Cnty. of Grant v. Vogt
| Decision Date | 18 July 2014 |
| Docket Number | No. 2012AP1812.,2012AP1812. |
| Citation | 850 N.W.2d 253,2014 WI 76,356 Wis.2d 343 |
| Parties | COUNTY OF GRANT, Plaintiff–Respondent–Petitioner, v. Daniel A. VOGT, Defendant–Appellant. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
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.
¶ 1 This is a review of an unpublished decision of the court of appeals, 1 reversing a decision of the Grant County Circuit Court, which found the defendant guilty of operating a vehicle while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” underthe Fourth Amendment. The issue presented is whether, under the totality of the circumstances, a law enforcement officer “seized” the defendant, Daniel Vogt (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.
¶ 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 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 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 that Vogt had a prohibited alcohol concentration (PAC) of .19—more than twice the legal limit. SeeWis. 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. SeeWis. 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, 100 S.Ct. 1870, 64 L.Ed.2d 497 (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 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 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 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...
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