[{"@context":"http:\/\/schema.org","@type":"BlogPosting","dateModified":"2024-05-01","datePublished":"2019-04-23","wordCount":1391,"url":"https:\/\/www.lawtoncates.com\/blog\/can-we-really-just-drive-away-from-a-police-offi\/","name":"Can We Really Just Drive Away From A Police Officer","headline":"Can We Really Just Drive Away From A Police Officer","mainEntityOfPage":"https:\/\/www.lawtoncates.com\/blog\/can-we-really-just-drive-away-from-a-police-offi\/","articleBody":"Our Wisconsin Supreme Court recently decided a case that has sparked some controversy about whether a person can lawfully drive away from a police officer who knocks on his or her car window during a traffic stop.\u00a0 Judging by some media reports of this case, one would think that we all have nothing to fear the next time a cop should pull us over (example of media reports\u00a0here,\u00a0here, and\u00a0here). Unfortunately, the media reports were not particularly helpful in accurately explaining what the court recently decided in the case of\u00a0Grant County v. Daniel Vogt. (A copy of the decision is\u00a0here.)A little background is helpful to the discussion of this case.\u00a0During the early morning hours of Christmas 2011, Mr. Vogt drove his car to an open park along the banks of the Mississippi River in Grant County.\u00a0An officer happened to be on patrol and observed Mr. Vogt park his car. Importantly, the officer did not notice any traffic violations and had no reason to believe that Mr. Vogt or his female passenger was doing anything illegal. Nonetheless, it was a quiet Christmas morning and the officer thought it was suspicious that Mr. Vogt parked near a boat launch at 1 am in the middle of winter, so he drove and parked behind the car.\u00a0The officer did not activate his red and blue emergency lights.\u00a0The officer exited the car and \u201crapped on the driver\u2019s window.\u201d\u00a0Once Mr. Vogt rolled his window down, the officer smelled \u201cintoxicants\u201d and believed Mr. Vogt was drunk.\u00a0Eventually, the cop had Mr. Vogt exit the car, administered field sobriety tests, and arrested him for OWI.When the case went to court, Mr. Vogt challenged the legality of the officer\u2019s conduct.\u00a0Mr. Vogt claimed that the cop had no right to knock on his window.\u00a0If he was successful in his motion, his case would have most likely been dismissed.\u00a0Big stakes.\u00a0The trial judge denied the motion and ruled against Mr. Vogt, although he said it was a \u201cclose case.\u201dUndeterred, Mr. Vogt appealed to the court of appeals.\u00a0The appellate court agreed with him and overruled the trial judge.\u00a0The County appealed to our Supreme Court.The easy summary of the court\u2019s opinion is that it did not hold that we are all free to disregard an officer\u2019s presence at our driver\u2019s side window during a traffic stop.\u00a0If only it could be that easy.\u00a0In fact, under most circumstances, the failure to obey an officer\u2019s commands to roll down the window during an otherwise valid traffic stop would possibly result in additional criminal consequences for the driver (i.e. fleeing or obstructing an officer\u2019s charges).The court\u2019s decision was much more nuanced than that, but it serves as a good vehicle to briefly summarize our rights under the Fourth Amendment to be free from \u201cunreasonable searches and seizures.\u201dFirst, no one has any obligation to speak with the police if they choose not to. Conversely, a police officer does not need to have a specific reason, or any evidence of criminal activity, to attempt to speak with a person. Simply put, nothing prevents a cop from walking up to any person and asking him or her questions, even incriminating questions.\u00a0Whether the person responds is an individual decision, but the cops are free to do it. In legal parlance, these police\/citizen interactions are dubbed \u201cconsensual encounters.\u201dHowever, when a police officer \u201cseizes\u201d a person he or she must have a certain amount of evidence to do so.\u00a0 A seizure, in the constitutional sense, occurs \u201conly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.\u201dTo further complicate the issue, there are two \u201ctypes\u201d of seizures.\u00a0The first is an \u201cinvestigatory detention.\u201d\u00a0An example of investigatory detention would be if a cop observes a car speeding on the highway.\u00a0The cop stops the car and approaches the driver\u2019s side on foot.\u00a0 Assume the cop knocks on the window, smells alcohol, observers the driver\u2019s eyes to be red and glassy, and notes that the driver\u2019s speech is slurred.