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Craig Mastantuono July 15, 2015

When a police officer stops a car for what he says is a law violation, does he need to be right? Or can he be wrong on the law, but still pass muster with reviewing courts? This week, the Wisconsin Supreme Court said that if an officer is wrong about the law, the stop still stands. Score one for the government, zero for citizens and individual liberty.

The Supreme Court’s decision this week will change the landscape of traffic stops here on multiple fronts. Mr. Houghton was driving a car without an attached front license plate, and he had a pine tree air freshener hanging from the rear-view mirror and a GPS device visible through the front windshield. He was stopped for not having a front license plate and for driving with an “obstructed view” due to the objects in the windshield. Once stopped, the officer searched the car and found less than half a pound of marijuana and paraphernalia. The Wisconsin Supreme Court held that this was a reasonable stop, even though the officer was wrong about the law. The Court held that, even though the law does not prohibit the objects in Mr. Houghton’s windshield (the driver’s view must be “materially” obstructed to be a violation), the officer’s mistake of the law was objectively reasonable; therefore, the stop did not violate his 4th Amendment rights. The Court did not clearly define what “objectively reasonable” means, in favor of defining that term on a case-by-case basis. As for the license plate, the government agreed that the officer didn’t have a valid reason to stop the vehicle for no front license plate because it was licensed out-of-state, in Michigan, which does not required an attached front plate.

This decision is troubling on a number of levels. The most significant concern is that our police officers can now stop cars even when they are wrong about the law. Law enforcement are required to know the laws so that they can enforce them in our communities, just as building inspectors are required to know the building codes. This decision gives officers who get it wrong a pass. When officers make a mistake of law, not only does nothing happen to them professionally, but their conduct and the evidence recovered as a result of the mistake is now admissible against that citizen in criminal court. When a defendant makes a mistake of law, not only is it not a legal defense to committing a crime, but he can suffer a criminal conviction and incarceration. Ignorance of the law is no excuse, except if you’re a police officer. In Mr. Houghton’s case, he was found guilty of a felony for having the marijuana in his car.

When we look further at what this costs our community, the impact on Wisconsin residents becomes clear: it is a waste of money. Let’s look at Mr. Houghton’s case. His prosecution involved at least 17 criminal justice professionals – 5 attorneys, 11 judicial officers, 1 police officer – most of whom are employed by the State, and who are paid by the State. In other words, by you.

Supreme Court Justices receive $144,495 per year, while the Chief Justice receives $152,495. Wisconsin Blue Book, Judicial Chapter, 563, available at http://docs.legis.wisconsin.gov/misc/lrb/blue_book/2013_2014/700_judicial.pdf.

Court of Appeals Judges receive $136,316 per year. Blue Book at 565.

Circuit Court Judges receive $128,600 per year. Blue Book at 568.

Police Officers is southeastern Wisconsin have a median income of approximately $49,000 per year. See www.salary.com.

All of these public employees were engaged in this case, the point of which was to bring Mr. Houghton to justice for possessing approximately six ounces of weed. No hard core drugs, no guns, no violence involved; just a substance that is now fully legal to possess in several states. The number of criminal justice professionals, the time, and the resources invested into this case is staggering. 

These judicial decisions affect the daily lives of Wisconsin citizens, including those who are not marijuana users. For when courts authorize police to act without a warrant this way, for every time they find marijuana or evidence of a crime during a traffic stop, untolds more innocent people are stopped  and searched, never resulting in a court case for review. It is an erosion of our daily right to be free from unlawful searches and seizures from the Government, and it’s wasting valuable resources. Further, our law enforcement officers are being held to a standard so low, it’s one of incompetence that would not be tolerated in other jobs. 

Respectfully, we disagree with our State's high court on this one.

You can read more about the legal ramifications on the Wisconsin State Public Defender’s blog OnPoint.