State v. Heather Jan VanBeek ( 2021 )

2021 WI 51SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP447-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Heather Jan VanBeek,
Defendant-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: June 4, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 23, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sheboygan
JUDGE: Kent R. Hoffman
JUSTICES:
ROGGENSACK, J., delivered the majority opinion of the Court with
respect to ¶¶22-35 and ¶¶46-65, in which ANN WALSH BRADLEY,
DALLET, and KAROFSKY, JJ., joined, and an opinion with respect
to ¶¶1-21, ¶¶36-45, and ¶66. DALLET, J., filed a concurring
opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion, in which REBECCA
GRASSL BRADLEY and HAGEDORN, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs filed by Jay
Pucek, assistant state public defender. There was an oral
argument by Jay Pucek.
For the plaintiff-respondent, there was a brief filed by
Scott E. Rosenow, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Scott E. Rosenow.
2021 WI 51NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No.2019AP447-CR
(L.C. No. 2017CF720)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JUN 4, 2021
Heather Jan VanBeek, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
ROGGENSACK, J., delivered the majority opinion of the Court with
respect to ¶¶22-35 and ¶¶46-65, in which ANN WALSH BRADLEY,
DALLET, and KAROFSKY, JJ., joined, and an opinion with respect
to ¶¶1-21, ¶¶36-45, and ¶66. DALLET, J., filed a concurring
opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion, in which REBECCA
GRASSL BRADLEY and HAGEDORN, JJ., joined.
APPEAL from a judgment and an order of the Circuit Court
for Sheboygan County. Reversed and cause remanded.
¶1 PATIENCE DRAKE ROGGENSACK, J. This case is before us
on certification from the court of appeals1 pursuant to Wis.
Stat. § (Rule) 809.61 (2019-20).2 The court of appeals certified
1State v. VanBeek, No. 2019AP447-CR, certification (Wis.
Ct. App. Aug. 12, 2020).
2 All subsequent references to the Wisconsin Statutes are to
(continued)
No. 2019AP447-CR
the following question: "whether a consensual encounter becomes
an unconstitutional seizure under the Fourth Amendment when an
officer requests and takes an individual's driver's license to
the officer's squad car without reasonable suspicion."
Accordingly, we review the Circuit Court of Sheboygan County's3
judgment of conviction of Heather VanBeek for possession of
methamphetamine and drug paraphernalia. VanBeek's conviction
arose from a search of her vehicle that she contends violated
her right to be free from unreasonable searches and seizures
under the Fourth Amendment to the United States Constitution.
¶2 On the certified question, we conclude that the answer
depends on the totality of circumstances surrounding an
encounter. Further, while VanBeek was not seized when Officer
Oetzel took her driver's license to run a records check, VanBeek
was seized when Oetzel returned to her vehicle, withheld her
driver's license and continued to question her and her passenger
in order to hold her until a drug-sniff dog, i.e., the K9 unit,
that he had requested arrived. Finally, we conclude that the
seizure was unlawful because, based on the totality of
circumstances, Oetzel did not have reasonable suspicion that
VanBeek was engaged in criminal activity at the time he seized
her. Accordingly, we reverse the circuit court's judgment of
the 2019-20 version unless otherwise indicated.
3 The Honorable Kent Hoffman of Sheboygan County presided.
2
No. 2019AP447-CR
conviction and remand with instruction to grant VanBeek's motion
to suppress.
I. BACKGROUND
A. Factual Background
¶3 On the night of November 12, 2017, the City of
Sheboygan Police Department received an anonymous call that a
truck, with two occupants, had been sitting near the
intersection of 6th Street and Superior Avenue in Sheboygan for
approximately an hour. The caller also stated that a person
approached the truck with a backpack and left later without it.
The caller provided no description of the truck.
¶4 Sheboygan Police Officer Sung Oetzel responded to the
call. When he arrived, Oetzel saw only one truck in the
location that had been identified. However, to be sure it was
the truck to which the caller referred, he quickly drove around
the area and confirmed there was only one truck with two
occupants nearby. Oetzel parked his squad car behind the truck
and activated his squad car's spotlight.4
¶5 VanBeek and her passenger, Branden Sitzberger, were
sitting in VanBeek's truck when Oetzel approached. Oetzel made
contact with VanBeek, saying that "someone called in, suspicious
that two people were just sitting here."5 VanBeek responded that
4He did not activate his squad car's red and blue emergency
lights.
5The entire interaction between VanBeek and Oetzel was
recorded on Oetzel's body camera.
3
No. 2019AP447-CR
she was "waiting for [Sitzberger] to walk." Sitzberger
similarly stated that VanBeek had just picked him up. Oetzel
informed VanBeek that the caller said VanBeek had been sitting
there for an hour, which VanBeek denied. Sitzberger said it had
been "about ten minutes." Oetzel responded by saying "it was an
anonymous caller, you know how people exaggerate sometimes. I
don't know." VanBeek answered affirmatively when Oetzel asked
if Sitzberger was her boyfriend and if she was "just waiting";
Oetzel responded "sounds legit." During his initial encounter
with VanBeek, Oetzel did not ask about a backpack or a third
person that the caller had mentioned. There is nothing in the
record to show whether such a person had been present.
¶6 Oetzel then asked VanBeek and Sitzberger for their
information "for his report, so [he] [could] just get out of
[here]." Sitzberger asked if Oetzel was going to just write
down the information. Oetzel told Sitzberger he wanted their
"IDs" so he could "compare faces." While VanBeek and Sitzberger
were giving their driver's licenses to Oetzel, Oetzel asked what
they were doing that night, and Sitzberger responded that
VanBeek had just picked him up and they were going back to
Cascade. Oetzel took possession of their driver's licenses and
said "Okay. I'll be right back, okay." VanBeek and Sitzberger
replied "alright."
¶7 Before returning to his squad car, Oetzel spoke to
another officer who had arrived on scene. Oetzel told the other
officer that VanBeek said she was "waiting for her boyfriend"
and "[he] [didn't] think it [was] anything suspicious." When he
4
No. 2019AP447-CR
ran a records check on VanBeek and Sitzberger, Oetzel discovered
that neither person had outstanding warrants. However, Oetzel
learned that VanBeek had overdosed in February of that year and
that Sitzberger was on supervision. Based on these two
additional facts, Oetzel called for the K9 unit. Oetzel then
exited his squad car and once again spoke to the other officer
who was on scene. As he returned to VanBeek's vehicle, Oetzel
asked the other officer if he "had enough to just hold them
until [the K9 unit] [got] [there]."
¶8 After he returned to VanBeek's vehicle, while
retaining possession of their driver's licenses, Oetzel asked
VanBeek and Sitzberger numerous questions, some of which he had
already asked and they had answered. For example, Oetzel asked
VanBeek to confirm that she lived in Cascade, to repeat her
address, to confirm her date of birth, and to provide a phone
number. As Oetzel questioned her, VanBeek asked whether her
"license was bad." Oetzel answered no, and she answered
Oetzel's questions. After questioning VanBeek, Oetzel moved on
to Sitzberger, asking him to confirm his address and for a phone
number. Sitzberger also complied.
¶9 While retaining their driver's licenses, Oetzel
continued his questioning, saying "Heather, you were saying that
you were picking him up. I thought you [Sitzberger] said you
live here." Sitzberger denied saying that he lived in the area
and that he was at a friend's house. Oetzel asked, "which
friend?" and Sitzberger responded with the name "Jake" who he
said lived "a couple blocks down." Oetzel asked whether Jake
5
No. 2019AP447-CR
lived on Superior, and Sitzberger responded affirmatively,
though he seemed unsure whether Jake lived at 7th or 8th street.
Sitzberger said that he thought VanBeek was outside but did not
see her, so he called her and walked around trying to find her.
¶10 Oetzel then asked Sitzberger more questions about
Jake, including where exactly on Superior Jake lived, for Jake's
full name, and for Jake's phone number. Oetzel told Sitzberger
that he "just want[ed] to verify [Sitzberger's] story" because
Sitzberger was on supervision. He "wanted to confirm that there
[was] a Jake there so that [Sitzberger] wasn't lying to [him]."
Sitzberger offered to call Jake, but Oetzel told Sitzberger that
he would rather "have the phone number and [he] can call [Jake]
himself." After taking Jake's phone number down, Oetzel asked
Sitzberger if Sitzberger had been drinking. Sitzberger said
that he had not. Oetzel said that he asked because Sitzberger's
face was "a little red" and Sitzberger replied saying he "just
got done walking" and that it was hot in the truck. Oetzel then
returned to questioning Sitzberger about Jake.
¶11 This time, the questions included how Sitzberger knew
Jake and how long he had known him. Sitzberger responded,
telling Oetzel that he met Jake through a friend and that he had
known Jake for about five or six months. After taking down that
information, Oetzel circled back to his original questions and
asked VanBeek and Sitzberger how long they had been sitting
there. VanBeek said that up to that point she had been there
for "probably an hour." She clarified that before Oetzel
arrived she was there for half an hour. Oetzel exclaimed that
6
No. 2019AP447-CR
an hour is "a long time" and asked if she had been sitting there
alone for awhile, which VanBeek responded to affirmatively.
Shortly thereafter, the K9 unit arrived, and Oetzel asked
VanBeek and Sitzberger to exit the truck.
