                                                                      2017 WI 78

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP1294-CR
COMPLETE TITLE:
                        State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Lewis O. Floyd, Jr.,
                                  Defendant-Appellant-Petitioner.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 371 Wis. 2d 404, 885 N.W.2d 156
                                PDC No: 2016 WI App 64 - Published

OPINION FILED:          July 7, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 19, 2017

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Racine
   JUDGE:               Allan B. Torhorst

JUSTICES:
   CONCURRED:
   DISSENTED:           A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
                        J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Michael G. Soukup and Pinix & Soukup, LLC, Milwaukee, and
oral argument by Michael G. Soukup.


       For the plaintiff-respondent, there was a brief filed by
Luke    N.      Berg,   deputy    solicitor   general,    Brad   D.    Schimel,
attorney        general,   and   Misha   Tseytlin,   solicitor   general,    and
oral argument by Luke N. Berg.


       An amicus curiae brief was filed by               Kelli S. Thompson,
state public defender, and L. Michael Tobin, deputy state public
defender.
                                                                              2017 WI 78
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.     2015AP1294-CR
(L.C. No.   2013CF982)

STATE OF WISCONSIN                                  :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                           FILED
      v.                                                               JUL 7, 2017

Lewis O. Floyd, Jr.,                                                     Diane M. Fremgen
                                                                      Clerk of Supreme Court

              Defendant-Appellant-Petitioner.




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



      ¶1      DANIEL      KELLY,      J.     A     law       enforcement          officer

discovered a cache of controlled substances when he performed a

warrantless——but allegedly consensual——search of Lewis O. Floyd,
Jr. during a traffic stop.                 Mr. Floyd says that because the

officer     extended      the      traffic       stop    without       the     necessary

reasonable suspicion, his alleged "consent" was void and the

evidence obtained from the search should have been suppressed.

Mr.   Floyd    also      says   he   received       ineffective         assistance        of

counsel at the suppression hearing because his trial counsel
                                                                          No.   2015AP1294-CR



failed    to    present          testimony        Mr.   Floyd     believes      would     have

established he was not asked to consent to a search.1

                                       I.    BACKGROUND

                                  A.     The Traffic Stop

     ¶2        On an early July evening in 2013, Deputy Troy Ruffalo

of the Racine County Sheriff's Office stopped Mr. Floyd near

16th and Racine Streets in the City of Racine because his car

registration          had       been   suspended        for      emissions      violations.

Deputy    Ruffalo,          a   six-year         veteran   law    enforcement       officer,

believed this to be a "high crime" part of the city known for

frequent drug and gang activity.

     ¶3        When    Deputy      Ruffalo        approached      Mr.    Floyd's    car,    he

noted it had tinted windows and "air fresheners in every vent of

the vehicle as well as hanging off the rear view mirror and air

fresheners up on the -- where the vents were."                             This, he said,

is   often       an     indicator           of     drug-related         activity     because

"[u]sually the air fresheners or the amount of them are -- is an

agent that is used to mask the smell of narcotics."2
     ¶4        Deputy Ruffalo's initial contact with Mr. Floyd lasted

approximately two to three minutes, during which he discovered

     1
       This is a review of a published decision of the court of
appeals, State v. Floyd, 2016 WI App 64, 371 Wis. 2d 404, 885
N.W.2d 156, affirming the judgment and order of the circuit
court for Racine County, as well as the denial of Mr. Floyd's
motion for postconviction relief, the Hon. Allan B. Torhorst,
presiding.
     2
       The record does not identify the                           exact    number    of    air
fresheners present in Mr. Floyd's vehicle.


                                                  2
                                                                    No.    2015AP1294-CR



Mr. Floyd had no driver's license or insurance information with

him.       After obtaining Mr. Floyd's Wisconsin State identification

card, Deputy Ruffalo returned to his squad car to draft Mr.

Floyd's citations and contact dispatch to ask for a canine unit

or other "cover" squad.             No canine units were available, and

Officer Aaron White, an officer with the City of Racine Police

Department,      arrived     on    the   scene        while   Deputy      Ruffalo   was

completing Mr. Floyd's citations.

       ¶5     Deputy Ruffalo reestablished contact with Mr. Floyd

approximately five or six minutes after pulling him over and,

while maintaining possession of Mr. Floyd's identification card

and the multiple citations, asked Mr. Floyd to exit the vehicle

so he could explain the citations.                     After Mr. Floyd complied,

Deputy Ruffalo asked him if he had any weapons or anything that

could harm him.        After Mr. Floyd indicated he did not, Deputy

Ruffalo asked if he could perform a search for his safety.                          Mr.

Floyd responded "yes, go ahead."3                     During the ensuing search,

Deputy Ruffalo discovered the illegal drugs that led to the
charges in this case.

                        B.        Procedural Background

       ¶6     The State filed a criminal complaint against Mr. Floyd

alleging:       (1) possession with intent to deliver non-narcotic

controlled       substances,       second       and    subsequent      offense;     (2)


       3
       To the extent there is a dispute as to whether Mr. Floyd
voluntarily consented to the search, we address that question in
Section III.B, infra.


                                            3
                                                                          No.    2015AP1294-CR



misdemeanor bail jumping, repeater; (3) possession with intent

to deliver or manufacture THC <= 200 GMS, second and subsequent

offense;       and    (4)    misdemeanor        bail      jumping,       repeater.           The

subsequent Information alleged the same four counts.

       ¶7      Mr. Floyd moved to suppress the evidence seized during

the search, but the circuit court denied the motion.                                It found

that at the time Deputy Ruffalo contacted dispatch for backup,

he    had   suspicions       Mr.     Floyd     was      involved    in    criminal          drug-

related     activity         based     on    several          factors,     including         the

numerous air fresheners and the vehicle's tinted windows.                                      It

also found that Deputy Ruffalo did not unnecessarily prolong the

traffic     stop      by    requesting       backup       because       the     cover       squad

arrived while he was in the process of drafting the citations——a

process that took only five to six minutes.                          The circuit court

accepted Deputy Ruffalo's explanation that having Mr. Floyd step

out of his vehicle was important because he did not have a valid

driver's license and therefore could not drive away when the

traffic stop ended.
       ¶8      Mr. Floyd pled no-contest to possession with intent to

deliver non-narcotic controlled substances as a repeat offender.

He moved for postconviction relief, alleging his trial counsel

was     ineffective         for    failing         to    present     evidence          at    the

suppression      hearing       that    (he     says)      would    have       proved    Deputy

Ruffalo did not ask for his consent to perform the search.                                   The

circuit     court     observed       that    Officer      White's       testimony       showed

"some    dichotomy"         with   respect      to      whether    Deputy       Ruffalo      had
asked    for    Mr.    Floyd's       consent       to   the    search     or    instead      had
                                               4
                                                                        No.    2015AP1294-CR



advised him it was going to happen.                          Ultimately, the circuit

court found Deputy Ruffalo did, in fact, ask Mr. Floyd whether

he would consent to the search.                      Thus, the court concluded Mr.

Floyd did not receive ineffective assistance of counsel because

the   testimony        was     insufficient           to   demonstrate        he   had     not

consented to the search, and so denied the motion.

      ¶9    The court of appeals affirmed in a published opinion,

concluding    that      denial       of   the       suppression   motion       was    proper

because    Mr.     Floyd      was   lawfully         detained   when    Deputy       Ruffalo

asked to search him and Mr. Floyd voluntarily consented to the

search.      See      State    v.    Floyd,         2016   WI App 64,   ¶¶12,        20,   371

Wis. 2d 404, 885 N.W.2d 156.                Relying on Pennsylvania v. Mimms,

434 U.S. 106 (1977) (per curiam), the court of appeals concluded

that Deputy Ruffalo's request that Mr. Floyd exit his vehicle

during the ongoing traffic stop was per se lawful, and it also

pointed out that Mr. Floyd could not drive away because he did

not have a valid driver's license.                     Floyd, 371 Wis. 2d 404, ¶12.

The court of appeals further held that even if Deputy Ruffalo
had extended the traffic stop, the extension was nevertheless

reasonable because Deputy Ruffalo reasonably suspected criminal

drug-related activity.               Id.,     ¶13.         As to the postconviction

motion, the court of appeals determined there was no reasonable

probability the result at the suppression hearing would have

been any different had Officer White been called to testify;

therefore,       it    affirmed       the   circuit         court's     denial       of    the

postconviction motion.              Id., ¶27.


                                                5
                                                                            No.    2015AP1294-CR



       ¶10    We accepted Mr. Floyd's petition for review and now

affirm the decision of the court of appeals.

