County of Grant v. Daniel A. Vogt , 356 Wis. 2d 343 ( 2014 )

2014 WI 76
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP1812
COMPLETE TITLE: County of Grant,
Plaintiff-Respondent-Petitioner,
v.
Daniel A. Vogt,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
346 Wis. 2d 551,830 N.W.2d 723
(Ct. App. 2013 – Unpublished)
OPINION FILED: July 18, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 9, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Grant
JUDGE: Robert VanDeHey
JUSTICES:
CONCURRED: ZIEGLER, ROGGENSACK, GABLEMAN, JJJ., concur.
(Opinion filed.)
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there was a brief
by Anthony J. Pozorski Sr., assistant district attorney, and
Grant County, and oral argument by Anthony J. Pozorski Sr.
For the defendant-appellant, there was a brief by Jeffery
J. Scott, and Block, Scott & Heenan, LLC, Platteville, and oral
argument by Jeffery J. Scott.
2014 WI 76
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1812
(L.C. No. 2012TR459 & 2012TR460)
STATE OF WISCONSIN : IN SUPREME COURT
County of Grant,
Plaintiff-Respondent-Petitioner,
FILED
v.
JUL 18, 2014
Daniel A. Vogt,
Diane M. Fremgen
Defendant-Appellant. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals,1 reversing a
decision of the Grant County Circuit Court, which found the
defendant guilty of operating a vehicle while intoxicated.
¶2 The case affords this court an opportunity to develop
the law on "seizure" under the Fourth Amendment. The issue
presented is whether, under the totality of the circumstances, a
law enforcement officer "seized" the defendant, Daniel Vogt
1
Cnty. of Grant v. Vogt, No. 2012AP1812, unpublished slip
op. (Wis. Ct. App. Mar. 14, 2013).
No. 2012AP1812
(Vogt), when he knocked on the driver's window of Vogt's vehicle
and asked Vogt to roll down the window. When Vogt complied, the
officer immediately smelled alcohol in the vehicle and noticed
Vogt's slurred speech, leading to an investigation and Vogt's
ultimate arrest. In these circumstances, did the officer
"seize" Vogt before the officer had probable cause or reasonable
suspicion to believe that Vogt committed an offense?
¶3 Although we acknowledge that this is a close case, we
conclude that a law enforcement officer's knock on a car window
does not by itself constitute a show of authority sufficient to
give rise to the belief in a reasonable person that the person
is not free to leave. The objective of law enforcement is to
protect and serve the community. Accordingly, an officer's
interactions with people are not automatically adversarial. A
court's "seizure" inquiry into one of these interactions must
examine the totality of the circumstances, seeking to identify
the line between an officer's reasonable attempt to have a
consensual conversation and a more consequential attempt to
detain an individual. The facts in this case do not show a
level of intimidation or exercise of authority sufficient to
implicate the Fourth Amendment until after Vogt rolled down his
window and exposed the grounds for a seizure. Consequently, we
reverse.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶4 In the early morning of December 25, 2011, Deputy
Matthew Small (Deputy Small) of the Grant County Sheriff's
Department was on patrol duty in the Village of Cassville. The
2
No. 2012AP1812
village is located on the Mississippi River, southwest of
Lancaster, the Grant County seat. In 2010 Cassville had a
population of 947. Around 1 a.m., Deputy Small observed a
vehicle on Prime Street turn west and pull into the parking lot
next to a closed park and boat landing on the Mississippi. He
did not observe any traffic violations but thought the driver's
conduct was suspicious.
¶5 Riverside Park closed at 11 p.m., but the adjacent
parking lot remained open. Deputy Small said, however, that
because of the time of year (Christmas), and because the park
was closed and there were no boats at the landing, he thought it
was odd for someone to be there.2
¶6 His curiosity piqued, Deputy Small pulled into the
parking lot and parked his marked squad car behind Vogt's
vehicle a little off to the driver's side. The squad car's
headlights were on, but its red and blue emergency lights were
not. Vogt's car was running and had its lights on as well.
Deputy Small said at the suppression hearing that he was not
2
The circuit court opined that it was reasonable for Deputy
Small to ask Vogt what he was doing. During the hearing on
Vogt's motion to suppress, the court commented, "I mean on one
hand, what the officer did seems perfectly reasonable. You
know, 2:00 in the morning, nobody's going to be launching a boat
on Christmas Day." At trial, the court reiterated the
reasonableness of Deputy Small's conduct when it noted that
"there is really not anything unreasonable with approaching a
vehicle at bar time and finding out why they're parked
at . . . a boat landing that apparently was not closed, but the
park next to it was closed."
3
No. 2012AP1812
blocking the car and that the driver could have left, although
Daniel Vogt later disagreed.
¶7 Deputy Small got out of his squad car and walked up to
Vogt's window. He was in full uniform and had a pistol in his
side holster. There were two people in the vehicle: Vogt in the
driver's seat and Kimberly Russell (Russell) in the passenger's
seat. Deputy Small testified at the trial that he rapped on the
window but could not recall if the knock was hard or soft.3 He
also said that he motioned for Vogt to roll down the window and
that if Vogt had ignored him and driven away, Deputy Small would
have let him go because he "had nothing to stop him for."
¶8 When Vogt rolled down the window, Deputy Small asked
him what he was doing, and Vogt said that he was trying to
figure out his radio. Deputy Small said that Vogt's speech was
slurred and that he could smell intoxicants coming from inside
the vehicle. Deputy Small asked Vogt for his driver's license
and went back to his squad car. He turned on the red and blue
emergency lights and moved the squad car back and a little to
the left so that he could videotape the interaction. Deputy
Small asked Vogt to step out of the vehicle for a field sobriety
test, during which Vogt showed signs of intoxication. Deputy
Small then placed Vogt under arrest and transported him to the
Grant County Jail in Lancaster where Vogt submitted to an
evidentiary chemical test of his breath. The test indicated
3
Previously, at a suppression hearing, Deputy Small said he
could not remember whether the window was up or down but said
that he "may have knocked on the window."
4
No. 2012AP1812
that Vogt had a prohibited alcohol concentration (PAC) of .19——
more than twice the legal limit. See Wis. Stat.
§ 340.01(46m)(a) (2011-12).4
¶9 Vogt was cited for operating a motor vehicle while
under the influence of an intoxicant (OWI) and PAC contrary to
Wis. Stat. § 346.63(1)(a).5 Because this was his first violation
of § 346.63(1)(a), it was a civil violation. See Wis. Stat.
§ 346.65(2)(am). Vogt filed a plea of not guilty on January 5,
2012. On February 29, 2012, he moved to suppress all evidence
obtained during his allegedly unlawful detention and arrest on
grounds that Deputy Small did not have reasonable suspicion to
conduct a traffic stop. The Grant County Circuit Court, Robert
P. VanDeHey, Judge, held a motion hearing on March 30, 2012,
during which Deputy Small was the only witness to testify.
