                                                                         2018 WI 2

                  SUPREME COURT              OF    WISCONSIN
CASE NO.:               2015AP756-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent-Petitioner,
                             v.
                        Frederick S. Smith,
                                  Defendant-Appellant.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 372 Wis. 2d 184, 888 N.W.2d 22
                                       (2016 – Unpublished)

OPINION FILED:          January 9, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 5, 2017

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               Stephen E. Ehlke

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


ATTORNEYS:


       For the plaintiff-respondent-petitioner there were briefs
by Tiffany M. Winter, assistant attorney general, with whom on
the briefs were Brad D. Schimel, attorney general, and Lisa E.F.
Kumfer, assistant attorney general.               There was an oral argument
by Tiffany M. Winter.


       For      the    defendant-appellant   there    was   a    brief    and   oral
argument        by     Christopher   D.   Sobic,     assistant     state    public
defender.
                                                                                2018 WI 2
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.    2015AP756-CR
(L.C. No.        2014CF667)

STATE OF WISCONSIN                                  :            IN SUPREME COURT

State of Wisconsin,

                 Plaintiff-Respondent-Petitioner,                          FILED
       v.                                                              JAN 9, 2018
Frederick S. Smith,                                                      Diane M. Fremgen
                                                                      Clerk of Supreme Court
                 Defendant-Appellant.




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



       ¶1        REBECCA GRASSL BRADLEY, J.              We are asked to decide

whether          the   police    violated     Frederick        S.     Smith's       Fourth

Amendment rights when a police officer asked for his driver's
license during a traffic stop even though reasonable suspicion

for the stop dissipated as the officer approached the car, or

when the police officer opened the passenger door after being

told       the    driver's    door   and   window   were     broken.         The    Fourth

Amendment protects "against unreasonable searches and seizures,"1


       1
       The Fourth Amendment to the United States Constitution
provides:

                                                                            (continued)
                                                                 No.     2015AP756-CR



and our analysis focuses on what is reasonable in light of the

particular circumstances.              See Terry v. Ohio, 392 U.S. 1, 21

(1968); see also Elkins v. United States, 364 U.S. 206, 222

(1960)("What the Constitution forbids is not all searches and

seizures, but unreasonable searches and seizures.").

    ¶2      We hold that when an officer conducts a valid traffic

stop, part of that stop includes checking identification, even

if the reasonable suspicion that formed the basis for the stop

in the first place has dissipated.                     See Rodriguez v. United

States,    135   S.   Ct.      1609,    1615    (2015)    ("Beyond     determining

whether to issue a traffic ticket, an officer's mission includes

'ordinary inquiries incident to [the traffic] stop.'" (citing

Illinois   v.    Caballes,      543    U.S.     405,    408   (2005));    State   v.

Williams, 2002 WI App 306, ¶1, 258 Wis. 2d 395, 655 N.W.2d 462

("We conclude the officer had the requisite reasonable suspicion


    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,   §   11   of     the   Wisconsin    Constitution      likewise
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
    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.


                                            2
                                                                       No.   2015AP756-CR



to stop Williams's vehicle to determine if he was the suspect in

a domestic abuse incident.                   We also conclude that, because the

initial detention was lawful, the officer could properly ask

Williams his name and for identification even if she had already

decided      he    was     not    the   suspect.").       Asking       for   a   driver's

license does not impermissibly extend a stop because it is part

of   the     original      mission      of    the   traffic    stop.     However,    the

"ordinary inquiries," which are related in scope to the purpose

of a traffic stop, must be executed within the time it should

have reasonably taken to complete them.                        Rodriguez, 135 S. Ct.

at 1614.

       ¶3        We further hold the police officer's act of opening

the passenger door in order to effectively communicate with a

driver otherwise inaccessible due to the malfunctioning driver's

door       and    window    did    not       constitute   an    unreasonable      search

because the officer's actions, viewed objectively, would warrant

a person of reasonable caution to believe the action taken was

appropriate.          See Terry, 392 U.S. at 21-22.                    Because Smith's
stop was reasonably executed, we hold that no Fourth Amendment

violation occurred.              The circuit court2 correctly denied Smith's

suppression motion.               Accordingly, the decision of the court of

appeals3 is reversed and Smith's judgment of conviction stands.


       2
       The Honorable Stephen E. Ehlke, Dane County Circuit Court,
presiding.
       3
       State v. Smith,   No. 2015AP756-CR, unpublished slip op.,
¶1, (Wis. Ct. App. Sept. 29, 2016) (per curiam).


                                                3
                                                                          No.       2015AP756-CR



                                       I.    BACKGROUND

       ¶4         On   April    6,    2014,    Madison      Police       Sergeant      Bernard

Gonzalez's duties included monitoring a Madison neighborhood for

gang       retaliation       following       what    police    believed        to    be   gang-

related shots fired the previous night.                           At about 10:45 p.m.,

Gonzalez, while parked in the watch area, observed a car with

dark tinted windows drive by and stop in the middle of the

street for 10 to 15 seconds.4                       This drew Gonzalez's attention

"because [the car] did not pull to the curb.                            It stopped in the

middle of the street."5               Then, a passenger got out of the car and

walked to apartment buildings, after which the car drove away.

Gonzalez          followed     the    car,    checked       the    license      plate,      and

learned          the   registered      owner,       Amber   Smith,       had    a    suspended

driver's license.              Gonzalez activated the squad's lights to get

the car to pull over.                The car did not pull over right away, but

proceeded to turn off the main street and turn again into a

parking lot before finally pulling into a parking space                                     and

stopping.          When Gonzalez was five-to-ten feet from the driver's
door,       he    "was   pretty      sure"    the     driver      was    not    Amber     Smith

because the driver appeared to be a man.                                When the sergeant

       4
       The record indicates that at the preliminary hearing, held
ten days after the stop, the sergeant testified Smith's car
stopped in the middle of the road "[f]or about three minutes."
At the suppression hearing, four months later, the testimony
described the time as 10 to 15 seconds.     This discrepancy does
not affect our analysis.
       5
       The facts are presented in chronological order; all quoted
testimony comes from the suppression hearing.


                                                4
                                                                 No.    2015AP756-CR



asked6 the driver, later identified as Frederick Smith, to open

the door or roll down the window, Smith shrugged his shoulders

and responded that both the door and window were broken.                          As is

his   typical    practice    in   a   traffic      stop   with    an   inoperable

driver's side door and window, Gonzalez walked to the passenger

side of the car to speak "more effectively" with Smith.                           Smith

appeared to be cooperating and moving toward the passenger seat,

either activating the lock or reaching for the passenger door

handle.    Gonzalez did not ask Smith to open the passenger side

door or window; rather, the sergeant put his hand on the door

handle,    and   testified    that    "together      we    opened      the    door."

"[Smith] reached over and worked the door handle."                       Gonzalez,

believing Smith was cooperating by moving toward the passenger

seat and trying to open the passenger door, testified that they

"simultaneously . . . opened the door."7

      ¶5    Smith   admitted      that       he   "was    maneuvering        to     the

passenger seat" after telling Gonzalez the driver's door and

      6
       The record is unclear as to whether Gonzalez simply
motioned for Smith to roll down the window and open the door or
verbally asked Smith to do so. This uncertainty does not impact
our analysis.
      7
       The circuit court initially noted:   "So whether Sergeant
Gonzalez first started to open the door or whether they opened
it simultaneously, either way I conclude that under the Fourth
Amendment reasonableness standards that it was a reasonable
thing to do."   When Smith's lawyer asked the circuit court to
find "Gonzalez was the one that opened the door," the circuit
court found that "the sergeant went to open the door and began
to open the door."     In doing so, the circuit court did not
impugn the credibility of Gonzalez's testimony.


                                         5
                                                                     No.     2015AP756-CR



window were broken.           Smith explained that "every day I use the

car, I pull on the handle to get out because the driver's side

don't open."      Smith also said he stopped in that parking lot

because he lived in a building next to it.

      ¶6     With the door open, Gonzalez observed that Smith had

red, bloodshot eyes, and smelled of alcohol.                             When Gonzalez

asked Smith for his driver's license, Smith responded that his

license    had   been    revoked.         After     conducting       field     sobriety

tests,     Gonzalez     arrested    Smith     and    took     him    to     the    police

station where Smith refused to voluntarily give a blood sample.

Gonzalez     obtained     a     warrant    and      transported      Smith        to   the

hospital for the evidentiary blood test.                    Afterwards, Gonzalez

drove Smith to the Dane County Jail where he agreed to provide a

breath sample pursuant to the jail admitting procedures.                               The

breath test showed Smith's blood alcohol to be .38.                          The State

charged Smith with operating a motor vehicle under the influence

of an intoxicant, seventh offense.

      ¶7     Smith moved to suppress all evidence acquired from the
traffic stop, arguing that when Gonzalez saw a man (rather than

a woman) driving the car, reasonable suspicion dissolved, and

the   stop    should     have    immediately        ceased.         He     also    argued

Gonzalez     violated     the    Fourth     Amendment       when     he     opened     the

passenger door without any lawful basis to do so.                            The trial

court denied Smith's motion and he pled guilty to operating a




                                          6
                                                                   No.     2015AP756-CR



motor vehicle under the influence, seventh offense, contrary to

Wis. Stat. §§ 346.63(1)(a) and 939.62(1)(b) (2015-16).8

     ¶8    Smith     did     not    file       a   postconviction        motion    but

appealed to the court of appeals, arguing that all evidence

should be suppressed and his judgment should be vacated because:

(1) once Gonzalez saw a man (instead of a woman) behind the

wheel,    reasonable       suspicion    for        the   initially       lawful   stop

evaporated, and the sergeant's failure to immediately release

Smith improperly extended the duration of the seizure; and (2)

the sergeant conducted an unlawful search in violation of the

Fourth Amendment by opening the passenger door without consent

or probable cause.         The court of appeals declined to decide the

case on the merits; instead, it determined the State's response

to Smith's arguments on appeal were too cursory to warrant a

review on the merits.              The court of appeals vacated Smith's

conviction and remanded the case to the circuit court ordering

it to grant Smith's suppression motion; it sua sponte ordered

that Smith be allowed to withdraw his plea.                   State v. Smith, No.
2015AP756-CR, unpublished slip op., ¶1 (Wis. Ct. App. Sept. 29,

2016) (per curiam).        We granted the State's petition for review.

               II.   STANDARD OF REVIEW & APPLICABLE LAW

     ¶9    A    suppression          issue         presents    a     question       of

constitutional fact.         See State v. Floyd, 2017 WI 78, ¶11, 377

Wis. 2d 394, 898 N.W.2d 560.               "We review the circuit court's

     8
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                           7
                                                                          No.    2015AP756-CR



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. (internal citations omitted).

     ¶10       The reasonableness of a traffic stop involves a two-

part inquiry:          first, whether the initial seizure was justified

and, second, whether subsequent police conduct "was reasonably

related       in    scope    to   the    circumstances            that    justified"         the

initial interference.             See Terry, 392 U.S. at 19-20; see United

States v. Sharpe, 470 U.S. 675, 682 (1985).                              The mission of a

traffic stop includes "determining whether to issue a traffic

ticket"       and    the    ordinary      inquiries         incident       to    the    stop.

