2015 WI 76

SUPREME COURT OF WISCONSIN

CASE NO.: 2013AP430-CR 

COMPLETE TITLE: 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 App. 2014 – Unpublished) 

OPINION FILED: July 10, 2105 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: March 4, 2015 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Grant 

 JUDGE: Craig R. Day 

 

JUSTICES: 

 CONCURRED: ZIEGLER, J., concurs. (Opinion Filed) 

 DISSENTED: 

 NOT PARTICIPATING: BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion 

Filed.) 

 

ATTORNEYS: 

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unpublished decision of the court of appeals,1 which affirmed a 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 possession of 

methamphetamine and child neglect. Hogan pled no contest to 

these charges after the Grant County Circuit Court2 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1 State v. Hogan, No. 2013AP430-CR, unpublished slip op.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 reasonableness 

of police conduct after a lawful traffic stop. After a 

sheriff's deputy stopped the defendant for a seat belt 

violation, the deputy observed what he believed to be indicia of 

the defendant's drug use. With this in mind, he called for 

backup. He then wrote out seat belt citations for the defendant 

and the defendant's wife, who was not wearing her seat belt 

properly. Before the deputy had finished the citations, a local 

officer who knew of the defendant arrived on the scene. 

¶3 The officer reported that his department had received 

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 perform a series of 

field sobriety tests. When the defendant passed all 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 questions, including 

whether the defendant would consent to a search of his truck. 

The defendant consented and the officers found methamphetamine, 

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 sitting in a 

child's car seat behind her mother in the back of the truck. 

¶6 The defendant sought to suppress this evidence. 

Suppression hinges on the answer to three questions. First, did 
No. 2013AP430-CR 

3 

the deputy have reasonable suspicion to extend a lawful traffic 

stop about seat belts to investigate whether the defendant was 

under the influence of drugs in the operation of his vehicle by 

having the defendant perform field sobriety tests? Second, if 

the traffic stop was not lawfully extended to investigate drug 

use by the defendant, was the defendant's subsequent consent to 

search his truck tainted by prior illegality, so that the 

evidence seized was inadmissible? Third, was the defendant 

constructively seized without reasonable suspicion when the 

deputy re-approached the defendant's vehicle to request consent 

to search? 

¶7 The defendant argues that the deputy lacked reasonable 

suspicion to ask that the defendant perform field sobriety 

tests. He contends that there were innocent explanations for 

the observations that the deputy made, and that the deputy was 

acting on nothing more than a hunch and unsubstantiated 

information from a fellow law enforcement officer. The 

defendant further argues that the taint of an illegal extension 

affected the deputy's request for consent to search, rendering 

the consent invalid and all evidence obtained in the search 

inadmissible. Finally, the defendant argues that he 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 explanations 

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 when the 
No. 2013AP430-CR 

4 

deputy told the defendant he was free to leave. The State 

argues the defendant was not seized within the meaning of the 

Fourth Amendment when the deputy asked him for consent to search 

his truck, and the defendant's consent was therefore valid. 

Alternatively, the State contends that any illegality was so 

attenuated from the defendant's consent that the taint 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 that the 

extension was unlawful based on the evidence presented. 

However, the defendant's subsequent consent to search his 

vehicle came after the traffic stop had ended and the 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 not 

constructively seized when he gave consent to search 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 recovered from his 

truck. 

¶10 Accordingly, we affirm the decision of the court of 

appeals. 

I. FACTUAL AND PROCEDURAL BACKGROUND 
No. 2013AP430-CR 

5 

¶11 On May 12, 2012, Deputy Andrew Smith of the Grant 

County Sheriff's Department was driving his squad car north on 

Wisconsin Avenue in the City of Boscobel. It was about 6:10 

p.m. Deputy Smith stopped at the corner of Wisconsin 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 stop 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 arm. 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 Hogan, he 

noticed that Hogan was "very nervous," "real nervous," and 

"shaking real bad" with upper body tremors. He also noticed 

that Hogan's "pupils were restricted," which he believed was "an 

indicator of drug use." Deputy Smith acknowledged later that he 

was not a drug recognition "expert" but said he based his 

observations on his 12-1/2 years experience as a deputy and his 

frequent review of a "pupilometer," which he described as "a 

little card that has different size black marks" which are 

"measured in millimeters." The card was provided to 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 immediately requested 
No. 2013AP430-CR 

6 

backup from Boscobel police and stressed his observations about 

Hogan's extreme nervousness and constricted pupils.

