“Although we acknowledge that this is a close case, we conclude that a law enforcement officer’s knock on a car window does not by itself constitute a show of authority sufficient to give rise to the belief in a reasonable person that the person is not free to leave.” (¶3).
Vogt’s car was parked in a village park at 1:00 a.m. when a police officer drove in and parked behind and a little off to the side of Vogt. The officer didn’t activate his emergency lights, but got out, walked up to Vogt’s car, rapped on the driver’s window, and motioned for Vogt to roll the window down. (¶¶4, 6-7). Vogt complied, and the officer thereafter developed grounds to arrest Vogt for operating while intoxicated. (¶8).
There’s no dispute the officer had no reasonable suspicion of any criminal activity when he approached the car and knocked on Vogt’s window (¶¶29, 39), so the issue is whether the officer’s conduct constituted a seizure of Vogt. Under State v. Williams, 2002 WI 94, ¶23, 255 Wis. 2d 1, 646 N.W.2d 834, and United States v. Mendenhall, 446 U.S. 544, 554-55 (1980), a person is seized when, based on a totality of the circumstances, a reasonable person would not have felt free to leave. The supreme court holds Vogt wasn’t seized:
¶40 …. In claiming that a seizure took place, Vogt highlights several alleged facts: (1) Deputy Small parked right behind Vogt’s vehicle; (2) “the location of Mr. Vogt’s vehicle in the parking lot was not conducive to simply driving away”; (3) Deputy Small commanded Vogt to roll down the window; and (4) Deputy Small rapped loudly on the window.
¶41 Even taken together, these facts do not demonstrate that Vogt was seized. Although Deputy Small parked directly behind Vogt and allegedly there were obstacles on three sides of Vogt’s vehicle, these facts do not demonstrate that Vogt was seized because he still could have driven away. The circuit court did not explicitly find that Vogt had room to leave the parking lot, but “if a circuit court fails to make a finding that exists in the record, an appellate court can assume that the circuit court determined the fact in a manner that supports the circuit court’s ultimate decision.” State v. Martwick, 2000 WI 5, ¶31, 231 Wis. 2d 801, 604 N.W.2d 552 …. The record supports the assumption that Vogt had room to leave.
¶43 Vogt’s assertion that he was seized because of Deputy Small’s “command” to roll down the window also is unpersuasive. The circuit court found in its decision on the motion to suppress that “[t]here is no evidence that Deputy Small ‘commanded’ Mr. Vogt to roll down his window by tapping on the window and motioning that he roll down his window.” At trial, the court found that Deputy Small’s testimony “would indicate that he wasn’t commanding [Vogt] to do anything, . . . that he was simply trying to make contact.” Even though the circuit court noted that Deputy Small maybe “wasn’t quite as subtle as he thought he was being,” the court still determined that Deputy Small’s conduct was not so intimidating as to constitute a seizure. Thus, Vogt’s arguments that he was seized due to a “command” from Deputy Small are unavailing.
¶44 Vogt also emphasizes the loudness of the knock in arguing that he was seized. Although the seizure analysis considers the totality of the circumstances, the volume of the knock generally will not play a significant roll [sic] in the analysis. … To prescribe the types of permissible attention-getting gestures or the allowable volume of a knock would be an unrealistic venture. …
 The court of appeals decided to assume that Deputy Small “commanded” Vogt to roll down the window. Cnty. of Grant v. Vogt, No. 2012AP1812, unpublished slip op., ¶13 (Wis. Ct. App. Mar. 14, 2013). After noting that there was a discrepancy between Deputy Small’s and Vogt’s testimony, the court of appeals said that “those distinctions are not determinative in this case because without clarification, we must assume that the officer directed Vogt to roll down his window, rather than asking him if he would do so.” Id. Because the circuit court made findings that Deputy Small did not command Vogt and determined Vogt was not seized, the court of appeals’ assumption was not correct.
A concurrence by Justice Ziegler, joined by Justices Roggensack and Gableman, believes that even if a seizure occurred, the officer was acting as a community caretaker under State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598. (¶¶55-65).
Chief Justice Abrahmson and Justice Bradley dissent, concluding that no reasonable person in Vogt’s position would feel free to drive away or simply stay put with a closed window, as either course of action raises a concern about violating a law governing obstructing an officer, disobeying an officer, or fleeing. (¶¶72-75). The dissent also criticizes the concurrence for relying on “a wholly speculative premise” that the community caretaker doctrine was satisfied because the doctrine was not invoked and litigated in the circuit court. (¶¶77-78).
The majority opinion claims this case “affords this case an opportunity to develop the law on ‘seizure’ under the Fourth Amendment.” (¶2). But ultimately the majority does nothing more than apply the existing test for seizure to the facts of this case. Although no Wisconsin case addresses this precise situation, other jurisdictions have; as discussed by the majority (¶¶33-37 & n. 16) and our post on the review grant, those cases go both ways, and therefore stand for the proposition that an officer’s knock on a window doesn’t automatically constitute a seizure (¶38). Which is to say: It depends on the totality of the circumstances viewed in light of the existing test. Note, too, that the court of appeals concluded the officer “commanded” Vogt to open the window, but the majority says that assumption is wrong. (¶43 n.18). Proof positive this decision is finally nothing more than error correction aimed at the court of appeals.