                             9
                                                                    No.   2017AP774-CR.rfd


       ¶49       REBECCA         FRANK     DALLET,   J.     (dissenting).        Officer

Christopher Deering could have safely returned Courtney Brown's

license and warned him of the need to wear a seat belt, thus

completing the remaining tasks tied to a traffic stop made on

August 23, 2013.                 Instead, Officer Deering ordered Brown out of

the car for the express purpose of requesting consent to search

him     for          illegal      drugs.       Because      the   traffic      stop     was

unreasonably extended without independent reasonable suspicion

that       a    crime      had    been     committed,     the   subsequent     search   of

Brown's person contravenes the Fourth Amendment to the United

States Constitution and Article I, Section 11 of the Wisconsin

Constitution.1               By    upholding     the      constitutionality     of    this

search, the majority sanctions unrestricted officer discretion

to prolong a traffic stop in search of other crimes, and turns a

blind          eye    to   the     discriminatory         consequences    of   unchecked

implicit bias.             For these reasons, I respectfully dissent.

       1   The Fourth Amendment to the United States Constitution
reads:

       The right of the people to be secure in their persons,
       houses, papers, and effects, against unreasonable
       searches and seizures, shall not be violated, and no
       warrants shall issue, but upon probable cause,
       supported by oath or affirmation, and particularly
       describing the place to be searched, and the persons
       or things to be seized.

Article I, Section 11 of the Wisconsin Constitution states:

       The right of the people to be secure in their persons,
       houses, papers, and effects against unreasonable
       searches and seizures shall not be violated; and no
       warrant shall issue but upon probable cause, supported
       by oath or affirmation, and particularly describing
       the place to be searched and the persons or things to
       be seized.
                                 1
                                                                           No.    2017AP774-CR.rfd


                                               I

       ¶50     The   Fourth        Amendment's       constitutional                bar          against

unreasonable searches and seizures is well understood to defend

"against arbitrary invasions by governmental officials," Camara

v. Mun. Court of City and Cty. of San Francisco, 387 U.S. 523,

528     (1967),      including          "arbitrary        invasions          solely             at    the

unfettered discretion of officers in the field," Brown v. Texas,

443 U.S. 47, 51 (1979).                   The United States Supreme Court has

held that "[t]he essential purpose of the proscriptions in the

Fourth Amendment is to impose a standard of 'reasonableness'

upon     the    exercise         of     discretion        by     government            officials,

including      law   enforcement          agents,     in       order       to    safeguard            the

privacy        and       security        of    individuals             against           arbitrary

invasions . . . ."               Delaware      v.   Prouse,       440      U.S. 648,             653–54

(1979) (footnote and quotation marks omitted) (quoting Marshall

v. Barlow's, Inc., 436 U.S. 307, 312 (1978)).                                    The primacy of

this guarantee, that government searches and seizures will be

judged on their reasonableness, is a longstanding bedrock of
constitutional           jurisprudence.             See    Union        Pac.        R.          Co.    v.

Botsford,      141   U.S.        250,    251   (1891)      ("No      right        is    held          more

sacred, or is more carefully guarded . . . than the right of

every    individual         to    the     possession       and    control          of       his       own

person,      free    from    all        restraint    or     interference               by       others,

unless by clear and unquestionable authority of law.").

       ¶51     The   warrantless          seizure    here       is     a    routine             traffic

stop, characterized as "a relatively brief encounter . . . more
analogous      to    a    so-called        Terry    stop . . . than               to        a    formal

                                               2
                                                                          No.      2017AP774-CR.rfd


arrest."         Knowles v. Iowa, 525 U.S. 113, 117 (1998) (second

alteration        in     original)       (internal             quotation          marks    omitted)

(quoting Berkemer v. McCarty, 468 U.S. 420, 439 (1984)).                                          In

Terry, the United States Supreme Court held that officers may

conduct     a    brief     investigatory               seizure    and     carefully          limited

search      of    a     person,    a     "Terry          stop,"     if     the       officer    has

reasonable       suspicion        that   "criminal             activity       may    be     afoot."2

Terry v. Ohio, 392 U.S. 1, 30 (1968).                            The reasonableness of a

Terry stop turns on the "specific and articulable facts" and

"rational inferences from those facts," as contrasted with an

officer's "inchoate and unparticularized suspicion or hunch."

Id. at 20-21, 27.

