2015 WI 79



# S UPREME 

# C OURT OF 

# W ISCONSIN

C ASE N O .: 2013AP1581-CR C OMPLETE T ITLE : State of Wisconsin,

Plaintiff-Respondent-Petitioner, v. Richard E. Houghton, Jr., Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 354 Wis. 2d 623, 848 N.W.2d 904)

(Ct. App. 2014 – Unpublished)

O PINION F ILED : July 14, 2015 S UBMITTED ON B RIEFS : O RAL A RGUMENT : April 22, 2015

S OURCE OF A PPEAL : C OURT : Circuit C OUNTY : Walworth J UDGE : John R. Race

J USTICES : C ONCURRED : D ISSENTED : ABRAHAMSON, BRADLEY, J.J., dissent. (Opinion

Filed.) N OT P ARTICIPATING :

A TTORNEYS : For the plaintiff-respondent-petitioner, the cause was argued by Tiffany M. Winter , assistant attorney general, with whom on the briefs was Brad D. Schimel , attorney general.

For the defendant-appellant there was a brief by Andrew R. Walter , Elkhorn, and oral argument by Andrew R. Walter

.

An amicus curiae brief was filed by Hannah Schieber Jurss, assistant state public defender, with whom on the b rief was Kelli S. Thompson , state public defender, on behalf of the Office of the State Public Defender.2015 WI 79

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP1581-CR (L.C. No. 2012CF187)

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

v. Richard E. Houghton, Jr., Defendant-Appellant. 

## FILED JUL 14, 2015

Diane M. Fremgen Clerk of Supreme Court

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

¶1 DAVID T. PROSSER, J. This is a review of an unpublished decision of the court of appeals, 1 which reversed a judgment of conviction entered by the Walworth Coun ty Circuit

Court 2 against Richard E. Houghton, Jr. (Houghton). Houg hton pled guilty to one count of possession of THC (grea ter than 200 grams) with intent to deliver, following the circui t court's

1 State v. Houghton, No. 2013AP1581-CR, unpublished slip op. (Wis. Ct. App. May 7, 2014).

2 The Honorable John R. Race, Judge.No. 2013AP1581-CR

2 denial of Houghton's motion to suppress evidence ob tained during the course of a traffic stop. ¶2 This case presents questions related to the stan dard necessary for police to lawfully initiate a traffic stop. Specifically, we consider whether an officer's reas onable suspicion that a motorist is committing a traffic v iolation is always sufficient for the officer to stop the motor ist, or whether some stops require probable cause. We also examine statutes related to the placement of objects in the front windshield of an automobile, and weigh the effect o f recent developments in case law related to objectively rea sonable mistakes of law made by law enforcement officers. ¶3 Police Officer Jeff Price (Officer Price) pulled Houghton over after Officer Price observed Houghton 's vehicle traveling on a highway without a front license plat e and with an air freshener and a GPS unit visible in the front w indshield. Upon approaching the vehicle, Officer Price detecte d the odor of marijuana, which led him to conduct a search of Hou ghton's car. The search revealed approximately 240 grams of mari juana as well as various paraphernalia commonly used for packagin g and distributing marijuana. ¶4 Houghton argues that the stop was not an investi gatory stop, and thus probable cause was required. Hought on contends that Officer Price lacked probable cause to stop Ho ughton's vehicle, making the subsequent search unlawful. Th e State counters that reasonable suspicion is sufficient fo r police officers to initiate any type of traffic stop, and that OfficerNo. 2013AP1581-CR

3 Price had reasonable suspicion to pull Houghton ove r for a violation of Wis. Stat. § 346.88(3)(b) (2011-12), 3 "Obstruction of operator's view or driving mechanism." The Stat e argues in the alternative that any mistake by Officer Price a s to whether Houghton was operating his vehicle illegally was ob jectively reasonable, and that under the holding of the recen t United States Supreme Court case of Heien v. North Carolin a, 574 U.S. ___, 135 S. Ct. 530 (2014), Officer Price had reaso nable suspicion to stop Houghton's vehicle for the percei ved violation. ¶5 We hold that an officer's reasonable suspicion t hat a motorist is violating or has violated a traffic law is sufficient for the officer to initiate a stop of th e offending vehicle. We also adopt the Supreme Court's holding in Heien that an officer's objectively reasonable mistake of law may form the basis for a finding of reasonable suspicion. ¶6 In this case, we hold that Wis. Stat. § 346.88 d oes not create an absolute prohibition on any object be ing present in the front windshield of a vehicle. However, Off icer Price's interpretation that the statute did create such a p rohibition was objectively reasonable. Accordingly, Officer P rice had reasonable suspicion to stop Houghton's vehicle, an d it was not error for the circuit court to deny Houghton's moti on to suppress. For these reasons, we reverse the court of appeals.

3 All subsequent references to the Wisconsin Statute s are to the 2011-12 version unless otherwise indicated.No. 2013AP1581-CR

4 I. FACTUAL AND PROCEDURAL BACKGROUND ¶7 At approximately 12:30 p.m. on April 16, 2012, V illage of East Troy Police Officer Jeff Price was on duty in a marked squad car on the shoulder of Highway 20, facing eas t, near Townline Road in East Troy. Around that time, Offi cer Price saw a blue Ford Taurus traveling westbound on Highway 2 0. The car had no front license plate, and an air freshener su spended from the rearview mirror and a GPS unit were visible thr ough the front windshield. Officer Price did a U-turn, acti vated his squad car's emergency lights, and pulled the Taurus over. ¶8 Officer Price approached the Taurus and obtained identification from the occupants. The car, which had a Michigan license plate attached to the back, was dr iven by the defendant, Richard E. Houghton, Jr., who is a resid ent of Michigan. In the front passenger seat of the car w as James J. Taracek (Taracek), Houghton's step-brother and a re sident of East Troy. After running a check on both Houghton and Taracek, Officer Price returned to the the Taurus, this time approaching the passenger side. As he approached, Officer Pric e smelled the odor of marijuana coming from the car. ¶9 Officer Price searched the car and found the following: "two partially smoked marijuana cigarett es, a pack of zig-zag rolling paper, a piece of PVC tubing with a screen taped on one end, a large zip-lock bag containing green p lant material, three smaller sandwich bags containing gr een plant material, a 150 count pack of sandwich bags, and an AMS digital scale with traces of green plant material on the we ighing base."No. 2013AP1581-CR

5 The "green plant material" tested positive for Tetrahydrocannabinol (THC), the active ingredient i n marijuana. The large "zip-lock" bag contained approximately 14 0 grams of marijuana, the three smaller sandwich bags each con tained approximately 30 grams of marijuana, and the PVC tu be contained approximately 9 grams of marijuana. ¶10 In an information filed on June 5, 2012, Hought on was charged with one count of possession with intent to deliver THC (200 to 1000 grams), contrary to Wis. Stat. § 961.4 1(1m)(h)2. On July 31, Houghton filed a motion with the circui t court seeking suppression of the evidence obtained during the search of his vehicle. Houghton argued that the lack of a front license plate on his car and the items in his winds hield were not violations of Wisconsin law. Houghton contende d that "because no traffic violations occurred, [Officer P rice] lacked the reasonable suspicion to justify a Terry stop." 4 Therefore, Houghton argued, the stop violated his Fourth Amend ment right against unreasonable search and seizure. ¶11 The State answered Houghton's motion to suppres s on October 16. The State argued that Officer Price ha d reasonable suspicion to stop Houghton for three observed viola tions: the