Rodriguez, 135 S. Ct. at 1615.                     As long as the initial stop was

lawful, requesting identification is a permissible part of the

dual mission of every traffic stop.                    Id.       The ordinary inquiries

portion of the traffic stop's mission includes "checking the

driver's       license,      determining        whether      there       are    outstanding

warrants      against       the   driver,      and    inspecting         the    automobile's
registration and proof of insurance."9                     Id.

     9
       The United States Supreme Court in Rodriguez v. United
States, 135 S. Ct. 1609 (2015), distinguished between inquiries
that are related to a traffic stop and those that are unrelated.
It concluded that asking for identification is an ordinary
inquiry that is related to the purpose of a lawful stop as part
of its dual mission and the stop "may last no longer than is
necessary to effectuate that purpose."         Id. at 1614-15.
Unrelated inquiries, such as a dog sniff, occurring after the
dual mission has been completed, violate the Fourth Amendment
unless supported by additional reasonable suspicion or probable
cause. Id. at 1612-14.


                                               8
                                                                    No.   2015AP756-CR



                                   III.    DISCUSSION

                      A.   Initial Stop and Ordinary Inquiries

       ¶11       Smith insists the circuit court should have suppressed

the evidence that led to his seventh drunk-driving conviction

because         the   officer   unlawfully       extended   the   duration   of   the

seizure         by    continuing    to     question    Smith      after   reasonable

suspicion dematerialized.                 The State contends that because a

traffic stop's mission includes the ordinary inquiries, such as

checking a driver's license, an officer who lawfully stops a

vehicle should be able to complete that mission even if the

reason for the traffic stop ended during the officer's walk to

the stopped vehicle.10           The State is correct.

       ¶12       The United States Supreme Court recently reaffirmed

that        a    police     officer's      "ordinary    inquiries,"       reasonably

executed during a lawful traffic stop—including "checking the

driver's license"—do not violate the Fourth Amendment because

these "routine measures" are "fairly characterized as part of

the officer's traffic mission."                  See Rodriguez, 135 S. Ct. at
1615.       "Because the Fourth Amendment and Article I, § 11 provide

       10
       We note, however, that other facts of record in this case
support ongoing reasonable suspicion that did not dissipate
during this traffic stop and therefore provide further basis for
upholding Smith's conviction. For example, Gonzalez could have
issued a ticket to Smith under Wis. Stat. § 346.51 for stopping
his car "upon the roadway."      Nonetheless, because this case
comes to us for a decision on whether an officer may continue
with   the   ordinary   inquiries   when   reasonable  suspicion
dissipates, our analysis focuses on that question.      For the
purposes of our analysis, we assume without deciding that
reasonable suspicion had dissipated.


                                             9
                                                                No.     2015AP756-CR



substantively       identical      protections,       we   have       historically

interpreted       this   section    of    the    Wisconsin     Constitution      in

accordance with United States Supreme Court interpretations of

the Fourth Amendment."           State v. Asboth, 2017 WI 76, ¶11, 376

Wis. 2d 644,       898   N.W.2d 541.          Thus,   we   apply      Rodriguez's

interpretation of the Fourth Amendment.

      ¶13   There is no dispute that the initial seizure of Smith

(the traffic stop) was justified.11              Gonzalez had a legal basis

to   stop   the    car   Smith   was     driving.     Specifically,       Gonzalez

observed the driver of the car engage in suspicious activity in

an   area   being    watched     for   gang     retaliation;    these     concerns

prompted Gonzalez to run the license plate, which in turn came

back registered to an owner who could not be legally driving.

These facts provide reasonable suspicion sufficient to conduct a

traffic stop.       See State v. Newer, 2007 WI App 236, ¶¶5, 7, 306

Wis. 2d 193, 742 N.W.2d 923 (reasonable suspicion exists to stop

a vehicle if an officer has knowledge the owner of the vehicle

has an invalid license); see also Floyd, 377 Wis. 2d 394, ¶20
("Reasonable suspicion that a driver is violating a traffic law

is sufficient to initiate a traffic stop.").                 Thus, part one of

the two-part test we apply to determine whether a traffic stop

was reasonable is satisfied.           See Terry, 391 U.S. at 19-20.



      11
       As   this   court  acknowledged  recently,  "It   is  an
unremarkable truism that a traffic stop is a seizure within the
meaning of our Constitutions." State v. Floyd, 2017 WI 78, ¶20,
377 Wis. 2d 394, 898 N.W.2d 560.


                                         10
                                                                     No.    2015AP756-CR



      ¶14    We     turn     our       attention    to     part       two     of    the

reasonableness        test——whether       subsequent      police       conduct     "was

reasonably related in scope to the circumstances that justified"

the   initial      interference.          After    Sergeant     Gonzalez       stopped

Smith, he approached the driver's door.                  Moments before reaching

the door, Gonzalez was "pretty sure" the driver was a man and

not Amber Smith, the woman identified as the registered owner,

who could not legally drive her car because her license had been

suspended.        The State conceded that the reasonable suspicion

underpinning the traffic stop dissipated at that moment.

      ¶15    But in these particular circumstances, does the Fourth

Amendment require a police officer to freeze, do an about-face,

and   walk    away?        Such    a   reaction    is    neither      practical     nor

required.12       According to the Supreme Court, the Fourth Amendment

does not compel such an about-face because the mission of any

lawful traffic stop includes routine measures like checking a

driver's     license.       See    Rodriguez,      135    S.   Ct.    at    1615   (the

      12
       Justice Kelly asserts an officer can speak with the
driver under these circumstances, but only to "inform him he was
free to leave."    Justice Daniel Kelly's dissent, ¶33.     But,
under Justice Kelly's analysis, any further contact with the
driver is not permitted under the Fourth Amendment because the
officer cannot continue the seizure past the moment reasonable
suspicion dissipates.   Justice Kelly can't have it both ways.
The idiocracy of having to waive a driver off who has been
legally seized without any explanation is another reason why the
ordinary inquiries do not violate the Fourth Amendment.      The
officer must be able to complete the traffic stop by speaking
with the driver, documenting a name for the officer's reporting
requirements, and providing the stopped driver with the courtesy
of an explanation for the seizure.


                                          11
                                                                          No.     2015AP756-CR



mission      of    a     lawful    traffic    stop    includes         both     "determining

whether to issue a traffic ticket" and conducting the ordinary

inquiries).

       ¶16    Before           applying      Rodriguez          to      the       particular

circumstances in Smith's case, we first examine the conditions

surrounding the Supreme Court's holding in Rodriguez.                                  In its

2014-15 term, the Supreme Court had before it petitions for

certiorari         in    two     related    cases:        (1)    Rodriguez        v.    United

States, 135 S. Ct. 1609 (2015), where the Eighth Circuit Court

of   Appeals       upheld        Dennys    Rodriguez's     drug       conviction       arising

from drugs discovered by a narcotics dog after all the business

related to a traffic stop had been completed; and (2) People v.

Cummings,         2014    IL     115769,    ¶¶1-2,    6   N.E.3d        725     (hereinafter

Cummings      I),        where    the     Illinois    Supreme         Court     granted    the

defendant's motion to suppress evidence police discovered during

a traffic stop.             In Cummings I, an outstanding warrant for the

registered owner of the vehicle, who was a woman, generated

reasonable suspicion for the traffic stop.                        Cummings I, 6 N.E.3d
725,    ¶5.         As    the     officer     approached        the    stopped        vehicle,

however, the officer saw the driver was a man, not a woman.

Id.,    ¶7.         All    three     levels     of   Illinois         courts     held     that

suppression was appropriate because reasonable suspicion for the

lawful stop disappeared when the officer saw a man (not a woman)

behind the wheel.              Id., ¶¶8-9.      The Illinois Supreme Court held

that    by    asking       the     driver     for    identification,            the    officer

"impermissibly extended the stop."                   Id., ¶26.


                                              12
                                                                      No.     2015AP756-CR



    ¶17      Rodriguez and Cummings are both Fourth Amendment cases

involving traffic stops where defendants sought suppression of

evidence based on arguments that police unlawfully extended the

stop.   Six days after the Supreme Court decided Rodriguez, it

vacated the judgment in Cummings I, and "remanded to the Supreme

Court   of    Illinois     for    further       consideration         in      light       of"

Rodriguez.      See Illinois v. Cummings, 135 S. Ct. 1892 (Mem)

(Apr. 27, 2015).

    ¶18      On remand, the Illinois Supreme Court set forth the

Supreme Court's conclusions in Rodriguez:

       A dog sniff that prolongs a stop in an attempt to detect

        evidence    of    wrongdoing       is    "not    part    of    the        officer's

        'mission' for the stop."

       "The Court defined the mission of the stop as 'to address

        the traffic violation that warranted the stop' and to

        'attend to related safety concerns.'"

       The mission's safety concerns permit officers to make

        "ordinary inquiries incident to [the traffic stop]."
       "Typically such inquiries involve checking the driver's

        license,     determining          whether        there   are         outstanding

        warrants        against     the        driver,     and    inspecting              the

        automobile's registration and proof of insurance."

       Actions outside the mission of the stop that "measurably

        extend    the    duration    of    the     stop"    "cause          the    stop    to

        become unlawful" unless reasonable suspicion supports the

        extension.


                                          13
                                                                      No.     2015AP756-CR



           The Court drew a bright line against extending a stop

            "with inquiries outside the mission of a traffic stop"

            absent reasonable suspicion for the outside inquiries.

           The Court precisely defined what inquiries are part of

            the    traffic     stop   and   what    inquiries     fall      outside    the

            mission of a traffic stop.

See Cummings, 2016 IL 115769, ¶7, 46 N.E.3d 248 (hereinafter

Cummings II) (citations omitted).                    Based on the directives of

Rodriguez,         the   Illinois     Supreme       Court   reversed        its   earlier

determination that the stop in Cummings I violated the Fourth

Amendment.         Id., ¶13.      Instead, it ruled a police officer may

lawfully        check     a    driver's     license      even     though      reasonable

suspicion for the stop ended when the officer saw a man (not a

woman) behind the wheel.              Id.     The Illinois Supreme Court held

this did not render the seizure unreasonable because Rodriguez

recognized the purpose of a traffic stop includes the "ordinary

inquiries" of checking a driver's license.                      Id.   In other words,

when a traffic stop is lawful at its inception, a police officer
may complete the ordinary inquiries even if reasonable suspicion

"vanished upon seeing the defendant" because the purpose of the

stop       is     not    concluded    until      the     ordinary       inquiries      are

completed.         Id., ¶18.      "Such ordinary inquiries are part of the

stop's mission and do not prolong the stop, for fourth amendment

purposes."         Id.

       ¶19      When     the   Supreme      Court      vacated    the       judgment    in

Cummings I and remanded the case to the Illinois Supreme Court
for further consideration in light of Rodriguez it signaled that
                                            14
                                                                  No.     2015AP756-CR



"ordinary inquiries" remain reasonable for the duration of an

otherwise     lawful     stop.         The     Illinois      Supreme         Court's

interpretation    of     Rodriguez      in     Cummings      II     is      correct.

Rodriguez concludes that an officer's mission in conducting a

traffic stop includes "whether to issue a traffic ticket" and

the   "ordinary   inquiries      incident       to   [the     traffic        stop]."