                             II.    STANDARD OF REVIEW

       ¶11    "Whether evidence should be suppressed is a question

of constitutional fact."             State v. Knapp, 2005 WI 127, ¶19, 285

Wis. 2d 86, 700 N.W.2d 899 (quoting State v. Samuel, 2002 WI 34,

¶15, 252 Wis. 2d 26, 643 N.W.2d 423).                          We review the circuit

court's findings of historical fact under the clearly erroneous

standard.          State    v.     Turner,       136     Wis. 2d 333,             343-44,    401

N.W.2d 827 (1987).           But the circuit court's application of the

historical facts to constitutional principles is a question of

law we review independently.               Id.        While we are not bound by the

circuit court's or court of appeals' decisions on questions of

law,    we    benefit     from   their     analyses.            State    v.       Kyles,     2004

WI 15, ¶7, 269 Wis. 2d 1, 675 N.W.2d 449.

       ¶12    We review the voluntariness of consent to a search in

a similar fashion.            See State v. Artic, 2010 WI 83, ¶23, 327

Wis. 2d 392,       786     N.W.2d 430.        We       review    the     circuit       court's
findings      of   historical       fact     to       determine       whether        they    are

clearly       erroneous.           Id.           We     then     independently              apply

constitutional principles to those facts.                       Id.

       ¶13    Whether trial counsel's actions constitute ineffective

assistance of counsel presents a mixed question of fact and law.

State    v.    Tourville,        2016    WI 17,        ¶16,     367     Wis. 2d 285,          876

N.W.2d 735.        We will not reverse the circuit court's findings of

fact    unless     they    are     clearly   erroneous.               Id.         However,     we


                                             6
                                                                        No.   2015AP1294-CR



independently review, as a matter of law, whether those facts

demonstrate ineffective assistance of counsel.                        Id.

                                     III. DISCUSSION

      ¶14    We must determine whether the drug-disclosing search

of Mr. Floyd was consonant with the constitutional mandate that

we be free of unreasonable searches and seizures.                               The State

says the search was proper because it occurred during a lawful

traffic stop and Mr. Floyd consented to it.                       Mr. Floyd says this

is not so——the search took place after the traffic stop should

have ended, and so he was unlawfully seized when it took place,

which rendered any alleged "consent" void as a matter of law.

In   any    event,   he    says,      he     did    not   actually      consent     to   the

search, and if his counsel had not been ineffective the court

would have heard testimony to prove that point.

      ¶15    The disagreement between the State and Mr. Floyd is

really quite narrow, although no less important for that.                                The

parties     agree    that       Mr.     Floyd's         expired       tags    provided    a

sufficient     basis      for   Deputy       Ruffalo      to   initiate       the   traffic
stop.      And Mr. Floyd did not contest an officer's authority to

ask a driver to exit his vehicle during such an encounter.                               Nor

did he offer any argument against an officer's authority to ask

a    lawfully-seized       person       to     consent     to     a    search.        Their

disagreement     centers        on    where        we   draw    the    line    separating

traffic stops of acceptable duration from those that have been

impermissibly extended.               A motorist is lawfully seized during

the proper duration of a traffic stop, but unlawfully seized if
it lasts longer than necessary to complete the purpose of the
                                              7
                                                                                  No.   2015AP1294-CR



stop.     So the location of the line is important because of the

constitutional rights affected.                           As we discuss below, if Mr.

Floyd     was      unlawfully         seized          when       Deputy    Ruffalo        requested

permission            to     search            him,        his      "consent"           would        be

constitutionally invalid, and the evidence discovered during the

search would need to be suppressed.

       ¶16    Mr. Floyd says the court of appeals drew the line in

the wrong place.              He argues that when Deputy Ruffalo finished

writing      the      citations,         the    Constitution            permitted       no   further

interaction        between         the    two        of    them     beyond        Deputy     Ruffalo

explaining the citations and informing him he was free to go.

So when Deputy Ruffalo instead asked him if he would consent to

a search, Mr. Floyd says Deputy Ruffalo extended the traffic

stop with no justifiable basis.

       ¶17    The          State     says           the      constitutionally-permissible

duration of the traffic stop did not conclude before Deputy

Ruffalo asked Mr. Floyd if he would consent to a search.                                          Thus,

as the fruit of a consensual search, the illegal drugs comprised
proper evidence against Mr. Floyd.                           And even if Deputy Ruffalo

extended        the     stop,       the    State          says,     the     totality         of     the

circumstances gave him reasonable suspicion to believe Mr. Floyd

had committed, was committing, or was about to commit a crime.

       ¶18    Thus,        our     task   is     to       espy    the     point    at    which      the

traffic stop should have ended and assess how the search related

to that point.              Because the purpose of the stop determines its

proper scope, we must identify what an officer may lawfully do
when    detaining          someone       for    a     suspended         vehicle     registration.
                                                     8
                                                                             No.   2015AP1294-CR



See,       e.g.,     Rodriguez     v.     United          States,      575    U.S. ___,        135

S. Ct. 1609,         1614    (2015)      ("the         tolerable       duration      of   police

inquiries      in     the    traffic-stop              context    is   determined         by   the

seizure's          'mission'——to        address         the      traffic     violation         that

warranted          the    stop, . . . and                attend       to     related       safety

concerns . . . . Authority for the seizure thus ends when tasks

tied to the traffic infraction are——or reasonably should have

been——completed." (internal citations omitted)).

                   A. Constitutional Implications Of Traffic Stops
       ¶19    We     begin      where    we    should,         with    the    constitutional

prohibitions against unreasonable searches and seizures.                                       The

Fourth Amendment to the United States Constitution says:

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

Article       I,     section     11     of    the        Wisconsin         Constitution,4        is
substantively            identical,          and        we     normally       interpret         it

coextensively            with     the        United           States       Supreme        Court's

interpretation of the Fourth Amendment.                               See, e.g., State v.

       4
       "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." Wis. Const. art. I, § 11.


                                                   9
                                                                                 No.    2015AP1294-CR



Dumstrey, 2016 WI 3, ¶14, 366 Wis. 2d 64, 873 N.W.2d 502 (citing

State      v.    Arias,        2008        WI 84,       ¶20,        311     Wis. 2d 358,             752

N.W.2d 748).

       ¶20      It is an unremarkable truism that a traffic stop is a

seizure      within      the     meaning          of     our     Constitutions.                  "'The

temporary        detention      of     individuals             during       the        stop    of    an

automobile by the police, even if only for a brief period and

for a limited purpose, constitutes a seizure of persons within

the meaning of the Fourth Amendment.'"                               State v. Popke, 2009

WI 37, ¶11, 317 Wis. 2d 118, 765 N.W.2d 569 (citations and one

set of quotations omitted).                   Reasonable suspicion that a driver

is violating a traffic law is sufficient to initiate a traffic

stop.      State v. Houghton, 2015 WI 79, ¶30, 364 Wis. 2d 234, 868

N.W.2d 143 ("[R]easonable suspicion that a traffic law has been

or    is   being    violated          is    sufficient         to     justify          all     traffic

stops.").         Reasonable         suspicion          requires      that        "[t]he       officer

must be able to point to specific and articulable facts which,

taken      together      with    rational              inferences         from     those        facts,
reasonably       warrant       the    intrusion          of    the    stop."            Popke,       317

Wis. 2d 118,       ¶23    (two        sets    of       quotation          marks    and        citation

omitted).

       ¶21      Traffic stops are meant to be brief interactions with

law   enforcement        officers,          and     they      may    last     no       longer       than

required to address the circumstances that make them necessary.

"A routine traffic stop . . . is a relatively brief encounter




                                                  10
                                                                      No.    2015AP1294-CR



and 'is more analogous to a so-called Terry[5] stop . . . than to

a formal arrest.'"            Knowles v. Iowa, 525 U.S. 113, 117 (quoting

Berkemer v. McCarty, 468 U.S. 420, 439 (1984)) (footnote added;

second ellipses in Knowles; one set of quotation marks omitted).

"Because addressing the infraction is the purpose of the stop,

it may 'last no longer than is necessary to effectuate th[at]

purpose.'"          Rodriguez,      135    S. Ct. at   1614     (citation       omitted;

alteration in Rodriguez).              "Authority for the seizure thus ends

when tasks tied to the traffic infraction are——or reasonably

should have been——completed."               Id.

