2015 WI 76



# S UPREME 

# C OURT OF 

# W ISCONSIN

C ASE N O .: 2013AP430-CR C OMPLETE T ITLE : State of Wisconsin,

Plaintiff-Respondent, v. Patrick I. Hogan, Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 354 Wis. 2d 622, 848 N.W.2d 903)

(Ct. App. 2014 – Unpublished)

O PINION F ILED : July 10, 2105 S UBMITTED ON B RIEFS : O RAL A RGUMENT : March 4, 2015

S OURCE OF A PPEAL : C OURT : Circuit C OUNTY : Grant J UDGE : Craig R. Day

J USTICES : C ONCURRED : ZIEGLER, J., concurs. (Opinion Filed) D ISSENTED : N OT P ARTICIPATING : BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion

Filed.)

A TTORNEYS : For the defendant-appellant-petitioner, there were briefs by Nicholas J. Passe and Moen Sheehan Meyer, Ltd. , La Crosse, and oral argument by Nicholas J. Passe

.

For the plaintiff-respondent, the cause was argued by Tiffany M. Winter , assistant attorney general, with whom on the brief was Brad D. Schimel , attorney general.2015 WI 76

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP430-CR (L.C. No. 2012CF147)

STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin, Plaintiff-Respondent,

v. Patrick I. Hogan, Defendant-Appellant-Petitioner. 

## FILED JUL 10, 2015

Diane M. Fremgen Clerk of Supreme Court

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

¶1 DAVID T. PROSSER, J. This is a review of an unpublished decision of the court of appeals, 1 which affirmed a judgment convicting Patrick I. Hogan (Hogan) of pos session of methamphetamine and child neglect. Hogan pled no c ontest to these charges after the Grant County Circuit Court 2 denied Hogan's motion to suppress evidence obtained during a search of his truck.

1 State v. Hogan, No. 2013AP430-CR, unpublished slip op. (Wis. Ct. App. May 15, 2014).

2 Craig R. Day, Judge.No. 2013AP430-CR

2 ¶2 This fact-intensive case focuses on the reasonab leness of police conduct after a lawful traffic stop. Aft er a sheriff's deputy stopped the defendant for a seat b elt violation, the deputy observed what he believed to be indicia of the defendant's drug use. With this in mind, he ca lled for backup. He then wrote out seat belt citations for the defendant and the defendant's wife, who was not wearing her s eat belt properly. Before the deputy had finished the citat ions, a local officer who knew of the defendant arrived on the sc ene. ¶3 The officer reported that his department had rec eived tips that the defendant had "961 issues" and was a "shake and bake" methamphetamine cooker. ¶4 With his suspicions about the defendant somewhat confirmed, the deputy asked the defendant to perfor m a series of field sobriety tests. When the defendant passed al l tests, he was told he was free to leave. At this point about 24 minutes had elapsed from the time the deputy initiated the traffic stop.¶5 Approximately 16 seconds later, the deputy reapproached the defendant and asked several question s, including
whether the defendant would consent to a search of his truck. The defendant consented and the officers found meth amphetamine, equipment and supplies commonly used to manufacture methamphetamine, and two loaded handguns. One gun was close to the defendant's two-year-old daughter, who was sitt ing in a child's car seat behind her mother in the back of t he truck. ¶6 The defendant sought to suppress this evidence. Suppression hinges on the answer to three questions . First, didNo. 2013AP430-CR

3 the deputy have reasonable suspicion to extend a la wful traffic stop about seat belts to investigate whether the de fendant was under the influence of drugs in the operation of hi s vehicle by having the defendant perform field sobriety tests? Second, if the traffic stop was not lawfully extended to inves tigate drug use by the defendant, was the defendant's subsequen t consent to search his truck tainted by prior illegality, so th at the evidence seized was inadmissible? Third, was the d efendant constructively seized without reasonable suspicion when the deputy re-approached the defendant's vehicle to req uest consent to search? ¶7 The defendant argues that the deputy lacked reas onable suspicion to ask that the defendant perform field s obriety tests. He contends that there were innocent explan ations for the observations that the deputy made, and that the deputy was acting on nothing more than a hunch and unsubstanti ated information from a fellow law enforcement officer. The defendant further argues that the taint of an illeg al extension affected the deputy's request for consent to search , rendering the consent invalid and all evidence obtained in th e search inadmissible. Finally, the defendant argues that h e was constructively seized without reasonable suspicion when the deputy re-approached his vehicle to ask for consent to search. ¶8 The State counters that possible innocent explan ations do not render the deputy's observations meaningless in analyzing the basis for reasonable suspicion. The State also argues that, even if the extension was illegal, the stop ended w hen theNo. 2013AP430-CR

4 deputy told the defendant he was free to leave. Th e State argues the defendant was not seized within the mean ing of the Fourth Amendment when the deputy asked him for cons ent to search his truck, and the defendant's consent was therefor e valid. Alternatively, the State contends that any illegali ty was so attenuated from the defendant's consent that the ta int of the illegality had dissipated by the time the defendant gave
consent. ¶9 Although the question of whether the deputy had reasonable suspicion to extend the traffic stop to administer field sobriety tests is a close one, we conclude th at the extension was unlawful based on the evidence presen ted. However, the defendant's subsequent consent to sear ch his vehicle came after the traffic stop had ended and t he defendant was told he was free to leave. Because the police did not exploit the unlawful extension of the stop in order to gain Hogan's consent to search his vehicle, attenuation analysis is unnecessary in this case. Furthermore, Hogan was n ot constructively seized when he gave consent to searc h his truck.
We therefore conclude that the defendant's consent was valid and that it was not error for the circuit court to deny the defendant's motion to suppress the evidence recover ed from his
truck. ¶10 Accordingly, we affirm the decision of the cour t of appeals.

