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Squad car’s face off with person’s car did not amount to seizure

State v. Micah J. Snyder, 2013AP299-CR, 10/2/14, District 4 (1-judge opinion, ineligible for publication); case activity

Based on County of Grant v. Vogt, decided just 2 months ago, the court of appeals reversed the circuit court’s decision to grant Snyder’s suppression motion in this OWI case. The court of appeals held that Snyder was not “seized” when a trooper parked his squad car face-to-face with Snyder’s car, approached Snyder on foot while carrying a flashlight, and then questioned him through a car window.

SCOW decided Vogt while this case was in the middle of briefing.  The Vogt majority, calling its decision “close,” held that Vogt was not “seized” just because an officer pulled his squad car up right behind Vogt’s car, walked on foot to Vogt’s window, and ordered him to roll it down. County of Grant v. Vogt, 2014 WI 76, ¶3, __Wis. 2d__, 850 N.W.2d 253. The reason? Mere rapping on a car window is not so intimidating as to constitute a seizure. See our post re Vogt here. The supreme court assumed that Vogt had room to drive out of the parking lot.  Though the circuit court had not determined that fact, the supreme court noted that it could assume that the circuit court had decided the point in a manner that supported its decision to deny suppression.

The facts in Snyder’s case are different.  For one, the trooper’s car was squared off against Snyder’s car, which Snyder says created an adversarial context for his subsequent interaction with the trooper. For another, the circuit court found that in order to leave Snyder would have had to make a significant effort to go around the squad car. Vogt, in contrast, had 50 feet to pull ahead, turn around and leave.  The circuit court made no explicit finding about whether the trooper ordered Snyder to roll down his window. Given that Snyder prevailed at the circuit court, he argued, à la Vogt, that the appellate court should assume that the circuit court determined this fact in a manner that supported its decision to grant suppression.  This did not fly.

The court of appeals held that under Vogt the important point is that Snyder had the ability to drive around the trooper’s car. Furthermore, the court of appeals could not imagine how the position of the trooper’s car directly in front of Snyder’s car was “more adversarial” than the scenario in Vogt. Slip op. ¶20.  And, of course, the court of appeals court refused to assume that the trooper directed Snyder to roll down his window. After all, the trooper had testified that he thought Snyder’s window was down when he approached but admitted that he was not 100% sure. Slip op. ¶7 & ¶23.


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