4 Terry v. Ohio, 392 U.S. 1 (1968).No. 2013AP1581-CR

6 absence of a front license plate, the items in the front windshield, and a missing side mirror. 5 ¶12 The circuit court held a motion hearing on Nove mber 2, at which Officer Price testified briefly about his encounter with Houghton. At the end of the hearing, the circ uit court denied the motion. The court was equivocal about w hether the GPS unit and air freshener were statutory violation s, noting that "there must be a zillion cars driving around w ith air fresheners and not very many of them would get stop ped by the traffic officer. They've got better things to do." However, the court continued, "the princip[al] reason for th e stop that creates this reasonable and articulable suspicion i s the front license plate missing from a vehicle, missing on Wi sconsin roads when Wisconsin requires two plates." ¶13 After denial of his motion to suppress, Houghto n pled guilty to the count as charged at a hearing on Febr uary 13, 2013. As part of the plea agreement, the State rec ommended a two-year sentence consisting of one year of impriso nment and one year of extended supervision, imposed and stayed on the condition that Houghton complete two years of proba tion and pay a $500 fine plus costs. After a plea colloquy, the court

5 Houghton's car was missing the mirror lens on the passenger side. However, Officer Price did not not ice the lens was missing from the mirror housing until after he stopped Houghton. The State does not argue in this appeal that the missing mirror lens gave Officer Price reasonable s uspicion to stop Houghton.No. 2013AP1581-CR

7 entered a judgment of conviction and accepted the s entence recommendation, allowing for the possibility that H oughton would serve probation in Michigan. ¶14 Houghton appealed his conviction. On appeal, H oughton argued that the circuit court erred by denying his motion to suppress evidence. Houghton maintained his argumen t that Officer Price lacked reasonable suspicion to stop H oughton's vehicle. The State conceded that Officer Price mad e a mistake of law with regard to the license plate requirement . The State also conceded that under State v. Longcore, 226 Wis . 2d 1, 9, 594 N.W.2d 412 (Ct. App. 1999), a mistake of law co uld not form the basis for a traffic stop. The State argued, ho wever, that the items in the front windshield of Houghton's car gave Officer Price sufficient reason to pull Houghton over. ¶15 In an unpublished per curiam decision, the cour t of appeals reversed the judgment of conviction and rem anded the case to the circuit court. State v. Houghton, No. 2013AP1581- CR, unpublished slip op. (Wis. Ct. App. May 7, 2014 ). The court provided little explanation for its ruling, noting that: the only objects near Houghton's front windshield w ere a standard-size, pine-tree-shaped air freshener hanging from the rearview mirror and a three-by-fiv einch GPS unit attached to the lower left-hand corne r. On these facts, we are not persuaded that there was probable cause to conclude that a violation of § 346.88(3)(b) had occurred. Id. at 5. ¶16 The court of appeals did acknowledge that the S upreme Court had recently granted certiorari in Heien v. N orthNo. 2013AP1581-CR

8 Carolina, 749 S.E.2d 278 (N.C. 2013), which address ed whether a reasonable mistake of law could provide grounds for a traffic stop. Houghton, No. 2013AP1581-CR, at 4 n.3. The court noted that the decision in Heien could place the holding of Longcore in doubt, and "suppose[d] the State [could] petitio n the Wisconsin Supreme Court for review and then ask tha t the petition be held in abeyance pending the outcome in Heien." Id. ¶17 The State petitioned this court for review and requested that we hold the petition in abeyance pen ding resolution of Heien. Following the release of the opinion in Heien, this court granted review on January 13, 201 5.
II. STANDARD OF REVIEW ¶18 Whether reasonable suspicion or probable cause is necessary for a law enforcement officer to stop a v ehicle is a question of law we review de novo. See State v. Kr amer, 2001 WI 132, ¶17, 248 Wis. 2d 1009, 637 N.W.2d 35. Whether a statute has been properly interpreted and applied also is a question of law we review de novo, but we do so "while benefitt ing from the analyses of the court of appeals and circuit court. " 118th St. Kenosha, LLC v. DOT, 2014 WI 125, ¶19, 359 Wis. 2d 30, 41 N.W.2d 486 (quoting 260 N. 12th St., LLC v. DOT, 20 11 WI 103, ¶39, 338 Wis. 2d 34, 808 N.W.2d 372). Finally, whe ther a defendant's constitutional rights were violated is a question of constitutional fact subject to a two-step standard of review. State v. Phillips, 218 Wis. 2d 180, 189, 577 N.W.2d 794 (1998). First, we uphold the circuit court's findings of hi storical fact unless they are clearly erroneous. State v. Willia ms, 2002 WINo. 2013AP1581-CR

9 94, ¶17, 255 Wis. 2d 1, 646 N.W.2d 834. Then, we r eview the circuit court's determination of the constitutional question de
novo. Id.
III. DISCUSSION ¶19 We begin by reviewing the law relating to investigatory traffic stops, then examine the evolu tion of case law involving stops predicated on reasonable mistak es of law. We then turn to an analysis of the relevant statute s in this case and conclude by applying the relevant law to t he facts.

A. Probable Cause and Reasonable Suspicion ¶20 Terry v. Ohio, 392 U.S. 1 (1968), is the semina l case on reasonable suspicion as justification for conduc ting investigatory stops. In Terry, the defendant was c onvicted of carrying a concealed weapon. Id. at 4. The arrest ing officer, a veteran detective with almost 40 years of experie nce, confronted Terry and his associates after observing them engage in a pattern of suspicious behavior. Id. at 5-7. After speaking to the men briefly, the detective grabbed Terry, spun him around, and performed a pat down search. Id. a t 7. The search revealed a .38 caliber revolver in Terry's c oat pocket. Id. Terry moved to suppress the evidence, arguing that the detective lacked probable cause to conduct the sear ch. Id. at 7-8. ¶21 The Supreme Court affirmed Terry's conviction, holding that "a police officer may in appropriate circumsta nces and in an appropriate manner approach a person for purpose s of investigating possibly criminal behavior even thoug h there is noNo. 2013AP1581-CR

