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Terry Stop – Burden of Proof – Test

State v. Paul J. Mayek, 2012AP398-CR, District 3, 8/21/12

court of appeals decision (1-judge, ineligible for publication); case activity

¶8        Although we have concluded Rasmussen did not seize Mayek until after he approached Mayek’s vehicle, it is impossible to tell from Rasmussen’s testimony precisely when the seizure occurred.  Neither the parties, nor the circuit court, appear to have given serious consideration to the issue.  Rasmussen was not questioned about what took place after he approached Mayek’s vehicle.  This is fatal to Mayek’s claim.  Although the State has the ultimate burden of proof on suppression issues, the defendant has an obligation to produce some evidence that the State acted illegally and in violation of his or her rights.  Jackson, 229 Wis. 2d at 336.  Because Mayek has failed to establish facts necessary to address his claim, he has failed to satisfy this burden.

¶9        In any event, we note that the facts described in Rasmussen’s police report,[4] if testified to, would have allowed us to determine the point of seizure and reject Mayek’s assertion.  Rasmussen’s report describes what occurred after the license plate check.  Rasmussen approached Mayek’s vehicle and could see Mayek alone in the truck.  Mayek did not acknowledge Rasmussen’s presence until Rasmussen knocked on the truck window.  Rasmussen identified himself as a police officer and asked why Mayek had pulled into the driveway.  Mayek responded, “I have no idea,” and was not able to give a valid reason for being in the area.  Rasmussen noted Mayek had “glazed eyes, a moderate odor of intoxicants coming from his person[,] and slurred speech.”  When asked for his license, Mayek handed Rasmussen a Visa card.  Mayek said he was borrowing the truck without his mother’s permission, and further stated that he was lost and wanted to go home.  Mayek admitted to being at a few bars, and dispatch informed Rasmussen that Mayek had multiple convictions for operating while intoxicated.  Rasmussen then ordered Mayek out of the vehicle for field sobriety testing, which Mayek failed.

¶10      The order to exit the vehicle was the point of seizure.  This was the first “show of authority sufficient to give rise to a belief in a reasonable person that he was not free to leave.”  See Young, 294 Wis. 2d 1, ¶33.  By that point, there was ample evidence to believe Mayek had been driving while intoxicated.  Rasmussen’s conduct before that order did not constitute a seizure; “[i]n the absence of any reasonable, articulable suspicion, police may ask questions, request identification, and ask for consent to search, ‘as long as the police do not convey a message that compliance with their requests is required.’” State v. Griffith, 2000 WI 72, ¶39, 236 Wis. 2d 48, 613 N.W.2d 72 (quoting Florida v. Bostick, 501 U.S. 429, 434-35 (1991)).  Again, given the absence of testimony on this point, there is no basis to conclude that Rasmussen’s overall conduct gave Mayek the impression that he was required to respond to Rasmussen’s questioning.

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