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Submission to squad car’s red-and-blue emergency lights is a “seizure”

State v. Brian A. Gottschalk, 2012AP2351, District III (not recommended for publication).  Case activity.

Wow!  Two decisions overruling the denial suppression motions in one day.  In this case, the State charged the defendant  with OWI and operating with a PAC, both as second offenses.  The defendant moved for suppression of evidence on the grounds that the officer seized him without reasonable suspicion.  He lost the motion and pleaded no contest to the OWI, second offense.

Issue:  Was the defendant “seized” when the officer pulled behind his parked vehicle and activated the squad car’s red-and-blue-emergency lights given that a reasonable person would have believed he was not free to leave? See United States v. Mendenhall, 446 U.S. 544, 554 (1980).  Or, as the State argued, was he “seized” once he was apprehended by the officer on the theory that seizure occurs when “an officer applies physical force, however slight, to restrain the person’s movement or when the person submits to a show of authority.”  State v. Young, 2006 WI 98,¶3, 294 Wis. 2d 1, 717 N.W.2d 729 (citing California v. Hodari D., 499 U.S. 621, 626 (1991).

Holding:  When a person submits to a police “show of authority,” the Mendenhall test for seizure applies.  When a person flees in response to a “show of authority,” the Hodari test applies.  A squad car’s activation of red-and-blue emergency lights amounts to a “show of authority.”  Here the defendant submitted to the lights, so that’s when the seizure occurred.  The court of appeals reversed the denial of the defendant’s suppression motion and remanded the case for a determination of whether the seizure was lawful.

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