Review of unpublished court of appeals decision; case activity
Issue (composed by On Point)
Was Vogt seized for purposes of the Fourth Amendment when a police officer pulled up behind Vogt’s parked car, approached the car, rapped on the driver’s window, and directed Vogt to roll the window down?
Petitions for review aren’t available on the court’s website, so the issue statement is based on the brief filed in, and decision of, the court of appeals. The issues Vogt briefed was whether he was “seized” for purposes of the Fourth Amendment and, if so, whether the officer had reasonable suspicion for seizing him. The state argued only that the officer’s conduct didn’t amount to a seizure, noting the officer didn’t activate his lights, didn’t “charge” up to Vogt’s car, display a weapon, use strong or inordinate language, or otherwise confront Vogt in a threatening way. As we noted in our prior short post on the case, the court of appeals concluded that “when a uniformed officer approaches a vehicle at night and directs the driver to roll down his or her window, a reasonable driver would not feel free to ignore the officer.” (¶13).
The grant of review can’t be about the proper standard for determining whether there was a seizure, as that has been around a long time and was applied by the court of appeals. See United States v. Mendenhall, 446 U.S. 544, 554-55 (1980); State v. Williams, 2002 WI 94, ¶23, 255 Wis. 2d 1, 646 N.W.2d 834. Instead, the issue must be the import of the officer’s act of rapping on the window and “directing” it to be rolled down was a seizure. Other courts have held that knocking on a vehicle window to get the occupant’s attention and requesting (as opposed to ordering) the window be opened doesn’t amount to a seizure. See, e.g., People v. Clark, 541 N.E.2d 199 (Ill. App. 1989); Medley v. State, 630 So. 2d 163 (Ala. Ct. App. 1993); Jacobs v. U.S., 981 A.2d 579 (D.C. 2009). The court of appeals clearly considered this argument, noting that a “request” to roll down the window “might not be viewed as a seizure under these circumstances.” (¶13). But the court concluded the officer effectively ordered Vogt to open his window even though the parties disputed whether the officer “commanded” Vogt to roll down the window or merely “motioned” for him to do so: “those distinctions are not determinative in this case because without clarification, we must assume that the officer directed Vogt to roll down his window, rather than asking him if he would do so.” (¶13). It may be, then, that it is the court of appeals’ assumption that is at issue. It may also be whether the court of appeals conclusion based its decision too heavily on the directive to Vogt to roll down his window instead of considering the totality of the circumstances test. Stay tuned.
There is at least some caselaw support for the idea that telling an occupant to roll down the window may well amount to a seizure: State v. Patterson, 2005 ME 26, 868 A.2d 188, 191 (turns on whether it was an order or polite request; there, the court determined it was the former, hence amounted to seizure); State v. Gross, 39 Kan.App.2d 788, 184 P.3d 978 (2008) (“Gross became an object of this investigative detention when Mains approached the passenger side of Stroot’s car, directed her to roll down her window or open the door, and began questioning her. The officers’ show of authority prevented Gross and Stroot from leaving the area.”) Both cases cite LaFave — but of course — where more recent authority on the particular point probably will be found.