On July 18, 2014, the Wisconsin Supreme Court held in County of Grant v. Vogt 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.” In this case, the court was trying to determine whether the defendant had been “seized,” seeking to identify the line between an officer’s attempt to have a consensual conversation and an attempt to detain the individual. If the latter is found, then a “seizure” took place and the Fourth Amendment is implicated, requiring the court to determine whether the “seizure” was lawful.

According to the court, a “seizure” occurs “only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” To determine whether a citizen was “seized,” the court must consider the totality of the circumstances and determine whether “a reasonable person would have believed that he was not free to leave.” This determination draws the line between a consensual conversation between the police officer and the citizen and a police officer’s attempt to detain the individual.

In Vogt, a Grant County sheriff’s deputy observed the defendant pull his car into a parking lot next to a park around 1:00 a.m. on December 25, 2011. The park was closed; however, the parking lot remained open. The deputy did not observe the defendant commit any traffic violations, but thought, given the circumstances, the defendant’s conduct was suspicious. The deputy followed the defendant into the parking lot, parked his marked squad car behind the defendant’s vehicle a little off to the driver’s side, approached the defendant’s vehicle, rapped on the window and motioned for the defendant to roll his window down — which sounds like an order.  After rolling down the window and speaking to the deputy, the defendant eventually was arrested and cited for operating a motor vehicle while under the influence of an intoxicant.

Moreover, when the deputy approached the vehicle, he was in full uniform, was carrying his firearm and left his squad car’s headlights on. However, the car’s red and blue emergency lights were not on. The court concluded that under these circumstances, a reasonable person would know he was free to leave. As a result, there was no “seizure,” and the defendant could have ignored the officer and driven away while drunk.

The court’s precedent is clear: It is OK for citizens to disobey police officers so long as the line between consensual conversation and a police officer’s attempt to detain the citizen is not crossed. The only problem is how are citizens supposed to know where this line is and when it is crossed?  In Vogt, the court articulated some examples that might suggest a “seizure”: several officers being present; if the officer displays his weapon; the citizen being physically touched; or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

Many of these examples seem instinctual except for the last one. The court is leaving it up to citizens to know, maybe through extra sensory perception, whether they are being “seized” by the police officer’s language choice or tone. Imagine two scenarios similar to Vogt.  First, a police officer pulls up behind a parked car, approaches the car, raps on the window and requests, “Would you please roll your window down.” Under Vogt’s reasoning, this exchange would not be a sufficient display of authority to lead a reasonable person to believe that he was not free to leave; it would be viewed as an officer’s attempt to engage in a consensual conversation. As such, the citizen would be completely free to ignore the officer’s request and drive away even while drunk, like the defendant in Vogt.  

The second scenario is the same, except instead the officer commands, “Roll your window down now.” This scenario seems more realistic. A citizen could likely believe the officer’s command is a sufficient display of authority and that he was not free to leave. But, would the court find that a reasonable person would believe that he was not free to leave? Regardless of the outcome, the scenario serves its illustrative purpose: Expecting citizens to know when they are free to disobey an officer by his language choice or tone is unrealistic.

People have their own subjective beliefs and experiences with law enforcement that dictates their perceptions of and interactions with law enforcement. More importantly, law enforcement officers are inherently authoritative figures; people do not necessarily know that they can pick and choose when to obey them. Why would they? A real-world example is Brandon Marhal, who was ticketed for resisting arrest at the Ozaukee County Fair this summer.  Brandon was going to back up a friend who was apparently being arrested for underage drinking when the police started asking him questions.

According to Brandon, “[o]ne of the officers stopped [him] and insisted [he] was drinking. [the officer] asked for [his] name, too, but [he] didn’t give [the officer his] name because [he] didn’t commit any crime and that was [his] right not to give [his] name.” Soon after, Brandon was on the ground in handcuffs. Police later said that Brandon’s breath test showed no signs of alcohol. Although Brandon was doing nothing wrong and appeared to believe the officer was engaging in a consensual conversation that Brandon had a right to not partake in, he was still detained.

As the line between a police officer’s attempt at a consensual conversation and an attempt to detain the individual is unclear, the question becomes how to remedy the situation. One approach would require police officers to expressly state whether they are “requesting” or “commanding” the citizen. Under this approach, the officer’s “request” would fall on the consensual conversation side, enabling the citizen to disobey the officer and leave without repercussions. On the other hand, the officer’s “command” would fall on the attempt to detain side, disallowing the citizen to disobey and leave. However, this approach is unlikely as it places the burden on law enforcement to clarify a “request” or “command” in every encounter.  As the law stands, citizens are tasked with determining whether the officer is making a “request” or “command,” a determination that, if subsequently challenged, will be subject to strict review. When faced with this situation, citizens should expressly ask if they are being detained or if they are free to leave.

Ultimately, whether the line between a consensual conversation and an officer’s attempt to detain the individual has been crossed comes down to determining if, under the circumstances, a reasonable person would have believed that he was not free to leave. This standard is unrealistic given law enforcement’s inherent authoritative reputation and people’s beliefs about, and experiences with, law enforcement. As Chief Justice Abrahamson points out in her dissent in Vogt, judicial decisions applying the “reasonable person free to leave standard” do not generally reflect what real, everyday people think and how they act when approached by law enforcement. In her view, “[n]o reasonable person I can imagine would feel free to drive away under the circumstances of [Vogt’s] case when the officer knocked on the car window and instructed [Vogt] 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.” Justice Abrahamson’s view is one many people would agree with.

For more information on your rights during police encounters, please visit FlexYourRights and our website at www.hupy.com.