State v. Thering

• Docket Number: 2023AP1253-CR
• Decision Date: 25 January 2024
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Joshua L. Thering, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

1

State of Wisconsin, Plaintiff-Respondent, v. Joshua L. Thering, Defendant-Appellant.

No. 2023AP1253-CR

Court of Appeals of Wisconsin, District IV

January 25, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.

APPEAL from a judgment of the circuit court for Sauk County No 2022CT30, MICHAEL P. SCRENOCK, Judge. Reversed and cause remanded with directions.

BLANCHARD, J. ^[1]

¶1 Joshua Thering pleaded no contest to operating a motor vehicle while intoxicated after the circuit court denied his motion to suppress evidence and the court entered a judgment of conviction. Thering appeals, arguing that the court erroneously denied his suppression motion because Thering was unlawfully seized for Fourth Amendment purposes when the following occurred, at a time when police lacked reasonable suspicion to support a traffic stop or other detention of Thering. In the early morning hours, a fully marked police squad car performed a U-turn to follow Thering's car into an empty parking lot and came to a stop near Thering's car. An officer immediately got out of the squad car and approached Thering's car on foot. Given his immediate surroundings, Thering had one option for driving away, which would have been to back out and execute a Y-turn. The officer gestured for Thering to lower the driver-side window of his car. Thering lowered the window.

¶2 The circuit court concluded that these facts "very nearly mirror" the police-citizen encounter examined by our supreme court in County of Grant v. Vogt, 2014 WI 76, 356 Wis.2d 343, 850 N.W.2d 253 (concluding that the encounter did not constitute a seizure under the Fourth Amendment). On that basis, the court determined that Thering was not seized. I agree that the encounter here is similar in significant respects to the encounter in Vogt. But I conclude that the totality of the circumstances here involved a meaningfully greater show of authority by police than in Vogt, which our supreme court characterized as a "close case." Id., ¶54. The result was that Thering was unlawfully seized no later than the moment when the officer gestured for him to lower his window. Accordingly, the circuit court should now grant the suppression motion and reverse the judgment of conviction.

BACKGROUND

¶3 The following is a summary of evidence presented at the suppression hearing and the circuit court's factual findings.

¶4 At approximately 4:15 a.m. on a Monday in November 2021, two police officers patrolled the streets of Reedsburg in a fully marked squad car. The squad car passed a car driven by Thering that travelled in the opposite direction. Thering stopped at a red light. Thering observed the squad car perform a U-turn and position itself directly behind Thering's car.^[2]

¶5 When the light turned green, Thering proceeded through the intersection, drove approximately half a block, and turned into the northeast corner entrance of an empty parking lot. He drove west through the lot and came to a stop in a parking stall in the northwest corner of the lot. In front of the car was one curb; another curb ran along the passenger side. The parking lot had two exits: the northeast corner exit (where Thering's car entered) and another in the southwest corner.

¶6 The squad car followed directly behind Thering's car from the time Thering proceeded on the green light to the time his car came to a stop in the northwest corner stall of the lot. After Thering brought his car to a stop, the squad car stopped in close proximity to his car. Specifically, the squad car stopped to the southeast of, and perpendicular to Thering's car. The officers did not activate the squad car's emergency lights or sirens.^[3]

¶7 One of the officers immediately got out of the squad car and approached the front driver side of Thering's car on foot.^[4] This officer, who was in uniform, made visual contact with Thering and gestured for him to lower the driver-side window. Thering lowered the window in response. Based on an ensuing police investigation, Thering was arrested on suspicion of operating a motor vehicle while intoxicated (OWI) and subsequently charged with two OWI offenses.

¶8 Thering moved to suppress evidence that resulted from what he argued was an unreasonable seizure under the Fourth Amendment that occurred upon the officer gesturing for him to lower his window. The prosecution argued that Thering was not seized at that time and that his lowering of the window was part of a consensual encounter to which Fourth Amendment protections do not apply. The circuit court denied Thering's motion based on a determination that he was not seized.

