Xavier Faison was a passenger in a Top Notch Movers truck traveling south on Interstate 90 in Monroe County, Wisconsin, on the evening of June 14, 2023, when a trooper pulled the vehicle over for lane deviations and the driver's use of a phone. After a K9 unit alerted to the rear of the truck, state trooper Rolly Wagas asked Faison to exit the passenger seat. As soon as Faison got out of the truck, Wagas announced he was going to search Faison's pockets and ordered him to turn around. Wagas then reached into the left pocket of Faison's outer sweatshirt, followed by several other pockets. No contraband was found on Faison or in the truck. Faison was never arrested — he received only a verbal warning for having his legs out the window. Faison then sued Wagas under the Fourth Amendment.
Judge William M. Conley of the Western District of Wisconsin granted Faison's motion for partial summary judgment on liability and denied Wagas's cross-motion, holding that the automobile exception to the warrant requirement does not extend to a search of a vehicle occupant's person. The court relied on United States v. Di Re, 332 U.S. 581 (1948), in which the Supreme Court held that probable cause to search a car does not justify the body search of a passenger, and Wyoming v. Houghton, 526 U.S. 295 (1999), which reaffirmed that the Fourth Amendment provides unique, significantly heightened protection against searches of one's person and that a passenger's pockets and clothing constitute part of the person, not property, for Fourth Amendment purposes.
The court rejected each of Wagas's justifications in turn. Wagas conceded at the reply stage that the search-incident-to-arrest exception did not apply because Faison was never arrested. The court held that Wagas waived any exigent-circumstances argument by raising it for the first time in his reply brief, and added that the argument bordered on frivolous given that Faison was cooperative, multiple officers were present, and there was no articulable reason to believe Faison possessed contraband or intended to discard it. The court also held that probable cause standing alone is not a recognized exception to the warrant requirement — it is instead the predicate for obtaining a warrant.
On qualified immunity, the court held that the relevant constitutional rules were clearly established with obvious clarity: that a warrantless search of a person requires a recognized exception; that probable cause alone is not such an exception; that the automobile exception extends no further than the automobile itself under Collins v. Virginia, 584 U.S. 586 (2018); and that probable cause to search a car does not justify searching a passenger, per Di Re and Houghton. Because those principles governed with obvious clarity, Wagas was not entitled to qualified immunity.
The case, docketed as 3:25-cv-00002 in the Western District of Wisconsin, will proceed to a damages trial set for June 1, 2026.