                                                              2014 WI 76

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:              2012AP1812
COMPLETE TITLE:        County of Grant,
                                  Plaintiff-Respondent-Petitioner,
                            v.
                       Daniel A. Vogt,
                                  Defendant-Appellant.




                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                                346 Wis. 2d 551,830 N.W.2d 723
                                 (Ct. App. 2013 – Unpublished)

OPINION FILED:         July 18, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 9, 2014

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Grant
   JUDGE:              Robert VanDeHey

JUSTICES:
   CONCURRED:          ZIEGLER, ROGGENSACK, GABLEMAN, JJJ., concur.
                       (Opinion filed.)
  DISSENTED:           ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                       filed.)
  NOT PARTICIPATING:

ATTORNEYS:
       For the plaintiff-respondent-petitioner, there was a          brief
by Anthony J. Pozorski Sr., assistant district attorney, and
Grant County, and oral argument by Anthony J. Pozorski Sr.




       For the defendant-appellant, there was a brief by Jeffery
J. Scott, and Block, Scott & Heenan, LLC, Platteville, and oral
argument by Jeffery J. Scott.
                                                                          2014 WI 76
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.   2012AP1812
(L.C. No.   2012TR459 & 2012TR460)

STATE OF WISCONSIN                              :            IN SUPREME COURT

County of Grant,

            Plaintiff-Respondent-Petitioner,
                                                                       FILED
      v.
                                                                  JUL 18, 2014
Daniel A. Vogt,
                                                                     Diane M. Fremgen
            Defendant-Appellant.                                  Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                  Reversed.



      ¶1    DAVID    T.    PROSSER,    J.      This     is    a    review      of     an
unpublished     decision    of   the   court    of     appeals,1       reversing       a

decision of the Grant County Circuit Court, which found the

defendant guilty of operating a vehicle while intoxicated.

      ¶2    The case affords this court an opportunity to develop

the law on "seizure" under the Fourth Amendment.                          The issue

presented is whether, under the totality of the circumstances, a

law   enforcement    officer     "seized"   the       defendant,       Daniel       Vogt

      1
       Cnty. of Grant v. Vogt, No. 2012AP1812, unpublished slip
op. (Wis. Ct. App. Mar. 14, 2013).
                                                                       No.           2012AP1812



(Vogt), when he knocked on the driver's window of Vogt's vehicle

and asked Vogt to roll down the window.                      When Vogt complied, the

officer immediately smelled alcohol in the vehicle and noticed

Vogt's slurred speech, leading to an investigation and Vogt's

ultimate      arrest.       In    these       circumstances,         did     the      officer

"seize" Vogt before the officer had probable cause or reasonable

suspicion to believe that Vogt committed an offense?

      ¶3      Although we acknowledge that this is a close case, we

conclude that a law enforcement officer's knock on a car window

does not by itself constitute a show of authority sufficient to

give rise to the belief in a reasonable person that the person

is not free to leave.             The objective of law enforcement is to

protect    and     serve   the    community.             Accordingly,      an    officer's

interactions with people are not automatically adversarial.                                  A

court's "seizure" inquiry into one of these interactions must

examine the totality of the circumstances, seeking to identify

the   line    between      an    officer's        reasonable     attempt        to    have    a

consensual       conversation      and    a       more    consequential       attempt        to
detain an individual.             The facts in this case do not show a

level of intimidation or exercise of authority sufficient to

implicate the Fourth Amendment until after Vogt rolled down his

window and exposed the grounds for a seizure.                         Consequently, we

reverse.

              I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      ¶4      In   the   early     morning        of     December    25,   2011,       Deputy

Matthew      Small   (Deputy      Small)      of       the   Grant   County      Sheriff's
Department was on patrol duty in the Village of Cassville.                                 The
                                              2
                                                                            No.     2012AP1812



village     is    located       on   the    Mississippi            River,     southwest      of

Lancaster,       the    Grant    County     seat.           In    2010    Cassville    had    a

population       of    947.     Around      1       a.m.,   Deputy       Small    observed    a

vehicle on Prime Street turn west and pull into the parking lot

next to a closed park and boat landing on the Mississippi.                                   He

did not observe any traffic violations but thought the driver's

conduct was suspicious.

       ¶5    Riverside Park closed at 11 p.m., but the adjacent

parking lot remained open.                  Deputy Small said, however, that

because of the time of year (Christmas), and because the park

was closed and there were no boats at the landing, he thought it

was odd for someone to be there.2

       ¶6    His       curiosity     piqued,        Deputy       Small   pulled    into   the

parking     lot       and   parked    his   marked          squad    car     behind   Vogt's

vehicle a little off to the driver's side.                                The squad car's

headlights were on, but its red and blue emergency lights were

not.       Vogt's car was running and had its lights on as well.

Deputy Small said at the suppression hearing that he was not




       2
       The circuit court opined that it was reasonable for Deputy
Small to ask Vogt what he was doing.       During the hearing on
Vogt's motion to suppress, the court commented, "I mean on one
hand, what the officer did seems perfectly reasonable.        You
know, 2:00 in the morning, nobody's going to be launching a boat
on Christmas Day."       At trial, the court reiterated the
reasonableness of Deputy Small's conduct when it noted that
"there is really not anything unreasonable with approaching a
vehicle at bar time and finding out why they're parked
at . . . a boat landing that apparently was not closed, but the
park next to it was closed."

                                                3
                                                         No.    2012AP1812



blocking the car and that the driver could have left, although

Daniel Vogt later disagreed.

    ¶7     Deputy Small got out of his squad car and walked up to

Vogt's window.    He was in full uniform and had a pistol in his

side holster.    There were two people in the vehicle: Vogt in the

driver's seat and Kimberly Russell (Russell) in the passenger's

seat.    Deputy Small testified at the trial that he rapped on the

window but could not recall if the knock was hard or soft.3              He

also said that he motioned for Vogt to roll down the window and

that if Vogt had ignored him and driven away, Deputy Small would

have let him go because he "had nothing to stop him for."

    ¶8     When Vogt rolled down the window, Deputy Small asked

him what he was doing, and Vogt said that he was trying to

figure out his radio.        Deputy Small said that Vogt's speech was

slurred and that he could smell intoxicants coming from inside

the vehicle.     Deputy Small asked Vogt for his driver's license

and went back to his squad car.          He turned on the red and blue

emergency lights and moved the squad car back and a little to
the left so that he could videotape the interaction.                Deputy

Small asked Vogt to step out of the vehicle for a field sobriety

test, during which Vogt showed signs of intoxication.               Deputy

Small then placed Vogt under arrest and transported him to the

Grant   County   Jail   in   Lancaster   where   Vogt   submitted   to   an

evidentiary chemical test of his breath.            The test indicated

    3
       Previously, at a suppression hearing, Deputy Small said he
could not remember whether the window was up or down but said
that he "may have knocked on the window."

                                    4
                                                       No.      2012AP1812



that Vogt had a prohibited alcohol concentration (PAC) of .19——

more       than   twice   the    legal   limit.     See      Wis.   Stat.

§ 340.01(46m)(a) (2011-12).4

       ¶9     Vogt was cited for operating a motor vehicle while

under the influence of an intoxicant (OWI) and PAC contrary to

Wis. Stat. § 346.63(1)(a).5       Because this was his first violation

of § 346.63(1)(a), it was a civil violation.           See Wis. Stat.

§ 346.65(2)(am).      Vogt filed a plea of not guilty on January 5,

2012.       On February 29, 2012, he moved to suppress all evidence

obtained during his allegedly unlawful detention and arrest on

grounds that Deputy Small did not have reasonable suspicion to

conduct a traffic stop.         The Grant County Circuit Court, Robert

P. VanDeHey, Judge, held a motion hearing on March 30, 2012,

during which Deputy Small was the only witness to testify.