¶12 After VanBeek and Sitzberger got out of the truck, the
K9 unit conducted a sweep of the truck and the dog alerted,
indicating there were drugs present. Oetzel and another officer
searched the truck and discovered one gram of methamphetamine
and a pipe, for which they arrested VanBeek. The entire
incident lasted approximately 25 minutes.
B. Procedural History
¶13 The State charged VanBeek with one count of Possession
of Methamphetamine, contrary to Wis. Stat. § 961.41(3g)(g), and
one count of Possession of Drug Paraphernalia, contrary to Wis.
Stat. § 961.573(1). VanBeek moved to suppress the
methamphetamine and drug pipe found during the search.
¶14 In her suppression motion, VanBeek contended that
Oetzel's initial contact with her was unlawful, and, even if it
were not, the stop was extended beyond its initial mission
without reasonable suspicion that she or Sitzberger were
committing, had committed or were about to commit a crime. She
argued that Oetzel's extended questioning while retaining her
driver's license violated her right to be free from unreasonable
searches and seizures as guaranteed by both the Fourth Amendment
to the United States Constitution and Article I, Section 11 of
the Wisconsin Constitution.
7
No. 2019AP447-CR
¶15 The circuit court held two hearings on VanBeek's
motion to suppress where the court heard testimony from Oetzel.
On direct examination, Oetzel testified that he was dispatched
to the intersection based on an anonymous call, but "the
description of the vehicle was not provided by the anonymous
caller so [he] went further south" to see if any other vehicles
were sitting idle with two occupants.
¶16 Oetzel confirmed that he did not know why Sitzberger
was on supervision and that he "didn't ask dispatch." On cross-
examination, Oetzel gave conflicting testimony on whether he
mentioned the anonymous caller's information regarding a third
person or a backpack during the initial encounter. First,
Oetzel said that he "[couldn't] recall" whether he mentioned the
backpack. A few moments later, he stated that "[he] told them
why [he] was there with the suspicious complaint about two
individuals being inside a vehicle, a truck, and that [an]
unknown person approached them with a backpack." The bodycam
footage confirms that Oetzel did not mention the backpack at any
point during the interaction. And Oetzel further confirmed this
on re-cross examination.
¶17 Oetzel also confirmed that he did not have reasonable
suspicion at the time that he took VanBeek's and Sitzberger's
driver's licenses back to his squad car. Finally, Oetzel
confirmed that VanBeek had not committed any traffic violations
and that he did not see or smell any indications of drug use.
¶18 In analyzing VanBeek's motion to suppress, the circuit
court noted that it was required to "judg[e] the reasonableness
8
No. 2019AP447-CR
of a stop and search [and] . . . to look at the totality of
circumstances of the situation." The circuit court concluded
that "the initial contact with [VanBeek's] vehicle was
reasonable and that . . . the entire contact with the defendant
and the passenger was reasonable under a totality of the
circumstances."6 This led the circuit court to conclude that the
K9 search was also reasonable. Accordingly, the circuit court
denied VanBeek's motion to suppress.
¶19 VanBeek pled no contest, and the circuit court
subsequently entered a judgment of conviction. VanBeek appealed
to the court of appeals, where she argued that "Oetzel's demand
for and retention of [her] driver's license transformed his
contact with her into a seizure." VanBeek contended that "no
reasonable person would feel free to leave and go about his or
her business once a police officer takes and retains their
driver's license." Accordingly, VanBeek contended that she was
seized when Oetzel took her and Sitzberger's driver's licenses
back to his squad car. VanBeek further asserted that the
seizure was not justified by reasonable suspicion or the
The circuit court concluded that the initial approach
6
"probably" was justified under the community caretaker doctrine.
VanBeek's trial counsel asked for clarification on this point,
and the court stated that "[i]f you look at the standards it
clearly is a seizure, you know, because he approaches the
vehicle, and I think it was a bona fide community caretaker
activity as the state laid out[.]" The court also found that
the initial contact was "a valid investigative stop . . . under
the community caretaker [doctrine]." The court further
concluded that the secondary contact was valid under both the
community caretaker doctrine and based on reasonable suspicion.
9
No. 2019AP447-CR
community caretaker doctrine and that, even if the initial
interaction was valid, the extension of the stop to wait for the
K9 unit was not.
¶20 The State countered, arguing that "Oetzel first seized
VanBeek when he asked her to exit her truck right before the dog
sniff occurred." The State disagreed with VanBeek's position
that she was seized when Oetzel took her driver's license back
to his squad car. The State argued that per our holding in
State v. Floyd, 2017 WI 78, 377 Wis. 2d 394, 898 N.W.2d 560,
Oetzel's retention of VanBeek's license was not a seizure and
rather, "[Oetzel] did not attempt to restrict [VanBeek's]
movement until" he asked her to step out of her vehicle.
Alternatively, the State argued that the earliest Oetzel seized
VanBeek was during his second interaction. In either event, the
State maintained that Oetzel had reasonable suspicion for the
seizure.
¶21 After reviewing Fourth Amendment jurisprudence as it
relates to VanBeek's contentions, the court of appeals certified
an issue to us in regard to Oetzel taking VanBeek's driver's
license to his squad car without reasonable suspicion. The
court of appeals reasoned that "[t]his case presents an
important issue that arises when officers investigate citizen
complaints that are not, as yet, supported by reasonable
suspicion to believe crime is afoot." The court of appeals also
sought further clarification on the following statement from
Floyd: "If an officer withholds a person's documents, there is
good reason to believe that the person was not 'free to leave'
10
No. 2019AP447-CR
at that time." Id., ¶31. We accepted the court of appeals'
certification.7
II. DISCUSSION
A. Standard of Review
¶22 Whether evidence should have been suppressed is a
question of constitutional fact. State v. Coffee, 2020 WI 53,
¶19, 391 Wis. 2d 831, 943 N.W.2d 845. We "employ a two-step
inquiry" to make that determination. Id. First, we uphold a
circuit court's findings of historic fact unless they are
clearly erroneous. Id., ¶20. Second, we independently and
objectively examine the facts known to the officer at the time
of the alleged seizure, applying constitutional principles to
them. Id. "The burden is on the State to prove that the search
was constitutionally permissible because police did not obtain a
warrant prior to searching the vehicle." Id., ¶21 (citing State
v. Johnston, 184 Wis. 2d 794, 806, 518 N.W.2d 759 (1994)).
B. Fourth Amendment Principles
¶23 The Fourth Amendment to the United States Constitution
protects people against unreasonable searches and seizures.
U.S. Const. amend. IV. The Wisconsin Constitution contains
nearly identical protections, Wis. Const. art. I, § 11, which we
have interpreted consistent with its federal counterpart. State
"When we accept certification from the court of appeals,
7
we acquire jurisdiction of the entire appeal." State v. Denk,
2008 WI 130, ¶29, 315 Wis. 2d 5, 758 N.W.2d 775. Accordingly,
"[w]e . . . consider all issues raised before the court of
appeals." Id.
11No. 2019AP447-CR
v. Kramer, 2009 WI 14, ¶18, 315 Wis. 2d 414, 759 N.W.2d 598. In
this case, we are focused on the meaning of "seizures" within
the Fourth Amendment.
¶24 Although courts regularly talk about "searches and
seizures" as though they were an inseparable tandem, they are
constitutionally and analytically distinct principles. State v.
Arias, 2008 WI 84, ¶25, 311 Wis. 2d 358, 752 N.W.2d 748. "A
seizure differs from a search, as it 'deprives the individual of
dominion over his or her person or property.'" Id. (citing
Horton v. California, 496 U.S. 128, 133 (1990)).
¶25 When a seizure is claimed to have occurred, we first
determine when it began and whether it was constitutionally
permissible at its inception. Arias, 311 Wis. 2d 358, ¶30
(citing Terry v. Ohio, 392 U.S. 1, 19-20 (1968)). We then
determine whether the officer's continued actions were
"reasonably related in scope to the circumstances which
justified the interference in the first place." Arias, 311
Wis. 2d 358, ¶30 (citing Terry, 392 U.S. at 20).
¶26 Not every police-citizen interaction implicates the
Fourth Amendment. See Terry, 392 U.S. at 19 n.16; see also
State v. Griffith, 2000 WI 72, ¶39, 263 Wis. 2d 48, 613 N.W.2d
72. Law enforcement officers may approach citizens on the
street, put questions to them, and ask for identification
without implicating the Fourth Amendment "as long as the police
do not convey a message that compliance with their request is
required." Florida v. Bostick, 501 U.S. 429, 434 (1991); see
also INS v. Delgado, 466 U.S. 210, 216 (1984) ("[P]olice
12
No. 2019AP447-CR
questioning, by itself, is unlikely to result in a Fourth
Amendment violation. While most citizens will respond to a
police request, the fact that people do so, and do so without
being told they are free not to respond, hardly eliminates the
consensual nature of the response."). Absent law enforcement
conduct that indicates required compliance, these types of
interactions are consensual encounters and generally do not
receive Fourth Amendment scrutiny. Bostick, 501 U.S. at 434.
