State v. Young

• Decision Date: 17 November 2004
• Docket Number: No. 03-2968-CR.,03-2968-CR.
• Citation: 690 N.W.2d 866,277 Wis.2d 715,2004 WI App 227
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Charles E. YOUNG, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

277 Wis.2d 715

2004 WI App 227

690 N.W.2d 866

STATE of Wisconsin, Plaintiff-Respondent, v. Charles E. YOUNG, Defendant-Appellant.¹

No. 03-2968-CR.

Court of Appeals of Wisconsin.

Oral argument October 12, 2004.

Decided November 17, 2004.

On behalf of the defendant-appellant, the cause was submitted on the briefs and oral argument of Martha K. Askins, assistant state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and brief and oral argument by Sandra L. Nowack, assistant attorney general.

Before Brown, Nettesheim and Snyder, JJ.

¶ 1. NETTESHEIM, J.

Charles E. Young left the scene of a Terry² stop without submitting to the police show of authority. The police pursued and captured Young and later discovered THC in a coat that Young discarded during the capture. Because Young did not submit to the police show of authority, we hold that California v. Hodari D., 499 U.S. 621 (1991), precludes Young's claim that he was illegally seized under the Fourth Amendment. Consequently, we uphold the trial court's order denying Young's motion to suppress and we affirm the judgments of conviction for possession of THC, resisting an officer and obstructing an officer.

BACKGROUND

¶ 2. The facts of this case are not in dispute. We take them from the evidence adduced at both the suppression hearing and the ensuing jury trial. On October 26, 2002, City of Kenosha Policer Officer David Alfredson was patrolling an area of the city where taverns and popular nightspots are located. Residents of the area had previously complained about "people leaving beer bottles in their yards, loud music, [people] being loud and boisterous going to and from the clubs." Alfredson was patrolling the area in light of these complaints.

¶ 3. As Alfredson was driving on 21st Avenue between 52nd Street and 53rd Street, he noticed a car bearing Illinois license plates parked on the east side of the avenue and occupied by about five people, including Young. Alfredson continued driving, stopping at one point to break up an argument outside a bar. About five to ten minutes later, Alfredson was again driving down 21st Avenue and noticed the same car still occupied by the same number of people. Alfredson decided to, in his words, "stop" the vehicle because:

It 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 arose my suspicion for possible drinking or narcotics; so I'll stop and check it out.

¶ 4. Alfredson's decision to detain the vehicle and its occupants was consistent with his practice.

As I'm patrolling the area specifically around the taverns, I'm looking for occupied vehicles occupied for a length of time. I'll drive by and come back a little while later, a couple of minutes, five minutes. If it's still occupied, I'll stop and check the vehicle to see if people are drinking in the vehicle, narcotics, loud music, if they are playing the stereo too loud.

¶ 5. Alfredson stopped his squad car in the roadway adjacent to a vehicle that was parked behind the suspect vehicle. He activated his flashing emergency lights and used his spot light to illuminate the vehicle.³ Alfredson then observed Young exit the vehicle from the backseat. Alfredson exited his squad and ordered Young back into the vehicle. Young "turned and started walking away from the vehicle." Alfredson yelled to Young, "Get back in that car right now." Young again turned, looked at Alfredson, and then started running toward a nearby house. Alfredson took up pursuit and caught Young at the porch of the residence as Young was trying to gain entry. During the struggle, Young discarded his coat, throwing it toward the door of the residence. Eventually, Alfredson subdued and handcuffed Young, retrieved the coat, and discovered what he believed to be marijuana in a vial located in one of the coat pockets. Further testing confirmed Alfredson's belief.

¶ 6. The State charged Young with possession of THC, resisting an officer and obstructing an officer. Young pled not guilty and filed a motion to suppress all the evidence resulting from Alfredson's pursuit and capture of him. Young argued as follows: (1) he was illegally seized under the Fourth Amendment when Alfredson detained the vehicle and its occupants because Alfredson did not have the requisite reasonable suspicion under Terry as codified by WIS. STAT. § 968.24 (2001-02);⁴ (2) as a result, Young was free to depart the scene without further police intervention; and (3) consequently, all evidence obtained as a result of Alfredson's ensuing pursuit and capture of Young should be suppressed.

¶ 7. The trial court denied Young's motion, ruling that Alfredson had reasonable suspicion to detain the vehicle and its occupants. Therefore, the court reasoned that Alfredson was entitled to take up pursuit when Young exited the vehicle, failed to comply with Alfredson's orders to return to the vehicle, and then ran from the scene.