      ¶52       While    similar        to     a       Terry     stop,        a    traffic     stop

implicates a distinct body of jurisprudence.                                  Relevant here is

the permissible scope and duration of a traffic stop's mission,

as well as the tasks the officer may lawfully undertake during

that mission.            In Rodriguez, the United States Supreme Court

established that "the tolerable duration of police inquiries in
the   traffic-stop          context          is        determined        by       the     seizure's

'mission' . . . ."           Rodriguez v. United States, 575 U.S. 348,

354 (2015).           That mission includes:               "(1) addressing the traffic

violation        that     warranted          the       stop;     (2) conducting             ordinary

inquiries        incident    to        the     stop;       and     (3) taking             negligibly


      2Terry  involved  a  highly  experienced   officer whose
particularized observations of two men blatantly "casing" a
storefront led him to suspect a robbery was imminent and to
intervene by seizing and searching them.    Terry v. Ohio, 392
U.S. 1, 5-6 (1968).

                                                   3
                                                                  No.    2017AP774-CR.rfd


burdensome      precautions      to   ensure      officer   safety."            State    v.

Wright,    2019    WI    45,     ¶24,      386    Wis. 2d 495,      926        N.W.2d 157

(footnotes omitted) (citing Rodriguez, 575 U.S. at 354).

     ¶53       There are several recognized "negligibly burdensome"

measures an officer might take during a traffic stop to address

certain safety concerns.              In Mimms, the United States Supreme

Court held that it is negligibly burdensome for an officer to

order    the    driver   out    of    a   vehicle    for    the    duration       of    the

traffic stop.       Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977).

The Court reasoned that this measure is a de minimis additional

intrusion into the driver's personal liberty that would reduce

the risk that an officer will be shot or subject to accidental

injury from passing traffic.                Id. at 110-11.              Likewise, this

court has concluded that the lesser intrusion of asking about

weapons on the driver's person or in the car, or requesting

consent to frisk the driver can be permissible safety-related

tasks.     State v. Floyd, 2017 WI 78, ¶28, 377 Wis. 2d 394, 898

N.W.2d 560.
     ¶54       The officer's lawful authority for the seizure ends

when all mission-related tasks are or "reasonably should have

been"     completed.           Wright,      386    Wis. 2d 495,          ¶24     (quoting

Rodriguez, 575 U.S. at 354).                In other words, the traffic stop

ends once an officer "has completed all the necessary functions

attendant on the traffic stop."                   Floyd, 377 Wis. 2d 394, ¶22

(emphasis added) (citing State v. Malone, 2004 WI 108, ¶26, 274

Wis. 2d 540, 683 N.W.2d 1).               Whether the traffic stop reasonably
should have been completed is assessed based on the totality of

                                            4
                                                                 No.   2017AP774-CR.rfd


the circumstances.             Id. (citing United States v. Everett, 601

F.3d 484, 493-94 (6th Cir. 2010)).                   With these principles in

mind, I turn to the circumstances of this traffic stop.

                                          II

       ¶55      Officer      Deering's   mission     was    to    address     Brown's

alleged failure to come to a complete stop at a stop sign.                         The

question is whether, under the totality of the circumstances,

Officer Deering reasonably should have completed the stop by

returning Brown's license and warning him to wear a seatbelt.3

See Wright, 386 Wis. 2d 495, ¶24.                If the stop reasonably should

have been completed, then ordering Brown out of the vehicle

initiated        a    Terry     stop     requiring       independent      reasonable

suspicion that criminal activity was in progress.                         Terry, 392

U.S. at 30.

       ¶56      The majority opinion concludes that Floyd controls on

this       question.          Majority    op.,     ¶21     (citing       Floyd,    377

Wis. 2d 394, ¶¶25, 28).              Floyd involved a traffic stop for a

suspended       vehicle      registration.       Floyd,    377   Wis. 2d 394,      ¶2.
The officer asked Floyd to exit the vehicle for the purpose of

explaining citations            for registration, license, and insurance

violations, and to prevent Floyd from unlawfully driving away

since      he   did    not    have   a   valid    license.        Id.,    ¶¶4-5,    7.


       Wisconsin Stat. § 347.48(2m)(b) prohibits operation of a
       3

motor vehicle unless the person is properly restrained in a
safety belt.    There is no evidence that Officer Deering ever
observed Brown operating his vehicle without a seatbelt.     In
fact, as the majority acknowledges, Officer Deering first
noticed Brown was not wearing a seatbelt after Brown's vehicle
was stopped. Majority op., ¶2.