¶27 However, a police-citizen interaction can rise to the
level of a temporary, investigative detention, commonly referred
to as a Terry stop. Terry, 392 U.S. at 30. To pass Fourth
Amendment scrutiny, Terry stops must be supported by reasonable
suspicion. Id.; see Wis. Stat. § 968.24 (codifying the standard
for Terry stops).
¶28 An officer has reasonable suspicion "when, at the time
of the stop, he or she possesses specific and articulable facts
which would warrant a reasonable belief that criminal activity
[is or] was afoot." State v. Waldner, 206 Wis. 2d 51, 55, 556
N.W.2d 681 (1996) (citing State v. Chambers, 55 Wis. 2d 289,
294, 198 N.W.2d 377 (1972)). Finally, arrests are seizures and
must be supported by probable cause. Hayes v. Florida, 470 U.S.
811, 815-16 (1985). Here, we determine whether the consensual
interaction between VanBeek and Oetzel shifted at some point in
time from a consensual encounter to a seizure for which
reasonable suspicion was required.
¶29 A seizure occurs if, under the totality of
circumstances, the "police conduct would have communicated to a
13
No. 2019AP447-CR
reasonable person that the person was not free to decline the
officers' request or otherwise terminate the encounter."
Bostick, 501 U.S. at 439. Stated otherwise, a seizure occurs
"when the officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen."
United States v. Mendenhall, 446 U.S. 544, 552 (1980).
"Determining whether a seizure has occurred is a highly
fact-bound inquiry." United States v. Tyler, 512 F.3d 405, 410
(7th Cir. 2008).
¶30 We determine whether a person would have felt free to
leave or otherwise terminate the encounter based on an objective
view of the specific facts presented. That analysis employs the
"innocent reasonable person, rather than the specific
defendant." County of Grant v. Vogt, 2014 WI 76, ¶30, 356
Wis. 2d 343, 850 N.W.2d 253. "If a reasonable person would have
felt free to leave but the person at issue nonetheless remained
in police presence, perhaps because of a desire to be
cooperative, there is no seizure." State v. Young, 2006 WI 98,
¶37, 294 Wis. 2d 1, 717 N.W.2d 729.
C. The Certified Question
¶31 The court of appeals certified the question of whether
an officer taking a citizen's driver's license back to the
officer's squad car necessarily constitutes a seizure. As we
explain below, we conclude that such law enforcement officer
conduct could amount to a seizure. However, rather than create
a bright-line rule that such conduct is always a seizure or is
14
No. 2019AP447-CR
never a seizure, we continue to analyze whether a seizure
occurred based on the totality of circumstances presented.
¶32 "In the ordinary course, a police officer is free to
ask a person for identification without implicating the Fourth
Amendment." Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S.
177, 185 (2004); see also Mendenhall, 446 U.S. at 555 ("[The
agents] requested, but did not demand to see the respondent's
identification and ticket. Such conduct without more, did not
amount to an intrusion upon any constitutionally protected
interest."). Further, an officer approaching a parked car and
questioning the individual or individuals within does not
necessarily amount to a seizure. See, e.g., Vogt, 356 Wis. 2d
343, ¶41 (concluding that an officer parking behind a vehicle,
approaching and knocking on the window to question the occupant
did not amount to a seizure); see also United States v.
Jefferson, 906 F.2d 346, 349 (8th Cir. 1990) (collecting cases).
¶33 However, what may begin as a valid and consensual
encounter can rise to the level of a seizure, and an officer's
retention of an individual's driver's license is an important
factor that courts consider. For example, in Florida v. Royer,
narcotics agents approached Royer in the concourse of an airport
and asked to see his ticket and his identification. Florida v.
Royer, 460 U.S. 491, 494 (1983). Royer explained the
discrepancy between the name on his ticket and the name on his
identification. Id. The officers, rather than returning
Royer's identification and airline ticket, informed Royer that
they were narcotics officers and "asked Royer to accompany them
15
No. 2019AP447-CR
to a room" away from the concourse. Id. The officers also
retrieved Royer's luggage without Royer's consent. Royer
unlocked one suitcase, which an officer opened "without seeking
further assent from Royer," and the officers broke open the
other suitcase after Royer said "go ahead." Id. Each bag
contained narcotics, and Royer was arrested. Id.
¶34 The Court analyzed these circumstances and the
plurality concluded that "[w]hat had begun as a consensual
inquiry in a public place had escalated into an investigatory
procedure in a police interrogation room, where the police,
unsatisfied with previous explanations, sought to confirm their
suspicions." Id. at 503. The Court reasoned that because Royer
was in the police interrogation room, "[t]he officers had
Royer's ticket, they had his identification, and they had seized
his luggage[,]" the interaction lost its consensual nature. Id.In providing additional clarity, the Court stated that, had the
officers "return[ed] his ticket and driver's license, and
inform[ed] him that he was free to go if he so desired, the
officers may have obviated any claim that the encounter was
anything but a consensual matter from start to finish." Id. at
504 (emphasis added).
¶35 A number of federal circuits have reasoned that the
prolonged retention of an individual's driver's license was an
important factor in determining whether a seizure occurred. For
example, the Seventh Circuit included an officer's retention of
16
No. 2019AP447-CR
a driver's license in its non-exhaustive list of factors to
consider.8 Tyler, 512 F.3d at 410 (listing relevant factors in
the totality of circumstances analysis including "whether the
person was deprived of identification or other documents without
which he could not leave"); see also United States v. Weaver,
282 F.3d 302, 311 (4th Cir. 2002) (noting that "the retention of
a person's identification is an important factor in determining
whether a 'seizure' within the meaning of the Fourth Amendment
occurred" but declining to adopt a bright-line rule); Jefferson,
906 F.2d at 349 ("We have . . . noted that in certain
circumstances a consensual encounter may become a seizure if the
officer retains the individual's driver's license."); United
States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997)
("When a law enforcement official retains control of a person's
identification papers, such as vehicle registration documents or
a license, longer than necessary to ascertain that everything is
in order, and initiates further inquiry while holding on to the
8The Seventh Circuit likened Tyler to the court's
jurisprudence surrounding "airport and train station stops."
United States v. Tyler, 512 F.3d 405, 410 (7th Cir. 2008). The
court concluded there was a meaningful distinction in the
expediency with which officers asked for, examined and
ultimately returned an individual's driver's license. Id.("Where the officers told the defendant he was under
investigation for carrying drugs or retained possession of his
identification, travel documents, and/or luggage, we held there
was a seizure. . . . Where the officers only generally
identified themselves as narcotics investigators and immediately
returned the defendant's identification and travel documents, we
held the initial consensual encounter did not ripen into a
seizure.") (internal citations omitted).
17
No. 2019AP447-CR
needed papers, a reasonable person would not feel free to
depart."); United States v. Waksal, 709 F.2d 653, 660 (11th Cir.
1983) ("We fail to see how appellant could have felt free to
walk away from police officers when they still possessed the
documents necessary for him to continue his journey.").
¶36 We conclude that an officer's retention of an
individual's driver's license is a significant but not the
dispositive fact. Our conclusion is consistent with Wisconsin
Fourth Amendment precedent. In State v. Luebeck, the court of
appeals analyzed an encounter during which an initially valid
stop ripened into an unlawful seizure. See generally State v.
Luebeck, 2006 WI App 87, 292 Wis. 2d 748, 715 N.W.2d 639.
There, the officer stopped Luebeck for a lane deviation and a
suspicion that he was driving under the influence. Id., ¶2.
The officer obtained Luebeck's and his passenger's driver's
licenses and ran warrant checks. Id. The officer also
instructed Luebeck to perform a field-sobriety test, which
Luebeck passed, and the officer administered a preliminary
breath test; Luebeck was under the legal limit. Id., ¶3. The
officer ultimately "advised Luebeck that he was going to issue
him a warning for the lane deviation and then release him." Id.
¶37 While retaining Luebeck's driver's license and having
not yet issued him the warning, the officer continued to
question Luebeck about his passenger's ability to drive in his
place. Id., ¶4. Before administering a breath test on
Luebeck's passenger, the officer asked if Luebeck had anything
illegal on his person or in his car. Id. Luebeck denied each
18
No. 2019AP447-CR
question and consented when the officer asked to search him and
the car. Id. Luebeck had nothing on his person, but the car
search uncovered marijuana. Id., ¶5. Luebeck argued that he
was unlawfully seized at the time he gave his consent to search.
Id., ¶6.
¶38 The circuit court and court of appeals agreed with
Luebeck. At the outset, the court of appeals agreed with the
State that the initial traffic stop was valid. Id., ¶¶7, 10.
However, after examining the totality of circumstances, the
court of appeals concluded that a reasonable person in Luebeck's
position would not have felt free to leave or otherwise
terminate the encounter at the time that Luebeck consented to
the search. Id., ¶15. The court distinguished Luebeck's case
from two cases on which the State relied and explained:
Luebeck was detained for over twenty minutes, his
driver's license was held by the police, no citation
or warning for lane deviation had yet been issued, he
passed all of the field sobriety tests and his
preliminary breath test indicated a blood alcohol
content below the legal limit, and yet he was being
questioned about his passenger's ability to drive in
his place. In Williams, the officer issued and
explained the traffic warning, returned Williams'
identification, shook hands with Williams, and said,
"[W]e'll let you get on your way then." . . . In
Gaulrapp, we expressly distinguished the case from
others that "involved prolonged detention after the
officers concluded or should have concluded that the
justification for the initial stop did not warrant
further detention."
