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Traffic Stop for Littering Leads to Lawful Drunk Driving Arrest

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Police officers can make traffic stops for non-traffic offenses according to the Wisconsin Supreme Court. A state trooper who stopped a vehicle for littering and subsequently made a drunk driving arrest was within his legal authority to do so, the high court has ruled.

Littering - and Driving - While Intoxicated

Defendant driver Daniel Iverson was driving at 1:00 AM on January 29, 2014 when a state trooper observed him drift toward the centerline and back twice. The trooper continued to watch as Iverson stopped completely at an intersection with yellow flashing lights, even though no other traffic was in sight. At that time, the trooper later testified, he did not believe he had reasonable suspicion to make a traffic stop.

When the state trooper observed Iverson flick a cigarette butt out of his driver’s side window, he pulled over the vehicle based on a non-traffic statute that prohibits littering on roadways in the state of Wisconsin.

Wis. Stat. Section 287.81 imposes a maximum $500 fine for “depositing or discharging any solid waste on or along any highway” or permitting any solid waste “to be thrown from a vehicle operated by the person.”

Wis. Stat. Ch. 287 defines “solid waste” to include “discarded or salvageable materials,” and the majority held that cigarette butts “manifestly constitute” discarded materials.

Littering as a pretext?

After the trooper pulled Iverson over, Iverson admitted he had tossed the cigarette butt. Through the course of the conversation the trooper developed probable cause to believe Iverson was driving while intoxicated.

After his arrest, Iverson pleaded not guilty to Operating While Intoxicated (OWI) – his first offense – and filed a motion to suppress. Arguing that the trooper illegally used littering as a pretext to determine whether Iverson was driving drunk, the defendant driver asked the Wisconsin circuit court to dismiss the case in its entirety.

Iverson’s attorney argued that discarding cigarette butts is not “littering” by definition because people do it all the time and rarely – if ever – receive citations for doing so.

The Wisconsin circuit court granted Iverson’s motion, which was later affirmed in a one-judge opinion by a state appeals court. The opinion held that troopers can make stops for suspected crimes or traffic violations, but noted that littering is neither a crime nor a traffic violation because it carries with it no potential for jail time.

[sws_pullquote_right] See Also: Texting Drivers Held Liable for Millions Creating Carnage on the Road [/sws_pullquote_right]

Cops can enforce littering law

Concluding that state troopers have the authority to stop vehicles based on probable cause or reasonable suspicion that a vehicle driver or occupant has littered, the Wisconsin Supreme Court unanimously reversed. The high court rejected Iverson’s claim that the state trooper did not have authority to stop him for a littering offense.

Quite the contrary to Iverson’s defense, the Court noted that state traffic patrol officers have specific authority under Wis. Stat. Section 110.07 to enforce the littering statute.

Justice Ziegler, writing for the majority, held:

“Under the court of appeals’ interpretation, an officer would be required to sit idly by even if an individual threw an entire bag of garbage out of a vehicle’s window, simply because littering is a non-traffic civil forfeiture offense. We conclude that a traffic stop to enforce Wis. Stat. Section 287.81 is generally reasonable if an officer has probable cause or reasonable suspicion that a violation of § 287.81 has occurred.”

Rejecting the lower courts’ conclusions that stops must be based on suspicion of crimes or specific traffic violations, the Supreme Court held that state troopers can stop motorists based on probable cause or reasonable suspicion of non-traffic civil forfeiture violations.

The case is State v. Iverson, 2015 WI 101 (Nov. 25, 2015) in the Wisconsin Supreme Court.

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