The encounter between police and Smith wasn’t a seizure, so the search of Smith wasn’t the fruit of an illegal seizure.
Police were surveilling a car they believed was being driven by a wanted felon and saw Smith leave the car and walk to a nearby business with another man named D.J. The police went into the business to talk to the two men, and separated them to do so. One detective asked Smith to step into the vestibule to talk. After the detective noticed the odor of marijuana and Smith admitted to having smoked marijuana, the detectives patted him down and found a gun and marijuana. (¶¶2-7).
The court of appeals upholds the circuit court’s holding that the encounter in the vestibule wasn’t a seizure for Fourth Amendment purposes, so the police didn’t need reasonable suspicion to engage with Smith. At the suppression hearing the detectives testified one of them asked Smith to go to the vestibule to talk, but did not take out a weapon or handcuffs or physically touch Smith or tell Smith that he could not leave the store or that he would be arrested if he did not comply. Smith, on the other hand, said he told the detective twice that he did not want to answer any questions, that the detective’s requests to talk were more of a demand accompanied with an “aggressive look,” and that he did not feel free to leave the store during the encounter. (¶¶13-14).
¶15 …[T]he trial court focused on the consistency of the testimony of both Detective Martinez and Smith that the detective had in fact requested—not ordered or demanded—that Smith go into the vestibule to talk to him…. The court further noted that Detective Martinez did not produce his weapon or physically touch or restrain Smith during that exchange. Indeed, Smith followed Detective Martinez into the vestibule, as opposed to being physically led there by the detective. Based on our review of the record, including the testimony given at the suppression motion hearing, these findings of fact by the trial court are not clearly erroneous.
¶16 The trial court then applied the relevant law … to those findings, and concluded that Smith could have reasonably believed he was free to refuse to go into the vestibule to speak with Detective Martinez. The test … “is an objective one, focusing not on whether the defendant himself felt free to leave but whether a reasonable person, under all the circumstances, would have felt free to leave.” State v. Williams, 2002 WI 94, ¶23, 255 Wis. 2d 1, 646 N.W.2d 834. In other words, Smith’s feelings during the encounter relating to Detective Martinez’s demeanor, and his interpretation of the detective’s request as “more of a demand,” are immaterial. See id. Instead, the totality of the evidence in the record relating to Detective Martinez’s initial contact with Smith must be objectively considered. See id., ¶22. We agree with the trial court that the evidence demonstrates that Detective Martinez made a request for Smith to answer questions in the vestibule which Smith could have refused.