                                           5
                                                              No.      2017AP774-CR.rfd


Remaining at Floyd's vehicle, the officer then inquired about

weapons and asked for consent to frisk, which Floyd gave.                            Id.,

¶5.    The Floyd court held that the request for consent to frisk

did    not    extend     the   traffic   stop    because     it     was    negligibly

burdensome and related to one of the ongoing missions of the

traffic stop, officer safety.            Id., ¶28.

       ¶57    The majority reads Floyd as a per se rule that the

mission of a traffic stop is ongoing until the officer chooses

to hand over a traffic ticket or warning, thereby allowing that

officer to continue to take all "negligibly burdensome" safety

measures.        The     majority's    reading    conflicts       with     recognized

Fourth Amendment jurisprudence relied upon in Floyd:                       "[W]e draw

the line between traffic stops of proper duration and those that

extend into unconstitutional territory according to functional

considerations.          We assess those considerations in the context

of    the    'totality    of   the    circumstances.'"        Id.,        ¶22   (citing

Everett, 601 F.3d at 493-94); see also Rodriguez, 575 U.S. at

357 ("The critical question, then, is not whether the dog sniff
occurs before or after the officer issues a ticket, . . . but

whether conducting the sniff 'prolongs'——i.e., adds time to——

'the stop[.]'" (cross-references omitted)).

       ¶58    The majority opinion's rejection of a reasonableness

test    to    determine    whether     the    tasks   related     to      the   mission

should have been          completed leaves the duration of                  a   traffic

stop, and any subsequent search for officer safety, up to the

"arbitrary"      and     "unfettered     discretion     of      officers        in   the
field."       Brown, 443 U.S. at 51.            After all, the issuance of a

                                          6
                                                                 No.    2017AP774-CR.rfd


citation    or       warning    is    an    event    wholly     controlled         by    the

officer.     However, it is this court's job to mitigate arbitrary

exercises of police authority by examining whether an officer

unnecessarily delayed the process of drafting or explaining any

appropriate          citations.       Floyd,        377   Wis. 2d 394,        ¶23.          I

therefore apply the requisite reasonableness test to the facts

of Brown's case and conclude that Officer Deering unreasonably

delayed the traffic stop.

      ¶59   Unlike in Floyd, Brown's seat belt warning required no

explanation on how to pay or dispute it, and Officer Deering did

not face the additional task of preventing a license-less driver

from driving away.          Moreover, unlike in Floyd, where the officer

asked    Floyd       out   of   the   vehicle       for   the   purpose       of    safely

explaining       a    ticket,   Officer      Deering's      testimony     and      conduct

demonstrate that he did not order Brown out of the car based on

the     safety       reasons    manufactured         by   the   majority        opinion.

Majority op., ¶23.          Instead, Officer Deering delayed the process

of giving Brown a warning in order to investigate his hunch that
Brown had committed a drug offense.

      ¶60   Officer        Deering's       testimony      confirms     that    he       asked

Brown out of the vehicle to search him:

      Q:    Why did you have Mr. Brown exit the vehicle?

      A: Again, that would be an awkward encounter to ask
      for someone's consent when they're sitting in a
      vehicle and then reach through the window to search
      them. That's not police practice.

      Q: So you already knew you were going to                            ask      to
      search him before you even re-approached him?

      A:    Correct.
                                             7
                                                   No.   2017AP774-CR.rfd


Officer Deering's actions further demonstrate that he delayed

giving the warning in order to investigate his hunch that Brown

committed a drug offense.     First, Officer Deering called for two

officers to assist with a mere stop sign violation.             Officer

Deering further made both a city and county-wide request for a

canine to sniff Brown's vehicle for drugs.        As Officer Deering

later testified:

     Q:    And why do officers request canines?

     A: The canines that us –- or the city and the county
     have are trained in drug detection. So they can smell
     the vehicle from the outside and detect any drugs
     therein.

     Q: So you initially had a suspicion of drugs then in
     the case?

     A:    Yes.

     Q: And that was part of the whole stop to begin with,
     correct?

