¶ 36. (dissenting). I agree with the circuit court and the court of appeals in concluding that a reasonable *19motorist under the circumstances of the present case would not have felt free to refuse to answer the officer's questions and would not have felt free to get into his or her car and leave the scene.1 It makes no difference whether the seizure is conceived of as an unreasonable extension of the initial traffic stop, or alternatively, a second seizure beginning with the state trooper's line of questioning after issuing the warning citation.2
¶ 37. Professor LaFave has it right: courts are engaging in nothing more than a legal fiction when they say that motorists under these circumstances have consented to the encounter and interaction.3 Therefore, I dissent.
¶ 38. I agree with U.S. Supreme Court Justice David Souter, who stated in United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105 (2002) (Souter, J., dissenting), that "a display of power rising to [a] threatening level may overbear a normal persons [sic] ability to act freely, even in the absence of explicit commands or the formalities of detention."4 Under the display of police power in the present case, what reasonable person would believe that "he stood to lose nothing if he refused to cooperate with the police, or that he had any *20free choice to ignore the police altogether. No reasonable [person] could have believed that, only an uncomprehending one."5
¶ 39. In the present case, the officers effectively displayed both their power and their accoutrements of authority. The traffic stop occurred at 2:30 a.m. on a rural part of the interstate highway. Two patrol cars were at the scene, one with its emergency lights activated. One officer, a sheriffs deputy, stood at the ready by the passenger door. Another officer, a state trooper, presented the driver with a warning citation for speeding. The state trooper was trained as an "interdiction instructor." His goal was to obtain the driver's consent to search the vehicle.
¶ 40. After the state trooper issued the warning citation, he told Williams, probably much to Williams' relief, "We'll let you get on your way then. Take care. We'll see ya." Immediately thereafter, the state trooper asked Williams a series of questions regarding whether weapons, drugs, and large amounts of money were in the vehicle. The questioning culminated in a request to Williams for permission to search the vehicle. What reasonable motorist would feel free to walk away as the officer continues to address them? Under the circumstances of the present case, what reasonable motorist would feel free to ignore the questioning of the state trooper, get in his or her vehicle, and then leave the scene? Empirical studies show that most people believe they are validly in a police officer's custody so long as the police officer continues to interrogate them.6
*21¶ 41. Not only was there a display of power by the police, but there also was a seamless series of events with no real break between the detention during the traffic stop and the request for consent to search the vehicle. A reasonable motorist would not have detected the transition from detention to non-detention, from the traffic stop to a series of questions that they need not answer, and from the questioning to a request for consent to search the vehicle. Reasonable motorists would have thought that they were subject to police restraint at all times.7
*22¶ 42. Beyond the display of power and the seamless series of events, the state trooper in the present case skillfully manipulated the circumstances in order to prevent any opportunity for Williams to refuse the officer's requests. The majority opinion gives no weight to the type of law enforcement technique used in the present case.
¶ 43. The state trooper had "a Badger going."8 As the state trooper explained at the suppression hearing, a "Badger stop" is an interdiction stop where a law enforcement officer attempts to obtain a driver's consent to search a car for possible criminal activity. A "Badger stop" obviously takes advantage of the fact that motorists think that they are obliged to answer questions and not to leave the scene. Ordinarily, a court does not concern itself with the subjective intent of law enforcement officers when it determines whether a violation of the Fourth Amendment has occurred.9 The officer's subjective intent is important here, however, because the whole point of the "Badger stop" is to make a reasonable motorist think he has to respond and consent even though as a matter of law the motorist is free to go.
¶ 44. In light of the state trooper's role, I find the reasoning of the circuit court especially persuasive. The *23circuit court concluded that "[i]t is unreasonable to suspect that under [these] circumstances any citizen would think that he or she had a right to be uncooperative .... It cannot be expected that every citizen be a lawyer."10 In the words of another state supreme court, I am "concerned with the dubious message we send to law enforcement officers and the public if we validate a procedure allowing officers to falsely tell traffic offenders they are free to go, only for the purpose of eliciting their uncoerced agreement to search their automobiles."11
¶ 45. Law enforcement officers are apparently being trained to use a "Badger stop" to trick motorists into giving up their rights. The state trooper in the present case who was an "interdiction instructor" videotaped the entire interdiction. Perhaps the videotape will be used to teach this technique to other law enforcement officers. Shouldn't the public be educated about their rights to refuse to answer police questions and their rights to refuse to consent to a search of their vehicles?
¶ 46. As I wrote in Jennings,12 and express here again, trickery on the part of law enforcement officers undermines public trust in law enforcement, the courts, and the law as an institution. In order for law enforcement and the courts to be successful in carrying out their responsibilities, they must have the cooperation, trust and confidence of the public.
¶ 47. For the reasons stated, I dissent.
¶ 48. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
United States v. Mendenhall, 446 U.S. 544, 554 (1980), sets forth this reasonable person test.
State v. Robinette, 685 N.E.2d 762 (Ohio 1997) (taking second seizure approach on remand from U.S. Supreme Court).
4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 95-96 (3d ed. 1996).
United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105 (2002) (Souter, J., dissenting).
Id.
4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 112 (3d ed. 1996).
For cases so holding, with similar circumstances, see, for example, Padilla v. Miller, 143 F.Supp.2d 453, 468 (M.D.Pa. 1999) (informing driver of vehicle that he was free to leave did not convert the stop into a consensual encounter when officer immediately thereafter told driver he wanted to ask him more questions); United States v. Mota, 864 F.Supp. 1123, 1128 (D.Wyo. 1994) (returning papers to driver following traffic stop absent other words or gestures of closure provided no way for reasonable listener to conclude that the reason for detention was over and a consensual encounter was beginning); State v. Hadley, 932 P.2d 1194, 1197-98 (Ore. Ct. App. 1997) (traffic stop continues until the motorist has had an objectively and distinct real time opportunity to move on, meaning there must be a temporal break in the action between an officer's indication that a motorist is free to go and any unrelated inquiries); Commonwealth v. Freeman, 757 A.2d 903, 907-08 (Pa. 2000) (police officer illegally seized defendant following traffic stop after stating she was free to leave, returning to his patrol car, and then again approaching the defendant's car and asking her consent to search the car when no reasonable suspicion existed; "although these events occurred after express conferral of advice that [the defendant] was free to depart, they would have suggested to a reasonable person that such advice was no longer operative"); Commonwealth v. Sierra, 723 A.2d 644, 646-47 (Pa. 1999) (police officer's repeated questioning of the driver of stopped vehicle with same question after having returned *22driver's license and issued warning for speeding was investigative detention); State v. Ballard, 617 N.W.2d 837, 841 (S.D. 2000) (police officer had illegally seized defendant following traffic stop after stating that she was free to leave, then asking her consent to search the car; when she refused telling her he would detain her vehicle until a drug dog was summoned).
See majority op. at ¶ 7.
State v. Wallace, 2002 WI App 61, ¶ 13, 251 Wis. 2d 625, 642 N.W.2d 549; Strickler v. Commonwealth, 757 A.2d 884, 893, (Pa. 2000) (officer's subjective intentions irrelevant).
Majority op. at ¶ 15.
State v. Ballard, 617 N.W.2d 837, 842 (S.D. 2000).
State v. Jennings, 2002 WI 44, 252 Wis. 2d 228, 647 N.W.2d 142 (Abrahamson, C.J., dissenting).