Court:
Suspect must submit for seizure to occur
By
David Ziemer
Wisconsin Law Journal
July
19, 2006
A
seizure does not occur for Fourth Amendment purposes until the suspect submits
to the officer’s show of authority, the Wisconsin Supreme Court held on July
12.
In
so holding, the court reaffirmed its decision in State v. Kelsey C.R., 2001 WI
54, 243 Wis.2d 422, 626 N.W.2d 777, which adopted the U.S. Supreme Court decision
in California v. Hodari D., 499 U.S.621 (1991).
In
2002, City of Kenosha Police Officer David Alfredson was a patrolman in an area
near two taverns that was considered a “problem area” because of fights,
drinking in cars, littering, and drug use.
| What
the court held Case:
State v. Young, No. 2003AP2968-CR Issue:
When a suspect fails to submit to a show of police authority, is reasonable suspicion
measured at the time of the investigatory stop, or the time the suspect is ultimately
subdued? Holding:
When the suspect is subdued. To hold otherwise would encourage flight, without
deterring unlawful police behavior. Counsel:
For Appellant: Askins, Martha K., Madison; For Respondent: Jambois, Robert
J., Madison; Kleinmaier, Stephen W., Madison; Zapf, Robert D., Kenosha |
While patrolling
the area, he saw an unfamiliar parked car with five people sitting in it. He returned
nine minutes later, and the five men were still in the car.
Alfredson
stopped his squad in the middle of the street next to the vehicle behind the car,
illuminated the car with his spotlight, and turned on his flashing emergency lights;
he did not activate his red-and-blue rolling lights.
Before
Alfredson could get out of his squad, Charles E. Young exited the car from the
rear passenger-side door. In response, Alfredson got out of his car, and told
him twice to get back in the car.
Instead,
Young started running. Alfredson caught him, and arrested him. Marijuana was found
in Young’s coat pocket, and he was charged with possession, resisting arrest,
and obstructing an officer.
He
moved to suppress the evidence, but Kenosha County Circuit Court Judge Michael
Fisher denied the motion. The court of appeals affirmed in a published opinion,
2004 WI App 227, 277 Wis.2d 715, 690 N.W.2d 866.
The
Supreme Court accepted review, and affirmed in a decision by Justice David T.
Prosser. Justices Louis B. Butler, Jr., and Ann Walsh Bradley wrote dissents,
the latter joined by Chief Justice Shirley S. Abrahamson.
After
twice noting that the court usually follows the Fourth Amendment jurisprudence
of the United States Supreme Court, the court reaffirmed the vitality of Hodari
D. in Wisconsin.
The
court wrote, “The [U.S. v. Mendenhall, 446 U.S. 544 (1980)] test applies
when the subject of police attention is either subdued by force or submits to
a show of authority. Where, however, a person flees in response to a show of authority,
Hodari D. governs when the seizure occurs.”
The
court cited two policy considerations from Hodari D. for support. First, by postponing
the moment at which the protection of the exclusionary rule becomes available,
Hodari D. encourages compliance with police orders.
Second,
the exclusionary rule retains its deterrent effect, because officers expect that
their orders will be complied with, and the exclusionary rule will apply.
The
court wrote, “Because a police officer cannot know in advance that a suspect
will flee or not comply with a show of authority, and because a police officer
must presume that people will comply with orders and thus the officer must adhere
to the Fourth Amendment to prevent the exclusion of evidence, we fail to see how
rejecting Hodari D. will further deter Fourth Amendment violations.”
Applying
Hodari D. to the merits, the court held that reasonable suspicion supported an
investigatory stop. The court noted that the neighborhood was a “problem
area”; that the officer was familiar with the neighborhood; and that the
facts — five men lingering in a car for five to ten minutes — was suspicious.
The
court wrote, “Although there are innocent explanations for why five people
would be sitting in a car for five to 10 minutes, Alfredson was not required to
rule out all these potential explanations before initiating his investigation.”
Because
the court found no seizure occurred until Young was subdued, the court declined
to decide whether the officers’ actions in pulling up behind the car, activating
his emergency flashers and pointing a spotlight on the car, constituted a seizure.
In
dicta, however, the court suggested that it did not. Noting that the officer did
not activate his red-and-blue rolling lights, the court analogized the actions
to an officer approaching the car on foot to inquire — an action Young conceded
would not constitute a stop and detention.
The
Dissents
Justice
Butler concurred in the majority opinion, save for that part concluding the evidence
was sufficient to support the charge of obstructing an officer.
Butler
concluded that the officer’s actions constituted a stop and detention, unsupported
by reasonable suspicion, and thus, the third element of obstructing — that
the officer was acting with lawful authority — was not satisfied.
Justice
Bradley dissented, calling the decision in Hodari D. “infamous,” and
arguing that its holding should be rejected.
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here for Case Analysis.
David
Ziemer can be reached by email.