       ¶10    The circuit court denied the motion to suppress in a

written order on April 23, 2012.         Judge VanDeHey relied on the

seizure analysis articulated in United States v. Mendenhall, 446

U.S. 544, 554 (1980), and determined that Deputy Small's conduct
did not constitute a seizure.       The circuit court noted:

       Deputy Small did not draw his gun.      His emergency
       lights were not in operation.    There is no showing
       that he raised his voice. There is some evidence that
       he impeded the operation of the defendant's automobile

       4
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
       5
       Although  the   PAC   citation  lists only Wis. Stat.
§ 346.63(1)(a) as the violated statute, the statute that
specifically prohibits driving with a prohibited alcohol
concentration is Wis. Stat. § 346.63(1)(b).

                                     5
                                                                No.     2012AP1812


    in that he initially parked somewhat to the side and
    behind the vehicle and then had to re-position his
    vehicle to conduct field sobriety tests. There is no
    evidence that Deputy Small "commanded" Mr. Vogt to
    roll down his window by tapping on the window and
    motioning that he roll down his window.
Although the circuit court believed it was a close case, the

court denied the motion to suppress.

    ¶11     A   trial   to   the   court   took   place    on   July    5,    2012.

Vogt's passenger, Russell, testified that Deputy Small's rap on

the window was "hard" and that he said, "Give me your driver's
license."       According    to    Russell,    Deputy     Small's     voice   "was

forceful," and he did not say "please" or "thank you."                   Russell

also described the parking lot.               To the right of the vehicle

were a lit pop machine and the park.              As Deputy Small said, the

squad car was behind Vogt's vehicle, a little closer to the

driver's side.      The Mississippi River was in front of Vogt's

vehicle.    Wisconsin Power & Light Company was on the left,6 and

Deputy Small was standing on the left side of Vogt's vehicle.

Russell thought that Vogt could not have ignored Deputy Small

and could not have left because there was nowhere for him to go.

    ¶12     Vogt testified that Deputy Small "rapped on the window

very loud" with his knuckles and told Vogt to open the window

without saying "please" or "would you."              Vogt said that Deputy

Small's voice was commanding and that he did not think he had

any alternative to rolling down the window.                Vogt said that he


    6
       Vogt admitted on cross-examination that Wisconsin Power &
Light Company was far enough away that it would not have
prevented him from turning left.

                                       6
                                                            No.      2012AP1812



could not have pulled forward and turned around, could not have

turned left without hitting Deputy Small, could not have turned

right without hitting the pop machine, and could not have backed

up   because    of    the   squad   car.     On    cross-examination,     Vogt

admitted that the boat landing was roughly 40 yards wide and

that the Mississippi River could have been 50 feet in front of

him.    In the past, ice had washed up onto the parking lot, but

Vogt did not know how far it had washed up on December 25, 2011,

if at all.         Vogt agreed that he had had too much to drink and

should not have been driving.

       ¶13    At the end of the trial, Vogt renewed his motion to

suppress.      In making its decision, the circuit court noted that

there   was    a    question   as   to   whether   Deputy   Small    verbally

commanded Vogt to roll down the window.            The court said:

            There is additional evidence today that was not
       brought forth at the motion hearing, particularly that
       the officer rapped loudly on the window and supposedly
       commanded Mr. Vogt to roll down the window.     That's
       different than the officer's testimony who indicated
       that he just wanted to see what was going on. He was
       suspicious.   Had Mr. Vogt decided to drive away, he
       would have let him.

            The officer also testified that he did not block
       the vehicle in, that the vehicle could have gotten
       around him.   So there are a few factual distinctions
       as far as the testimony. It's not a very bright line,
       and I don't know how a driver knows the difference
       between a command and a suggestion, particularly when
       we're talking about a physical movement, the knocking
       on the window.

            To the extent that Mr. Vogt and Ms. Russell's
       testimony differs from the officer's, the resolution
       probably is somewhere in between, that the officer
       wasn't as aggressive as the occupants of the vehicle

                                         7
                                                                  No.         2012AP1812


    thought, and maybe he wasn't quite as subtle as he
    thought he was being.    But the basic facts are that
    there was [a] vehicle running at night at bar time.
    The officer knocked on the window, rapped on the
    window.   There is a dispute as to whether there was
    actually a verbal command after that.    I don't know
    that that's the case.     Given that the vehicle was
    running and the time of night and the officer's
    initial testimony that he probably just knocked on the
    window, that that seems to be the——well, at least the
    consistent testimony.
Vogt's attorney interrupted to remind the court that at the

motion     hearing,    Deputy     Small      could    not   remember           how   he

approached Vogt.       The court responded:

    Yeah, and it was quoted in the decision, but I——his
    testimony today was that it——if Mr. Vogt drove away,
    he wasn't going to stop him. He had no reason to do
    it, which would indicate that he wasn't commanding him
    to do anything, is that he was simply trying to make
    contact.
    ¶14     The    circuit      court   found    Vogt     guilty        of    the    OWI

violation and dismissed the PAC count.                    The court ordered a

forfeiture of $899, revoked Vogt's license for seven months,

ordered alcohol assessment and a driver safety plan, and entered

an order for a mandatory ignition interlock for one year.                            All

penalties     were     stayed    pending      appeal.       The         judgment     of

conviction was filed on August 3, 2012, and Vogt filed a notice

of appeal on August 13, 2012.

    ¶15     In    an   unpublished      decision,     the   court        of    appeals

reversed    the   circuit    court.          Cnty.   of   Grant    v.        Vogt,   No.

2012AP1812, unpublished slip op. (Wis. Ct. App. Mar. 14, 2013).

The court of appeals determined that "when a uniformed officer
approaches a vehicle at night and directs the driver to roll


                                         8
                                                                          No.      2012AP1812



down his or her window, a reasonable driver would not feel free

to ignore the officer."               Id., ¶13.        The court of appeals assumed

that Deputy Small "directed Vogt to roll down his window, rather

than       asking   him    if    he   would     do    so."         Id.     Based      on    this

assumption, the court of appeals concluded that a reasonable

driver would not have felt free to leave, and therefore, Deputy

Small seized Vogt without reasonable suspicion.                           Id., ¶¶13-14.

       ¶16     The County of Grant petitioned this court for review,

which we granted on October 15, 2013.

                                 II. STANDARD OF REVIEW

       ¶17     Whether someone has been seized presents a two-part

standard of review.               State v. Williams, 2002 WI 94, ¶17, 255

Wis. 2d 1, 646 N.W.2d 834.                This court will uphold the circuit

court's findings of fact unless they are clearly erroneous, but

the    application        of     constitutional        principles         to    those      facts

presents a question of law subject to de novo review.                              Id.       The

same standard of review applies to a motion to suppress.                                     See

State v. Hess, 2010 WI 82, ¶19, 327 Wis. 2d 524, 785 N.W.2d 568.
                                      III. DISCUSSION

       ¶18     Under      the    Fourth       Amendment       of    the      United     States

Constitution, "The right of the people to be secure in their

persons,       houses,      papers,       and       effects,       against      unreasonable

searches      and   seizures,         shall     not    be    violated . . . ."              U.S.

Const. amend. IV.7              The Wisconsin Constitution contains the same


       7
       The Fourth Amendment to the United States Constitution
reads in full:

                                                9
                                                         No.      2012AP1812



language,8 and "[w]e have historically interpreted the Wisconsin

Constitution's    protections   in    this   area   identically    to   the

protections under the Fourth Amendment as defined by the United

States Supreme Court."9     State v. Dearborn, 2010 WI 84, ¶14, 327

Wis. 2d 252,     786   N.W.2d 97      (footnote     omitted)      (citation

omitted).

     ¶19    The law on searches and the law on seizures present

separate lines of analysis.          With respect to the latter, the

          The right of the people to be secure in their
     persons,   houses,   papers,   and  effects,  against
     unreasonable searches and seizures, shall not be
     violated, and no Warrants shall issue, but upon
     probable cause, supported by Oath or affirmation, and
     particularly describing the place to be searched, and
     the persons or things to be seized.

U.S. Const. amend. IV.
     8
         The Wisconsin Constitution reads:

          The right of the people to be secure in their
     persons,   houses,    papers,   and  effects   against
     unreasonable searches and seizures shall not be
     violated; and no warrant shall issue but upon probable
     cause,   supported   by   oath   or affirmation,   and
     particularly describing the place to be searched and
     the persons or things to be seized.

