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Can We Really Just Drive Away From A Police Officer?

A recent media headline: The Wisconsin Supreme Court ruled that a driver is free to ignore a cop who walks up and knocks on the window -- even free to drive away. This is one of many similar headlines that would lead us to believe we have nothing to fear by driving away when a cop knocks on our car window. Is this really true? Attorney Dave Stegall addresses the confusion caused by the recent court decision in this blog post. He explains the facts related to the case. He also provides information about what you need to know if a police officer comes knocking on your window.
Can We Really Just Drive Away From A Police Officer?

David Stegall

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.  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 herehere, and here).  Unfortunately, the media reports were not particularly helpful in accurately explaining what the court recently decided in the case of Grant County v. Daniel Vogt.  (A copy of the decision is here.)

A little background is helpful to the discussion of this case.  During 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.  An 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 were 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 1am in the middle of winter, so he drove and parked behind the car.  The officer did not activate his red and blue emergency lights.  The officer exited the car and “rapped on the driver’s window.”  Once Mr. Vogt rolled his window down, the officer smelled “intoxicants” and believed Mr. Vogt was drunk.  Eventually, 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’s conduct.  Mr. Vogt claimed that the cop had no right to knock on his window.  If he was successful in his motion, his case would have most likely been dismissed.  Big stakes.  The trial judge denied the motion and ruled against Mr. Vogt, although he said it was a “close case.”

Undeterred, Mr. Vogt appealed to the court of appeals.  The appellate court agreed with him and overruled the trial judge.  The County appealed to our Supreme Court.

The easy summary of the court’s opinion is that it did not hold that we are all free to disregard an officer’s presence at our driver’s side window during a traffic stop.  If only it could be that easy.  In fact, under most circumstances, the failure to obey an officer’s 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 charges). 

The court’s 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 “unreasonable searches and seizures.”

First, 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.  Whether the person responds is an individual decision, but the cops are free to do it.  In legal parlance, these police/citizen interactions are dubbed “consensual encounters.”

However, when a police officer “seizes” a person he or she must have a certain amount of evidence to do so.  A seizure, in the constitutional sense, 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 further complicate the issue, there are two “types” of seizures.  The first is an “investigatory detention.”  An example of an investigatory detention would be if a cop observes a car speeding on the highway.  The cop stops the car and approaches the driver’s side on foot.  Assume the cop knocks on the window, smells alcohol, observers the driver’s eyes to be red and glassy, and notes that driver’s speech is slurred.  In 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 “reasonable suspicion to believe that criminal activity may be afoot” 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.  For an arrest to be valid, the cop needs more than reasonable suspicion because the length and nature of the seizure have increased.  To justify an arrest, the officer must have “probable cause” that the person has committed a crime or violated a city ordinance.

To recap:

  • Consensual Encounter:  Police do not need any reason to approach and ask questions.
  • Investigatory Detention: Police simply need to have a “reasonable suspicion,” which is a very low standard to meet. 
  • Arrest:   Police need “probable cause,” 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 “consensual encounter” to a seizure can be difficult for lots of reasons.  To assist judges in resolving this issue, the law has a developed a seemingly simple legal test.  The judge asks whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."

When our Supreme Court (Justice Prosser) applied that test to Mr. Vogt’s situation it concluded that the initial police/citizen interaction (i.e. knocking on the car window) was a consensual encounter and not a seizure.  Justice Prosser concluded that a “reasonable person” in Mr. Vogt’s situation would have felt free to simply drive away from the officer.  Once Mr. Vogt rolled down his window, the situation quickly morphed into a seizure as the officer lawfully gathered additional evidence.  (e.g. the officer smelled alcohol in the vehicle and noticed Mr. Vogt’s 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’s 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.  In reality, no one generally feels free to leave when confronted or approached by a police officer.  Justice 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’s 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 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.  You are better off complying with the police commands and challenging the police officer’s 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.  Remember, an 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.

 

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