¶9 Thering pleaded no contest to second-offense OWI and the circuit court entered a judgment of conviction. Thering appeals.^[5]

DISCUSSION

¶10 I begin with a brief clarification about the timing of the alleged seizure. Thering's briefing does not make clear exactly when he contends the seizure occurred: when the officer gestured for Thering to lower his window, or instead when Thering complied with the gesture? For the following reasons, the issue is properly defined to be whether Thering was seized no later than the moment when the officer gestured for him to lower the window. When a defendant submits to a show of police authority, the seizure (if any) is defined to occur when a reasonable person in the position of the defendant would not, under the totality of the circumstances have felt free to leave. State v. Young, 2006 WI 98, ¶¶32, 37, 294 Wis.2d 1, 717 N.W.2d 729 (citing the test articulated in United States v. Mendenhall, 446 U.S. 544, 545 (1980)). However, when the defendant fails to submit to the show of authority, such as when the defendant flees in response, then by definition there was no seizure unless and until the defendant subsequently submits. Young, 294 Wis.2d 1, ¶¶26, 40 (citing the test articulated in California v. Hodari D., 499 U.S. 621, 626 (1991)). Here, Thering complied with the officer's gesture to lower the window and therefore seizure, if any, occurred no later than the moment of the officer's gesture.

¶11 With that concept in mind, the State does not contest that, if Thering was seized when the officer made the gesture, the seizure violated the Fourth Amendment, with the results that Thering's suppression motion should have been granted and his conviction should be vacated. Thus, the sole issue on appeal is whether Thering was seized at that time. See Vogt, 356 Wis.2d 343, ¶¶19, 24, 26 (constitutional protections "are not implicated until a government agent 'seizes' a person" (quoting Young, 294 Wis.2d 1, ¶23)).

¶12 Whether a seizure has occurred for Fourth Amendment purposes is reviewed under a two-part standard of review. Vogt, 356 Wis.2d 343, ¶17. Appellate courts "will uphold the circuit court's findings of fact unless they are clearly erroneous, but the application of constitutional principles to those facts presents a question of law subject to de novo review." Id.

¶13 "[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave." Mendenhall, 446 U.S. at 545. A seizure occurs '"[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'" Vogt, 356 Wis.2d 343, ¶20 (quoting Mendenhall, 446 U.S. at 552). The test of whether a person is free to leave is objective, Vogt, 356 Wis.2d 343, ¶25, and "considers whether an innocent reasonable person, rather than the specific defendant, would feel free to leave under the circumstances," id., ¶30.

¶14 The parties' arguments, as well as the circuit court's conclusions, center on Vogt, which calls for a summary of Vogt.

¶15 An officer on patrol during the early morning hours observed Vogt's vehicle pull into a parking lot. Id., ¶4. The officer drove his fully marked squad car into the lot and stopped behind Vogt's vehicle. Id., ¶6. There were obstacles to either side of Vogt's vehicle, but Vogt had space to drive forward. Id., ¶42. The officer knocked on Vogt's window and gestured for Vogt to lower it. Id., ¶7. Vogt complied, and based on the officer's ensuing investigation, was charged with OWL M,¶¶8-9.

¶16 Our supreme court determined that, although it presented a "close case," police did not "show a level of intimidation or exercise of authority sufficient to implicate the Fourth Amendment" when the officer knocked and gestured for Vogt to lower his window. Id., ¶54. Vogt argued that "the location of [his] vehicle in the parking lot was not conducive to simply driving away," but the supreme court determined that, although police had restricted Vogt's mobility, he was nevertheless able to drive away. Id., ¶¶40-41. Specifically, Vogt could have "pulled forward and turned around" to exit the parking lot. Id., ¶42. The court also noted that the officer's act of knocking on Vogt's window and gesturing for him to lower it was not, in context, "so intimidating as to constitute a seizure." Id., ¶43. Although the court acknowledged that a person in Vogt's position might, under such circumstances, feel a "social instinct" to comply with an officer's request to lower the window, nevertheless "a reasonable person in Vogt's situation would have felt free to leave." Id., ¶53.

¶17 Here, in a thoughtful order, the circuit court determined that the police-citizen encounter "very nearly mirror[s]" the encounter examined in Vogt, and under that authority, Thering was not seized, given the totality of the circumstances, at the moment when the officer gestured for him to lower the window. The court examined the layout of the parking lot and made a finding that, like Vogt,...