10 probable cause to make an arrest." Id. at 22. In order to justify such a seizure, police must have reasonable suspicion that a crime or violation has been or will be commi tted; that is, "the police officer must be able to point to sp ecific and articulable facts which, taken together with ration al inferences from those facts, reasonably warrant that intrusion ." Id. at 21. This "reasonable suspicion" standard was under stood to be a lower standard than probable cause. See id. at 35- 36 (Douglas, J., dissenting). ¶22 In Berkemer v. McCarty, 468 U.S. 420 (1984), th e Court extended the reasoning underlying Terry to include traffic stops, holding that a police officer "who lacks pro bable cause but whose 'observations lead him reasonably to susp ect' that a particular person has committed, is committing, or is about to commit" a violation may conduct a traffic stop in o rder to "'investigate the circumstances that provoke suspic ion.'" See id. at 439 (citation omitted). In other words, whi le probable cause is enough to justify a traffic stop, probable cause is not indispensable to justify a traffic stop. Rather, p olice officers who reasonably suspect an individual is br eaking the law are permitted to conduct a traffic stop "to try to obtain information confirming or dispelling the officer's suspicions."
Id. ¶23 Twelve years after Berkemer, the Supreme Court decided Whren v. United States, 517 U.S. 806 (1996) . In Whren, the Court addressed whether temporarily detaining " a motorist who the police have probable cause to believe has c ommitted aNo. 2013AP1581-CR

11 civil traffic violation is inconsistent with the Fo urth Amendment's prohibition against unreasonable seizur es unless a reasonable officer would have been motivated to sto p the car by a desire to enforce the traffic laws." Id. at 808. ¶24 On June 10, 1993, D.C. Metro Police officers we re patrolling an area of the city known for drug activ ity. Id. The officers grew suspicious of a vehicle with temp orary plates and "youthful occupants" after seeing the driver of the vehicle "looking down into the lap of the passenger at his right." Id. The officers stopped the vehicle after observing it driving erratically, and upon approaching the vehicle, they observed Whren in possession of crack cocaine. Id. at 809. Whren was arrested and charged with multiple drug violations. Id. Prior to trial, the defense moved to suppress the evidenc e on the theory that the officers' "ground for approaching t he vehicle—— to give the driver a warning concerning the traffic violation—— was pretextual." Id. at 809. ¶25 In an opinion by Justice Scalia, a unanimous Co urt held that the brief detention of a motorist who pol ice have probable cause to believe has violated a traffic la w is not an unreasonable search or seizure within the meaning o f the Fourth Amendment, even if the officer would not have initi ated the stop without some additional law enforcement objective. Id. at 808, 818-19. In other words, pretextual traffic stops—— stops designed to investigate violations not related to t he observed violation——are not per se unreasonable under the Fo urth
Amendment.No. 2013AP1581-CR

12 ¶26 Since Whren, some have sought deeper meaning in the Court's assertion that, "As a general matter, the d ecision to stop an automobile is reasonable where the police h ave probable cause to believe that a traffic violation has occur red." Id. at 810 (emphasis added). Some courts interpreted Whre n to mean that probable cause——not reasonable suspicion——is r equired for a traffic stop to be reasonable. See United States v . DelfinColina, 464 F.3d 392, 396 (3d Cir. 2006) (discussin g the uncertainty raised by Whren). ¶27 The existence of multiple standards necessary t o justify traffic stops in Wisconsin was implied in S tate v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996). In Gaulrapp, the court of appeals stated that a "traff ic stop is generally reasonable if the officers have probable cause to believe that a traffic violation has occurred, or h ave grounds to reasonably suspect a violation has been or will be committed." Id. at 605 (citations omitted). This dual-standard analysis continued in Longcore when the court of ap peals noted that the officer "did not act upon a suspicion that warranted further investigation, but on his observation of a violation being committed in his presence," thus requiring th e officer's observations to meet the probable cause standard. Longcore, 226 Wis. 2d at 8-9 (footnote omitted). ¶28 Houghton urges this court to hold that this dua l standard is correct——that an investigative stop may be based on reasonable suspicion, but a stop for an observed vi olation must be based on probable cause. He argues that our dec ision inNo. 2013AP1581-CR

13 State v. Popke, 2009 WI 37, ¶11, 317 Wis. 2d 118, 7 65 N.W.2d 569, recognized this distinction by citing G aulrapp multiple times, and that stare decisis dictates tha t we adhere to it. Houghton also argues that this dual standar d provides proper protection to citizens' Fourth Amendment rig hts. ¶29 It is undisputed that traffic stops must be rea sonable under the circumstances. Gaulrapp, 207 Wis. 2d at 605. It is also widely accepted that traffic stops may be just ified by either probable cause or reasonable suspicion. Pop ke, 317 Wis. 2d 118, ¶23. The question here is whether thi s "either/or" principle means that reasonable suspicion will alwa ys suffice to initiate a traffic stop, or whether the nature of c ertain types of stops requires that a higher standard be met in those stops. ¶30 We conclude that reasonable suspicion that a tr affic law has been or is being violated is sufficient to justify all traffic stops. 6 The prevailing case law instructs that this is so. See, e.g., Delfin-Colina, 464 F.3d at 396 ("th e Second, Sixth, Eighth, Ninth, Tenth and Eleventh Circuits h ave all construed Whren to require only that the police hav e reasonable suspicion to believe that a traffic law has been br oken.") (internal quotation marks omitted) (citation omitte d). See also Berkemer, 468 U.S. at 439 ("the usual traffic stop is more analogous to a so-called 'Terry stop' than to a for mal arrest");

6 In at least some circumstances, reasonable suspici on that a non-traffic-related law has been broken may also justify a traffic stop. Cf. State v. Harris, 206 Wis. 2d 243 , 258-61, 557 N.W.2d 245 (1996).No. 2013AP1581-CR

14 United States v. Ruiz, 785 F.3d 1134, 1141 (7th Cir . 2015); United States v. Lopez-Soto, 205 F.3d 1101, 1104-05 (9th Cir. 2000) (collecting cases). As the Supreme Court has noted, "detention of a motorist pursuant to a traffic stop is presumptively temporary and brief." Berkemer, 468 U.S. at 437. When weighed against the public interest in safe ro ads, we are satisfied that the "temporary and brief" detention of a traffic stop is an "appropriate manner" in which a police o fficer may "approach a person for purposes of investigating po ssibly criminal behavior even though there is no probable cause to make an arrest." Terry, 392 U.S. at 22. B. Reasonable Mistakes of Law ¶31 At issue in this case is whether a seizure pred icated by an objectively reasonable mistake of law violate s constitutional protections against unreasonable sea rches and seizures. The Fourth Amendment to the United State s Constitution and Article I, Section 11 of the Wisco nsin Constitution provide these protections. 7 The "[t]emporary detention of individuals during the stop of an auto mobile by the police, even if only for a brief period and for a l imited

7 The Fourth Amendment to the United States Constitu tion provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unrea sonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. Article I, Section 11 of the Wis consin Constitution uses identical language. See Wis. Con st. Art. I, § 11. We have historically read these provisions a s coextensive. State v. Artic, 2010 WI 83, ¶28, 327 Wis. 2d 392, 786 N.W.2d 430.No. 2013AP1581-CR

