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Officer’s “request” that person come over and talk wasn’t a seizure

State v. Juan Francisco Rosas Vivar, 2014AP2199-CR, District 4, 5/14/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Vivar wasn’t seized for Fourth Amendment purposes when an officer “called out” to Vivar in as he walked across a parking lot, saying “Juan, can you come talk to me?”

¶15      Vivar asserts that Officer Rupprecht “authoritatively instructing [Vivar] to come talk to him” is analogous to the situations in [State v.Washington [2005 WI App 123, 284 Wis. 2d 456, 700 N.W.2d 305,] and [State v.Kelsey C.R. [2001 WI 54, 243 Wis. 2d 422, 626 N.W.2d 777,] where the police told the defendants to stop, and therefore, constitutes a seizure entitled to constitutional protections. I need not decide whether such “authoritatively instructing” would constitute a seizure. The court did not find, and the evidence does not support, Vivar’s assertion that Officer Rupprecht “authoritatively instruct[ed]” Vivar to come over to him. Officer Rupprecht testified that he stated: “Juan, can you come talk to me?” and Vivar testified that Officer Rupprecht stated “would [Vivar] come over to [Officer Rupprecht’s] car.” (Emphasis added.) Neither Officer Rupprecht’s nor Vivar’s description of what Officer Rupprecht said to Vivar rises to the level of an instruction. Instead, both describe Officer Rupprecht as asking Vivar a question—“can” Vivar do something or “would” he do something.

¶16      In [Grant County v.Vogt, the Wisconsin Supreme Court held that a defendant was not seized where an officer parked his marked patrol vehicle behind the defendant’s vehicle, approached the driver’s side window of the defendant’s vehicle, rapped on the driver’s side window and motioned for the defendant to roll the window down. Vogt, [2014 WI 76,] 356 Wis. 2d 343, ¶¶5-7, 41[, 850 N.W.2d 253]. The court explained that these facts did not rise to the level of a seizure because the defendant could have ignored the officer’s request and driven away, and the circuit court had found that the evidence did not suggest that the officer “commanded” the defendant to roll down his window. Id., ¶43.

¶17      In the present case, Vivar was similarly free to ignore Officer Rupprecht’s request that Vivar come over to the vehicle and nothing in the records suggest that Officer Rupprecht commanded Vivar to do so. I, thus, conclude that Vivar was not seized prior to approaching Officer Rupprecht’s vehicle ….

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