Id. (quoting State v. Williams, 2002 WI 94, ¶¶7-12, 255 Wis. 2d
1, 646 N.W.2d 834 and State v. Gaulrapp, 207 Wis. 2d 600, 608,
558 N.W.2d 696 (Ct. App. 1996)).
19
No. 2019AP447-CR
¶39 In coming to its conclusion, the court examined
numerous Tenth Circuit cases that had concluded "that a
motorist's consent to search his or her vehicle is invalid where
a deputy does not return documents relating to the initial
traffic stop prior to asking for consent to search the vehicle."
Luebeck, 292 Wis. 2d 748, ¶16.9 The court of appeals did not
adopt a bright-line rule to that effect; rather, it concluded
that "the fact that [a] person's driver's license or other
official documents are retained by the officer is a key factor
in assessing whether the person is 'seized.'" Id.
¶40 We made a similar statement in Floyd; however, Floyd's
language must be interpreted in context. There, Floyd was
stopped because his car registration had been suspended for
emissions violations. Floyd, 377 Wis. 2d 394, ¶2. Floyd had no
driver's license with him, but he did identify himself with a
Wisconsin State identification card, which he handed to the
officer. Id., ¶4. After the officer had drafted the relevant
citations, he returned to Floyd's car and while retaining
Floyd's identification card, he asked Floyd to step out of the
car so that he could explain the citations to him. Id., ¶5. It
was at this point that Floyd alleged that his seizure was
unlawfully extended. Id., ¶14.
See United States v. Lee, 73 F.3d 1034, 1040 (10th Cir.
9
1996), overruled on other grounds by United States v. Holt, 264
F.3d 1215, 1226 n.6 (10th Cir. 2001); United States v. Lambert,
46 F.3d 1064, 1068 (10th Cir. 1995); United States v. Walker,
933 F.2d 812, 817 (10th Cir. 1991).
20
No. 2019AP447-CR
¶41 After Floyd had exited the vehicle, the officer asked
if he could search him, to which request the circuit court found
Floyd consented. Id., ¶9. Floyd argued on appeal that his
"consent" was not voluntary. "Specifically, he argued that
because Deputy Ruffalo had not returned his identification card
prior to asking whether he would consent to a search, his
response could not be voluntary because he was unlawfully
seized." Id., ¶31. This argument conflated Floyd's earlier
argument that his seizure became unlawful because it was
extended with an implication that consent was not voluntarily
given because the officer had not returned his identification
card. Id., ¶32. Although we reasoned that if an officer
retains a person's identification "there is good reason to
believe the person was not 'free to leave' at that time," id.,
¶31, we concluded that it had no bearing on Floyd's seizure
because his initial seizure was lawful and that seizure was not
unlawfully extended during the explanation of the tickets or the
officer's subsequent request to search him. Id., ¶31.
¶42 It was statements from Luebeck and Floyd that may have
caused the court of appeals to certify a question to us. We
stand by statements made in the contexts presented in those
cases. While the withholding or retention of an individual's
driver's license may be a "key factor," important, or
analytically significant, we decline to set forth a bright-line
rule that any time an officer retains an individual's driver's
license that person is seized. Rather, courts should continue
21
No. 2019AP447-CR
to analyze whether the individual is seized based upon the
totality of circumstances.
¶43 The above cases teach that police conduct is the
dispositive factor in determining whether a seizure has
occurred. As the Supreme Court clearly set out in Bostick, "the
crucial test is whether, taking into account all of the
circumstances surrounding the encounter, the police conduct
would 'have communicated to a reasonable person that he was not
at liberty to ignore the police presence and go about his
business.'" Bostick, 501 U.S. at 437 (quoting Michigan v.
Chesternut, 486 U.S. 567, 569 (1988)).
¶44 Applying the above principles to this case, based upon
the totality of the circumstances, Oetzel taking VanBeek's
license back to his squad car did not amount to a seizure.
Oetzel took VanBeek's and Sitzberger's licenses back to the
squad car upon his request to do so and with their permissions.
The video-cam Oetzel was wearing recorded that when Oetzel
received the licenses that they handed to him, he began to move
away from VanBeek's car. He said, "Okay. I'll be right back,
okay?" VanBeek and Sitzberger both replied "alright." This
appears to be a continuation of what had been a cordial
interaction among VanBeek, Sitzberger and Oetzel.
¶45 A reasonable person in VanBeek's position would have
understood that their "alright" responses permitted Oetzel to
retain her driver's license and that her ability to lawfully
operate her vehicle would be delayed until Oetzel returned to
her car. Further, Oetzel reasonably relied on their verbal
22
No. 2019AP447-CR
interactions before he returned to his squad car. Accordingly,
under the totality of circumstances that bear on the certified
question, VanBeek consented to Oetzel's retention of her license
until he returned from his squad car, and therefore, she was not
seized when he took her driver's license to the squad car and
ran a warrant check.10
D. Other Issues Presented
1. Seizure
¶46 Having re-affirmed that the totality of circumstances
continues to be the correct analytical metric by which to
analyze claimed seizures, we determine based on that metric
whether VanBeek was seized at any subsequent point during her
interaction with Oetzel. We conclude that VanBeek was seized
when Oetzel returned to her vehicle, retained her driver's
license, and continued to pose questions to her and Sitzberger
in order to prevent them from leaving before the K9 unit
arrived. We conclude that a reasonable person in VanBeek's
position would not have felt free to drive away and terminate
the encounter with Oetzel while he retained her driver's license
and continued to question her and Sitzberger.
Although we determine that in this case there was not a
10
seizure when Oetzel took their identifications back to his squad
car, nothing in this opinion should be taken as concluding that
an officer running a records check back at the officer's squad
car will never amount to a seizure. Courts are to continue to
analyze the totality of circumstances of each encounter.
23
No. 2019AP447-CR
¶47 We also conclude that there are no facts from which to
conclude that VanBeek consented to Oetzel's retention of her
driver's license after he returned to her vehicle. Rather, a
reasonable person in VanBeek's position would have believed that
Oetzel would return her driver's license as soon as he returned
from his squad car so "he could get out of here."
¶48 However, when Oetzel returned, rather than "just
getting out of here" as he originally said, he retained their
driver's licenses. He also continued to question them for
nearly eight more minutes, in order to hold them until the K9
unit he had requested arrived. Merely because this was not a
traffic stop in the ordinary sense, it does not follow that
Oetzel's conduct did not turn the interaction into an
investigative detention.
¶49 Oetzel's questioning after his return from his squad
car was repetitive of questions he had already asked and they
had answered. VanBeek was confused by Oetzel's repetitive
questions and asked him if her "license was bad," indicating
that she had expected to have her license returned and be on her
way back to Cascade.
¶50 A reasonable person being repetitively questioned
while the officer retained her driver's license would not feel
free to drive away and thereby terminate the encounter. It was
Oetzel's conduct of retaining their driver's licenses while
repeatedly asking questions that she and Sitzberger had already
answered, that coerced VanBeek to remain in Sheboygan. Also,
Oetzel's questioning was intended to require them to remain in
24
No. 2019AP447-CR
Sheboygan so that time would pass and the K9 unit would appear
to sniff for drugs. Accordingly, VanBeek was seized during the
second round of repetitive questions while Oetzel retained her
driver's license.11
2. Reasonable Suspicion
¶51 A seizure runs afoul of the Fourth Amendment if it is
unreasonable, and a temporary detention is unreasonable if under
the totality of circumstances it is not supported by reasonable
suspicion. Coffee, 391 Wis. 2d 831, ¶2. As we have concluded
that Oetzel seized VanBeek during their second interaction, we
now determine whether the seizure was supported by reasonable
suspicion. We conclude that it was not.
¶52 Reasonable suspicion, as with other Fourth Amendment
inquiries, is an objective test that examines the totality of
circumstances. State v. Guzy, 139 Wis. 2d 663, 675, 407 N.W.2d
548 (1987). An officer has reasonable suspicion if he or she
has "a suspicion grounded in specific, articulable facts and
reasonable inferences from those facts, that the individual has
11The circuit court concluded, and the State argued, that
this interaction was justified by the community caretaker
doctrine. We disagree. An officer exercises a bona fide
community caretaker function generally "when the officer
discovers a member of the public who is in need of assistance."
State v. Kramer, 2009 WI 14, ¶32, 315 Wis. 2d 414, 759 N.W.2d
598. As we discussed above, we conclude that Oetzel's
interaction with VanBeek was not to determine whether she or
Sitzberger were in need of assistance but was rather to
investigate the anonymous call that the police department
received. Accordingly, Oetzel was not performing a bona fide
community caretaker function and the doctrine does not apply
here.
25
No. 2019AP447-CR
committed a crime." Id. "An inchoate and unparticularized
suspicion or 'hunch' will not suffice." Id. (citing Terry, 392
U.S. at 27).