     A: With everything.      His statements      and    all   the
     totality which we've already gone over.
     ¶61   Any alleged safety concerns under these circumstances

are illusory.4     Officer Deering maintained this was not a "high-
risk" traffic stop and that there were "no specific factors"


     4 Escalating the stop by ordering Brown out of the vehicle
likely put Officer Deering in a less safe situation than if he
had returned Brown's items and the completed warning. See State
v. Smith, 2018 WI 2, ¶82, 379 Wis. 2d 86, 905 N.W.2d 353 (Kelly,
J., dissenting) ("Is it really necessary to point out that
concerns over the officer's safety would vanish if he ended the
seizure?"); United States v. Landeros, 913 F.3d 862, 868 (9th
Cir. 2019) ("Extending the stop, and thereby prolonging the
officers' exposure to Landeros, was, if anything, 'inversely
related to officer safety.'" (quoting United States v. Evans,
786 F.3d 779, 787 (9th Cir. 2015))).

                                  8
                                                                        No.    2017AP774-CR.rfd


that led him to conclude Brown had any weapons.                                     When he re-

approached the car to give Brown a warning to wear his seatbelt,

there were a total of three officers standing outside of Brown's

vehicle, two of whom had been continuously watching Brown.                                         At

that       point    any     remaining         safety       concerns     could        have        been

dissipated         by    letting      Brown    go     on   his   way.         The        hazard    of

passing traffic was also not of concern to Officer Deering given

the location of the stop and the early morning hour.                                 Cf. Mimms,

434 U.S. at 111.                 By leading Brown to the squad car and, as

Brown testified, "plac[ing] [Brown's] hands behind [his] back,"

Officer Deering further indicated that a separate investigation

was beginning.5

       ¶62    In view of the totality of the circumstances, Officer

Deering's decision to order Brown out of the vehicle and walk

him back to the squad car "unnecessarily delayed the performance

of the incidents" necessary to the traffic stop.                                     Floyd, 377

Wis. 2d 394,        ¶22.         Consequently,         whether    Officer           Deering       had

reasonable         suspicion          for   the       ensuing    Terry        stop        must     be
considered.

                                               III

       ¶63    In        order    to    seize      Brown     following         the    reasonable

conclusion         of      the     traffic        stop,      Officer      Deering           needed

reasonable         suspicion       that     criminal       activity      was        in    progress


       Brown testified that as soon as he stepped out of the
       5

vehicle, Officer Deering placed Brown's hands behind his back
"in a motion like they were handcuffed" and walked him back to
the squad car.     Officer Deering denied this allegation and
testified that he just told Brown to follow him back to the
squad car.

                                                  9
                                                             No.   2017AP774-CR.rfd


based upon specific and articulable facts.                 Terry, 392 U.S. at

21, 30.       Under the totality of the circumstances presented by

this case, I conclude that Officer Deering's articulated facts

were only generalizations or uncorroborated criminal inferences

that, even in consideration of Brown's criminal history, did not

amount to reasonable suspicion.

    ¶64       According     to      Officer    Deering's      testimony,       the

following facts led him to reasonably believe a drug violation

was in progress:

             Brown drove a rental car which Officer Deering
              said he knew to be commonly used by drug
              traffickers;

             Brown resided in Milwaukee, a "source city for
              drugs";

             The time was 2:44 a.m.;

             Brown   was   coming  from    a          dead-end      street
              containing closed businesses;

             Brown said he was coming directly from a Speedway
              gas station, which Officer Deering interpreted as
              a lie because there was no Speedway down the
              dead-end street;

             Brown stated he was visiting a recent online
              acquaintance's residence, offering the cross-
              streets but not the full address or her last
              name;

             Brown stated he was not headed anywhere in
              particular at the time Officer Deering stopped
              him; and

             Brown had prior drug-related arrests.
    ¶65       The   first   three    factors   sweep    in   more    law-abiding
citizens than those who violate the law and should carry little

                                        10
                                                                                 No.    2017AP774-CR.rfd


if     any        weight       in     an       individualized              suspicion          analysis.

According to Officer Deering's testimony, Brown was in a rental

car    which       "people       that         traffic        drugs       often    use . . . for          a

variety of reasons."                 However, the prevailing use of rental cars

in Wisconsin is for lawful travel on its roads and highways.

