State v. VanBeek

Decision Date04 June 2021
Docket NumberNo. 2019AP447-CR,2019AP447-CR
Citation2021 WI 51,397 Wis.2d 311,960 N.W.2d 32
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Heather Jan VANBEEK, Defendant-Appellant.
CourtWisconsin Supreme Court

For the defendant-appellant, there were briefs filed by Jay Pucek, assistant state public defender. There was an oral argument by Jay Pucek.

For the plaintiff-respondent, there was a brief filed by Scott E. Rosenow, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Scott E. Rosenow.

ROGGENSACK, J., delivered the majority opinion of the Court with respect to ¶¶22-35 and ¶¶46-65, in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined, and an opinion with respect to ¶¶1-21, ¶¶36-45, and ¶66. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY and HAGEDORN, JJ., joined.


¶1 This case is before us on certification from the court of appeals1 pursuant to Wis. Stat. § (Rule) 809.61 (2019-20).2 The court of appeals certified the following question: "whether a consensual encounter becomes an unconstitutional seizure under the Fourth Amendment when an officer requests and takes an individual's driver's license to the officer's squad car without reasonable suspicion." Accordingly, we review the Circuit Court of Sheboygan County's3 judgment of conviction of Heather VanBeek for possession of methamphetamine and drug paraphernalia. VanBeek's conviction arose from a search of her vehicle that she contends violated her right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution.

¶2 On the certified question, we conclude that the answer depends on the totality of circumstances surrounding an encounter. Further, while VanBeek was not seized when Officer Oetzel took her driver's license to run a records check, VanBeek was seized when Oetzel returned to her vehicle, withheld her driver's license and continued to question her and her passenger in order to hold her until a drug-sniff dog, i.e., the K9 unit, that he had requested arrived. Finally, we conclude that the seizure was unlawful because, based on the totality of circumstances, Oetzel did not have reasonable suspicion that VanBeek was engaged in criminal activity at the time he seized her. Accordingly, we reverse the circuit court's judgment of conviction and remand with instruction to grant VanBeek's motion to suppress.

A. Factual Background

¶3 On the night of November 12, 2017, the City of Sheboygan Police Department received an anonymous call that a truck, with two occupants, had been sitting near the intersection of 6th Street and Superior Avenue in Sheboygan for approximately an hour. The caller also stated that a person approached the truck with a backpack and left later without it. The caller provided no description of the truck.

¶4 Sheboygan Police Officer Sung Oetzel responded to the call. When he arrived, Oetzel saw only one truck in the location that had been identified. However, to be sure it was the truck to which the caller referred, he quickly drove around the area and confirmed there was only one truck with two occupants nearby. Oetzel parked his squad car behind the truck and activated his squad car's spotlight.4

¶5 VanBeek and her passenger, Branden Sitzberger, were sitting in VanBeek's truck when Oetzel approached. Oetzel made contact with VanBeek, saying that "someone called in, suspicious that two people were just sitting here."5 VanBeek responded that she was "waiting for [Sitzberger] to walk." Sitzberger similarly stated that VanBeek had just picked him up. Oetzel informed VanBeek that the caller said VanBeek had been sitting there for an hour, which VanBeek denied. Sitzberger said it had been "about ten minutes." Oetzel responded by saying "it was an anonymous caller, you know how people exaggerate sometimes. I don't know." VanBeek answered affirmatively when Oetzel asked if Sitzberger was her boyfriend and if she was "just waiting"; Oetzel responded "sounds legit." During his initial encounter with VanBeek, Oetzel did not ask about a backpack or a third person that the caller had mentioned. There is nothing in the record to show whether such a person had been present.

¶6 Oetzel then asked VanBeek and Sitzberger for their information "for his report, so [he] [could] just get out of [here]." Sitzberger asked if Oetzel was going to just write down the information. Oetzel told Sitzberger he wanted their "IDs" so he could "compare faces." While VanBeek and Sitzberger were giving their driver's licenses to Oetzel, Oetzel asked what they were doing that night, and Sitzberger responded that VanBeek had just picked him up and they were going back to Cascade. Oetzel took possession of their driver's licenses and said "Okay. I'll be right back, okay." VanBeek and Sitzberger replied "alright."

