COURT OF APPEALS DECISION DATED AND FILED December 13, 2006 Cornelia G. Clark Clerk of Court of Appeals	NOTICE
	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.�

Appeal No.�	2004AP2728-CR	Cir. Ct. No.� 2003CF677
STATE OF WISCONSIN���			IN COURT OF APPEALS
			DISTRICT II
State of Wisconsin, ��������� Plaintiff-Respondent, ���� v. Justin J. Palermo, ��������� Defendant-Appellant.

����������� APPEAL from a judgment of the circuit court for Racine County:� richard j. kreul, Judge.� Affirmed.�

����������� Before Snyder, P.J., Brown and Nettesheim, JJ.

�1������� PER CURIAM.   Justin Palermo appeals from the judgment of conviction entered against him.� He argues that the circuit court erred when it concluded that he had not been seized when a police officer approached the car in which he was sitting.� Because we conclude that Palermo had not been seized under United States v. Mendenhall, 446 U.S. 544, 554 (1980), we affirm.

�2������� Palermo was charged with one count of operating a motor vehicle while intoxicated, fifth or greater offense, and one count of operating with a prohibited alcohol concentration, fifth or greater offense.� Prior to trial, he moved to suppress the evidence against him arguing that he had been illegally seized by the police officer.� The court held a hearing on the matter and denied the motion.�

�3������� The court found that the officer was on patrol at about 11:30 at night when he noticed Palermo sitting in his car in a parking lot. �The officer did not believe that Palermo had committed or was about to commit a crime, but rather stopped to investigate because he thought it was unusual for the car to be parked there.� The officer pulled up behind Palermo�s car, turned on his overhead lights, and shone a spotlight on Palermo�s car.� The officer then went to the car and asked Palermo what he was doing.� Palermo said he was looking for his identification.� He later stated that he had been looking for his cell phone.� The police officer at this point smelled alcohol, saw that Palermo�s eyes were red and glassy, and noticed that his speech was slurred.� When the officer asked Palermo for identification, Palermo at first gave him someone else�s name.� He eventually said who he was, was given some field sobriety tests, refused others, and was arrested.

�4������� The court denied the motion to suppress. �The court concluded, applying California v. Hodari D., 499 U.S. 621 (1991), that there had not been a seizure because the officer did not apply any physical force and Palermo did not submit to the officer�s show of authority.� Palermo then pled guilty to one count of operating while intoxicated, fifth or greater offense.� The court sentenced him to two years of initial confinement and four years of extended supervision.� Palermo appealed to this court.� We placed the appeal on hold pending the Wisconsin Supreme Court�s decision in State v. Young, 2006 WI 98, ___ Wis. 2d ___, 717 N.W.2d 729.� That case has been decided, and now we affirm the decision of the circuit court, but on different grounds.� See State v. Holt, 128 Wis. 2d 110, 124, 382 N.W.2d 679 (Ct. App. 1985).

�5������� We conclude that Palermo was not seized within the meaning of Mendenhall, 446 U.S. at 554, at the time the officer approached the car.� Under that test, a person is seized �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.� The facts adduced at the suppression hearing established that Palermo was already stopped and looking for his identification at the time the officer approached.� A reasonable inference from these facts is that he did not leave because he had not completed his task.� The question of whether there was a show of authority, therefore, is not at issue.� Under the Mendenhall test, Palermo was not seized.

�6������� The State also argues that Palermo has the burden of proof on the issue of whether a seizure occurred.� We need not decide the issue in this case, however, because no matter who had the burden of proof, the evidence showed that a seizure did not occur.� Consequently, we affirm the decision of the circuit court.

����������� By the Court.�Judgment affirmed.

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.