See United States v. Williams, 808 F.3d 238, 247 (4th Cir. 2015)

("[T]he      Defendants'            use       of   a    rental       car . . . is            of    minimal

value        to        the     reasonable-suspicion                      evaluation. . . . [T]he

overwhelming            majority       of     rental        car    drivers        on    our       nation's

highways          are        innocent         travelers           with     entirely          legitimate

purposes."); United States v. Boyce, 351 F.3d 1102, 1109 (11th

Cir.    2003)          ("[T]he      fact      that      [the      defendant]           was    driving    a

rental car on a widely used interstate that also happens to be a

known drug corridor, does not create a reasonable suspicion in

this case.             These factors 'would likely apply to a considerable

number of those traveling for perfectly legitimate purposes' and

'do[]        not        reasonably            provide . . . suspicion                   of        criminal

activity.'" (second and third alterations in original) (quoting
United States v. Smith, 799 F.2d 704, 707 (11th Cir. 1986))).

       ¶66        As    for    being      a    Milwaukeean,           this       court       should   not

embrace factors that dilute an entire city's Fourth Amendment

protections.            Officer Deering did not testify to any training or

experience as support for his statement that Milwaukee is a

"source city for drugs."                       It is not reasonable to assume that

every     person         who        resides        in       the    municipal           boundaries       of

Milwaukee and drives through a different city in Wisconsin is a
drug dealer.            See United States v. Williams, 271 F.3d 1262, 1270

                                                       11
                                                                 No.    2017AP774-CR.rfd


(10th Cir. 2001) ("Standing alone, a vehicle that hails from a

purported known drug source area is, at best, a weak factor in

finding suspicion of criminal activity.").

       ¶67    The time of day likewise carries little weight in an

individualized         suspicion         analysis.       Officer       Deering    never

explained how the time, 2:44 a.m., particularly connected to

drug activity.             See United States v. Sigmond-Ballesteros, 285

F.3d 1117, 1125 (9th Cir. 2002) (holding "the time of day has

very    little,       if    any,    probative       value"     where    there    is    no

proffered evidence that the particular time is connected to the

suspected criminal activity).                The rental car, Brown's residence

in Milwaukee, and the early morning hour contribute little to an

analysis of reasonable suspicion.

       ¶68    Several       of     the    other     factors     are    uncorroborated

inferences      and     similarly         offer   weak   support       for   reasonable

suspicion that criminal activity was in progress.                        Brown turned

from    a    dead-end      street    of    closed    businesses.        There    was   no

testimony that this particular street was known to police as a
frequent location for drug deals, or that another car or person

was observed leaving the area to corroborate a drug transaction,

which of course requires more than one person.

       ¶69    Brown's perceived "lie" about coming directly from a

Speedway gas station hinges on Officer Deering's interpretation

of     the    word    "directly."            According    to     Officer     Deering's

testimony, Brown's vehicle was coming from the same direction as

the Speedway when Officer Deering first observed it.                              Brown
testified he was going to Speedway when he turned onto the dead-

                                             12
                                                        No.   2017AP774-CR.rfd


end street to change direction.             Brown could have reasonably

interpreted Officer Deering's question as asking whether he was

coming from the Speedway without making any additional stops.

      ¶70   Likewise, Brown's response that he did not know the

last name or exact street address of an online acquaintance does

not   suggest   criminal   activity    in   progress.     Brown     lived   in

Milwaukee and testified that he was unfamiliar with Fond du Lac.

It is just as reasonable that he either did not recall or did

not want to give officers his acquaintance's full street address

or name.

      ¶71   Lastly, Brown's lack of specific travel plans may have

been vague, but they did not conflict with his prior answers

such that it corroborated Officer Deering's criminal suspicions.

In total, Officer Deering's uncorroborated inferences drawn from

Brown's consistent and innocuous responses amounted to nothing

more than an insufficient hunch.            See Terry, 392 U.S. at 27

("[D]ue weight must be given, not to [an officer's] inchoate and

unparticularized    suspicion   or     'hunch,'   but   to    the   specific
reasonable inferences which he is entitled to draw from the

facts in light of his experience.").

      ¶72   The most individualized, suggestive evidence of any

wrongdoing is a propensity inference from Brown's prior drug-

related arrests.     But criminal history alone is an insufficient

basis for reasonable suspicion:

      Under the Fourth Amendment our society does not allow
      police officers to round up the usual suspects.     An
      officer relying on his or her knowledge of [an
      individual's] criminal record is required to pair that
      knowledge with concrete factors to demonstrate that

                                      13
                                                                          No.   2017AP774-CR.rfd

       there [is] a reasonable suspicion of current criminal
       activity.     In   other  words,   knowledge  of   an
       individual's criminal history can corroborate[], but
       not substitute for objective indications of ongoing
       criminality.
United States v. Castle, 825 F.3d 625, 629 (D.C. Cir. 2016)

(alterations in original) (internal quotation marks and quoted

sources      omitted);           see   also        United        States    v.     Santos,       403

F.3d 1120,      1132       (10th       Cir.    2005)        ("Even       people      with    prior

convictions retain Fourth Amendment rights; they are not roving

targets for warrantless searches.").