      ¶22     Thus, we draw the line between traffic stops of proper

duration and those that extend into unconstitutional territory

according      to     functional       considerations.           We     assess       those

considerations         in     the    context      of   the    "totality         of     the

circumstances."             See,    e.g.,    United    States    v.     Everett,       601

F.3d 484,     493-94        (6th    Cir.    2010).     And    while     the     temporal

duration of the stop may inform those considerations, it is not

in   itself    dispositive.            See    United    States    v.        Sharpe,    470
U.S. 675, 686 ("In assessing whether a detention is too long in

duration to be justified as an investigative stop, we consider

it appropriate to examine whether the police diligently pursued

a means of investigation that was likely to confirm or dispel

their suspicions quickly, during which time it was necessary to

detain the defendant."); see also United States v. Peralez, 526


      5
          Terry v. Ohio, 392 U.S. 1 (1968).


                                             11
                                                                    No.    2015AP1294-CR



F.3d 1115, 1119 (8th Cir. 2008) ("Whether a traffic stop 'is

reasonable in length is a fact intensive question, and there is

no   per   se    time      limit    on     all     traffic    stops.'"       (citation

omitted)).      Generally speaking, an officer is on the proper side

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

purpose of the traffic stop have not been completed, and the

officer has not unnecessarily delayed the performance of those

incidents.          See,    e.g.,     Rodriguez,        135     S. Ct. at      1614-15

(explaining that authority for a traffic-stop based seizure ends

when tasks related to the infraction are, or should have been,

completed).          He    steps    across       that    line      (again     speaking

generally) when he maintains the seizure after he has completed

all the necessary functions attendant on the traffic stop.                           See

State v. Malone, 2004 WI 108, ¶26, 274 Wis. 2d 540, 683 N.W.2d 1

(a reasonable seizure can become unreasonable if the officer

"extends   the      stop   beyond    the    time     necessary     to     fulfill    the

purpose of the stop." (citation omitted)).

     ¶23   Mr. Floyd's stop           was not complicated——his vehicle's
registration was suspended.                Deputy Ruffalo then learned Mr.

Floyd had neither insurance nor a valid driver's license.                           At a

minimum,     this    authorized      Deputy        Ruffalo    to    take     the    time

reasonably      necessary    to     draft    the    appropriate      citations       and

explain them to Mr. Floyd.               See, e.g., Rodriguez, 135 S. Ct. at

1614 (explaining that in the traffic stop context, "addressing

the infraction is the purpose of the stop . . . .").                        Until that

is done, and so long as Deputy Ruffalo does not unnecessarily
delay the process, the permissible duration of the traffic stop
                                           12
                                                                         No.      2015AP1294-CR



has not elapsed.             Id. at 1615 ("The seizure remains lawful only

'so long as [unrelated] inquiries do not measurably extend the

duration         of    the   stop.'"      (quoting        Arizona       v.     Johnson       555

U.S. 323, 333 (2009); alteration in Rodriguez)).

       ¶24       We note that before Deputy Ruffalo asked Mr. Floyd to

consent to a search, he asked him to step out of his vehicle.

During       a    valid      traffic      stop,      this    is     a    matter        of     no

constitutional           moment:         "[O]nce      a   motor     vehicle         has     been

lawfully detained for a traffic violation, the police officers

may order the driver to get out of the vehicle without violating

the Fourth Amendment's proscription of unreasonable searches and

seizures."            Mimms, 434 U.S. at 111 n.6.             In an area of the law

where    bright         lines     are    rare,       we   have     had       no   difficulty

discerning one here.                  In State v. Johnson we recognized that

Mimms "established a per se rule that an officer may order a

person out of his or her vehicle incident to an otherwise valid

stop     for      a     traffic       violation."           2007    WI 32,         ¶23,      299

Wis. 2d 675, 729 N.W.2d 182.
       ¶25       That brings us to the nub of the dispute between the

State    and      Mr.     Floyd.        After    writing     the    citations,            Deputy

Ruffalo returned to Mr. Floyd's car and asked him if he would

submit to a search.                Mr. Floyd says this request extended the

stop beyond its permissible duration.                        The only thing Deputy

Ruffalo could lawfully do after writing the citations, Mr. Floyd

says, was explain them to him and bid him good day.

       ¶26       Although       Mr.     Floyd's       argument      incorporates             the
principle that the "mission" of the traffic stop defines its
                                                13
                                                                   No.   2015AP1294-CR



acceptable duration, he does not account for how the officer's

safety fits within that mission.               "Traffic stops are 'especially

fraught with danger to police officers . . . .'"                    Rodriguez, 135

S. Ct. at 1616 (quoting            Johnson,     555 U.S. at 330);          see    also

Mimms, 434 U.S. at 110 ("We think it too plain for argument that

the State's proffered justification——the safety of the officer——

is both legitimate and weighty.").               That makes officer safety an

integral part of every traffic stop's mission.                     Rodriguez, 135

S. Ct. at     1616     ("Unlike      a    general       interest     in     criminal

enforcement, however, the government's officer safety interest

stems from the mission of the stop itself.")

    ¶27     The     danger    inherent    to    traffic    stops    authorizes     an

officer "to take certain negligibly burdensome precautions in

order to complete his mission safely."               Id.; see also Mimms, 434

U.S. at 110-11 (discussing inherent risks a police officer faces

during a traffic stop, such as assault by seated suspects and

accidental        injury   from    passing      traffic,    in     concluding     the

request that a person exit the vehicle during a traffic stop is
justifiable and de minimis); Johnson, 299 Wis. 2d 675, ¶¶25-27,

(acknowledging "the serious risks law enforcement officers must

undertake whenever they initiate contact with a suspect who is

seated in a vehicle").            Thus, the questions to which Mr. Floyd

objects     are     appropriate     if   they     are    negligibly       burdensome

precautions to ensure the officer's safety during the stop.

    ¶28     Deputy Ruffalo asked Mr. Floyd if he had any weapons

or anything that could harm him.               When Mr. Floyd said he didn't,
Deputy    Ruffalo     asked   if    he   could    perform    a   search     for   his
                                         14
                                                                       No.   2015AP1294-CR



safety.         Both questions specifically related to the officer's

safety.         According to Mr. Floyd, however, the second question

was not negligibly burdensome:                 "What the State entirely ignores

is   that       unlike    questions       seeking    information,       a    request    to

conduct a frisk involves 'a severe, though brief, intrusion upon

cherished        personal       security . . . [that]         must      surely    be     an

annoying,        frightening,       and    perhaps    humiliating        experience.'"

(Quoting Terry v. Ohio, 392 U.S. 1, 24-25 (1968)).                           While it is

true that such a search can be all of that, a request to conduct

such       a   search    cannot.      In     fact,   that    request    is    just     like

"questions        seeking    information"          because    it   is    just    seeking

information——to          wit,      whether    Mr.    Floyd    would      agree    to    be

searched.        What follows the answer to the question may be a non-

negligible burden, but that says nothing about the nature of the

question itself.           Mr. Floyd provided no other argument that the

questions imposed a burden forbidden by Rodriguez, and nothing

about them immediately suggests a disqualifying characteristic.

Therefore, because the questions related to officer safety and
were negligibly burdensome, they were part of the traffic stop's

mission, and so did not cause an extension.6
       6
       The dissent misreads our opinion with respect to whether
Deputy Ruffalo extended the stop. It says:

                The majority concludes that the traffic stop was
                not extended because Mr. Floyd freely and
                voluntarily consented to the search. It then
                determines that there is no need to consider
                whether there was reasonable suspicion because it
                has already concluded that the traffic stop was
                not extended.
                                                                             (continued)
                                              15
                                                             No.   2015AP1294-CR



                       B.      Constitutional Consent

     ¶29    Whatever additional time the actual search consumed,

or the burden it imposed, is irrelevant so long as Mr. Floyd

consented to it.       Schneckloth v. Bustamonte, 412 U.S. 218, 242-

43 (1973) ("While the Fourth and Fourteenth Amendments limit the

circumstances under which the police can conduct a search, there

is nothing constitutionally suspect in a person's voluntarily

allowing a search.").          When we inquire into the legitimate scope

of   a     traffic     stop's      mission,     its    duration,     and    the

burdensomeness of its incidents, we do so because these are

nonconsensual aspects of the interaction between a citizen and a

law enforcement officer.         But when a person consents, the Fourth

Amendment does not bar the search (so long as it does not exceed

the scope of the person's consent).             Illinois v. Rodriguez, 497

U.S. 177,     181    (1990)     (explaining    that    although    the   Fourth

Amendment     generally       prohibits     warrantless   searches,      "[t]he

prohibition     does     not     apply . . . to       situations    in     which


Dissent, ¶46 (citation omitted).

     Actually, our conclusion that Deputy Ruffalo did not extend
the stop is based first and foremost on his interactions with
Mr. Floyd before he consented to the search.     But the dissent
does not engage this part of our opinion at all. This is not a
small oversight. Beginning with ¶15 and ending with this note,
that has been the sole subject of our discussion.    Measured by
paragraphs, that's 48% of our opinion's entire analysis.     The
reason we didn't address "reasonable suspicion" is because that
is necessary only if Deputy Ruffalo extended the stop.    As the
first half of our opinion demonstrates, he did not. As for the
effect of Mr. Floyd's consent to the search, that is the topic
of the next subpart.