15 purpose, constitutes a 'seizure' of 'persons' withi n the meaning" of the Fourth Amendment. Whren, 517 U.S. at 809-10. See also Popke, 317 Wis. 2d 118, ¶11. ¶32 In the past, Wisconsin courts have held that a seizure predicated on a police officer's mistake of law is invalid under the Fourth Amendment. See State v. Brown, 2014 WI 69, ¶22, 355 Wis. 2d 668, 850 N.W.2d 66; Longcore, 226 Wis. 2d a t 3-4. However, the Supreme Court's recent decision in Hei en is at odds with these holdings. ¶33 A brief review of the relevant case law is usef ul to provide context for our decision. ¶34 In 1999, the court of appeals issued its opinio n in Longcore. Longcore involved police officer Kevin L arson, who became suspicious of a vehicle when he observed it leaving the parking lot of several closed businesses at about 2 :00 a.m. Longcore, 226 Wis. 2d at 4. Officer Larson also ob served that the rear passenger window of the vehicle was missin g and had been replaced with a plastic sheet. Id. Officer L arson believed the plastic sheet violated Wis. Stat. § 34 7.43(1), which required that safety glass be properly equipp ed in all cars manufactured after 1935. Id. After pulling t he car over, Officer Larson discovered that the driver of the ca r, Michael Longcore, was operating with a suspended license. Id. at 3. ¶35 The circuit court concluded that the stop was v alid, reasoning, "[T]he officer believed a traffic regula tion was being violated, the regulation is ambiguous, the of ficer's interpretation was reasonable and therefore his sus picion thatNo. 2013AP1581-CR

16 the law was violated was reasonable." Id. at 5. H owever, the court of appeals reversed the circuit court. The c ourt of appeals stated: If the facts would support a violation only under a legal misinterpretation, no violation has occurred, and thus by definition there can be no probable cau se that a violation has occurred. We conclude that wh en an officer relates the facts to a specific offense, it must indeed be an offense; a lawful stop cannot be predicated upon a mistake of law. Id. at 9. ¶36 Longcore was affirmed by this court in a per cu riam opinion after the court divided 3-3 on whether to a ffirm or reverse the court of appeals. State v. Longcore, 2 000 WI 23, 233 Wis. 2d 278, 607 N.W.2d 620. ¶37 This court was confronted with a similar scenar io 14 years later in Brown. On the night of July 3, 2010 , Antonio Brown and a friend attended a barbeque together. B rown, 355 Wis. 2d 668, ¶8. After the barbeque, the friend dr ove Brown home in Brown's car because Brown was too intoxicat ed to drive himself. Id. The two were stopped by Milwaukee po lice officers William Feely and Michael Wawrzonek, who believed t hat an unlit bulb in the car's tail lamp violated Wis. Stat. § 3 47.13(1). Id., ¶¶2, 7. The officers eventually conducted a s earch of the vehicle, which revealed a firearm under the front s eat. Id., ¶7. ¶38 Brown sought to suppress the evidence, arguing that the stop of his car was unconstitutional and the su bsequent search was therefore invalid. See id., ¶12. The c ourt ofNo. 2013AP1581-CR

17 appeals held that the police lacked probable cause or reasonable suspicion to stop Brown's vehicle, and because ther e was no probable cause or reasonable suspicion to support t he stop, the evidence from the search should have been suppresse d. Id., ¶¶14-16. ¶39 This court affirmed the court of appeals. The majority opinion noted that prior holdings provided "if the officers' interpretation of the law were incorrect . . . the stop would be unconstitutional because a lawful sto p cannot be predicated upon a mistake of law." Id., ¶22 (citin g Longcore, 226 Wis. 2d at 9). In examining the relevant statu tes, the court determined that Wis. Stat. § 347.13(1) did no t require every single light bulb in a vehicle's tail lights to work. Id., ¶3. Rather, the statute required only that th e tail lights "be in proper working condition" and visible from 5 00 feet away in the dark. Id. Thus, "[b]ecause having one unli t bulb on the back of a vehicle does not on its own violate the s tatutory requirements for tail lamps, the State . . . failed to show that the officers had probable cause to believe that a t raffic violation had occurred." Id., ¶38. ¶40 In dissent, Justice Roggensack——joined by Justi ce Ziegler——argued that a search based on a reasonable mistake of law is constitutional. Id., ¶91 (Roggensack, J., d issenting). Specifically, an officer's mistake of law is reason able if a statute is "ambiguous or unclear so that an objecti vely reasonable officer could form a reasonable belief t hat a violation was occurring, even when it was not." Id

.No. 2013AP1581-CR

18 ¶41 Shortly after Brown, the Supreme Court also con sidered the issue of a seizure premised on a police officer 's mistake of law. On the morning of April 29, 2009, a police se rgeant began to follow a vehicle after noticing that the driver looked "very stiff and nervous." Heien, 135 S. Ct. at 534. Whe n the vehicle braked, the sergeant noticed that one of the vehicl e's brake lights was not working and he stopped the vehicle. Id. While issuing a written warning for the broken brake ligh t, the sergeant became suspicious of the behavior of the o ccupants and their conflicting answers to questions he asked. I d. The sergeant asked for and received consent to search t he vehicle, whereupon he discovered a bag containing cocaine. Id. Heien was arrested and charged with attempted trafficking in cocaine. Id. at 535-36. ¶42 As it turned out, having only one functioning b rake light is not a violation of law in North Carolina. Id. at 536. Thus, on appeal, the Supreme Court had to determine whether the sergeant's mistake of law nevertheless could have p rovided "the reasonable suspicion necessary to uphold the seizur e under the Fourth Amendment." Id. at 534. ¶43 The Court began its decision by noting that und er the
Fourth Amendment: a search or seizure may be permissible even though the justification for the action includes a reasonable factual mistake. An officer might, for example, st op a motorist for traveling alone in a high-occupancy vehicle lane, only to discover upon approaching the car that two children are slumped over asleep in th eNo. 2013AP1581-CR

19 back seat. The driver has not violated the law, bu t neither has the officer violated the Fourth Amendme nt. Id. ¶44 The Court held that an objectively reasonable m istake of law could give rise to reasonable suspicion. "B ecause the officer's mistake about the brake-light law was rea sonable, the stop . . . was lawful under the Fourth Amendment." Id. In support of this holding, the Court noted, "To be re asonable is not to be perfect, and so the Fourth Amendment allo ws for some mistakes on the part of government officials, givin g them fair leeway for enforcing the law in the community's pro tection." Id. at 536. ¶45 The Court further explained: Reasonable suspicion arises from the combination of an officer's understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the l aw turns out to be not what was thought, the result is the same: the facts are outside the scope of the la w. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law. Id. ¶46 Thus, under Heien, a seizure predicated on reas onable suspicion based on a law enforcement officer's obje ctively reasonable mistake of law is not a violation of an individual's Fourth Amendment rights. This holding, however, st ands in stark contrast to the precedents established in Longcore and Brown. We therefore must determine which rule controls.No. 2013AP1581-CR

