State v. Daniel M. Buesgens, No. 2011AP2241-CR, District 3, 3/27/12
court of appeals decision (1-judge, not for publication); for Buesgens: Eric John Nelson; case activity
Buesgens, told he was “absolutely free to go” after a concededly proper traffic stop, wasn’t then “reseized” when the officer asked questions related to whether he had been drinking.
¶15 Similar to Williams, a reasonable person in Buesgens’ position would have felt free to decline Mork’s questions and terminate the encounter. See id., ¶35. The traffic stop had concluded and Buesgens was free to go. After assisting Stutelberg, Mork asked Buesgens three simple questions. Nothing in the record indicates Mork said or did anything while asking these questions that would have compelled Buesgens to stay. We conclude Mork’s subsequent questioning did not constitute a seizure.
¶16 Buesgens, however, attempts to distinguish this situation from Williams by analogizing it to the situation in State v. Jones, 2005 WI App 36, 278 Wis. 2d 774, 693 N.W.2d 104. In Jones, we determined the defendant was improperly seized by the subsequent questioning because, unlike the officer in Williams, the officer in Jones never gave the defendant any indication that he was free to go before he started questioning him. Id., ¶16. We concluded that without a cue from the officer that the traffic stop has concluded and the person is free to go, a reasonable person in the defendant’s position would not believe he or she was free to decline the officer’s questions and leave. Id., ¶¶17-18, 21-22.
¶17 Jones is clearly distinguishable. Here, unlike the officer in Jones, Mork signified the conclusion of the traffic stop by telling Buesgens he would help him get back on the road when he was ready. Moreover, Buesgens conceded at the motion hearing that he was free to go when Mork made this statement.