Rodriguez, 135 S. Ct. at 1615.               These include:        "checking the

driver's    license,    determining     whether      there    are       outstanding

warrants    against    the   driver,   and    inspecting     the        automobile's

registration and proof of insurance."                Id.     The justification

for the ordinary inquiries is two-fold:              (1) these checks serve

to enforce the traffic code by "ensuring that vehicles on the

road are operated safely and responsibly"; and (2) for officer

safety.13    Id. at 1615-16.       The Supreme Court protected Fourth

Amendment rights by emphasizing that a traffic stop's mission

      13
       This court just last term acknowledged the "legitimate
and weighty" concern for officer safety attendant to every
traffic stop:

      Traffic stops are "especially fraught with danger to
      police officers...."     Rodriguez, 135 S.      Ct. at
      1616 (quoting [Arizona v.] Johnson, 555 U.S. [323, 330
      (2009)]); see also [Pennsylvania v.] Mimms, 434 U.S.
      [106, 110 (1977)] ("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.").

Floyd, 377 Wis. 2d 394, ¶26.


                                       15
                                                               No.     2015AP756-CR



should not extend beyond the amount of time reasonably required

to complete it, and an officer must proceed diligently, id. at

1616, thereby eliminating the potential for police to delay the

ordinary      inquiries   to   delve   into    unrelated     and     undiscovered

criminal wrongdoing.

      ¶20     We return to the particular facts in Smith's case in

light    of   Rodriguez's      conclusion     that   the    lawfully    initiated

traffic stop includes both considering whether to issue a ticket

and conducting the ordinary inquiries.                When Gonzalez saw the

driver of the stopped car was a man, the first part of the

mission ended.      Gonzalez would not be issuing a ticket to Amber

Smith for driving with a suspended license.                 The second mission

of the traffic stop, however, had not been performed——checking

the     driver's    license,      registration,       and    insurance.         To

accomplish this, Gonzalez followed his normal practice where a

driver's door does not work and walked around to the passenger

side of the car.          Smith concedes he was moving over to the

passenger side and reaching for a handle on the passenger door.
He even explained this is a movement he makes every time he has

to get in and out of the car.          In fact, unless Smith planned to

sleep in the car, it is logical that Smith would get out of the

car because he had pulled into a parking spot in the lot where

his residence is located.         Gonzalez thought Smith was struggling

to open the passenger door so he put his hand on the outside

door handle and pulled the door open.                Upon opening the door,

Gonzalez learned Smith did not have a valid driver's license


                                       16
                                                                     No.       2015AP756-CR



either.     It is at this point Gonzalez suspected Smith had been

driving drunk.

      ¶21   Thus, applying the directives from Rodriguez, we hold

the stop in Smith's case did not violate the Fourth Amendment.

The   mission    of   the    lawful    traffic         stop    did       not    end     when

reasonable    suspicion      dissipated     because       at       that    moment,      the

sergeant had not completed the ordinary inquiries of checking

Smith's license, registration, and insurance.                        Before Gonzalez

could complete the ordinary inquiries incident to the stop, he

discovered Smith did not have a valid driver's license and saw

signs Smith had been driving drunk.               At this point, the sergeant

had   probable    cause     to   extend     the    stop       to    investigate         and

eventually arrest Smith for drunk driving.

      ¶22   In addition, the record shows Gonzalez acted promptly

in his attempt to accomplish the mission of this traffic stop;

there is nothing to suggest Gonzalez slothed through the mission

to fish for wrongdoing.           We emphasize, as did the Rodriguez

Court, that "[a]uthority for the seizure thus ends when tasks
tied to the traffic infraction are——or reasonably should have

been——completed."         Rodriguez,      135     S.    Ct.    at    1614.         Police

actions in all traffic stops will be scrutinized to ensure a

temporary    detention      "last[s]   no    longer      than       is    necessary      to

effectuate the purpose of the stop."                   Sharpe, 470 U.S. at 684;

Rodriguez, 135 S. Ct. at 1614.            Neither the Fourth Amendment nor

the cases interpreting it require this traffic stop seizure to

end at the moment Gonzalez saw a man instead of a woman in the
driver's    seat.      The    Fourth   Amendment         presented         no     bar    to
                                       17
                                                                           No.     2015AP756-CR



Gonzalez       taking    the    minimally         intrusive,        routine       measure   of

checking the identification of the driver.                          Because Gonzalez did

so in a reasonable manner and within a reasonable amount of

time, Smith's stop was not unlawfully prolonged.                            See Rodriguez,

135 S. Ct. at 1615; see also, State v. House, 2013 WI App 111,

¶¶6, 9, 350 Wis. 2d 478, 837 N.W.2d 645 (concluding the purpose

of traffic stop ended when "everything related to the initial

stop"     had     been    completed             including      running       a     check    on

defendant's      license       and     returning       license      to    the     defendant);

State     v.    Gammons,        2001       WI    App 36,      241        Wis. 2d 296,       625

N.W.2d 623       (holding       the     purpose        of     the    traffic       stop     had

concluded after the reason for the initial seizure had been

satisfied,       the    driver       and    the      two    passengers       had     provided

identification, and the officer had run computer checks on all

three).

       ¶23     Our conclusion that this traffic stop comports with

the Fourth Amendment is further supported by existing Wisconsin

case    law.      Before       the     United        States   Supreme       Court     decided
Rodriguez, our court of appeals already decided that when "the

initial detention was lawful" an officer can properly ask for a

driver's name and identification card even when the officer "had

already decided" the driver "was not the suspect."                               See State v.

Williams, 2002 WI App 306, ¶1, 258 Wis. 2d 395, 655 N.W.2d 462.

In Williams, a police officer stopped a vehicle thinking the

driver    was    a     wanted    domestic         abuse     suspect       named     Demetrius

Phillips.       Id., ¶¶2-3.       The driver told the officer his name was
Vernell Williams, but he did not have any identification to
                                                18
                                                             No.   2015AP756-CR



prove his identity.        Id.    The officer called another officer who

knew a lot of people in the neighborhood to see if Williams'

identity   could    be    verified.     Id.,   ¶4.     The   second    officer

confirmed that Williams was who he said he was.                  Id.   At this

point, the police knew the driver was not the domestic abuse

suspect, but they had the dispatcher run his name and birthdate

anyway and found Williams did not have a valid driver's license.

Id.    Further investigation led to the discovery of cocaine in

the car and Williams filed a motion to suppress the evidence.

Id., ¶¶4-5, 8.       The court of appeals concluded the officer's

actions were lawful because the request for the driver's name

and   identification      was    reasonable,   even   if   the   request   came

after the officer realized the driver was not the suspect the

officer sought.14        Id., ¶18.    The court of appeals further held

that when "Williams stated that he had no identification, there

was a reasonable ground for further detention," id., ¶22, based

on Wis. Stat. § 343.18(1)'s requirement that persons operating




      14
       The court of appeals also relied on a community caretaker
vehicle case, State v. Ellenbecker, 159 Wis. 2d 91, 464
N.W.2d 427 (Ct. App. 1990), in reaching its conclusion.      See
State v. Williams, 2002 WI App 306, ¶¶18-21, 258 Wis. 2d 395,
655 N.W.2d 462.   We question whether Ellenbecker was properly
decided but decline to address that specific issue as it is not
dispositive here.


                                       19
                                                                            No.    2015AP756-CR



motor vehicles must have their driver's licenses with them.15

These routine measures are reasonable because they ensure the

driver      has     a    valid    license     and       they    document        the   driver's

identity in case there is a complaint after the stop.

       ¶24    Smith distinguishes his case from                        Rodriguez         because

reasonable suspicion for the traffic stop in that case continued

for the duration of the stop, whereas here, the State conceded

that     reasonable            suspicion    dissipated          as    Sergeant        Gonzalez

approached          Smith's car.         We need not guess whether the Supreme

Court       would       rule    differently        if     faced      with   a     case    where

reasonable suspicion dissipated after a lawful stop but before

the ordinary inquiries could take place.                          The Supreme Court in

fact    had    that       very    case     before       it——Cummings I——concomitantly

with Rodriguez and although the Court never issued an opinion,

its procedural actions signal that the Fourth Amendment does not

compel an officer to prematurely terminate a lawful stop by

dispensing with the ordinary inquiries.

       ¶25    First,       Rodriguez        does        not    specifically       limit     its
holding to a lawful stop where reasonable suspicion does not

dissipate.          Given that the Supreme Court had before it both

Rodriquez——a case where reasonable suspicion remained until the


       15
       Wisconsin   Stat.  § 343.18(1)'s  requirement   that  all
drivers possess a driver's license while driving and display it
"upon demand from any judge, justice, or traffic officer"
further supports our opinion.    It is reasonable to expect to
show a driver's license when a police officer conducts a traffic
stop.


                                              20
                                                                            No.       2015AP756-CR



ordinary      inquiries       had     been    completed,        and       Cummings——a         case

where     reasonable          suspicion       vanished          before          the     ordinary

inquiries could be made, the Supreme Court most certainly would

have pointed out this distinction if the Court determined it

commands opposite Fourth Amendment outcomes.

    ¶26       Second, six days after deciding Rodriguez, the Supreme

Court vacated the judgment in Cummings I and told the Illinois

Supreme    Court       to     reconsider      its      ruling.            See     Illinois      v.

Cummings, 135 S. Ct. 1892 (Mem) (2015).                              Again, the Illinois

Supreme    Court      initially       ruled       in   favor     of       the    defendant      in

Cummings I, holding that the police officer could not ask to see

his driver's license after reasonable suspicion vanished.                                      See

Cummings I, 6 N.E.3d 725, ¶20.                    It is not logical or reasonable

for the Supreme Court to have vacated Cummings I if it believed

the Illinois Supreme Court reached the correct result.                                        There

would be no reason to make the Illinois Supreme Court redo its

decision      if    the     Supreme       Court    believed      the      law     prohibits      a

license check when reasonable suspicion dissipates before the
officer    speaks      with     the    driver.          That    is     what      the    Illinois

Supreme Court had already ruled.                   If the Supreme Court wanted to

limit   the      ordinary      inquiries      only      to     cases      where       reasonable

suspicion          remained     until        those       routine          procedures          were

completed,         presumably       the    Court       would    have       simply       let    the

Illinois    Supreme         Court    ruling       in   Cummings       I    stand.        If    the

disappearance of reasonable suspicion extinguished an officer's

ability     to      proceed     with       ordinary      inquiries,             logically      the


                                              21
                                                         No.     2015AP756-CR



Supreme Court would have said so either in Rodriguez itself or

by writing an opinion in Cummings I.

    ¶27   Third,    the   Illinois     Supreme     Court's     analysis     in

Cummings II upon remand from the Supreme Court is sound.                  That

court certainly could have distinguished Cummings from Rodriguez

based on the vanishing reasonable suspicion factor, but did not.

A unanimous court interpreted Rodriguez and the Supreme Court's

granting, vacating, and remanding in Cummings I to mean a police

officer who lawfully stops a vehicle may engage in the ordinary

inquiries even if the reasonable suspicion initiating the stop

dissipates.

    ¶28   Fourth,   our   court   of   appeals     recently     interpreted

Rodriguez in the same way the Illinois Supreme Court did.                   In

State v. Cotter, No. 2015AP1916-CR, unpublished slip op. (Wis.