Wis. Const. art. I, § 11.
     9
       While this court generally interprets the Wisconsin
Constitution to give the same protections as the Fourth
Amendment of the United States Constitution, we have determined
that the Wisconsin Constitution offers more protection than the
Fourth Amendment under the good faith exception, which does not
apply in this case.    See State v. Eason, 2001 WI 98, ¶60, 245
Wis. 2d 206, 629 N.W.2d 625. Because we interpret the Wisconsin
Constitution   to  be    coterminous with   the  United  States
Constitution in this area, the analysis in this opinion applies
to both constitutions.

                                     10
                                                                          No.         2012AP1812



Fourth Amendment and Article I, Section 11 of the Wisconsin

Constitution      are   not    implicated             until    a     government             agent

"seizes"   a   person.        State    v.      Young,      2006      WI    98,       ¶23,     294

Wis. 2d 1, 717 N.W.2d 729.            The reason is that not all personal

interactions      between     law     enforcement             officers          and     people

constitute a seizure.         Mendenhall, 446 U.S. at 552; Young, 294

Wis. 2d 1, ¶18 ("[N]ot all police-citizen contacts constitute a

seizure . . . .").

    ¶20    A seizure occurs "[o]nly when the officer, by means of

physical force or show of authority, has in some way restrained

the liberty of a citizen."            Mendenhall, 446 U.S. at 552 (quoting

Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).                         As Justice Stewart

stated in Mendenhall, "a person has been 'seized' within the

meaning of the Fourth Amendment only if, in view of all of the

circumstances     surrounding       the     incident,          a    reasonable          person

would have believed that he was not free to leave."                              Id. at 554

(footnote omitted).

    ¶21    When    Mendenhall       was written, Justice Stewart's lead
opinion was joined by only Justice Rehnquist.                             Justice Powell

authored   a   concurrence,      joined          by    Chief       Justice      Burger        and

Justice    Blackmun,     in    which        he        observed      that        "I     do     not

necessarily disagree with" Justice Stewart's standard, but "the

question   whether      the    respondent . . . reasonably                      could        have

thought she was free to 'walk away' when asked by two Government

agents for her driver's license and ticket is extremely close."

Id. at 560 n.1 (Powell, J., concurring).


                                          11
                                                                                 No.         2012AP1812



       ¶22     The Court's tentative acceptance of Justice Stewart's

standard       has      since     been         bolstered      and        confirmed.           INS        v.

Delgado, 466 U.S. 210, 215-17 (1984); Florida v. Royer, 460 U.S.

491, 497, 502-04 (1983) (plurality opinion); see also Kaupp v.

Texas, 538 U.S. 626, 629-30 (2003); Florida v. Bostick, 501 U.S.

429, 434-35 (1991); California v. Hodari D., 499 U.S. 621, 627-

28 (1991); Michigan v. Chesternut, 486 U.S. 567, 573 (1988);

Delgado,       466      U.S.    at     228     (Brennan,       J.,       concurring          in    part,

dissenting         in   part)     (citations           omitted)      ("A     majority             of    the

Court        has     since      adopted         [the    Mendenhall]          formula          as        the

appropriate standard for determining when inquiries made by the

police        cross       the        boundary          separating          merely          consensual

encounters         from       forcible         stops     to    investigate             a    suspected

crime.").

       ¶23     After      articulating           the    test       for    determining             when    a

seizure       takes      place,       Justice      Stewart         went     on    to        list       some

examples of circumstances that might suggest a seizure: "the

threatening          presence        of   several        officers,         the    display          of    a
weapon by an officer, some physical touching of the person of

the citizen, or the use of language or tone of voice indicating

that compliance with the officer's request might be compelled."

Mendenhall, 446 U.S. at 554 (citations omitted); see Kaupp, 538

U.S.    at     630.          Justice      Stewart       stated       that     without         similar

evidence that would lead a reasonable person to believe that he

or     she     was      not     free      to     leave,       an    interaction             with        law

enforcement is not a seizure as a matter of law.                                           Mendenhall,
446 U.S. at 555 (stating that "inoffensive contact between a
                                                  12
                                                                              No.          2012AP1812



member of the public and the police cannot, as a matter of law,

amount to a seizure of that person").

      ¶24    The        Supreme        Court        provided       further          guidance       in

Delgado, when it stated that "police questioning, by itself, is

unlikely to result in a Fourth Amendment violation.                                   While most

citizens will respond to a police request, the fact that people

do   so,    and    do    so     without          being    told    they    are       free    not    to

respond,     hardly        eliminates             the     consensual          nature        of    the

response."         Delgado, 466 U.S. at 216 (citing                            Schneckloth v.

Bustamonte,       412     U.S.        218,       231-34    (1973)).           The    Court       then

adopted the        Mendenhall          standard and stated that there is no

seizure     "[u]nless          the    circumstances         of    the     encounter         are    so

intimidating as to demonstrate that a reasonable person would

have believed he was not free to leave."                          Id.

      ¶25    The        rule     that        a    seizure        occurs       only     when       law

enforcement restrains a person's liberty by show of authority

advances the goals of the Fourth Amendment:

      The purpose of the Fourth Amendment is not to
      eliminate all contact between the police and the
      citizenry, but "to prevent arbitrary and oppressive
      interference by enforcement officials with the privacy
      and personal security of individuals."    United States
      v. Martinez-Fuerte, 428 U.S. 543, 554 [(1976)].      As
      long as the person to whom questions are put remains
      free to disregard the questions and walk away, there
      has been no intrusion upon that person's liberty or
      privacy as would under the Constitution require some
      particularized and objective justification.
Mendenhall, 446 U.S. at 553-54.                         To facilitate these goals, the

test is objective and "calls for consistent application from one
police     encounter       to        the   next,        regardless       of   the     particular

                                                   13
                                                                         No.       2012AP1812



individual's         response      to         the     actions      of     the      police."

Chesternut, 486 U.S. at 574.

      ¶26     To    sum    up,    there        are     countless        interactions      or

encounters among police and members of the community.                               Not all

encounters are seizures, and these non-seizure encounters are

not governed by the Fourth Amendment.                           Other interactions or

encounters     are    seizures         and    are     subject    to    Fourth    Amendment

criteria.      Fourth Amendment jurisprudence focuses on the line

between     seizures       and         mere     encounters        as      well     as     the

reasonableness        of    the    police/citizen             interactions         that    do

constitute seizures.

      ¶27     There are two kinds of permissible seizures.                           Young,

294 Wis. 2d 1, ¶20.          A Terry stop is an investigatory stop for

which a law enforcement officer must have reasonable suspicion

"in   light    of    his   experience          that     criminal       activity     may   be

afoot."10     Terry, 392 U.S. at 30; see Young, 294 Wis. 2d 1, ¶20;

State v. Waldner, 206 Wis. 2d 51, 57, 556 N.W.2d 681 (1996).                               An


      10
       The standards             for    a     Terry    stop     are     codified    in    the
Wisconsin Statutes:

           After having identified himself or herself as a
      law enforcement officer, a law enforcement officer may
      stop a person in a public place for a reasonable
      period of time when the officer reasonably suspects
      that such person is committing, is about to commit or
      has committed a crime, and may demand the name and
      address of the person and an explanation of the
      person’s conduct.       Such detention and temporary
      questioning shall be conducted in the vicinity where
      the person was stopped.

Wis. Stat. § 968.24.

                                              14
                                                                      No.        2012AP1812



officer has reasonable suspicion when he "possesses specific and

articulable facts which would warrant a reasonable belief that

criminal    activity      was     afoot."        Waldner,       206    Wis. 2d at       55

(citing State v. Chambers, 55 Wis. 2d 289, 294, 198 N.W.2d 377

(1972)).

    ¶28     The second kind of permissible seizure is an arrest,

which   normally       involves    "a     trip    to    the    station       house     and

prosecution      for    crime."        Young,    294    Wis. 2d 1,         ¶22   (quoting

Terry, 392 U.S. at 16).            To make an arrest, a law enforcement

officer must have probable cause to believe that the person

arrested has committed a crime.                Id.     That is, the officer must

"have sufficient knowledge at the time of the arrest to 'lead a

reasonable police officer to believe that the defendant probably

committed or was committing a crime.'"                      Id. (quoting State v.

