Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions.
The case: State of Wisconsin v. Heather Jan VanBeek
Majority/Lead Opinion: Justice Patience D. Roggensack (33 pages), joined in part by Justices Ann Walsh Bradley, Rebecca F. Dallet, and Jill J. Karofsky; also joined in part by Justices Annette K. Ziegler, Rebecca Grassl Bradley, and Brian Hagedorn
Concurrence: Dallet (8 pages), joined in part by Walsh Bradley and Karofsky
Dissent: Ziegler (9 pages), joined by Grassl Bradley and Hagedorn
The court of appeals certified the following question: "whether a consensual encounter becomes an unconstitutional seizure under the Fourth Amendment when an officer requests and takes an individual's driver's license to the officer's squad car without reasonable suspicion." Accordingly, we review the Circuit Court of Sheboygan County's judgment of conviction of Heather VanBeek for possession of methamphetamine and drug paraphernalia. VanBeek's conviction arose from a search of her vehicle that she contends violated her right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution.
On the certified question, we conclude that the answer depends on the totality of circumstances surrounding an encounter. Further, while VanBeek was not seized when Officer (Sung) Oetzel took her driver's license to run a records check, VanBeek was seized when Oetzel returned to her vehicle, withheld her driver's license and continued to question her and her passenger in order to hold her until a drug-sniff dog, i.e., the K9 unit, that he had requested arrived. Finally, we conclude that the seizure was unlawful because, based on the totality of circumstances, Oetzel did not have reasonable suspicion that VanBeek was engaged in criminal activity at the time he seized her. Accordingly, we reverse the circuit court's judgment of conviction and remand with instruction to grant VanBeek's motion to suppress.
On the night of November 12, 2017, the City of Sheboygan Police Department received an anonymous call that a truck, with two occupants, had been sitting near the intersection of 6th Street and Superior Avenue in Sheboygan for approximately an hour. The caller also stated that a person approached the truck with a backpack and left later without it. The caller provided no description of the truck.
Sheboygan Police Officer Sung Oetzel responded to the call. When he arrived, Oetzel saw only one truck in the location that had been identified. However, to be sure it was the truck to which the caller referred, he quickly drove around the area and confirmed there was only one truck with two occupants nearby. Oetzel parked his squad car behind the truck and activated his squad car's spotlight.
VanBeek and her passenger, Branden Sitzberger, were sitting in VanBeek's truck when Oetzel approached. Oetzel told VanBeek that someone had called in about two people sitting in a car. VanBeek responded that she had been waiting for Sitzberger, and Sitzberger confirmed that VanBeek was picking him up. Oetzel informed VanBeek that the caller said VanBeek had been sitting there for an hour, which VanBeek denied. Sitzberger said it had been "about ten minutes.". . . VanBeek answered affirmatively when Oetzel asked if Sitzberger was her boyfriend and if she was "just waiting"; Oetzel responded "sounds legit." During his initial encounter with VanBeek, Oetzel did not ask about a backpack or a third person that the caller had mentioned. There is nothing in the record to show whether such a person had been present.
Oetzel then asked VanBeek and Sitzberger for their information "for his report, so [he] [could] just get out of [here]." Sitzberger asked if Oetzel was going to just write down the information. Oetzel told Sitzberger he wanted their "IDs" so he could "compare faces." While VanBeek and Sitzberger were giving their driver's licenses to Oetzel, Oetzel asked what they were doing that night, and Sitzberger responded that VanBeek had just picked him up and they were going back to Cascade. Oetzel took possession of their driver's licenses and said "Okay. I'll be right back, okay." VanBeek and Sitzberger replied "alright."
Before returning to his squad car, Oetzel spoke to another officer who had arrived on scene. Oetzel told the other officer that VanBeek said she was "waiting for her boyfriend" and "[he] [didn't] think it [was] anything suspicious." When he ran a records check on VanBeek and Sitzberger, Oetzel discovered that neither person had outstanding warrants. However, Oetzel learned that VanBeek had overdosed in February of that year and that Sitzberger was on supervision. Based on these two additional facts, Oetzel called for the K9 unit. . . .
