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OWI – Refusal Hearing; Search & Seizure – Consensual Encounter

State v. William R. Hartman, 2011AP622, District 4, 9/20/12

court of appeals decision (1-judge, ineligible for publication); case activity

OWI – Refusal Hearing – Raising Challenge to Lawfulness of Stop

Refusal hearing supports litigation of lawfulness of stop; State v. Anagnos2012 WI 64, ¶42, 341 Wis. 2d 576, 815 N.W.2d 675, followed:

 ¶14      Accordingly, we reject the State’s contention that Hartman improperly raised the issue of reasonable suspicion at the refusal hearing.   Under the plain meaning of Wis. Stat. § 343.305(9)(a)5., as interpreted by the Wisconsin Supreme Court in Anagnos, we conclude that Hartman had the right at the refusal hearing to contest whether the deputy had reasonable suspicion.  We also reject the State’s contention that Hartman was required to provide notice that he intended to raise the issue of reasonable suspicion at the hearing.  Pursuant to Wis. Stat.§ 343.305(9)(a), “[n]either party is entitled to pretrial discovery in any refusal hearing” except that the court may order, upon a timely request and a showing of cause, that the defendant be allowed certain discovery.  Moreover, the State cites to no legal authority in support of its contention that Hartman waived the issue by failing to provide notice to the State. Thus, we conclude that Hartman properly raised the issue at the refusal hearing.

Search & Seizure – Consensual Encounter 

Officer, investigating report of suspicious person in park, pulled up his squad behind Hartman, but without activating his lights, and asked if Hartman would be willing to speak. Hartman argues that he was thusly seized without reasonable suspicion; the court concludes that the encounter was consensual, rendering the existence of suspicion irrelevant.

¶18      … Nonetheless, “[n]ot all police-citizen encounters are seizures.” State v. Kelsey C.R., 2001 WI 54, ¶30, 243 Wis. 2d 422, 626 N.W.2d 777.  A person is “seized” within the meaning of the Fourth Amendment “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980); State v. Williams, 2002 WI 94, ¶22, 255 Wis. 2d 1, 646 N.W.2d 834. …

¶19      It is well established that a reasonable person would not feel free to leave when his liberty is restrained by means of physical force or a show of authority.  State v. Harris, 206 Wis. 2d 243, 253, 557 N.W.2d 245 (1996).  A non-exhaustive list of factors indicating a reasonable person would not feel free to leave include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”  State v. Jones, 2005 WI App 26, ¶10, 278 Wis. 2d 774, 693 N.W.2d 104 (quoting Mendenhall, 466 U.S. at 554-55); see also Michigan v. Chesternut, 486 U.S. 567, 575 (1988) (concluding that a police officer had not made a sufficient showing of authority when he slowly followed the defendant in his police car but did not activate a siren or flashers, order the defendant to stop, display weapons, or maneuver the police car to block the defendant or control his movement).

¶22      Based upon the totality of the circumstances, a reasonable person would have felt free to leave because the deputy did not use physical force or make a sufficient showing of authority to demonstrate otherwise.  We note that the only factor suggesting that Hartman would not have felt free to leave is that the deputy parked his squad car in a way to make it difficult for Hartman to leave the park.  However, that factor alone does not turn a consensual encounter into a seizure.  See Mendenhall, 466 U.S. at 554 (concluding that courts must consider “all of the circumstances surrounding the incident”).  Although this factor weighs in favor of concluding that Hartman was “seized,” we do not weigh this factor so heavily as to outweigh all the other factors relevant to our analysis.

¶23      Accordingly, we conclude that Hartman was not “seized” within the meaning of the Fourth Amendment.  We emphasize that the deputy’s testimony regarding his subjective intent to detain Hartman is wholly irrelevant to the question of whether the encounter was consensual.  State v. Reichl, 114 Wis. 2d 511, 515, 339 N.W.2d 127 (Ct. App. 1983) (noting that a deputy’s subjective intent is relevant “only to the extent it was conveyed” to the defendant).  There is no indication in the record that the deputy conveyed to Hartman that had Hartman tried to walk away from him, he “probably would have continued to try to speak to [Hartman]” and would not have allowed Hartman to leave the park. Accordingly, we disregard the deputy’s subjective intent and instead make our decision based on the objective fact that the deputy approached Hartman to ask whether he would be willing to talk and a reasonable person would have felt free to decline.

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