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No seizure where officer approached and talked to person without display of authority or command

State v. Joseph S. Cali, 2014AP493-CR, District 2, 12/23/14 (1-judge decision; ineligible for publication); case activity

Applying the recent decision in County of Grant v. Vogt, 2014 WI 76, 356 Wis. 2d 343, 850 N.W.2d 253, the court of appeals holds that Cali wasn’t seized when a police officer, thinking Cali might be lost, pulled his squad car near Cali without activating his lights, got out and approached Cali, and from “normal talking distance” asked Cali “what was going on, if I could help him with anything.” (¶¶2-3).

A seizure occurs when the officer has restrained the liberty of an individual “by means of physical force or show of authority,” e.g., “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Vogt, ¶20. Mere police questioning of someone in a public place is unlikely to constitute a seizure, id., ¶38 n.17, and an officer may question a moving pedestrian, without making a seizure, not only while continuing to walk but even when the officer overtakes the pedestrian and asks him or her to stop. 4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 577 (5th ed. 2012).

Just as there was no seizure when an officer approached Vogt’s car and rapped on the window for him to roll it down, Vogt, ¶39, so, too, there was no seizure here:

¶12      Comparing Vogt to Cali’s case, we see that [Officer] Andrews’ behavior was even less intimidating. Andrews exited his vehicle, walked near Cali, but still within “normal speaking distance,” and asked him if he needed help. When Cali responded that he was visiting a friend, Andrews asked the friend’s name. Cali further told Andrews that he was on his way home to Kenosha. Andrews did not even ask, much less direct, Cali to do anything. There were no multiple officers, Andrews did not show his weapon, Andrews did not touch Cali, and there is nothing to suggest that Andrews spoke to Cali in a commanding tone. Cali could have walked away. There was no seizure until, at the earliest, Andrews asked Cali to perform field sobriety tests, at which point there is no question that Andrews had reasonable suspicion….

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