¶10 The circuit court denied the motion to suppress in a
written order on April 23, 2012. Judge VanDeHey relied on the
seizure analysis articulated in United States v. Mendenhall, 446
U.S. 544, 554 (1980), and determined that Deputy Small's conduct
did not constitute a seizure. The circuit court noted:
Deputy Small did not draw his gun. His emergency
lights were not in operation. There is no showing
that he raised his voice. There is some evidence that
he impeded the operation of the defendant's automobile
4
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
5
Although the PAC citation lists only Wis. Stat.
§ 346.63(1)(a) as the violated statute, the statute that
specifically prohibits driving with a prohibited alcohol
concentration is Wis. Stat. § 346.63(1)(b).
5
No. 2012AP1812
in that he initially parked somewhat to the side and
behind the vehicle and then had to re-position his
vehicle to conduct field sobriety tests. There is no
evidence that Deputy Small "commanded" Mr. Vogt to
roll down his window by tapping on the window and
motioning that he roll down his window.
Although the circuit court believed it was a close case, the
court denied the motion to suppress.
¶11 A trial to the court took place on July 5, 2012.
Vogt's passenger, Russell, testified that Deputy Small's rap on
the window was "hard" and that he said, "Give me your driver's
license." According to Russell, Deputy Small's voice "was
forceful," and he did not say "please" or "thank you." Russell
also described the parking lot. To the right of the vehicle
were a lit pop machine and the park. As Deputy Small said, the
squad car was behind Vogt's vehicle, a little closer to the
driver's side. The Mississippi River was in front of Vogt's
vehicle. Wisconsin Power & Light Company was on the left,6 and
Deputy Small was standing on the left side of Vogt's vehicle.
Russell thought that Vogt could not have ignored Deputy Small
and could not have left because there was nowhere for him to go.
¶12 Vogt testified that Deputy Small "rapped on the window
very loud" with his knuckles and told Vogt to open the window
without saying "please" or "would you." Vogt said that Deputy
Small's voice was commanding and that he did not think he had
any alternative to rolling down the window. Vogt said that he
6
Vogt admitted on cross-examination that Wisconsin Power &
Light Company was far enough away that it would not have
prevented him from turning left.
6
No. 2012AP1812
could not have pulled forward and turned around, could not have
turned left without hitting Deputy Small, could not have turned
right without hitting the pop machine, and could not have backed
up because of the squad car. On cross-examination, Vogt
admitted that the boat landing was roughly 40 yards wide and
that the Mississippi River could have been 50 feet in front of
him. In the past, ice had washed up onto the parking lot, but
Vogt did not know how far it had washed up on December 25, 2011,
if at all. Vogt agreed that he had had too much to drink and
should not have been driving.
¶13 At the end of the trial, Vogt renewed his motion to
suppress. In making its decision, the circuit court noted that
there was a question as to whether Deputy Small verbally
commanded Vogt to roll down the window. The court said:
There is additional evidence today that was not
brought forth at the motion hearing, particularly that
the officer rapped loudly on the window and supposedly
commanded Mr. Vogt to roll down the window. That's
different than the officer's testimony who indicated
that he just wanted to see what was going on. He was
suspicious. Had Mr. Vogt decided to drive away, he
would have let him.
The officer also testified that he did not block
the vehicle in, that the vehicle could have gotten
around him. So there are a few factual distinctions
as far as the testimony. It's not a very bright line,
and I don't know how a driver knows the difference
between a command and a suggestion, particularly when
we're talking about a physical movement, the knocking
on the window.
To the extent that Mr. Vogt and Ms. Russell's
testimony differs from the officer's, the resolution
probably is somewhere in between, that the officer
wasn't as aggressive as the occupants of the vehicle
7
No. 2012AP1812
thought, and maybe he wasn't quite as subtle as he
thought he was being. But the basic facts are that
there was [a] vehicle running at night at bar time.
The officer knocked on the window, rapped on the
window. There is a dispute as to whether there was
actually a verbal command after that. I don't know
that that's the case. Given that the vehicle was
running and the time of night and the officer's
initial testimony that he probably just knocked on the
window, that that seems to be the——well, at least the
consistent testimony.
Vogt's attorney interrupted to remind the court that at the
motion hearing, Deputy Small could not remember how he
approached Vogt. The court responded:
Yeah, and it was quoted in the decision, but I——his
testimony today was that it——if Mr. Vogt drove away,
he wasn't going to stop him. He had no reason to do
it, which would indicate that he wasn't commanding him
to do anything, is that he was simply trying to make
contact.
¶14 The circuit court found Vogt guilty of the OWI
violation and dismissed the PAC count. The court ordered a
forfeiture of $899, revoked Vogt's license for seven months,
ordered alcohol assessment and a driver safety plan, and entered
an order for a mandatory ignition interlock for one year. All
penalties were stayed pending appeal. The judgment of
conviction was filed on August 3, 2012, and Vogt filed a notice
of appeal on August 13, 2012.
¶15 In an unpublished decision, the court of appeals
reversed the circuit court. Cnty. of Grant v. Vogt, No.
2012AP1812, unpublished slip op. (Wis. Ct. App. Mar. 14, 2013).
The court of appeals determined that "when a uniformed officer
approaches a vehicle at night and directs the driver to roll
8
No. 2012AP1812
down his or her window, a reasonable driver would not feel free
to ignore the officer." Id., ¶13. The court of appeals assumed
that Deputy Small "directed Vogt to roll down his window, rather
than asking him if he would do so." Id. Based on this
assumption, the court of appeals concluded that a reasonable
driver would not have felt free to leave, and therefore, Deputy
Small seized Vogt without reasonable suspicion. Id., ¶¶13-14.
¶16 The County of Grant petitioned this court for review,
which we granted on October 15, 2013.
II. STANDARD OF REVIEW
¶17 Whether someone has been seized presents a two-part
standard of review. State v. Williams, 2002 WI 94, ¶17, 255
Wis. 2d 1, 646 N.W.2d 834. This court will uphold the circuit
court's findings of fact unless they are clearly erroneous, but
the application of constitutional principles to those facts
presents a question of law subject to de novo review. Id. The
same standard of review applies to a motion to suppress. See
State v. Hess, 2010 WI 82, ¶19, 327 Wis. 2d 524, 785 N.W.2d 568.
III. DISCUSSION
¶18 Under the Fourth Amendment of the United States
Constitution, "The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . ." U.S.
Const. amend. IV.7 The Wisconsin Constitution contains the same
7
The Fourth Amendment to the United States Constitution
reads in full:
9
No. 2012AP1812
language,8 and "[w]e have historically interpreted the Wisconsin
Constitution's protections in this area identically to the
protections under the Fourth Amendment as defined by the United
States Supreme Court."9 State v. Dearborn, 2010 WI 84, ¶14, 327
Wis. 2d 252, 786 N.W.2d 97 (footnote omitted) (citation
omitted).
¶19 The law on searches and the law on seizures present
separate lines of analysis. With respect to the latter, the
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
U.S. Const. amend. IV.
8
The Wisconsin Constitution reads:
The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures shall not be
violated; and no warrant shall issue but upon probable
cause, supported by oath or affirmation, and
particularly describing the place to be searched and
the persons or things to be seized.
Wis. Const. art. I, § 11.
