July 28, 2014 – The Wisconsin Supreme Court has reversed on what constitutes “seizure” under the Fourth Amendment, considering for the first time whether a person is “seized” when a law enforcement officer knocks on the window of a person’s vehicle.
In County of Grant v. Vogt, 2014 WI 76, (July 18, 2014), the court addressed the issue of whether a law enforcement officer “seized” a defendant by knocking on his car window and asking him to roll the window down. The court found there was not a level of intimidation or exercise of authority sufficient to implicate the Fourth Amendment.
As a result, the supreme court (5-2) reversed the lower court of appeals, which had ruled in favor of Daniel Vogt, who was drunk in his vehicle while it was parked.
Early on Christmas morning in 2011, a sheriff’s deputy was on patrol in the Village of Cassville. He saw a vehicle pull into a parking lot next to a closed park and boat landing. The deputy testified that he thought the driver’s conduct was suspicious.
He pulled into the lot behind the vehicle in his marked squad car. The squad car’s headlights were on but the red and blue emergency lights were not. The other car, which had Vogt in the driver’s seat and Kimberly Russell in the passenger’s seat, was also running and had its lights on.
Deborah Spanic, Marquette 2004, is a guest writer for the State Bar of Wisconsin. She can be reached by email.
The deputy walked up to Vogt’s window, knocked on it and motioned Vogt to roll down the window. When Vogt rolled down the window, the deputy asked him what he was doing. Vogt said he was trying to figure out his radio. The deputy testified that Vogt’s speech was slurred and he could smell alcohol inside the car. He asked Vogt to step out of the car for a field sobriety test, during which Vogt showed signs of intoxication.
The deputy then arrested Vogt. At the county jail, further testing showed Vogt had a prohibited alcohol concentration more than twice the legal limit.
Vogt was cited for operating a motor vehicle while under the influence of an intoxicant and a prohibited alcohol concentration. Vogt filed a plea of not guilty, and moved to suppress all evidence obtained during his detention and arrest on the grounds that the deputy did not have reasonable suspicion to conduct a traffic stop.
The circuit court denied Vogt’s motion, relying on the seizure analysis articulated in United States v. Mendenhall, and determined that the deputy’s conduct did not constitute a seizure. Vogt appealed, and the court of appeals reversed the circuit court. Grant County then petitioned the Supreme Court of Wisconsin for review.
The Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures. The Wisconsin Constitution contains the same language and has historically been interpreted identically to the protections under the Fourth Amendment as defined by the U.S. Supreme Court.
Under Fourth Amendment jurisprudence, a seizure occurs “only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” As stated in Mendenhall, “a person has been ‘seized’… only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”
In writing the majority opinion, Justice David Prosser notes, “[t]here 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.”
The objective test for seizure states that without 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.
Some examples of circumstances that might suggest a seizure include: “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.”
However, as Justice Prosser noted, “The seizure test is necessarily objective, but it is complicated by the tendency of people to defer to a symbol of authority no matter how it is manifested.” That is why in most cases it’s important for courts to distinguish between a person’s individual predisposition and an officer’s objective conduct.
In this case, the issue was whether there was seizure at any time before Vogt rolled down his window. In claiming a seizure took place, Vogt highlighted several facts: 1) the deputy parked behind Vogt’s vehicle; 2) the location of Vogt’s vehicle in the parking lot was not conducive to simply driving away; 3) the deputy commanded Vogt to roll down the window; and 4) the deputy knocked loudly on the window.
The majority found that even taken together, these facts did not demonstrate that Vogt was seized. The majority noted that the circuit court, in reviewing the evidence and testimony presented, determined that there was an avenue by which Vogt could have actually left the parking lot, and that there was no evidence that the deputy commanded Mr. Vogt to roll down his window by tapping on the window and motioning to roll it down.
And while a knock on the window might sound loud to an unsuspecting vehicle occupant, that alone does not mean the occupant has been seized, the majority explained. In the end, the majority found that the deputy did what any traffic officer might have done – investigate an unusual situation in a reasonable manner.
The majority therefore held 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 a reasonable belief that the person is not free to leave.
Concurrence and Dissent
Justice Annette Ziegler drafted a concurrence, which was joined by Justices Patience Roggensack and Michael Gableman. They joined the majority opinion went 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.”
Chief Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley. They argued that the officer’s conduct constituted a seizure under the state and federal constitutions.