¶15 Shortly thereafter, the audio portion of the squad car 

video reflects a repeated announcement, "Warning, potential 

hit." The record does not explain whether this announcement 

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. Upon learning 

of Hogan's identity, Officer Dregne immediately remarked that 

Hogan had "961 issues," referring to the Wisconsin statutory 

chapter on controlled substances. Officer Dregne also 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 approximately 13 

minutes had passed since Deputy Smith initiated the stop. 

¶18 Deputy Smith then approached Hogan and asked him to 

step out of the truck. He explained to Hogan that he had made 

observations that he thought were consistent with drug use. 

 

3 "Shake and bake" or "one pot" methamphetamine production 

is a manufacturing process used to produce small amounts of 

methamphetamine, often for personal use. See Raphael 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 (2011). 
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 does not cause 

the symptoms he was observing, and he asked Hogan if he would 

perform a series of field sobriety tests. Hogan complied. 

¶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 approximately 

eight minutes. Deputy Smith determined that Hogan did not show 

any signs of impairment and informed Hogan he was free 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 squad car and 

spoke with Officer Dregne. They discussed asking for a consent 

search. Approximately 16 seconds after Deputy Smith told Hogan 

he could leave, he returned to Hogan's stationary vehicle 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. Hogan 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 Hogan replied 

"Why not. Yeah. Go ahead." 

¶22 Deputy Smith and Officer Dregne searched Hogan's 

truck. Hogan's wife disclosed to Officer Dregne that she had a 
No. 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 pistol behind 

the passenger seat near the couple's child. 

¶23 Deputy Smith and Officer Dregne also recovered 

muriatic acid, two glass bottles containing clear liquids, and a 

medicine bottle bearing Hogan's name that contained a substance 

later identified as methamphetamine. The officers also 

recovered paraphernalia used to manufacture methamphetamine, 

including coffee filters, syringes, rubber gloves, and a heating 

canister. These items, including the loaded .22 pistol, were 

stored approximately one foot from the child. 

¶24 On May 14, 2012, Hogan was charged with possession of 

methamphetamine, manufacturing methamphetamine, possession of a 

firearm by a felon, and child neglect.4

¶25 On June 12, 2012, Hogan filed a motion to suppress 

evidence from the search. He argued that any evidence recovered 

after Deputy Smith told him he could leave was illegally 

obtained because Deputy Smith seized Hogan for a second time 

when he re-approached Hogan's vehicle even though he lacked 

reasonable suspicion to do so. On the same day, Hogan 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 references to 

the Wisconsin Statutes are to the 2011-12 version unless 

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 was illegally 

extended when Deputy Smith required Hogan to perform 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 truck. The 

court reasoned that Hogan had freely consented to a search of 

his vehicle and therefore it was not an unlawful extension of 

the stop. However, the court expressed uncertainty about 

whether the field sobriety tests were a lawful extension of the 

original stop, and requested informal briefing on the matter. 

¶28 The circuit court denied Hogan's second motion on July 

10, 2012. Although the court determined that Deputy Smith 

illegally extended the stop when he administered the field 

sobriety tests, it concluded that Hogan's subsequent consent 

sufficiently tempered the illegality of the extension and that 

suppression was not necessary. 

¶29 On July 27, 2012, Hogan pled no contest to possession 

of methamphetamine and child neglect. As part of the plea 

agreement, the State dismissed the charges for manufacturing 

 

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 and entered a 

judgment of conviction on September 27. 

¶30 On October 12, 2012, Hogan gave notice of his intent 

to seek postconviction relief from the orders denying his 

motions to dismiss and suppress. On May 15, 2014, the court of 

appeals affirmed the conviction and the circuit court's denial 

of the motions. State v. Hogan, No. 2013AP430-CR, unpublished 

slip op. (Wis. Ct. App. May 15, 2014). The court reasoned that 

Hogan was not constructively seized when Deputy Smith conducted 

a search of his vehicle. Id., ¶12. The court also affirmed the 

circuit court's ruling that Hogan's consent "was sufficiently 

attenuated from the taint of the illegal detention." Id., ¶19. 

¶31 On June 16, 2014, Hogan filed a petition for review 

with this court, which we granted on November 13, 2014. 

II. STANDARD OF REVIEW 

¶32 Whether a defendant's constitutional rights, including 

his rights under the Fourth Amendment, have been violated is a 

question of constitutional fact. Resolving questions of 

constitutional fact is a two-step process. State v. Martwick, 

2000 WI 5, ¶17, 231 Wis. 2d 801, 604 N.W.2d 552. We first 

uphold the circuit court's findings of historical fact unless 

they are clearly erroneous. Id., ¶18. We then independently 

apply constitutional principles to those facts. Id. 