I. FACTUAL AND PROCEDURAL BACKGROUNDNo. 2013AP430-CR

5 ¶11 On May 12, 2012, Deputy Andrew Smith of the Gra nt County Sheriff's Department was driving his squad c ar north on Wisconsin Avenue in the City of Boscobel. It was a bout 6:10 p.m. Deputy Smith stopped at the corner of Wiscons in Avenue and Oak Street. He saw a Chevrolet truck pass in front of him traveling east. The driver, Patrick Hogan, was not wearing a seat belt. Deputy Smith turned right and activated his emergency lights. The truck promptly pulled to a s top in front of the Blaine Theatre. ¶12 When Deputy Smith approached the truck, he saw Hogan's wife in the front passenger seat. She was wearing her seat belt improperly with the shoulder strap underneath her a rm. He also saw the couple's two-year-old child seated directly behind Mrs. Hogan in a child safety seat. ¶13 As soon as Deputy Smith began speaking with Hog an, he noticed that Hogan was "very nervous," "real nervou s," and "shaking real bad" with upper body tremors. He als o noticed that Hogan's "pupils were restricted," which he bel ieved was "an indicator of drug use." Deputy Smith acknowledged later that he was not a drug recognition "expert" but said he bas ed his observations on his 12-1/2 years experience as a de puty and his frequent review of a "pupilometer," which he descri bed as "a little card that has different size black marks" wh ich are "measured in millimeters." The card was provided t o him in connection with his field sobriety training. ¶14 Deputy Smith collected the licenses of both Mr. and Mrs. Hogan and returned to his squad. He immediate ly requestedNo. 2013AP430-CR

6 backup from Boscobel police and stressed his observ ations about Hogan's extreme nervousness and constricted pupils. ¶15 Shortly thereafter, the audio portion of the sq uad car video reflects a repeated announcement, "Warning, p otential hit." The record does not explain whether this ann ouncement pertained to Hogan, who was on probation for second -degree reckless injury and had a number of other criminal convictions. ¶16 Before Deputy Smith completed the citations, he was joined by Boscobel Police Officer Travis Dregne. U pon learning of Hogan's identity, Officer Dregne immediately rem arked that Hogan had "961 issues," referring to the Wisconsin statutory chapter on controlled substances. Officer Dregne a lso told Deputy Smith that "he received tips that Mr. Hogan' s a shake and bake methamphetamine cooker." 3 Deputy Smith then requested a police K9 unit via radio. ¶17 Upon learning that the K9 unit was unavailable, Deputy Smith determined that he would ask Hogan to perform field sobriety tests. Approximately three minutes later, he completed the citations and printed them out. A total of app roximately 13 minutes had passed since Deputy Smith initiated the stop. ¶18 Deputy Smith then approached Hogan and asked hi m to step out of the truck. He explained to Hogan that he had made observations that he thought were consistent with d rug use.

3 "Shake and bake" or "one pot" methamphetamine prod uction is a manufacturing process used to produce small am ounts of methamphetamine, often for personal use. See Rapha el S. Nemes, Note, Shake and Bake: The Meth Threat and the Need to Rethink 21 U.S.C. § 841(C)(2), 88 Wash. U. L. Rev. 993, 999 (2 011).No. 2013AP430-CR

7 Hogan's quick response was "I don't use drugs." He then suggested that Deputy Smith's observations might be due to Hogan's use of Adderall, for which he said he had a prescription. Deputy Smith replied that Adderall d oes not cause the symptoms he was observing, and he asked Hogan i f he would perform a series of field sobriety tests. Hogan co mplied. ¶19 Deputy Smith had Hogan perform four tests: the horizontal gaze nystagmus test, the walk and turn, the one leg stand, and the alphabet test. These tests took app roximately eight minutes. Deputy Smith determined that Hogan did not show any signs of impairment and informed Hogan he was f ree to leave. ¶20 Hogan got back into his vehicle and closed the door but did not start the truck and leave, even though his house was across the street. Deputy Smith returned to his sq uad car and spoke with Officer Dregne. They discussed asking f or a consent search. Approximately 16 seconds after Deputy Smit h told Hogan he could leave, he returned to Hogan's stationary v ehicle and said, "Hey, sir, can I talk to you again?" ¶21 Hogan got out of his truck. Deputy Smith asked Hogan if there were any weapons or drugs in the truck. H ogan replied that there were not. Deputy Smith then asked Hogan if he could search the vehicle. Hogan assented to Deputy Smith 's request, motioning for Deputy Smith to take a look. Deputy Smith asked for verbal confirmation of Hogan's consent and Hoga n replied "Why not. Yeah. Go ahead." ¶22 Deputy Smith and Officer Dregne searched Hogan' s truck. Hogan's wife disclosed to Officer Dregne th at she had aNo. 2013AP430-CR

8 handgun in her purse, but did not have a concealed carry permit. In addition to that gun——a .380 caliber Taurus semi -automatic pistol——they found a loaded Walther .22 caliber pis tol behind the passenger seat near the couple's child. ¶23 Deputy Smith and Officer Dregne also recovered muriatic acid, two glass bottles containing clear l iquids, and a medicine bottle bearing Hogan's name that contained a substance later identified as methamphetamine. The officers also recovered paraphernalia used to manufacture methamp hetamine, including coffee filters, syringes, rubber gloves, and a heating canister. These items, including the loaded .22 pi stol, were stored approximately one foot from the child. ¶24 On May 14, 2012, Hogan was charged with possess ion of methamphetamine, manufacturing methamphetamine, pos session of a firearm by a felon, and child neglect. 4 ¶25 On June 12, 2012, Hogan filed a motion to suppr ess evidence from the search. He argued that any evide nce recovered after Deputy Smith told him he could leave was ille gally obtained because Deputy Smith seized Hogan for a se cond time when he re-approached Hogan's vehicle even though h e lacked reasonable suspicion to do so. On the same day, Ho gan filed a

4 Contrary to Wis. Stat. §§ 961.41(3g)(g), 961.41(1) (e1), 941.29(2)(a), and 948.21(1)(a). All subsequent ref erences to the Wisconsin Statutes are to the 2011-12 version u nless otherwise indicated.No. 2013AP430-CR

9 motion to dismiss, arguing that the State failed to preserve evidence material to his guilt or innocence. 5 ¶26 On June 21, 2012, Hogan filed another motion to suppress, this time arguing that the traffic stop w as illegally extended when Deputy Smith required Hogan to perfor m field sobriety tests. Hogan based this contention on the premise that Deputy Smith lacked reasonable suspicion that Hogan was under the influence of drugs. ¶27 That same day, the circuit court denied Hogan's original motion to suppress the evidence from his t ruck. The court reasoned that Hogan had freely consented to a search of his vehicle and therefore it was not an unlawful ex tension of the stop. However, the court expressed uncertainty about whether the field sobriety tests were a lawful exte nsion of the original stop, and requested informal briefing on t he matter. ¶28 The circuit court denied Hogan's second motion on July 10, 2012. Although the court determined that Deput y Smith illegally extended the stop when he administered th e field sobriety tests, it concluded that Hogan's subsequen t consent sufficiently tempered the illegality of the extensi on and that suppression was not necessary. ¶29 On July 27, 2012, Hogan pled no contest to poss ession of methamphetamine and child neglect. As part of t he plea agreement, the State dismissed the charges for manu facturing

5 This issue has not been argued before this court, and we do not address it.No. 2013AP430-CR

10 methamphetamine, possession of a firearm by a felon , and the seat belt citation. The court found Hogan guilty a nd entered a judgment of conviction on September 27. ¶30 On October 12, 2012, Hogan gave notice of his i ntent to seek postconviction relief from the orders denyi ng his motions to dismiss and suppress. On May 15, 2014, the court of appeals affirmed the conviction and the circuit cou rt's denial of the motions. State v. Hogan, No. 2013AP430-CR, unpublished slip op. (Wis. Ct. App. May 15, 2014). The court r easoned that Hogan was not constructively seized when Deputy Smi th conducted a search of his vehicle. Id., ¶12. The court also affirmed the circuit court's ruling that Hogan's consent "was su fficiently attenuated from the taint of the illegal detention. " Id., ¶19. ¶31 On June 16, 2014, Hogan filed a petition for re view with this court, which we granted on November 13, 2 014.