                                       16
                                                                       No.    2015AP1294-CR



voluntary     consent         has      been        obtained . . . .");          see     also

Schneckloth, 412 U.S. at 219 ("It is equally well settled that

one    of    the         specifically       established        exceptions         to     the

requirements of both a warrant and probable cause is a search

that    is   conducted       pursuant       to     consent.");      United     States     v.

Strickland,        902     F.2d 937,       941     (11th     Cir.    1990)     ("When     an

individual gives a general statement of consent without express

limitations, the scope of a permissible search is not limitless.

Rather it is constrained by the bounds of reasonableness:                               what

a   police   officer        could      reasonably      interpret       the    consent     to

encompass.").            Thus,    we   inquire       now   into     whether    Mr.     Floyd

provided     constitutionally-valid                consent    to     Deputy     Ruffalo's

search.

       ¶30   The    circuit        court    found     that    after    Deputy     Ruffalo

asked whether Mr. Floyd would consent to a search, Mr. Floyd

said "yes, go ahead."              This is an unequivocal assent, and so it

is sufficient to authorize the search so long as Mr. Floyd's

response     was    given        "freely    and     voluntarily."        Johnson,        299
Wis. 2d 675, ¶16 ("When the purported legality of a warrantless

search is based on the consent of the defendant, that consent

must be freely and voluntarily given.").                          The State bears the

burden of establishing by clear and convincing evidence that a

person's consent to a search was voluntary.                         State v. Phillips,

218    Wis. 2d 180,        197,    577     Wis. 2d 794       (1998).         Generally,    a

response is voluntary if it "was given in the absence of duress

or coercion, either express or implied."                          State v. Bons, 2007


                                              17
                                                                             No.    2015AP1294-CR



WI App 124,         ¶17,     301     Wis. 2d 227,          731        N.W.2d 367       (quoting

Phillips, 218 Wis. 2d at 196).                  Relevant considerations include:

      [W]hether any misrepresentation, deception or trickery
      was used to persuade the defendant to consent; whether
      the    defendant    was    threatened   or   physically
      intimidated; the conditions at the time the search was
      made; the defendant's response to the officer's
      request;   the   defendant's   physical  and  emotional
      condition and prior experience with police; and
      whether the officers informed the individual that
      consent could be withheld.
Bons, 301 Wis. 2d 227, ¶17.
      ¶31      Mr. Floyd argued his "consent" was not valid because

the   circumstances          demonstrate         it   was       not    voluntarily       given.

Specifically,        he     argued    that      because         Deputy      Ruffalo    had     not

returned    his      identification            card   prior      to     asking      whether    he

would consent to a search, his response could not be voluntary

because he was unlawfully seized.                      He said "the record shows

that Floyd's consent was not voluntary, where in the absence of

any suspicion, the deputy withheld [his] documents to prevent

the stop from terminating in order to procure [his] agreement to

the pat-down."            It is true that these facts can be useful in
determining the voluntariness of someone's consent.                                  But it is

useful    to    a    part    of    the    analysis         we    have     already      resolved

against     Mr.     Floyd's        position.          If    an     officer         withholds    a

person's documents, there is good reason to believe the person

was not "free to leave" at that time.                           That, in turn, helps us

decide    whether      the    person      was     seized.          See,      e.g.,    State     v.

Hogan,    2015      WI 76,    ¶63,       364    Wis. 2d 167,          868    N.W.2d 124        ("a
traffic stop ends when a reasonable person, under the totality

                                                18
                                                                   No.   2015AP1294-CR



of   the    circumstances,        would   feel    free    to   leave.").        If    the

seizure is unlawful, the consent is invalid.                      See, e.g., State

v. Jones, 2005 WI App 26, ¶9, 278 Wis. 2d 774, 693 N.W.2d 104

("a search authorized by consent is wholly valid unless that

consent     is    given    while     an   individual      is   illegally    seized."

(citing State v. Williams, 2002 WI 94, ¶¶19-20, 255 Wis. 2d 1,

646 N.W.2d 834)); see also United States v. Jerez, 108 F.3d 684,

694-96 (7th Cir. 1997).              Here, however, we have concluded the

traffic stop was not extended and that Mr. Floyd was seized——

lawfully——when       Deputy       Ruffalo    requested      his   consent      to     the

search.7

      ¶32       Requesting permission to search a person who has been

lawfully seized does not invalidate the person's consent.                             See

Schneckloth,       412     U.S. at    248-49     (consent      given   while    seized

pursuant to a traffic stop was constitutionally valid); United

States     v.    Watson,    423    U.S. 411,     424     (1976)   ("[T]he      fact    of

custody alone has never been enough in itself to demonstrate a

coerced confession or consent to search.").                     The routine act of
retaining an identification card or driver's license during a

      7
       The cases on which Mr. Floyd relies to invalidate his
consent all address the effect of an illegal seizure on the
voluntariness of the subject's consent. See Rodriguez v. United
States, 575 U.S. ___, 135 S. Ct. 1609 (2015) (unlawful seizure
because traffic stop impermissibly extended); State v. Hogan,
2015 WI 76, 364 Wis.2d 167, 868 N.W.2d 124 (illegal extension of
traffic stop can negate consent to a search); State v. Luebeck,
2006 WI App 87, ¶17, 292 Wis. 2d 748, 715 N.W.2d 639 ("[C]onsent
to search was tainted by the illegal seizure.").     These cases
have no instructive value here because Mr. Floyd's seizure was
not unlawful.


                                            19
                                                                         No.   2015AP1294-CR



traffic stop, without more, is insufficient evidence of the type

of duress or coercion capable of making consent something less

than voluntary.          If it were otherwise, it would be virtually

impossible to obtain consent to a search during a traffic stop.

We see no authority to support such a proposition, and Mr. Floyd

offers none.         So retaining the identification card presented no

structural impediment to Deputy Ruffalo's request for permission

to    perform   a     search;   we    continue      with       the   inquiry       into     the

voluntariness of Mr. Floyd's response.

       ¶33    The record does not indicate Deputy Ruffalo employed

any    misrepresentation,       deception,         or    trickery      in      seeking      Mr.

Floyd's      consent.      There      is    likewise       nothing       in    the    record

suggesting      Deputy      Ruffalo         used    any        threats        or     physical

intimidation of any type in seeking Mr. Floyd's consent.                              Deputy

Ruffalo was the only officer conducting the search, there is no

indication      Mr.    Floyd    was   handcuffed          or    that     Deputy       Ruffalo

threatened to use them, there is no suggestion Deputy Ruffalo

drew his weapon, and the traffic stop and search occurred during
daylight hours with pedestrian and vehicular traffic nearby.                                 As

to    the    remaining    factors      we    are    to     consider,          there    is    no

evidence regarding Mr. Floyd's physical or emotional condition

at    the    time.       Similarly,        there   is     nothing        in    the    record

indicating Deputy Ruffalo informed Mr. Floyd he could withhold




                                            20
                                                             No.   2015AP1294-CR



consent, but this factor is not sufficient, in and of itself, to

question the voluntariness of Mr. Floyd's consent.8

     ¶34    Under the totality of these circumstances, we conclude

the search was constitutionally sound because Mr. Floyd freely

and voluntarily consented to it.           Deputy Ruffalo discovered the

illegal drugs while conducting a lawful search, so there was no

reason to suppress that evidence.              Because we conclude Deputy

Ruffalo did not extend the traffic stop, we do not address the

State's alternative argument that Deputy Ruffalo had reasonable

suspicion     of   illegal   drug   activity    sufficient   to    support   an

extension.9

                   C.   Ineffective Assistance of Counsel

     ¶35    Mr. Floyd claims he received ineffective assistance of

counsel because his trial counsel failed to call Officer White

(the "cover" officer) as a witness at the suppression hearing.

According to Mr. Floyd, Officer White's testimony would have


     8
       Although this is a factor to consider, it is not a sine
qua non to the voluntariness of a subject's consent to a search.
See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
     9
       The dissent focuses on whether the circumstances of Mr.
Floyd's stop were sufficient to create reasonable suspicion of
criminal activity.   But there is no reason at all to address
this question unless Deputy Ruffalo extended the stop.       The
dissent says he did, and he did it by calling and waiting for a
cover squad to arrive. Dissent, ¶80. But the dissent misses a
critical part of the factual record.    The uncontradicted facts
show that the cover squad arrived while Deputy Ruffalo was still
filling out the citations. So it is impossible for this to have
extended the stop. Thus, the dissent lacks a raison d'être, and
so we do not address it further.


