COURT OF APPEALS DECISION DATED AND FILED June 2, 2009 David
R. Schanker 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. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Rod J. VanDinter,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1
BACKGROUND
¶2 Officer Daniel Running was patrolling in a marked vehicle on
¶3 When Running turned onto
¶4 VanDinter moved to suppress all evidence from the stop, arguing Running did not have reasonable suspicion to detain him. The circuit court denied the motion, concluding there was no stop. The court alternatively reasoned that, even if there was a stop, the temporary detention was not unreasonable because VanDinter did not have to wait very long for Running to approach the vehicle. VanDinter subsequently pled no contest.
DISCUSSION
¶5 VanDinter argues he was seized when he turned off his vehicle
and remained stopped after Running activated his car’s overhead emergency
lights. A person is seized when, under
the totality of the circumstances, a reasonable innocent person would not feel
free to leave. State v. Williams, 2002
WI 94, ¶¶4, 23, 255
¶6 It is difficult to imagine a situation where a person in a stopped
vehicle would feel free to leave when an officer activates a squad’s overhead
emergency lights. Indeed, in a recent,
factually similar case where an officer pulled behind a just-stopped vehicle
and activated the emergency lights, it was undisputed there had been a
seizure. See State v. Truax, 2009
WI App 60, ¶¶5, 11. In State
v. Young, 2006 WI 98, ¶¶68-69, 294
¶7 The State cites four cases from other states where courts
concluded an officer’s activation of the vehicle’s red and blue emergency
lights was not, as a matter of law, always sufficient to constitute a
seizure. We first observe that such a
holding is quite another thing from concluding the act would never result in a
seizure. Thus, the cases provide little
guidance. We also note the primary case
relied on by the State is distinguished from the facts here because it involved
a car parked “on the shoulder of the highway far from any town.”
¶8 More importantly, we find the reasoning of the State’s
persuasive authorities unpersuasive. Generally, the cases conclude a reasonable
person would understand that use of the overhead emergency lights might merely
be a safety precaution. While a person
might know that was a possibility, he or she could only speculate as to the
officer’s subjective intent. It is
simply a fiction too bold to indulge that any ordinary person would feel free
to leave in such a situation. That
reasoning also runs contrary to our supreme court’s observation in Young,
regarding the use of flashers rather than the red and blue lights: “We believe the [flashers] are the same
lighting the officer would have used if he had stopped to aid a motorist.” Young, 294
¶9 On appeal, VanDinter argues not only that he was seized, but
that Running did not have reasonable suspicion to effect a seizure and was not
acting in his community caretaker role.
The State’s sole argument on appeal is that VanDinter was not
seized. We take the State’s silence as a
concession. See Charolais Breeding Ranches,
Ltd. v. FPC Secs. Corp., 90
By the Court.—Judgment reversed and cause remanded with directions.
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). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] At the suppression motion hearing, officer Running denied activating his overhead emergency lights. The judge later stated, “I suppose we could augment our consideration of the police action here by saying that the greater weight of the evidence is that [Running] put his lights on after he stopped behind the vehicle ....” However, the court subsequently stated “maybe” the lights were activated, but concluded the issue did not affect the outcome. VanDinter moved to reopen the hearing and for reconsideration and submitted a videotape of the traffic stop that was entered into evidence. VanDinter also represented in an offer of proof that the videotape showed Running did activate his overhead lights. In one of two written decisions denying the motion for reconsideration, the court stated, “The videotape permits some greater specificity in describing the circumstances .…” However, the court denied the motion because it had already considered the possibility that the lights were activated and concluded the issue was not determinative. While the videotape is not in the record on appeal, we conclude the circuit court implicitly found that Running activated his vehicle’s emergency lights. On appeal, the State also represents that Running activated the overhead lights as he pulled behind VanDinter.