Secrist, 224 Wis. 2d 201, 212, 589 N.W.2d 387 (1999)).

    ¶29     In    the    present    case,       neither       type    of    permissible

seizure came into play until Vogt opened the window and Deputy

Small detected signs of intoxication.                  Deputy Small may have had
a savvy hunch that the driver of the Vogt vehicle had been

drinking.     But a savvy hunch is not equivalent to the reasonable

suspicion    that      would    have     justified      a     Terry-type         temporary

detention.        Because       Deputy    Small      did    not      have    reasonable

suspicion to believe Vogt was operating while intoxicated until

after Vogt opened his window, we must determine whether Vogt was

seized before his window was rolled down.

                           A. Wisconsin Seizure Law


                                          15
                                                                         No.     2012AP1812



       ¶30    This    court     has    adopted        the    Mendenhall          test     for

determining whether a seizure took place, and it is the proper

test for this case.            Id., ¶37 ("Mendenhall is the appropriate

test    for   situations       where    the       question   is     whether      a    person

submitted to a police show of authority because, under all the

circumstances        surrounding       the    incident,       a    reasonable         person

would not have felt free to leave.").                  The test is objective and

considers whether an innocent reasonable person, rather than the

specific      defendant,       would     feel       free     to    leave       under      the

circumstances.        See Williams, 255 Wis. 2d 1, ¶23.

       ¶31    The seizure test is necessarily objective,11 but it is

complicated by the tendency of people to defer to a symbol of

authority no matter how it is manifested.                         A badge might imbue

an   officer's       request    with    intimidation         in    the    mind       of   some

persons, but the law must be more discerning.                        In most cases it

is important for courts conducting a Fourth Amendment seizure

analysis      to      distinguish       between         a     person's         individual

predisposition, which might lead the person to consent to an




       11
       The test must be objective because "any test intended to
determine what street encounters are not seizures must be
expressed in terms that can be understood and applied by the
officer. Asking him to determine whether the suspect feels free
to leave, however 'would require a prescience neither the police
nor anyone else possesses.'"     4 Wayne R. LaFave, Search and
Seizure § 9.4(a), at 568 (5th ed. 2012) (quoting United States
v. Hall, 421 F.2d 540 (2d Cir. 1969)).

                                             16
                                                              No.     2012AP1812



officer's   inquiry,   and   an    officer's      objective   conduct.12      To

their credit, citizens and others may feel tethered by social

norms to an officer's request and may consent in order to avoid

the taboo of disrespecting an officer of the law.                   However, a

person's consent is no less valid simply because an individual

is particularly susceptible to social or ethical pressures.13

Were it otherwise, officers would be hesitant to approach anyone

for fear that the individual would feel "seized" and that any

question asked, however innocuous, would lead to a violation of

the   Fourth   Amendment.         Thus,    when    determining      whether   an

individual was seized, we must replace the individual with the




      12
        See INS v. Delgado, 466 U.S. 210, 228 (1984) (Brennan,
J., concurring in part, dissenting in part) (stating that the
seizure   analysis  "properly  looks   not  to   the  subjective
impressions of the person questioned but rather to the objective
characteristics of the encounter which may suggest whether or
not a reasonable person would believe that he remained free
during the course of the questioning to disregard the questions
and walk away") (citing 3 W. LaFave, Search and Seizure § 9.2,
at 52 (1978)).
      13
        4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 581
(5th   ed.  2012)  (footnote   omitted)  (suggesting   that  law
enforcement "should be allowed 'to seek cooperation, even where
this may involve inconvenience or embarrassment for the citizen,
and even though many citizens will defer to this authority of
the police because they believe——in some vague way——that they
should.'") (quoting Model Code of Pre-Arraignment Procedure 258
(1975)).

                                      17
                                                                     No.         2012AP1812



paradigmatic       reasonable        person      and   focus    on    the       officer's

conduct under the totality of the circumstances.14

      ¶32       Although we have established the proper standards for

seizure     cases,     this       court   has    not   yet   considered         whether   a

person is necessarily seized within the meaning of the Fourth

Amendment when a law enforcement officer knocks on the window of

the person's vehicle.              However, we have expressed reluctance to

determine that pulling up behind a car and "present[ing] indicia

of    police      authority"        automatically       constitutes         a    seizure.

Young, 294 Wis. 2d 1, ¶¶65, 69 ("[N]ot every display of police

authority rises to a 'show of authority' that constitutes a

seizure.").        In Young, the officer stopped his squad car in the

middle     of    the   street      behind   the    defendant's       car,       which   was

parked on the side of the street.                 Id., ¶10.     The officer shined

his   spotlight        on   the    defendant's     vehicle     and   turned       on    his

emergency flashers, but he did not activate his red and blue

emergency lights.           Id.      This court was reluctant to label the

officer's conduct a "seizure," in part because he did not stop




      14
       To some extent, the "reasonable person" here is a legal
fiction.   That defendants often consent to searches of areas
that reveal incriminating evidence demonstrates that people
often do not feel free to decline an officer's request, even
absent a manifest show of authority.    However, the reasonable
person standard is necessary if the inquiry is to remain
objective. The value of objective standards in this area cannot
be gainsaid because the alternative is to equate the innocuous
to the arbitrary and substantially limit the role of law
enforcement in the community.

                                            18
                                                         No.    2012AP1812



the defendant's car (it was parked already),15 and the officer

did not use his red and blue emergency lights.            Id., ¶¶66, 68-

69.   We did not have to decide in Young whether the officer's

conduct was a seizure, but the case demonstrates that not all

manifestations of authority will result in a seizure.

                B. Decisions from Other Jurisdictions

      ¶33   Several     jurisdictions       outside    Wisconsin       have

determined    that    knocking   on    a   vehicle's   window   does   not

necessarily constitute a seizure.16          We discuss some of these

factually similar cases below.



      15
        In contrast, we determined that an impermissible seizure
occurred when officers stopped a moving vehicle without
reasonable suspicion by blocking its path with an unmarked squad
car.   State v. Harris, 206 Wis. 2d 243, 247, 258-59, 263, 557
N.W.2d 245 (1996).
      16
       See, e.g., United States v. Barry, 394 F.3d 1070 (8th
Cir. 2005) (no seizure when officer got out of his squad car,
shined a flashlight on his uniform and kept a hand on his gun as
he approached the defendant and knocked on the defendant's
vehicle window three separate times until defendant opened the
window); Ex parte Betterton, 527 So. 2d 747, 748-50 (Ala. 1988)
(determining that it was not a seizure when an officer
approached a parked car and knocked on the driver's window);
State v. Cerrillo, 93 P.3d 960 (Wash. Ct. App. 2004) (officer
knocking on vehicle window to wake up sleeping occupants and
requesting driver's license was not a seizure); Custer v. State,
135 P.3d 620, 625-26 (Wyo. 2006) (no seizure when officer
knocked on vehicle window twice to get defendant's attention).
But see State v. Patterson, 868 A.2d 188, 192-93 (Me. 2005)
(concluding that officer's knock on a car window and an order to
roll down the window constituted a seizure, although a mere
request might have led to a different result); Williams v. State
Dep't of Safety, 854 S.W.2d 102 (Tenn. Ct. App. 1992)
(determining that an officer's knock on a car window violated
the Fourth Amendment because there was no reasonable suspicion).

                                      19
                                                                          No.         2012AP1812



       ¶34     In    State    v.    Randle,       276    P.3d    732     (Idaho       Ct.    App.

2012),    an     officer      saw    the    defendant's         "vehicle        alone       in   a

parking lot with its front-end abutting a grassy knoll."                                Id. at

733.      The       officer   parked       about    two    car     lengths       behind       the

defendant, left the headlights of his squad car on, and knocked

on the defendant's window.                 Id.     The defendant opened the door,

and the officer noticed two open beer cans in the cup holder.