                                      21
                                                                              No.   2015AP1294-CR



revealed    that       Deputy      Ruffalo       did   not       ask    Mr.   Floyd        for    his

consent to the search, but rather that he advised Mr. Floyd he

was going to perform the search, thus rendering any consent

involuntary.          See Johnson, 299 Wis. 2d 675, ¶16 ("Acquiescence

to an unlawful assertion of police authority is not equivalent

to consent." (quoting State v. Wilson, 229 Wis. 2d 256, 269, 600

N.W.2d 14 (Ct. App. 1999))).

    ¶36        The     Sixth       Amendment10         guarantees          to       a    criminal

defendant "the effective assistance of counsel."                                Strickland v.

Washington, 466 U.S. 668, 686 (1984).                            We apply the two-prong

Strickland      test       when    assessing       a    claimed         violation        of      that

right.         See,    e.g.,       State    v.     Maday,        2017     WI 28,        ¶54,      374

Wis. 2d 164, 892 N.W.2d 611.                 A successful attack on counsel's

performance      requires         that     the    defendant            establish        both     that

trial counsel performed deficiently and that the deficiency was

prejudicial.          See State v. Pitsch, 124 Wis. 2d 628, 633, 369

N.W.2d 711 (1985); see also Strickland, 466 U.S. at 697.

    ¶37        The    first       prong    requires         us    to     compare        counsel's
performance      to        the    "wide    range       of    professionally             competent

assistance."          Strickland, 466 U.S. at 690.                      Only if his conduct

falls outside that objectively reasonable range will we find

deficient performance.               State v. Thiel, 2003 WI 111, ¶19, 264

Wis. 2d 571,         665    N.W.2d 305.           To   show       prejudice         (the    second

prong),    a    defendant         must    establish         "a    reasonable        probability


    10
          See U.S. Const. amend. VI; Wis. Const. art. I, § 7.


                                             22
                                                                    No.    2015AP1294-CR



that, but for counsel's unprofessional errors, the result of the

proceeding would have been different."                 Pitsch, 124 Wis. 2d at

642 (quoting Strickland, 466 U.S. at 694).                     If the defendant

fails to prove one element, it is unnecessary to address the

other.    Strickland, 466 U.S. at 697.

      ¶38    Although    trial    counsel     did   not      have    Officer       White

testify at the suppression hearing, he did offer the essence of

his story in his brief.             Counsel juxtaposed Deputy Ruffalo's

report that he asked Mr. Floyd if he would allow a search with

Officer     White's   report     that   Mr.   Floyd    was    told        he    would   be

searched:

      Deputy Ruffalo indicates he asked Mr. Floyd whether he
      had any weapons and if he could search Mr. Floyd for
      his (Deputy Ruffalo's) safety.         Deputy Ruffalo
      indicates that Mr. Floyd stated, "yeah, go ahead."
      City of Racine Police Officer White (the cover
      officer) reports something slightly different in
      regards to the search.     Officer White reports that
      after having Mr. Floyd exit the vehicle, Deputy
      Ruffalo told Mr. Floyd that before he could explain
      the citations he was going to pat down Mr. Floyd for
      weapons.   Officer White indicates that after being
      told he was going to be searched, Mr. Floyd stated
      something similar to "go ahead."
The   circuit    court   was     not    persuaded,     instead       finding       as   a

factual     matter    that   Deputy      Ruffalo      asked    for        Mr.    Floyd's

consent, and that Mr. Floyd consented.

      ¶39    At the postconviction hearing, Officer White reprised

the contents of his report and offered some related commentary.

He testified that, after arriving on the scene, he accompanied

Deputy Ruffalo to Mr. Floyd's vehicle where Deputy Ruffalo asked
Mr. Floyd to step outside.              He then explained that "[Deputy]

                                         23
                                                                       No.   2015AP1294-CR



Ruffalo, he -- he asked him if he could do an external pat down

for weapons and which he consented."                    When asked whether this

was consistent with the report's indication that Mr. Floyd had

been "advised"11 he would be searched, Officer White responded

that Deputy Ruffalo "said he was going to pat him -- asked him

to pat him down for weapons . . . .                 He asked him for the most

part."         He   could     not,   however,    remember        the   specific    words

Deputy      Ruffalo     used,    explaining      that   a    cover     officer    "can't

always hear what's exactly going on between the officer and who

they     are    making        contact   with"     because        the     cover   officer

generally       "kind    of    watch[es]    who's   driving        the    vehicle,    you

watch the passengers inside the vehicle."                    When asked whether he

recalled Mr. Floyd's response to Deputy Ruffalo, he testified it

was his recollection that Mr. Floyd said something along the

lines of "go ahead."

       ¶40     Trial    counsel      also   testified       at   the     postconviction

hearing.       He said he included information about Officer White's

incident report in the suppression motion but ultimately chose
not to call him as a witness because he was "happy as far as how

the evidence came out from the deputy, from Deputy Ruffalo, and

that he did not have a basis to continue his stop of Mr. Floyd."

       11
       The draft copy of Officer White's report in the Record
uses the word "advised" in reference to the pre-search exchange
between Deputy Ruffalo and Mr. Floyd; however, throughout his
briefing, Mr. Floyd states the report indicated Deputy Ruffalo
"told" Mr. Floyd he was going to perform a pat-down search. For
the purpose of this opinion, we use "advised" and "told"
interchangeably.


                                            24
                                                                No.   2015AP1294-CR



He was concerned Officer White's testimony would "potentially

giv[e] additional information that potentially damaged where I

thought I was."          Counsel further explained he thought he was

"doing pretty well" in terms of arguing Mr. Floyd could not

voluntarily consent because he was illegally seized at the time

Deputy Ruffalo requested consent.               Although counsel could not

recall whether he discussed the ultimate decision not to call

Officer White with Mr. Floyd, he indicated it would have been

his normal practice to do so.

    ¶41     At the conclusion of the hearing, the circuit court

acknowledged "some dichotomy from [Officer] White's [incident]

report . . . as to what it meant" in terms of Deputy Ruffalo's

exchange    with   Mr.    Floyd,   but     concluded   that    trial    counsel's

decision not to call Officer White was "his tactical approach;

it was a reasonable approach . . . ."                The circuit court also

acknowledged that "[w]e know now after Mr. White testified that

whatever    [trial    counsel]     thought,     [Officer]     White    would   have

corroborated [Deputy] Ruffalo's version to that extent."
    ¶42     Trial counsel's performance was not deficient.                 It was

the State's burden to prove Mr. Floyd freely and voluntarily

consented to a search.         We recognize that Officer White's report

created a potential ambiguity with Deputy Ruffalo's testimony,

something    Mr.     Floyd's     counsel      ably   (albeit    unsuccessfully)

exploited.     And calling Officer White to the stand may have

removed the potential ambiguity——but this was a task for the




                                         25
                                                                  No.   2015AP1294-CR



State, if anyone.       Mr. Floyd's counsel is not responsible for

clarifying the State's evidence.12               Indeed, had he done so, Mr.

Floyd might now be arguing his counsel was deficient because he

helped the State defeat his motion to suppress.                    We agree with

the circuit court that trial counsel's decision not to call

Officer   White   was   a    valid   tactical      choice   and    did    not   fall

outside "the wide range of professionally competent assistance."

See, e.g., State v. Felton, 110 Wis. 2d 485, 502, 329 N.W.2d 161

(1983) (explaining that where "tactical or strategic decisions"

are "based upon rationality founded on the facts and the law[,]"

counsel    will   not   be     deemed       to   have   provided        ineffective

assistance of counsel).          Therefore, Mr. Floyd did not suffer

ineffective assistance of counsel.

                               IV.    CONCLUSION

    ¶43     Deputy Ruffalo did not extend Mr. Floyd's traffic stop

because the request to perform a search of his person was part

of the stop's mission.          Mr. Floyd was lawfully seized at the

time of the request, and he provided his consent to the search
freely    and   voluntarily.         This    constitutionally-valid          search

revealed illegal drugs in Mr. Floyd's possession, so the circuit

court properly denied his motion to suppress.                 And because Mr.

    12
       The seeming ambiguity created by Officer White's report
favored Mr. Floyd's argument because it was the State's burden
to demonstrate free and voluntary consent.       If Mr. Floyd's
counsel had called Officer White to the stand, the seeming
ambiguity could have resolved against Mr. Floyd's position (as
it eventually did). Mr. Floyd's counsel was not responsible for
clarifying ambiguities that would assist the State's case.


                                        26
                                                            No.    2015AP1294-CR



Floyd's trial counsel did not perform deficiently with respect

to   Officer    White's   testimony,    Mr.    Floyd   did        not   receive

ineffective assistance of counsel. Accordingly, we affirm the

court of appeals.