Ct. App. Aug. 25, 2016)(per curiam) a police officer stopped a

car based on information that the registered owner (a woman) had

a non-valid license.16     Id., ¶¶7, 9.          The driver of the car,

however, turned out to be a man, not a woman.           Id., ¶9.     One of
the car's passengers, Charles Cotter, challenged his narcotic

drug conviction resulting from the discovery of heroin on his

person during a pat-down search.        Id., ¶¶10-14.        Cotter argued

    16
       We note that State v. Cotter, No. 2015AP1916-CR,
unpublished slip op. (Wis. Ct. App. Aug. 25, 2016)(per curiam)
is an unpublished per curiam, which according to Wis. Stat.
§ 809.23(3) may not be cited by the parties.    This court, of
course, is not a party. Moreover, Cotter is cited for the fact
that the decision exists rather than for reliance on its legal
analysis and holding.


                                  22
                                                                             No.    2015AP756-CR



this   evidence        should       have     been      suppressed       because      once    the

officer saw the driver was a man, and not the woman with the

invalid license, the officer no longer had any valid reason to

extend the stop.          Id., ¶14.             That case also involved a broken

driver's-side window, resulting in the officer having to open

the passenger door to speak with the occupants.                              Id., ¶10.       Our

court of appeals held that Rodriguez controlled and this stop

did not violate the Fourth Amendment because (1) the police

lawfully stopped the car based on the registered owner's invalid

license; and (2) even though the officer "could not issue a

ticket    on    the    basis     for       which      the    stop      was   initiated"      the

officer      could    "continue        the      stop      for    purposes     of    completing

routine      matters      such       as     gathering           [the    driver's]      license

information,         making     attendant            observations       in    the    process."

Id., ¶18.          The court of appeals concluded that the reasonable

suspicion that developed while the ordinary inquiries occurred

"provided a basis for the officers to extend the stop" and as a

result, the discovery of heroin during Cotter's pat-down did not
violate      the     Fourth   Amendment.              Id.,      ¶19.     Cotter      correctly

points out that conducting the ordinary inquiries is not an

extension of the stop; it is part of the mission of the stop

itself.      Discovering additional reasonable suspicion during the

ordinary     inquiries        can    lead       to    a   legal     basis    upon    which    to

extend the stop beyond the ordinary inquiries.

       ¶29     The    three    cases       on    which       Smith     heavily      relies    in

advancing his contrary position, Delaware v. Prouse, 440 U.S.
648 (1979), Florida v. Royer, 460 U.S. 491 (1983), and State v.
                                                23
                                                                        No.     2015AP756-CR



Coleman, 890 N.W.2d 284 (Iowa 2017), are either distinguishable

or not controlling.

       ¶30    First,     Smith      argues        Delaware        v.     Prouse         shows

Gonzalez's conduct violated his Fourth Amendment rights.                            Prouse

held   that    random     traffic    stops        simply    to    check       a   driver's

license and registration absent any basis to stop the vehicle

violated the Fourth Amendment.                  440 U.S. at 650.              But this is

not what happened to Smith.               Here, it is undisputed there was a

lawful basis to stop the car Smith drove.

       ¶31    Second,    Smith    turns      to    Florida       v.     Royer     for    its

holding that police may not detain a person for "longer than is

necessary      to    effectuate     the    purpose     of       the    stop,"     and    the

"methods employed should be the least intrusive means reasonably

available to verify or dispel the officer's suspicion in a short

period of time."         460 U.S. at 500.            Royer involved an airport

traveler suspected of transporting narcotics in his suitcase.

Id. at 493-94.          After approaching the traveler and questioning

him, undercover officers took him into a large closet with a
desk and two chairs, where he was in essence under arrest.                               Id.

at 494-97.      Smith's situation, unlike Royer, involved a traffic

stop   based    on     reasonable    suspicion.            As    already       explained,

Rodriguez tells us the purpose and scope of any lawful traffic

stop includes both the officer's decision on whether to issue a

ticket (which Gonzalez could not do because reasonable suspicion

on that aspect dissipated), as well as the officer's completion

of ordinary inquiries (which Gonzalez was attempting to do when
he saw signs that Smith was driving drunk).                            We are also not
                                           24
                                                                      No.     2015AP756-CR



persuaded by Smith's assertion that Gonzalez violated Royer's

requirement        that    an    officer     should     use   the    "least    intrusive

means" in an investigative detention.                      Smith argues the least

intrusive means here required Gonzalez to speak to Smith through

the closed and inoperable window.                     Even if we could agree that

requiring Gonzalez to shout through a closed window late at

night constitutes the least intrusive means, it is unreasonable

to expect Gonzalez to accomplish the ordinary inquiries through

a closed window.           Under Pennsylvania v. Mimms, 434 U.S. 106, 110

(1977), an officer may ask a driver to step out of the car

during       a   traffic   stop      because       "[e]stablishing     a    face-to-face

confrontation diminishes the possibility, otherwise substantial,

that    the      driver    can    make     unobserved     movements"        which   could

threaten the officer's safety.                     A face-to-face confrontation is

also necessary to accomplish the ordinary inquiries, as it would

be difficult if not impossible to check a driver's license,

registration, and insurance without having those documents in

hand.        Requiring Gonzalez to accomplish the ordinary inquiries
in     the       dark   through      a   closed        window   is      illogical     and

unreasonable.

       ¶32       The third case Smith proffers to support his position

is State v. Coleman, 890 N.W.2d 284 (Iowa 2017).                           Coleman is a

post-Rodriguez          case    in   which     a    sharply   divided      Iowa   Supreme

Court held, based on the Iowa Constitution, that an officer

cannot conduct the ordinary inquiries if reasonable suspicion

dispels after the initially lawful stop.                        Id. at 285.           The
majority in Coleman rejected Rodriguez's recitation of the long-
                                             25
                                                                     No.        2015AP756-CR



established rule that ordinary inquiries are part of a lawful

traffic stop as "dicta."           Id. at 300.            Three Iowa Supreme Court

Justices     dissented      in   Coleman,      criticizing       the      majority      for

disregarding        Rodriguez,     for        ignoring      Iowa's        statute       that

requires drivers to carry a driver's license and "display it

upon an officer's request," for overruling prior Iowa case law

consistent with Rodriguez, and for concluding for the first time

that the search and seizure provision in Iowa's Constitution

provides greater protection than the Fourth Amendment to the

United     States    Constitution.            Id.    at    301-05.         We     are   not

persuaded by Coleman for several reasons.                        First, we are not

bound by Iowa law, particularly judicial interpretations of its

own   constitution.         Second,      it    applies      an   untenably         cramped

interpretation of the holding in Rodriguez.                      Third, it ignores

the clear message the Supreme Court conveyed in its handling of

Cummings I, resulting in the Illinois Supreme Court's reversal.

Notably, Coleman is the only post-Rodriguez case in the country

to conclude that checking a driver's license during an initially
lawful     traffic   stop    constitutes        an   unreasonable         seizure       when

reasonable     suspicion     for   the    stop       evaporates      as    the     officer

approaches the stopped car.17             We agree with the dissenters in


      17
       Smith also cites numerous other state and federal cases
he contends prohibit police from asking for identification if
reasonable suspicion triggering the traffic stop dissipated as
the officer approached the vehicle.      All of these cases,
however, pre-date the Supreme Court's decision in Rodriguez v.
United States, 135 S. Ct. 1609 (2015).


                                          26
                                                                No.    2015AP756-CR



Coleman in regarding an officer's request to see a driver's

license     during    a   traffic    stop    as   "completely   unobjectionable

and,        indeed,       mundane"      and       therefore      unquestionably

constitutional.       Id. at 302.18




       18
       Justice Daniel Kelly's dissent conjures a law enforcement
boogeyman but if speculation and storytelling determine the
reasonableness of a police officer's actions, consider this
reworked storyline:

       Female driver (name unknown as the officer will not be
       permitted to ask):     What are you stopping me for
       officer?

       Officer Doe:     I'm sorry.   I stopped this minivan
       because it is registered to Mr. Jones whose license is
       suspended.   But, you are not Mr. Jones.   I apologize
       for any inconvenience. You are free to go.

       Female driver drives away.

       Officer Doe returns to his squad car and 30 minutes
       later hears a radioed alert to be on the lookout for a
       female suspect wanted for sex trafficking. There are
       warrants out for her arrest. The female is thought to
       be driving a minivan with six kidnapped girls.     The
       suspect matches the description of the driver Officer
       Doe just let go.    The female driver is never caught
       and five of the six girls are never heard from again.
       When the police locate the minivan, they find the
       sixth missing girl who has been badly beaten and
       drugged. She reports the girls were forcibly drugged
       and physically and sexually abused and further reveals
       the trafficker's plan to transport the girls overseas
       to be sold as sex slaves.   The sixth girl later dies
       at the hospital during surgery to stop her internal
       bleeding.

                                                                      (continued)
                                        27
                                                  No.    2015AP756-CR




     Justice Kelly's strawman overlooks a significant restraint
on law enforcement: constitutional reasonableness. The parade
of horribles Justice Kelly proffers is as probable as the
proverbial boogeyman's existence. They are designed to frighten
despite materializing only in imagination and myth.           The
principles declared today are not new. Nearly 40 years ago, the
United States Supreme Court recognized that checking a driver's
license during an otherwise lawful traffic stop constitutes a
permissible inquiry. See Rodriguez, 135 S. Ct. at 1615 (citing
Delaware v. Prouse, 440 U.S. 648, 658-660 (1979)). No court has
expanded the ordinary inquiries incident to a traffic stop to
include headlight, horn, or exhaust performance because the
Fourth Amendment commands reasonableness.   We think the typical
scenario in Officer Doe's stop of Mrs. Brown's minivan would be:

    Officer Doe:   License and registration please.

    Mrs. Brown:    Yes Officer.     Here it is.   Did I do
    something wrong?

    Officer Doe: The car you are driving is registered to
    a Mr. Jones whose license is suspended.

    Mrs. Brown: Oh no. I borrowed this minivan to get
    these kids to soccer practice. The Jones' are my
    neighbors.

    Officer Doe:   Got it.    Give me a couple minutes to
    clear this up.

    Officer Doe goes back to the squad car    and runs Mrs.
    Brown's license. He comes back moments   later, returns
    Mrs. Brown's license, and says:   "I'm   sorry for the
    inconvenience. Everything checks out.    You may be on
    your way."