9
While this court generally interprets the Wisconsin
Constitution to give the same protections as the Fourth
Amendment of the United States Constitution, we have determined
that the Wisconsin Constitution offers more protection than the
Fourth Amendment under the good faith exception, which does not
apply in this case. See State v. Eason, 2001 WI 98, ¶60, 245
Wis. 2d 206, 629 N.W.2d 625. Because we interpret the Wisconsin
Constitution to be coterminous with the United States
Constitution in this area, the analysis in this opinion applies
to both constitutions.
10
No. 2012AP1812
Fourth Amendment and Article I, Section 11 of the Wisconsin
Constitution are not implicated until a government agent
"seizes" a person. State v. Young, 2006 WI 98, ¶23, 294
Wis. 2d 1, 717 N.W.2d 729. The reason is that not all personal
interactions between law enforcement officers and people
constitute a seizure. Mendenhall, 446 U.S. at 552; Young, 294
Wis. 2d 1, ¶18 ("[N]ot all police-citizen contacts constitute a
seizure . . . .").
¶20 A seizure occurs "[o]nly when the officer, by means of
physical force or show of authority, has in some way restrained
the liberty of a citizen." Mendenhall, 446 U.S. at 552 (quoting
Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). As Justice Stewart
stated in Mendenhall, "a person has been 'seized' within the
meaning of the Fourth Amendment only if, in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave." Id. at 554
(footnote omitted).
¶21 When Mendenhall was written, Justice Stewart's lead
opinion was joined by only Justice Rehnquist. Justice Powell
authored a concurrence, joined by Chief Justice Burger and
Justice Blackmun, in which he observed that "I do not
necessarily disagree with" Justice Stewart's standard, but "the
question whether the respondent . . . reasonably could have
thought she was free to 'walk away' when asked by two Government
agents for her driver's license and ticket is extremely close."
Id. at 560 n.1 (Powell, J., concurring).
11
No. 2012AP1812
¶22 The Court's tentative acceptance of Justice Stewart's
standard has since been bolstered and confirmed. INS v.
Delgado, 466 U.S. 210, 215-17 (1984); Florida v. Royer, 460 U.S.
491, 497, 502-04 (1983) (plurality opinion); see also Kaupp v.
Texas, 538 U.S. 626, 629-30 (2003); Florida v. Bostick, 501 U.S.
429, 434-35 (1991); California v. Hodari D., 499 U.S. 621, 627-
28 (1991); Michigan v. Chesternut, 486 U.S. 567, 573 (1988);
Delgado, 466 U.S. at 228 (Brennan, J., concurring in part,
dissenting in part) (citations omitted) ("A majority of the
Court has since adopted [the Mendenhall] formula as the
appropriate standard for determining when inquiries made by the
police cross the boundary separating merely consensual
encounters from forcible stops to investigate a suspected
crime.").
¶23 After articulating the test for determining when a
seizure takes place, Justice Stewart went on to list some
examples of circumstances that might suggest a seizure: "the
threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person of
the citizen, or the use of language or tone of voice indicating
that compliance with the officer's request might be compelled."
Mendenhall, 446 U.S. at 554 (citations omitted); see Kaupp, 538
U.S. at 630. Justice Stewart stated that without similar
evidence that would lead a reasonable person to believe that he
or she was not free to leave, an interaction with law
enforcement is not a seizure as a matter of law. Mendenhall,
446 U.S. at 555 (stating that "inoffensive contact between a
12
No. 2012AP1812
member of the public and the police cannot, as a matter of law,
amount to a seizure of that person").
¶24 The Supreme Court provided further guidance in
Delgado, when it stated that "police 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." Delgado, 466 U.S. at 216 (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 231-34 (1973)). The Court then
adopted the Mendenhall standard and stated that there is no
seizure "[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." Id.
¶25 The rule that a seizure occurs only when law
enforcement restrains a person's liberty by show of authority
advances the goals of the Fourth Amendment:
The purpose of the Fourth Amendment is not to
eliminate all contact between the police and the
citizenry, but "to prevent arbitrary and oppressive
interference by enforcement officials with the privacy
and personal security of individuals." United States
v. Martinez-Fuerte, 428 U.S. 543, 554 [(1976)]. As
long as the person to whom questions are put remains
free to disregard the questions and walk away, there
has been no intrusion upon that person's liberty or
privacy as would under the Constitution require some
particularized and objective justification.
Mendenhall, 446 U.S. at 553-54. To facilitate these goals, the
test is objective and "calls for consistent application from one
police encounter to the next, regardless of the particular
13
No. 2012AP1812
individual's response to the actions of the police."
Chesternut, 486 U.S. at 574.
¶26 To sum up, there are countless interactions or
encounters among police and members of the community. Not all
encounters are seizures, and these non-seizure encounters are
not governed by the Fourth Amendment. Other interactions or
encounters are seizures and are subject to Fourth Amendment
criteria. Fourth Amendment jurisprudence focuses on the line
between seizures and mere encounters as well as the
reasonableness of the police/citizen interactions that do
constitute seizures.
¶27 There are two kinds of permissible seizures. Young,
294 Wis. 2d 1, ¶20. A Terry stop is an investigatory stop for
which a law enforcement officer must have reasonable suspicion
"in light of his experience that criminal activity may be
afoot."10 Terry, 392 U.S. at 30; see Young, 294 Wis. 2d 1, ¶20;
State v. Waldner, 206 Wis. 2d 51, 57, 556 N.W.2d 681 (1996). An
10
The standards for a Terry stop are codified in the
Wisconsin Statutes:
After having identified himself or herself as a
law enforcement officer, a law enforcement officer may
stop a person in a public place for a reasonable
period of time when the officer reasonably suspects
that such person is committing, is about to commit or
has committed a crime, and may demand the name and
address of the person and an explanation of the
person’s conduct. Such detention and temporary
questioning shall be conducted in the vicinity where
the person was stopped.
Wis. Stat. § 968.24.
14
No. 2012AP1812
officer has reasonable suspicion when he "possesses specific and
articulable facts which would warrant a reasonable belief that
criminal activity was afoot." Waldner, 206 Wis. 2d at 55
(citing State v. Chambers, 55 Wis. 2d 289, 294, 198 N.W.2d 377
(1972)).
¶28 The second kind of permissible seizure is an arrest,
which normally involves "a trip to the station house and
prosecution for crime." Young, 294 Wis. 2d 1, ¶22 (quoting
Terry, 392 U.S. at 16). To make an arrest, a law enforcement
officer must have probable cause to believe that the person
arrested has committed a crime. Id. That is, the officer must
"have sufficient knowledge at the time of the arrest to 'lead a
reasonable police officer to believe that the defendant probably
committed or was committing a crime.'" Id. (quoting State v.
Secrist, 224 Wis. 2d 201, 212, 589 N.W.2d 387 (1999)).
¶29 In the present case, neither type of permissible
seizure came into play until Vogt opened the window and Deputy
Small detected signs of intoxication. Deputy Small may have had
a savvy hunch that the driver of the Vogt vehicle had been
drinking. But a savvy hunch is not equivalent to the reasonable
suspicion that would have justified a Terry-type temporary
detention. Because Deputy Small did not have reasonable
suspicion to believe Vogt was operating while intoxicated until
after Vogt opened his window, we must determine whether Vogt was
seized before his window was rolled down.
