State v. Griffith

ANN WALSH BRADLEY, J.

¶ 71. (dissenting). The crux of this case is whether a reasonable person in Terry Griffith's position would have felt free to disregard the officer's questions and to go about his business. The majority answers this question in the affirmative. I disagree.

¶ 72. The facts reveal that the Bonneville, in which Griffith was a rear passenger, entered a residential driveway and stopped. Detectives Larrabee and Warmington pulled into the driveway behind the vehicle to block any attempted exit. As Tyrone Malone began to exit the Bonneville with the intent to enter the residence, the officers approached the vehicle while displaying their badges and ordered Malone and all other occupants to remain inside the vehicle.

¶ 73. Investigator Geller, responding to a call for assistance, arrived next on the scene in an unmarked squad car. On his heels followed the arrival of Patrol Officer Jackson in a marked squad car and Patrol Officer Waystedt in a separate marked squad car.

¶ 74. It is against this backdrop of a blocked exit and an order to remain inside the car, surrounded by five police officers and four police vehicles, that the majority concludes a reasonable person in Griffith's position would have enjoyed the freedom to disregard *77 Officer Warmington's questions and go about his business. The test set forth in Florida v. Bostick, 501 U.S. 429, 437 (1991), establishes that in the absence of reasonable suspicion, police may ask questions of an individual "so long as the officers do not convey a message that compliance with their requests is required." The facts in this case fail to meet that test.

¶ 75. I agree with the majority that the initial traffic stop in this case, supported by reasonable and articulable suspicion, constituted a lawful seizure of Griffith. A reasonable seizure as to the driver of a detained car is necessarily reasonable as to all other occupants of the car. See Delaware v. Prouse, 440 U.S. 648, 653 (1979); State v. Harris, 206 Wis. 2d 243, 254-57 , 557 N.W.2d 245 (1996).

¶ 76. The request for Griffith's identification, however, severed the constitutional chain stemming from the initial vehicle stop and was not part and parcel of one lawful detention. See Harris, 206 Wis. 2d at 260 n.14. 1 Griffith was seized apart from the traffic stop when he was questioned while not enjoying the freedom to terminate the interrogation. This seizure was unreasonable because it was not supported by either individualized suspicion or a legitimate law enforcement purpose. Griffith's interrogation therefore violated his Fourth Amendment rights.

¶ 77. Fourth Amendment jurisprudence centers on the preservation of an "inestimable right of personal security." Terry v. Ohio, 392 U.S. 1, 8-9 (1968). Not all interrogations relating to one's identity infringe upon this right or constitute seizures implicating concerns of *78 an unconstitutional magnitude. I.N.S. v. Delgado, 466 U.S. 210, 216 (1984). Effective police practice may indeed warrant identity questioning under other facts.

¶ 78. Such questioning assumes the status of a seizure only when the facts taken in the aggregate demonstrate a show of official authority such that a reasonable person would not feel free to walk away from the questions posed. Florida v. Royer, 460 U.S. 491, 502 (1983) (plurality opinion). Essentially, one is seized in the absence of freedom to terminate the encounter and to disregard the interrogation. Bostick, 501 U.S. at 436-37 .

¶ 79. The majority concedes that the questions posed to Griffith intruded upon his personal liberty. Majority op. at ¶ 44. The majority further concedes that a person in Griffith's position would feel "less free to ignore the officer's questions." Majority op. at ¶ 53. Yet, the majority perpetuates a legal fiction by reasoning that Griffith could have chosen not to respond under the facts presented.

¶ 80. After following the Bonneville as it entered a residential driveway, Detectives Larrabee and Warmington pulled in behind the car and blocked the driveway to prevent the car's exit. Blocking a person's path or exit constitutes conduct that a reasonable person would deem threatening and suggests that a seizure has occurred. 4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 103-04 (3d ed. 1996).

¶ 81. Emerging from his car and displaying a police badge as he approached the Bonneville, Officer Warmington then ordered the occupants of the Bonneville to remain inside the car. This command to stay in the car represented an obvious show of force that precluded Griffith from walking away from the situation. See State v. Mendez, 970 P.2d 722, 729 (Wash. 1999) *79 (noting that police officer's order for passenger to get back into the car constituted a seizure of passenger).

¶ 82. Although the restriction of mobility does not necessarily lead to a determination that Griffith was unable to disregard the officer's questions, it nevertheless represents a critical factor indicating that Griffith was seized. "An unequivocal verbal command is far more likely to produce the perception of restricted liberty than a mere approach." People v. Spicer, 203 Cal. Rptr. 599, 603 (Cal. Ct. App. 1984).