II. STANDARD OF REVIEW ¶32 Whether a defendant's constitutional rights, in cluding his rights under the Fourth Amendment, have been vi olated is a question of constitutional fact. Resolving questio ns of constitutional fact is a two-step process. State v . Martwick, 2000 WI 5, ¶17, 231 Wis. 2d 801, 604 N.W.2d 552. W e first uphold the circuit court's findings of historical f act unless they are clearly erroneous. Id., ¶18. We then ind ependently apply constitutional principles to those facts. Id

. III. DISCUSSION ¶33 This case requires us to analyze different segm ents of an extended traffic stop. The evidence that the de fendant seeksNo. 2013AP430-CR

11 to suppress was not acquired until a third distinct period of the stop about 28 minutes after its initiation. A. Extension of the Stop ¶34 The Fourth Amendment to the U.S. Constitution p rotects individuals from unreasonable searches and seizures . U.S. Const. amend. IV. "There is no question that a pol ice officer may stop a vehicle when he or she reasonably believ es the driver is violating a traffic law . . . ." State v. Betow , 226 Wis. 2d 90, 93, 593 N.W.2d 499 (Ct. App. 1999) (cit ing United States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995) ). However, "a traffic stop 'can become unlawful if it is prolo nged beyond the time reasonably required to complete th[e] miss ion' of issuing a . . . ticket." Rodriguez v. United State s, 575 U.S. ___, 135 S. Ct. 1609, 1614-15 (2015) (quoting Illin ois v. Caballes, 543 U.S. 405, 407 (2005)). ¶35 After a justifiable stop is made, the officer m ay expand the scope of the inquiry only to investigate "additional suspicious factors [that] come to the officer's att ention." Betow, 226 Wis. 2d at 94 (citing United States v. P erez, 37 F.3d 510, 513 (9th Cir. 1994)). See also State v. Gammo ns, 2001 WI App 36, ¶¶18-19, 214 Wis. 2d 296, 625 N.W.2d 623. An expansion in the scope of the inquiry, when accompanied by an extension of time longer than would have been needed for the ori ginal stop, must be supported by reasonable suspicion. See Sta te v. Colstad, 2003 WI App 25, ¶13, 260 Wis. 2d 406, 659 N.W.2d 394. See also Navarette v. California, 572 U.S. ___, 134 S. Ct. 1683, 1687 (2014); Terry v. Ohio, 392 U.S. 1, 21-22 (1968 ). In thisNo. 2013AP430-CR

12 regard, the legal extension of a traffic stop is es sentially a Terry investigatory stop. State v. Arias, 2008 WI 84, ¶35, 311 Wis. 2d 358, 752 N.W.2d 748. ¶36 "The focus of an investigatory stop is on reasonableness, and the determination of reasonable ness depends on the totality of circumstances . . . ." State v. Richardson, 156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990). Altho ugh officers sometimes will be confronted with behavior that has a possible innocent explanation, a combination of behaviors——a ll of which may provide the possibility of innocent explanation ——can give rise to reasonable suspicion. See United States v. Arvizu, 534 U.S. 266, 274-75 (2002). ¶37 It follows that the legality of the extension o f the traffic stop in this case turns on the presence of factors which, in the aggregate, amount to reasonable suspi cion that Hogan committed a crime the investigation of which would be furthered by the defendant's performance of field s obriety tests. See State v. Post, 2007 WI 60, ¶10, 301 Wis . 2d 1, 733 N.W.2d 634. ¶38 In his incident report, Deputy Smith explained the basis for extending the stop: "Based upon Patrick s haking and his pupils being restricted, I asked him if he woul d be willing to attempt some field sobriety tests and he indicat ed he would." ¶39 Hogan's post-arraignment motions challenged the sufficiency of this explanation as well as the suff iciency of the deputy's observations at the preliminary hearin g——"he was very nervous, shaking, and his pupils were restrict ed"——asNo. 2013AP430-CR

13 providing reasonable suspicion to extend the stop t o perform field sobriety tests. ¶40 At the subsequent motion hearing, Deputy Smith testified at greater length and the State's evidenc e included video of the entire incident taken from the deputy' s squad car and audio of the deputy's statements and discussion s with others. At the conclusion of the hearing, Judge Da y asked for letter briefs. ¶41 In his brief, the assistant district attorney d id not emphasize reasonable suspicion for the field sobrie ty tests as much as he emphasized Hogan's consent to search, an d he did not rely on information the Boscobel police officer gav e to Deputy Smith about Hogan as an important element of the re asonable suspicion for the tests. Hogan's attorney said a b it more about Officer Dregne's statements but he pointedly observ ed that "Officer Dregne . . . had heard (from some unknown source) that the defendant had a drug history." (Emphasis added .) ¶42 Judge Day concluded that the field sobriety tes ts were "an unlawful extension of the stop." He attributed no "power or persuasive force to Deputy Smith's observation of [ Hogan's] pupils," saying it "doesn't mean anything on this r ecord." He did not refer to the deputy's acquired information about Hogan's alleged "961 issues" or his alleged involvement wit h methamphetamine. ¶43 Upon careful examination of the record, we beli eve the State could have made a valid case that Deputy Smit h had reasonable suspicion to pursue field sobriety tests with PatrickNo. 2013AP430-CR