20 ¶47 The majority opinion in Brown noted that the pa rties in that case agreed that a traffic stop predicated on a mistake of law was unconstitutional. Brown, 355 Wis. 2d 66 8, ¶22. This agreement between the parties was based on their co mmon understanding that Longcore was the settled and acc epted law of Wisconsin. Id. As noted above, the court of appea ls in Longcore "conclude[d] that when an officer relates the facts to a specific offense, it must indeed be an offense; a lawful stop cannot be predicated upon a mistake of law." Longc ore, 226 Wis. 2d at 9. However, the court of appeals provid ed no authority for this proposition. ¶48 The majority opinion in Brown also cited to a n umber of federal circuit courts that have held that a mis take of law cannot provide the basis for a traffic stop. Brown , 355 Wis. 2d 668, ¶23. While those cases undoubtedly pr ovided persuasive authority at the time Brown was decided, the Supreme Court's decision in Heien abrogated those cases whi ch were based on the Fourth Amendment, as the Supreme Court has t he final say on the meaning of the Fourth Amendment. ¶49 Of course, it is uncontested that a state's constitution may provide citizens with protections beyond those afforded by the United States Constitution. Howeve r, we have traditionally understood the Wisconsin Constitution 's provision on search and seizure to be coextensive with the Fo urth Amendment. State v. Artic, 2010 WI 83, ¶28, 327 Wi s. 2d 392, 786 N.W.2d 430.No. 2013AP1581-CR

21 ¶50 "Where . . . the language of the provision in t he state constitution is 'virtually identical' to that of the federal provision . . . , Wisconsin courts have nor mally construed the state constitution consistent with th e United States Supreme Court's construction of the federal constitution." State v. Agnello, 226 Wis. 2d 164, 180-81, 593 N.W.2d 427 (1999) (citing State v. Tompkins, 144 Wi s. 2d 116, 133, 423 N.W.2d 823 (1988)). Here, the relevant po rtions of the federal and state constitutions are "virtually iden tical." Compare U.S. Const. amend. IV with Wis. Const. art. I, § 11. Accordingly, our standard practice dictates that we interpret the search and seizure provision of the Wisconsin C onstitution consistently with the search and seizure provision of the United States Constitution. ¶51 We are sensitive to the fact that Brown was dec ided only one year ago. It is unusual for this court to overrule a holding after such a short period of time. However , it would be equally unusual for this court to ignore a holding of the Supreme Court that interprets a provision of the Un ited States Constitution virtually identical to a provision in the Wisconsin Constitution. ¶52 Accordingly, we hold that an objectively reason able mistake of law by a police officer can form the bas is for reasonable suspicion to conduct a traffic stop. Al l Wisconsin cases holding otherwise are hereby overruled to the extent they conflict with this holding. C. Pertinent StatutesNo. 2013AP1581-CR

22 ¶53 Before analyzing the case at hand, we consider the statutes that formed the basis for Officer Price's stop of Houghton. For Officer Price's interpretation of th ese statutes to be "objectively reasonable," we must first consi der their meaning. ¶54 Our purpose in interpreting a statute is to "de termine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circu it Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N .W.2d 110. To do this, we begin with the language of the statu te, giving words their "common, ordinary, and accepted meaning "; technical words are given their technical or special definiti onal meaning. Id., ¶45. We then consider that language in light of the statute's structure and context as well as in "rela tion to the language of surrounding or closely-related statutes . . . to avoid absurd or unreasonable results." Id., ¶46. See Force ex rel. Welcenbach v. Am. Family Mut. Ins. Co., 2014 W I 82, ¶30, 356 Wis. 2d 582, 850 N.W.2d 866. A statute's "cont ext" includes its statutory history, which "encompasses previousl y enacted and repealed provisions of [the] statute." Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W .2d 581. ¶55 "If this process of analysis yields a plain, cl ear statutory meaning . . . the statute is applied acco rding to this ascertainment of its meaning." Kalal, 271 Wis. 2d 633, ¶46 (quoting Bruno v. Milwaukee Cnty., 2003 WI 28, ¶20, 260 Wis. 2d 633, 660 N.W.2d 656). However, if the mean ing of the statute is unclear after examining the statute's la nguage, weNo. 2013AP1581-CR

23 will consult extrinsic sources, including items of legislative history, to resolve any ambiguities. Id., ¶50. ¶56 The Wisconsin Statutes contain a tremendous num ber of provisions directed toward safety on the roadway. At the fore in this case are statutory sections related to Wisc onsin's unobstructed windshield requirement, set forth in W is. Stat. § 346.88, that motorists have a clear view of the r oadway when operating a vehicle. At issue in this case are sub sections 346.88(3)(a) and (3)(b). These sections provide:

(3)(a) No person shall drive any motor vehicle with any sign, poster or other nontransparent mater ial upon the front windshield, front side wings, side windows in the driver's compartment or rear window of such vehicle other than a certificate or other stic ker issued by order of a governmental agency. Such permitted sticker shall not cover more than 15 squa re inches of glass surface and shall be placed in the lower left-hand corner of the windshield; the left corner being on the driver's left when seated behin d the wheel. (b) No person shall drive any motor vehicle upon a highway with any object so placed or suspended in or upon the vehicle so as to obstruct the driver's cle ar view through the front windshield. ¶57 The first thing we note about these provisions is that each provision has a slightly different character. Subsection (3)(a) appears to be an absolute prohibition on the placement of "any sign, poster or other nontransparent material upon the front windshield, front side wings, side windows in the driver's compartment or rear window of" a vehicle, with a sm all exception for government certificates or stickers. Subsectio n (3)(b), on the other hand, forbids the placement of all items if they wouldNo. 2013AP1581-CR

24 "obstruct the driver's clear view through the front windshield." In other words, subsection (3)(a) appears to be a s trict prohibition on a narrow group of items, while subse ction (3)(b) is a slightly more forgiving prohibition that appli es to all items. ¶58 The State urges this court to adopt a reading o f these subsections that a driver may have nothing attached to or suspended from the front windshield——including the rearview mirror——except those items specifically exempted in subsection (3)(a). The State made clear at oral argument that this prohibition would apply to oil change stickers and rosaries as well as standard pine-tree-shaped air fresheners. 8 ¶59 We note that the interpretation of these subsec tions is a close case. In truth, however, we are unpersu aded that the purpose of subsections (3)(a) and (3)(b) is to crea te an absolute prohibition on any items being attached to or suspended from a vehicle's front windshield or rearview mirro r. ¶60 Subsection (3)(a) creates an absolute prohibiti on on "any sign, poster or other nontransparent material upon the

8 "Little Trees" air fresheners have been sold in th e United States since the mid-1950s. The air fresheners wer e created by German-Jewish chemist Julius Samaan, who fled the N azis for North America before developing his product. The C ar-Freshener Corporation of Watertown, New York, now offers Litt le Trees air fresheners in some 60 scents. Car-Freshener Corpor ation's president claims the company has sold "billions" of air fresheners in its history. See generally Hilary Gr eenbaum and Dana Rubenstein, Who Made That? (Little Trees), New York Times Magazine, 19 (Mar. 4, 2012).No. 2013AP1581-CR