¶ 8. At the ensuing trial, a jury found Young guilty of all three counts. Young appeals from the judgments of conviction contending that the trial court erroneously denied his motion to suppress.

DISCUSSION

¶ 9. Young's argument on appeal tracks the argument he made in the trial court: (1) the occupants of the vehicle were illegally seized within the meaning of the Fourth Amendment because Alfredson did not have reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968), as codified by WIS. STAT. § 968.24; and (2) therefore, he was free to leave the scene and all evidence resulting from the ensuing pursuit should have been suppressed.

¶ 10. We will assume for purposes of argument that Alfredson did not have the requisite reasonable suspicion under WIS. STAT. § 968.24 when he decided, in his words, to "stop" the vehicle.⁵ However, our assumption does not avail Young because we conclude under Hodari D. that Young was not seized within the meaning of the Fourth Amendment because he did not submit to Alfredson's show of police authority. Until such a submission occurs, Hodari D. holds that a person is not seized for purposes of the Fourth Amendment and therefore the person will not be heard to assert a Fourth Amendment violation. Hodari D.,499 U.S. at 629.

¶ 11. In Hodari D., the police were patrolling a high-crime area when they saw four or five youths, including Hodari, huddled around a car parked at a curb. Id. at 622. When the youths saw the police car, they fled on foot. Id. at 622-23. The car also departed at a high rate of speed. A police officer took up the chase of Hodari. Id. at 623. Just before the officer captured him, Hodari tossed away what appeared to be a small rock. Id. The investigation established that the rock was crack cocaine. Id.

¶ 12. Hodari moved to suppress the evidence. The State of California conceded that the police did not have "reasonable suspicion" under Terry to justify stopping Hodari. Hodari D., 499 U.S. at 623 n.1. The issue before the United States Supreme Court was "whether, at the time he dropped the drugs, Hodari had been `seized' within the meaning of the Fourth Amendment." Id. at 623.

¶ 13. The Supreme Court began its discussion with the well-accepted principle that the Fourth Amendment's protection against unreasonable seizures includes seizure of the person. Id. at 624. However, the Court rejected the notion that the "slightest application of physical force, despite the arrestee's escape" constitutes a "continuing arrest during the period of fugitivity." Id. at 625 (emphasis omitted). The Court stated, "An arrest requires either physical force ... or, where that is absent, submission to the assertion of authority." Id. at 626. Since Hodari had cast away the cocaine before he was apprehended and since he had not yielded to the police show of authority prior thereto, the Court concluded the cocaine was not the fruit of a seizure. Id. at 629. Thus, after Hodari D., the focus is no longer on the legality of the police conduct; rather, the focus is on the conduct of the suspect in response to the police conduct.

¶ 14. In so ruling, the Supreme Court rejected Hodari's argument based on the holding of United States v. Mendenhall, 446 U.S. 544, 554 (1980): "[A] person has been `seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." See Hodari D.,499 U.S. at 627 (quoting Mendenhall). Hodari D. interpreted this language as follows: "[Mendenhall] says that a person has been seized `only if,' not that he has been seized `whenever'; it states a necessary, but not a sufficient, condition for seizure...." Hodari D.,499 U.S. at 628.⁶

¶ 15. The Wisconsin Supreme Court adopted the Hodari D. standard in State v. Kelsey C.R., 2001 WI 54, 243 Wis. 2d 422, 626 N.W.2d 777:

Not all police-citizen encounters are seizures. Florida v. Bostick, 501 U.S. 429, 434 (1991) (citing Terry v. Ohio, 392 U.S. 1, 19, n.16 (1968)). A seizure occurs "when an officer, by means of physical force or a show of authority, restrains a person's liberty." State v. Harris, 206 Wis. 2d 243, 253, 557 N.W.2d 245 (1996) (citing Terry, 392 U.S. at 19, n.16). Included in this test for a seizure is the requirement that when a police officer makes a show of authority to a citizen, the citizen yields to that show of authority. California v. Hodari D., 499 U.S. 621, 626 (1991)

.

....

We agree with the State and will follow the Hodari D. standard for when a seizure occurs.

Kelsey C.R., 243 Wis. 2d 422, ¶¶ 30, 33 (emphasis added).⁷ [1]

¶ 16. Here, as in Hodari D., the police did not apply any physical force against Young prior to the actual capture. Also like Hodari D., Young did not submit to the police show of authority when Alfredson detained the vehicle and...