III. DISCUSSION 

¶33 This case requires us to analyze different segments of 

an extended traffic stop. The evidence that the defendant seeks 
No. 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 protects 

individuals from unreasonable searches and seizures. U.S. 

Const. amend. IV. "There is no question that a police officer 

may stop a vehicle when he or she reasonably believes the driver 

is violating a traffic law . . . ." State v. Betow, 226 

Wis. 2d 90, 93, 593 N.W.2d 499 (Ct. App. 1999) (citing United 

States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995)). However, 

"a traffic stop 'can become unlawful if it is prolonged beyond 

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

issuing a . . . ticket." Rodriguez v. United States, 575 U.S. 

___, 135 S. Ct. 1609, 1614-15 (2015) (quoting Illinois v. 

Caballes, 543 U.S. 405, 407 (2005)). 

¶35 After a justifiable stop is made, the officer may 

expand the scope of the inquiry only to investigate "additional 

suspicious factors [that] come to the officer's attention." 

Betow, 226 Wis. 2d at 94 (citing United States v. Perez, 37 F.3d 

510, 513 (9th Cir. 1994)). See also State v. Gammons, 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 original stop, 

must be supported by reasonable suspicion. See State 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 this 
No. 2013AP430-CR 

12 

regard, the legal extension of a traffic stop is essentially 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 reasonableness depends 

on the totality of circumstances . . . ." State v. Richardson, 

156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990). Although officers 

sometimes will be confronted with behavior that has a possible 

innocent explanation, a combination of behaviors——all 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 of the 

traffic stop in this case turns on the presence of factors 

which, in the aggregate, amount to reasonable suspicion that 

Hogan committed a crime the investigation of which would be 

furthered by the defendant's performance of field sobriety 

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 shaking and 

his pupils being restricted, I asked him if he would be willing 

to attempt some field sobriety tests and he indicated he would." 

¶39 Hogan's post-arraignment motions challenged the

sufficiency of this explanation as well as the sufficiency of 

the deputy's observations at the preliminary hearing——"he was 

very nervous, shaking, and his pupils were restricted"——as 
No. 2013AP430-CR 

13 

providing reasonable suspicion to extend the stop to perform 

field sobriety tests. 

¶40 At the subsequent motion hearing, Deputy Smith 

testified at greater length and the State's evidence included 

video of the entire incident taken from the deputy's squad car 

and audio of the deputy's statements and discussions with 

others. At the conclusion of the hearing, Judge Day asked for 

letter briefs. 

¶41 In his brief, the assistant district attorney did not 

emphasize reasonable suspicion for the field sobriety tests as 

much as he emphasized Hogan's consent to search, and he did not 

rely on information the Boscobel police officer gave to Deputy 

Smith about Hogan as an important element of the reasonable 

suspicion for the tests. Hogan's attorney said a bit more about 

Officer Dregne's statements but he pointedly observed 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 tests 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 record." He 

did not refer to the deputy's acquired information about Hogan's 

alleged "961 issues" or his alleged involvement with 

methamphetamine. 

¶43 Upon careful examination of the record, we believe the 

State could have made a valid case that Deputy Smith had 

reasonable suspicion to pursue field sobriety tests with Patrick 
No. 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 Hogan 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 have been using 

drugs and thus might have violated Wis. Stat. § 346.63(1)(am), 

which makes it illegal for a person to drive or operate a motor 

vehicle with "a detectable amount of a restricted controlled 

substance in his or her blood." As a result, the issue 

presented to the circuit court was whether there was reasonable 

suspicion that Hogan had been using controlled substances 

recently enough that evidence of that use would be detected in 

his blood. 

¶46 Any order for a blood test would require probable 

cause. State v. Tullberg, 2014 WI 134, ¶31, 359 Wis. 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 Department. His 

experience should have been a plus. State v. Meyer, 216 

Wis. 2d 729, 752-53, 576 N.W.2d 260 (1998). His instincts were, 

in fact, correct. However, Deputy Smith conceded that he was 

not a drug recognition expert and his testimony about restricted 
No. 2013AP430-CR 

15 

pupils undermined his credibility in the court's eyes. The 

court heard the following testimony on cross-examination: 

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 pupils as a 

factor in establishing reasonable suspicion. The deputy did not 

have definitive information at any point on how drug use might 
No. 2013AP430-CR 

16 

affect pupil size.6 He referred to his familiarity with a 

pupilometer card but he did not bring the card to substantiate 

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 consistent with 

methamphetamine use. National Highway Traffic Safety 

Administration, Drugs and Human Performance Fact Sheets, Report 

No. DOT HS 809 725, at 63 (April 2014). These characteristics, 

however, may also have innocent explanations. The possibility 

that innocent explanations may exist for observed behavior does 

not preclude a finding of reasonable suspicion, but as a 

practical matter, police cannot expect to conduct field sobriety 

tests on every motorist who is shaking and nervous when stopped 

by an officer. 