¶53 The State offered the following five facts that it
contends support the conclusion that Oetzel had reasonable
suspicion that VanBeek and Sitzberger had been, or were about to
be, involved in criminal conduct: (1) "VanBeek and Sitzberger
were hanging around a neighborhood for at least several
minutes"; (2) "Oetzel did not receive a satisfactory explanation
for that behavior"; (3) "the suspicious behavior here occurred
late at night: Officer Oetzel began speaking to VanBeek and
Sitzberger around 12:22 a.m."; (4) "an anonymous caller had
reported that two people were sitting in a truck for an
hour. . . . Based on his training and experience, Officer
Oetzel thought that people 'are usually utilizing narcotics' if
they are sitting in a parked vehicle for a long period of time";
and (5) "someone here made brief contact with a vehicle. The
concerned caller told police that someone with a backpack had
come to the truck and then left." To be sure, because we have
concluded that the seizure occurred during the second
interaction, we note that Oetzel also knew that VanBeek had
overdosed earlier in the year and that Sitzberger was on some
sort of supervision.
¶54 In response, VanBeek argues that there is nothing
suspicious about sitting in a car and that the facts derived
from the anonymous call, namely that the car had been in the
location for an hour and that someone approached the vehicle
26
No. 2019AP447-CR
with a backpack and then left without it, were insufficient to
support reasonable suspicion of criminal conduct.
¶55 We begin with the anonymous call. "[A]n anonymous tip
alone seldom demonstrates the informant's basis of knowledge or
veracity . . . ." Alabama v. White, 496 U.S. 325, 329 (1990)
(citing Illinois v. Gates, 462 U.S. 213, 237 (1983)). "[A]n
informant's 'veracity,' 'reliability,' and 'basis of
knowledge,'" are "highly relevant" to testing the strength of
anonymous information within the totality of circumstances.
State v. Richardson, 156 Wis. 2d 128, 140, 456 N.W.2d 830 (1990)
(cleaned up). In Richardson, we concluded that "the
corroboration by police of innocent details of an anonymous tip
may under the totality of the circumstances give rise to
reasonable suspicion to make a stop." Id. at 142. We
articulated two guiding principles for assessing the weight that
we should place on anonymous calls:
First, the greater the amount, specificity and
uniqueness of the detail contained in an anonymous
tip, the more likely it is that the informant has an
adequate basis of knowledge. When attempting to
define the nature of the verified details of the tip
necessary, the White Court placed special emphasis on
the police verification of the caller's predictions of
the third party/suspect's future actions. White, [496
U.S. at 332]. The Court referred to this as a
verification of significant aspects of the tip. We
adopt this aspect of verification of the anonymous tip
which serves to avoid investigative stops based on
minimal facts that any passerby or resident on the
street could enunciate. Second, when significant
aspects of an anonymous tip are independently
corroborated by the police, the inference arises that
the anonymous informant is telling the truth about the
allegations of criminal activity. Under this
27
No. 2019AP447-CR
principle, police who have corroborated significant
aspects of a tip are allowed the reasonable inference
under the circumstances that if an informant is
correct as to these significant aspects, he or she is
more probably than not correct as to the ultimate fact
of criminal activity.
Id. at 142-43 (footnote omitted).
¶56 We continue to abide by these principles, but we
conclude that the dearth of significant facts enunciated by the
anonymous caller in this case substantially lowers the weight
that we place on the call in the totality of circumstances.
Unlike Richardson, White or Gates,12 wherein the respective
tipsters were able to provide unique, useful and predictive
information to police prior to police interaction, the caller
here merely told Sheboygan police that a non-descript truck,
occupied by two people, was parked on the street for "an hour"
and that someone had approached the vehicle with a backpack and
then left without it. Those facts are "minimal facts that any
passerby or resident on the street could enunciate." See id. at
142. The caller did not allege that the persons in the truck
were engaged in criminal activity. Accordingly, as we consider
See State v. Richardson, 156 Wis. 2d 128, 132, 456 N.W.2d
12830 (1990) (the tip provided "a detailed description of the
defendant and his immediate future plans"); Alabama v. White,
496 U.S. 325, 327 (1990) (the call "stat[ed] that Vanessa White
would be leaving 235-C Lynwood Terrace Apartments at a
particular time in a brown Plymouth station wagon with the right
taillight lens broken, that she would be going to Dobey's Motel,
and that she would be in possession of about an ounce of cocaine
inside a brown attaché case"); Illinois v. Gates, 462 U.S. 213,
225 (1983) (the tip was a letter that described how the Gates
sold drugs including the specific process the two used to travel
between Florida and Illinois).
28
No. 2019AP447-CR
a call about a non-descript truck parked on the street with two
occupants, the additional assertion that someone came to the
truck with a backpack and left without it does not weigh heavily
in our analysis. Apparently, those facts were not significant
to Oetzel because he never asked VanBeek or Sitzberger about a
third person or a backpack.
¶57 The call in this case is more analogous to that in
Florida v. J.L., 529 U.S. 266 (2000). There, a person
anonymously called the police to inform them "that a young black
male standing at a particular bus stop and wearing a plaid shirt
was carrying a gun." Id. at 268. Officers responded, saw three
men "just hanging out" and one of the individuals at the bus
stop matched the caller's description. Id. "Apart from the
tip, the officers had no reason to suspect any of the three of
illegal conduct." The officers frisked J.L. and uncovered a
firearm.13 Id.
¶58 The Court concluded that "[t]he tip . . . lacked the
moderate indicia of reliability present in White and essential
to the Court's decision in that case." Id. at 271. Further,
the Court noted "[t]hat the allegation about the gun turned out
to be correct does not suggest that the officers, prior to the
frisks, had a reasonable basis for suspecting J.L. of engaging
in unlawful conduct." Id. The Court rejected the petitioner's
13At the time of his arrest, J.L. was 16 years of age, and
"was charged . . . with carrying a concealed firearm without a
license and possessing a firearm while under the age of 18."
Florida v. J.L., 529 U.S. 266, 269 (2000).
29
No. 2019AP447-CR
argument "that the tip was reliable because its description of
the suspect's visible attributes proved accurate." Id. at 271.
In rejecting Florida's argument, the Supreme Court held that "a
tip [has to] be reliable in its assertion of illegality, not
just in its tendency to identify a determinate person." Id. at
272.
¶59 Here, and similar to J.L., Oetzel was able to
corroborate only the identifying factors given by the caller,
e.g., that there was a truck parked at the alleged location that
had two occupants. The only fact that could have been somewhat
suspicious was that the caller said someone approached the
vehicle with a backpack and then left without it. However,
Oetzel asked no questions about a third person or a backpack,
and the record does not reflect whether such a person existed.
We agree with the parties that the call, alone, could not have
supported reasonable suspicion. We conclude that the call was
useful only to the extent that it may have "help[ed] the police
correctly identify the person whom the tipster mean[t] to
accuse." See id. at 272.
¶60 Aside from the call, all that Oetzel knew at the time
of the seizure was that VanBeek overdosed earlier in the year
and that Sitzberger was on supervision. Oetzel did not know the
source of drugs that caused VanBeek's overdose, whether from a
physician or from an illegal source. There is nothing in the
record to connect her overdose in February with criminal
activity in November.
30
No. 2019AP447-CR
¶61 That Sitzberger was on supervision also provides no
reason to believe that he was involved in criminal activity with
VanBeek. As the Tenth Circuit explained in United States v.
Sandoval, 29 F.3d 537, 542 (10th Cir. 1994), a prior conviction
for an unknown offense provides no support for reasonable
suspicion. Id. If this were not the case, those on supervision
subsequent to a conviction could be searched anywhere and
anytime that the fact of supervision became known.
¶62 Furthermore, Oetzel testified that he neither saw nor
smelled any indication of drug use, and VanBeek's window was
rolled down as she spoke with him. Accordingly, we are not
convinced that at the time of the seizure the State met its
burden of proving that Oetzel had reasonable suspicion that
criminal activity was afoot.
¶63 Two cases from the court of appeals are supportive of
our conclusion. In State v. Betow, 226 Wis. 2d 90, 95-98, 593
N.W.2d 499 (Ct. App. 1999), where Betow was stopped for
speeding, the court of appeals concluded that the officer
prolonged an initially valid traffic stop without reasonable
suspicion that Betow had controlled substances in his
possession. The State argued that reasonable suspicion existed
based on the following facts: (1) Betow's wallet had a mushroom
sticker on it, which the State argued denoted drug use; (2) the
stop occurred late at night; (3) Betow seemed nervous; (4) Betow
was returning to Appleton from Madison, a city that the State
argued was associated with ready drug obtainment; and (5) Betow
did not provide the officer with a plausible explanation for his
31
No. 2019AP447-CR
purpose in Madison. Id. The court of appeals examined these
facts as the totality of circumstances relative to Betow's
seizure and concluded that the officer did not have reasonable
suspicion to prolong the stop.14 Id. at 98.
¶64 In State v. Gammons, 2001 WI App 36, 241 Wis. 2d 296,
625 N.W.2d 623, Gammons was a passenger in a car stopped because
it did not have a rear license plate. Id., ¶2. After
questioning extended beyond the license plate, Gammons was
arrested for possession with intent to deliver cocaine. Id.,
¶1. He asserted that the officer's questions exceeded the
permissible scope of the stop. Id. The court of appeals
analyzed the following facts: (1) "an out-of-town vehicle in an
area purportedly known for drug activity"; (2) "a night-time
stop"; (3) "and a nervous suspect." Id., ¶23. The court of
appeals held that these facts, taken together, did not form a
sufficient basis for reasonable suspicion. Id., ¶25. The court
held that because the officer did not have reasonable suspicion
of drug activity, "the Fourth Amendment required [the officer]
to terminate the stop and allow Gammons and the other men to
continue about their business." Id., ¶24. As we set forth
Although Betow and Gammons each dealt with the extension
14
of a traditional traffic stop, an officer may not extend a
lawful traffic stop "absent the reasonable suspicion ordinarily
demanded to justify detaining an individual." Rodriguez v.
