Wisconsin Supreme Court throws out drug conviction over officer's lack of probable cause in keeping Sheboygan woman driver's license

A divided Wisconsin Supreme Court on Friday threw out one conviction but upheld another in cases in which drivers challenged whether police officers' really had probable cause for detaining them or were acting solely on hunches and bias over past drug use.

In a case from Sheboygan, the court in a 4-3 decision vacated the drug possession conviction of a woman who was sitting in her parked pickup truck with a passenger in November 2017.

Based on an anonymous call that a truck had been parked for about an hour near 6th Street and Superior Avenue, Sheboygan Police Officer Sung Oetzel pulled up behind, put on his lights and told Heather VanBeek about the call.

She told Oetzel she had picked up her boyfriend and they were visiting and they'd been parked less than an hour. Oetzel took their driver's licenses, ran them and found no outstanding warrants. But he did learn VanBeek had a prior overdose incident and that her boyfriend was on supervision.

Based on that, the officer requested a drug-sniffing dog come to the scene and returned to VanBeek's truck. But instead of giving back their licenses, he repeated a lot of questions they had answered earlier and asked new ones, buying time until the dog appeared. The dog alerted on some methamphetamine and a pipe in the truck, resulting in VanBeek's arrest about 25 minutes after the officer first approached. 

The majority, in an opinion written by Justice Patience Roggensack, found that in the "totality of the circumstances," the officer didn't have probable cause to extend the interaction with VanBeek.

But the court did not go so far as to conclude that taking someone's license amounts to a seizure of the driver, a question the Court of Appeals had certified to the high court. It could be, the court said, but would depend on the totality of the circumstances.

In a concurring opinion, Justice Rebecca Dallet wrote that the circumstances suggest VanBeek was in fact seized when Oetzel first took her driver's license, because "at that point, a reasonable person would not feel free to leave or to otherwise end the interaction." 

But Dallet agreed a driver who hands her license to an officer is not always the subject of a seizure. Her opinion was joined by Justices Ann Walsh Bradley and Jill Karofsky.

Chief Justice Annette Ziegler wrote the dissent. She found VanBeek could have asked for her license back after Oetzel returned to her truck and considered the whole interaction consensual and never a seizure. Justices Brian Hagedorn and Rebecca Bradley joined Ziegler's opinion.

In another 4-3 decision, the court upheld a stop in West Allis by an officer who had seen a car stop briefly outside the home of a known drug user.

For that majority, Hagedorn found the totality of the circumstances did amount to reasonable suspicion of an illegal drug transaction. He was joined by the three other conservative justices.  Dallet, Ann Walsh Bradley and Karofsky dissented.

According to court records, James Genous was parked in the street about 3 a.m. After he turned off his headlights, a woman came from a nearby house, entered the car for about 20 seconds and returned to the house. Genous put his lights back on and drove away.

An officer who had been watching pulled Genous over about three blocks later and saw a gun in his car. He was charged with being a felon in possession of a firearm. A judge denied his motion to suppress the gun as evidence based on an unlawful stop, but the Court of Appeals sided with Genous.

Hagedorn's majority opinion notes all the factors — the time of day, the specific location in West Allis, the brief duration of the woman's visit to Genous' car and that woman was a known drug user — gave the officer reasonable suspicion of a drug crime.

In dissent, Dallet wrote, "the record contains insufficient particular facts, as opposed to generalized suspicions and hunches, that Genous had committed or was about to commit a crime."

Allowing the mere claim that an area hosts lots of drug trafficking to weigh heavily on the analysis "continues a troubling erosion of the Fourth Amendment's particularized-suspicion requirement" for lawful stops, Dallet wrote.

Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.