25 front windshield . . . ." By contrast, another pro vision of the same statute, subsection (4), states: "The windshie ld, side wings and side and rear windows of a motor vehicle shall be kept reasonably clean at all times." (Emphasis added.) We see no reason why the legislature would choose to ban oil change stickers, often no more than one or two square inch es in size and placed in a top corner of a windshield, but req uire that same area of a windshield be only "reasonably" clea n. 9 Instead, we interpret subsection (3)(a) to prohibit the atta chment of "sign[s], poster[s]," and other items of a similar nature to the

9 At the motion hearing, the circuit court briefly e xamined Officer Price about the area of the windshield that is within reach of the wipers. The court noted that "manufac turers determine the area, that is the area that's critica l for the operation of a motor vehicle as determined by the manufacturers." The court asked Officer Price whet her it would be reasonable to define an obstruction as something that obstructs the area within the extent of wiper cover age. Officer Price did not specifically answer the quest ion, but the question itself raises its own interesting ques tions. For example, what if the area of the windshield beyond the range of the wipers is entirely covered with snow? Under th e State's argument, the presence of the snow may not be a vio lation. However, if the driver were to stop and clean the e ntire windshield——thereby exposing a one-inch by two-inch oil change sticker——the driver may then be subject to a ticket , even though the driver's view would be significantly less obstr ucted than it would have been had the driver not cleaned away the snow.No. 2013AP1581-CR

26 front windshield of a motor vehicle. 10 See State v. Engler, 80 Wis. 2d 402, 408-09, 259 N.W.2d 97 (1977) ("The doc trine of ejusdem generis . . . provides that when a general word is used in a statute, either preceded or followed by specif ic words in an enumeration, the general word is construed to em brace something similar to the specific word."). ¶61 Unlike subsection (3)(a), subsection (3)(b) app lies to "any object" in or on a vehicle. However, an objec t is prohibited only if it "obstruct[s] the driver's cle ar view through the front windshield." The key term in thi s provision—— "obstruct"——is not defined by the statutory scheme. As such, we give the term its "common, ordinary, and accepted m eaning." Kalal, 271 Wis. 2d 633, ¶45. ¶62 Black's Law Dictionary defines "obstruct" as "T o block or stop up . . . to close up or close off, esp. by obstacle . . . . To make difficult or impossible; to keep from happening; hinder . . . . To cut off a line of vis ion; to shut out . . . ." Black's Law Dictionary 1246 (10th ed. 2014)

10 At oral argument, the State was asked about the le gality of a plastic I-Pass prepaid toll collection transpo nder attached to a front windshield. The State postulated that a n I-Pass transponder would be exempt from Wis. Stat. § 346.8 8(3)(a) for two reasons: because it can be affixed behind the r earview mirror, and because it is issued by a government ag ency. However, subsection (3)(a) exempts only certificate s and stickers issued by a government agency, and makes n o exemption for any otherwise-prohibited item that is placed be hind the rearview mirror. Thus, we fail to see how the Stat e's strict reading of the statute would not also outlaw the us e of an IPass transponder.No. 2013AP1581-CR

27 (emphasis added). This definition suggests that an object needs to have more than a de minimus effect on the driver 's vision to be considered an "obstruction" of a driver's clear view. ¶63 Although there appears to be no published case law directly on point, Walker v. Baker, 13 Wis. 2d 637, 109 N.W.2d 499 (1961), indirectly supports this positio n. Walker was a tort case in which the defendant, Baker, was found liable for Walker's injuries incurred in an automobile acc ident. At trial, the circuit court denied Baker's request to include a jury instruction for plaintiff's negligence related to Walker's possibly "obstructed view through his windshield." Id. at 643- 44. This court noted:

While there is testimony that Walker had a pair of plastic dice suspended over his windshield, ther e is no evidence that this interfered with his vision , and it would be pure speculation on the part of the jury so to find. The trial court properly refused to submit the requested instruction as to this aspect of the case. Id. at 644. ¶64 It seems likely that, had Walker's "plastic dic e suspended over his windshield" been a violation of Wis. Stat. § 346.88, 11 a jury instruction would have been in order. ¶65 Given the above, we conclude that Wis. Stat. § 346.88(3)(b)——which requires that an object "obst ruct" a

11 Wisconsin Stat. § 346.88 has not changed since the re was a comprehensive revision of the motor vehicle code in 1957. See Chapter 260, Laws of 1957. In fact, much of the la nguage in § 346.88 is unchanged since 1929. See §§ 85.35(1) and (3), 1929 Statutes.No. 2013AP1581-CR

28 driver's clear view to be a violation——does not mea n that every object in a driver's clear view is a violation. Ra ther, we interpret subsection (3)(b) as requiring a material obstruction— —even if minor——in order to be considered a violati on of the

statute. D. Analysis ¶66 Having concluded both that reasonable suspicion can form the basis for any traffic stop and that an off icer can form reasonable suspicion to initiate a traffic stop bas ed on an objectively reasonable mistake of law, and having a ddressed the statutory sections at issue in this case, we turn t o the ultimate question of whether Officer Price's initia tion of a traffic stop against Houghton violated Houghton's c onstitutional rights. ¶67 The State contends that Officer Price's stop of Houghton was not based on a mistake of law because the presence of the GPS unit and air freshener in Houghton's fro nt windshield was indeed a violation of Wis. Stat. § 346.88. The State argues in the alternative that any mistake of law by Offic er Price as to whether those items violated the statute was obj ectively reasonable. Houghton counters that it was not obje ctively reasonable for Officer Price to interpret the statu te as carrying an absolute prohibition on all items in th e front windshield, pointing to Justice Kagan's concurrence in Heien—— joined by Justice Ginsburg——in which she stated th at objectively reasonable mistakes of law are "exceedi ngly rare." Heien, 135 S. Ct. at 541 (Kagan, J., concurring).No. 2013AP1581-CR

29 ¶68 Justice Kagan's concurrence also expanded on wh at could constitute an objectively reasonable mistake of law:

A court tasked with deciding whether an officer's mistake of law can support a seizure thus faces a straightforward question of statutory construction. If the statute is genuinely ambiguous, such that overturning the officer's judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a "really difficult" or "very har d question of statutory interpretation." Id. ¶69 Justice Kagan noted that the difference between a "stop lamp" and a "rear lamp" in the North Carolina statute offered "conflicting signals" as to how the statute should be interpreted. Id. at 541-42. She concluded that th e sergeant's interpretation of the statute was objectively reaso nable because the sergeant's "judgment, although overturned, had much to recommend it." Id. at 542. ¶70 Here, we conclude that Officer Price's interpre tation of Wis. Stat. § 346.88——that the statute prohibited the placement of any object in the front windshield——wa s objectively reasonable. That the statute has never been interp reted beforeNo. 2013AP1581-CR

