We wrote about this case less than a month ago, when the court of appeals issued its certification to the supreme court. Now the certification is granted, so SCOW will have a chance to deal with the inconvenient fact that our state’s cases permit police to seize people without reasonable suspicion in order to verify their identities. This is a troubling state of the law, not least because it’s directly contrary to Brown v. Texas, 443 U.S. 47, 52 (1979). But that’s where our state’s cases point, as we’ve already explained:
VanBeek was sitting with a companion in her parked truck when an officer approached. There’d been a tip that people were sitting in the truck for an hour and that someone had come to the truck with a backpack, then departed. The officer asked a few questions, got satisfactory answers, and then asked for ID, purportedly for his report of the contact. The truck’s occupants were reluctant to hand over their licenses, but the officer insisted, and they did. He held onto them for more than five minutes and summoned a drug dog, who eventually alerted. At some point in this time frame, reasonable suspicion developed, but it wasn’t present when the officer took the IDs. So, was the encounter, at that point, “consensual” (as the state argues) or were the truck’s occupants seized–which, without reasonable suspicion, would be unconstitutional?
The sensible answer–and one that has near-universal legal support–is that they were seized. Nobody is going to feel free to leave when an officer is holding onto their driver’s license. It would be illegal to drive away (since you’d be driving without having your license on you) but more than this, let’s just be real: a person who just starts walking away in this situation is getting tackled, tased, or worse. Everybody, including the officer, knows the driver isn’t free to leave, and is going to act accordingly. A person who can’t leave is seized, and if there’s no reasonable suspicion, that seizure is illegal.
The court of appeals seems pretty convinced of the above, but there’s a problem: if this seizure was illegal, it’s a form of illegal seizure that happens all the time. Police engage people in “consensual” conversations, and request ID to confirm who they’re talking to. Our state courts have even held (wrongly, most courts think) that the ID check in itself is a sufficient basis to continue a seizure, even after reasonable suspicion or community caretaker concerns have been resolved. See State v. Williams, 2002 WI App 306, ¶22, 258 Wis. 2d 395, 655 N.W.2d 462; State v. Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (Ct. App. 1990). So the problem here is that the central proposition in this case–that an officer who’s taken your license has typically “seized” you–is both obviously true and inconvenient to the police, or at least an impediment to the way they’re used to doing business. We’ll see whether truth or convenience prevails.