Professional Documents
Culture Documents
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2012AP1812
County of Grant,
Plaintiff-Respondent-Petitioner,
v.
Daniel A. Vogt,
Defendant-Appellant.
NOT PARTICIPATING:
ATTORNEYS:
brief
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.
STATE OF WISCONSIN
IN SUPREME COURT
County of Grant,
Plaintiff-Respondent-Petitioner,
FILED
v.
Daniel A. Vogt,
Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
DAVID
unpublished
T.
decision
PROSSER,
of
the
J.
This
court
of
is
Reversed.
review
appeals,1
of
an
reversing
The issue
enforcement
1
officer
"seized"
the
defendant,
Daniel
Vogt
No.
2012AP1812
arrest.
In
these
circumstances,
did
the
officer
protect
community.
and
serve
the
Accordingly,
an
officer's
line
between
consensual
an
officer's
conversation
detain an individual.
and
reasonable
more
attempt
consequential
to
have
attempt
a
to
Consequently, we
reverse.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
4
Matthew
In
the
Small
early
(Deputy
morning
Small)
of
of
December
the
Grant
25,
2011,
County
Deputy
Sheriff's
The
No.
village
is
located
Lancaster,
the
population
of
on
Grant
947.
the
Mississippi
County
seat.
Around
a.m.,
In
River,
2010
Deputy
2012AP1812
southwest
Cassville
Small
of
had
observed
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
His
lot
curiosity
and
parked
piqued,
his
Deputy
marked
Small
squad
pulled
car
into
behind
the
Vogt's
headlights were on, but its red and blue emergency lights were
not.
No.
2012AP1812
blocking the car and that the driver could have left, although
Daniel Vogt later disagreed.
7
Vogt's window.
side holster.
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
him what he was doing, and Vogt said that he was trying to
figure out his radio.
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
No.
2012AP1812
than
twice
the
legal
limit.
See
Wis.
Stat.
340.01(46m)(a) (2011-12).4
9
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
trial
to
the
court
took
place
on
July
5,
2012.
According
to
Russell,
Deputy
Small's
voice
"was
Russell
very loud" with his knuckles and told Vogt to open the window
without saying "please" or "would you."
Small's voice was commanding and that he did not think he had
any alternative to rolling down the window.
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.
was
question
as
to
whether
Deputy
Small
verbally
No.
2012AP1812
hearing,
approached Vogt.
Deputy
Small
could
not
remember
how
he
The
circuit
court
found
Vogt
guilty
of
the
OWI
were
stayed
pending
appeal.
The
judgment
All
of
In
the
an
unpublished
circuit
decision,
court.
Cnty.
the
of
court
Grant
v.
of
appeals
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
No.
2012AP1812
down his or her window, a reasonable driver would not feel free
to ignore the officer."
Id., 13.
that Deputy Small "directed Vogt to roll down his window, rather
than
asking
him
if
he
would
do
so."
Id.
Based
on
this
Id., 13-14.
standard of review.
application
of
constitutional
principles
to
those
facts
Id.
The
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
houses,
searches
and
papers,
seizures,
and
shall
effects,
not
be
against
unreasonable
violated . . . ."
U.S.
No.
2012AP1812
protections
in
this
area
identically
to
the
786
N.W.2d 97
(footnote
omitted)
(citation
omitted).
19
No.
2012AP1812
are
not
person.
implicated
State
between
constitute a seizure.
v.
until
Young,
2006
government
WI
98,
agent
23,
294
law
enforcement
officers
and
people
As Justice Stewart
surrounding
the
incident,
reasonable
person
Id. at 554
(footnote omitted).
21
When
Mendenhall
concurrence,
Blackmun,
in
joined
which
he
by
Justice Powell
Chief
Justice
observed
that
Burger
"I
do
and
not
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.