Id.    The officer smelled alcohol on the defendant's breath and

decided to conduct a field sobriety test, which the defendant

failed.      Id. at 734.           In considering the defendant's motion to

suppress       the     evidence      of     intoxication,          the     circuit          court

determined       that    even      though    he    could    not     pull      forward,        the

defendant       could    have      backed   up     and    driven       away     and    was    not

seized.      Id. at 737.        The court of appeals agreed, stating:

            After this review of the totality of the
       circumstances surrounding the encounter between Randle
       and the officer, we conclude that, when the officer
       parked behind Randle's vehicle, left the patrol car's
       headlights on, approached Randle's vehicle and knocked
       on   the   window,   such  conduct   would  not   have
       communicated to a reasonable person that he or she was
       not at liberty to ignore the officer's presence and go
       about his or her business.

     Both   cited    cases  that    have determined   that   the
circumstances surrounding an officer's knock on a vehicle window
constituted   a   seizure  are   readily distinguishable.     In
Patterson, the court determined that the officer commanded the
driver to roll down the window instead of merely making a
request. Patterson, 868 A.2d at 192-93. The court in Williams
did not conduct a seizure analysis and instead ended the inquiry
when it determined that the officers did not have a reasonable
suspicion to knock on the vehicle window. Williams, 854 S.W.2d
at 105-07. Therefore, neither case provides persuasive guidance
for this court.

                                              20
                                                                    No.        2012AP1812



Id. at 738.

      ¶35    In State v. Steffes, 791 N.W.2d 633 (N.D. 2010), an

officer responded to a tip that a man who appeared intoxicated

was entering a vehicle in the parking lot of a bar.                       Id. at 634.

The officer arrived and parked far enough from Steffes' vehicle

so that Steffes could leave the parking spot if he wanted.                           Id.

Steffes was sitting in the driver's seat holding a cell phone,

and the radio was playing loudly.                     Id. at 635.         The officer

"tapped on the driver's side window and with his finger motioned

downward indicating he wanted Steffes to lower the window."                          Id.

Steffes     looked   at    the    officer       but   did   not   respond,      so   the

officer knocked again.            Id.      At that point, Steffes opened the

door slightly and began to talk with the officer.                       Id.

      ¶36    While the two were talking, another officer arrived.

Id.    When    the   first       officer    asked     Steffes     for    his   driver's

license, Steffes said that he did not have it with him and gave

a   fake    name   and    birthdate.        Id.       Steffes     was    charged     with

providing false information to a law enforcement officer and
moved to suppress on grounds that he was unlawfully seized.                          Id.

The district court denied the motion and entered judgment on

Steffes'     conditional     guilty     plea.         Id.    On    appeal,      Steffes

argued that the officer's second knock, oral request, and hand

gesture constituted a seizure.               Id. at 636.          The Supreme Court

of North Dakota noted that the officer did not turn on the red

and blue emergency lights, did not block Steffes' car, and did

not display authority.            Id.   Therefore, Steffes was not seized.
Id. at 637.
                                           21
                                                                        No.    2012AP1812



       ¶37    In State v. Bryant, 161 S.W.3d 758 (Tex. App. 2005),

around 2:00 a.m., an officer noticed the defendant's car turn

into a shopping center in which the businesses were closed.                           Id.

at 760, 762.          The officer pulled into the parking lot, got out

of his patrol car, and knocked on the defendant's window.                             Id.

When the defendant opened his car door, the officer smelled

alcohol       and     arrested        the     defendant      for        driving     while

intoxicated.        Id.    The circuit court suppressed the evidence of

intoxication because the defendant did not violate any traffic

laws,   and     the    officer    did       not   have    reasonable      suspicion    to

approach the defendant's car and knock on the window.                              Id. at

761.      The      court   of    appeals      reversed,     determining        that   the

officer "was not required to have reasonable suspicion that [the

defendant] was engaged in criminal activity to approach [the

defendant's] car and knock on his window."                        Id. at 762.       Thus,

the interaction "did not become an investigative detention until

after [the defendant] opened his car door."                   Id.

       ¶38    These    cases     demonstrate       that    when    an    officer    parks
near a person's vehicle, gets out, and knocks on the person's

window,      the    officer     has   not    necessarily     displayed        sufficient

authority to cause a reasonable person to feel that he or she




                                             22
                                                                      No.        2012AP1812



was not free to leave.17                 While a person is not automatically

seized    by    a    knock      on    the   window,      or   even   a    supplementary

request,    the      seizure         inquiry    looks    at   the    totality      of   the

circumstances to determine whether the officer has effected a

detention.       Thus, we turn to the facts of the case before us to

determine whether Vogt was unlawfully seized.

           C. The Interaction Between Vogt and Deputy Small

    ¶39        Vogt's    argument        focuses       mainly   on    Deputy       Small's

conduct before Vogt opened the window.                    Once the window was open

and Deputy Small smelled intoxicants and detected Vogt's slurred

speech,    Deputy       Small    had     reasonable      suspicion       that    Vogt   was

operating his vehicle while intoxicated.                      Before that point, the

parties    agree        that     Deputy        Small    did   not    have       reasonable

suspicion to stop Vogt.                 Thus, the question for this court is

whether Deputy Small seized Vogt at any time before Vogt rolled

down his window.         We conclude that he did not.

    ¶40        Vogt suggests that the seizure occurred when Deputy

Small knocked on the window and "commanded" Vogt to roll down
the window.         Vogt admits that Deputy Small did not seize him by


    17
       See 4 Wayne R. LaFave, Search and Seizure § 9.4(a), at
574-77 (5th ed. 2012) (footnotes omitted) ("[I]f an officer
merely walks up to a person standing or sitting in a public
place (or, indeed, who is seated in a vehicle located in a
public place) and puts a question to him, this alone does not
constitute a seizure.").  In addition, "The officer may tap on
the window and perhaps even open the door if the occupant is
asleep. A request that the suspect open the door or roll down
the window would seem equally permissible, but the same would
not be true of an order that he do so." Id., § 9.4(a), at 594-
95 (footnotes omitted).

                                               23
                                                                    No.      2012AP1812



following him into the parking lot.                 He admits that Deputy Small

did not seize him by getting out of his squad car and would not

have seized him by walking around Vogt's car and looking through

the windows.        However, Vogt takes issue with the location of

Deputy    Small's       car   and   his     conduct    at   Vogt's    window.       In

claiming    that    a    seizure     took    place,    Vogt     highlights    several

alleged    facts:       (1)   Deputy   Small       parked   right    behind    Vogt's

vehicle; (2) "the location of Mr. Vogt's vehicle in the parking

lot was not conducive to simply driving away"; (3) Deputy Small

commanded Vogt to roll down the window; and (4) Deputy Small

rapped loudly on the window.

    ¶41     Even taken together, these facts do not demonstrate

that Vogt was seized.               Although Deputy Small parked directly

behind Vogt and allegedly there were obstacles on three sides of

Vogt's vehicle, these facts do not demonstrate that Vogt was

seized because he still could have driven away.                           The circuit

court did not explicitly find that Vogt had room to leave the

parking lot, but "if a circuit court fails to make a finding
that exists in the record, an appellate court can assume that

the circuit court determined the fact in a manner that supports

the circuit court's ultimate decision."                 State v. Martwick, 2000

WI 5,     ¶31, 231 Wis. 2d 801, 604                N.W.2d 552    (citing     Sohns v.

Jensen,    11   Wis. 2d 449,         453,    105     N.W.2d 818     (1960)).       The

appellate court is entrusted to make that assumption "only when

evidence exists in the record to support the 'assumed fact.'"

Id., ¶74 (Abrahamson, C.J., dissenting).                      The record supports
the assumption that Vogt had room to leave.
                                            24
                                                                      No.     2012AP1812



      ¶42    Although Deputy Small pulled up behind Vogt's vehicle,

there was testimony at trial that Vogt might have had 50 feet in

front of him in which he could have pulled forward and turned

around.      In     addition,    the      video    from   the       camera   in    Deputy

Small's squad car shows ample room for the car to move forward.