A. Wisconsin Seizure Law
15
No. 2012AP1812
¶30 This court has adopted the Mendenhall test for
determining whether a seizure took place, and it is the proper
test for this case. Id., ¶37 ("Mendenhall is the appropriate
test for situations where the question is whether a person
submitted to a police show of authority because, under all the
circumstances surrounding the incident, a reasonable person
would not have felt free to leave."). The test is objective and
considers whether an innocent reasonable person, rather than the
specific defendant, would feel free to leave under the
circumstances. See Williams, 255 Wis. 2d 1, ¶23.
¶31 The seizure test is necessarily objective,11 but it is
complicated by the tendency of people to defer to a symbol of
authority no matter how it is manifested. A badge might imbue
an officer's request with intimidation in the mind of some
persons, but the law must be more discerning. In most cases it
is important for courts conducting a Fourth Amendment seizure
analysis to distinguish between a person's individual
predisposition, which might lead the person to consent to an
11
The test must be objective because "any test intended to
determine what street encounters are not seizures must be
expressed in terms that can be understood and applied by the
officer. Asking him to determine whether the suspect feels free
to leave, however 'would require a prescience neither the police
nor anyone else possesses.'" 4 Wayne R. LaFave, Search and
Seizure § 9.4(a), at 568 (5th ed. 2012) (quoting United States
v. Hall, 421 F.2d 540 (2d Cir. 1969)).
16
No. 2012AP1812
officer's inquiry, and an officer's objective conduct.12 To
their credit, citizens and others may feel tethered by social
norms to an officer's request and may consent in order to avoid
the taboo of disrespecting an officer of the law. However, a
person's consent is no less valid simply because an individual
is particularly susceptible to social or ethical pressures.13
Were it otherwise, officers would be hesitant to approach anyone
for fear that the individual would feel "seized" and that any
question asked, however innocuous, would lead to a violation of
the Fourth Amendment. Thus, when determining whether an
individual was seized, we must replace the individual with the
12
See INS v. Delgado, 466 U.S. 210, 228 (1984) (Brennan,
J., concurring in part, dissenting in part) (stating that the
seizure analysis "properly looks not to the subjective
impressions of the person questioned but rather to the objective
characteristics of the encounter which may suggest whether or
not a reasonable person would believe that he remained free
during the course of the questioning to disregard the questions
and walk away") (citing 3 W. LaFave, Search and Seizure § 9.2,
at 52 (1978)).
13
4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 581
(5th ed. 2012) (footnote omitted) (suggesting that law
enforcement "should be allowed 'to seek cooperation, even where
this may involve inconvenience or embarrassment for the citizen,
and even though many citizens will defer to this authority of
the police because they believe——in some vague way——that they
should.'") (quoting Model Code of Pre-Arraignment Procedure 258
(1975)).
17
No. 2012AP1812
paradigmatic reasonable person and focus on the officer's
conduct under the totality of the circumstances.14
¶32 Although we have established the proper standards for
seizure cases, this court has not yet considered whether a
person is necessarily seized within the meaning of the Fourth
Amendment when a law enforcement officer knocks on the window of
the person's vehicle. However, we have expressed reluctance to
determine that pulling up behind a car and "present[ing] indicia
of police authority" automatically constitutes a seizure.
Young, 294 Wis. 2d 1, ¶¶65, 69 ("[N]ot every display of police
authority rises to a 'show of authority' that constitutes a
seizure."). In Young, the officer stopped his squad car in the
middle of the street behind the defendant's car, which was
parked on the side of the street. Id., ¶10. The officer shined
his spotlight on the defendant's vehicle and turned on his
emergency flashers, but he did not activate his red and blue
emergency lights. Id. This court was reluctant to label the
officer's conduct a "seizure," in part because he did not stop
14
To some extent, the "reasonable person" here is a legal
fiction. That defendants often consent to searches of areas
that reveal incriminating evidence demonstrates that people
often do not feel free to decline an officer's request, even
absent a manifest show of authority. However, the reasonable
person standard is necessary if the inquiry is to remain
objective. The value of objective standards in this area cannot
be gainsaid because the alternative is to equate the innocuous
to the arbitrary and substantially limit the role of law
enforcement in the community.
18
No. 2012AP1812
the defendant's car (it was parked already),15 and the officer
did not use his red and blue emergency lights. Id., ¶¶66, 68-
69. We did not have to decide in Young whether the officer's
conduct was a seizure, but the case demonstrates that not all
manifestations of authority will result in a seizure.
B. Decisions from Other Jurisdictions
¶33 Several jurisdictions outside Wisconsin have
determined that knocking on a vehicle's window does not
necessarily constitute a seizure.16 We discuss some of these
factually similar cases below.
15
In contrast, we determined that an impermissible seizure
occurred when officers stopped a moving vehicle without
reasonable suspicion by blocking its path with an unmarked squad
car. State v. Harris, 206 Wis. 2d 243, 247, 258-59, 263, 557
N.W.2d 245 (1996).
16
See, e.g., United States v. Barry, 394 F.3d 1070 (8th
Cir. 2005) (no seizure when officer got out of his squad car,
shined a flashlight on his uniform and kept a hand on his gun as
he approached the defendant and knocked on the defendant's
vehicle window three separate times until defendant opened the
window); Ex parte Betterton, 527 So. 2d 747, 748-50 (Ala. 1988)
(determining that it was not a seizure when an officer
approached a parked car and knocked on the driver's window);
State v. Cerrillo, 93 P.3d 960 (Wash. Ct. App. 2004) (officer
knocking on vehicle window to wake up sleeping occupants and
requesting driver's license was not a seizure); Custer v. State,
135 P.3d 620, 625-26 (Wyo. 2006) (no seizure when officer
knocked on vehicle window twice to get defendant's attention).
But see State v. Patterson, 868 A.2d 188, 192-93 (Me. 2005)
(concluding that officer's knock on a car window and an order to
roll down the window constituted a seizure, although a mere
request might have led to a different result); Williams v. State
Dep't of Safety, 854 S.W.2d 102 (Tenn. Ct. App. 1992)
(determining that an officer's knock on a car window violated
the Fourth Amendment because there was no reasonable suspicion).
19
No. 2012AP1812
¶34 In State v. Randle, 276 P.3d 732 (Idaho Ct. App.
2012), an officer saw the defendant's "vehicle alone in a
parking lot with its front-end abutting a grassy knoll." Id. at
733. The officer parked about two car lengths behind the
defendant, left the headlights of his squad car on, and knocked
on the defendant's window. Id. The defendant opened the door,
and the officer noticed two open beer cans in the cup holder.
Id. The officer smelled alcohol on the defendant's breath and
decided to conduct a field sobriety test, which the defendant
failed. Id. at 734. In considering the defendant's motion to
suppress the evidence of intoxication, the circuit court
determined that even though he could not pull forward, the
defendant could have backed up and driven away and was not
seized. Id. at 737. The court of appeals agreed, stating:
After this review of the totality of the
circumstances surrounding the encounter between Randle
and the officer, we conclude that, when the officer
parked behind Randle's vehicle, left the patrol car's
headlights on, approached Randle's vehicle and knocked
on the window, such conduct would not have
communicated to a reasonable person that he or she was
not at liberty to ignore the officer's presence and go
about his or her business.
