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Defense win! SCOW finds “seizure” where police held license while questioning driver

State v. Heather Van Beek, 2021 WI 51, 2019AP447-CR, on certification from the court of appeals, 6/4/21; case activity (including briefs)

In a splintered opinion, a majority of SCOW holds that an officer does not necessarily “seize” a driver when he takes her license to run a records check. Seizure depends on the totality of the circumstances. In this case, a seizure occured when the officer continued holding a license and questioning the driver until a drug-sniff dog arrived. And the seizure was unlawful because the officer lacked reasonable suspicion that criminal activity was afoot. Roggensack wrote the majority opinion. The liberals joined some parts of it, and the remaining conservatives joined other parts.

Officer Oetzel responded to an anonymous call reporting that two people had been sitting in a parked truck for about an hour. A person wearing a backpack had approached the truck and left. Oetzel drove up to the truck with his spotlight on. He asked a few questions and then requested licenses from Van Beek and her passenger. He said he needed their photos to “compare faces.”

When Oetzel ran the records check he learned that Van Beek had overdosed a few months earlier and that her passenger was on supervision. He had no other details, but he called for a drug-sniff dog anyway. Then he returned to the truck and kept questioning Van Beek and her passenger until the dog arrived. The dog alerted to drugs, which led to Van Beek’s arrest and conviction and this appeal.

Justice Roggensack wrote the majority opinion.  She held that Wisconsin does not recognize a bright-line rule whereby anytime an officer takes a person’s license the person is seized. Rather courts must analyze whether the individual is seized based upon the totality of the circumstances. Opinion, ¶31.  All 7 justices appear to agree with this holding. See Dallet’s concurrence ¶67 n.1  (joining ¶¶22-35 and 46-55; supported by A.W. Bradley and Karofsky) and Ziegler’s dissent, ¶81 (joined by R.G. Bradley and Hagedorn),

Applying the “totality of the circumstances” test, Roggensack wrote that Van Beek was not “seized” when Otzel took her license because he said: “Okay. I’ll be right back, okay?” And she said “alright.” Opinion, ¶45.  Ziegler, R.G. Bradley, and Hagedorn joined this holding, thus forming a majority.  Ziegler’s dissent, ¶87.

However, Roggensack further held that a seizure did occur when Oetzel returned to the truck, retained the licenses, and continued to ask questions until the drug sniff dog arrived. Majority, ¶¶46-50.  She also held that the seizure violated the 4th Amendment because Oetzel lacked reasonable suspicion of criminal activity. All Oetzel knew was that: (1) an anonymous caller provided information that did not suggest criminal activity; (2) Van Beek had overdosed earlier, and (3) her passenger was on supervision. He neither saw nor smelled any indication of drug use. This information did not add up to reasonable suspicion. Majority, ¶¶51-65.

Dallet, A.W. Bradley, and Karofsky joined these last two holdings, thus forming a majority opinion reversing the circuit court’s denial of Van Beek’s motion to suppress.  Dallet’s concurrence, ¶67 n.1

Dallet (joined by A.W. Bradley and Karofsky) argues that VanBeek was seized earlier in the encounter–not when police first took her license but “when police took her driver’s license back to the squad car for a records check because, at that point, a reasonable person would not feel free to leave or to otherwise end the interaction.” Dallet’s concurrence, ¶67.  Indeed, leaving while an officer is still holding your license would violate state law prohibiting the operation of a vehicle without a license. As noted in Dallet’s concurrence and in our earlier post, many courts have reached the same conclusion. In fact, even SCOW’s controversial decision in State v. Floyd, 2017 WI 78, ¶31, 377 Wis. 2d 394, 898 N.W.2d 560 said “[i]f an officer withholds a person’s documents, there is good reason to believe the person was not ‘free to leave’ at that time.”

In contrast, Ziegler (along with R.G. Bradley and Hagedorn) would hold have affirmed the circuit court. Van Beek was not seized when Oetzel took her license because she consented to it. She was not seized when he held on to her license and kept asking questions until the drug sniff dog arrived because she remained free to “go about her business” because her “business” was not to drive away. It was to sit in her truck. She did not require a license to continue sitting. Besides, she could have simply asked for her license back. Ziegler’s dissent, ¶¶81-92.

Note that Ziegler argues that the test for seizure is whether under the totality of the circumstances a reasonable person would feel free “to disregard the police and go about his business.” Florida v. Bostick, 501 U.S. 429, 439 (1991). Dallet points out that the test has been stated various ways, including whether a reasonable person would feel “free to leave.” I.N.S. v. Delgado, 466 U.S. 210, 215 (1984).

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