       ¶73    Here, Brown's history of prior arrests is not paired

with concrete observations of a drug crime.                                 Officer Deering

testified that he did not smell drugs or see any physical signs

of    drug    use.         See    State       v.       McGill,    2000    WI    38,    ¶31,     234

Wis. 2d 560,         609    N.W.2d 795;                Malone,    274     Wis. 2d 540,         ¶36.

There was no testimony regarding Brown being nervous or making

any    furtive       movements.           See           McGill,    234     Wis. 2d 560,        ¶29

(considering overt nervousness); State v. Buchanan, 2011 WI 49,

¶19,    334     Wis. 2d 379,            799        N.W.2d 775       (considering            furtive

movements).      There were no inconsistencies in Brown's responses.

Instead,      this    case        involves         a    criminal     history      paired      with

sweeping        generalizations               and         uncorroborated             inferences.

"Circumstances must not be so general that they risk sweeping

into    valid        law-enforcement               concerns       persons       on    whom      the

requisite individualized suspicion has not focused."                                   State v.

Gordon, 2014 WI App 44, ¶12, 353 Wis. 2d 468, 846 N.W.2d 483.                                    I

conclude that Officer Deering did not have reasonable suspicion
to seize Brown after the reasonable conclusion of the traffic


                                                   14
                                                       No.    2017AP774-CR.rfd


stop and therefore the seizure and subsequent search of Brown

were unconstitutional.6

                                      IV

     ¶74    Lastly,   in   addition   to   highlighting      the   majority's

disregard    of   recognized   Fourth      Amendment   jurisprudence      and

misapplication of Floyd, I must also address one of the real-

world consequences of the majority opinion's rejection of the

reasonableness inquiry:        unchecked implicit bias.            I discuss

social science research on implicit bias not to depart from

constitutional text as the concurrence postulates, but instead

to illustrate empirically how far our jurisprudence has strayed

from the original meaning of the Fourth Amendment.7




     6 An unconstitutional seizure taints any evidence recovered
during that seizure, even if the search leading to the evidence
was conducted upon otherwise valid consent.    See United States
v. Sandoval, 29 F.3d 537, 544 (10th Cir. 1994) (holding the
taint of a driver's unconstitutional seizure invalidates any
consent to a search made during that seizure).
     7 Justice Rebecca Grassl Bradley's belief that invoking
social science research in judicial decisionmaking leads to
violations of civil rights is ironic as it is her majority
opinion that broadens government discretion at the expense of
individual liberty. Concurrence, ¶¶40-46.

                                      15
                                                        No.   2017AP774-CR.rfd


     ¶75    The concept of implicit bias has been well-researched8

and can best be described as follows.           In order to effectively

function in a complex world, the human brain makes associations

implicitly,    or   "outside   conscious     attentional      focus."      See

Greenwald & Krieger, supra ¶75 n.8, at 947.         These associations,

which can be beneficial and helpful, also include observations

sorted by social categories like race or gender, which in turn

trigger implicit stereotypes and attitudes.         See id. at 948-952;

see also L. Song Richardson, Police Efficiency and the Fourth

Amendment, 87 Ind. L.J. 1143, 1147 (2012).