¶ 83. Three additional law enforcement officers arrived in three separate squad cars and stood next to the Bonneville as Griffith was questioned. Thus, a total of five police officers and four police vehicles were present at the scene of the interrogation. The presence of numerous law enforcement officers surrounding a person represents yet another factor indicating a seizure. United States v. Mendenhall, 446 U.S. 544, 554 (1980); LaFave, Search and Seizure, § 9.3(a) at 104.

¶ 84. The majority seeks shelter from the length of the detention and presumes that Griffith's questioning followed shortly after the stop of the vehicle. Majority op. at ¶¶ 54-56, 61. This emphasis on the duration of the stop ignores the intimidating nature of the circumstances involved. Interrogation that lasts one minute under a coercive atmosphere lasts one minute too long.

¶ 85. Taken together, the facts surrounding Griffith's interrogation compel the conclusion that a reasonable person in his position would not have enjoyed the freedom to terminate the encounter with Officer Warmington or to disregard the questions posed and to go about his business. 2 Indeed, it is fanci *80 ful to claim that Griffith was not seized upon the questioning as to his identity.

¶ 86. Once a seizure had been established, the subsequent inquiry centers on the reasonableness of that seizure. The seizure in this case may have survived constitutional scrutiny if it were nevertheless reasonable. It was not. The touchstone of analysis under the Fourth Amendment is reasonableness in view of the totality of the circumstances. Terry, 392 U.S. at 19 . To be reasonable under the Fourth Amendment, a seizure ordinarily must be predicated on individualized suspicion of misconduct. Chandler v. Miller, 520 U.S. 305, 308 (1997); Terry, 392 U.S. at 21 .

¶ 87. To that end, Brown v. Texas, 443 U.S. 47 (1979), is instructive. Although the majority attempts to distinguish the relevance of Brown , it acknowledges the general proposition for which the case stands. Majority op. at ¶¶ 29-34. Brown cautions that absent reasonable suspicion of individual misconduct, officers may not seize a person for the purposes of requiring identification or questioning related to that person's *81 identity. 443 U.S. at 51-52 . See also Delgado, 466 U.S. at 216 (discussing Brown).

¶ 88. As mentioned, Griffith was seized subsequent to the initial traffic stop when he was questioned in circumstances evincing the inability to disregard the questioning. Rather than reflecting any reasonable suspicion of misconduct, Officer Warmington's trial testimony indicates that he acted on the proverbial "hunch[ ]" that Terry, 392 U.S. at 22 , explicitly refused to sanction:

Q: Was there a third person inside that vehicle?

A: Yes, there was.

Q: And where was that person seated?

A: To the left rear behind the driver.

Q: What were your initial observations when you first saw him?

A: Light skinned black male, square jaw, blemishes on his face, appeared to be somebody that to me I knew I had contact with. I couldn't recall the party's name.

Q: Did you ask the rear passenger for any identification?

A: Yes, I did.

¶ 89. No specific and articulable facts constituting reasonable suspicion can be gleaned from the record to support the intrusion posed by Griffith's interrogation. A hint of recognition is an inadequate justification, absent individualized suspicion, for subjecting the passenger to questioning that infringes upon the passenger's protected right of privacy and that occurs in an atmosphere of intimidation.

*82 ¶ 90. Absent individualized suspicion, a determination of reasonableness hinges on whether important governmental objectives are to be advanced by the seizure. Limited circumstances may render a seizure reasonable despite the absence of such suspicion if the privacy interests implicated by the seizure are minimal, and an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion. Chandler, 520 U.S. at 314 (quoting Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 624 (1989)). Here, the actual record is devoid of any reference to legitimate law enforcement objectives or public interest concerns to justify the intrusion upon Griffith's right to privacy.

¶ 91. There is no testimony whatsoever in the record supporting the majority's theory that the questions directed at Griffith were asked to further the investigation. In the absence of testimony to support its theory, the majority nevertheless imputes such motivation to the officers. What the record reveals instead is that the officers confirmed the basis of their traffic stop when they discovered that the driver of the Bonneville indeed had been driving without a license.

¶ 92. If, as the majority claims, any ambiguity existed concerning Damien Robinson's particular driving status, neither the majority nor the officers have adequately explained how requesting Griffith's name, age, and apparently his home address would illuminate the officers as to Robinson's driving status. Rather, a check with the Department of Motor Vehicles would have remedied any ambiguity.

¶ 93. Furthermore, the officers never expressed the intent to inquire whether Griffith himself had a valid license so that he could drive the Bonneville out of the driveway. The fact that the Bonneville had entered *83 a residential driveway and that Malone intended to enter the residence suggests that the occupants had reached their destination. Unlike a traffic stop on a highway, here there is nothing to suggest that the car needed to be removed from its location.