22
2012AP1812
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, 62728 (1991); Michigan v. Chesternut, 486 U.S. 567, 573 (1988);
Delgado,
466
dissenting
Court
U.S.
in
has
at
part)
since
228
(Brennan,
(citations
adopted
J.,
concurring
omitted)
[the
("A
Mendenhall]
in
part,
majority
of
the
formula
as
the
cross
encounters
the
from
boundary
forcible
separating
stops
to
merely
investigate
consensual
a
suspected
crime.").
23
seizure
After
takes
articulating
place,
the
Justice
test
for
Stewart
determining
went
on
to
when
list
some
presence
of
several
officers,
the
display
of
at
630.
Justice
Stewart
stated
that
without
similar
she
was
not
free
to
leave,
an
interaction
with
law
Mendenhall,
No.
2012AP1812
The
Supreme
Court
provided
further
guidance
in
While most
so,
and
respond,
do
so
hardly
without
being
eliminates
the
told
they
are
consensual
nature
response."
Bustamonte,
412
adopted the
Mendenhall
seizure
U.S.
"[u]nless
the
218,
231-34
free
(1973)).
not
of
to
the
Schneckloth v.
The
Court
then
of
the
encounter
are
so
The
rule
that
seizure
Id.
occurs
only
when
law
encounter
to
the
next,
13
regardless
of
the
particular
No.
individual's
response
to
the
actions
of
2012AP1812
the
police."
To
sum
up,
there
are
countless
interactions
or
Not all
are
criteria.
between
seizures
seizures
reasonableness
of
and
are
Other interactions or
subject
and
mere
encounters
the
police/citizen
to
as
Fourth
Amendment
well
interactions
as
that
the
do
constitute seizures.
27
Young,
light
afoot."10
of
his
experience
that
criminal
activity
may
be
State v. Waldner, 206 Wis. 2d 51, 57, 556 N.W.2d 681 (1996).
10
The standards
Wisconsin Statutes:
for
Terry
stop
are
codified
in
An
the
No.
2012AP1812
activity
was
afoot."
Waldner,
206
Wis. 2d at
55
normally
prosecution
involves
for
"a
crime."
trip
Young,
to
the
294
station
Wis. 2d 1,
house
22
and
(quoting
Id.
In
the
present
case,
neither
type
of
permissible
seizure came into play until Vogt opened the window and Deputy
Small detected signs of intoxication.
a savvy hunch that the driver of the Vogt vehicle had been
drinking.
suspicion
that
detention.
would
Because
have
Deputy
justified
Small
did
Terry-type
not
have
temporary
reasonable
15
No.
30
This
court
has
adopted
the
2012AP1812
Mendenhall
test
for
for
situations
the
question
is
whether
person
surrounding
the
incident,
reasonable
person
defendant,
circumstances.
31
would
feel
free
to
leave
under
the
officer's
request
with
intimidation
the
mind
of
some
In most cases it
to
distinguish
between
person's
individual
11
No.
officer's
inquiry,
and
an
officer's
objective
2012AP1812
conduct.12
To
However, a
Fourth
Amendment.
Thus,
when
determining
whether
an
12
No.
paradigmatic
reasonable
person
and
focus
on
2012AP1812
the
officer's
this
court
has
not
yet
considered
whether
police
authority"
automatically
constitutes
seizure.
of
street
behind
the
spotlight
on
the
defendant's
defendant's
Id., 10.
vehicle
car,
which
was
turned
on
his
emergency flashers, but he did not activate his red and blue
emergency lights.
Id.
14
No.
2012AP1812
the defendant's car (it was parked already),15 and the officer
did not use his red and blue emergency lights.
69.
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
determined
that
jurisdictions
knocking
on
outside
vehicle's
Wisconsin
window
does
have
not
15
No.
34
2012),
In
an
State
officer
v.
Randle,
saw
the
276
P.3d
defendant's
732
2012AP1812
(Idaho
"vehicle
Ct.
alone
The
officer
parked
about
two
car
App.
lengths
in
Id. at
behind
the
defendant, left the headlights of his squad car on, and knocked
on the defendant's window.
