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COA: parking-lot encounter with police was consensual

State v. Matthew P. Elliott, 2016AP2363, 11/8/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

A police officer in his squad followed a vehicle from a bar for a short time before the vehicle turned into the parking lot of a closed restaurant. A couple minutes later, the officer returned and parked behind the still-running car, the driver of which appeared to be unconscious. The officer did not have his emergency lights or his spotlight on. The driver got out of the car and approached the squad and the officer too got out. The officer asked for identification, and shortly thereafter noted sings of intoxication ultimately leading to arrest.

The court of appeals, relying on County of Grant v. Vogt, 2014 WI 76, ¶30, 356 Wis. 2d 343, 850 N.W.2d 253, holds the encounter consensual, and thus concludes Elliott’s suppression motion was properly denied:

In the present case, we agree with the State that Elliott’s contact with Wiercyski was a consensual encounter and fits easily within Vogt. Elliott’s car was parked in a parking lot of a closed establishment in the early morning hours, Wiercyski did not activate his squad lights or spot light, and Wiercyski did not block the exit of the parking lot. Unlike in Vogt, Wiercyski did not even approach Elliott’s vehicle or make any requests before Elliott voluntarily made contact with Wiercyski….. Under these facts, Elliott was given a “choice to refuse an officer’s attempt to converse and thereby retain his privacy, or respond by talking to the officer and aiding the officer in his duty to protect the public.” Id., ¶52. That choice in and of itself does not violate the Fourth Amendment. Id. While it was Elliott’s “social instinct” to engage Wiercyski as he assumed that Wiercyski wanted to talk to him, the facts indicate that Elliott would have felt free to leave and, thus, the encounter was entirely consensual and the Fourth Amendment was not implicated. See id., ¶53

(¶7).

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