14 Hogan. However, the case the State could have made in circuit court was not made, and, consequently, Judge Day's ruling on this point was not error. ¶44 We review the totality of the circumstances to illustrate the problems. ¶45 There was no evidence and no suspicion that Hog an was driving under the influence of alcohol. There also was no evidence that Hogan's driving had been impaired by drugs. The deputy's observations suggested that Hogan might ha ve been using drugs and thus might have violated Wis. Stat. § 346 .63(1)(am), which makes it illegal for a person to drive or ope rate a motor vehicle with "a detectable amount of a restricted c ontrolled substance in his or her blood." As a result, the i ssue presented to the circuit court was whether there wa s reasonable suspicion that Hogan had been using controlled subs tances recently enough that evidence of that use would be detected in his blood. ¶46 Any order for a blood test would require probab le cause. State v. Tullberg, 2014 WI 134, ¶31, 359 Wi s. 2d 421, 857 N.W.2d 120. Field sobriety tests were intended to secure evidence to establish probable cause. ¶47 Deputy Smith was an experienced officer with 12 -1/2 years of service in the Grant County Sheriff's Depa rtment. His experience should have been a plus. State v. Meyer , 216 Wis. 2d 729, 752-53, 576 N.W.2d 260 (1998). His in stincts were, in fact, correct. However, Deputy Smith conceded t hat he was not a drug recognition expert and his testimony abo ut restrictedNo. 2013AP430-CR

15 pupils undermined his credibility in the court's ey es. The court heard the following testimony on cross-examin ation: Q: You also indicated that you observed his pupils to be restricted, right? A: Yes, sir. Q: Okay. Was it sunny out that day? A: Yes, sir. Q: And pupils restrict when it's sunny? A: Yes, sir. Q: You're not a drug recognition expert, right?

A: Correct. Q: What drugs cause pupil restrictions? A: Cocaine being one. I'm sure there's others, but I'm not a drug recognition expert. Q: Do you know what methamphetamine does to pupils? A: No, sir. Q: Okay. Approximately what size do you believe Mr

. Hogan's pupils were?
A: Three millimeters.

. . . . Q: [D]o you know what the normal pupil size is for an adult male? A: Four to five millimeters, I believe. ¶48 For a variety of reasons, the circuit court put no stock in the deputy's testimony about restricted pu pils as a factor in establishing reasonable suspicion. The d eputy did not have definitive information at any point on how dru g use mightNo. 2013AP430-CR

16 affect pupil size. 6 He referred to his familiarity with a pupilometer card but he did not bring the card to s ubstantiate or supplement his testimony. ¶49 Consequently, the case for reasonable suspicion rests primarily on the deputy's observations that Hogan's upper body was shaking and "he appeared to be very nervous." These points appear in his suppression hearing testimony and are even more prominent in the audio that accompanies the video. ¶50 Nervousness, anxiety, and tremors are consisten t with methamphetamine use. National Highway Traffic Safe ty Administration, Drugs and Human Performance Fact Sh eets, Report No. DOT HS 809 725, at 63 (April 2014). These char acteristics, however, may also have innocent explanations. The possibility that innocent explanations may exist for observed b ehavior does not preclude a finding of reasonable suspicion, but as a practical matter, police cannot expect to conduct f ield sobriety tests on every motorist who is shaking and nervous when stopped by an officer. ¶51 Officer Dregne's comments that Hogan had "961 i ssues" and that Officer Dregne had "received tips that Mr. Hogan's a shake and bake methamphetamine cooker" undoubtedly influenced

6 In fact, during the course of the discussion about pupil size, Deputy Smith suggested that restricted pupils are consistent with cocaine use. However, according to a source cited by the State, cocaine use may lead to dilated pupils, not restricted pupils. See National Highway Traffic Sa fety Administration, Drugs and Human Performance Fact Sh eets, Report No. DOT HS 809 725, at 21 (April 2014).No. 2013AP430-CR

17 Deputy Smith's decision to proceed as he did. At l east some of Deputy Smith's observations meshed with Officer Dre gne's information. Ultimately, however, when a court is asked to rule on a suppression motion, the court must evaluate wh ether the information conveyed by a fellow officer, and relie d upon in taking the action under review, was reliable inform ation, because the officer conveying the information had e ither firsthand knowledge or a reliable informant. No ef fort was made in this case to show that Officer Dregne's tips cam e from a reliable informant. 7 Such an effort, if successful, would have made a substantial difference in establishing reaso nable suspicion. ¶52 The audio from the incident several times recor ds an urgent announcement, perhaps from the squad compute r: "Warning, potential hit." These announcements are never refe rred to in the testimony or the argument, so that their import and

7 To assess the reliability of an anonymous tip, a t otality of the circumstances test is used. Illinois v. Gat es, 462 U.S. 213, 230-31 (1983). Courts must take into account the quantity and quality of information received during this ana lysis. Alabama v. White, 496 U.S. 325, 330 (1990). The qu antity and quality are inversely proportionate: if one is rela tively low, the other must be relatively high for the tip to be deemed reliable. Id. Courts consider such factors as awa reness of the informant's identity, an officer's past interaction s with the informant, and predictive information offered in th e tip. See United States v. Am, 564 F.3d 25 (1st Cir. 2009); U nited States v. Crozier, 777 F.2d 1376, 1389 (9th Cir. 1985); St ate v. Richardson, 156 Wis. 2d 128, 456 N.W.2d 830 (1990). Officer Dregne's informant may not have been anonym ous and may have been completely reliable, but any such fac ts are not in evidence.No. 2013AP430-CR

18 relationship to Hogan, if any, are unknown. If eit her Deputy Smith or Officer Dregne had been shown to know of H ogan's criminal record, which included three felony convic tions and a drug conviction as well as his probationary status, the case for reasonable suspicion would have been greatly streng thened. After all, Hogan's statement to Deputy Smith that " I don't do drugs" could have been challenged, and Hogan's imme diate explanation that Deputy Smith's observations could be attributed to Hogan's use of prescription Adderall could have been viewed even more skeptically because of background informa tion from reliable sources. ¶53 Reasonable suspicion here is a close question. But the State's failure to tie up loose ends in circuit court should not be rewarded just because the case is close. As a result, we will not disturb the circuit court's conclusion tha t the extension of the stop for field sobriety tests was not lawful.
B. Consent to Search ¶54 Our determination that the extension of the tra ffic stop was not lawful, based on the record before us, does not resolve this case. The somewhat unusual feature of the case is that the evidence Hogan seeks to suppress was not o btained as a result of the field sobriety tests but rather as a result of the consensual search of Hogan's vehicle. ¶55 "Warrantless searches are per se unreasonable u nder the Fourth Amendment." State v. Williams, 2002 WI 94, ¶18, 255 Wis. 2d 1 (2002). However, one of the "specificall y established and well-delineated" exceptions to the warrant requ irement isNo. 2013AP430-CR