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

affirmed.




                                   27
                                                           No.   2015AP1294-CR.awb




      ¶44    ANN WALSH BRADLEY, J.         (dissenting).           The court of

appeals acknowledged that the question of reasonable suspicion

here "is a very close call."           State v. Floyd, 2016 WI App 64,

¶16, 371 Wis. 2d 404, 885 N.W.2d 165.            I land on one side of the

line and the court of appeals' decision falls on the other.

      ¶45    Rather than focus on the "close call" of reasonable

suspicion, the majority avoids it entirely.               Instead, it focuses

primarily on the case specific fact of whether Floyd gave actual

consent to the search.             Majority op., ¶29 ("[W]hen a person

consents,      the        Fourth    Amendment      does      not      bar      the

search . . . .").

      ¶46    The majority concludes that the traffic stop was not

extended because Mr. Floyd freely and voluntarily consented to

the search.        Majority op., ¶34.      It then determines that there

is no need to consider whether there was reasonable suspicion

because it has already concluded that the traffic stop was not

extended.     Id.
      ¶47    Yet, the strictures of the Fourth Amendment remain.

If   the    stop    was   unlawfully   extended,    then    the     consent   was

likewise unlawful.

      ¶48    I write separately not merely because I disagree with

the court of appeals as to where the line should be drawn under

the facts of this case.            Rather, I write also to express my

concern that the majority opinion, in lockstep with this court's

jurisprudence, continues the erosion of the Fourth Amendment.
It   is    through    such   erosion   that     implicit    bias    and     racial

                                       1
                                                                     No.    2015AP1294-CR.awb


profiling    are    able       to    seep       through        cracks      in   the    Fourth

Amendment's protections.

    ¶49     Because I conclude that the traffic stop was extended

beyond what was reasonably necessary to complete its mission and

because I determine that there was no articulable reasonable

suspicion of additional illegal activity to otherwise justify

the extension, I respectfully dissent.

                                                I

    ¶50     The Fourth Amendment to the Unites States Constitution

provides that "[t]he right of the people to be secure in their

person,     houses,    papers,            and       effects,      against       unreasonable

searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause . . . ."                               As the United

States Supreme Court has observed, "[n]o 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."                                   Union
Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

    ¶51     Implicit      in    the       Fourth      Amendment's       protection          from

unreasonable       searches         and    seizures         is    its      recognition       of

personal liberty interests.                Ker v. State of Cal., 374 U.S. 23,

32 (1963).       Indeed, the Fourth Amendment "is to be liberally

construed and all owe the duty of vigilance for its effective

enforcement lest there shall be impairment of the rights for the

protection of which it was adopted."                        Id. at 33 (quotations and
citation omitted).

                                                2
                                                                    No.    2015AP1294-CR.awb


       ¶52    In     this    case,     we    address        the    Fourth       Amendment's

protection     against       unreasonable         searches        and    seizures      in    the

context of a traffic stop.                  "A routine traffic stop . . . is a

relatively brief encounter and 'is more analogous to a so-called

"Terry stop" . . . than to a formal arrest.'"                            Knowles v. Iowa,

525 U.S. 113, 117 (1998).

       ¶53    A Terry stop is a brief investigatory seizure of an

individual      based       on   an   officer's      reasonable          and    articulable

suspicion that criminal activity is afoot.                          Terry v. Ohio, 392

U.S. 1,      20-21    (1968).         Balancing      public       safety       and    personal

liberty, the Terry court required that an investigative stop be

based on "specific and articulable facts, which, taken together

with    rational       inferences        from       those     facts,          warrant       that

intrusion."         Id. at 21.

       ¶54    The     Terry      doctrine         sprouted        from    the        blatantly

suspicious behavior of two would-be jewelry thieves.                                 Id. at 5.

Over the course of an afternoon, the defendants in Terry took

turns walking past a jewelry store, peering inside, and then
returning to their original spot on a nearby street corner.                                 Id.

       ¶55    Based on this pattern of behavior and thirty years of

experience detecting thievery in the neighborhood, the police

officer in Terry suspected that the men were "casing" the store.

Id.    Believing that a "stick-up" was imminent and knowing that

"American criminals have a long tradition of armed violence,"

the officer seized and searched the men.                     Id.

       ¶56    Given     these     particularized        facts,          the    Terry     court
concluded that "where a police officer observes unusual conduct

                                              3
                                                                          No.    2015AP1294-CR.awb


which     leads      him        reasonably        to     conclude        in      light      of   his

experience that criminal activity may be afoot and that the

person       with   whom     he      is    dealing      may    be      armed     and       presently

dangerous . . . he is entitled for the protection of himself and

others        in     the        area       to     conduct          a     carefully           limited

search . . . ."            Id. at 30.           Under Terry, the inquiry focused on

the officer's "reasonable fear for his own or others' safety"

and allowed "a carefully limited search of the outer clothing of

such persons in an attempt to discover weapons which might be

used to assault him."                Id.

       ¶57     This court, in State v. McGill, 2000 WI 38, ¶21, 234

Wis. 2d 560,          609       N.W.2d 795,            explained         that        "Terry      does

not . . . authorize officers to conduct a protective frisk as a

part    of    every       investigative          encounter."            Accordingly,          "Terry

limits the protective frisk to situations in which the officer

is 'justified in believing that the individual whose suspicious

behavior       he    is     investigating          at     close        range     is    armed     and

presently dangerous to the officer or to others.'"                                    Id. (citing
Terry, 392 U.S. at 24).

       ¶58     In this case, we consider Terry in the context of a

traffic      stop.       When    a     traffic     stop    concludes            or    is    extended

beyond what is reasonably necessary to complete its mission,

continued seizure becomes unlawful.                           Illinois v. Caballes, 543

U.S. 405,          407     (2005);         Rodriguez          v.       United        States,      135

S. Ct. 1609, 1614–15 (2015).                    An officer may expand the scope of

the inquiry "only to investigate 'additional suspicious factors
[that] come to the officer's attention.'"                              State v. Hogan, 2015

                                                  4
                                                                      No.   2015AP1294-CR.awb


WI 76, ¶35, 364 Wis. 2d 167, 868 N.W.2d 124 (quoting State v.

Betow, 226 Wis. 2d 90, 94, 593 N.W.2d 499 (Ct. App. 1999)).

    ¶59     Like a Terry stop, the tolerable duration of police

inquiries    in    the   traffic        stop       context     is   determined        by    the

seizure's "mission," which is to address the traffic violation

that warranted the stop and attend to related safety concerns.

Rodriguez,    135    S. Ct.      at     1614.        On-scene       investigation          into

other unrelated crimes deviates from the mission of the stop.

Id. at 1616.        "So too do safety precautions taken in order to

facilitate such detours."              Id.

    ¶60 Indeed, even a de minimus extension that is not made in

furtherance of the mission of the traffic stop is an unlawful

extension.         Id.      As    the    Rodriguez          court     explained,       common

seizure techniques may unlawfully extend a stop when they are

employed for reasons beyond the scope of the original stop.                                Id.

    ¶61     Having set forth the law that is to guide our inquiry,

I turn now to the facts of this case.

                                              II
    ¶62      Deputy      Ruffalo        ran        Floyd's     license        plate    at    a

stoplight    and    discovered         that    the        vehicle's    registration         was

suspended    for    an   emissions           violation.         During        this    initial

contact,    the    deputy    asked      for        Floyd's    license       and   insurance

information.         Floyd       did    not        have     either,     but    provided      a

Wisconsin identification card.                 The deputy returned to his squad

car and asked dispatch if a canine unit or "cover squad" was

available while also processing citations for the registration,
license, and insurance violations.

                                              5
                                                  No.    2015AP1294-CR.awb


     ¶63   The dispatcher informed the officer that a canine unit

was not available, but that a patrol officer would arrive to

serve as a "cover squad."      When the second officer arrived at

the scene, the deputy explained that he wanted to have Floyd

exit the car because he "had some indications that there might

be some criminal activity going on in the vehicle as well as

explain the citations to him."

     ¶64   After the second officer arrived, the deputy returned

to Floyd's vehicle and asked him to get out of the car.               Floyd

complied and the deputy then asked him if he had any weapons.

Floyd stated that he did not have any weapons.          The deputy then

either asked for Floyd's consent to conduct a weapons pat down

or advised Floyd that he was going to conduct a weapons pat

down.1

     ¶65   According to the deputy's testimony at the suppression

hearing, he "assume[s] everybody has a weapon, everyone I come

in contact with."    He further testified that every time he asks

a driver to step out of the vehicle, the first thing he does is
ask if he can search them.

