State v. Young, 2006 WI 98 (Wis. 7/12/2006)

Decision Date12 July 2006
Docket NumberNo. 2003AP2968-CR.,2003AP2968-CR.
Citation2006 WI 98
PartiesState of Wisconsin, Plaintiff-Respondent, v. Charles E. Young, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

Appeal from the Circuit Court, Kenosha County, Michael Fisher, Judge.

REVIEW of a decision of the Court of Appeals. Affirmed. 2004 WI App 227 Reported at: 277 Wis. 2d 715, 690 N.W.2d 866 (Ct. App. 2004-Published)

For the defendant-appellant-petitioner there were briefs and oral argument by Martha K. Askins, assistant state public defender.

For the plaintiff-respondent the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.


¶ 1 This is a review of a published decision of the court of appeals,1 affirming the convictions of Charles Young (Young) for possession of marijuana, resisting an officer, and obstructing an officer. Prior to trial, Young moved to suppress evidence of marijuana on grounds that it was obtained pursuant to an illegal seizure. The circuit court for Kenosha County, Michael S. Fisher, Judge, denied Young's motion, finding that a Kenosha police officer had reasonable suspicion to initiate an investigatory stop.

¶ 2 Young raises three issues on appeal. First, he argues the marijuana seized incident to his arrest should have been suppressed because the officer lacked reasonable suspicion when he initiated contact. Second, Young asserts that his conviction for obstruction should be reversed because the officer lacked reasonable suspicion at the time he ordered Young to stop, and therefore, the officer was not acting with lawful authority. Third, Young contends that his conviction for resisting should be reversed because the officer lacked reasonable suspicion when he chased and physically apprehended Young, and therefore, the officer was not acting with lawful authority.

¶ 3 Critical to resolving these issues is the question of when a "seizure" occurs under the Fourth Amendment. Young maintains that a person is seized "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave," which is the test first articulated in United States v. Mendenhall, 446 U.S. 544, 554 (1980). The State takes the position that a person is seized when an officer applies physical force, however slight, to restrain the person's movement or when the person submits to a show of authority. This is the test in California v. Hodari D., 499 U.S. 621, 626 (1991).

¶ 4 In State v. Kelsey C.R., 2001 WI 54, ¶33, 243 Wis. 2d 422, 626 N.W.2d 777, this court adopted the Hodari D. test "for when a seizure occurs." Nevertheless, Young argues that Article I, Section 11 of the Wisconsin Constitution provides greater protections than the Fourth Amendment and that this court should join the state courts that choose to follow Mendenhall rather than Hodari D.

¶ 5 After considering the relative merits of the Mendenhall and Hodari D. tests, we believe that the two tests can coexist and that the Hodari D. test applies when a suspect refuses to submit to a show of authority. On the facts, we reach the following conclusions: First, the Kenosha police officer had reasonable suspicion for an investigatory stop of the parked car in which Young was sitting. We need not decide whether the car and the occupants other than Young were seized. Second, when the officer ordered Young to return to the car after Young started to run away, the officer had reasonable suspicion to believe Young was committing a crime. Third, applying Hodari D., Young was not seized within the meaning of the Fourth Amendment until the officer physically detained him. Accordingly, the officer lawfully seized Young, and we affirm Young's convictions on all three counts.


¶ 6 By October 2002 City of Kenosha Police Officer David Alfredson (Alfredson) had been a member of the Kenosha police force for more than seven years. During that entire time he patrolled Area 15, a sector of the city that included 52nd and 53rd Streets and 21st Avenue. Fifty-second Street was the site of two popular bars, The Barn and Coins, and had become "a problem area" for the police. There were problems with fights ("a lot of fights"), drinking in cars, and drug use outside the two establishments. Neighbors had complained to elected officials and law enforcement about people leaving beer bottles in their yards, playing loud music, and talking boisterously as they came and went. Littering had become so serious that the two bars sent people out after closing to pick up beer bottles to minimize complaints. Fifty-second Street had become a priority area for police patrol, and it was heavily patrolled after 10:00 p.m.

¶ 7 On the evening of October 26, 2002, Officer Alfredson was driving south on 21st Avenue, a narrow residential street around the corner from The Barn. At approximately 11:40 p.m., he spotted an unfamiliar car with Illinois license plates, parked on the right side of the street along with other cars. There were five people sitting in the car. Alfredson did not stop, but continued driving, turning right on 53rd Street.