There was some discussion about ice washing up onto the lot in

the past; however, there is no ice visible on the video and no

evidence     that    there    actually      was    ice    on   December      25,    2011.

Thus, we assume that because the circuit court determined that a

reasonable person in Vogt's circumstances would have felt free

to leave, there was an avenue by which Vogt could have actually

left.     Like the defendant in Randle who was not seized simply

because the grassy knoll limited his exit options, Randle, 276

P.3d at 733, 738, Vogt was not seized simply because there was

only one way out of the parking lot.

      ¶43    Vogt's assertion that he was seized because of Deputy

Small's "command" to roll down the window also is unpersuasive.

The   circuit       court    found   in    its     decision     on    the    motion    to
suppress     that     "[t]here       is    no     evidence     that       Deputy    Small

'commanded' Mr. Vogt to roll down his window by tapping on the

window and motioning that he roll down his window."                          At trial,

the court found that Deputy Small's testimony "would indicate

that he wasn't commanding [Vogt] to do anything, . . . that he

was simply trying to make contact."                      Even though the circuit

court noted that Deputy Small maybe "wasn't quite as subtle as

he thought he was being," the court still determined that Deputy
Small's     conduct    was    not    so   intimidating         as    to   constitute    a
                                           25
                                                                       No.      2012AP1812



seizure.     Thus, Vogt's arguments that he was seized due to a

"command" from Deputy Small are unavailing.18

     ¶44    Vogt    also      emphasizes        the   loudness    of    the     knock      in

arguing    that    he   was    seized.          Although   the     seizure      analysis

considers the totality of the circumstances, the volume of the

knock     generally     will       not   play     a    significant       roll    in     the

analysis.      We     live    in    a    time    of   distraction       where    earbuds

connected to smartphones or other music devices are commonplace.

Vehicles may be outfitted with sophisticated stereo systems.                               It

might be necessary for an officer to motion or to knock in order

to attract the attention of a person with whom he would like to

speak if the person is willing.                       To prescribe the types of

permissible attention-getting gestures or the allowable volume

of a knock would be an unrealistic venture.                    A knock might sound

loud to an unsuspecting vehicle occupant, but that alone does

not mean the occupant has been seized.

     ¶45    Vogt    also      implies     that    the   fact     that    he   was     in   a

vehicle affects the analysis because if he had left, he might
have been charged with obstruction.                   Vogt's argument implicitly

     18
       The court of appeals decided to assume that Deputy Small
"commanded" Vogt to roll down the window.     Cnty. of Grant v.
Vogt, No. 2012AP1812, unpublished slip op., ¶13 (Wis. Ct. App.
Mar. 14, 2013).     After noting that there was a discrepancy
between Deputy Small's and Vogt's testimony, the court of
appeals said that "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." Id. Because the circuit court
made findings that Deputy Small did not command Vogt and
determined Vogt was not seized, the court of appeals' assumption
was not correct.

                                           26
                                                           No.      2012AP1812



suggests that Wis. Stat. § 346.04,19 which prohibits a driver

from ignoring a signal from a traffic officer, limited Vogt's

ability to drive away.       At oral argument, the County of Grant

pointed out that Wis. Stat. § 346.04 is inapplicable because it

applies only to highways.     We agree.

    ¶46    Wisconsin    Stat. § 346.02(1)   is    clear:    "This    chapter

applies exclusively upon highways except as otherwise expressly

provided   in   this   chapter."   The    term,   "highways,"       does   not

include public parking lots.       65 Wis. Op. Att'y Gen. 45 (1976)

(OAG 45-47).     A 1957 legislative committee note to Wis. Stat.


    19
         Wisconsin Stat. § 346.04 provides:

         (1) No person shall fail or refuse to comply
    with any lawful order, signal or direction of a
    traffic officer.

         (2) No operator of a vehicle shall disobey the
    instructions of any official traffic sign or signal
    unless otherwise directed by a traffic officer.

         (2t) No operator of a vehicle, after having
    received a visible or audible signal to stop his or
    her vehicle from a traffic officer or marked police
    vehicle, shall knowingly resist the traffic officer by
    failing to stop his or her vehicle as promptly as
    safety reasonably permits.

         (3) No operator of a vehicle, after having
    received a visual or audible signal from a traffic
    officer, or marked police vehicle, shall knowingly
    flee or attempt to elude any traffic officer by
    willful or wanton disregard of such signal so as to
    interfere with or endanger the operation of the police
    vehicle, or the traffic officer or other vehicles or
    pedestrians, nor shall the operator increase the speed
    of the operator's vehicle or extinguish the lights of
    the vehicle in an attempt to elude or flee.

                                   27
                                                                  No.     2012AP1812



§ 346.61 is "highly persuasive evidence of legislative intent

that public parking lots are not highways for the purpose of

enforcement of ch. 346, Stats., generally."                Id. at 46.

      ¶47     The exceptions alluded to in the phrase "except as

otherwise expressly provided in this chapter" are the exceptions

found   in    Wis.     Stat.    § 346.61,     namely,     §§ 346.62     to     346.64

(reckless driving and drunken driving).                 These exceptions apply

beyond the limitation of "highways" and thus may be applied in

public parking lots.           However, these exceptions do not include

Wis. Stat. § 346.04, which applies "exclusively upon highways."

Thus, Vogt could have driven out of the parking lot without

violating § 346.04.

      ¶48     If Deputy Small had pursued Vogt and ordered him to

stop once he left the parking lot, Vogt could have pulled over

to comply.       But stopping a moving vehicle is indisputably a

seizure,      State    v.    Harris,    206     Wis. 2d 243,      557   N.W.2d 245

(1996), and requires Fourth Amendment analysis.

      ¶49     In any event, Vogt cannot speculate about what might
have happened if he had tried to leave.                 See Delgado, 466 U.S.

at   220-21    (stating      that   defendants     "may    only    litigate     what

happened to them").          In short, § 346.04 does not support Vogt's

argument.      We need not decide whether § 346.04 would affect the

seizure     analysis    if     Deputy   Small    had   encountered      Vogt    on   a

highway.      However, § 346.04 does not apply to the facts as we

know them.

      ¶50     To support his arguments, Vogt cites an unpublished
court of appeals decision involving an interaction between a
                                         28
                                                                          No.         2012AP1812



person    in    a     vehicle      and    two     police      officers.         See    City       of

Kenosha v. Tower, No. 2009AP1957, unpublished slip op. (Wis. Ct.

App.    Oct.     6,    2010).            In     Tower,    two    bike    patrol        officers

approached       the       defendant's        van,     which    was     stopped       with    the

engine running on the side of the street where there was a "no

parking" sign.             Id., ¶2.       Immediately after making contact with

the defendant, the officers ordered her to "put the vehicle in

'park.'"       Id.      The officers noticed signs of intoxication, and

eventually, because the defendant refused to provide a breath

sample, her license was revoked.                         Id., ¶¶2-4.       On appeal, the

city appeared to acknowledge that a seizure occurred and focused

on    whether       there     was     reasonable         suspicion.           Id.,     ¶¶7,       11

("Because the City argues this was a valid Terry stop, on appeal

we need only address whether the facts known to the officers,

considered together as a totality of the circumstances, provided

them    the    requisite        reasonable           suspicion    to    justify        stopping

Tower.").       Thus, Tower does not support Vogt's argument because

the    question       in    that     case     was     whether    there    was     reasonable
suspicion, not whether the defendant was seized.

       ¶51     Ultimately, what Deputy Small did in this case is what

any    traffic      officer     might         have    done:     investigate      an        unusual

situation.          As the circuit court noted, "what the officer did

seems    perfectly          reasonable."             Deputy    Small    was    acting        as   a

conscientious officer.                He saw what he thought was suspicious

behavior and decided to take a closer look.                            Even though Vogt's

conduct       may     not     have       been     sufficiently         suspect        to     raise
reasonable suspicion that a crime was afoot, it was reasonable
                                                 29
                                                                           No.        2012AP1812



for Deputy Small to try to learn more about the situation by

engaging Vogt in a consensual conversation.20

       ¶52     The Fourth Amendment's prerequisites for a seizure are

intended to safeguard the privacy of all persons; thus, a mere

hunch is not enough to condone a seizure.                          See Terry, 392 U.S.

at 27.       Yet, while the law applicable to the facts of this case

does not condone a seizure, it does not forestall an officer's

reasonable          attempt      at   further          inquiry.                  In     similar

circumstances, a person has the choice to refuse an officer's

attempt to converse and thereby retain his privacy, or respond

by talking to the officer and aiding the officer in his duty to

protect the public.             A dutiful officer does not make a mistake

by presenting a person with that choice.                          Only when the officer

forecloses      the    choice    by   the    way      in    which     he    exercises          his

authority——absent reasonable suspicion or probable cause——does

he violate the Fourth Amendment.