United States, 575 U.S. 348, 355 (2015). Because the reasonable
suspicion analysis is the same for extensions of stops as it is
for initial stops, see State v. Betow, 226 Wis. 2d 90, 95, 593
N.W.2d 499 (Ct. App. 1999), we apply the principles articulated
in those cases to the reasonable suspicion assessment here.
32
No. 2019AP447-CR
above, the State's proffered foundation for reasonable suspicion
here is considerably weaker than those in Betow and Gammons.
¶65 Accordingly, based on the totality of circumstances,
Oetzel did not have reasonable suspicion when he returned to
VanBeek's truck, retained her driver's license and continued to
question her; therefore her seizure was unlawful.
III. CONCLUSION
¶66 On the certified question of whether a driver is
seized when a police officer takes the driver's identification
to the officer's squad car to run a records check, we conclude
that the answer depends on the totality of circumstances
surrounding the encounter. Further, while VanBeek was not
seized when Officer Oetzel took her driver's license to run a
records check, VanBeek was seized when Oetzel returned to her
vehicle, withheld her driver's license and continued to question
her and her passenger in order to hold her until a drug-sniff
dog, i.e., the K9 unit, that he had requested arrived. Finally,
we conclude that, based on the totality of circumstances, Oetzel
did not have reasonable suspicion that VanBeek was engaged in
criminal activity at the time he seized her. Accordingly, we
reverse the circuit court's judgment of conviction and remand
with instruction to grant VanBeek's motion to suppress.
By the Court.—Reversed and remanded with instructions. 
33
No. 2019AP447-CR.rfd
¶67 REBECCA FRANK DALLET, J. (concurring). I concur
that Heather VanBeek was unlawfully seized when police retained
her driver's license while repetitively questioning her.1 I
disagree, however, with the conclusion that VanBeek was not
seized earlier in her encounter with police. The totality of
the circumstances reveals that VanBeek was seized when police
took her driver's license back to the squad car for a records
check because, at that point, a reasonable person would not feel
free to leave or to otherwise end the interaction.
I
¶68 Sheboygan Police Officer Sung Oetzel responded to an
anonymous call reporting that two people had been sitting in a
parked truck in the same spot for approximately an hour and that
a person wearing a backpack had approached the truck. Oetzel
approached the truck with his squad car's spotlight activated
and asked VanBeek, who was sitting in the driver's seat, why and
how long she had been parked there. VanBeek explained that she
had been there about ten minutes waiting for her passenger and
that they were about to drive home to Cascade.
¶69 Oetzel responded that the explanation "sound[ed]
legit," but still asked VanBeek and her passenger for
identification "for [his] report." The passenger asked if he
could just write down his information, but Oetzel stated that he
needed a photo ID to "compare faces." Both VanBeek and her
passenger provided their driver's licenses. With both licenses
1 I join the majority/lead opinion with respect to ¶¶22-35
and ¶¶46-65.
1
No. 2019AP447-CR.rfd
in hand, Oetzel stated "I'll be right back, okay," and as he
walked away, VanBeek's passenger responded, "alright."
VanBeek's response to Oetzel was unclear. Before Oetzel reached
his squad car, he explained to another officer that he had not
observed "anything suspicious."
¶70 Oetzel checked VanBeek's record from his squad car and
learned that she had overdosed several months earlier. Oetzel
then ordered a drug-sniffing dog to the scene. He returned to
VanBeek's truck, retaining her license while repetitively
questioning her and her passenger until the dog arrived. Once
on scene, the dog alerted officers to the evidence underlying
VanBeek's conviction and this appeal.
¶71 We review the court of appeals' certified question of
"whether a consensual encounter becomes an unconstitutional
seizure under the Fourth Amendment when an officer requests and
takes an individual's drivers license to the officer's squad car
without reasonable suspicion." While I agree that such conduct
is not a seizure in all circumstances, I conclude that under the
circumstances here, it was.
II
¶72 Interactions between citizens and the police fall on a
spectrum. On one end are interactions outside the Fourth
Amendment, such as voluntary encounters in public spaces, which
may include the police requesting someone's identification. See
Florida v. Bostick, 501 U.S. 429, 437 (1991). Further down the
spectrum and subject to the Fourth Amendment are Terry and
traffic stops——short investigative seizures permissible only if
2
No. 2019AP447-CR.rfd
the police have reasonable suspicion that a person has just
committed, is committing, or is about to commit a crime or
traffic violation. Terry v. Ohio, 392 U.S. 1 (1968) (Terry
stops); State v. Floyd, 2017 WI 78, ¶20, 377 Wis. 2d 394, 898
N.W.2d 560 (traffic stops). At the opposite end of the spectrum
from voluntary encounters is a seizure2: police conduct that
"deprives the individual of dominion over his or her person."
E.g., Horton v. California, 496 U.S. 128, 133 (1990). Police
conduct constitutes a seizure when, considering all of the
circumstances, it would cause a reasonable person to believe
that she is not "free to leave."3 I.N.S. v. Delgado, 466
U.S. 210, 215 (1984).
¶73 Interactions on the spectrum are dynamic such that
police conduct can transform an initially voluntary encounter
The other Fourth Amendment event, a "search,"
2 is not
alleged or implicated during this first interaction and is
therefore not discussed in this opinion.
Courts sometimes state this question differently depending
3
on the case's particular facts. State v. Williams, 2002
WI 94, ¶22 n.6, 255 Wis. 2d 1, 646 N.W.2d 834. Regardless of
how the test is phrased, the "key question" is the
same: "whether a reasonable person can 'terminate the
encounter' with police." Peery v. City of Miami, 977
F.3d 1061, 1071 (11th Cir. 2020) (quoting Florida v. Bostick,
501 U.S. 429, 439 (1991)); see also, e.g., Bostick, 501 U.S.
at 435-36 (asking whether a reasonable person would feel "free
to decline the officers' requests or otherwise terminate the
[police] encounter" because the defendant, a passenger on an
interstate bus, was already not free to leave for reasons
outside the police's presence); Michigan v. Chesternut, 486
U.S. 567, 576 (1988) (asking whether a police car accelerating
to drive alongside a defendant was so intimidating that a
reasonable person would not feel "free to disregard the police
presence and go about his business").
3
No. 2019AP447-CR.rfd
into a seizure. See United States v. Monsivais, 848
F.3d 353, 358 (5th Cir. 2017) (officer converted a non-Fourth
Amendment roadside assistance or "welfare check" into a Fourth
Amendment seizure by announcing he would pat down the stranded
driver). If an individual is seized without sufficient Fourth
Amendment justification, then subsequently obtained evidence
must generally be suppressed. See State v. Scull, 2015
WI 22, ¶¶20-21, 361 Wis. 2d 288, 862 N.W.2d 562.
¶74 Because Oetzel lacked reasonable suspicion that
VanBeek had committed or was about to commit a crime or traffic
violation, any seizure of VanBeek, even a temporary one, would
be unlawful.4 Oetzel's encounter with VanBeek started out as
voluntary, requiring no special justification to initially
approach and question VanBeek in her truck since she was parked
on a public street. See, e.g., United States v. Kim, 25
F.3d 1426, 1430 n.1 (9th Cir. 1994); 4 Wayne R. LaFave, Search &
Seizure § 9.4(a) (6th ed. 2020). Thus the question is whether
Oetzel's subsequent actions toward VanBeek escalated this
initially voluntary interaction to the level of a seizure.
¶75 The interaction moved toward a seizure when Oetzel
asked VanBeek for her photo ID. Generally, such a request is
There is no support in the record for the community
4
caretaker exception. Oetzel observed neither VanBeek nor her
passenger in distress and thus lacked "reasonable grounds to
believe there [was] an emergency at hand and an immediate need
for [his] assistance for the protection of life or property."
See State v. Ferguson, 2001 WI App 102, ¶17, 244 Wis. 2d 17, 629
N.W.2d 788 (quoting United States v. Cervantes, 219 F.3d 882,
888 (9th Cir. 2000)).
4
No. 2019AP447-CR.rfd
not a Fourth Amendment seizure. See Delgado, 466 U.S. at 216.
But Oetzel's conduct indicated that his request was in fact a
command that VanBeek could not refuse. See Bostick, 501 U.S.
at 437 (explaining that a seizure occurs when police "ask to
examine the individual's identification" in a way that indicates
"compliance with their requests is required"). Specifically,
Oetzel rejected the offer to write down the requested
information, stating instead that he needed a photo ID to
"compare faces." When an officer rejects a less-intrusive
alternative, a reasonable person could believe that her only
other option is to comply with the officer's "request." Cf. id.
¶76 Even so, until Oetzel walked away, VanBeek at least
had an opportunity to ask for her license back so she could
terminate the encounter and go on her way (although whether
anyone would actually feel comfortable doing this is another
question5). Once Oetzel left the side of VanBeek's car, however,
that opportunity vanished. No reasonable person would think she
could drive away when an officer walks off with her driver's
license, particularly when doing so would violate state law.