¶51 Officer Dregne's comments that Hogan had "961 issues" 

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 Safety 

Administration, Drugs and Human Performance Fact Sheets, Report 

No. DOT HS 809 725, at 21 (April 2014). 
No. 2013AP430-CR 

17 

Deputy Smith's decision to proceed as he did. At least some of 

Deputy Smith's observations meshed with Officer Dregne's 

information. Ultimately, however, when a court is asked to rule 

on a suppression motion, the court must evaluate whether the 

information conveyed by a fellow officer, and relied upon in 

taking the action under review, was reliable information, 

because the officer conveying the information had either 

firsthand knowledge or a reliable informant. No effort was made 

in this case to show that Officer Dregne's tips came from a 

reliable informant.7 Such an effort, if successful, would have 

made a substantial difference in establishing reasonable 

suspicion. 

¶52 The audio from the incident several times records an 

urgent announcement, perhaps from the squad computer: "Warning, 

potential hit." These announcements are never referred to in 

the testimony or the argument, so that their import and 

 

7 To assess the reliability of an anonymous tip, a totality 

of the circumstances test is used. Illinois v. Gates, 462 U.S. 

213, 230-31 (1983). Courts must take into account the quantity 

and quality of information received during this analysis. 

Alabama v. White, 496 U.S. 325, 330 (1990). The quantity and 

quality are inversely proportionate: if one is relatively low, 

the other must be relatively high for the tip to be deemed 

reliable. Id. Courts consider such factors as awareness of the 

informant's identity, an officer's past interactions with the 

informant, and predictive information offered in the tip. See

United States v. Am, 564 F.3d 25 (1st Cir. 2009); United States 

v. Crozier, 777 F.2d 1376, 1389 (9th Cir. 1985); State v. 

Richardson, 156 Wis. 2d 128, 456 N.W.2d 830 (1990).

Officer Dregne's informant may not have been anonymous and 

may have been completely reliable, but any such facts are not in 

evidence. 
No. 2013AP430-CR 

18 

relationship to Hogan, if any, are unknown. If either Deputy 

Smith or Officer Dregne had been shown to know of Hogan's 

criminal record, which included three felony convictions and a 

drug conviction as well as his probationary status, the case for 

reasonable suspicion would have been greatly strengthened. 

After all, Hogan's statement to Deputy Smith that "I don't do 

drugs" could have been challenged, and Hogan's immediate 

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 information 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 that the 

extension of the stop for field sobriety tests was not lawful. 

B. Consent to Search 

¶54 Our determination that the extension of the traffic 

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 obtained 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 under 

the Fourth Amendment." State v. Williams, 2002 WI 94, ¶18, 255 

Wis. 2d 1 (2002). However, one of the "specifically established 

and well-delineated" exceptions to the warrant requirement is 
No. 2013AP430-CR 

19 

consent; if an individual freely gives consent for police to 

search his or her vehicle, the police may do so without a 

warrant. Id. 

¶56 Hogan does not dispute that he gave his consent for 

Deputy Smith to search his truck. Instead, Hogan argues that 

his illegal detention immediately prior to his consent tainted 

the consent and Deputy Smith was therefore not excused from 

obtaining a warrant to search Hogan's vehicle. 

¶57 Consent analysis proceeds under a distinct framework 

if consent was given following some illegal action by police. 

Consent, even when voluntary, is not valid when obtained 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 chain between 

the illegality and the seizure of evidence." Id. 

¶58 Attenuation analysis examines three factors to 

determine whether consent is sufficiently attenuated from 

illegal action to be removed from the taint of illegality: "(1) 

the temporal proximity of the official misconduct and seizure of 

evidence; (2) the presence of intervening circumstances; and (3) 

the purpose and flagrancy of the official misconduct." 

Phillips, 218 Wis. 2d at 206 (citing Brown v. Illinois, 422 U.S. 

590, 603-04 (1975)). The application of these factors will vary 

on a case-by-case basis. Our focus here is determining whether 
No. 2013AP430-CR 

20 

these factors sufficiently safeguard constitutional protections 

when the illegal action is the unlawful extension of a traffic 

stop. 

¶59 Hogan suggests that the third factor is inappropriate 

in this analysis because the "subjective intent of . . . law 

enforcement officers is irrelevant to whether . . . officers are 

unfairly benefitting from the violation of . . . suspects' 

rights." Hogan further contends that the focus in the 

attenuation analysis should be on why the individual gave 

consent. He offers a hybrid test that combines the first two 

factors from Phillips with a constructive seizure analysis like 

that in Williams. 

