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COA: no seizure where cop pulled up behind parked car, shined “disabling” spotlight on recent occupant

State v. Donald Simon Mullen and County of Waukesha v. Donald Simon Mullen, 2019AP1187 & 2019AP1188, 5/20/20, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Mullen pulled his car into a bar parking lot around 1:30 a.m. and a passing officer took interest. He pulled into the lot also, and parked behind and to the left of Mullen’s parked vehicle–Mullen had exited and was standing near the closed bar’s front door. The officer pointed at Mullen an “extremely high intensity spotlight” which serves a “disabling function”–preventing the illuminated person from seeing an approaching officer–and approached him on foot, asking where he was coming from. Was Mullen seized by the time he responded in an incriminating way?The court of appeals says “no”–that this was a consensual encounter. It relies principally on County of Grant v. Vogt, 2014 WI 76, 356 Wis. 2d 343, 850 N.W.2d 253. As with all these cases it’s a fact-dependent conclusion. Here’s the thrust:

Comparing Vogt to Mullen’s case, we agree with the circuit court that, under the totality of the circumstances, Ollinger did not seize Mullen. As in Vogt, the officer did not stop Mullen. See Vogt, 356 Wis.2d 343, ¶41. Mullen was already out of his vehicle and the officer simply approached him. None of the Mendenhall examples of behavior demonstrating a seizure were present. See Vogt, 356 Wis. 2d 343, ¶53. Only one officer was present in each case, no displays of weapons were made, neither officer attempted to touch the suspect or issue forceful verbal commands, and the officers did not manage the person’s movements or require the individual to stay on the scene. Similarly, both squad cars were parked partly behind the other vehicle, but still allowed room to leave. No emergency lights were activated.


Other than that, the opinion is useful in that it collects cases where courts have assessed the effect of police use of a spotlight on the seizure inquiry. (¶¶22-24).

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