Seizure
Case Analysis
July
19, 2006
In
addition to the main holding of the case — that an officer’s show of
authority is not a seizure for purposes of the Fourth Amendment unless the suspect
actually submits to the show of authority — the case is noteworthy for several
other aspects.
First
is the court’s following of U.S. Supreme Court precedent, despite substantial
disagreement by other courts and legal commentators.
In
the court’s last term, it broke from long-standing tradition of following
U.S. Supreme Court precedent in nearly all criminal procedure issues. In no such
cases, however, was the Fourth Amendment implicated.
The
court’s reluctance to part with the U.S. Supreme Court precedent in this
case may portend a greater reluctance to do so in Fourth Amendment cases generally.
Second
is the court’s discussion of whether a stop and detention occurred, and,
if it did, whether it was supported by reasonable suspicion.
There
are many Wisconsin cases that consider these issues on similar facts, but because
the resulting charge is usually possession of marijuana or drunk driving (misdemeanors
that the court of appeals reviews with one judge rather than three), the decisions
don’t get published.
The
decision in the case at bar suggests, but without deciding affirmatively, that
no stop and detention occurred — a result consistent with most of the unpublished
cases, and case law from other jurisdictions.
The
officer shone his spotlight into the suspect vehicle, but did not block the vehicle’s
means of exit; nor did the officer turn on the red-and blue rolling lights. The
court wrote, “On these facts, we are reluctant to conclude that the positioning
of the officer’s car, together with lighting he employed, necessarily involved
such a show of authority that ‘a reasonable person would have believed that
he was not free to leave.’ (cite omitted).”
In
a footnote, the court cites with approval, State v. Baker, 107 P.3d 1214 (Idaho
2004), which held that illuminating a vehicle with a spotlight is not a seizure.
Baker, in turn, cites a litany of cases for the same proposition. Id., at 1216-17.
The
court in Baker notes, when discussing many of those cases, that the officer did
not block the vehicle in.
The
leading Seventh Circuit case on the issue, U.S. v. Packer, 15 F.3d 654 (7th Cir.1994),
differs, because the officer both shined the spotlight into the vehicle, and blocked
any exit. The court held that a stop and detention occurred, reasoning, “the
officers’ vehicles were parked both in front and behind the Defendant’s
car with the ‘take down’ light shining through Defendant’s windows.
While the officer’s prudential procedures are of course fully justified by
concerns for police safety, a reasonable person in Defendant’s position would
not feel that he was free to leave.” Id., at 657.
That
rationale was followed by the Wisconsin Court of Appeals in State v. Fontaine,
192 Wis.2d 765, 532 N.W.2d 470, 1995 WL131891 (Wis.App., March 29, 1995)(unpublished).
A vehicle was parked late at night in a DNR parking lot that young people frequently
used to drink alcohol, smoke marijuana, and engage in sexual activity. Citing
Packer as authority, the court held that a stop occurred, where the officer parked
his vehicle in a way that blocked any movement by the suspect vehicle.
In
addition, because no one would be hunting at that time of night, and the lot had
a history of being used for illegal activity, the court held the stop was supported
by reasonable suspicion.
Similarly,
in State v. Corbisier, 712 N.W.2d 87, 2006 WL 278936 (Wis.App., Feb. 7, 2006)(unpublished),
an officer blocked in a vehicle that was parked in a fast-food restaurant. The
court held, “Where an officer blocks a person’s avenue of retreat and
blinds that person’s view, a reasonable person would not feel free to drive
away. As such, Corbisier was seized for Fourth Amendment purposes.”
The
outlying case is City of River Falls v. Kjos, 228 N.W.2d 512, 597 N.W.2d 775,
2004 WL261668 (Wis.App., May 4, 1999)(unpublished). Even though the officer did
not block the vehicle in, but only parked behind it, and only illuminated the
vehicle with a spotlight, the court held that a stop and detention occurred.
In
the case at bar, the court declined to decide whether a stop and detention occurred.
Nevertheless, the court’s dicta suggests that none occurred, and the
cases the court cites with approval suggest the same.
As
a result, attorneys can cite plenty of authority for arguing that no seizure occurs,
if an officer does not block the vehicle’s exit, and only illuminates his
emergency flashers and spotlight, but not the blue-and red rolling lights.
The
court’s holding that reasonable suspicion was present, however, flatly contradicts
with the governing federal law on the issue in the Seventh Circuit, which is also
set forth in Packer.
In
Packer, four males were seated for more than an hour in a vehicle parked on the
street after 1 a.m. As noted above, the court held that a seizure occurred when
the officers blocked its means of exit. The court also held that there was no
reasonable suspicion for the stop.
The court
held, “although the early morning hour undoubtedly adds to the reasonableness
of the officers’ suspicion that perhaps something unusual may have been afoot,
the record does not suggest any specific irregularities in the car, other than
the windows being all fogged up with the four individuals sitting inside.”
Packer, 15 F.3d at 658.
In
contrast, the majority in the case at bar concluded, “The facts were not
necessarily unusual, but they were not usual, either.”
The
court cites various facts that could make its holding distinguishable in future
cases: the officer’s experience; the officer’s familiarity with the
area; and the neighborhood was a “problem area.”
Ultimately,
however, these facts provide no principled basis for distinguishing future cases.
Everyone — whether an experienced police officer or a civilian — who
sees a group of young men sitting in a parked car for an extended period of time,
assumes they are smoking marijuana, regardless of the locale.
Thus,
although the case may be distinguishable in future cases that involve men sitting
in a parked car, it will require specious reasoning to do so.
-
David Ziemer
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David
Ziemer can be reached by email.