Both cited cases that have determined that the
circumstances surrounding an officer's knock on a vehicle window
constituted a seizure are readily distinguishable. In
Patterson, the court determined that the officer commanded the
driver to roll down the window instead of merely making a
request. Patterson, 868 A.2d at 192-93. The court in Williams
did not conduct a seizure analysis and instead ended the inquiry
when it determined that the officers did not have a reasonable
suspicion to knock on the vehicle window. Williams, 854 S.W.2d
at 105-07. Therefore, neither case provides persuasive guidance
for this court.
20
No. 2012AP1812
Id. at 738.
¶35 In State v. Steffes, 791 N.W.2d 633 (N.D. 2010), an
officer responded to a tip that a man who appeared intoxicated
was entering a vehicle in the parking lot of a bar. Id. at 634.
The officer arrived and parked far enough from Steffes' vehicle
so that Steffes could leave the parking spot if he wanted. Id.
Steffes was sitting in the driver's seat holding a cell phone,
and the radio was playing loudly. Id. at 635. The officer
"tapped on the driver's side window and with his finger motioned
downward indicating he wanted Steffes to lower the window." Id.
Steffes looked at the officer but did not respond, so the
officer knocked again. Id. At that point, Steffes opened the
door slightly and began to talk with the officer. Id.
¶36 While the two were talking, another officer arrived.
Id. When the first officer asked Steffes for his driver's
license, Steffes said that he did not have it with him and gave
a fake name and birthdate. Id. Steffes was charged with
providing false information to a law enforcement officer and
moved to suppress on grounds that he was unlawfully seized. Id.
The district court denied the motion and entered judgment on
Steffes' conditional guilty plea. Id. On appeal, Steffes
argued that the officer's second knock, oral request, and hand
gesture constituted a seizure. Id. at 636. The Supreme Court
of North Dakota noted that the officer did not turn on the red
and blue emergency lights, did not block Steffes' car, and did
not display authority. Id. Therefore, Steffes was not seized.
Id. at 637.
21
No. 2012AP1812
¶37 In State v. Bryant, 161 S.W.3d 758 (Tex. App. 2005),
around 2:00 a.m., an officer noticed the defendant's car turn
into a shopping center in which the businesses were closed. Id.
at 760, 762. The officer pulled into the parking lot, got out
of his patrol car, and knocked on the defendant's window. Id.
When the defendant opened his car door, the officer smelled
alcohol and arrested the defendant for driving while
intoxicated. Id. The circuit court suppressed the evidence of
intoxication because the defendant did not violate any traffic
laws, and the officer did not have reasonable suspicion to
approach the defendant's car and knock on the window. Id. at
761. The court of appeals reversed, determining that the
officer "was not required to have reasonable suspicion that [the
defendant] was engaged in criminal activity to approach [the
defendant's] car and knock on his window." Id. at 762. Thus,
the interaction "did not become an investigative detention until
after [the defendant] opened his car door." Id.
¶38 These cases demonstrate that when an officer parks
near a person's vehicle, gets out, and knocks on the person's
window, the officer has not necessarily displayed sufficient
authority to cause a reasonable person to feel that he or she
22
No. 2012AP1812
was not free to leave.17 While a person is not automatically
seized by a knock on the window, or even a supplementary
request, the seizure inquiry looks at the totality of the
circumstances to determine whether the officer has effected a
detention. Thus, we turn to the facts of the case before us to
determine whether Vogt was unlawfully seized.
C. The Interaction Between Vogt and Deputy Small
¶39 Vogt's argument focuses mainly on Deputy Small's
conduct before Vogt opened the window. Once the window was open
and Deputy Small smelled intoxicants and detected Vogt's slurred
speech, Deputy Small had reasonable suspicion that Vogt was
operating his vehicle while intoxicated. Before that point, the
parties agree that Deputy Small did not have reasonable
suspicion to stop Vogt. Thus, the question for this court is
whether Deputy Small seized Vogt at any time before Vogt rolled
down his window. We conclude that he did not.
¶40 Vogt suggests that the seizure occurred when Deputy
Small knocked on the window and "commanded" Vogt to roll down
the window. Vogt admits that Deputy Small did not seize him by
17
See 4 Wayne R. LaFave, Search and Seizure § 9.4(a), at
574-77 (5th ed. 2012) (footnotes omitted) ("[I]f an officer
merely walks up to a person standing or sitting in a public
place (or, indeed, who is seated in a vehicle located in a
public place) and puts a question to him, this alone does not
constitute a seizure."). In addition, "The officer may tap on
the window and perhaps even open the door if the occupant is
asleep. A request that the suspect open the door or roll down
the window would seem equally permissible, but the same would
not be true of an order that he do so." Id., § 9.4(a), at 594-
95 (footnotes omitted).
23
No. 2012AP1812
following him into the parking lot. He admits that Deputy Small
did not seize him by getting out of his squad car and would not
have seized him by walking around Vogt's car and looking through
the windows. However, Vogt takes issue with the location of
Deputy Small's car and his conduct at Vogt's window. In
claiming that a seizure took place, Vogt highlights several
alleged facts: (1) Deputy Small parked right behind Vogt's
vehicle; (2) "the location of Mr. Vogt's vehicle in the parking
lot was not conducive to simply driving away"; (3) Deputy Small
commanded Vogt to roll down the window; and (4) Deputy Small
rapped loudly on the window.
¶41 Even taken together, these facts do not demonstrate
that Vogt was seized. Although Deputy Small parked directly
behind Vogt and allegedly there were obstacles on three sides of
Vogt's vehicle, these facts do not demonstrate that Vogt was
seized because he still could have driven away. The circuit
court did not explicitly find that Vogt had room to leave the
parking lot, but "if a circuit court fails to make a finding
that exists in the record, an appellate court can assume that
the circuit court determined the fact in a manner that supports
the circuit court's ultimate decision." State v. Martwick, 2000
WI 5, ¶31, 231 Wis. 2d 801, 604 N.W.2d 552 (citing Sohns v.
Jensen, 11 Wis. 2d 449, 453, 105 N.W.2d 818 (1960)). The
appellate court is entrusted to make that assumption "only when
evidence exists in the record to support the 'assumed fact.'"
Id., ¶74 (Abrahamson, C.J., dissenting). The record supports
the assumption that Vogt had room to leave.
24
No. 2012AP1812
¶42 Although Deputy Small pulled up behind Vogt's vehicle,
there was testimony at trial that Vogt might have had 50 feet in
front of him in which he could have pulled forward and turned
around. In addition, the video from the camera in Deputy
Small's squad car shows ample room for the car to move forward.
There was some discussion about ice washing up onto the lot in
the past; however, there is no ice visible on the video and no
evidence that there actually was ice on December 25, 2011.
Thus, we assume that because the circuit court determined that a
reasonable person in Vogt's circumstances would have felt free
to leave, there was an avenue by which Vogt could have actually
left. Like the defendant in Randle who was not seized simply
because the grassy knoll limited his exit options, Randle, 276
P.3d at 733, 738, Vogt was not seized simply because there was
only one way out of the parking lot.