     ¶66   The   deputy   patted   Floyd   down   and    found    a    bag

containing a small amount of marijuana and 15 pills of Vicodin.

Floyd filed a motion to suppress this evidence, arguing that the



     1
       Officer White, the second officer at the scene, wrote in
his original report that Deputy Ruffalo "advised" Floyd that he
would conduct a weapons search.    He testified that his report
was accurate, but later testified that the deputy asked Floyd's
consent to conduct a search.


                                   6
                                                                      No.   2015AP1294-CR.awb


deputy     illegally        extended     the       stop   and       searched    his    person

without his voluntary consent.

      ¶67 At the suppression hearing, the deputy testified that

he   had       reasonable    suspicion      to     request      a    canine     unit    and   a

backup officer based on the following factors:

               Floyd was from Kenosha, WI;

               Floyd was alone in his vehicle;

               The time of day (6:45 p.m. during the summer);

               Floyd was stopped in a high crime area;

               Floyd's car had air fresheners in every vent; and

               The vehicle's windows were tinted.

Relying on these factors as a basis for reasonable suspicion,

the circuit court denied Floyd's motion to suppress.

                                            III

      ¶68       In applying the law to the above facts, I begin with

an examination of whether there was reasonable and articulable

suspicion as to whether criminal activity was afoot.                              I address

next whether the traffic stop was extended beyond the scope of
the mission.

      ¶69       I     quickly    dispatch      with       the   first       three      factors

proffered        as    support    for    reasonable         suspicion         because     they

border on the ridiculous.               If residing in Kenosha can serve as a

factor supporting reasonable suspicion that criminal activity is

afoot, then           lord help us (and Kenosha).                     Likewise, warnings

should issue to all of those who drive alone in their vehicle,

lest it serve as a basis for a traffic stop.                                   Finally, the



                                               7
                                                                No.    2015AP1294-CR.awb


assertion that the time of 6:45 p.m. during the summer can serve

as a factor for reasonable suspicion is bewildering.

       ¶70    At the outset the first three factors fail because

they are simply unpersuasive in fact.                      The next three factors

fail because they are also unpersuasive under the law.

       ¶71    It     is    well     established       that      "some      quantum     of

individualized        suspicion         is    usually      a   prerequisite      to     a

constitutional search or seizure."                   United States v. Martinez-

Fuerte, 428 U.S. 543, 560 (1976).                  Thus, "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.

       ¶72    This case raises concern regarding whether generic and

innocent      factors       may        support     reasonable       and    articulable

suspicion without the presence of particularized behaviors or

characteristics.           Take, for example, the fact that the deputy

stopped      Floyd    in    a   high     crime     area.       As   this    court     has
recognized, "many persons 'are forced to live in areas that have

"high crime" rates or they come to these areas to shop, work,

play, transact business, or visit relatives or friends.                               The

spectrum of legitimate human behavior occurs every day in so-

called high crime areas.'"                   State v. Morgan, 197 Wis. 2d 200,

212,    539    N.W.2d 887         (1995)      (quoting     People     v.   Bower,     597

P.2d 115, 119, (Cal. 1979)).

       ¶73    In   Illinois       v.    Wardlow,    the    Unites     States   Supreme
Court reasoned that "it was not merely respondent's presence in

                                              8
                                                                   No.   2015AP1294-CR.awb


an    area    of     heavy    narcotics          trafficking      that       aroused    the

officers' suspicion but his unprovoked flight upon noticing the

police."      528 U.S. 119, 124 (2000).                  It instructed that "[a]n

individual's presence in an area of expected criminal activity,

standing      alone,     is     not     enough      to     support       a    reasonable,

particularized suspicion that the person is committing a crime."

Id.     Importantly, the Wardlow court did not just consider the

generic      factor    of    the   location        of    the    stop,    but     also   the

defendant's individualized flight behavior supporting reasonable

suspicion.      Id.

      ¶74     Likewise, when considering the presence of "an unusual

number" of air fresheners in a vehicle, this court determined

that when "combined with other facts," this may raise suspicion

and justify further inquiry.             State v. Malone, 2004 WI 108, ¶36,

274 Wis. 2d 540, 683 N.W.2d 1.                     As in       Wardlow, however, the

other     facts       considered        by       the     Malone      court        involved

particularized conduct and circumstances.

      ¶75     When the defendants' vehicle in Malone was stopped for
speeding, the occupants appeared nervous and gave inconsistent

accounts of where they were going.                  Id., ¶¶36-39.            Additionally,

one occupant said that the group was en route to a rave party

and that he was on probation for drug charges.                           Id.; see also

Rodriguez,      135     S. Ct      at   1622-23         (noting    the       presence    of

individualized circumstances in addition to air fresheners, such

as driving onto the shoulder of the road, the nervousness of the

passenger,     and     the    passenger's        improbable       explanation      of   the
travel itinerary).

                                             9
                                                                    No.   2015AP1294-CR.awb


       ¶76        Finally, legally tinted windows ought not be a factor

when       considering         whether     the    totality    of    the     circumstances

support a finding of reasonable suspicion.                           See, e.g., United

States v. Diaz, 977 F.2d 163, 165 n.5 (5th Cir. 1992).                               Indeed,

tinted windows are the epitome of a generic and innocent factor.

As   the      court       of     appeals      acknowledged    here,       "a   significant

portion of the population purchases vehicles with tinted windows

for completely lawful reasons, including a desire to protect the

interior of the vehicle from the sun and for greater privacy of

innocent occupants."               Floyd, 371 Wis. 2d 404, ¶16 n.3.                  Although

it may have been a relevant factor before tinted windows became

commonplace, it no longer is today.2

       ¶77        Equally important to the factors that were present in

this       case    (a     high     crime      area,   air   fresheners,        and    tinted

windows) are the factors that were absent.                        There is no evidence

in the record that Floyd exhibited any particularized behaviors

that       factored       into    the    totality     of    the    circumstances       here.

Unlike in Wardlow and Malone, there is no testimony of flight or
that       Floyd    was    nervous       or   evasive.       Indeed,      Deputy     Ruffalo

       2
       In writing this footnote, I observe the ten vehicles
parked outside the State Capitol Building beneath my chamber's
window.   They include a Volvo, Mercedes, Plymouth, Chrysler,
Ford, Nissan, Hyundai, Lexus, Kia and Chevrolet.    All of the
vehicles, save the Nissan, have noticeably tinted windows.
Indeed, all of the vehicles belong to elected public officials
or their staff. Once upon a time, tinted windows may have been
a useful factor to establish reasonable suspicion that criminal
activity was afoot.     Because of the omnipresence of legally
tinted windows, that time has long since passed.    For further
details regarding what constitutes an illegally tinted window,
see Wis. Admin. Code Trans. 305.32 and 305.34.


                                                 10
                                                                         No.     2015AP1294-CR.awb


testified at the suppression hearing that Floyd was compliant

and cooperative with his orders and that Floyd made no furtive

movements at any point during the initial portion of the stop.

       ¶78    Ultimately,         I   part     ways      with     the    court         of   appeals

because all of the factors relied upon by the deputy are either

baseless or are generic and innocent factors.                               Additionally, the

record in this case is devoid of any particularized conduct or

circumstances        that       would    support         reasonable          and       articulable

suspicion that criminal activity is afoot.

       ¶79    Absent such reasonable and articulable suspicion, the

extension of the stop was unlawful.                       Pursuant to Rodriguez, "the

tolerable       duration     of       police    inquiries         in     the       traffic     stop

context is determined by the seizure's 'mission,'" which is to

address the traffic violation that warranted the stop and attend

to    related    safety      concerns.             135    S. Ct.       at      1614.        Neither

calling dispatch for a canine unit nor calling and waiting for

backup was done in furtherance of the mission of the stop.                                     This

began   the     stop's      extension        and    set     the    stage         for     the   later
chronological delays of the exit order and request for consent

to search.

       ¶80    Even     a   de    minimus       extension          that      is     not      made   in

furtherance of the mission of the traffic stop is an unlawful

extension.       Id.       Not only was involving a second officer beyond

the   scope     of   the     traffic      stop,       but    the    deputy         specifically

testified that he did not want to order Floyd out of his vehicle

or request consent to search until after the "cover squad" had
arrived.      See id. (explaining that an investigation into other

                                               11
                                                                           No.    2015AP1294-CR.awb


crimes   deviates            from    the       mission    of    the    stop,       as   do   safety

precautions taken in order to facilitate such detours).                                      By the

time   that       the       deputy    ordered       Floyd      out    of     his    vehicle     and

reportedly requested consent to search, the scope of the stop

had been extended beyond its original mission——to issue Floyd a

citation      for       a    suspended          registration         due    to     an   emissions

violation.

