State v. Javier Teniente, 2013AP799-CR, District 4, 1/30/14; court of appeals decision (1-judge; ineligible for publication); case activity
Teniente was on his boat in the chamber of Madison’s Tenney Locks waiting for the water to rise. Piqued by Teniente’s boisterous behavior, an officer standing on the wall of the lock engaged Teniente in conversation. (¶¶3-4, 15). This interaction wasn’t a seizure for Fourth Amendment purposes; instead, Teniente was seized only when the officer subsequently instructed him to pull his boat over to the dock:
¶16 When Roloff engaged Teniente in conversation, none of the circumstances indicating a seizure were present. Roloff was the only officer speaking to Teniente. There is no evidence that Roloff displayed his weapon or physically contacted Teniente. There is no evidence that Roloff used a harsh or authoritative tone of voice. And although Teniente could not leave the lock—a factor that was beyond Roloff’s control—Teniente could have ignored Roloff’s attempt to converse with him. For these reasons, we conclude that the initial contact between Roloff and Teniente did not constitute a seizure. See [Florida v.] Bostick, 501 U.S. [429,] 434 [(1991)] (explaining that “a seizure does not occur simply because a police officer approaches an individual and asks a few questions” as long as “a reasonable person would feel free ‘to disregard the police and go about his business’” (quoted source omitted)).
¶17 However, Roloff’s encounter with Teniente did not end after the initial contact, and Roloff eventually instructed Teniente to pull his boat over. We conclude that at this point, a reasonable person in Teniente’s position would not have believed that he or she was free to leave. Teniente was therefore seized when Roloff instructed him to pull over. …
 See United States v. Drayton, 536 U.S. 194, 201-03 (2002) (explaining that the movements of the defendants, who were passengers on a bus, were confined not as a result of coercive police conduct but as a “natural result of choosing to take the bus,” and holding that the defendants were not seized when law enforcement officers boarded the bus and began questioning passengers).
Further, the officer had reasonable suspicion to seize Teniente. As the officer and Teniente conversed, the officer noticed Teniente’s speech was slurred, his eyes were bloodshot, and he had an odor of intoxicants. The officer also saw a half-empty bottle of rum and some open beer cans in Teniente’s boat. (¶¶4-5, 19). And after Teniente’s failures on field sobriety tests, the officer had probable cause to arrest for OWI. (¶¶6, 21).
Teniente’s argument that the officer used the locks to create a de facto sobriety checkpoint is rejected as undeveloped. (¶22). It seems unlikely, though, that a court would conclude the officer acted unreasonably in exploiting a bottleneck created not by the police, but by the canal locks themselves and the high volume of Independence Day traffic. (¶3). Cf. State v. Skiles, 938 S.W.2d 447, 451-52 (Tex. Crim. App. 1997) (no checkpoint existed where evidence shows that the officers took no direct action requiring motorists to slow down or stop; the traffic conditions alone did that, and those conditions would have been present even if the officers had not been there).