     ¶76    Problematically,    these    subconscious      stereotypes     and

attitudes     may   operate    in   direct    contradiction       to     one's

"consciously and genuinely held thoughts and feelings."                L. Song


     Besides the irony in the concurrence, it disregards the
important role of social science research in guiding the United
States Supreme Court to correct course when the law has allowed
government infringement of protected civil liberties. See State
v. Roberson, 2019 WI 102, ¶¶102-03, 389 Wis. 2d 190, 935
N.W.2d 813 (Dallet, J., dissenting) (citing Roper v. Simmons,
543 U.S. 551 (2005); Lawrence v. Texas, 539 U.S. 558 (2003);
Atkins v. Virginia, 536 U.S. 304 (2002); and Brown v. Board of
Educ., 347 U.S. 483 (1954)).    The Constitution was not drafted
in a social vacuum, nor does it operate in one. Our decisions
interpreting the Constitution have real-world consequences.   If
social science research can assist this court in assessing how
faithfully our decisions protect constitutional rights, then we
would only reinforce the institutional legitimacy of the
judiciary by taking such research into consideration.
     8 See, e.g., Anthony G. Greenwald & Mahzarin R. Banaji, The
Implicit   Revolution:      Reconceiving   the   Relation  Between
Conscious   and   Unconscious,   72   Am.   Psychol.   861  (2017)
(synthesizing the significant research efforts and findings in
the field of implicit cognition); Anthony G. Greenwald & Linda
Hamilton Krieger, Implicit Bias:       Scientific Foundations, 94
Cal. L. Rev. 945 (2006).

                                    16
                                                                   No.   2017AP774-CR.rfd


Richardson,        Cognitive        Bias,   Police    Character,     and    the   Fourth

Amendment, 44 Ariz. St. L.J. 267, 271-72 (citing Jerry Kang &

Kristin Lane, A Future History of Implicit Social Cognition and

the        Law     8      (Aug.     12,     2009)     (unpublished         manuscript),

http://ssrn.com/abstract=1458678); see also Heather M. Kleider

et al., Looking Like A Criminal:                      Stereotypical Black Facial

Features Promote Face Source Memory Error, 40 Memory & Cognition

1200,       1204       (2012)     ("Overall,      these    findings       support    our

hypotheses         that    the    association       between    stereotypical      facial

features and criminality is likely automatic and/or reflexive,

and not reliant on one's individual perceptions of Black men as

a whole.").            A wealth of data collected by Harvard University's

Project Implicit confirms that implicit biases can influence our

decisions without any awareness that these biases even exist.9

https://implicit.harvard.edu/implicit/education.html.

       ¶77       The    influence      of    implicit      bias     is     particularly

problematic in the policing context, where officers are tasked

with       rapidly        judging     stressful      and      potentially     dangerous



       Project Implicit collects this data through its online
       9

Implicit Association Tests that measure implicit attitudes
across social categories like age, gender, race, and sexuality.
See   https://implicit.harvard.edu/implicit/takeatest.html;   see
also Anthony G. Greenwald et al., Understanding and Using the
Implicit Association Test:     III. Meta-Analysis of Predictive
Validity, 97 J. Personality & Soc. Psychol. 17 (2009); Brian A.
Nosek, Mahzarin R. Banaji & Anthony G. Greenwald, Harvesting
Implicit Group Attitudes and Beliefs from a Demonstration Web
Site, 6 Group Dynamics:      Theory, Research, & Practice 101
(2002); Anthony G. Greenwald, Debbie E. McGhee & Jordan L.K.
Schwartz,    Measuring  Individual    Differences   in   Implicit
Cognition:   The Implicit Association Test, 74 J. Personality &
Soc. Psychol. 1464 (1998).

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                                                         No.   2017AP774-CR.rfd


situations       based   upon   limited    information   that    is     largely

ambiguous.10       See Richardson, supra ¶76, at 270-71.               Research

demonstrates that "[i]mplicit biases translate most readily into

discriminatory behavior . . . when people have wide discretion

in making quick decisions with little accountability."                    Jerry

Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev.

1124,     1142   (2012).    Social   psychologists   have      thus    come   to

understand that much of what has been labeled "racial profiling"

is likely to instead be spontaneous and unintended.                   See Megan

Quattlebaum, Let's Get Real:         Behavioral Realism, Implicit Bias,



     10For example, empirical evidence suggests Black and
Hispanic drivers are stopped more frequently, for longer, and
searched more often than White drivers.    See Sean Hecker, Race
and Pretextual Traffic Stops:     An Expanded Role for Civilian
Review Board, 28 Colum. Hum. Rts. L. Rev. 551, 558-65 (1997);
see also Emma Pierson et al., A Large-scale Analysis of Racial
Disparities in Police Stops Across the United States, 4 Nature
Human Behaviour (May 4, 2020), https://www.nature.com/articles/s
41562-020-0858-1.pdf. One explanation is that officers are more
likely to infer criminality from a Black driver's ambiguous
behavior——like pulling out of a dead-end street——than when a
White driver engages in that same ambiguous behavior.         See
Richardson, supra ¶75, at 1148-50; see also Jennifer L.
Eberhardt et al., Seeing Black:        Race, Crime, and Visual
Processing, 87 J. Personality & Soc. Psychol. 876, 883 (2004)
(interpreting data showing participants' selective attention
more quickly focused on a Black male face when primed to think
about crime to mean "[n]ot only are Blacks thought of as
criminal, but also crime is thought of as Black.").

