State v. Susan C. Macho, 2011AP1841-CR, District 2, 5/23/12
court of appeals decision (1-judge, not for publication); for Macho: Leonard G. Adent; case activity
¶8 In this case, Edwards’ actions in pulling up behind Macho and shining his spotlight into her car did not amount to a “show of authority sufficient to effect a seizure.” Young, 294 Wis. 2d 1, ¶65 n.18. Edwards did not pull Macho over in traffic, but rather pulled up behind her already parked car. Once behind the vehicle, he illuminated the vehicle with his spotlight. While Macho contends that Edwards did in fact turn on his squad’s red and blue lights, she has no evidence to support this assertion. Edwards’ testimony was that he could not recall if he had turned on the red and blues. In fact, Edwards was asked no less than six times if he turned on the red and blues, and six times he said that he did not recall. Additionally, Edwards testified that his report did not indicate that the red and blues were illuminated, that he did not document turning them on, and that he was “not going to say for sure [they] were on.” Furthermore, Edwards testified that the video of the stop would show if the red and blues had been activated, because the video camera turns on automatically when the red and blues are illuminated. No one produced the video tape, even though Macho did produce the police report and the audio recording of the dispatch communications to Edwards around the time of Macho’s arrest. Edwards’ repeated testimony that he could not recall turning on his red and blues stands in stark contrast to his clear testimony that he illuminated Macho’s car with his spotlight. Macho chose not to testify and she did not present any evidence, other than Edwards’ inconclusive testimony, to establish that a reasonable person would not have felt at liberty to disregard the officer and go about his or her business.
¶9 Because we decide that the evidence presented does not establish a seizure subject to Fourth Amendment protection, we need not address Macho’s contention that the seizure violated her constitutional rights so as to require suppression of the evidence. Macho voluntarily exited her car and approached Edwards. This consensual encounter allowed him to smell intoxicating beverages on her breath, which gave him reasonable suspicion that she had been driving while intoxicated. The results of the subsequent field sobriety tests were properly admitted and Macho’s conviction stands.