     It is often easy for a court, which has the luxury to study
the cold transcripts and ponder the nuances of case law, to
criticize an officer's split-second decisions in high crime
areas late at night. But reasonableness cannot be measured with
20/20 hindsight; instead, "[t]he calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments——in circumstances that are
tense, uncertain, and rapidly evolving . . . "        Graham v.
Connor, 490 U.S. 386, 396-97 (1989).        Sergeant Gonzalez's
actions here were reasonable.
                                                        (continued)
                               28
                                                                   No.    2015AP756-CR



                      B.   Opening of the Passenger Door

    ¶33       Smith   also      argues    that    opening   the    passenger       door

constituted      a     separate         Fourth    Amendment       event     requiring

additional reasonable suspicion.                 We do not agree.         Whether a

search   or    seizure     is    reasonable      depends    upon   the    particular

facts of each case, and what Gonzalez did under these facts was

reasonable.       See South Dakota v. Opperman, 428 U.S. 364, 375

(1976) (citation omitted).19               Gonzalez approached the driver's

door and asked Smith to open the door or the window.                            Smith

responded that both were broken.                 As Gonzalez walked around to

the passenger door, Smith appeared to be cooperating and moving

toward the passenger seat, and seemed to be trying to open the

passenger     door.        The    officer       testified   that    Smith     and    he

simultaneously        opened      the     door    and   that   they       opened    it




    19
       Courts have recognized a variety of circumstances where a
search of a car does not infringe upon the Fourth Amendment:
(1) when the driver consents, see Florida v. Jimeno, 500 U.S.
248 (1991); (2) when an officer sees contraband in plain view,
see State v. Buchanan, 2011 WI 49, ¶¶26-27, 334 Wis. 2d 379, 799
N.W.2d 775; (3) incident to an arrest, see Arizona v. Gant, 556
U.S. 332 (2009); (4) when an officer has probable cause to
suspect a crime, see United States v. Ross, 456 U.S. 798 (1982);
and (5) when a car has been impounded, see South Dakota v.
Opperman, 428 U.S. 364 (1976). Police may also order the driver
out of a vehicle for officer safety. See Pennsylvania v. Mimms,
434 U.S. 106 (1977); see also United States v. Stanfield, 109
F.3d 976, 981 (4th Cir. 1997) (recognizing certain circumstances
in which opening at least one of the vehicle's doors is
consistent with concerns of officer safety).


                                           29
                                                                 No.     2015AP756-CR



together.20      An officer may make reasonable inferences based on

the facts drawn from his experience.              Terry, 392 U.S. at 21-22.

It was reasonable for Gonzalez to infer that Smith's movements

indicated he was willingly opening (or attempting to open) the

passenger door.        The sergeant needed to communicate with and

identify the driver whom he had stopped and there was no avenue

to do that on the driver's side of the car due to the inoperable

driver's window and door.

      ¶34    Smith offers New Jersey v. Woodson, 566 A.2d 550 (N.J.

Super. Ct. App. Div. 1989), in support of his argument that

Gonzalez    unreasonably      opened    the    door.      Smith's      reliance    on

Woodson     is   misplaced.     We     are    neither    bound    by   New   Jersey

authority nor persuaded that it presents similar facts.                            In

Woodson, police conducted a traffic stop and immediately opened

the   car   door   without    making    any     attempt    to    speak    with    the

driver.      Id. at 551.       The New Jersey court held this police

conduct violated the Fourth Amendment.                  Id. at 552.       Woodson's

facts are clearly distinguishable from Smith's.
      ¶35    Finally, Gonzalez's act of opening the passenger door

did not violate the Fourth Amendment because under all the facts

and circumstances, the action was reasonable and this intrusion

on Smith's personal liberty was an incremental, de minimus one.

See Mimms, 434 U.S. at 109-11.                Under Mimms, a police officer


      20
       Again, we acknowledge the circuit court found it was the
officer who opened the door. Nonetheless, the circuit court did
not find the officer's testimony in this regard not credible.


                                        30
                                                                       No.       2015AP756-CR



has the right to a face-to-face encounter with a driver during a

lawful traffic stop.           "[T]his additional intrusion can only be

described as de minimus."            Id. at 111.21

                                IV.     CONCLUSION

      ¶36       We acknowledge that the police are not infallible, and

a police officer may intentionally or unintentionally infringe

upon the constitutional rights of Wisconsin citizens.                               If that

happens, it is the duty of this court to impose consequences for

such violations.           Terry, 392 U.S. at 12 ("[E]xcluding evidence

seized in violation of the Fourth Amendment has been recognized

as a principal mode of discouraging lawless police conduct.").

Likewise, when the police abide by the rules and act reasonably,

the     Fourth     Amendment    is    not        violated     and    we      must     uphold

convictions.

      ¶37       The Supreme Court's most recent pronouncement on the

scope      of   constitutionally       reasonable       traffic        stop       seizures,

Rodriguez v. United States, 135 S. Ct. 1609 (2015), requires

upholding        Smith's    conviction.            Rodriguez        acknowledges        that
"ordinary inquiries" are part of the mission of every lawful and

reasonably executed traffic stop.                  The mission of such stops is

not     completed     until    the    police        officer     checks       a      driver's

identification, even if reasonable suspicion for stopping the


      21
       Justice Ann Walsh Bradley's dissent assumes that Smith
had permission to drive his sister's car. See Justice Ann Walsh
Bradley's dissent, ¶11.      There is nothing in the record
establishing that Smith had permission to drive his sister's
car.


                                            31
                                                             No.     2015AP756-CR



vehicle     dissipates    as   the   officer   approaches      the     vehicle.

Further, the officer's act of opening the passenger door to

facilitate      safe,    face-to-face     contact    with    the      otherwise

inaccessible driver did not constitute an unreasonable search.

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

reversed.




                                     32
                                                                      No.       2015AP756-CR.awb




       ¶38       ANN WALSH BRADLEY, J.               (dissenting).          I join Justice

Kelly's      dissent.              However,     I    write     separately          because     I

determine that the majority compounds its error when it departs

from the clear directive of Pennsylvania v. Mimms, 434 U.S. 106

(1977) (per curiam), extending the holding past its breaking

point     and         further      eroding     the    protections       of        the     Fourth

Amendment.

       ¶39       Contrary to the majority, I apply the clear precedent

and conclude that Smith's Fourth Amendment rights were violated

when     Sergeant           Gonzalez       opened    Smith's     passenger         side     door

without      a    warrant       or     consent.       Accordingly,          I    respectfully

dissent.

                                                I

       ¶40       In     Mimms,       law     enforcement       officers          pulled      the

defendant over for driving a vehicle with an expired license

plate.       Id. at 107.           One of the officers approached the car and

asked the defendant to step out.                      Id.      When the defendant did
so, the officer noticed a bulge in his jacket, which turned out

to be a gun.           Id.     After the State indicted the defendant on two

weapons related offenses, the defendant moved to suppress the

gun as evidence.             Id.

       ¶41       The    United     States     Supreme     Court   concluded          that    the

police officers acted properly because law enforcement officers

are    allowed         to    order     occupants     to   exit    a   lawfully          stopped

vehicle even if there is nothing unusual or suspicious about
their behavior.             Id. at 111.        This court has recognized Mimms as

                                                1
                                                                    No.    2015AP756-CR.awb


establishing a clear directive, "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."           State    v.

Johnson,    2007       WI    32,   ¶23,        299    Wis. 2d 675,        729   N.W.2d 182

(emphasis    added);          State      v.    Floyd,     2017     WI     78,   ¶24,     377

Wis. 2d 394, 898 N.W.2d 560.

    ¶42     Therein lies the rub.                   As set forth in Justice Kelly's

dissent, the facts here do not support the conclusion that this

was "an otherwise valid stop."                      Indeed, the State conceded that

reasonable suspicion had dissipated when the officer realized

the male driver was not the female registered owner.                             Majority

op., ¶14.

                                               II

    ¶43     Not    only        does      the    majority        violate    Mimms'      clear

directive,        it        extends       the         holding      beyond       what      is

constitutionally            permissible.               Mimms     explains       that     law

enforcement officers may order occupants out of a vehicle during

a traffic stop.             It does not suggest that police may open a
vehicle door and invade the space inside absent a warrant.                               See

State v. Woodson, 566 A.2d 550, 552 (N.J. Super. Ct. App. Div.

1989) ("There is a significant difference between ordering one

out of a car and opening a car door without warning. In the

former case, the occupant has an opportunity, before opening the

door and leaving the car, to safeguard from public view matters

as to which he has a privacy interest").

    ¶44     The majority fails to acknowledge the limitations of
Mimms and extends its holding past its breaking point, reading

                                                2
                                                                       No.   2015AP756-CR.awb


language into that opinion that is not present.                              Mimms does not

permit the officer's conduct in this case.                              Contrary to the

majority's assertion, Mimms does not imply that a police officer

has "the right to a face-to-face encounter."                           See Majority op.,

¶35.    And, it certainly does not extend such a right once the

validity     of     the    stop    has       been   undermined        because    reasonable

suspicion has dissipated.

       ¶45    Rather,      Mimms        is    limited      to    an    officer     verbally

ordering an occupant out of a vehicle.                            In determining that

Mimms allows an officer to not only order an occupant out of a

vehicle but to also invade the interior space of a vehicle by

opening      the      door,       the        majority      departs       from     what    is

constitutionally permissible and disregards the facts of this

case.

       ¶46    The    Fourth       Amendment         protects     against       unreasonable

searches and seizures and focuses on the reasonable expectation

of privacy.         U.S. Const., amend. IV; Katz v. United States, 389

U.S. 347, 360 (1967) (Harlan, J., concurring); State v. Bruski,
2007 WI 25, ¶22, 299 Wis. 2d 177, 727 N.W.2d 503; see also Wis.

Const. art I, § 11.             Yet, the majority's conclusion ignores that

a defendant in Smith's position has a reasonable expectation of

privacy in the interior of a vehicle.                       See State v. Dixon, 177

Wis. 2d 461,        470,    501     N.W.2d 442          (1993)    ("This       relationship

[between the vehicle owner and the driver] and prior use of the

vehicle point to the defendant having an expectation of privacy

in   the     interior      of     the    truck      that    society      is     willing   to
recognize as reasonable").

                                                3
                                                           No.   2015AP756-CR.awb


      ¶47    The record reflects that the vehicle Smith was driving

belonged to his sister.       A person who borrows a car and drives

it with the owner's permission has an expectation of privacy in

the   interior    of   the   vehicle       which   society   is    willing    to

recognize as reasonable, especially where the owner of the car

is a family member.1     See id. at 470-72 (citing United States v.

Griffin, 729 F.2d 475, 483 n.11 (7th Cir. 1984), cert. denied,

469 U.S. 830 (1984) (accused who borrowed a car from his brother

had a protectable privacy interest in the vehicle)).                    Opening

the door of a vehicle is clearly contrary to this reasonable

expectation of privacy.2

      ¶48    With no reasonable suspicion remaining to support the

stop, the objective of the stop at the point Gonzalez opened the

door was simply to communicate with Smith.                   But this easily

could have been accomplished without invading the interior of

the   car.       The    record   reflects          that   Sergeant     Gonzalez

successfully communicated with Smith through the closed door and


      1
       The record indicates that the prosecutor never contended
that Smith used the vehicle without permission.    During cross
examination, Smith reiterated that the car was his sister's.
The prosecutor did not elicit any testimony about consent and
there is nothing in the record indicating that Smith's use of
the vehicle was without his sister's permission.
      2
       I further observe that Officer Gonzalez violated the
United States Supreme Court's decree that law enforcement must
employ "investigative methods" that are the "least intrusive
means reasonably available to verify or dispel the officer's
suspicion in a short period of time."      Florida v. Royer, 460
U.S. 491, 500 (1983). The record does not support the assertion
that opening Smith's passenger side door was the least intrusive
means of completing the objective of the stop.


                                       4
                                                                       No.    2015AP756-CR.awb


window on the driver's side of the car and understood Smith's

responses without having to repeat himself.                             Why then was it

necessary to open the door?