¶60 Considering the closeness of this case with regard to 

reasonable suspicion, it is no surprise that Hogan downplays the 

importance of the third factor, i.e., the purpose and flagrancy 

of the official misconduct. While flagrant violations of the 

law by police should weigh against the validity of any 

subsequent consent, see United States v. Edmons, 432 F.2d 577 

(2d Cir. 1970), the mere failure to establish reasonable 

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 consent 

implicates questions of voluntariness. Involuntary consent is 

invalid, regardless of any prior illegality or attenuation 

therefrom. See State v. Vorburger, 2002 WI 105, ¶89, 255 

Wis. 2d 537, 648 N.W.2d 829 (citing Schneckloth v. Bustamonte, 

412 U.S. 218 (1973)). Attenuation analysis is not voluntariness 
No. 2013AP430-CR 

21 

analysis, and it is not meant to cure the involuntary waiver of 

rights. Rather, attenuation analysis examines whether voluntary 

consent is tainted by prior illegality. Phillips, 218 

Wis. 2d at 204-05. 

¶62 Viewed in this light, we conclude that the attenuation 

test laid out in Phillips is the proper test to apply for 

analyzing voluntary consent to search a vehicle when that 

consent comes after the illegal extension of a traffic stop. 

The three Phillips factors adequately protect the rights of 

motorists in such situations. In many ways, the concept of 

constructive seizure——which Hogan argues should be included in 

the analysis——is already built into the Phillips attenuation 

test. 

¶63 We have held that a traffic stop ends when a 

reasonable person, under the totality of the circumstances, 

would feel free to leave. Williams, 255 Wis. 2d 1, ¶35. Given 

the wide range of possible "circumstances" in a traffic stop, it 

is not possible to expound a bright-line rule of when the 

reasonable driver would feel free to leave. However, it is not 

uncommon for officers to tell drivers they are "free to leave," 

may be "on their way," or to "have a nice day" at the conclusion 

of a traffic stop. 

¶64 The end of a traffic stop is important to two of the 

factors in the attenuation analysis. First, the circumstances 

giving rise to the end of a traffic stop will often (though 

perhaps not always) include the passage of time, which 

implicates the first attenuation factor. Second, and more 
No. 2013AP430-CR 

22 

important, the end of a traffic stop is a significant 

intervening event for purposes of attenuation analysis. 

¶65 Thus, Hogan's proposed hybrid attenuation test is 

unnecessary because it would focus on improper factors while 

placing redundant value on other factors. We see no reason to 

replace the Phillips attenuation analysis in this context. 

¶66 It is important to note that attenuation analysis may 

not be necessary in all cases. "[A]ttenuation analysis is only 

appropriate where, as a threshold matter, courts determine that 

'the challenged evidence is in some sense the product 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 analysis is 

unnecessary because the consent is not tainted by the unlawful 

conduct in such a case. See Hudson v. Michigan, 547 U.S. 586, 

592 (2006). 

¶67 After a traffic stop has ended, police may interact 

with the driver as they would with any citizen on the street. 

See Williams, 255 Wis. 2d 1, ¶35. That is, if a person is not 

seized, police may request consent to search even absent 

reasonable suspicion. See Florida v. Bostick, 501 U.S. 429, 431 

(1991). In a sense, the end of a traffic stop places the 

officer and driver back on equal footing, with the driver free 

to leave if he wishes (because if the driver were not free to 

leave, the traffic stop would not in fact have ended). 

¶68 Given the myriad possible scenarios in which police 

and the public may interact on the side of the road, we cannot 
No. 2013AP430-CR 

23 

postulate that the end of a traffic stop will always render 

attenuation analysis unnecessary. However, the end of the stop 

will be a significant factor in determining the necessity of 

attenuation analysis, at the very least. 

¶69 In this case, we conclude that the end of the traffic 

stop does render attenuation analysis unnecessary because 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 not 

constructively seized at the time Deputy Smith requested 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 defendant's 

vehicle for a traffic violation, for which the officer issued a 

warning. The defendant signed the warning, the two shook hands, 

and the officer told the defendant in a conversational 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 two steps 

toward his squad car, the officer asked for and was granted 

consent to search the vehicle, where the officer found heroin 

and a weapon. Id., ¶12-13. This court determined the officer's 

words and actions, considered as a whole, communicated 

permission to leave and, therefore, the defendant was 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 questioning 

did not constitute a seizure for purposes of the Fourth 

Amendment and the defendant's consent was valid. Id., ¶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 the stop, 

including the time in which Deputy Smith re-engaged Hogan. 

