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Defense Win! Defendant seized without reasonable suspicion during police encounter in parking lot

State v. Joshua L. Thering, 2023AP1253, 1/23/24, District 4 (1-judge decision, not eligible for publication); case activity (including briefs)

While the court of appeals agrees the facts in Thering’s case are “similar in significant respects” to the SCOW-approved police encounter in County of Grant v. Vogt, 2014 WI 76, 356 Wis. 2d 343, 850 N.W.2d 253, the court concludes that the totality of the circumstances in Thering’s case “involved a meaningfully greater show of authority by police than in Vogt,” which was characterized as a “close case.” Therefore, the court reverses the circuit court’s order denying Thering’s motion to suppress and his judgment of conviction for OWI 2nd.

In Vogt, an officer observed a vehicle pull into a parking lot in the early morning hours. Based on mere “curiosity,” the officer pulled his marked squad car behind Vogt’s vehicle. Vogt’s vehicle also had obstacles on either side, but he could have (theoretically) pulled forward and exited the parking lot by performing a U-turn. Based on these facts, the court held that Vogt was not seized when the officer approached on foot and knocked on his driver’s-side window and gestured for Vogt to roll the window down. Op., ¶15.

Here, at around 4:15 a.m., two officers in a marked squad car observed Thering’s vehicle traveling the opposite direction as their own. After Thering stopped at a red light, Thering observed the squad car execute a U-turn and pull directly behind his vehicle. After the light turned green, Thering proceeded through the intersection, pulled into a parking lot, and parked with a curb in front of him and a curb on the passenger side of his vehicle. The squad car followed directly behind Thering from the intersection to the parking lot and parked in close proximaty to Thering, but not directly behind him. Thus, Thering could have (theoretically) reversed and executed a Y-turn to exit the parking lot.

Below, the state argued and the circuit court agreed that Vogt controlled. The court of appeals reverses, and distinguishes Vogt for two main reasons. First, the court concludes that Thering’s theoretical reverse and Y-turn exit from his parking spot placed him in a more restricted situation than the one at issue in Vogt. Op., ¶¶20-21. Nevertheless, the court, recognizing the narrow distinction between Thering and Vogt with regards to the relative difficulty of (theoretically) exiting their respective parking lots, does not use this distinction as the basis to conclude Thering was seized.

Instead, the court relies on a separate fact recognized by the circuit court: that Thering observed the squad car execute a U-turn and then follow his vehicle before the encounter in the parking lot. The court identifies this as “pre-contact following conduct.” Whereas Vogt was approached by an officer theretofore unannounced or unnoticed, Thering observed the marked squad take action to follow his vehicle from the intersection to the parking lot and then park in close proximity before approaching on foot. The court relies on a 4th Circuit case, United States v. Jones, 678 F.3d 293 (4th Cir. 2012) and a case from North Carolina, State v. Steele, 2021-NCCOA148, 277 N.C. App. 124, 858 S.E.2d 325, to hold that the show of authority is objectively greater where the driver previously observed law enforcement trail or follow the vehicle. “The applicable persuasive principle in these cases is that, depending on the totality of the circumstances, conspicuous following by police in advance of a direct encounter with a citizen can contribute to a reasonable belief that police intend to detain the person, or are about to detain the person, in a place that the person is not free to leave.” Op., ¶27.

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