19 consent; if an individual freely gives consent for police to search his or her vehicle, the police may do so wit hout a
warrant. Id. ¶56 Hogan does not dispute that he gave his consent for Deputy Smith to search his truck. Instead, Hogan a rgues that his illegal detention immediately prior to his cons ent tainted the consent and Deputy Smith was therefore not excu sed from obtaining a warrant to search Hogan's vehicle. ¶57 Consent analysis proceeds under a distinct fram ework if consent was given following some illegal action by police. Consent, even when voluntary, is not valid when obt ained through exploitation of an illegal action by police. State v. Phillips, 218 Wis. 2d 180, 204 (1998). Stated differently, "[w]hen . . . consent to search is obtained after a Fourth Amendment violation, evidence seized as a result of that search must be suppressed as 'fruit of the poisonous tree' unless the State can show a sufficient break in the causal cha in between the illegality and the seizure of evidence." Id. ¶58 Attenuation analysis examines three factors to determine whether consent is sufficiently attenuate d from illegal action to be removed from the taint of ille gality: "(1) the temporal proximity of the official misconduct a nd seizure of evidence; (2) the presence of intervening circumsta nces; and (3) the purpose and flagrancy of the official misconduc t." Phillips, 218 Wis. 2d at 206 (citing Brown v. Illin ois, 422 U.S. 590, 603-04 (1975)). The application of these fact ors will vary on a case-by-case basis. Our focus here is determi ning whetherNo. 2013AP430-CR

20 these factors sufficiently safeguard constitutional protections when the illegal action is the unlawful extension o f a traffic stop. ¶59 Hogan suggests that the third factor is inappro priate in this analysis because the "subjective intent of . . . law enforcement officers is irrelevant to whether . . . officers are unfairly benefitting from the violation of . . . su spects' rights." Hogan further contends that the focus in the attenuation analysis should be on why the individua l gave consent. He offers a hybrid test that combines the first two factors from Phillips with a constructive seizure a nalysis like that in Williams. ¶60 Considering the closeness of this case with reg ard to reasonable suspicion, it is no surprise that Hogan downplays the importance of the third factor, i.e., the purpose a nd flagrancy of the official misconduct. While flagrant violati ons of the law by police should weigh against the validity of any subsequent consent, see United States v. Edmons, 43 2 F.2d 577 (2d Cir. 1970), the mere failure to establish reaso nable suspicion because the State did not submit all the evidence that it had available is a different matter. ¶61 Hogan's desired focus on why a person gives con sent implicates questions of voluntariness. Involuntary consent is invalid, regardless of any prior illegality or atte nuation therefrom. See State v. Vorburger, 2002 WI 105, ¶8 9, 255 Wis. 2d 537, 648 N.W.2d 829 (citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973)). Attenuation analysis is not voluntarinessNo. 2013AP430-CR

21 analysis, and it is not meant to cure the involunta ry waiver of rights. Rather, attenuation analysis examines whet her voluntary consent is tainted by prior illegality. Phillips, 218 Wis. 2d at 204-05. ¶62 Viewed in this light, we conclude that the atte nuation test laid out in Phillips is the proper test to app ly for analyzing voluntary consent to search a vehicle whe n that consent comes after the illegal extension of a traf fic stop. The three Phillips factors adequately protect the r ights of motorists in such situations. In many ways, the co ncept of constructive seizure——which Hogan argues should be included in the analysis——is already built into the Phillips at tenuation

test. ¶63 We have held that a traffic stop ends when a reasonable person, under the totality of the circum stances, would feel free to leave. Williams, 255 Wis. 2d 1, ¶35. Given the wide range of possible "circumstances" in a tra ffic stop, it is not possible to expound a bright-line rule of wh en the reasonable driver would feel free to leave. Howeve r, it is not uncommon for officers to tell drivers they are "fre e to leave," may be "on their way," or to "have a nice day" at t he conclusion of a traffic stop. ¶64 The end of a traffic stop is important to two o f the factors in the attenuation analysis. First, the ci rcumstances giving rise to the end of a traffic stop will often (though perhaps not always) include the passage of time, wh ich implicates the first attenuation factor. Second, a nd moreNo. 2013AP430-CR

22 important, the end of a traffic stop is a significa nt intervening event for purposes of attenuation analy sis. ¶65 Thus, Hogan's proposed hybrid attenuation test is unnecessary because it would focus on improper fact ors while placing redundant value on other factors. We see n o reason to replace the Phillips attenuation analysis in this c ontext. ¶66 It is important to note that attenuation analys is may not be necessary in all cases. "[A]ttenuation anal ysis is only appropriate where, as a threshold matter, courts de termine that 'the challenged evidence is in some sense the produ ct of illegal governmental activity.'" New York v. Harris, 495 U .S. 14, 19 (1990) (citation omitted). If the unlawful police conduct was not a "but-for" cause of the search, attenuation an alysis is unnecessary because the consent is not tainted by t he unlawful conduct in such a case. See Hudson v. Michigan, 54 7 U.S. 586, 592 (2006). ¶67 After a traffic stop has ended, police may inte ract with the driver as they would with any citizen on t he street. See Williams, 255 Wis. 2d 1, ¶35. That is, if a pe rson is not seized, police may request consent to search even a bsent reasonable suspicion. See Florida v. Bostick, 501 U.S. 429, 431 (1991). In a sense, the end of a traffic stop plac es the officer and driver back on equal footing, with the driver free to leave if he wishes (because if the driver were n ot free to leave, the traffic stop would not in fact have ende d). ¶68 Given the myriad possible scenarios in which po lice and the public may interact on the side of the road , we cannotNo. 2013AP430-CR

23 postulate that the end of a traffic stop will alway s render attenuation analysis unnecessary. However, the end of the stop will be a significant factor in determining the nec essity of attenuation analysis, at the very least. ¶69 In this case, we conclude that the end of the t raffic stop does render attenuation analysis unnecessary b ecause it cannot be said that the extension of the stop was a but-for cause of Hogan's consent. Deputy Smith told Hogan that he was free to leave, encouraged him to wear his seat belt , and advised him to get his windshield fixed. He then returned to his squad car. Deputy Smith waited approximately 16 seconds before reengaging Hogan. When we compare these facts to the facts in Williams, 8 we have little trouble concluding that Hogan was n ot constructively seized at the time Deputy Smith requ ested his consent to search the vehicle. A reasonable person , under the totality of the circumstances, would have felt free to leave——to drive across the street to his home.