       ¶53     Although it may have been Vogt's social instinct to

open     his    window    in     response        to    Deputy        Small's          knock,     a
reasonable person in Vogt's situation would have felt free to

leave.         As     several    jurisdictions             have    recognized,          a      law

enforcement         officer's     knock     on    a    vehicle        window          does     not

automatically constitute a seizure.                   The circumstances attendant

to the knock in the present case are not so intimidating as to


       20
        See Barry, 394 F.3d at 1075 (citation omitted) (stating
that the officer "probably would have been remiss had he ignored
the vehicle parked in an alley behind closed stores at 11:18
p.m.").

                                            30
                                                                         No.            2012AP1812



transform     the     knock      into   a    seizure.          None     of    the       examples

outlined     by     Justice      Stewart       as    demonstrating       a     seizure        are

present in this case.             See Mendenhall, 446 U.S. at 554-55.                        Vogt

was   not     subject       to    the       threatening        presence        of       multiple

officers.      Deputy Small did not brandish any weapon.                                There is

no evidence that Deputy Small touched Vogt, and as discussed

above, Deputy Small did not speak in a way that would suggest

Vogt was compelled to roll down the window.                        While the facts of

Justice Stewart's examples need not be present for there to be a

seizure,      the     facts      in     this        case    are   not        sufficient         to

demonstrate that a reasonable person would not feel free to

leave.      Therefore, under the totality of the circumstances, Vogt

was not seized.

                                      IV. CONCLUSION

      ¶54    Although we acknowledge that this is a close case, we

conclude that a law enforcement officer's knock on a car window

does not by itself constitute a show of authority sufficient to

give rise to the belief in a reasonable person that the person
is not free to leave.              The objective of law enforcement is to

protect     and     serve   the    community.              Accordingly,       an    officer's

interactions with people are not automatically adversarial.                                     A

court's "seizure" inquiry into one of these interactions must

examine the totality of the circumstances, seeking to identify

the   line    between       an   officer's          reasonable    attempt          to    have    a

consensual        conversation        and    a   more      consequential        attempt         to

detain an individual.              The facts in this case do not show a
level of intimidation or exercise of authority sufficient to
                                               31
                                                             No.     2012AP1812



implicate the Fourth Amendment until after Vogt rolled down his

window and exposed the grounds for a seizure.               Consequently, we

reverse.

    By     the   Court.—The   decision   of   the   court    of    appeals   is

reversed.




                                    32
                                                                             No.   2012AP1812.akz




       ¶55    ANNETTE KINGSLAND ZIEGLER, J.                       (concurring).          I join

the majority opinion, but concur and go further to conclude that

even if a seizure were to have occurred, the officer was acting

as a community caretaker at the time of the seizure.

       ¶56    "Officers        may    exercise       two    types       of    functions:       law

enforcement functions and community caretaker functions."                                 State

v. Pinkard, 2010 WI 81, ¶18, 327 Wis. 2d 346, 785 N.W.2d 592

(citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973)).                                 Officers

acting       in     their       community           caretaker          capacity       "may      be

constitutionally permitted to perform warrantless searches and

seizures."         Id., ¶14 (citing Cady, 413 U.S. at 448; State v.

Ziedonis,         2005    WI     App     249,        ¶14,        287     Wis. 2d 831,          707

N.W.2d 565).         The       exception     exists,        in     part,      because    "'[a]n

officer less willing to discharge community caretaking functions

implicates        seriously      undesirable          consequences           for     society   at

large.'"      Id., ¶33 (quoting State v. Horngren, 2000 WI App 177,

¶18, 238 Wis. 2d 347, 617 N.W.2d 508).
       ¶57    An    officer      is    engaged        in    a     "bona       fide    community

caretaker function" only if that officer has "an objectively

reasonable basis" to conclude "that a motorist may have been in

need of assistance" at the time of the stop.                               State v. Kramer,

2009 WI 14, ¶¶36-37, 315 Wis. 2d 414, 759 N.W.2d 598.                                  Further,

the exception to the warrant requirement is satisfied only if

"the   officer's         exercise      of   a       bona    fide       community      caretaker

function was reasonable."                   Id.,     ¶40 (citing             State v. Kelsey
C.R., 2001 WI 54, ¶35, 243 Wis. 2d 422, 626 N.W.2d 777).                                     This

                                                1
                                                                 No.   2012AP1812.akz


requires courts to "balanc[e] a public interest or need that is

furthered by the officer's conduct against the degree of and

nature      of    the   restriction    upon    the    liberty    interest   of   the

citizen."         Id.     In balancing these interests, courts consider

the following factors:

      (1) the degree of the public interest and the exigency
      of the situation; (2) the attendant circumstances
      surrounding the seizure, including time, location, the
      degree of overt authority and force displayed; (3)
      whether an automobile is involved; and (4) the
      availability,   feasibility   and   effectiveness   of
      alternatives to the type of intrusion actually
      accomplished.
Id., ¶41.

      ¶58        With respect to the first factor, "the public has a

substantial interest in ensuring that police assist motorists

who   may    be     stranded . . . ."         Kramer,   315     Wis. 2d 414,     ¶42.

Police assistance to motorists is "'not only authorized, but

constitute[s] an important duty of law enforcement officers.'"

Id.   (quoting          State   v.   Goebel,    103     Wis. 2d 203,     208,    307

N.W.2d 915 (1981)).             Thus, the first factor weighs in favor of

the reasonableness of Officer Small's exercise of the community

caretaker function.

      ¶59        With respect to the second factor, Officer Small was

checking on the occupants of a vehicle parked at the top of a

boat ramp in a closed park at approximately 1:00 on Christmas




                                          2
                                                                       No.   2012AP1812.akz


morning.1        The presence of the vehicle in a closed park, at that

hour, and at that time of the year, was unusual at a minimum.

Under      the    totality    of    the    circumstances,        it    was   objectively

reasonable for Officer Small to conclude that the occupants of

the vehicle might be in need of assistance.2                           Further, as the

majority opinion properly notes, Officer Small used a minimum of

overt       authority   and       force   in       contacting    the    driver    of   the

vehicle.         Majority op., ¶¶40-44.             The second factor thus weighs

in favor of the reasonableness of Officer Small's conduct.

       ¶60       The third factor also militates in favor of finding

that       Officer   Small     acted      reasonably,       as   the    case    at   issue

involves an automobile.              See Kramer, 315 Wis. 2d 414, ¶44.                  As

this court has stated, "a citizen has a lesser expectation of

privacy in an automobile," and so the privacy interest at issue

weighs       less    heavily       against     the     officer.         Ziedonis,      287

Wis. 2d 831, ¶31.

       ¶61       Finally,    in    considering        the   fourth     factor,    Officer

Small had no other reasonable alternatives for discharging his


       1
       As a practical matter, Vogt's presence in the parking lot
after the park had closed was quite possibly illegal.       Vogt
concedes that the park was closed, and that a posted sign
indicated that it was illegal to enter the park after closing.
Grant County Ordinances § 200-2 gives a broad definition of
"park" that would seem to encompass the parking lot.
       2
       While Officer Small testified that he thought the vehicle
was "suspicious," we have held that when "'an objectively
reasonable basis for the community caretaker function is shown,
that determination is not negated by the officer's subjective
law enforcement concerns.'"   State v. Pinkard, 2010 WI 81, ¶31
n.11, 327 Wis. 2d 346, 785 N.W.2d 592 (quoting State v. Kramer,
2009 WI 14, ¶30, 315 Wis. 2d 414, 759 N.W.2d 598).

