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COURT OF APPEALS DECISION DATED AND FILED February 27, 2014 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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Appeal No.� |
2013AP1609 |
Cir. Ct. No.� 2013TR2395 |
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STATE OF WISCONSIN� |
IN COURT OF APPEALS |
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DISTRICT IV |
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In the matter of the refusal of Keith R. Friederick: State of Wisconsin, ��������� Plaintiff-Respondent, ���� v. Keith R. Friederick, ��������� Defendant-Appellant. |
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����������� APPEAL from an order of the circuit court for Grant County:� craIg r. day, Judge.� Affirmed.�
�1������� KLOPPENBURG, J.[1] Keith Friederick appeals an order of the circuit court imposing a twelve-month revocation of his operating privileges based on Friederick�s refusal to submit to a chemical test of his breath to determine his blood alcohol concentration pursuant to Wis. Stat. � 343.305.� Friederick argues that the circuit court erred in concluding that Friederick�s refusal to submit to a chemical test of his breath was improper, because Friederick�s refusal occurred subsequent to a seizure that was not supported by reasonable suspicion.� For the reasons that follow I conclude that no seizure occurred, and therefore affirm the circuit court�s order.��
BACKGROUND
�2������� After the encounter at issue in this appeal, Grant County Sheriff�s Deputy Matthew Small arrested Friederick for operating while intoxicated.� After transporting Friederick to the county jail, Small read Friederick the �Informing the Accused� form and asked Friederick to submit to a breath test.� Friederick refused the breath test.� As a result, Small issued Friederick a Notice of Intent to Revoke Operating Privilege, which notified Friederick that his operating privileges could be revoked because Friederick refused to submit to the test.� Friederick requested a hearing on the revocation.�
�3������� The sole issue at the hearing was whether Small�s initial encounter with Friederick constituted a seizure.� Small and Friederick testified at the hearing, and what follows is a summary of the circuit court�s factual findings based on their testimony.�
�4������� Small was parked in his squad car around 1:30 a.m. when he observed an individual wearing blue athletic shorts and a Chicago Bulls shirt get onto a motorcycle.� The individual drove past Small�s location and turned into an alley.� Small followed, and when he turned into the alley he saw that the motorcycle was parked, but he did not see the driver.� Small continued through the alley onto Maple Street.� Small saw someone dressed similarly to the motorcycle driver walking on Maple Street.��
�5������� Small, who was still in his squad car, caught up to the individual.� Small did not activate his emergency lights or his siren.� Small parked and exited his squad car.� Upon approaching the individual, Small said, �Good evening, I�m Deputy Small, I�d like to talk to you,� and asked the individual if he had been driving a motorcycle.� Small asked the individual for his identification, and the man identified himself as Friederick.� At this point, a second officer arrived.�
�6������� There was no physical contact between Friederick and the officers.� Small did not tell Friederick that he was free to leave, but he also did not tell Friederick that he could not leave.� During the encounter, Friederick �made no explicit attempt to leave.��
�7������� Following the taking of the testimony summarized above, the circuit court concluded that Friederick was not seized, explaining that the encounter between Friederick and Small was consensual, and that �[i]n this instance, there was nothing that would amount to an affirmative showing of authority.��
DISCUSSION
�8������� Friederick contends that Small�s actions amounted to a seizure, and that the seizure was not supported by reasonable suspicion.� As explained below, I reject Friederick�s arguments.�
�9������� The Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution both protect against unreasonable seizures.� However, not all police-citizen encounters are seizures subject to the protections of the United States and Wisconsin Constitutions.� State v. Young, 2006 WI 98, �18, 294 Wis. 2d 1, 717 N.W.2d 729.� A police-citizen encounter is elevated to the level of a seizure when the law enforcement officer ��by means of physical force or show of authority�� restrains the liberty of the citizen. �United States v. Mendenhall, 446 U.S. 544, 552 (1980) (quoted source omitted).�
�10����� The United States Supreme Court has set forth the following test for determining whether a particular police-citizen encounter constitutes a seizure for purposes of the Fourth Amendment:�
[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 [or she] was not free to leave.� Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be 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.� In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.�
Mendenhall, 446 U.S. at 554-55 (citations and footnote omitted).�
�11����� We apply an objective test to determine whether a seizure has occurred.� State v. Williams, 2002 WI 94, �4, 255 Wis. 2d 1, 646 N.W.2d 834. �[T]he crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would �have communicated to a reasonable person that he [or she] was not at liberty to ignore the police presence and go about his [or her] business.��� Florida v. Bostick, 501 U.S. 429, 437 (1991) (quoted source omitted).�
�12����� Whether a seizure has occurred is a question of constitutional fact.� Young, 249 Wis. 2d 1, �17.� Accordingly, we uphold the circuit court�s factual findings unless they are clearly erroneous.� Id.� However, we review independently whether a seizure has occurred based on those facts.� Id.�
�13����� I understand Friederick�s argument to be that he was seized when Small first made contact with him because Small �required ... Friederick to stop his course of travel and speak with him,� which amounted to a �show of authority.�� For the reasons that follow, I conclude that Friederick was not seized when Small first made contact with him.�
�14����� The Wisconsin Supreme Court has held that �an officer�s mere
posing of a question does not constitute a �seizure�� despite the fact that
�any time that a police officer requests information from an individual, the
individual is likely to feel some pressure to respond.�� State v. Griffith, 2000 WI 72, �53,
236 Wis. 2d 48, 613 N.W.2d 72.� And
the supreme court has explained, �While it is true that �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.��� State
v. Williams, 2002 WI 94, �23, 255 Wis. 2d 1, 646 N.W.2d 834
(quoting Immigration and Naturalization Servs. v. Delgado, 466 U.S. 210,
216 (1984)).� With this additional
background, I turn to whether a seizure occurred in Friederick�s case.�
�15����� When Small first engaged Friederick in conversation, none of the circumstances indicating a seizure were present.� Small approached Friederick without activating his squad car�s emergency lights or siren.� Small exited his squad car and walked toward Friederick.� Small stated, �Good evening, I�m Deputy Small, I�d like to speak to you.�� Small�s tone of voice was authoritative, but not aggressive.� Friederick, who was walking, stopped and responded to the questions that Small asked him.� A second officer arrived.� That officer did not activate his emergency lights or siren.� Neither officer displayed a weapon, or physically contacted Friederick.�
�16����� In sum, while Friederick stopped in response to Small�s statement to him, the facts do not show that Small restrained Friederick�s liberty ��by means of physical force or show of authority�� such that the encounter was elevated to the level of a seizure.� Mendenhall, 446 U.S. at 552 (quoted source omitted).� I therefore conclude that Friederick was not seized.� Because I conclude that Friederick was not seized, I do not reach the issue of whether Small had reasonable suspicion to seize Friederick.� See Turner v. Taylor, 2003 WI App 256, �1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (when a decision on one issue is dispositive, we need not reach other issues raised).�
CONCLUSION
�17����� For the reasons set forth above, I affirm the circuit court�s order.�
����������� By the Court.�Order affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.�
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(c) (2011-12).� All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.