8 In Williams, a police officer stopped the defendan t's vehicle for a traffic violation, for which the offi cer issued a warning. The defendant signed the warning, the two shook hands, and the officer told the defendant in a conversatio nal tone he could "get on [his] way." State v. Williams, 2002 WI 94, ¶¶9- 12, 255 Wis. 2d 1, 646 N.W.2d 834. After taking tw o steps toward his squad car, the officer asked for and was granted consent to search the vehicle, where the officer fo und heroin and a weapon. Id., ¶12-13. This court determined the officer's words and actions, considered as a whole, communica ted permission to leave and, therefore, the defendant w as no longer seized after the officer stated the defendant could "get on his way." Id., ¶29. Because a reasonable person would have felt able to leave the scene, the officer's subsequent q uestioning did not constitute a seizure for purposes of the Fo urth Amendment and the defendant's consent was valid. I d., ¶28.No. 2013AP430-CR

24 ¶70 It is true that the emergency lights on Deputy Smith's squad car remained on for the entire duration of th e stop, including the time in which Deputy Smith re-engaged Hogan. However, that alone is not enough for us to conclud e that the stop had not ended. Police often may leave their e mergency lights on for safety reasons when they and the moto rist are pulling back onto the roadway after a traffic stop. The continuing illumination of the emergency lights was not enough to create an ongoing——or new——seizure of Hogan. ¶71 We therefore conclude that even though the exte nsion of the traffic stop has been deemed illegal, the ex tension of the stop was not a but-for cause of the consent. T he traffic stop had concluded. Hogan had returned to his truc k and was free to leave. He gave consent to search after Dep uty Smith reapproached him and asked for consent. ¶72 Our conclusion that Hogan was not constructivel y seized when Deputy Smith requested consent to searc h Hogan's truck also resolves Hogan's argument that his conse nt was invalid because it occurred during a constructive s eizure initiated without reasonable suspicion. As discuss ed above, without a constructive seizure, police do not need reasonable suspicion to request consent to search. See Bostic k, 501 U.S. at 431. ¶73 Because Hogan's rights were not violated, it wa s not error for the circuit court to deny his motions to suppress. IV. CONCLUSIONNo. 2013AP430-CR

25 ¶74 Although the question of whether the deputy had reasonable suspicion to extend the traffic stop to administer field sobriety tests is a close one, we conclude th at the extension was unlawful based on the evidence presen ted. However, the defendant's subsequent consent to sear ch his vehicle came after the traffic stop had ended and t he defendant was told he was free to leave. Because the police did not exploit the unlawful extension of the stop in order to gain Hogan's consent to search his vehicle, attenuation analysis is unnecessary in this case. Furthermore, Hogan was n ot constructively seized when he gave consent to searc h his truck.
We therefore conclude that the defendant's consent was valid and that it was not error for the circuit court to deny the defendant's motion to suppress the evidence recover ed from his
truck. ¶75 Accordingly, we affirm the decision of the cour t of appeals.

By the Court. —The decision of the court of appeals is affirmed.No. 2013AP430-CR.akz

1 ¶76 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join the majority opinion. I write separately to note t hat, had the circuit court determined that the facts were as the State asserts, I would engage in the analysis that I put forth in my concurrence in State v. Blatterman. See State v. B latterman, 2015 WI 46, 362 Wis. 2d 138, 864 N.W.2d 26 (Ziegler , J., concurring) (arguing that, because a prohibited alc ohol concentration violation under Wis. Stat. § 346.63(1 )(b) does not require proof of impairment, standard field sobriet y tests are of limited value for determining whether a driver v iolated this statute). ¶77 In the present case, Deputy Andrew Smith suspec ted Patrick Hogan of operating a motor vehicle with a d etectable amount of a restricted controlled substance in his blood, contrary to Wis. Stat. § 346.63(1)(am). This offen se does not require proof of impairment. State v. Smet, 2005 W I App 263, ¶23, 288 Wis. 2d 525, 709 N.W.2d 474. This offense has two elements: (1) the defendant drove or operated a mot or vehicle on a highway; and (2) the defendant had a detectable a mount of a restricted controlled substance in his or her blood at the time the defendant drove or operated a motor vehicle. S ee Wis. Stat. § 346.63(1)(am); Wis. JI——Criminal 2664B. Although poor performance on standard field sobriety tests would support a determination that there is probable cause to arres t someone who is suspected of violating § 346.63(1)(am), operator s may violate this statute even though they are able to pass stan dard field sobriety tests. Accordingly, whether a driver who violates thisNo. 2013AP430-CR.akz

2 statute is brought to justice might often depend on whether there is probable cause to arrest the driver and ta ke him or her to a hospital for further testing, regardless of ho w he or she performs on standard field sobriety tests. In the present case, the circuit court's findings of fact do not allow m e to engage in this type of analysis. ¶78 For the foregoing reasons, I respectfully concu r.No. 2013AP430-CR.awb

1 ¶79 ANN WALSH BRADLEY, J. (dissenting). I agree with the majority that "[c]onsent analysis proceeds unde r a distinct framework if consent was given following some illeg al action by police. Consent, even when voluntary, is not valid when obtained through exploitation of an illegal action by police." Majority op., ¶57. ¶80 I also agree that "[w]hen . . . consent to sear ch is obtained after a Fourth Amendment violation, eviden ce seized as a result of that search must be suppressed as 'frui t of the poisonous tree' unless the State can show a suffici ent break in the causal chain between the illegality and the sei zure of evidence." Id. (quoting State v. Phillips, 218 Wis . 2d 180, 204, 577 N.W.2d 794 (1998)) (alteration in majority ). ¶81 I part ways with the majority, however, when it comes to the necessity of conducting an attenuation analy sis. The majority concludes that it is unnecessary "[b]ecaus e the police did not exploit the unlawful extension . . . to gai n Hogan's consent." Majority op., ¶9. Yet, the very purpose of an attenuation analysis is to determine whether the ev idence objected to was obtained by exploitation of a prior police illegality. ¶82 Contrary to the majority's assertions, this cas e presents the quintessential example of when an atte nuation analysis is needed. It is undisputed that the exte nsion of the traffic stop was unconstitutional. The deputy reen gaged Hogan a mere 16 seconds later, seeking consent to search.No. 2013AP430-CR.awb

2 ¶83 Where consent is obtained so closely on the hee ls of acknowledged police misconduct, attenuation analysi s is the means by which we determine "whether the evidence o bjected to was obtained by exploitation of a prior police ille gality or instead by means sufficiently attenuated so as to b e purged of the taint." State v. Anderson, 165 Wis. 2d 441, 44 7-48, 477 N.W.2d 277 (1991). ¶84 In this case an attenuation analysis reveals th at the taint from the deputy's unconstitutional actions wa s not removed. Therefore the evidence obtained from that search must be suppressed. Accordingly, I respectfully dissent