However, that alone is not enough for us to conclude that the 

stop had not ended. Police often may leave their emergency 

lights on for safety reasons when they and the motorist 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 extension 

of the traffic stop has been deemed illegal, the extension of 

the stop was not a but-for cause of the consent. The traffic 

stop had concluded. Hogan had returned to his truck and was 

free to leave. He gave consent to search after Deputy Smith reapproached him and asked for consent. 

¶72 Our conclusion that Hogan was not constructively 

seized when Deputy Smith requested consent to search Hogan's 

truck also resolves Hogan's argument that his consent was 

invalid because it occurred during a constructive seizure 

initiated without reasonable suspicion. As discussed above, 

without a constructive seizure, police do not need reasonable 

suspicion to request consent to search. See Bostick, 501 U.S. 

at 431. 

¶73 Because Hogan's rights were not violated, it was not 

error for the circuit court to deny his motions to suppress. 

IV. CONCLUSION 
No. 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 that the 

extension was unlawful based on the evidence presented. 

However, the defendant's subsequent consent to search his 

vehicle came after the traffic stop had ended and the 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 not 

constructively seized when he gave consent to search 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 recovered from his 

truck. 

¶75 Accordingly, we affirm the decision of the court 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 that, 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. Blatterman, 

2015 WI 46, 362 Wis. 2d 138, 864 N.W.2d 26 (Ziegler, J., 

concurring) (arguing that, because a prohibited alcohol 

concentration violation under Wis. Stat. § 346.63(1)(b) does not 

require proof of impairment, standard field sobriety tests are 

of limited value for determining whether a driver violated this 

statute). 

¶77 In the present case, Deputy Andrew Smith suspected 

Patrick Hogan of operating a motor vehicle with a detectable 

amount of a restricted controlled substance in his blood, 

contrary to Wis. Stat. § 346.63(1)(am). This offense does not 

require proof of impairment. State v. Smet, 2005 WI App 263, 

¶23, 288 Wis. 2d 525, 709 N.W.2d 474. This offense has two 

elements: (1) the defendant drove or operated a motor vehicle on 

a highway; and (2) the defendant had a detectable amount of a 

restricted controlled substance in his or her blood at the time 

the defendant drove or operated a motor vehicle. See 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 arrest someone who 

is suspected of violating § 346.63(1)(am), operators may violate 

this statute even though they are able to pass standard field 

sobriety tests. Accordingly, whether a driver who violates this 
No. 2013AP430-CR.akz 

2 

statute is brought to justice might often depend on whether 

there is probable cause to arrest the driver and take him or her 

to a hospital for further testing, regardless of how he or she 

performs on standard field sobriety tests. In the present case, 

the circuit court's findings of fact do not allow me to engage 

in this type of analysis. 

¶78 For the foregoing reasons, I respectfully concur. 
No. 2013AP430-CR.awb 

1 

¶79 ANN WALSH BRADLEY, J. (dissenting). I agree with 

the majority that "[c]onsent analysis proceeds under a distinct 

framework if consent was given following some illegal 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 search is 

obtained after a Fourth Amendment violation, evidence seized as 

a result of that search must be suppressed as 'fruit of the 

poisonous tree' unless the State can show a sufficient break in 

the causal chain between the illegality and the seizure of 

evidence." Id. (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 analysis. The 

majority concludes that it is unnecessary "[b]ecause the police 

did not exploit the unlawful extension . . . to gain Hogan's 

consent." Majority op., ¶9. Yet, the very purpose of an 

attenuation analysis is to determine whether the evidence 

objected to was obtained by exploitation of a prior police 

illegality. 

¶82 Contrary to the majority's assertions, this case 

presents the quintessential example of when an attenuation 

analysis is needed. It is undisputed that the extension of the 

traffic stop was unconstitutional. The deputy reengaged Hogan a 

mere 16 seconds later, seeking consent to search. 
No. 2013AP430-CR.awb 

2 

¶83 Where consent is obtained so closely on the heels of 

acknowledged police misconduct, attenuation analysis is the 

means by which we determine "whether the evidence objected to 

was obtained by exploitation of a prior police illegality or 

instead by means sufficiently attenuated so as to be purged of 

the taint." State v. Anderson, 165 Wis. 2d 441, 447-48, 477 

N.W.2d 277 (1991). 

¶84 In this case an attenuation analysis reveals that the 

taint from the deputy's unconstitutional actions was 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 its 

analysis attempting to re-litigate the facts of this case to 

determine whether the extension of the traffic stop was 

unconstitutional. Majority op., ¶¶38-52. Ultimately, it 

acquiesces, as it must, to the conclusion reached by the circuit 

court and the court of appeals——the extension of the stop was 

illegal. Id., ¶53. 