See Wis. Stat. § 343.18(1) (2020-21) (prohibiting the operation
of a vehicle without immediately possessing one's license);
Floyd, 377 Wis. 2d 394, ¶31 ("If an officer withholds a person's
For that reason, several courts have held that persons are
5
seized when an officer questions them while retaining their
license. See United States v. Lopez, 443 F.3d 1280, 1285-86
(10th Cir. 2006); United States v. Chavez-Villarreal, 3
F.3d 124, 128 (5th Cir. 1993); United States v. Jordan, 958
F.2d 1085, 1087-89 (D.C. Cir. 1992).
5
No. 2019AP447-CR.rfd
documents, there is good reason to believe the person was not
'free to leave' at that time."); see also United States v.
Thompson, 712 F.2d 1356, 1359 (11th Cir. 1983) (concluding that
an officer "effectively immobilized" and therefore seized a
driver by retaining the driver's license because driving away
without the license would violate state law). Thus, VanBeek was
unlawfully seized because Oetzel's conduct would cause a
reasonable person in VanBeek's circumstances to feel as though
she were not free to leave or to otherwise terminate the
encounter. See Delaware v. Prouse, 440 U.S. 648, 653-55, 657
(1979) (holding that, absent reasonable suspicion, "detaining
the driver in order to check his driver's license" is a Fourth
Amendment violation).
¶77 VanBeek's alleged "consent" to Oetzel confiscating her
license does not change that conclusion for two reasons. First,
it confuses the role consent plays in a Fourth Amendment
analysis. A person's consent informs the reasonableness of a
seizure, not whether an officer's conduct constitutes a seizure
in the first place. See United States v. Jordan, 958 F.2d 1085,
1088 (D.C. Cir. 1992) (explaining that whether a seizure
occurred depends only on what the "police conduct reasonably
communicated"). I have uncovered no case supporting the novel
proposition that one can consent to a seizure of her person.
Second, even if one could so consent, the record contains no
support for the conclusion that VanBeek unequivocally consented
to Oetzel's taking her license back to his squad car for the
purpose of running a records check. See State v. Reed, 2018
6
No. 2019AP447-CR.rfd
WI 109, ¶¶8, 57, 384 Wis. 2d 469, 920 N.W.2d 56 (holding that,
in the context of a Fourth Amendment search, consent "must be
unequivocal and specific").
¶78 Instead, the record is, at best, ambiguous as to
whether VanBeek agreed to Oetzel's taking her license back to
his squad car. Oetzel did not testify on that point and the
circuit court made no factual findings regarding what VanBeek
said to Oetzel or whether she consented to Oetzel taking her
license back to his car. That leaves Oetzel's body-camera
footage. The video strongly suggests that when Oetzel took
VanBeek's license and told her that he would "be right back," he
was telling VanBeek what he was going to do, not asking for her
permission to do it. Oetzel neither informed VanBeek of the
specific reason why he was taking her license nor awaited her
response before walking away. Moreover, VanBeek's response is
unclear. Although VanBeek's passenger responded to Oetzel's
statement by saying "alright," VanBeek's response is muddled and
lost under her passenger's voice. While one might infer that
she did not say "no," such an inference falls short of the
unequivocal, affirmative statement the law requires. See United
States v. Carter, 378 F.3d 584, 588 (6th Cir. 2004) ("Even a
spoken assent to search may be too ambiguous to establish
consent in certain circumstances."); cf. Reed, 384
Wis. 2d 469, ¶57 (explaining that "mere acquiescence" is
7
No. 2019AP447-CR.rfd
insufficient to constitute consent (quoted source omitted)).6
The record evidence therefore belies any consent justification
(if one were even possible) for her being seized.
¶79 VanBeek was thus seized when Oetzel took her license
back to his squad car. That seizure continued when Oetzel
returned to VanBeek's truck yet retained her license and
repetitively questioned her until a drug-sniffing dog arrived.
Accordingly, any evidence obtained as a result of Oetzel's
unlawful seizure of VanBeek must be suppressed. For these
reasons, I concur.
¶80 I am authorized to state that Justices ANN WALSH
BRADLEY and JILL J. KAROFSKY join this concurrence.
Even assuming the passenger's "alright" constitutes
6
consent regarding his license, he has neither actual nor
apparent "common authority" to consent on VanBeek's behalf. Cf.
State v. Wantland, 2014 WI 58, ¶23, 355 Wis. 2d 135, 848
N.W.2d 810; see also United States v. Woodrum, 208 F.3d 8, 12
(1st Cir. 2000) (order denying rehearing en banc) (Lynch, J.,
dissenting) ("[S]imply, and obviously, a person cannot give
third-party consent to the . . . seizure of another person.").
8
No. 2019AP447-CR.akz
¶81 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). While
I agree with the majority/lead opinion's1 conclusion that VanBeek
was not seized when Officer Oetzel took her driver's license to
his squad car and ran a warrant check, see majority/lead op.,
¶45, I write separately because VanBeek was not seized when
Officer Oetzel returned to VanBeek's vehicle and continued
asking her follow-up questions. When looking at the totality of
the circumstances, it is clear that VanBeek was free to ask for
her driver's license back and end the interaction.
Consequently, her encounter with Officer Oetzel was consensual,
and she was not seized. Accordingly, I respectfully dissent.
I. ANALYSIS
¶82 For purposes of the Fourth Amendment, there are two
types of seizures. The first type is a "physical force"
seizure. See United States v. Mendenhall, 446 U.S. 544, 552
(1980). The second type is a "show of authority" seizure. Id.Under either type of seizure, a seizure occurs "[o]nly when the
officer . . . has in some way restrained the liberty of a
citizen." Id.
1Justice Roggensack's opinion was joined in part by
Justices Ann Walsh Bradley, Dallet, and Karofsky. Specifically,
those justices joined Justice Roggensack's opinion "with respect
to ¶¶22-35 and ¶¶46-65." Concurrence, ¶67 n.1. Thus, for the
sake of clarity, I refer to Justice Roggensack's opinion as the
"majority/lead" opinion throughout this dissent because the
opinion in its entirety is not joined by a majority of the
court. The opinion is a "majority" with respect to ¶¶22-35 and
¶¶46-65. All other paragraphs represent the rationale of
Justice Roggensack and thus constitute a lead opinion.
1
No. 2019AP447-CR.akz
¶83 While an officer cannot unreasonably seize a person,
this does not mean that police are prohibited from interacting
with members of the public. Police and members of the public
regularly engage in "consensual encounters," which do not
implicate the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1,
19 n.16 (1968); see also State v. Griffiths, 2000 WI 72, ¶39,
236 Wis. 2d 48, 613 N.W.2d 72. As the United States Supreme
Court has explained, an encounter between police and an
individual "will not trigger Fourth Amendment scrutiny unless it
loses its consensual nature." Florida v. Bostick, 501 U.S. 429,
434 (1991). Under this framework, we have held that certain
encounters between police and individuals are consensual,
including the police approaching individuals, asking them
questions, requesting their identification, and asking for
consent to search. Griffiths, 236 Wis. 2d 48, ¶39 (citing
Bostick, 501 U.S. at 434-35). These interactions are
permissible under the Fourth Amendment "as long as the police do
not convey a message that compliance with their requests is
required." Bostick, 501 U.S. at 434-35.
¶84 Although "consensual encounters" are not subject to
Fourth Amendment scrutiny, an officer cannot temporarily detain
a person for investigative purposes without implicating the
Fourth Amendment because such a detention is a seizure. Terry,
392 U.S. at 30. Such temporary, investigative detentions are
referred to as Terry stops. See, e.g., State v. Blatterman,
2015 WI 46, ¶24, 362 Wis. 2d 138, 864 N.W.2d 26. For a Terry
stop to pass Fourth Amendment scrutiny, the officer must have
2
No. 2019AP447-CR.akz
"reasonable suspicion that a crime has been committed, is being
committed, or is about to be committed." State v. Young, 2006
WI 98, ¶20, 294 Wis. 2d 1, 717 N.W.2d 729; see also Wis. Stat.
§ 968.24.
¶85 To determine whether an encounter between police
officers and an individual was either a consensual encounter or
a seizure, we "must consider all the circumstances surrounding
the encounter to determine whether the police conduct would have
communicated to a reasonable person that the person was not free
to decline the officers' requests or otherwise terminate the
encounter." Bostick, 501 U.S. at 439. Phrased differently, we
must determine, under the totality of the circumstances, whether
"a reasonable person would feel free 'to disregard the police
and go about his business.'" Id. at 434 (quoting California v.
Hodari D., 499 U.S. 621, 628 (1991)).2 "The test is objective
and considers whether an innocent reasonable person, rather than
the specific defendant" would have felt free to terminate the
encounter and go about their business. County of Grant v. Vogt,
2014 WI 76, ¶30, 356 Wis. 2d 343, 850 N.W.2d 253. Even if an
innocent reasonable person would have felt free to terminate the
encounter and go about their business, "but the person at issue
nonetheless remain[s] in police presence, perhaps because of a
2 As part of the totality of the circumstances, as explained
in the majority/lead opinion's answer to the certified question
in this case, "an officer's retention of an individual's
driver's license is a significant but not the dispositive fact."