30 weighs in favor of this decision. 12 See id. at 540 (majority opinion) ("This 'stop lamp' provision, moreover, ha d never been previously construed by North Carolina's appellate courts."). Our conclusion that the analysis of the statute is a close call also advances this conclusion. See id. at 542 (Kag an, J., concurring) ("The critical point is that the statut e poses a quite difficult question of interpretation . . . ." ). ¶71 Because "a reasonable judge could agree with th e officer's view" in this case, id. at 541, we hold t hat Officer Price's mistake of law was objectively reasonable, and that the stop of Houghton's vehicle therefore was not unlawf ul. ¶72 We turn briefly to the issue of Houghton's "mis sing" front license plate. Although the State concedes t hat Officer Price's interpretation of the license plate statute was not objectively reasonable, we choose to address this i ssue to

12 We note that some unpublished Wisconsin cases have found reasonable suspicion or probable cause of a violati on of subsection (3)(b) based on items hanging from a rea rview mirror. E.g., State v. Currie, No. 2011AP322-CR, unpublishe d slip op., ¶2 (Wis. Ct. App. Jul. 19, 2011) ("a very large air freshener"); State v. Jury, No. 2010AP622-CR, unpublished slip o p., ¶7 (Wis. Ct. App. Sept. 1, 2010) (necklace visible "from a d istance of 200 feet"); State v. Avery, No. 2001AP1995-CR, ¶4 ( Wis. Ct. App. Feb. 13, 2002) ("a bunch of stuff hanging from the rearview mirror"). We cite these cases not for any persuasi ve authority, but merely to show that the issue of windshield obs truction does arise in Wisconsin from time to time. In any event, none of these cases suggest either wa y whether subsection (3)(b) is an absolute prohibitio n on all items placed in a front windshield.No. 2013AP1581-CR

31 provide guidance in future cases and because it was the basis of the circuit court's decision. ¶73 It is clear that Wis. Stat. § 341.15 requires a vehicle to display a front license plate only when two license plates are issued for that vehicle. Officer Price' s belief that Houghton was violating the statute by not having a front plate was not a reasonable mistake of law to the extent t hat it implies that all vehicles must display a front lice nse plate. ¶74 An officer who observes a vehicle driving witho ut a front license plate may have no way of knowing whet her that vehicle is required to display a front plate. Whet her a vehicle is indeed required to display a front plate is both a question of law and a question of fact——the operative fact b eing whether the vehicle was issued two plates. Thus, it could perhaps be argued that a stop based on the lack of a front pla te when the vehicle was issued only one plate is based on a mis take of fact rather than a mistake of law. ¶75 Because searches and seizures can be based on m istakes of fact, see Illinois v. Rodriguez, 497 U.S. 177, 1 83-86 (1990); State v. Reierson, No. 2010AP596-CR, unpublished sl ip op., ¶1 (Wis. Ct. App. Apr. 28, 2011), we confront the ques tion of whether the lack of a front license plate, without more, may give rise to reasonable suspicion to conduct a traf fic stop. To answer this question in the affirmative, we would h ave to hold that it is reasonable for a police officer in Wisco nsin to believe that, if a vehicle is operating on a Wiscon sin road, it must have been issued two license plates.No. 2013AP1581-CR

32 ¶76 Such a belief would usually be unreasonable. Wisconsin borders four other states, and residents from those and many other states pass through Wisconsin on a r egular basis. That most vehicles on Wisconsin roads might be regi stered in Wisconsin and most vehicles registered in Wisconsin might be issued two plates is not enough to conclude that a stop of a vehicle solely because it lacks a front license pla te passes constitutional muster. ¶77 On the other hand, if an officer observes some indicia that a vehicle without a front license plate is fro m Wisconsin, then the officer may indeed have reasonable suspici on to stop the vehicle. Perhaps the most common indication wo uld be a Wisconsin plate attached to the rear of the vehicle in question. However, other things may clue an officer in to a v ehicle's origins as well——for example, markings indicating a n affiliation with a local business. ¶78 Here, however, there was no initial indication that Houghton's vehicle was from Wisconsin. Once Office r Price was behind Houghton's vehicle, it would have become app arent from the rear plate that the vehicle was registered in M ichigan. Thus, to the extent that Officer Price may have bel ieved that Houghton was violating the law by not having a fron t license plate displayed, we hold that belief was neither a reasonable mistake of law nor a reasonable mistake of fact.

IV. CONCLUSION ¶79 We hold that an officer's reasonable suspicion that a motorist is violating or has violated a traffic law isNo. 2013AP1581-CR

33 sufficient for the officer to initiate a stop of th e offending vehicle. We also adopt the Supreme Court's holding in Heien that an officer's objectively reasonable mistake of law may form the basis for a finding of reasonable suspicion. ¶80 In this case, we hold that Wis. Stat. § 346.88 does not create an absolute prohibition on any object be ing present in the front windshield of a vehicle. However, Off icer Price's interpretation that the statute did create such a p rohibition was objectively reasonable. Accordingly, Officer P rice had reasonable suspicion to stop Houghton's vehicle, an d it was not error for the circuit court to deny Houghton's moti on to suppress. For these reasons, we reverse the court of appeals.

By the Court. —The decision of the court of appeals is
reversed.No. 2013AP1581-CR.ssa

1 ¶81 SHIRLEY S. ABRAHAMSON, J. (dissenting). The majority opinion reverses the decision of the court of appeals and affirms the defendant's conviction. The convic tion was based on a denial of the defendant's motion to supp ress evidence obtained from a traffic stop. The traffic stop was predicated on a law enforcement officer's mistake of law, whic h the majority opinion deems "objectively reasonable." 1 ¶82 By declaring for the first time that reasonable suspicion for a traffic stop can rest on a law enfo rcement officer's objectively reasonable mistake of law, th e majority opinion adopts a new interpretation of Article I, S ection 11 of the Wisconsin Constitution. It does so solely in o rder to remain in lockstep with the United States Supreme C ourt's interpretation of the Fourth Amendment. 2 ¶83 The majority opinion overturns not only the cou rt of appeals decision in the instant case but also two p rior decisions: State v. Brown, 2014 WI 69, 355 Wis. 2d 668, 850 N.W.2d 66, and State v. Longcore, 226 Wis. 2d 1, 59 4 N.W.2d 412 (Ct. App. 1999). What happened to precedent and st are decisis? ¶84 I would adhere to precedent, reaffirm Brown and Longcore, and affirm the court of appeals decision in the instant case.