                                               3
                                                                            No.   2012AP1812.akz


community caretaker function.                    See Kramer, 315 Wis. 2d 414, ¶45.

Officer Small had to contact the driver of the vehicle in order

to   determine       whether        he     was       in    need       of   assistance.       As

discussed,     the    manner        of    that       contact      was      reasonable.      The

fourth factor thus weighs in Officer Small's favor as well.

Thus, I conclude that Officer Small's conduct in the case at

issue   was    a    reasonable           exercise         of    his    community     caretaker

function.

     ¶62      Indeed, not only was Officer Small's checking on the

occupants of the vehicle objectively reasonable, we also expect

our officers to react to such situations in this way and not sit

idly by with the hope that the occupants will be safe.

     ¶63      The    facts     in        the     case      at     issue     are   essentially

identical to those in Kramer.                     Officer Small did not act in an

overbearing or excessively intrusive manner.                               His behavior was

constitutionally permissible.                  Officer Small simply walked up to

the driver's side window of the vehicle to initiate contact with

the driver.         Under the circumstances presented, his action was
"the only reasonable approach that [the officer] could take in

performing     this    community           caretaker           function."         Kramer,   315

Wis. 2d 414, ¶44.        As a result, I conclude that Officer Small's

conduct was justified under the community caretaker exception.

     ¶64      For the foregoing reasons, I concur.

     ¶65      I am authorized to state that Justices PATIENCE DRAKE

ROGGENSACK and MICHAEL J. GABLEMAN join this concurrence.




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                                                             No.     2012AP1812.ssa




      ¶66   SHIRLEY S. ABRAHAMSON, C.J.              (dissenting).        I would

affirm the decision of the court of appeals holding that the

officer's conduct in the instant case constituted a seizure of

the   defendant    within   the    meaning      of   the   federal     and   state

constitutions.

      ¶67   No one disputes that the legal standard to be applied

to determine whether a seizure occurred in the instant case is

as follows:       "[A] seizure occurs if 'in view of all of the

circumstances     surrounding     the     incident,    a   reasonable        person

would have believed that he was not free to leave.'"1

      ¶68   The   dispute   is    about   the    application    of     the   legal

standard to the totality of the circumstances of the instant

case.2


      1
       Brendlin v. California, 551 U.S. 249, 255 (2007) (quoting
United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

     See also majority op., ¶30; State v. Williams, 2002 WI 94,
¶23, 255 Wis. 2d 1, 646 N.W.2d 834.
      2
       The totality of the circumstances is important.  A small
variation in the circumstances often determines the outcome.
See Wayne R. LaFave, 4 Search & Seizure:      A Treatise on the
Fourth Amendment § 9.4(a), at 594-95 (5th ed. 2013):

      [T]he mere approach and questioning of [persons seated
      in parked vehicles] does not constitute a seizure.
      The result is not otherwise when the officer utilizes
      some generally accepted means of gaining the attention
      of the vehicle occupant or encouraging him to
      eliminate any barrier to conversation.     The officer
      may tap on the window and perhaps even open the door
      if the occupant is asleep. A request that the suspect
      open the door or roll down the window would seem
      equally permissible, but the same would not be true of
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                                                               No.   2012AP1812.ssa


      ¶69     Here are the circumstances: It was late at night; the

parking lot was empty; Deputy Small was in full uniform with his

pistol     fully   visible;   the    deputy    parked   his    squad    car    with

headlights on right behind the defendant's vehicle; the location

of the defendant's vehicle in the parking lot was not conducive

to   simply    driving    away;     Deputy    Small   rapped    loudly    on   the

window; Deputy Small signaled the defendant to roll down the

window.

      ¶70     Courts across the country have divided when confronted

with facts substantially similar to the ones in the instant

case.3      Why?   Because courts engage in a fiction in determining

whether the mythical reasonable person in the position of the

defendant would have believed that he or she was not free to

leave.4

      ¶71     Studies demonstrate that the reasonable person "free

to   leave"    standard    applied     in    judicial   decisions       does    not

generally reflect what real, everyday people think and how they




      an order that he do so (footnotes omitted, emphasis
      added).
      3
          See several cases described in majority op., ¶¶33-38.
      4
          See majority op., ¶31 n.14.

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                                                         No.    2012AP1812.ssa


act when approached by law enforcement officers.5              In short, the

world of legal decisions does not reflect the real world.                  As

Professor LaFave has written, the United States Supreme Court

finds "a perceived freedom [to leave] in circumstances when only

the most thick-skinned of suspects would think such a choice was

open to them."6

     ¶72   When I look to the totality of the circumstances in

the instant case, I conclude that, under the circumstances, a

reasonable   person   would   not   have   felt   free   to      leave.     A

reasonable person would have had three options:                (1) to drive

away; (2) to stay put with the window closed; or (3) to comply

with the officer's directions.

     ¶73   No reasonable person I can imagine would feel free to

drive away under the circumstances of the present case when the

     5
       See, e.g., David K. Kessler, Free To Leave: An Empirical
Look at the Fourth Amendment's Seizure Standard, 99 J. Crim. L.
& Criminology 51 (2009) (concluding that the average person does
not feel free to leave simple interactions with police officers,
based on empirical evidence from studying two scenarios in which
the United States Supreme Court has held that a reasonable
person would feel free to leave, on public sidewalks and on
busses); Edwin J. Butterfoss, Bright Line Seizures: The Need for
Clarity in Determining When Fourth Amendment Activity Begins, 79
J. Crim. L. & Criminology 437, 439-42 (1988) (describing the
"free to leave" test as artificial, resulting in outcomes "which
bear little relationship to the individual's actual freedom to
walk away"); Janice Nadler, No Need to Shout:     Bus Sweeps and
the Psychology of Coercion, 2002 Sup. Ct. Rev. 153 (2002)
(criticizing broadly the Court's post-Mendenhall jurisprudence
as ignorant of human behavior with respect to authority figures,
creating a set of non-seizures that nonetheless relied upon the
coercive force of law enforcement).
     6
       Wayne R. LaFave, Pinguitudinous Police, Pachydermatous
Prey: Whence Fourth Amendment "Seizures"?, 1991 U. Ill. L. Rev.
729, 739-40.

                                    3
                                                                  No.   2012AP1812.ssa


officer knocked on the car window and instructed the person to

roll   down    the       car   window.        A    reasonable    person     would   be

concerned that driving away could be viewed as violating some

law that governs obstructing an officer, disobeying an officer,

or fleeing.

       ¶74    No reasonable person I can imagine would feel free to

simply stay put with the car window closed for substantially the

same reasons that no reasonable person would have just driven

off.

       ¶75    As   the    court      of    appeals   wrote,     "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."                     County of Grant v. Vogt, No.

2012AP1812, unpublished slip op. ¶13 (Wis. Ct. App. March 14,

2013).

       ¶76    Before I conclude, I address the community caretaker

function that the concurrence addresses.

       ¶77    Exceptions       to    the    warrant    requirement      are   to    be
carefully delineated.               "The State bears the burden of proving

that the officer's conduct fell within the scope of a reasonable

community caretaker function."                    State v. Kramer, 2009 WI 14,

¶17, 315 Wis. 2d 414, 759 N.W.2d 598 (citation omitted).                            The

State in the instant case never met or attempted to meet this

burden.

       ¶78    The concurring opinion concludes, "Under the totality

of the circumstances, it was objectively reasonable for Officer
Small to conclude that the occupants of the vehicle might be in

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                                                          No.    2012AP1812.ssa


need   of    assistance."     Concurrence,      ¶59.     But     neither   the

officer's testimony nor the State's arguments demonstrate that

the officer ever came to that conclusion or that that conclusion

is objectively reasonable on the basis of this record.               Overall,

the concurring opinion relies on a wholly speculative premise.

       ¶79   For the reasons set forth, I dissent.

       ¶80   I   am   authorized   to   state   that   Justice    ANN   WALSH

BRADLEY joins this dissent.




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