Court of appeals upholds suppression of evidence based on improper seizure

By Gretchen Schuldt

​A woman had a reasonable belief that she was not free to leave a parking lot after police officers parked in a way that made it difficult for her to drive away, shined a “take down” spotlight into her car, and knocked on her car window and announced themselves as law enforcement, the State Court of Appeals ruled last week.

Blanchard

District IV Appellate Judge Brian W. Blanchard, in upholding a decision by Jefferson County Circuit Judge William V. Gruber to suppress evidence, found that the state did not “show that the court clearly erred in finding that a reasonable person in (Annika) Christensen’s position would have had, in the words of the court, an ‘actual or perceived inability to’ drive away from the police.”

Blanchard remanded the case back to Circuit Court, where Gruber had already dismissed the four misdemeanor counts filed against Christensen.

Christensen, then 21, was arrested in November 2019 as she and a passenger sat in her car in a parking lot about 6:49 p.m. The lot, owned by the Department of Natural Resources, had a single entrance/exit, and trees blocked Christensen from driving forward or to the right, according to the decision.

Town of Lake Mills Police Sgt. Ryan Walters, who was with Officer Vincent Pagliaro, drove a police truck into the lot and parked behind Christensen’s car and another car parked next to it, Blanchard wrote. The officers activated their take-down lights.

Pagliaro testified in Circuit Court that Christensen’s car drew his attention because “it was parked while there was snow falling, it was running, its windows were fogged, and it was sitting in the dark,” according to a defense brief filed by attorneys Teuta Jonuzi and Tracey A. Wood. They added: “Pagliaro acknowledged that it would not be uncommon for fogging of windows to occur when it is cold outside and the heat is turned on in the vehicle.”

Walters, though, said “he did not note the window fogging until he approached Christensen’s vehicle, and it was not part of his decision-making process in electing to make contact with Christensen’s vehicle,” Jonuzi and Wood wrote. “Similarly, he did not note any signs of drug activity with the vehicle before he made contact with Christensen. Per Walters, had Christensen attempted to drive her vehicle away, she would not have been free to do so.”

Walters testified in Circuit Court, they wrote, that neighbors had complained about drug activity in the lot and that he had previously arrested people for drug offenses there. 

A subsequent open records request to the Lake Mills Police Department revealed, however, that there had been only one previous drug arrest in the parking lot.

Walters later testified that he had arrested three juveniles in the lot five years earlier and that those were the only arrests he had made. There had been no drug-related contacts in the lot since then, Wood and Jonuzi wrote.

The officers differed in how far they said they parked behind Christensen’s car. Pagliaro said about 30 feet, while Walters said about 10 feet, Blanchard wrote in his decision.

Both said Christensen had room to leave, “although Sgt. Walters testified that ‘[i]t would have been tight,’ ” Blanchard wrote. 

Walters said he did not know whether Christensen would have been able to leave in “one maneuver” or whether she would have to “back up and pull forward to go around the back side of my vehicle.” 

Gruber found Walters’ testimony more convincing and accepted it. Blanchard said video of the truck’s position was not included in the appellate record and so he accepted the Circuit Court’s finding.

After Walters activated the spotlight, Blanchard wrote, Pagliaro got out of the police truck and approached Christensen’s car on the passenger side. He announced he was a police officer and knocked on the front passenger-side window. The passenger rolled down the window and the smell of burned marijuana wafted out of the car.

Christensen was charged with possession of marijuana, possession of paraphernalia, and two counts of possession of narcotics, all misdemeanors.

The state, on appeal, argued that the officers’ initial contact with Christensen was a “consensual encounter” and that Fourth Amendment protections did not kick in. 

Gruber, Jefferson County District Attorney Monica Hall wrote in prosecution briefs, “did not find that Ms. Christensen could not have driven away, just that it would have been difficult for her to do so.” That, she said, is similar to cases in which the state Supreme Court ruled that stopped individuals were not “seized” for Fourth Amendment purposes.

Hall argued that Walters’ testimony that Christensen would not be free to leave was irrelevant.

“Rather, the analysis is whether, under a totality of the circumstances, an innocent reasonable person in Ms. Christensen's position would feel free to leave under the circumstances,” she wrote. The state maintains that a reasonable person in Christensen’s position would have felt free to do so, she said.

Blanchard disagreed. While not the determining factor, he said, “the presence of uniformed officers arriving on the scene in a marked truck, with at least one of the officers getting out and approaching the car on foot, weighs in favor of a seizure. I reject the State’s thinly developed argument to the contrary.”

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