. I ¶85 The majority spends a substantial portion of it s analysis attempting to re-litigate the facts of thi s case to determine whether the extension of the traffic stop was unconstitutional. Majority op., ¶¶38-52. Ultimate ly, it acquiesces, as it must, to the conclusion reached b y the circuit court and the court of appeals——the extension of th e stop was illegal. Id., ¶53. ¶86 Acknowledging that designating the extension un lawful does not resolve the case, the majority turns its f ocus to whether Hogan's consent for the search was tainted by the extension. Id., ¶56. It observes that consent "is not valid when obtained through exploitation of an illegal ac tion by police." Id., ¶57. It then explains that "[a]tten uation analysis examines three factors to determine whethe r consent is sufficiently attenuated from illegal action to be r emoved fromNo. 2013AP430-CR.awb

3 the taint of illegality." Id., ¶58. This statemen t is followed by a lengthy discussion of those three factors. Id ., ¶¶58-65. ¶87 Abruptly shifting paths, the majority fails to apply the three factors. Instead, it considers whether a person in Hogan's position would have felt free to leave afte r the unlawful extension of the traffic stop. Id., ¶63. It determines that a reasonable person would have felt free to leave due to the deputy's statement: "you're free t o go." See id., ¶69. Based on this rationale, the majority se ts aside the preceding illegality in the traffic stop and determ ines that an attenuation analysis is unnecessary. It states: "[ b]ecause the police did not exploit the unlawful extension of th e stop in order to gain Hogan's consent to search his vehicle , attenuation analysis is unnecessary in this case." Id., ¶9. W ithout conducting an attenuation analysis, the majority ul timately concludes that Hogan's consent to the search was va lid. Id., ¶¶69, 71.

II ¶88 In asserting a reasonable person would have fel t free to leave after the unlawful extension of the traffi c stop, the majority constructs a fiction. ¶89 Hogan had been pulled over for not wearing his seatbelt. After the deputy checked Hogan's license and registration, he asked Hogan to step out of his veh icle. Despite Hogan's clear agitation and expressed desir e to go home, the deputy prolonged the stop to such an extent tha t it constituted an unconstitutional extension of the st op when heNo. 2013AP430-CR.awb

4 asked Hogan to perform multiple sobriety tests. Af ter the tests were completed, the Deputy told Hogan he was free t o leave. ¶90 However, sixteen seconds after Hogan got back i nto his vehicle, with the lights on the patrol car still fl ashing, the deputy walked back to the defendant and reengaged. After asking for and receiving Hogan's consent to search, the de puty found methamphetamine, drug paraphernalia, and two loaded guns in Hogan's vehicle. ¶91 Like United States Supreme Court Justice Souter , I have a hard time imagining that an average individu al would believe that he has nothing to lose if he refuses t o cooperate with the police or that he had any free choice to i gnore the police altogether. United States v. Drayton, 536 U .S. 194, 212 (2002) (Souter, J., dissenting) ("It is very hard t o imagine that either [defendant] would have believed that he stood to lose nothing if he refused to cooperate with the po lice, or that he had any free choice to ignore the police altoget her. No reasonable passenger could have believed that, only an uncomprehending one."). ¶92 The reasonable person "free to leave" standard bears little relationship to what individuals actually be lieve: Courts and scholars have repeatedly noted that the free-to-leave test is a highly unrealistic judicial construct that stretches credulity to its limits in assuming that any reasonable person (young or old; guilty or innocent) would literally feel free to le ave and ignore a police officer's questions without consequence. Jonathan S. Carter, You're Only as "Free to Leave" as You Feel: Police Encounters with Juveniles and the Trouble wi thNo. 2013AP430-CR.awb

5 Differential Standards for Investigatory Stops In R e I.R.T., 88 N.C. L. Rev. 1389, 1410-11 (2010); see also Cty. of Grant v. Vogt, 2014 WI 76, ¶31 n.14, 356 Wis. 2d 343, 850 N. W.2d 253 ("To some extent, the 'reasonable person' here is a lega l fiction.
That defendants often consent to searches of areas that reveal incriminating evidence demonstrates that people oft en do not feel free to decline an officer's request, even abs ent a manifest show of authority."). ¶93 "[E]mpirical studies over the last several deca des on the social psychology of compliance, conformity, so cial influence, and politeness have all converged on a s ingle conclusion: the extent to which people feel free to refuse to comply is extremely limited under situationally ind uced pressures." Janice Nadler, No Need to Shout: Bus S weeps and the Psychology of Coercion, 2002 Sup. Ct. Rev. 153, 155 . As Professor LaFave has observed "only the most thick- skinned of suspects" would feel free to leave in some of the c ircumstances that the Court has found such a freedom. Wayne R. LaFave, Pinguitudinous Police, Pachydermatous Prey: Whence Fourth Amendment "Seizures?", 1991 U. Ill. L. Rev. 729, 73 9-40. ¶94 In the present case, the very nature of the sto p was coercive. The deputy necessarily displayed his pow er and the accoutrements of his authority in order to get Hoga n to pull over his vehicle. Once there, the deputy used his authority to require Hogan's compliance with unconstitutional so briety tests, while another officer looked on. There was no real break between this series of events and the deputy's requ est to searchNo. 2013AP430-CR.awb

6 Hogan's vehicle. Although the deputy told Hogan he was free to leave, within a mere 16 seconds, he reengaged seeki ng consent to search Hogan's vehicle.

III ¶95 The majority's suggestion that Hogan's consent to search his vehicle was unrelated to the illegality is also unpersuasive. Would a reasonable person in Hogan's situation, who is on probation and aware that there was metham phetamine, drug paraphernalia, and two loaded guns in his vehi cle, blithely consent to a search of his vehicle absent the prese nce of coercion? The answer is no. The illegal extension of the traffic stop unquestionably played a role in Hogan' s consent. ¶96 An application of attenuation analysis demonstr ates that the consent was not so attenuated from the ill egality to render it free of the taint from the unconstitution al extension of the traffic stop. ¶97 Attenuation analysis is well-established in ou r jurisprudence. Originating in the United States Su preme Court, it was developed to help courts determine whether e vidence obtained following illegal police activity must be excluded as the fruit of the poisonous tree. Wong Sun v. Unite d States, 371 U.S. 471, 488 (1963). The Court set forth the rele vant inquiry as follows: "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Id. (quoting Maguire, Evidence of Guilt, 2 21 (1959)).No. 2013AP430-CR.awb