     I do not intend this dissent to suggest police officers
generally, or Officer Deering specifically, act in bad faith or
intentionally abuse their discretion to achieve these observed
disparities.    After all, "[a]n officer may feel genuinely
suspicious, without realizing that those feelings were affected
by non-conscious biases and that identical behaviors of a white
individual may not have attracted his attention."    Richardson,
supra ¶76, at 278.

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and the Reasonable Police Officer, 14 Stan. J. Civ. Rts. & Civ.

Liberties 1, 5 (2018).

       ¶78    The Terry decision instructs courts to differentiate

police hunches based on general, unparticularized information

from    reasonable        inferences       based    on   articulable        and    specific

facts, thereby mitigating the influence of any implicit bias on

discretionary searches and seizures.                     The promised protection of

the reasonable suspicion standard, however, has been diluted by

this court's growing acceptance of weakly-correlated criminal

inferences         from    generic        or   generalized     factors        in    direct

contrast      to    the    particularized           circumstances     required       under

Terry.       See Floyd, 377 Wis. 2d 394, ¶¶84-91 (Ann Walsh Bradley,

J., dissenting).            And now, under the majority's interpretation

of   Floyd,    courts       will    no    longer     even   reach    the     question   of

reasonable suspicion.              Police may simply delay issuing a traffic

citation until they have exhausted their investigative tools to

explore hunches in the name of safety.                      Without inquiring into

the reasonableness of these delays, the duration of a traffic
stop falls solely to the unfettered discretion of an officer

whose    judgments,        like     all    human     beings,   are        susceptible   to

implicit bias.            By disavowing any meaningful review of officer

discretion during a traffic stop, the majority opinion turns a

blind eye to the disparities caused by implicit bias, despite




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the seemingly even-handed promise of the Fourth Amendment and

Article I, Section 11 of the Wisconsin Constitution.11

     ¶79   For the foregoing reasons, I respectfully dissent.



     11The Fourth Amendment sets "the minimal constitutional
standards," and this court can and has interpreted Article I,
Section 11 of the Wisconsin Constitution to afford greater
protections.   See State v. Tompkins, 144 Wis. 2d 116, 132, 423
N.W.2d 823 (1988); State v. Eason, 2001 WI 98, ¶60, 245
Wis. 2d 206, 629 N.W.2d 625 ("Indeed, herein, we find that
Article I, Section 11 of the Wisconsin Constitution guarantees
more protection than the Fourth Amendment provides under the
good faith exception as adopted in [United States v. Leon, 468
U.S. 897 (1984)].").    After all, "[i]t is always conceivable
that the Supreme Court could interpret the [F]ourth [A]mendment
in a way that undermines the protection Wisconsin citizens have
from unreasonable searches and seizures under [A]rticle I,
[S]ection 11, Wisconsin Constitution."  Eason, 245 Wis. 2d 206,
¶60 (quoted source omitted).    As the late Justice William J.
Brennan, Jr. advocated:

     [T]he decisions of the [United States Supreme] Court
     are not, and should not be, dispositive of questions
     regarding rights guaranteed by counterpart provisions
     of state law.    Accordingly, such decisions are not
     mechanically applicable to state law issues, and state
     court judges and the members of the bar seriously err
     if they so treat them.     Rather, state court judges,
     and   also  practitioners,   do   well  to   scrutinize
     constitutional decisions by federal courts, for only
     if they are found to be logically persuasive and well-
     reasoned, paying due regard to precedent and the
     policies     underlying     specific     constitutional
     guarantees, may they properly claim persuasive weight
     as guideposts when interpreting counterpart state
     guarantees.   I suggest to the bar that, although in
     the past it might have been safe for counsel to raise
     only federal constitutional issues in state courts,
     plainly it would be most unwise these days not also to
     raise the state constitutional questions.

William J. Brennan, Jr., State Constitutions and the Protection
of Individual Rights, 90 Harv. L. Rev. 489, 502 (1977) (footnote
omitted).

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