Id.
and the officer noticed two open beer cans in the cup holder.
Id.
Id. at 734.
suppress
the
determined
defendant
seized.
evidence
of
intoxication,
that
even
though
he
could
could
have
backed
up
and
Id. at 737.
not
driven
the
circuit
court
pull
forward,
the
away
and
not
was
No.
2012AP1812
Id. at 738.
35
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.
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
the
looked
at
the
officer
Id.
but
did
not
respond,
so
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
Id.
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.
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.
Id. at 637.
21
No.
37
2012AP1812
Id.
Id.
When the defendant opened his car door, the officer smelled
alcohol
and
intoxicated.
arrested
Id.
the
defendant
for
driving
while
and
the
officer
did
not
have
reasonable
suspicion
The
court
of
appeals
reversed,
determining
to
Id. at
that
the
Id. at 762.
Thus,
These
cases
demonstrate
that
Id.
when
an
officer
parks
the
officer
has
not
necessarily
displayed
sufficient
22
No.
by
request,
knock
the
on
seizure
2012AP1812
window,
inquiry
looks
or
even
at
the
supplementary
totality
of
the
Vogt's
argument
focuses
mainly
on
Deputy
Small's
Deputy
Small
had
reasonable
suspicion
agree
that
Deputy
Small
did
that
Vogt
was
have
reasonable
whether Deputy Small seized Vogt at any time before Vogt rolled
down his window.
40
17
No.
2012AP1812
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.
Deputy
Small's
claiming
that
alleged
facts:
car
a
and
seizure
(1)
his
took
Deputy
conduct
place,
Small
at
Vogt's
Vogt
parked
window.
highlights
right
In
several
behind
Vogt's
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."
WI 5,
Jensen,
Wis. 2d 449,
453,
105
N.W.2d 552
(citing
N.W.2d 818
Sohns v.
(1960)).
The
No.
42
2012AP1812
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.
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
circuit
suppress
court
that
found
"[t]here
in
is
its
no
decision
evidence
on
the
that
motion
Deputy
to
Small
At trial,
conduct
was
not
so
intimidating
25
as
to
constitute
No.
seizure.
2012AP1812
Vogt
that
also
he
emphasizes
was
the
seized.
loudness
Although
of
the
the
knock
seizure
in
analysis
generally
analysis.
We
will
live
in
not
a
play
time
significant
roll
of
distraction
where
in
the
earbuds
It
Vogt
also
implies
that
the
fact
that
he
was
in
No.
2012AP1812
Wisconsin
We agree.
Stat. 346.02(1)
is
clear:
"This
chapter
in
this
chapter."
19
The
term,
"highways,"
does
not
No.
2012AP1812
Id. at 46.
in
Wis.
Stat.
346.61,
namely,
346.62
to
346.64
stop once he left the parking lot, Vogt could have pulled over
to comply.
seizure,
State
v.
Harris,
206
Wis. 2d 243,
557
N.W.2d 245
220-21
(stating
happened to them").
argument.
seizure
that
defendants
"may
only
litigate
what
analysis
highway.
if
Deputy
Small
had
encountered
Vogt
on
know them.
50
No.
person
in
vehicle
and
two
police
officers.
2012AP1812
See
City
of
Oct.
6,
approached
2010).
the
In
Tower,
defendant's
van,
two
bike
which
was
patrol
stopped
officers
with
the
engine running on the side of the street where there was a "no
parking" sign.
Id., 2.
Id.
Id., 2-4.
On appeal, the
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
Tower.").
the
reasonable
suspicion
to
justify
stopping
question
in
that
case
was
whether
there
was
reasonable
traffic
situation.
seems
officer
might
have
done:
investigate
an
unusual
perfectly
reasonable."
conscientious officer.
Deputy
Small
was
acting
as
conduct
suspect
may
not
have
been
sufficiently
to
raise
No.