7 ¶98 In Brown v. Illinois, 422 U.S. 590, 603-04 (197 5), the Supreme Court declined to adopt a "but for" approac h based on a causal connection, and announced instead three fact ors that courts should consider in determining if evidence w as sufficiently attenuated from the initial illegality to purge it of the primary taint: temporal proximity, the prese nce of intervening circumstances, and the flagrancy of the misconduct. ¶99 I address each factor in turn: ¶100 The first factor, temporal proximity, requires a consideration of "both the amount of time between t he illegal [act] and the consensual search and the conditions that existed during that time." Phillips, 218 Wis. 2d at 206. ¶101 Sixteen seconds elapsed between the unconstitu tional extension of the stop and the time the deputy reeng aged Hogan seeking consent to search. In assessing temporal p roximity, we have previously determined that the timespan of a f ew minutes weighs against a consensual search. Id.; see also United States v. Macias, 658 F.3d 509, 524 (5th Cir. 2011) (thirt y-second interval between illegal extension of traffic stop and request for consent weighed against attenuation); United St ates v. Gregory, 79 F.3d 973, 979-80 (10th Cir. 1996) (pass age of less than a minute between return of driver's license an d request to search not sufficient to purge the taint of an ille gal stop); McGaughey v. State, 37 P.3d 130, 141 (Okla. Crim. A pp. 2001) (the fact that only a few minutes had passed betwee n the illegal detention and the request for consent to search "we igh[ed] heavily against finding the taint cleansed").No. 2013AP430-CR.awb

8 ¶102 The United Stated Supreme Court has stated tha t in some circumstances even a 45-minute timespan would be insufficient to purge the taint. Rawlings v. Kentu cky, 448 U.S. 98, 107 (1980). Here, we are considering a mere 16 seconds that passed between the illegal extension of the stop an d the deputy's reengagement, seeking consent to search Ho gan's vehicle. Such an abbreviated timespan weighs again st attenuation. ¶103 In considering temporal proximity, courts take into account the conditions that existed. Admittedly, in some circumstances, the existence of a congenial atmosph ere may weigh in favor of attenuation. See Rawlings, 448 U.S. at 109. In this case it does not. Although the atmosphere dur ing the encounter was not overtly threatening, Hogan appear ed agitated throughout the stop, expressing his desire to leave . It was only the deputy's assertion of authority that kept him there. The extension of the stop further enhanced the uneq ual power dynamic between the deputy and Hogan. Far from rem oving the taint of the illegality, the conditions of the ille gal extension of the stop combined with the short time span betwe en the extension and the consent suggest that the consent was tainted by the illegality. ¶104 The second factor, intervening circumstances, refers to events occurring between the illegality and the consensual search. Phillips, 218 Wis. 2d at 208. In this cas e, after the extension of the stop, the deputy told Hogan that h e was free to leave and they both returned to their vehicles. Al though theseNo. 2013AP430-CR.awb

9 circumstances are significant as they could be view ed as an end of the traffic stop, they are not sufficient to wip e clean the slate such that the consent was untainted by the il legality. ¶105 This court described what intervening circumst ances would support a determination of attenuation in Phi llips, 218 Wis. 2d 180. In that case, after illegally enterin g the defendant's home, officers had a short discussion w ith the defendant. An officer informed the defendant that they had received information that the defendant had drug pa raphernalia and marijuana and explained that they did not have a warrant to search his bedroom. Id. at 209. "This discussion was significant [] because it provided the defendant wi th sufficient information with which he could decide whether to f reely consent to the search." Id. at 208-09. We stated that th e discussion "illustrates that the defendant was not improperly surprised, frightened, or confused when he consented to the se arch of his bedroom," and thus concluded that the officers did not exploit their unlawful entry to obtain consent to search. Id. at 209. ¶106 The circumstances in Phillips are not present in this case. At no time did the deputy give any indicatio n that Hogan could decline the deputy's request to search his ve hicle. Indeed, during the unlawful extension of the stop, Hogan expressed his belief that if he did not accede to t he deputy's requests, it would be used against him. Nothing in the deputy's request for consent to search the vehicle would hav e dispelled that belief. The intervening circumstances do not remove the taint from the unlawful extension of the stop.No. 2013AP430-CR.awb

10 ¶107 The third factor to consider is "the purpose and flagrancy of the official misconduct." Id. This f actor considers whether the conduct of the officers rose "to the level of conscious or flagrant misconduct requiring proph ylactic exclusion." Anderson, 165 Wis. 2d at 451 (quoting Rawlings, 448 U.S. at 110). ¶108 The deputy's conduct indicates a conscious att empt to gain consent for the search. His exchange with the other officer at the scene suggests that the entire purpo se of extending the stop was to find a reason to search H ogan's vehicle. Seeking consent to search is generally co nsistent with exemplary work of law enforcement. Detaining a sus pect longer than reasonably justified by the stop in order to o btain consent crosses the line. I acknowledge, however, that the deputy may not have realized that the extension of the stop wa s unlawful. Thus, it is hard to conclude that his conduct was f lagrant. Overall, this factor appears neutral in determining attenuation. ¶109 Having considered the three traditional factor s of an attenuation analysis, I conclude that on balance, t hey weigh against a determination of attenuation. Although t he third factor appears neutral, both the first and second f actors weigh against it. The facts of this case and the relevan t case law
reveal that there was no real break between the unc onstitutional extension of the traffic stop and the deputy's requ est for consent to search Hogan's vehicle.

IVNo. 2013AP430-CR.awb

11 ¶110 Although officers may conduct brief seizures w hen there is reasonable suspicion of a traffic violatio n, "the tolerable duration of police inquiries in the traff ic-stop context is determined by the seizure's 'mission'—to address the traffic violation that warranted the stop." Rodrig uez v. United States, 135 S. Ct. 1609, 1614 (2015). As the major ity acknowledges, an officer may not extend the stop wi thout additional reasonable suspicion. Majority op., ¶35 . Absent such reasonable suspicion, the prolonged detention becomes an unlawful seizure, intruding on the citizen's person al liberty. ¶111 Here, consent to search Hogan's vehicle was so ught only seconds after the illegal extension of the tra ffic stop. To conclude that consent obtained so closely on the heels of acknowledged police misconduct was valid would lend an air of legitimacy to questionable police tactics. This is the classic example of when the exclusionary rule should apply. See State v. Scull, 2015 WI 22, ¶22, 361 Wis. 2d 288, 862 N.W .2d 562 (observing that the two rationales for the exclusio nary rule are "assurance of judicial integrity and deterrence of unlawful police conduct"). The evidence should have been su ppressed. ¶112 Accordingly, for the reasons set forth above, I respectfully dissent. ¶113 I am authorized to state that Justice SHIRLEY S. ABRAHAMSON joins this dissent.No. 2013AP430-CR.awb

12No. 2013AP430-CR.awb

1