¶7 Before returning to his squad car, Oetzel spoke to another officer who had arrived on scene. Oetzel told the other officer that VanBeek said she was "waiting for her boyfriend" and "[he] [didn't] think it [was] anything suspicious." When he ran a records check on VanBeek and Sitzberger, Oetzel discovered that neither person had outstanding warrants. However, Oetzel learned that VanBeek had overdosed in February of that year and that Sitzberger was on supervision. Based on these two additional facts, Oetzel called for the K9 unit. Oetzel then exited his squad car and once again spoke to the other officer who was on scene. As he returned to VanBeek's vehicle, Oetzel asked the other officer if he "had enough to just hold them until [the K9 unit] [got] [there]."

¶8 After he returned to VanBeek's vehicle, while retaining possession of their driver's licenses, Oetzel asked VanBeek and Sitzberger numerous questions, some of which he had already asked and they had answered. For example, Oetzel asked VanBeek to confirm that she lived in Cascade, to repeat her address, to confirm her date of birth, and to provide a phone number. As Oetzel questioned her, VanBeek asked whether her "license was bad." Oetzel answered no, and she answered Oetzel's questions. After questioning VanBeek, Oetzel moved on to Sitzberger, asking him to confirm his address and for a phone number. Sitzberger also complied.

¶9 While retaining their driver's licenses, Oetzel continued his questioning, saying "Heather, you were saying that you were picking him up. I thought you [Sitzberger] said you live here." Sitzberger denied saying that he lived in the area and that he was at a friend's house. Oetzel asked, "which friend?" and Sitzberger responded with the name "Jake" who he said lived "a couple blocks down." Oetzel asked whether Jake lived on Superior, and Sitzberger responded affirmatively, though he seemed unsure whether Jake lived at 7th or 8th street. Sitzberger said that he thought VanBeek was outside but did not see her, so he called her and walked around trying to find her.

¶10 Oetzel then asked Sitzberger more questions about Jake, including where exactly on Superior Jake lived, for Jake's full name, and for Jake's phone number. Oetzel told Sitzberger that he "just want[ed] to verify [Sitzberger's] story" because Sitzberger was on supervision. He "wanted to confirm that there [was] a Jake there so that [Sitzberger] wasn't lying to [him]." Sitzberger offered to call Jake, but Oetzel told Sitzberger that he would rather "have the phone number and [he] can call [Jake] himself." After taking Jake's phone number down, Oetzel asked Sitzberger if Sitzberger had been drinking. Sitzberger said that he had not. Oetzel said that he asked because Sitzberger's face was "a little red" and Sitzberger replied saying he "just got done walking" and that it was hot in the truck. Oetzel then returned to questioning Sitzberger about Jake.

¶11 This time, the questions included how Sitzberger knew Jake and how long he had known him. Sitzberger responded, telling Oetzel that he met Jake through a friend and that he had known Jake for about five or six months. After taking down that information, Oetzel circled back to his original questions and asked VanBeek and Sitzberger how long they had been sitting there. VanBeek said that up to that point she had been there for "probably an hour." She clarified that before Oetzel arrived she was there for half an hour. Oetzel exclaimed that an hour is "a long time" and asked if she had been sitting there alone for awhile, which VanBeek responded to affirmatively. Shortly thereafter, the K9 unit arrived, and Oetzel asked VanBeek and Sitzberger to exit the truck.

¶12 After VanBeek and Sitzberger got out of the truck, the K9 unit conducted a sweep of the truck and the dog alerted, indicating there were drugs present. Oetzel and another officer searched the truck and discovered one gram of methamphetamine and a pipe, for which they arrested VanBeek. The entire incident lasted approximately 25 minutes.

B. Procedural History

¶13 The State charged VanBeek with one count of Possession of Methamphetamine, contrary to Wis. Stat. § 961.41(3g)(g), and one count of Possession of Drug Paraphernalia, contrary to Wis. Stat. § 961.573(1). VanBeek moved to suppress the methamphetamine and drug pipe found during the search.

¶14 In her suppression motion, VanBeek contended that Oetzel's initial contact with her was unlawful, and, even if it were not, the stop was extended beyond its initial mission without reasonable suspicion that she or Sitzberger were committing, had committed or were about to commit a crime. She argued that Oetzel's extended questioning while retaining her driver's license violated her right to be free from unreasonable searches and seizures as guaranteed by both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution.

¶15 ...

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