Majority/lead op., ¶36.
3
No. 2019AP447-CR.akz
desire to be cooperative, there is no seizure." Young, 294
Wis. 2d 1, ¶37.
¶86 Applying this test to the facts of VanBeek's case, as
capably set forth in the majority/lead opinion, it is clear that
VanBeek was not seized when Officer Oetzel either went back to
his squad car or when Officer Oetzel returned to VanBeek's
vehicle and retained her identification.3
¶87 I agree with the majority/lead opinion's statement
"that [Officer] Oetzel taking VanBeek's license back to his
squad car did not amount to a seizure." Majority/lead op., ¶44.
Such a conclusion is consistent with the longstanding Fourth
Amendment principles that I just explained. The concurrence
suggests that there is "no case supporting the novel proposition
that one can consent to a seizure of her person." Concurrence,
¶77. However, an individual affirmatively approving an
officer's retention of a driver's license indicates that the
encounter has not lost its consensual nature. Bostick, 501 U.S.
at 434. Such affirmative approval——commonly referred to as
consent——is a strong indicator under the totality of the
circumstances that the encounter has retained its consensual
nature. See Mendenhall, 445 U.S. at 558. Thus, as the
majority/lead opinion aptly described, "A reasonable person in
VanBeek concedes that her encounter with Officer Oetzel
3
was consensual when Officer Oetzel first approached her vehicle
and when she handed Officer Oetzel her license. The dispute
arises only with regard to whether the encounter remained
consensual after Officer Oetzel returned to his squad car with
VanBeek's identification.
4
No. 2019AP447-CR.akz
VanBeek's position would have understood that [VanBeek's and her
passenger's] 'alright' responses permitted [Officer] Oetzel to
retain her driver's license." Majority/lead op., ¶45.
¶88 Moreover, even without her license, VanBeek could
still "disregard the police and go about [her] business." As
she explained to Officer Oetzel when he first approached, she
and her passenger were sitting in the vehicle for some period of
time. As such, VanBeek's "business"——that she must have felt
free to return to——was sitting in her vehicle with her
passenger. Officer Oetzel returning to his squad car with
VanBeek's driver's license in no way impeded upon VanBeek's
business of sitting in her vehicle. Furthermore, VanBeek never
signaled that she wanted to leave, which would indicate that her
business was leaving the area. Her affirmative approval to
Officer Oetzel returning to his squad car with her
identification strongly suggests that her business was sitting
in her vehicle, not leaving the area. Accordingly, VanBeek was
not seized when Officer Oetzel returned to his squad car with
VanBeek's driver's license.4
The concurrence wrongly concludes to the contrary,
4
believing that Officer Oetzel walking away with VanBeek's
driver's license automatically transformed the consensual
encounter into a seizure. Concurrence, ¶76. Such a conclusion
effectively asks for a bright-line rule that whenever an officer
walks away with an individual's driver's license, the individual
is automatically seized. As is routinely stated, "[t]he Supreme
Court has eschewed bright-line rules [in Fourth Amendment
inquiries], instead emphasizing the fact-specific nature of the
reasonableness inquiry." State v. Malone, 2004 WI 108, ¶17, 274
Wis. 2d 540, 683 N.W.2d 1 (quoting Ohio v. Robinette, 519
U.S. 33, 39 (1996)); see generally State v. Coffee, 2020 WI 53,
¶¶37-42, 391 Wis. 2d 831, 943 N.W.2d 845 (explaining why bright-
(continued)
5
No. 2019AP447-CR.akz
¶89 Having concluded that VanBeek was not seized when
Officer Oetzel returned to his squad car, I now address the
point at which I diverge from the majority/lead opinion——when
Officer Oetzel returned to VanBeek's vehicle. The majority/lead
opinion concludes that "VanBeek was seized during the second
round of repetitive questions while Oetzel retained her driver's
license." Majority/lead op., ¶50. I disagree because there are
no facts in the record that demonstrate that the otherwise
consensual encounter between Officer Oetzel and VanBeek
transformed into an impermissible seizure.
¶90 An officer can ask questions and retain identification
of an individual without that encounter transforming into a
seizure. See Griffiths, 236 Wis. 2d 48, ¶39 (citing Bostick,
501 U.S. at 434-35). This includes if the officer asks follow-
up questions. See I.N.S. v. Delgado, 466 U.S. 210, 216 (1984).
As the United States Supreme Court has explained, "[u]nless the
circumstances of the encounter are so intimidating as to
demonstrate that a reasonable person would have believed he was
not free to leave if he had not responded, one cannot say that
the questioning resulted in a detention under the Fourth
line rules are disfavored). Instead of a bright-line rule, as
the concurrence essentially suggests, the proper inquiry is
whether, under the totality of the circumstances, a reasonable
person would have felt free to terminate the encounter and go
about their business. See Florida v. Bostick, 501 U.S. 429, 439
(1991).
6
No. 2019AP447-CR.akz
Amendment." Id.5 Only "if the person[] refuses to answer and
the police take additional steps . . . to obtain an answer, then
the Fourth Amendment imposes some minimal level of objective
justification to validate the detention or seizure." Id. at
216-17. Accordingly, either the circumstances must be so
intimidating that the questioning would cause a reasonable
person to believe that she was not free to leave if she had not
responded, or the police must take additional steps to obtain an
answer after a refusal to answer for the interaction to
transform from a consensual encounter into a Fourth Amendment
seizure. We have neither in this case.
¶91 Here, the only circumstances that the majority/lead
opinion points to are that Officer Oetzel retained VanBeek's
driver's license and continued to ask repetitive questions.
Majority/lead op., ¶50. However, repeated questioning is
permissible under the Fourth Amendment so long as the
circumstances are not "so intimidating as to demonstrate that a
reasonable person would have believed he was not free to leave
if he had not responded." Delgado, 466 U.S. at 216. Thus,
Officer Oetzel's retention of the driver's license must have
been "so intimidating" that a reasonable person in VanBeek's
position would not have felt free to terminate the encounter and
go about her business. But a reasonable person is willing to
5 The formulation of the reasonable person test evolved to
its current form after I.N.S. v. Delgado, 446 U.S. 210(1984): Whether an innocent, reasonable person would have felt
free to terminate the encounter and go about their business.
See Bostick, 501 U.S. at 439.
7
No. 2019AP447-CR.akz
ask for the return of their identification. See, e.g., United
States v. Weaver, 282 F.3d 302, 312 (4th Cir. 2002) (holding
that the defendant was free to request his license be returned
to him so that he could end the encounter). VanBeek could have
requested that Officer Oetzel return her identification, and she
could have gone about her business. Id. However, she chose not
to. Instead, she "nonetheless remain[ed] in police presence,
perhaps because of a desire to be cooperative." Young, 294
Wis. 2d 1, ¶37. Accordingly, Officer Oetzel's retention of
VanBeek's identification was not "so intimidating" that VanBeek
could not have requested the return of her identification and
terminated the encounter.
¶92 Moreover, the majority/lead opinion relies heavily on
the fact VanBeek would not have been able to terminate the
encounter and leave the scene because she needed her license to
lawfully operate her vehicle. Majority/lead op., ¶45. However,
this reliance is misplaced. The test for a seizure is not
whether a person would feel free to leave the scene; rather, the
proper inquiry is whether a person would feel free to terminate
the encounter and go about their business. See Bostick, 501
U.S. at 439. As I explained above, VanBeek's "business" when
Officer Oetzel arrived was sitting in her vehicle with her
passenger. Although she expressed an interest in leaving the
scene, this was not her "business." Consequently, Officer
Oetzel's retention of her driver's license in no way impeded her
ability to go about the business of sitting in her vehicle with
her passenger.
8
No. 2019AP447-CR.akz
¶93 Accordingly, based on the totality of the
circumstances, VanBeek was not seized when Officer Oetzel
returned to her vehicle, asked follow-up questions, and retained
her identification. Officer Oetzel's questioning and retention
of VanBeek's identification was not sufficiently intimidating to
render mandatory compliance and transform the encounter into a
seizure. VanBeek could have asked for the return of her
identification, but she never did, "perhaps because of a desire
to be cooperative." Young, 294 Wis. 2d 1, ¶37. Moreover,
VanBeek did not need her license to go about her business——
namely, sitting in her vehicle with her passenger.
¶94 Because VanBeek was not seized, the circuit court did
not err when it denied VanBeek's motion to suppress.
II. CONCLUSION
¶95 While I agree with the majority/lead opinion's
conclusion that VanBeek was not seized when Officer Oetzel took
her driver's license to his squad car and ran a warrant check,
see majority/lead op., ¶45, I write separately because VanBeek
was not seized when Officer Oetzel returned to VanBeek's vehicle
and continued asking her follow-up questions. When looking at
the totality of the circumstances, it is clear that VanBeek was
free to ask for her driver's license back and end the
interaction. Consequently, her encounter with Officer Oetzel
was consensual, and she was not seized.
¶96 Accordingly, I respectfully dissent.
¶97 I am authorized to state that Justices REBECCA GRASSL
BRADLEY and BRIAN K. HAGEDORN join this dissent.
9
No. 2019AP447-CR.akz
1