¶ 8 Alfredson had developed a regular practice of looking for occupied cars as he patrolled the neighborhood near the bars. When he observed an occupied car, he would continue on his patrol and double back some time later to check whether the car was still occupied. If the car was still occupied, he would stop and investigate. He estimated that he had made dozens of similar stops in the preceding year.

¶ 9 Traveling back to 52nd Street, Alfredson stopped near The Barn to break up a heated argument and disperse the participants. He then went back to his marked squad car, turned the corner, and drove again down 21st Avenue. He saw the same car with Illinois plates, still occupied with five people. His interest piqued, Alfredson decided to stop and investigate. It was 11:49 p.m. At the motion to suppress hearing, Alfredson testified:

[The car] was still occupied with five people in it. That length of time, they would have had time there to park and go out somewhere. They would have more than enough time to go out and do that, so it [aroused] my suspicion for possible drinking or narcotics; so I'll stop and check it out.

¶ 10 Because another car was parked directly behind the car in which Young was seated,2 Alfredson stopped his squad in the middle of the street next to the car behind Young's car. He illuminated Young's car with his spotlight, and turned on his flashing emergency lights to alert other vehicles that his squad had stopped. He did not activate his red-and-blue rolling lights, but did notify "Dispatch" of the Illinois license.

¶ 11 Before Alfredson could get out of his squad, Young exited his car from the rear passenger-side door. In response, Alfredson got out of his car. At the suppression hearing, Alfredson described what happened next:

I ordered him back into the vehicle. He turned and started walking away from the vehicle. I then yelled louder. I said, "Get back in that car right now." And I started heading toward him around my squad. He turned and looked at me and started running up toward the house directly to the west of him. He ran up to the porch and tried to get into the door. I was able to close up on to him. I grabbed him by the back, and I was able to grab one arm; and I told him to knock it off, stop right here, police. He turned around and looked at me and got his arm out of his coat. I re-secured the arm, and I had him by the collar. I said, "Stop resisting." He continued to struggle.

Eventually, Alfredson subdued and handcuffed Young.

¶ 12 In the course of the struggle, Young slipped out of the coat he was wearing and threw it towards the door of the house. Later, Alfredson found a vial containing marijuana inside a pocket of the coat.

¶ 13 The Kenosha County District Attorney charged Young with possession of THC as a repeater, in violation of Wis. Stat. §§ 961.41(3g)(e) (2003-04),3 961.48(1), and 939.62(1)(b); obstructing an officer as a repeater, in violation of Wis. Stat. §§ 946.41(1) and 939.62(1)(a), for running from Alfredson after being ordered to stop; and resisting an officer as a repeater, in violation of §§ 946.41(1) and 939.62(1)(a), for struggling with Alfredson when Alfredson tried to arrest him.

¶ 14 Young pleaded not guilty and moved to suppress the marijuana, arguing Alfredson lacked reasonable suspicion for an investigatory stop, and thus, the evidence was obtained pursuant to an illegal stop. The circuit court denied Young's motion, finding that the officer had reasonable suspicion at the time he initiated the investigatory stop.

¶ 15 After a one-day trial, the jury found Young guilty of all three counts. The circuit court sentenced Young to two and one-half years for possession of THC, with initial confinement of one and one-half years and one year of extended supervision. It withheld sentence and imposed two years probation consecutive to Young's prison sentence for the counts of obstructing and resisting.

¶ 16 Young appealed the denial of his motion to suppress. The court of appeals affirmed. State v. Young, 2004 WI App 227, 277 Wis. 2d 715, 690 N.W.2d 866. Applying Hodari D., the court of appeals held that Alfredson did not seize Young until he grabbed him on the porch of the house, by which time Alfredson had either reasonable suspicion or probable cause of Young committing a crime. See Young, 277 Wis. 2d 715, ¶¶18-19. Notably, although the court of appeals affirmed the circuit court, it expressed serious doubt about the wisdom of following Hodari D., stated a preference for the Mendenhall test for seizure, and urged this court to reconsider its adoption of Hodari D. See Young, 277 Wis. 2d 715, ¶¶20-26. We ultimately accepted review.


¶ 17 Whether a person has been seized is a...

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