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Parked driver was seized when officer approached and directed him to roll down his window

Grant County v. Daniel A. Vogt, 2012AP1812, District 4, 3/14/13; court of appeals decision (1-judge, ineligible for publication), petition for review granted 10/15/13; case activity

Where police officer pulled up behind parked car without activating his emergency lights, approached the car, rapped on the window, and directed the driver to roll the window down, the driver was seized under State v. Williams, 2002 WI 94, ¶23, 255 Wis. 2d 1, 646 N.W.2d 834, and United States v. Mendenhall, 446 U.S. 544, 554-55 (1980):

¶13      It is undisputed that the officer “rapped”3 on Vogt’s window and indicated that he wanted Vogt to roll his window down. Vogt and the County dispute whether the officer “commanded” Vogt to roll his window down, or whether the officer motioned for Vogt to do so. However, 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. A request might not be viewed as a seizure under these circumstances. However, 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. Accordingly, I conclude that a seizure took place.

¶14      It is undisputed that the officer did not otherwise have reasonable suspicion to conduct an investigatory stop. Accordingly, I reverse the judgment of conviction and the order denying Vogt’s motion to suppress.

3  The parties devote substantial argument regarding the strength upon which the officer “rapped” on Vogt’s window. I do not address those arguments because the determining factor here is not how forcefully Vogt rapped on the window.

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