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Passenger’s Cigarette Butt Toss Gives Reasonable Suspicion For Traffic Stop


          A Wisconsin state patrol officer observed Daniel Iverson’s vehicle swerve within its lane, but not touch the center line or the curb. The vehicle then came to a full stop at a flashing yellow light rather than proceeding through the intersection. At another flashing yellow light, the vehicle came to a full stop again. The officer, though suspicious, did not consider this sufficient to pull the vehicle over. But then, the vehicle’s passenger tossed a cigarette butt out the passenger window, and it rolled to the side of the road in a flash of sparks. Blue lights and siren activated. And the stop resulted in a DUI arrest of Iverson, the driver.

          Was the cigarette butt “solid waste,” which included “garbage,” “refuse,” and “sludge” under Wisconsin’s littering statute, Wis. Stat. § 287.81? That question eventually ended up before the Wisconsin Supreme Court for consideration and ruling. The court waxed eloquent on whether tossing the cigarette butt out the window constituted the “discharge of solid waste along the highway” within the meaning of the statute, eventually concluding that butts constituted “other discarded materials” in the solid waste definition. “One could easily spend all day exploring Wis. Stat. § 289.01(33)'s various nooks and crannies,” Justice Annette Kingsland Ziegler wrote, “But we need not stop to ponder whether cigarette butts are ‘subject to decomposition,’ § 289.01(28), or ‘result from community activities,’ Wis. Stat. § 289.01(33), because cigarette butts manifestly constitute ‘other discarded . . . materials’” under § 289.01(33).

          The court was unpersuaded by Iverson’s attorney’s affidavit, in which he asserted that he had “never in my legal experience had a call from or represented someone who was cited for littering or any other offense due to the throwing of a cigarette butt.” “In fact,” he wrote, “I have witnessed hundreds of cigarette butts on the grounds outside our office, along the streets near our office, and outside of taverns and other businesses located in downtown La Crosse and have never heard of anyone being cited for such disposal of cigarette butts.” The court found that this statement “merely highlights the ills that the statute seeks to rectify.”

          Even though the littering statute carried only civil forfeiture as a penalty, the state patrol officer was authorized to enforce it by stopping the vehicle. The Wisconsin Supreme Court rejected the Court of Appeals’ contrary holding because then, “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.”

          Because the stop was authorized as to the passenger, the officer’s observations of the driver during the stop were not subject to a motion to suppress. The action was then remanded to the circuit court for further proceedings.


For further reading, Lexis Advance users may access the case here: State v. Iverson, 2015 WI 101, 2015 Wisc. LEXIS 709 (Wis. 2015)

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