Earlier this month, the Wisconsin Supreme Court held that a sheriff's deputy knocking on a car window, by itself, was not a sufficient show of authority to lead the driver to believe that he was being detained. As a result, the encounter was consensual because the driver could have driven away at any time.
At around 1 a.m. on Christmas Day 2011, Grant County Sheriff's Deputy Matthew Small noticed a car pull into a closed park and stop in the parking lot. Small pulled up behind the car, but didn't have his red-and-blue lights on. He walked up to the window and tapped on it, telling him to roll down the window. Daniel Vogt rolled down the window. Small administered a field sobriety test, which Vogt failed. Vogt was arrested for driving while intoxicated and later moved to suppress evidence obtained from the traffic stop.
You're Free to Leave
In this case, the court said that Small didn't have the reasonable suspicion necessary to seize Vogt until Vogt rolled the window down and Small thought he might be intoxicated. But because a seizure already happened, there must have been something that happened before then to make the seizure constitutional. And that thing was consent. Law-enforcement agents love consensual encounters: Once an interaction with an officer becomes voluntary, there's no need for any kind of particularized suspicion.
As you might expect, these types of cases turn on the minutiae of the facts. The deputy didn't have his vehicle's lights on, pulled up behind an already parked car, and knocked on the window. All of these facts meant that Vogt could have driven away at any time. Small didn't need any particularized suspicion because their interaction was voluntary. (The court didn't speculate about what might have happened if Vogt had tried to leave.)
Justice Annette Kingsland Ziegler concurred to note that even if the encounter wasn't consensual, Small's role as "a community caretaker" gave him the ability to detain Vogt.
No You're Not
Chief Justice Shirley Abrahamson and two others dissented, noting that when courts think people are free to leave is not when real people think they're free to leave. "As Professor LaFave has written, the United States Supreme Court finds 'a perceived freedom [to leave] in circumstances when only the most thick-skinned of suspects would think such a choice was open to them,'" Abrahamson wrote.
Civilians -- that is, non-lawyers -- tend to submit to police authority, whether or not there's technically a "show of force." Police, by their nature, are authority figures, and generally law-abiding citizens will do what they say because they're police, not because they're being forced to.
While the court noted (in a footnote) that the reasonable person who always knows when it's appropriate to feel free to leave "is a legal fiction," the court basically threw up its hands and said, "Whatchagonnado?"
- Here Are Some Tips on How to Avoid "Consensual" Police Encounters (Slate)
- The Language of Consent in Police Encounters (Northwestern University School of Law)
- No Reasonable Person Here: Court Refuses to Suppress Evidence (FindLaw's U.S. Tenth Circuit Blog)
- Cop Stop: 6th Circuit Amends Opinion to Address Open Container (FindLaw's U.S. Sixth Circuit Blog)