¶43 Vogt's assertion that he was seized because of Deputy
Small's "command" to roll down the window also is unpersuasive.
The circuit court found in its decision on the motion to
suppress that "[t]here is no evidence that Deputy Small
'commanded' Mr. Vogt to roll down his window by tapping on the
window and motioning that he roll down his window." At trial,
the court found that Deputy Small's testimony "would indicate
that he wasn't commanding [Vogt] to do anything, . . . that he
was simply trying to make contact." Even though the circuit
court noted that Deputy Small maybe "wasn't quite as subtle as
he thought he was being," the court still determined that Deputy
Small's conduct was not so intimidating as to constitute a
25
No. 2012AP1812
seizure. Thus, Vogt's arguments that he was seized due to a
"command" from Deputy Small are unavailing.18
¶44 Vogt also emphasizes the loudness of the knock in
arguing that he was seized. Although the seizure analysis
considers the totality of the circumstances, the volume of the
knock generally will not play a significant roll in the
analysis. We live in a time of distraction where earbuds
connected to smartphones or other music devices are commonplace.
Vehicles may be outfitted with sophisticated stereo systems. It
might be necessary for an officer to motion or to knock in order
to attract the attention of a person with whom he would like to
speak if the person is willing. To prescribe the types of
permissible attention-getting gestures or the allowable volume
of a knock would be an unrealistic venture. A knock might sound
loud to an unsuspecting vehicle occupant, but that alone does
not mean the occupant has been seized.
¶45 Vogt also implies that the fact that he was in a
vehicle affects the analysis because if he had left, he might
have been charged with obstruction. Vogt's argument implicitly
18
The court of appeals decided to assume that Deputy Small
"commanded" Vogt to roll down the window. Cnty. of Grant v.
Vogt, No. 2012AP1812, unpublished slip op., ¶13 (Wis. Ct. App.
Mar. 14, 2013). After noting that there was a discrepancy
between Deputy Small's and Vogt's testimony, the court of
appeals said that "those distinctions are not determinative in
this case because without clarification, we must assume that the
officer directed Vogt to roll down his window, rather than
asking him if he would do so." Id. Because the circuit court
made findings that Deputy Small did not command Vogt and
determined Vogt was not seized, the court of appeals' assumption
was not correct.
26
No. 2012AP1812
suggests that Wis. Stat. § 346.04,19 which prohibits a driver
from ignoring a signal from a traffic officer, limited Vogt's
ability to drive away. At oral argument, the County of Grant
pointed out that Wis. Stat. § 346.04 is inapplicable because it
applies only to highways. We agree.
¶46 Wisconsin Stat. § 346.02(1) is clear: "This chapter
applies exclusively upon highways except as otherwise expressly
provided in this chapter." The term, "highways," does not
include public parking lots. 65 Wis. Op. Att'y Gen. 45 (1976)
(OAG 45-47). A 1957 legislative committee note to Wis. Stat.
19
Wisconsin Stat. § 346.04 provides:
(1) No person shall fail or refuse to comply
with any lawful order, signal or direction of a
traffic officer.
(2) No operator of a vehicle shall disobey the
instructions of any official traffic sign or signal
unless otherwise directed by a traffic officer.
(2t) No operator of a vehicle, after having
received a visible or audible signal to stop his or
her vehicle from a traffic officer or marked police
vehicle, shall knowingly resist the traffic officer by
failing to stop his or her vehicle as promptly as
safety reasonably permits.
(3) No operator of a vehicle, after having
received a visual or audible signal from a traffic
officer, or marked police vehicle, shall knowingly
flee or attempt to elude any traffic officer by
willful or wanton disregard of such signal so as to
interfere with or endanger the operation of the police
vehicle, or the traffic officer or other vehicles or
pedestrians, nor shall the operator increase the speed
of the operator's vehicle or extinguish the lights of
the vehicle in an attempt to elude or flee.
27
No. 2012AP1812
§ 346.61 is "highly persuasive evidence of legislative intent
that public parking lots are not highways for the purpose of
enforcement of ch. 346, Stats., generally." Id. at 46.
¶47 The exceptions alluded to in the phrase "except as
otherwise expressly provided in this chapter" are the exceptions
found in Wis. Stat. § 346.61, namely, §§ 346.62 to 346.64
(reckless driving and drunken driving). These exceptions apply
beyond the limitation of "highways" and thus may be applied in
public parking lots. However, these exceptions do not include
Wis. Stat. § 346.04, which applies "exclusively upon highways."
Thus, Vogt could have driven out of the parking lot without
violating § 346.04.
¶48 If Deputy Small had pursued Vogt and ordered him to
stop once he left the parking lot, Vogt could have pulled over
to comply. But stopping a moving vehicle is indisputably a
seizure, State v. Harris, 206 Wis. 2d 243, 557 N.W.2d 245
(1996), and requires Fourth Amendment analysis.
¶49 In any event, Vogt cannot speculate about what might
have happened if he had tried to leave. See Delgado, 466 U.S.
at 220-21 (stating that defendants "may only litigate what
happened to them"). In short, § 346.04 does not support Vogt's
argument. We need not decide whether § 346.04 would affect the
seizure analysis if Deputy Small had encountered Vogt on a
highway. However, § 346.04 does not apply to the facts as we
know them.
¶50 To support his arguments, Vogt cites an unpublished
court of appeals decision involving an interaction between a
28
No. 2012AP1812
person in a vehicle and two police officers. See City of
Kenosha v. Tower, No. 2009AP1957, unpublished slip op. (Wis. Ct.
App. Oct. 6, 2010). In Tower, two bike patrol officers
approached the defendant's van, which was stopped with the
engine running on the side of the street where there was a "no
parking" sign. Id., ¶2. Immediately after making contact with
the defendant, the officers ordered her to "put the vehicle in
'park.'" Id. The officers noticed signs of intoxication, and
eventually, because the defendant refused to provide a breath
sample, her license was revoked. Id., ¶¶2-4. On appeal, the
city appeared to acknowledge that a seizure occurred and focused
on whether there was reasonable suspicion. Id., ¶¶7, 11
("Because the City argues this was a valid Terry stop, on appeal
we need only address whether the facts known to the officers,
considered together as a totality of the circumstances, provided
them the requisite reasonable suspicion to justify stopping
Tower."). Thus, Tower does not support Vogt's argument because
the question in that case was whether there was reasonable
suspicion, not whether the defendant was seized.
¶51 Ultimately, what Deputy Small did in this case is what
any traffic officer might have done: investigate an unusual
situation. As the circuit court noted, "what the officer did
seems perfectly reasonable." Deputy Small was acting as a
conscientious officer. He saw what he thought was suspicious
behavior and decided to take a closer look. Even though Vogt's
conduct may not have been sufficiently suspect to raise
reasonable suspicion that a crime was afoot, it was reasonable
29
No. 2012AP1812
for Deputy Small to try to learn more about the situation by
engaging Vogt in a consensual conversation.20
¶52 The Fourth Amendment's prerequisites for a seizure are
intended to safeguard the privacy of all persons; thus, a mere
hunch is not enough to condone a seizure. See Terry, 392 U.S.
at 27. Yet, while the law applicable to the facts of this case
does not condone a seizure, it does not forestall an officer's
reasonable attempt at further inquiry. In similar
circumstances, a person has the choice to refuse an officer's
attempt to converse and thereby retain his privacy, or respond
by talking to the officer and aiding the officer in his duty to
protect the public. A dutiful officer does not make a mistake
by presenting a person with that choice. Only when the officer
forecloses the choice by the way in which he exercises his
authority——absent reasonable suspicion or probable cause——does
he violate the Fourth Amendment.