¶86 Acknowledging that designating the extension unlawful 

does not resolve the case, the majority turns its focus 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 action by 

police." Id., ¶57. It then explains that "[a]ttenuation 

analysis examines three factors to determine whether consent is 

sufficiently attenuated from illegal action to be removed from 
No. 2013AP430-CR.awb 

3 

the taint of illegality." Id., ¶58. This statement 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 after 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 to go." See 

id., ¶69. Based on this rationale, the majority sets aside the 

preceding illegality in the traffic stop and determines that an 

attenuation analysis is unnecessary. It states: "[b]ecause 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." Id., ¶9. Without 

conducting an attenuation analysis, the majority ultimately 

concludes that Hogan's consent to the search was valid. Id., 

¶¶69, 71. 

II 

¶88 In asserting a reasonable person would have felt free 

to leave after the unlawful extension of the traffic 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 vehicle. 

Despite Hogan's clear agitation and expressed desire to go home, 

the deputy prolonged the stop to such an extent that it 

constituted an unconstitutional extension of the stop when he 
No. 2013AP430-CR.awb 

4 

asked Hogan to perform multiple sobriety tests. After the tests 

were completed, the Deputy told Hogan he was free to leave. 

¶90 However, sixteen seconds after Hogan got back into his 

vehicle, with the lights on the patrol car still flashing, the 

deputy walked back to the defendant and reengaged. After asking 

for and receiving Hogan's consent to search, the deputy 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 individual would 

believe that he has nothing to lose if he refuses to cooperate 

with the police or that he had any free choice to ignore the 

police altogether. United States v. Drayton, 536 U.S. 194, 212 

(2002) (Souter, J., dissenting) ("It is very hard to imagine 

that either [defendant] would have believed that he stood to 

lose nothing if he refused to cooperate with the police, or that 

he had any free choice to ignore the police altogether. 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 believe: 

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 leave 

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 with 
No. 2013AP430-CR.awb 

5 

Differential Standards for Investigatory Stops In Re 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 legal fiction. 

That defendants often consent to searches of areas that reveal 

incriminating evidence demonstrates that people often do not 

feel free to decline an officer's request, even absent a 

manifest show of authority."). 

¶93 "[E]mpirical studies over the last several decades on 

the social psychology of compliance, conformity, social 

influence, and politeness have all converged on a single 

conclusion: the extent to which people feel free to refuse to 

comply is extremely limited under situationally induced 

pressures." Janice Nadler, No Need to Shout: Bus Sweeps 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 circumstances 

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, 739-40. 

¶94 In the present case, the very nature of the stop was 

coercive. The deputy necessarily displayed his power and the 

accoutrements of his authority in order to get Hogan to pull 

over his vehicle. Once there, the deputy used his authority to 

require Hogan's compliance with unconstitutional sobriety tests, 

while another officer looked on. There was no real break 

between this series of events and the deputy's request to search 
No. 2013AP430-CR.awb 

6 

Hogan's vehicle. Although the deputy told Hogan he was free to 

leave, within a mere 16 seconds, he reengaged seeking 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 methamphetamine, 

drug paraphernalia, and two loaded guns in his vehicle, blithely 

consent to a search of his vehicle absent the presence 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 demonstrates 

that the consent was not so attenuated from the illegality to 

render it free of the taint from the unconstitutional extension 

of the traffic stop. 

¶97 Attenuation analysis is well-established in our 

jurisprudence. Originating in the United States Supreme Court, 

it was developed to help courts determine whether evidence 

obtained following illegal police activity must be excluded as 

the fruit of the poisonous tree. Wong Sun v. United States, 371 

U.S. 471, 488 (1963). The Court set forth the relevant 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, 221 (1959)). 
No. 2013AP430-CR.awb 

7 

¶98 In Brown v. Illinois, 422 U.S. 590, 603-04 (1975), the 

Supreme Court declined to adopt a "but for" approach based on a 

causal connection, and announced instead three factors that 

courts should consider in determining if evidence was 

sufficiently attenuated from the initial illegality to purge it 

of the primary taint: temporal proximity, the presence 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 the 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 unconstitutional 

extension of the stop and the time the deputy reengaged Hogan 

seeking consent to search. In assessing temporal proximity, we 

have previously determined that the timespan of a few minutes 

weighs against a consensual search. Id.; see also United States 

v. Macias, 658 F.3d 509, 524 (5th Cir. 2011) (thirty-second 

interval between illegal extension of traffic stop and request 

for consent weighed against attenuation); United States v. 

