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State v. Michael S. Miske, 2009AP2841-CR, District II, 5/19/10

court of appeals decision (1-judge; not for publication);  for Miske: Sarvan Singh; BiC; Resp.

Terry Stop – Voluntary Encounter

A voluntary encounter, rather than Terry stop, occurred where Miske came to a stop when approaching two squads flanking “an unlit back country road” at 1:00 a.m.:

¶12      When Miske and his partner stopped, they were on a narrow road, two DNR vehicles were parked on one side of the road and a sheriff’s squad with its emergency lights flashing was parked on the opposite side, leaving a narrow, eight to ten foot gap; also, in front of the squad, Wimmer was engaged with the motorcyclist he had stopped earlier. Miske and his partner did not stop in response to a visible or audible signal to stop.[5] Rather, the situation created two choices: either turn around or stop. Miske and his partner were free to do either; they voluntarily chose to stop.

At the suppression hearing, the State conceded and the trial found that a Terry stop had occurred, ¶¶2, 9. As the court of appeals indicates, it isn’t bound by either the concession or the trial court’s conclusion, ¶9 nn. 3, 4. Nonetheless, rejecting both ought to be accompanied by a certain amount of caution — or so you might think. But the court doesn’t trouble itself to so much as articulate the test for existence of a seizure, perhaps perceiving the matter too blatantly obvious for discussion. Not so. Seizure occurs with either “a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful,” or submission to “a show of authority.” California v. Hodari D., 499 U.S. 621, 626 (1991). The latter is the one relevant here. “[T]he test for existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” Id. at 628. It’s 1 a.m. on a back road. Officers have blocked off travel. As the court puts it, Miske’s choices are stark: stop or turn around. But it’s not as if it’s an urban area with alternative routes. Let’s say it again, it’s an unlit back country road and the choice to “turn around” might not be a choice in the sense that it means going many miles out of your way to get to your destination if at all. To top it off, the officer “motioned … that he wanted to speak to [Miske],” a fact mentioned but in passing, ¶6. Was that not a “show of authority”? All in all, the court’s “discussion” leaves much to be desired. Was Miske seized before he was questioned? How would you have applied facts to applicable law?

The court’s ensuing discussion, whether the officers’ questioning fulfilled the “public interest” consideration of officer safety is both confusing and gratuitous, ¶¶13-17. Is the court saying that the questioning amounted to a seizure, but reasonably so? Probably not, but it isn’t clear. In any event, if the interaction were truly consensual, as implied by the conclusion that Miske’s voluntarily stopped, then the questioning didn’t have to be supported by reasonable suspicion nor justified by “public interest.”

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