1 Majority op., ¶71.

2 Majority op., ¶¶46-52.No. 2013AP1581-CR.ssa

2 ¶85 In Brown, an opinion released just last year, t his court held that reasonable suspicion for a traffic stop cannot rest on a law enforcement officer's mistake of law. 3 After Brown was decided, the United States Supreme Court held i n Heien v. North Carolina, 135 S. Ct. 530 (2014), that under t he Fourth Amendment, a law enforcement officer's reasonable m istake of law can support reasonable suspicion for a traffic stop

. ¶86 The majority opinion in the instant case does a n about-face, adopting the United States Supreme Cour t's interpretation of the Fourth Amendment in Heien as the correct interpretation of the Wisconsin Constitution. ¶87 The drafters of the Wisconsin Constitution coul d have simply said "ditto" and incorporated the federal Bi ll of Rights into the Wisconsin Constitution. But they did not. Instead, they adopted a separate and distinct Wisconsin Decl aration of Rights. ¶88 In the instant case and many like it, this cour t is doing what the drafters of the Wisconsin Constituti on did not do, namely adopting the federal Bill of Rights. Mo re specifically, by adopting wholesale the United Stat es Supreme Court's interpretation of the federal Bill of Right s as the proper interpretation of Wisconsin's Declaration of Rights, this court is in effect replacing Wisconsin's Declaratio n of Rights with its federal counterpart. This court is not ta king

3 State v. Brown, 2014 WI 69, ¶¶22-25, 355 Wis. 2d 6 68, 850 N.W.2d 66.No. 2013AP1581-CR.ssa

3 seriously the Justices' oath of office to support t he Wisconsin Constitution. ¶89 Heien is binding on this court only insofar as the federal constitution is concerned. It is not bindi ng with regard to the state constitution. This court need not and should not automatically adopt the United States Su preme Court's interpretation of the Fourth Amendment as the prope r interpretation of Article I, Section 11 of the Wisc onsin Constitution. ¶90 In Brown, this court set forth three primary re asons for its determination that reasonable suspicion can not rest on a law enforcement officer's mistake of law:

1. Wisconsin precedent so stated. In State v. Long core, 226 Wis. 2d 1, 9, 594 N.W.2d 412 (Ct. App. 1999), t he court of appeals declared that "a lawful [traffic] stop cannot be predicated upon a mistake of law." 2. Other jurisdictions were in accord. A substanti al majority of both the federal circuit courts and the state courts that had addressed the issue had concluded that a law enforcement officer's mistake of law cannot support reasonable suspicion or probable cause for a traffic stop. 4 3. Holding that a law enforcement officer's mistake of law could support lawful traffic stops would defeat the purpose of the exclusionary rule. More

4 Brown, 355 Wis. 2d 668, ¶¶23, 25. See also Heien v. North Carolina, 135 S.Ct. 530, 544 (2014) (Sotomayor, J., dissenting).No. 2013AP1581-CR.ssa

4 specifically, declining to exclude evidence that wa s gathered from a traffic stop premised on a law enforcement officer's erroneous view of the law "would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey." 5 ¶91 These considerations remain persuasive and conv ince me to adhere to Brown. A law enforcement officer's re asonable mistake of law cannot, in my view, render a traffic stop reasonable in the eyes of the Wisconsin Constitutio n. ¶92 My position is supported by several cogent poin ts that Justice Sotomayor makes in her dissent in Heien:

1. An inquiry into the reasonableness of officers' understanding of the law breaks with longstanding federal and state court precedent. 6

2. The notion that the law is definite and knowable sits at the foundation of our legal system. Yet, Heien gives those who enforce the law leeway in interpreting and understanding it. 7

5 Brown, 355 Wis. 2d 668, ¶24 (internal quotation ma rks omitted).

6 Heien, 135 S. Ct. at 542-43 (Sotomayor, J., dissen ting).

7 Id. at 543 (Sotomayor, J., dissenting). Heien purports to rest on the concept of reasonable ness, the touchstone of the Fourth Amendment. However, a s Justice Sotomayor's dissent explains, this broad statement simply sets the standard a cou rt is to apply when it conducts its inquiry into wheth er the Fourth Amendment has been violated. It does no t (continued)No. 2013AP1581-CR.ssa

5 3. Heien "further erod[es] the Fourth Amendment's protection of civil liberties in a context," namely traffic stops, "where that protection has already
been worn down." 8 4. Heien is a significant expansion of officers' authority and leads one to wonder "how a citizen seeking to be law-abiding and to structure his or h er behavior to avoid these invasive, frightening, and humiliating encounters could do so." 9 5. Because traffic stops can be annoying, frighteni ng and humiliating, they have consequences for

define the categories of inputs that courts are to consider when assessing the reasonableness of a sea rch or seizure, each of which must be independently justified. What this case requires us to decide is whether a police officer's understanding of the law is an input into the reasonableness inquiry, or whethe r this inquiry instead takes the law as a given and assesses an officer's understanding of the facts against a fixed legal yardstick.
Id. at 542.

8 Heien, 135 S. Ct. at 543 (Sotomayor, J., dissentin g). For discussion of the "wearing down" of the protect ions of the Fourth Amendment in Wisconsin courts, see Alan Ball, How Effective are Fourth-Amendment Arguments in the Wis consin Supreme Court?, SCOWstats, June 22, 2015, http://www.scowstats.com/2015/06/22/how-effective-a re-fourthamendment-arguments-in-the-wisconsin-supreme-court/ (last visited June 30, 2015) (reviewing decisions of the Wisconsin Supreme Court and concluding that the current judic ial climate is inhospitable to Fourth Amendment arguments).

9 Heien, 135 S. Ct. at 544 (Sotomayor, J., dissentin g).No. 2013AP1581-CR.ssa

6 individuals and communities "and for their relationships with the police . . . ." 10 6. Law enforcement officers have not been unduly hampered in the exercise of their duties by the rul e that their mistakes of law are not considered as pa rt of the Fourth Amendment reasonableness inquiry. 11 7. There is scarcely any law that does not admit of some ingenious doubt. 12 A decision interpreting a law will not immunize the law from further interpretation. Interpretation of the law constitutes a substantial portion of court business. ¶93 These considerations apply with equal force in the context of the Wisconsin Constitution. Both preced ent and policy compel me to conclude that a traffic stop pr emised on a law enforcement officer's mistake of law is unreaso nable and thus unlawful under Article I, Section 11 of the Wi sconsin Constitution. ¶94 Accordingly, the traffic stop at issue in the i nstant case, which was premised on a law enforcement offic er's mistake

10 Heien, 135 S. Ct. at 544 (Sotomayor, J., dissentin g).

11 Id.

12 Id. Justice Kagan authored a concurrence in Heien explaining that an officer has made a reasonable mi stake of law only when the statute in question is "genuinely amb iguous," "requires hard interpretive work," and "poses a qui te difficult question." Heien, 135 S. Ct. at 541-42 (Kagan, J., concurring). I do not think the mistake of law at issue in the i nstant case falls within this exacting interpretation of what c onstitutes a reasonable mistake of law.No. 2013AP1581-CR.ssa

7 of law, was unlawful. The defendant's motion to su ppress the evidence obtained from the unlawful traffic stop sh ould have been granted, and the defendant's conviction should be reversed. ¶95 For the reasons set forth, I dissent. ¶96 I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.No. 2013AP1581-CR.ssa

1