¶53 Although it may have been Vogt's social instinct to
open his window in response to Deputy Small's knock, a
reasonable person in Vogt's situation would have felt free to
leave. As several jurisdictions have recognized, a law
enforcement officer's knock on a vehicle window does not
automatically constitute a seizure. The circumstances attendant
to the knock in the present case are not so intimidating as to
20
See Barry, 394 F.3d at 1075 (citation omitted) (stating
that the officer "probably would have been remiss had he ignored
the vehicle parked in an alley behind closed stores at 11:18
p.m.").
30
No. 2012AP1812
transform the knock into a seizure. None of the examples
outlined by Justice Stewart as demonstrating a seizure are
present in this case. See Mendenhall, 446 U.S. at 554-55. Vogt
was not subject to the threatening presence of multiple
officers. Deputy Small did not brandish any weapon. There is
no evidence that Deputy Small touched Vogt, and as discussed
above, Deputy Small did not speak in a way that would suggest
Vogt was compelled to roll down the window. While the facts of
Justice Stewart's examples need not be present for there to be a
seizure, the facts in this case are not sufficient to
demonstrate that a reasonable person would not feel free to
leave. Therefore, under the totality of the circumstances, Vogt
was not seized.
IV. CONCLUSION
¶54 Although we acknowledge that this is a close case, we
conclude that a law enforcement officer's knock on a car window
does not by itself constitute a show of authority sufficient to
give rise to the belief in a reasonable person that the person
is not free to leave. The objective of law enforcement is to
protect and serve the community. Accordingly, an officer's
interactions with people are not automatically adversarial. A
court's "seizure" inquiry into one of these interactions must
examine the totality of the circumstances, seeking to identify
the line between an officer's reasonable attempt to have a
consensual conversation and a more consequential attempt to
detain an individual. The facts in this case do not show a
level of intimidation or exercise of authority sufficient to
31
No. 2012AP1812
implicate the Fourth Amendment until after Vogt rolled down his
window and exposed the grounds for a seizure. Consequently, we
reverse.
By the Court.—The decision of the court of appeals is
reversed.
32
No. 2012AP1812.akz
¶55 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the majority opinion, but concur and go further to conclude that
even if a seizure were to have occurred, the officer was acting
as a community caretaker at the time of the seizure.
¶56 "Officers may exercise two types of functions: law
enforcement functions and community caretaker functions." State
v. Pinkard, 2010 WI 81, ¶18, 327 Wis. 2d 346, 785 N.W.2d 592
(citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). Officers
acting in their community caretaker capacity "may be
constitutionally permitted to perform warrantless searches and
seizures." Id., ¶14 (citing Cady, 413 U.S. at 448; State v.
Ziedonis, 2005 WI App 249, ¶14, 287 Wis. 2d 831, 707
N.W.2d 565). The exception exists, in part, because "'[a]n
officer less willing to discharge community caretaking functions
implicates seriously undesirable consequences for society at
large.'" Id., ¶33 (quoting State v. Horngren, 2000 WI App 177,
¶18, 238 Wis. 2d 347, 617 N.W.2d 508).
¶57 An officer is engaged in a "bona fide community
caretaker function" only if that officer has "an objectively
reasonable basis" to conclude "that a motorist may have been in
need of assistance" at the time of the stop. State v. Kramer,
2009 WI 14, ¶¶36-37, 315 Wis. 2d 414, 759 N.W.2d 598. Further,
the exception to the warrant requirement is satisfied only if
"the officer's exercise of a bona fide community caretaker
function was reasonable." Id., ¶40 (citing State v. Kelsey
C.R., 2001 WI 54, ¶35, 243 Wis. 2d 422, 626 N.W.2d 777). This
1
No. 2012AP1812.akz
requires courts to "balanc[e] a public interest or need that is
furthered by the officer's conduct against the degree of and
nature of the restriction upon the liberty interest of the
citizen." Id. In balancing these interests, courts consider
the following factors:
(1) the degree of the public interest and the exigency
of the situation; (2) the attendant circumstances
surrounding the seizure, including time, location, the
degree of overt authority and force displayed; (3)
whether an automobile is involved; and (4) the
availability, feasibility and effectiveness of
alternatives to the type of intrusion actually
accomplished.
Id., ¶41.
¶58 With respect to the first factor, "the public has a
substantial interest in ensuring that police assist motorists
who may be stranded . . . ." Kramer, 315 Wis. 2d 414, ¶42.
Police assistance to motorists is "'not only authorized, but
constitute[s] an important duty of law enforcement officers.'"
Id. (quoting State v. Goebel, 103 Wis. 2d 203, 208, 307
N.W.2d 915 (1981)). Thus, the first factor weighs in favor of
the reasonableness of Officer Small's exercise of the community
caretaker function.
¶59 With respect to the second factor, Officer Small was
checking on the occupants of a vehicle parked at the top of a
boat ramp in a closed park at approximately 1:00 on Christmas
2
No. 2012AP1812.akz
morning.1 The presence of the vehicle in a closed park, at that
hour, and at that time of the year, was unusual at a minimum.
Under the totality of the circumstances, it was objectively
reasonable for Officer Small to conclude that the occupants of
the vehicle might be in need of assistance.2 Further, as the
majority opinion properly notes, Officer Small used a minimum of
overt authority and force in contacting the driver of the
vehicle. Majority op., ¶¶40-44. The second factor thus weighs
in favor of the reasonableness of Officer Small's conduct.
¶60 The third factor also militates in favor of finding
that Officer Small acted reasonably, as the case at issue
involves an automobile. See Kramer, 315 Wis. 2d 414, ¶44. As
this court has stated, "a citizen has a lesser expectation of
privacy in an automobile," and so the privacy interest at issue
weighs less heavily against the officer. Ziedonis, 287
Wis. 2d 831, ¶31.
¶61 Finally, in considering the fourth factor, Officer
Small had no other reasonable alternatives for discharging his
1
As a practical matter, Vogt's presence in the parking lot
after the park had closed was quite possibly illegal. Vogt
concedes that the park was closed, and that a posted sign
indicated that it was illegal to enter the park after closing.
Grant County Ordinances § 200-2 gives a broad definition of
"park" that would seem to encompass the parking lot.
2
While Officer Small testified that he thought the vehicle
was "suspicious," we have held that when "'an objectively
reasonable basis for the community caretaker function is shown,
that determination is not negated by the officer's subjective
law enforcement concerns.'" State v. Pinkard, 2010 WI 81, ¶31
n.11, 327 Wis. 2d 346, 785 N.W.2d 592 (quoting State v. Kramer,
2009 WI 14, ¶30, 315 Wis. 2d 414, 759 N.W.2d 598).
3
No. 2012AP1812.akz
community caretaker function. See Kramer, 315 Wis. 2d 414, ¶45.