       ¶81    Contrary to the majority, I do not address the issue

of whether Floyd voluntarily consented to the search.                                    In fact,

the majority's reliance on consent is misplaced.                                  "Consent, even

when voluntary, is not valid when obtained through exploitation

of an illegal action by the police."                             Hogan, 364 Wis. 2d 167,

¶57.     When       consent          to    search        is    obtained      after      a    Fourth

Amendment violation, evidence seized as a result of that search

"must be suppressed as 'fruit of the poisonous tree' unless the

State can show a sufficient break in the causal chain between

the illegality and the seizure of evidence."                                      Id.   (citation

omitted).      The State has made no such showing here.
       ¶82    In sum, I conclude that the traffic stop was extended

beyond what was reasonably necessary to complete its mission.

Further,      I     determine             that     there       was     no        reasonable     and

articulable         suspicion             of     additional          illegal       activity      to

otherwise justify the extension.

                                                  IV

       ¶83    I turn now to address my concerns about the erosion of

the Fourth Amendment that may give rise to implicit bias and
racial profiling.

                                                  12
                                                                No.   2015AP1294-CR.awb


                                             A

    ¶84       We've come a long way since Terry v. Ohio, but we're

headed in the wrong direction.                   Originally intended to prevent

crime   and    protect        officers   through       investigatory        stops   and

protective frisks based on reasonable and articulable suspicion,

Terry's   legacy      is      becoming   a       progression    of    thinly   veiled

refusals to meaningfully check the exercise of police power.

    ¶85       The continual dilution of Terry has led this court far

astray from individualized suspicion.                     The individualized facts

in Terry stand in stark contrast to the generic and innocent

factors     present      in    this   case.          In     Terry,    the   blatantly

suspicious behavior of two would-be jewelry thieves supported

reasonable suspicion after they spent an afternoon taking turns

walking past a jewelry store and peering inside.                            Here, the

traffic stop extension was justified not on the basis of any

particularized behavior, but on factors that might be present in

any case.

    ¶86       Although     this    court     routinely       pays     homage   to   the
importance of Fourth Amendment protections, it appears often to

be only lip service.            See, e.g., State v. Dumstrey, 2016 WI 3,

¶22, 366 Wis. 2d 64, 873 N.W.2d 502 ("[I]t is axiomatic that the

physical entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed.") (quotations and

citations omitted); State v. Kozel, 2017 WI 3, ¶40 ("Virtually

any intrusion[n] into the human body will work an invasion of

cherished personal security that is subject to constitutional
scrutiny.") (quotations and citations omitted).

                                           13
                                                No.   2015AP1294-CR.awb


     ¶87   In the last two terms, this court is batting nearly

zero when it comes to upholding Fourth Amendment challenges in

criminal cases.    Even if the challenge initially meets with

success, it ultimately loses because of an asserted subsequent

consent,   or   community   caretaker   exception     or   inevitable

discovery rule, or whatever.3



     3
       Fourth Amendment challenges in criminal cases include:
State v. Howes, 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812 (a
warrantless blood draw was constitutional under the exigent
circumstances exception); State v. Kozel, 2017 WI 3, 373
Wis. 2d 1, 889 N.W.2d 423 (a warrantless blood draw was lawful
because the EMT who drew the blood was acting under a
physician's direction, the blood was drawn in a constitutionally
reasonable manner, and the defendant did not object to the blood
draw); State v. Weber, 2016 WI 96, 372 Wis. 2d 202, 887
N.W.2d 554 (an officer's entry into the defendant's garage was
constitutionally reasonable under the hot pursuit exception);
State v. Jackson, 2016 WI 56, 369 Wis. 2d 673, 882 N.W.2d 422
(the inevitable discovery doctrine applied because those
portions of the warrant affidavit that were not tainted
established constitutionally sufficient probable cause to search
the residence); State v. Parisi, 2016 WI 10, 367 Wis. 2d 1, 875
N.W.2d 619 (a warrantless blood draw was constitutional under
the exigent circumstances exception); State v. Matalonis, 2016
WI 7, 366 Wis. 2d 443, 875 N.W.2d 567 (a warrantless search of a
home was constitutional pursuant to the community caretaker
exception); State v. Dumstrey, 2016 WI 3, 366 Wis. 2d 64, 873
N.W.2d 502 (the locked parking garage underneath the defendant's
building   was  not   curtilage  and   therefore  the   officer's
warrantless entry before the seizure did not occur in a
constitutionally protected area); State v. Iverson, 2015 WI 101,
365 Wis. 2d 302, 871 N.W.2d 661 (an officer may constitutionally
conduct a traffic stop for non-traffic civil forfeitures that do
not constitute crimes); but see State v. Blackman 2017 WI __, __
Wis. 2d __, __ N.W.2d __ (declining to apply the good faith
exception to the exclusionary rule).    For a more comprehensive
history of this court's Fourth Amendment decisions, see
http://www.scowstats.com/2015/06/22/how-effective-are-fourth-
amendment-arguments-in-the-wisconsin-supreme-court/.


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                                                                    No.   2015AP1294-CR.awb


       ¶88     The Fourth Amendment's protections, particularly its

warrant requirement, are not some left over relics of the 18th

century.          Rather, they are as vital today as when they were

created.       Yet, I have concerns that the Fourth Amendment's right

of freedom from warrantless search and seizures has become a

second class right, or worse, meaningless prose.

       ¶89     The Fourth Amendment is intended to provide a check on

the unbridled exercise of police power.                       It grew out of a demand

that search and seizure powers be restrained.                             The amendment

presents a reasonable yet delicate balance between the exercise

of    police      power     against      the    exercise       of   personal      liberty.

Courts      are     imbued     with    the     responsibility        to    oversee    this

balance and to provide this check——not a blank check.

                                               B

       ¶90     Having addressed the erosion of the Fourth Amendment

and the dilution of the Terry doctrine, I turn to the concern

that this trajectory may be allowing implicit bias and racial

profiling      to    seep      through    cracks       in   the     Fourth    Amendment's
protections.          Indeed, amicus in this case advances that                        the

requirement          that      reasonable           suspicion       be    supported     by

individualized, particularized circumstances discourages the use

of generic and innocent factors.                     It contends that such factors

perpetuate and magnify the effects of implicit racial bias.4                            As

one commentator explained, Terry's focus on individualized facts

can    be    viewed       as    a     "commitment       and     promise      to   minority

       4
       The Office of the Wisconsin State Public Defender filed a
helpful amicus brief.


                                               15
                                                                 No.   2015AP1294-CR.awb


communities        around    the    nation         that    the   Supreme     Court   was

seriously concerned about police practices which rode roughshod

over individual rights."                Gregory Howard Williams, The Supreme

Court and Broken Promises:              The Gradual but Continual Erosion of

Terry v. Ohio, 34 Howard L. J. 567, 576 (1991).

      ¶91    In his concurring opinion in the court of appeals,

Judge Reilly also raised the concern that the trajectory of our

Fourth      Amendment       jurisprudence           "has    tacitly     accepted     the

profiling     of    suspects       in   the    application       of    our   reasonable

suspicion test."            Floyd, 371 Wis. 2d 404, ¶29-30 (Reilly, J.,

concurring).       He provided the following example:

      Applying   the   Floyd    facts   to   the   'objectively
      reasonable suspicion' test dictates that a white,
      suburban, soccer mom from Kenosha, driving alone at
      6:45 p.m. in the month of July near the S.C. Johnson
      plant   in  Racine,    Wisconsin,    with  multiple   air
      fresheners (perhaps to mask the smell of old happy
      meals, spilled milk, and soiled athletic gear), and
      tinted windows (to protect the privacy of her
      children) evidences reasonable suspicion that she is
      involved    in    drug-related      criminal    activity.
      Substitute young, black male for soccer mom in this
      hypothetical and we have the facts of this case.
Id.   He further cautioned that:

      The issue is whether we as a judicial system have
      tacitly accepted, condoned, and blessed the profiling
      of our citizens by taking age and color of skin into
      the 'objectively reasonable suspicion test' in order
      to combat crime. An effective judicial system must be
      true to its ideals; ideals which rest upon the
      constitutional    protection   against    unreasonable
      government searches and seizures regardless of age or
      skin color.
Id.   I share Judge Reilly's concern and join in his caution.




                                              16
                                                          No.   2015AP1294-CR.awb


    ¶92    For      the   reasons   set       forth   above,    I   respectfully

dissent.

    ¶93    I   am    authorized     to    state   that   Justice     SHIRLEY   S.

ABRAHAMSON joins this dissent.




                                         17
    No.   2015AP1294-CR.awb




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