       ¶49     Applying          the     clear       precedent        under     the    facts

presented, I conclude that Smith's Fourth Amendment rights were

violated when Sergeant Gonzalez opened Smith's passenger side

door without a warrant or consent.

       ¶50     Finally, I observe that once again a majority of this

court    continues         the     trend       of    diminishing       Fourth      Amendment

protections         we    have    seen    in     recent      years.      See     Floyd,    377

Wis. 2d 394, ¶¶83-89 (Ann Walsh Bradley, J., dissenting).                                  To

give meaning to the Fourth Amendment, we must use it as a check

on governmental power.                 This court's decision fails to provide

this    check,      instead       giving    law      enforcement       carte     blanche   to

detain individuals when there is no reasonable suspicion that

they    have       done   anything       wrong.        The    majority       further   gives

officers free reign to invade a space in which a person has a

reasonable expectation of privacy without a warrant or consent
when less intrusive means of communication demonstrably suffice.

       ¶51     Accordingly, I respectfully dissent.

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

ABRAHAMSON joins this dissent.




                                                 5
                                                                         No.   2015AP756-CR.dk




       ¶53       DANIEL KELLY, J.          (dissenting).

                                                I

       ¶54       Frederick Smith is not a sympathetic character.                          This

case is here only because he was driving an automobile while

drunk——really drunk:             his blood alcohol level was .38 when he

was arrested.1           This is not his first time, or even his second.

In fact, this is the seventh time he has been arrested and

convicted of driving while intoxicated. And because we can be

pretty confident that drunk drivers are not caught every time

they       go   abroad    with   too     much       alcohol    in   their      system,    it's

reasonable to believe that seven-time offenders make a habit of

putting at risk the lives of everyone around them.                                It is not

without         reason   that    drunk     drivers      have     been     described       as   a

scourge.         See, e.g., State v. Nordness, 381 N.W.2d 300, 307, 128

Wis. 2d 15 (1986) (describing drunk driving as "transform[ing]

an innocent user of a highway into a victim at any time . . . "

and as "a scourge on society").                      To live in society peacefully,

we   must        have    at   least    a   minimal       level      of    trust    that    our

neighbors won't habitually place us in mortal danger. We can

count ourselves fortunate that Officer Gonzalez apprehended Mr.


       1
       To put this in context, a person with a blood alcohol
concentration of .31 (that is, less than Mr. Smith), is at risk
of death by alcohol poisoning. See, e.g., National Institute on
Alcohol Abuse and Alcoholism, Alcohol Overdose: The Dangers of
Drinking                         Too                        Much,
https://pubs.niaaa.nih.gov/publications/alcoholoverdosefactsheet
/overdosefact.htm (last visited Dec. 1, 2017).


                                                1
                                                               No.   2015AP756-CR.dk


Smith before he could maim or kill someone with the car he was

driving.       The    people   of   Wisconsin       want   drunk   drivers    to    be

stopped.      They need drunk drivers to be stopped.

      ¶55     None of that, however, has anything to do with the

proper   understanding         of   the    Fourth     Amendment's    proscription

against unreasonable searches and seizures.                    Whatever rule of

police conduct we derive from that provision must be just as

applicable to a soccer mom taking the neighborhood children to

practice as it is to habitual drunk drivers like Mr. Smith.

Indeed, the rule we announce today would probably benefit from

considering how it would apply in a legally identical but less

emotionally-fraught situation.

      ¶56     So let's consider the soccer mom, Mrs. Brown.                        Her

automobile is in the shop for maintenance, so Mrs. Jones (Mrs.

Brown's neighbor and best friend) lent her the family's minivan.

While Mrs. Brown is en route to soccer practice with a vehicle

full of children, Officer Doe runs the plates and discovers the

registered owner, Mr. Jones, has a suspended driver's license.
Believing Mr. Jones is driving the minivan, he pulls it over.

Upon approaching the driver's window, he realizes his mistake.

But   instead    of    apologizing        for   his   interference     with    Mrs.

Brown's liberty, the following conversation takes place:

      "Good afternoon, ma'am," said Officer Doe. "I pulled
      you over because I thought you were Mr. Jones.
      Obviously, I couldn't be more wrong.    You needn't be
      alarmed——I don't believe you have broken any laws, nor
      does it appear you are contemplating doing so."

      "Oh,"     replied Mrs. Brown, somewhat disconcerted.
      "Just     so   I  understand, you presently have  no

                                           2
                                                            No.    2015AP756-CR.dk

     reasonable suspicion to believe I have done anything
     wrong?"

     "That is correct, ma'am."

     "Then I may leave?" Mrs. Brown inquired.

     "Actually, no," said Officer Doe.      "You see, I'm
     curious about a few things.   I want to know whether
     you have your driver's license with you.     I'm also
     curious about whether it is valid, and whether there
     are any warrants for your arrest, or if there are any
     other reasons law enforcement might be interested in
     you."

     "Please understand that I have no reason to believe
     you don't have a valid driver's license with you, or
     that law enforcement has any reason to be interested
     in you," Officer Doe continued. "And, of course, this
     has absolutely nothing to do with the reason I
     mistakenly pulled you over in the first place.
     However, a new Wisconsin Supreme Court decision, State
     v. Smith, says I can compel you to remain here until I
     finish satisfying my curiosity on these subjects."
     ¶57    That's enough of a vignette for the analysis.                     But

it's important to note that this is not the full extent of the

intrusion    Officer   Doe    could       command   under    these      entirely

innocent circumstances.        If our decision today is correct, he

could also have his narcotics-detection dog sniff the perimeter
of the automobile to see if it would alert for the presence of

illegal substances while awaiting the report on Mrs. Brown.2                  And

he could order Mrs. Brown out of the minivan.3                    He could even

order all of the children to stand along the roadside while he




     2
         Illinois v. Caballes, 543 U.S. 405, 409 (2005).
     3
       Pennsylvania    v.    Mimms,   434    U.S.   106,    111    (1977)    (per
curiam).


                                      3
                                                                     No.   2015AP756-CR.dk


completed his "incidental" questioning.4                    His authority to do all

of this comes not from anything Mrs. Brown did, but from a

mistake of Officer Doe's own making.5

                                              II

       ¶58        This case requires us to identify the point at which

the Fourth Amendment says a traffic stop must end.                             Is it when

the    purpose       for     initiating     the    stop    is   satisfied,      or   may    a

police officer continue the seizure to pursue other objectives?

That       is,    must   Officer      Doe   end    Mrs.    Brown's   seizure     when      he

discovers she is not Mr. Jones, or may he maintain the seizure

to    ask        questions     that    have   no    connection       to    a   reasonable

suspicion of wrongdoing?

       ¶59        In giving our imprimatur to the latter, we erred, and

significantly            so.     In    adopting      the     constitutionally-unique

concept of a "dual mission" traffic stop, we created a mission

       4
       See Rodriguez v. United States, 575 U.S. ___, 135 S.
Ct. 1609, 1615 (2015) (citing Mimms, 434 U.S. at 110-11 (no
Fourth Amendment violation occurs where an officer orders "a
driver, already lawfully stopped, to exit the vehicle") and
Maryland v. Wilson, 519 U.S. 408, 413-15 (1997) (an officer may
require passengers to exit a vehicle lawfully stopped for a
traffic violation).
       5
       The court says my hypothetical is a strawman.   Majority
op., ¶32 n.18.   A strawman is a debate technique in which one
participant pursues a rhetorical advantage by positing and
refuting an argument the other participant didn't make.   All I
have done with this vignette is remove the elements that make
Mr. Smith an unsympathetic character and replace them with
elements that make the subject of the seizure neutral or
sympathetic——elements, that is, that should not affect our
analysis. Because the court has identified no constitutionally-
significant difference between Mrs. Brown and Mr. Smith, I
disagree with its conclusion that this is a strawman.


                                              4
                                                                 No.   2015AP756-CR.dk


that allows a police officer to seize an individual without any

reasonable suspicion of wrongdoing.                   And we took this ground-

breaking step based largely on a "signal" we discerned from the

vacation of the Cummings I6 judgment by the United States Supreme

Court.

                                           A

      ¶60       Let's start with this——we should never countenance a

traffic stop "mission" that is not tied to the Constitution.

Power bristles at restraint, which is why we chain it firmly to

constitutional anchor points.          That is true whether the exercise

of power involves the taking of personal property for public

use, or inhibiting speech or publications, or the possession of

arms, or conducting a traffic stop.                   We may disagree about the

length     of    the   chain,   but   we       have    always    agreed    that   the

Constitution must hold its anchor.                Until today.         Today we have

dual mission traffic stops in which one mission is tethered to

the Fourth Amendment and the other is not.

      ¶61       The first mission we describe in our opinion is the
conventional one, the one which we have always understood to be

inexorably linked to the purpose for the traffic stop, and thus

to   the    Constitution.       Notwithstanding         our     suggestion   to   the

contrary, Rodriguez didn't say a single word from which we may

infer the existence of any other mission.                     It started with the


      6
       Like the majority, I will refer to People v. Cummings, 6
N.E.3d 725 (Ill. 2014), vacated, 135 S. Ct. 1892 (2015), as
"Cummings I."   I will likewise refer to People v. Cummings, 46
N.E.3d 248 (Ill. 2016) as "Cummings II."


                                           5
                                                                      No.    2015AP756-CR.dk


broad observation that "[l]ike a Terry[7] stop, 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[.]"           Rodriguez v. United States, 575 U.S. ___,

135   S.    Ct. 1609,       1614    (2015)       (citations      omitted).          And    it

recognized that "'[t]he scope of the detention must be carefully

tailored to its underlying justification.'"                           See id. (quoting

Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion)).

The   underlying      justification          that    defines      the       scope   of    the

detention is the event that caused the officer to initiate the

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

stop, it may last no longer than is necessary to effectuate that

purpose."         Rodriguez, 135 S. Ct. at 1614 (internal marks and

citation omitted).          From this the Rodriguez Court concluded that

the authority for a traffic stop cannot outlast its purpose:

"Authority for the seizure thus ends when tasks tied to the

traffic      infraction       are——or      reasonably           should       have    been——
completed."         Id.      Most     importantly         to    our    decision      today,

Rodriguez confirmed that even if a seizure was constitutional

when it began, it can lose this status if it continues after the

purpose for the stop has been satisfied.                       "[A] traffic stop 'can

become unlawful if it is prolonged beyond the time reasonably

required     to    complete        th[e]   mission'        of    issuing       a    warning

ticket."      Id.    at 1614-15 (quoting              Illinois v. Caballes, 543


      7
          Terry v. Ohio, 392 U.S. 1 (1968).


                                             6
                                                                              No.    2015AP756-CR.dk


U.S. 405,       407    (2005)).           Everything           Rodriguez       said       about      the

traffic       mission——everything——describes                      it     in     terms          of   the

singular mission we have always ascribed to a valid traffic

stop,    to     wit,       the    investigation           of     an    officer's          reasonable

suspicion       of     wrongdoing.                 As   discussed       at     length,          infra,

"officer       safety"          and    "the    usual      inquiries"      have        always        been

incidents to the purpose of the traffic stop, and Rodriguez said

not a single word to the contrary.