2012AP1812
attempt
at
further
inquiry.
In
similar
the
choice
by
the
way
in
which
he
exercises
his
his
window
in
response
to
Deputy
Small's
knock,
As
enforcement
several
officer's
jurisdictions
knock
on
have
recognized,
vehicle
window
law
does
not
20
No.
transform
outlined
the
by
knock
Justice
into
not
subject
officers.
seizure.
Stewart
as
None
demonstrating
of
2012AP1812
the
examples
seizure
to
the
threatening
presence
of
are
Vogt
multiple
There is
the
facts
in
this
case
are
not
sufficient
to
protect
community.
and
serve
the
Accordingly,
an
officer's
line
consensual
between
an
officer's
conversation
detain an individual.
and
reasonable
more
attempt
consequential
to
have
attempt
a
to
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
reversed.
32
of
the
court
of
appeals
is
No.
55
2012AP1812.akz
(concurring).
I join
"Officers
may
exercise
two
types
of
functions:
law
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)).
acting
in
their
community
caretaker
capacity
Officers
"may
be
Ziedonis,
2005
N.W.2d 565).
WI
The
App
249,
exception
14,
exists,
287
in
Wis. 2d 831,
part,
because
707
"'[a]n
seriously
undesirable
consequences
for
society
at
An
officer
is
engaged
in
"bona
fide
community
State v. Kramer,
Further,
officer's
exercise
of
bona
Id.,
fide
community
40 (citing
caretaker
State v. Kelsey
C.R., 2001 WI 54, 35, 243 Wis. 2d 422, 626 N.W.2d 777).
1
This
No.
2012AP1812.akz
of
the
citizen."
Id.
restriction
upon
the
liberty
interest
of
the
may
be
stranded . . . ."
Kramer,
315
Wis. 2d 414,
42.
(quoting
State
v.
Goebel,
103
Wis. 2d 203,
208,
307
No.
morning.1
2012AP1812.akz
the
totality
of
the
circumstances,
it
was
objectively
Further, as the
authority
vehicle.
and
force
in
contacting
the
driver
of
the
Officer
Small
acted
involves an automobile.
reasonably,
as
the
case
at
issue
As
less
heavily
against
the
officer.
Ziedonis,
287
Finally,
in
considering
the
fourth
factor,
Officer
No.
2012AP1812.akz
determine
discussed,
whether
he
was
in
manner
of
that
contact
the
need
of
assistance.
As
was
reasonable.
The
was
reasonable
exercise
of
his
community
caretaker
function.
62
The
facts
in
the
case
at
issue
essentially
are
this
community
caretaker
function."
Kramer,
315
65
No.
66
2012AP1812.ssa
(dissenting).
I would
defendant
within
the
meaning
of
the
federal
and
state
constitutions.
67
circumstances
surrounding
the
incident,
reasonable
person
The
dispute
is
about
the
application
of
the
legal
No.
69
2012AP1812.ssa
parking lot was empty; Deputy Small was in full uniform with his
pistol
fully
visible;
the
deputy
parked
his
squad
car
with
simply
driving
away;
Deputy
Small
rapped
loudly
on
the
Why?
leave"
applied
in
judicial
decisions
does
not
generally reflect what real, everyday people think and how they
No.
2012AP1812.ssa
In short, the
As
person
would
not
have
felt
free
to
leave.
(1) to drive
away; (2) to stay put with the window closed; or (3) to comply
with the officer's directions.
73
drive away under the circumstances of the present case when the
5
No.
2012AP1812.ssa
down
the
car
window.
reasonable
person
would
be
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
uniformed
Exceptions
carefully delineated.
to
the
warrant
requirement
are
to
be
The
No.
need
of
assistance."
Concurrence,
59.
But
2012AP1812.ssa
neither
the
Overall,
80
am
authorized
to
state
that
Justice
ANN
WALSH
No.
2012AP1812.ssa