\u00a0In that scenario, the cop would be free to briefly detain the driver for additional testing to confirm whether or not the driver was impaired because the cop observed the driver commit an ordinance violation (i.e. speeding) and also observed signs of intoxication. This form of police\/citizen contact demands that the police officer have \u201creasonable suspicion to believe that criminal activity may be afoot\u201d to justify an investigatory detention.The second type of seizure is the full-blown arrest: handcuffs, a ride to the police station in the back of the squad car, the whole nine yards.\u00a0For an arrest to be valid, the cop needs more than reasonable suspicion because the length and nature of the seizure have increased.\u00a0To justify an arrest, the officer must have \u201cprobable cause\u201d that the person has committed a crime or violated a city ordinance.To recap:Consensual Encounter: Police do not need\u00a0any\u00a0reason to approach and ask questions.Investigatory Detention:\u00a0Police simply need to have a \u201creasonable suspicion,\u201d which is a very low standard to meet.Arrest:\u00a0Police need \u201cprobable cause,\u201d which is more demanding than reasonable suspicion, but less demanding than proof beyond a reasonable doubt.Seems clear enough, but often times determining the precise moment that a police\/citizen interaction has turned from a \u201cconsensual encounter\u201d to a seizure can be difficult for lots of reasons.\u00a0To assist judges in resolving this issue, the law has developed a seemingly simple legal test.\u00a0The judge asks whether \u201cin view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.\u201dWhen our Supreme Court (Justice Prosser) applied that test to Mr. Vogt\u2019s situation it concluded that the initial police\/citizen interaction (i.e. knocking on the car window) was a consensual encounter and not a seizure.\u00a0Justice Prosser concluded that a \u201creasonable person\u201d in Mr. Vogt\u2019s situation would have felt free to simply drive away from the officer.\u00a0Once Mr. Vogt rolled down his window, the situation quickly morphed into a seizure as the officer lawfully gathered additional evidence.\u00a0(e.g. the officer smelled alcohol in the vehicle and noticed Mr. Vogt\u2019s speech was slurred). By the time the officer arrested Mr. Vogt, he had plenty of evidence to justify the arrest.The dissent (Justice Abrahamson) sharply criticized the majority\u2019s opinion by pointing out that the legal test of whether a reasonable person would be free to leave is simply an exercise in legal fiction.\u00a0In reality, no one generally feels free to leave when confronted or approached by a police officer.\u00a0Justice Abrahamson summarized:No reasonable person I can imagine would feel free to drive away under the circumstances of the present case when the 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.What can we learn with the benefit of hindsight from Mr. Vogt\u2019s case?First, a police officer does not need to have a reason to approach a person and start asking questions.Second, if you are approached by a police officer and feel uncomfortable answering his or her questions, you should ask if you are free to leave and contact an attorney.Third, the line between a consensual encounter and a seizure can be practically impossible for a person to determine during the actual interaction with a police officer.\u00a0 You are better off complying with the police commands and challenging the police officer\u2019s conduct in court if necessary than simply driving away and risking your luck that the cop does not already have sufficient reason to detain you.\u00a0 Remember, investigatory detention could be justified by something as simple as speeding or changing lanes erratically.Finally, if an officer detains you, invoke your Fifth Amendment right against self-incrimination. Assert your right to silence or your right to an attorney and do not say anything until you have had time to consult with an attorney.","description":"Our Wisconsin Supreme Court recently decided a case that has sparked some controversy about whether a person can lawfully drive away from a police officer who knocks on his or her car window during a traffic stop.\u00a0 Judging by some media reports of this case, one would think that we all have nothing to fear the next time a cop should pull us over (example of media reports\u00a0here,\u00a0here, and\u00a0here). Unfortunately, the media reports were not particularly helpful in accurately explaining what the court recently decided in the case of\u00a0Grant County v. Daniel Vogt. (A copy of the decision is\u00a0here.) 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