       ¶62     And everything Rodriguez said about the constraining

chain    refers       back       to    the     constitutional          anchor:            Reasonable

suspicion of wrongdoing.                  That, and that alone, is what defines

the purpose of the stop.                      That purpose, in turn, defines "the

tolerable       duration          of   police       inquiries."          And        the   tolerable

duration       of    police       inquiries         defines,      in    its     own       turn,     the

uttermost extent of the authority to seize a person.                                           If the

seizure goes beyond that, the police are on forbidden ground.

Link     by    link        by    link,        courts      test    the    soundness             of   the

connection between the constitutional anchor and the exercise of
power.        This has been the state of the law for long enough to

consider it settled.                    Inasmuch as         Rodriguez         did nothing but

recite    these        principles,            we    can    safely       conclude          it    hasn't

disturbed the chain's continued integrity.                              And nothing in that

recitation of well-established principles hints at the existence

of a companion mission.

       ¶63     The second mission, the one we created today, breaks

the link to the constitutional anchor point.                                   This mission is
triggered       by     a    constitutional              traffic       stop,    but        after     its

                                                    7
                                                                 No.    2015AP756-CR.dk


genesis it lives separately and apart from the purpose of the

stop and, hence, its constitutional limits.                       We called this

second      mission      into    existence      by      promoting        the     "usual

inquiries,"8 which used to occupy the lowly office of incidents

to a traffic stop, all the way up to a rank of equal dignity

with the purpose of the traffic stop itself.

      ¶64    Rodriguez       referred     to    these     usual        inquiries     as

"incident to the traffic stop."                135 S. Ct. at 1615 (citation,

brackets,     and     internal     quotation     marks     omitted).           So   did

Caballes, in which the court observed that "the duration of the

stop in this case was entirely justified by the traffic offense

and   the   ordinary     inquiries       incident    to   such    a     stop."      543

U.S. at 408; see also Berkemer v. McCarty, 468 U.S. 420, 439

(1984) ("Typically, this means that the officer may ask the

detainee     a    moderate      number    of   questions     to        determine    his

identity     and    to    try    to   obtain     information          confirming     or

dispelling the officer's suspicions.").

      ¶65    As "incidents" to a traffic stop, the usual inquiries
are logically and constitutionally subordinate to the purpose of

the stop.        An incident does not exist on the same plane as its

premise.     That is true as a matter of definition.                     An incident

is "something dependent upon, appertaining or subordinate to, or

accompanying something else of greater or principal importance."

Incident, Webster's Third New International Dictionary (1986).

      8
       The usual inquiries, of course, refer to a police
officer's request to see a person's driver's license and proof
of registration and insurance.


                                          8
                                                                      No.   2015AP756-CR.dk


Because      the    usual      inquiries,         according      to     Rodriguez       and

Caballes, are incidents to a traffic stop, they can have no

independent existence.            In the world of logic, that's what it

means to be dependent on something.                   That's why a seizure that

begins with a constitutional basis can become unconstitutional:

"[A] traffic stop 'can become unlawful if it is prolonged beyond

the   time    reasonably        required     to    complete      th[e]      mission'     of

issuing a warning ticket."                 Rodriguez, 135 S. Ct. at 1614-15

(quoting Caballes, 543 U.S. at 407).

      ¶66    Therefore, by main force of precedent and logic, the

usual inquiries cannot be made after the purpose for the traffic

stop——investigation of a reasonable suspicion of wrongdoing——no

longer exists.          The usual inquiries are thereby subjected to

constitutional restraint, but only because they are subordinate

to the purpose of the traffic stop, which is textually bound to

the Fourth Amendment.

      ¶67    That   is    why    we   had    to    give   the    usual      inquiries    a

promotion.      As mere incidents they can have no existence beyond
the   purpose      of    the    traffic     stop.         If    Officer      Doe   is    to

authoritatively         maintain      Mrs.        Brown's      seizure        after     the

dissipation of reasonable suspicion (the constitutional anchor

point), the usual inquiries must be more than incidents.                                We

accomplished the promotion with some clever melding of our voice

with Rodriguez.          We said that Rodriguez "concluded that asking

for identification is an ordinary inquiry that is related to the

purpose of a lawful stop as part of its dual mission and the
stop 'may last no longer than is necessary to effectuate that

                                            9
                                                                          No.    2015AP756-CR.dk


purpose.'"          Majority         op.,     ¶10    n.9    (quoting          Rodriguez,     135

S. Ct. at     1614-15).             Placing    "dual       mission"       in     the   sentence

where we did suggests that Rodriguez says the "purpose" of the

stop includes both the traffic infraction and the desire to make

the    ordinary      inquiries.             Notwithstanding             our     voice-melding,

however, Rodriguez still says the purpose of the stop is to

address the traffic infraction.

       ¶68    With this promotion from "incident" to parity with the

"purpose of the traffic stop," we freed the usual inquiries from

their constitutional anchor point.                         We observed that "[w]hen

Gonzalez saw the driver of the stopped car was a man, the first

part of the mission ended."                 Majority op., ¶20.                That is to say,

the mission anchored in the Fourth Amendment ended.                               But because

of    the    promotion,        Officer      Gonzalez       didn't        need     to   end   the

traffic stop:        "The second mission of the traffic stop, however,

had    not        been     performed——checking               the        driver's       license,

registration, and insurance."                  Id.     So we concluded that "[t]he

mission of the lawful traffic stop did not end when reasonable
suspicion dissipated because at that moment, the sergeant had

not    completed         the       ordinary     inquiries          of    checking      Smith's

license, registration, and insurance."                        Majority op., ¶21.              Et

voilà:       The advent of a traffic mission that allows a police

officer      to    seize       a   person     with    no    reasonable           suspicion   of

wrongdoing whatsoever.

       ¶69    This       should     shock     us.      The    "reasonable          suspicion"

requirement is not an archaic formula to which we give rote
obeisance.        It is, instead, the only textual link to the Fourth

                                               10
                                                              No.    2015AP756-CR.dk


Amendment's       promise   that    we   shall   be   free   of     "unreasonable"

seizures.        This is the stuff of our deepest bedrock principles:

"[A   person]      may   not   be    detained    even    momentarily       without

reasonable, objective grounds for doing so . . . ."                    Royer, 460

U.S. at 498.         Courts have spent decades fine-tuning what this

principle means in the context of traffic stops.                        They have

scrupled over, for just a few examples, whether the officer may

require drivers to exit their vehicles,9 or make passengers exit

a vehicle,10 or request permission to perform a pat-down search,11

or ask questions unrelated to the traffic stop,12 or conduct a

canine sniff,13 or extend the stop based on discoveries made

while reasonable suspicion exists.14              We went through this very

exercise just last term, when we said:

      [W]e draw the line between traffic stops of proper
      duration and those that extend into unconstitutional
      territory        according        to        functional
      considerations. . . .  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. . . .   He steps across that line (again
      speaking generally) when he maintains the seizure

      9
           Mimms, 434 U.S. 106.
      10
           Wilson, 519 U.S. 408 (1997).
      11
           Arizona v. Johnson, 555 U.S. 323 (2009).
      12
           Id.
      13
           Rodriguez, 135 S. Ct. 1609; Caballes, 543 U.S. 405.
      14
           State v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App.
1999).


                                         11
                                                                  No.    2015AP756-CR.dk

    after he has completed all the                   necessary          functions
    attendant on the traffic stop.
State v. Floyd, 2017 WI 78, ¶22, 377 Wis. 2d 394, 898 N.W.2d 560

(internal citations omitted; emphasis added).                      In all of this,

the courts microscopically examined the purpose of the stop so

that they could identify the point at which it must end.

    ¶70   Identifying       the   end    point        of    the     second     mission

requires no such fastidiousness.              This mission is not based on

"reasonable,    objective     grounds"       to    believe      legal     mischief    is

afoot.       Until   today,    those     grounds          had     always    been     the

constitutional anchor to which we tethered the exercise of an

officer's power during a traffic stop.                And it is the anchor we

now discard.     This mission has no textual link to the Fourth

Amendment, so our new "usual inquiries" jurisprudence sets us at

odds with Royer (and the rest of the Fourth Amendment "seizure"

canon):      The police may detain a person without "reasonable,

objective grounds" for doing so.

    ¶71   This frees traffic stops from constitutionally-defined

limitations on at least two dimensions——length and content.                          In

the pre-Smith world, the duration of the stop was subject to an

externally    imposed   limitation——it            could    last    no     longer    than

necessary to investigate the officer's reasonable suspicion of

wrongdoing.     The second mission has no such limitation.                      So how

long may it last?        Well, we said "the 'ordinary inquiries,'

which are related in scope to the purpose of a traffic stop,

must be executed within the time it should have reasonably taken

to complete them."       Majority op., ¶2.                 In other words, the
inquiries must be executed in the time it takes to execute them.

                                        12
                                                             No.   2015AP756-CR.dk


We also said that Rodriguez "signaled that 'ordinary inquiries'

remain reasonable for the duration of an otherwise lawful stop."

Majority op., ¶19.15      Which is a different way of saying the same

thing.      One of the problems with defining an activity's lawful

boundary in terms of how long the activity lasts is that it is

not possible to cross the boundary.              Ever.     That's the "limit"

we set today on the second part of our brand new dual mission.

      ¶72    The     reason   we        have   traditionally       required     a

constitutional anchor point is so that we may have a boundary

that is not self-referential.             That is, we tie the duration of

the traffic stop to its purpose, and then we tie the purpose to

the reasonable suspicion that inspired the stop, and then we tie

the   reasonable     suspicion     to    the   Fourth    Amendment's    text   by

observing that it prevents unreasonable seizures.                      Thus, the

temporal aspect of the seizure had a constitutional anchor and

limit that was not self-referential.               That's part of what we

lose today.        Because the usual inquiries no longer require the

existence of any reasonable suspicion of wrongdoing, there is no

      15
       The meaning of this statement is not entirely clear. On
its face, its reference to an "otherwise lawful stop" seems to
undermine (in the space of three words) the entire rationale of
the opinion. The only "otherwise" about the lawful duration of
the traffic stop was the existence of reasonable suspicion,
which everyone acknowledges ran out before the officer engaged
in the usual inquiries.   That would mean the inquiries in this
case were extra-constitutional. The other potential reading of
the statement makes it appear we are defining the lawful
duration of the stop in terms of how long it takes to conduct
the inquiries.   That doesn't help at all.     One can't measure
something by reference to itself.     If someone asks after the
height of our Capitol and we say it is one Capitol high, we have
been perfectly accurate while conveying exactly no information.


                                         13
                                                                            No.    2015AP756-CR.dk


link between them and the Fourth Amendment.                           So they may last as

long as they last.                We may eventually encounter a case in which

the   amount      of    time       the     officer       took    to    make       the       ordinary

inquiries     will      make       us    uncomfortable.              But    when       we    try    to

explain why the seizure lasted too long, we'll find that we have

put our constitutional measuring stick beyond our reach.                                         It is

not immediately apparent what will take its place.

