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Police lacked reasonable suspicion to seize driver of car in a parking lot suspected to be the site of illegal drug activity

State v. Chonsea Jerome King, 2013AP1068-CR, District 4, 2/13/14; court of appeals decision (not recommended for publication); case activity

A police officer saw a car parked in a lot linked by “numerous [pieces of] intelligence” to illegal drug activity. It was 9:25 p.m. The officer watched it for about five minutes, but did not see anyone exit the vehicle or any activity outside the vehicle, though they did observe the interior lights in the car turn on and off “a couple [of] times.” (¶3). The “intelligence” about the parking lot and his observation of the occupants of the vehicle led the officer believed illegal drug activity might be afoot, so he pulled his patrol car behind the parked vehicle, put on his high-beam headlights, exited the patrol car wearing attire that clearly identified him as a police officer, and asked the defendant, who had stepped out of his vehicle, to sit back down inside his vehicle, which the defendant did. (¶4).

The court of appeals holds this was a seizure under United States v. Mendenhall, 446 U.S. 544, 552 (1980), and rejects the state’s reliance on State v.[Charles E.] Young, 2006 WI 98, ¶67, 294 Wis. 2d 1, 717 N.W.2d 729, which said it is “unreasonable to expect an officer, traveling alone near midnight, in a problem area, to leave his squad car and approach a suspicious car full of people”:

¶15      In Young, the supreme court observed that although an officer’s use of a spotlight may constitute a show of authority, many courts have found it an insufficient show of authority to constitute a seizure. See id., ¶65 n.18. We assume, without deciding, that the State is correct that a seizure did not occur at the point where [Officer] Tilley pulled his patrol car behind King’s vehicle, turned on his high beams, and exited his car and approached King’s vehicle. We do not agree with the State, however, that a seizure did not occur when Tilley asked King to return to the inside of his vehicle. The question under Mendenhall is whether a reasonable person would have believed himself or herself free to leave. We conclude that under the totality of the circumstances in this case—a police vehicle parked in close proximity, bright lights illuminated, an approaching officer, and direction by that officer to return to the inside of the person’s vehicle—a reasonable person would not have believed that he or she was free to leave.

Having found King was seized, the court also concludes the officer lacked reasonable suspicion for the seizure:

¶19      Reasonable suspicion that criminal activity is afoot requires more than mere presence in a public place. See State v. Pugh, 2013 WI App 12, ¶12, 345 Wis. 2d 832, 826 N.W.2d 418. We have held that without more, an individual’s presence in a known drug-trafficking area, an officer’s observation of a brief meeting between the individual and another man on the street, and the officer’s experience that drug deals often occur in brief on-street meetings, did not create a reasonable suspicion to justify an investigatory stop. See State v. [Charles D.] Young, 212 Wis. 2d 417, 433, 569 N.W.2d 84 (Ct. App. 1997). In the present case, we have even fewer facts to suggest criminal activity was afoot. King’s car was observed parked for at least five minutes, at 9:25 p.m., in a parking lot known for drug activity. No interactions between the occupants of the vehicle and other individuals were observed, and there was no testimony that the location of the vehicle aside, King’s behavior was otherwise peculiar or suspicious. The fact that the interior light went on and off appears to add nothing to the analysis. Accordingly, considering the totality of the circumstances, we conclude that in this case Tilley’s observations prior to King’s seizure did not give rise to reasonable suspicion to initiate the seizure.

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