Gregory, 79 F.3d 973, 979-80 (10th Cir. 1996) (passage of less 

than a minute between return of driver's license and request to 

search not sufficient to purge the taint of an illegal stop); 

McGaughey v. State, 37 P.3d 130, 141 (Okla. Crim. App. 2001) 

(the fact that only a few minutes had passed between the illegal 

detention and the request for consent to search "weigh[ed] 

heavily against finding the taint cleansed"). 
No. 2013AP430-CR.awb 

8 

¶102 The United Stated Supreme Court has stated that in 

some circumstances even a 45-minute timespan would be 

insufficient to purge the taint. Rawlings v. Kentucky, 448 U.S. 

98, 107 (1980). Here, we are considering a mere 16 seconds that 

passed between the illegal extension of the stop and the 

deputy's reengagement, seeking consent to search Hogan's 

vehicle. Such an abbreviated timespan weighs against 

attenuation. 

¶103 In considering temporal proximity, courts take into 

account the conditions that existed. Admittedly, in some 

circumstances, the existence of a congenial atmosphere may weigh 

in favor of attenuation. See Rawlings, 448 U.S. at 109. In 

this case it does not. Although the atmosphere during the 

encounter was not overtly threatening, Hogan appeared 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 unequal power 

dynamic between the deputy and Hogan. Far from removing the 

taint of the illegality, the conditions of the illegal extension 

of the stop combined with the short time span between 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 case, after the 

extension of the stop, the deputy told Hogan that he was free to 

leave and they both returned to their vehicles. Although these 
No. 2013AP430-CR.awb 

9 

circumstances are significant as they could be viewed as an end 

of the traffic stop, they are not sufficient to wipe clean the 

slate such that the consent was untainted by the illegality. 

¶105 This court described what intervening circumstances 

would support a determination of attenuation in Phillips, 218 

Wis. 2d 180. In that case, after illegally entering the 

defendant's home, officers had a short discussion with the 

defendant. An officer informed the defendant that they had 

received information that the defendant had drug paraphernalia 

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 with sufficient 

information with which he could decide whether to freely consent 

to the search." Id. at 208-09. We stated that the discussion 

"illustrates that the defendant was not improperly surprised, 

frightened, or confused when he consented to the search 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 indication that Hogan 

could decline the deputy's request to search his vehicle. 

Indeed, during the unlawful extension of the stop, Hogan 

expressed his belief that if he did not accede to the deputy's 

requests, it would be used against him. Nothing in the deputy's 

request for consent to search the vehicle would have 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 factor 

considers whether the conduct of the officers rose "to the level 

of conscious or flagrant misconduct requiring prophylactic 

exclusion." Anderson, 165 Wis. 2d at 451 (quoting Rawlings, 448 

U.S. at 110). 

¶108 The deputy's conduct indicates a conscious attempt to 

gain consent for the search. His exchange with the other 

officer at the scene suggests that the entire purpose of 

extending the stop was to find a reason to search Hogan's 

vehicle. Seeking consent to search is generally consistent with 

exemplary work of law enforcement. Detaining a suspect longer 

than reasonably justified by the stop in order to obtain consent 

crosses the line. I acknowledge, however, that the deputy may 

not have realized that the extension of the stop was unlawful. 

Thus, it is hard to conclude that his conduct was flagrant. 

Overall, this factor appears neutral in determining attenuation. 

¶109 Having considered the three traditional factors of an 

attenuation analysis, I conclude that on balance, they weigh 

against a determination of attenuation. Although the third 

factor appears neutral, both the first and second factors weigh 

against it. The facts of this case and the relevant case law 

reveal that there was no real break between the unconstitutional 

extension of the traffic stop and the deputy's request for 

consent to search Hogan's vehicle. 

IV 
No. 2013AP430-CR.awb 

11 

¶110 Although officers may conduct brief seizures when 

there is reasonable suspicion of a traffic violation, "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." Rodriguez v. United 

States, 135 S. Ct. 1609, 1614 (2015). As the majority 

acknowledges, an officer may not extend the stop without 

additional reasonable suspicion. Majority op., ¶35. Absent 

such reasonable suspicion, the prolonged detention becomes an 

unlawful seizure, intruding on the citizen's personal liberty. 

¶111 Here, consent to search Hogan's vehicle was sought 

only seconds after the illegal extension of the traffic 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 exclusionary rule are 

"assurance of judicial integrity and deterrence of unlawful 

police conduct"). The evidence should have been suppressed. 

¶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 

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No. 2013AP430-CR.awb 

1