      ¶73    The same is true with respect to the contents of the

"usual      inquiries."                 These      aren't        spelled          out       in     the

Constitution,          and    we've       not     given       much    attention         to       their

content     because          an     officer       may     question         drivers          even    on

unrelated subjects so long as they do not extend the traffic

stop.     See Rodriguez, 135 S. Ct. at 1614-15.                            The Supreme Court

explained that the usual inquiries are justifiable "incidents"

of a traffic stop because they "serve the same objective as

enforcement of the traffic code:                        ensuring that vehicles on the

road are operated safely and responsibly."                                 Id. at 1615.              As

incidents,     there         was    an    external       limitation         on    how       far     the
police    could    go        in    "enforc[ing]         the     traffic      code"      during       a

traffic stop, to wit, the amount of time within which there was

reasonable suspicion of wrongdoing.

      ¶74    Because we have elevated the usual inquiries beyond

the   status      of    incidents,             however,       there    is    no     longer         any

external     limitation            on    how    far   they      can   go.         If    demanding

presentation of a driver's license during a traffic stop is

constitutionally             permissible          because       it     "serves          the        same
objective as enforcement of the traffic code," then it must

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certainly be true that ascertaining compliance with the actual

traffic code can be no less constitutional.

       ¶75    Our opinion teaches that the traffic stop does not end

until inquiries related to the safe and responsible operation of

the    vehicle   have   been   conducted.         Enterprising      officers   may

teach us, in turn, that there is a whole lot more to the safe

and responsible operation of a vehicle than a driver's license

and proof of registration and insurance.              See, e.g., Wis. Stat.

§ 347.10(2) (describing the required performance of headlights);

Wis.    Stat.    § 347.13    (describing    the    required     performance     of

taillights); Wis. Stat. § 347.39(2) (describing required exhaust

system       performance    and   safety     requirements);          Wis.   Stat.

§ 347.36(1) (describing required brake system performance); Wis.

Stat. § 347.38(1) (describing the horn's required performance);

Wis.    Stat.    § 347.40    (describing    the    required     performance     of

rear-view mirrors).         Each of these traffic-code provisions is at

least as closely related to the safe and responsible operation

of a vehicle as possession of a driver's license.
       ¶76    Perhaps the court will say that inquiring into these

aspects of the safe and responsible operation of a vehicle is

not part of what we call "usual."           Which would be both true and

irrelevant.       The "usual inquiries" are usual not because the

Constitution says they are, but because the judiciary says they

are.     The only limitation any court has ever placed on them is

that they must be related to the safe and responsible operation

of vehicles, and that they be incidents to the traffic stop.
We've removed the latter limitation, so we are free to give the

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"usual" label to as many inquiries as we wish, so long as they

comply with the "safe and responsible operation" boundary.

      ¶77     The court says this should present no worries because

the   usual       inquiries         are    subject      to   the     constraint      of

"constitutional reasonableness."                 Majority op., ¶32 n.18.         I had

thought this type of reasonableness consisted of "reasonable"

suspicion of wrongdoing.              Our opinion today says that's wrong

(or at least incomplete), so it would have been helpful if we

had described the parameters of this constraint and identified

its reference point in the Constitution.                     The police and our

courts will need this guidance.

                                            B

      ¶78     Authorizing a police officer to seize an individual

when there is no reasonable suspicion of wrongdoing is enough to

send a tremor through the foundation of the Fourth Amendment.

If the United States Supreme Court had explicitly commanded such

a   result,      we    would   be    justified     in   questioning      whether     the

Fourth Amendment's terms really are congruent with Article I
section     11    of    the    Wisconsin    Constitution.16          But    we   aren't

responding       to     an     explicit     command      here——we're       reading     a

"signal."




      16
       "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.


                                            16
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      ¶79    Our opinion carefully avoids an independent analysis

of   whether      Rodriguez     is    truly       responsible        for    this    seismic

event.      Instead, we focus on environmental factors at the time

of the Court's decision:                  "Before applying            Rodriguez      to the

particular circumstances in Smith's case, we first examine the

conditions        surrounding        the      Supreme          Court's        holding      in

Rodriguez."       Majority op., ¶16.              One of the conditions was the

Supreme     Court's    treatment       of    an    Illinois         Supreme     Court    case

involving the same issue we are addressing.                          See majority op.,

¶¶16-19; see also People v. Cummings, 6 N.E.3d 725 (Ill. 2014),

vacated, 135 S. Ct. 1892 (2015).                  We concluded that "[w]hen the

Supreme Court vacated the judgment in Cummings I and remanded

the case to the Illinois Supreme Court for further consideration

in   light   of     Rodriguez    it       signaled      that    'ordinary       inquiries'

remain reasonable for the duration of an otherwise lawful stop."

Majority     op.,    ¶19.17      And      then     we    adopted      the     Cummings     II

analysis of Rodriguez as our own.                       Id. ("The Illinois Supreme

Court's      interpretation          of     Rodriguez          in     Cummings      II     is
correct.").

      ¶80    Armed with the Rodriguez "signal" and Cummings II, we

decided the merits of this case.                     That puts a premium on the

incisiveness of the Cummings II opinion.                            But it appears the

Illinois Supreme Court also relied on signaling.                               In relevant

part, the court said:

      17
       This statement is substantively problematic apart from
the importance it attaches to a Supreme Court "signal."   See
supra note 15.


                                            17
                                                             No.    2015AP756-CR.dk

       The seizure's mission consists of the purpose of the
       stop——in Rodriguez, traffic enforcement——and "related
       safety concerns."     Those related safety concerns
       include "'ordinary inquiries incident to [the traffic]
       stop,'" and typically "involve checking the driver's
       license, determining whether there are outstanding
       warrants against the driver, and inspecting the
       automobile's registration and proof of insurance."
People v. Cummings, 46 N.E.3d 248, 251 (Ill. 2016) (citations

omitted).      The    court   concluded   that   the    traffic         stop   may

continue even without the existence of reasonable suspicion of

wrongdoing because "[t]he interest in officer safety permits a
driver's license request of a driver lawfully stopped."                    Id. at

253.

       ¶81   The Cummings II analysis is an unabashed bootstrap.

Between Officer Doe and Mrs. Brown, it would sound something

like this:

       "Why are you continuing my seizure?" Mrs. Brown asked.

       "To engage in the usual inquiries," replied Officer
       Doe.

       "But why do you need to engage                  in     the      usual
       inquiries?" persisted Mrs. Brown.

       "To   ensure    my     safety,"    Officer      Doe         patiently
       explained.

       "Why is your safety an issue?"

       "Because I'm continuing       your   seizure,        of     course,"
       concluded Officer Doe.
       ¶82   Is it really necessary to point out that concerns over

the officer's safety would vanish if he ended the seizure?                      Or

that ending the seizure would make the usual inquiries moot?

       ¶83   So, based on nothing more than a Supreme Court signal
and the Illinois Supreme Court's interpretation of that signal,

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                                                        No.   2015AP756-CR.dk


we decided that the Fourth Amendment permits the seizure of an

individual without reasonable suspicion of wrongdoing.                 That's

an awfully momentous decision to base on a signal.

                                     III

    ¶84     We ask, semi-rhetorically:         "But in these particular

circumstances,    does   the   Fourth      Amendment   require    a     police

officer to freeze, do an about-face, and walk away?"                  Majority

op., ¶15.     The answer is definitively "no."           But not for the

reasons we gave, and certainly not with the same consequences.

    ¶85     The real reason the answer is "no" is because the

officer deprived Mr. Smith of his liberty and had no continuing

justification    for   withholding    that   liberty   from   him.       Once

seized by a police officer during a traffic stop, a driver may

not leave until the traffic stop is finished.             See Wis. Stat.

§ 346.04(2t) ("No operator of a vehicle, after having received a

visible or audible signal to stop his or her vehicle from a

traffic officer or marked police vehicle, shall knowingly resist

the traffic officer by failing to stop his or her vehicle as
promptly as safety reasonably permits."); see also, Arizona v.

Johnson, 555 U.S. 323, 333 (2009) ("Normally, the stop ends when

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

the driver and passengers they are free to leave.").                   So, in

these circumstances, the officer's clear, unequivocal, mandatory

duty was to approach Mr. Smith and inform him he was free to




                                     19
                                                              No.   2015AP756-CR.dk


leave.18        Of   course,   if     the    officer    develops    a   reasonable

suspicion of wrongdoing during this brief interaction, he may

proceed with the seizure just as if the reasonable suspicion had

never lapsed.

       ¶86     If our focus is on whether it was a good thing to

catch Mr. Smith, then this is a galling result, given what we

know about his state of inebriation when Officer Gonzalez seized

him.        But the Constitution is not a Dorian Gray-like bargain in

which we accept the beauty of apprehending Mr. Smith in exchange

for    the     ugliness   of   Mrs.    Brown's      unreasonable    seizure.   The

Constitution's instruction on this question is categorical:                      A

person may not be "detained even momentarily without reasonable,

objective grounds for doing so."                 And because it is categorical,




       18
       The court says my analysis would not allow the officer to
excuse Mr. Smith because I eschew "any further contact with the
driver . . . past the moment reasonable suspicion dissipates."
Majority op., ¶15 n.12.     I don't think that is so.      Every
traffic stop must eventually end, and it ends when the officer
tells the motorist he is free to go. Johnson, 555 U.S. at 333.
The duty to release the motorist stems from the constitutional
mandate that a person "may not be detained even momentarily
without reasonable, objective grounds for doing so . . . ."
Florida v. Royer, 460 U.S. 491, 498 (1983).     Actualizing that
mandate requires the officer to approach the motorist to tell
him the seizure is over.     Requiring production of a driver's
license, and proof of registration and insurance, however, does
nothing to further that task.


                                            20
                                                                            No.    2015AP756-CR.dk


it applies even when it means we don't catch Mr. Smith and his

like.19

       ¶87        It is important, essential even, to consider how our

decision impacts Mrs. Brown.                        Neither she nor anyone like her

will ever come before this court, for she has done nothing wrong

and, consequently, will never be party to a case we can review.

But we have, nonetheless, decided how she may be treated.                                         So

Mrs.    Brown          may       spend    an   evening      fielding    calls          from   irate

parents       asking         why     their     children      were    lined        up    along    the

roadside while a narcotics-detection dog searched the minivan.

After       the       last    call,      perhaps     she    will     pull    out       her    pocket

Constitution and puzzle over why the promise of freedom from

unreasonable seizures means she can be seized for no reason at

all.        Because          I    can't    explain       that   to   her,     I    respectfully

dissent.

       ¶88        I    am    authorized        to   state    that    Justices          SHIRLEY    S.

ABRAHAMSON and ANN WALSH BRADLEY join this dissent.

       19
       To illustrate why my analysis is untenable, the court
proposes an alternate scenario in which the apparently innocent
minivan driver is actually a sex trafficker. Majority op., ¶32
n.18. Conducting the usual inquiries in those circumstances, it
says, would have revealed there was criminal behavior afoot.
True enough. But doesn't that just prove my point? The court's
scenario could be read as favoring suspicion-free police
investigations because of the results they might produce.   But
we don't measure the constitutionality of a search in terms of
its effectiveness in revealing hidden malefaction. According to
Royer, we measure it in terms of reasonable suspicion of
wrongdoing.   If the investigation is not necessary to address
the purpose of the stop, it may last only as long as there is
reasonable suspicion. Johnson, 555 U.S. at 333. Suspicion-free
investigations like the one the court described might be very
productive, but that doesn't make them constitutional.


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    No.   2015AP756-CR.dk




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