¶ 94. People v. Spicer, 203 Cal. Rptr. 599 (Cal. Ct. App. 1984), presents similar facts to this case. The passenger in Spicer had been lawfully stopped based on a suspected traffic violation. Upon discovering that the driver of the car was intoxicated and unable to drive, one officer requested a driver's license from the passenger. As she searched for the license, the officer discovered a gun in her purse.

¶ 95. The passenger's motion to suppress the weapon was granted and eventually upheld. The court concluded that she had been seized when asked for her license because the encounter was sufficiently intimidating to preclude her refusal of the officer's request. Id. at 602-03 . In the absence of individualized suspicion as to the passenger, the request for identification constituted an unlawful seizure. Id. at 604-05 .

¶ 96. The Spicer court acknowledged that the officer had presented a legitimate basis for his request: in the event that the driver was arrested for drunk driving and the vehicle was charged to the care of the passenger, the officer wished to verify that the passenger possessed a valid California driver's license. Id. at 601 . Nevertheless, the court determined that the officer's failure to convey this justification to the passenger contributed to the coercive nature of the request. Id. at 603 .

¶ 97. Unlike the officer's testimony in Spicer , in the present case there is no testimony whatsoever suggesting that Officer Warmington predicated his request for Griffth's name and age on furthering a *84 legitimate governmental objective. Although the majority imputes to the officer motives of promoting the public interest, the record provides no intimation of these laudable motives.

¶ 98. What the record reveals instead is an officer acting on an "inarticulate hunch[ ]." Terry, 392 U.S. at 22 . Weighing the unexpressed public interest against Griffith's interest in personal security tips the scale in favor of Griffith's right to be free from arbitrary interference by law enforcement under these particular facts. United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). 3

¶ 99. It is of course a proper police procedure to request identification in a myriad of situations, but not here. Griffith was questioned under circumstances in which he was not free to disregard the police questions and to go about his business. This seizure was unreasonable because based on the record it was not supported by either individualized suspicion or a desire to further a legitimate law enforcement objective.

¶ 100. By dismissing the significant degree of intimidation in this case, as well as the absence of both *85 individualized suspicion and legitimate law enforcement objectives, the majority sanctions the indiscriminate interrogation of a countless number of passengers whose only transgression is their presence in vehicles stopped for traffic violations. It is the concern of sanctioning such indiscriminate interrogation that spurs a dissent in this fact-specific case.

¶ 101. Facts shape the contours of our constitutional guarantees. When the majority lowers the standard to meet the facts in this case, it dilutes the constitutional rights of us all. Bit by bit, almost unnoticed, our constitutional freedoms may be eroded until one day we awaken to discover that those freedoms for which so many have fought and sacrificed have been diminished. Accordingly, I dissent.

¶ 102. I am authorized to state that SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE, joins this dissenting opinion.

In State v. Harris, 206 Wis. 2d 243 , 260 n.14, 557 N.W.2d 245 (1996), this court recognized that a reasonable traffic stop does not foreclose the assessment of a subsequent detention that is subject to Fourth Amendment constraints.

In Florida v. Bostick, 501 U.S. 429, 437 (1991), the United States Supreme Court suggested that the bus passenger who *80 had been asked for consent to a search of his bags was not seized because a reasonable person in his position would have felt free to terminate the encounter with the law enforcement officers. One of the factors upon which the Court hinged its determination was that the officers had conveyed to the passenger his right to refuse consent. Id. The Court mentioned that the passenger's knowledge of his right to refuse consent was a fact "particularly worth noting." Id. at 432 .

No steadfast and blanket requirement exists mandating that officers advise a detained passenger of the right to refrain from answering questions. However, in the circumstances of this case, the absence of such advisement is another factor that reveals the intimidating nature of Griffith's interrogation.

The majority attempts to distinguish Holt v. State, 487 S.E.2d 629 (Ga. Ct. App. 1997), but does so without success. In both Holt and the present case, the basis for the initial stop had been confirmed prior to the interference with the passenger's privacy interests in the form of a request for identification.

The fact that the driver in Holt had a valid driver's license, as well as the fact that the officer had issued citations prior to the unlawful questioning, represent factual distinctions without a difference for the purposes of the present analysis. Holt stands for the proposition that an officer lacking reasonable and individualized suspicion of criminal activity is not engaged in the lawful discharge of official duties when inquiring about a person's identity and age. 487 S.E.2d at 632-33 .