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Court of appeals: No seizure when cop asked that car window be rolled down

State v. Tyler Q. Hayes,  2015AP314-CR, and State v. Tanner J. Crisp, 2015AP315-CR, 4/6/2016, District 2 (not recommended for publication); case activity (including briefs)

A sheriff’s deputy, noticing a car parked outside the lines in a parking lot, pulled behind the car, walked up to the driver’s door, and perhaps (the testimony is not clear) asked that the window be rolled down. However the window came to be open, the deputy smelled marijuana and you know the rest. So were the vehicle’s occupants seized when the deputy asked them to roll down the window and they complied?

The circuit court said “yes,” relying on the unpublished but citable State v. King, 2014 WI App 38. The court of appeals says “no,” relying on County of Grant v. Vogt, 2014 WI 76, 356 Wis. 2d 343, 850 N.W.2d 253, a case with rather similar facts:

The Vogt court stated that “[a]lthough [the officer] parked directly behind Vogt and allegedly there were obstacles on three sides of Vogt’s vehicle, these facts do not demonstrate that Vogt was seized because he still could have driven away.” Id. The court found unpersuasive Vogt’s assertion that he was seized as a result of a verbal “command” from the officer to roll down the window, noting the circuit court found that the officer had “tapp[ed]” on Vogt’s window and motioned for Vogt to roll it down, but that the officer “wasn’t commanding [Vogt] to do anything, … that he was simply trying to make contact.” Id., ¶43. The Vogt court further noted the circuit court’s determination that the officer’s conduct was, as the Vogt court stated it, “not so intimidating as to constitute a seizure.” Id.

….

The circumstances facing Crisp and Hayes here were even less intimidating than those in Vogt. Similar to Vogt, the deputy here pulled his squad car behind Crisp’s vehicle, which was already parked in an open public parking lot. As the circuit court found here, the deputy’s squad car in no way blocked Crisp and Hayes from departing the area, and based upon the undisputed testimony and a diagram exhibit admitted at the suppression hearing, it would have been easy for them to depart. The deputy approached the driver’s side door and asked Crisp and Hayes what they were doing, just as the officer in Vogt asked Vogt. In Vogt, the officer had his headlights on and his interaction with Vogt occurred at 1:00 a.m.; here, however, it was 5:44 p.m. and the deputy had on neither his headlights nor his emergency lights. Unlike Vogt, there was no evidence even presented here that the deputy “rapped” on Crisp’s window or “commanded” Crisp to roll it down.

(¶¶14, 15).

While Vogt is pretty tough to distinguish, so is King, which went the other way (and which, again, is unpublished and so doesn’t bind the court here). The only material difference in circumstances is that in King, the officer asked the vehicle’s occupant, who had gotten out of the car, to get back in. So it seems asking somebody to get into a car is more of a restraint on liberty than asking somebody already in the car to roll down the window. Now you know.

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