Officer Small had to contact the driver of the vehicle in order
to determine whether he was in need of assistance. As
discussed, the manner of that contact was reasonable. The
fourth factor thus weighs in Officer Small's favor as well.
Thus, I conclude that Officer Small's conduct in the case at
issue was a reasonable exercise of his community caretaker
function.
¶62 Indeed, not only was Officer Small's checking on the
occupants of the vehicle objectively reasonable, we also expect
our officers to react to such situations in this way and not sit
idly by with the hope that the occupants will be safe.
¶63 The facts in the case at issue are essentially
identical to those in Kramer. Officer Small did not act in an
overbearing or excessively intrusive manner. His behavior was
constitutionally permissible. Officer Small simply walked up to
the driver's side window of the vehicle to initiate contact with
the driver. Under the circumstances presented, his action was
"the only reasonable approach that [the officer] could take in
performing this community caretaker function." Kramer, 315
Wis. 2d 414, ¶44. As a result, I conclude that Officer Small's
conduct was justified under the community caretaker exception.
¶64 For the foregoing reasons, I concur.
¶65 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and MICHAEL J. GABLEMAN join this concurrence.
4
No. 2012AP1812.ssa
¶66 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I would
affirm the decision of the court of appeals holding that the
officer's conduct in the instant case constituted a seizure of
the defendant within the meaning of the federal and state
constitutions.
¶67 No one disputes that the legal standard to be applied
to determine whether a seizure occurred in the instant case is
as follows: "[A] seizure occurs if 'in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.'"1
¶68 The dispute is about the application of the legal
standard to the totality of the circumstances of the instant
case.2
1
Brendlin v. California, 551 U.S. 249, 255 (2007) (quoting
United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
See also majority op., ¶30; State v. Williams, 2002 WI 94,
¶23, 255 Wis. 2d 1, 646 N.W.2d 834.
2
The totality of the circumstances is important. A small
variation in the circumstances often determines the outcome.
See Wayne R. LaFave, 4 Search & Seizure: A Treatise on the
Fourth Amendment § 9.4(a), at 594-95 (5th ed. 2013):
[T]he mere approach and questioning of [persons seated
in parked vehicles] does not constitute a seizure.
The result is not otherwise when the officer utilizes
some generally accepted means of gaining the attention
of the vehicle occupant or encouraging him to
eliminate any barrier to conversation. The officer
may tap on the window and perhaps even open the door
if the occupant is asleep. A request that the suspect
open the door or roll down the window would seem
equally permissible, but the same would not be true of
1
No. 2012AP1812.ssa
¶69 Here are the circumstances: It was late at night; the
parking lot was empty; Deputy Small was in full uniform with his
pistol fully visible; the deputy parked his squad car with
headlights on right behind the defendant's vehicle; the location
of the defendant's vehicle in the parking lot was not conducive
to simply driving away; Deputy Small rapped loudly on the
window; Deputy Small signaled the defendant to roll down the
window.
¶70 Courts across the country have divided when confronted
with facts substantially similar to the ones in the instant
case.3 Why? Because courts engage in a fiction in determining
whether the mythical reasonable person in the position of the
defendant would have believed that he or she was not free to
leave.4
¶71 Studies demonstrate that the reasonable person "free
to leave" standard applied in judicial decisions does not
generally reflect what real, everyday people think and how they
an order that he do so (footnotes omitted, emphasis
added).
3
See several cases described in majority op., ¶¶33-38.
4
See majority op., ¶31 n.14.
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No. 2012AP1812.ssa
act when approached by law enforcement officers.5 In short, the
world of legal decisions does not reflect the real world. As
Professor LaFave has written, the United States Supreme Court
finds "a perceived freedom [to leave] in circumstances when only
the most thick-skinned of suspects would think such a choice was
open to them."6
¶72 When I look to the totality of the circumstances in
the instant case, I conclude that, under the circumstances, a
reasonable person would not have felt free to leave. A
reasonable person would have had three options: (1) to drive
away; (2) to stay put with the window closed; or (3) to comply
with the officer's directions.
¶73 No reasonable person I can imagine would feel free to
drive away under the circumstances of the present case when the
5
See, e.g., David K. Kessler, Free To Leave: An Empirical
Look at the Fourth Amendment's Seizure Standard, 99 J. Crim. L.
& Criminology 51 (2009) (concluding that the average person does
not feel free to leave simple interactions with police officers,
based on empirical evidence from studying two scenarios in which
the United States Supreme Court has held that a reasonable
person would feel free to leave, on public sidewalks and on
busses); Edwin J. Butterfoss, Bright Line Seizures: The Need for
Clarity in Determining When Fourth Amendment Activity Begins, 79
J. Crim. L. & Criminology 437, 439-42 (1988) (describing the
"free to leave" test as artificial, resulting in outcomes "which
bear little relationship to the individual's actual freedom to
walk away"); Janice Nadler, No Need to Shout: Bus Sweeps and
the Psychology of Coercion, 2002 Sup. Ct. Rev. 153 (2002)
(criticizing broadly the Court's post-Mendenhall jurisprudence
as ignorant of human behavior with respect to authority figures,
creating a set of non-seizures that nonetheless relied upon the
coercive force of law enforcement).
6
Wayne R. LaFave, Pinguitudinous Police, Pachydermatous
Prey: Whence Fourth Amendment "Seizures"?, 1991 U. Ill. L. Rev.
729, 739-40.
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No. 2012AP1812.ssa
officer knocked on the car window and instructed the person to
roll down the car window. A reasonable person would be
concerned that driving away could be viewed as violating some
law that governs obstructing an officer, disobeying an officer,
or fleeing.
¶74 No reasonable person I can imagine would feel free to
simply stay put with the car window closed for substantially the
same reasons that no reasonable person would have just driven
off.
¶75 As the court of appeals wrote, "when a uniformed
officer approaches a vehicle at night and directs the driver to
roll down his or her window, a reasonable driver would not feel
free to ignore the officer." County of Grant v. Vogt, No.
2012AP1812, unpublished slip op. ¶13 (Wis. Ct. App. March 14,
2013).
¶76 Before I conclude, I address the community caretaker
function that the concurrence addresses.
¶77 Exceptions to the warrant requirement are to be
carefully delineated. "The State bears the burden of proving
that the officer's conduct fell within the scope of a reasonable
community caretaker function." State v. Kramer, 2009 WI 14,
¶17, 315 Wis. 2d 414, 759 N.W.2d 598 (citation omitted). The
State in the instant case never met or attempted to meet this
burden.
¶78 The concurring opinion concludes, "Under the totality
of the circumstances, it was objectively reasonable for Officer
Small to conclude that the occupants of the vehicle might be in
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need of assistance." Concurrence, ¶59. But neither the
officer's testimony nor the State's arguments demonstrate that
the officer ever came to that conclusion or that that conclusion
is objectively reasonable on the basis of this record. Overall,
the concurring opinion relies on a wholly speculative premise.
¶79 For the reasons set forth, I dissent.
¶80 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
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