After he returned to VanBeek's vehicle, while retaining possession of their driver's licenses, Oetzel asked VanBeek and Sitzberger numerous questions, some of which he had already asked and they had answered....VanBeek asked whether her "license was bad." Oetzel answered no, and she answered Oetzel's questions. After questioning VanBeek, Oetzel moved on to Sitzberger, asking him to confirm his address and for a phone number. Sitzberger also complied.
Oetzel continued his questioning, quizzing Sitzberger on what friend he had been visiting and where the friend lived, until the K9 unit arrived. The K9 unit dog alerted for drugs while sweeping VanBeek’s truck. Oetzel and another officer searched the truck and found one gram of methamphetamine and a drug pipe. They then arrested VanBeek, and the state charged her with possession of methamphetamine and drug paraphernalia.
VanBeek moved to suppress the methamphetamine and pipe, arguing that Oetzel's initial contact with her was unlawful and, if not, the stop was illegally extended in violation of the Fourth Amendment.
At hearings on the motion, Oetzel confirmed that he did not have reasonable suspicion at the time he took the driver’s licenses back to his squad car, admitted he did not know why Sitzberger was on supervision, admitted that VanBeek had not committed any traffic violations, and said he did not see or smell any indications of drug use. Bodycam footage showed that Oetzel did not mention the backpack at any point during his interactions with VanBeek.
The circuit court denied VanBeek’s motion to suppress, and she appealed her subsequent conviction. The court of appeals certified to the supreme court the issue regarding Oetzel’s taking of VanBeek's driver's license to his squad car without reasonable suspicion.
Note: Portions of Justice Roggensack’s opinion that justices A.W. Bradley, Dallet, and Karofsky joined are in regular type, while portions that Chief Justice Ziegler and Justices R.G. Bradley and Hagedorn joined or that reflect Roggensack’s sole opinion are in red type.
While the withholding or retention of an individual's driver's license may be a "key factor," important, or analytically significant, we decline to set forth a bright-line rule that any time an officer retains an individual's driver's license that person is seized. Rather, courts should continue to analyze whether the individual is seized based upon the totality of circumstances.
[Prior] cases teach that police conduct is the dispositive factor in determining whether a seizure has occurred. As the Supreme Court clearly set out in Bostick, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'"
Applying the above principles to this case, based upon the totality of the circumstances, Oetzel taking VanBeek's license back to his squad car did not amount to a seizure. Oetzel took VanBeek's and Sitzberger's licenses back to the squad car upon his request to do so and with their permissions. The video-cam Oetzel was wearing recorded that when Oetzel received the licenses that they handed to him, he began to move away from VanBeek's car. He said, "Okay. I'll be right back, okay?" VanBeek and Sitzberger both replied "alright." This appears to be a continuation of what had been a cordial interaction among VanBeek, Sitzberger and Oetzel.
A reasonable person in VanBeek's position would have understood that their "alright" responses permitted Oetzel to retain her driver's license and that her ability to lawfully operate her vehicle would be delayed until Oetzel returned to her car. Further, Oetzel reasonably relied on their verbal interactions before he returned to his squad car. Accordingly, under the totality of circumstances that bear on the certified question, VanBeek consented to Oetzel's retention of her license until he returned from his squad car, and therefore, she was not seized when he took her driver's license to the squad car and ran a warrant check.
Having re-affirmed that the totality of circumstances continues to be the correct analytical metric by which to analyze claimed seizures, we determine based on that metric whether VanBeek was seized at any subsequent point during her interaction with Oetzel. We conclude that VanBeek was seized when Oetzel returned to her vehicle, retained her driver's license, and continued to pose questions to her and Sitzberger in order to prevent them from leaving before the K9 unit arrived. We conclude that a reasonable person in VanBeek's position would not have felt free to drive away and terminate the encounter with Oetzel while he retained her driver's license and continued to question her and Sitzberger.
We also conclude that there are no facts from which to conclude that VanBeek consented to Oetzel's retention of her driver's license after he returned to her vehicle. Rather, a reasonable person in VanBeek's position would have believed that Oetzel would return her driver's license as soon as he returned from his squad car so "he could get out of here."
The court discussed whether reasonable suspicion existed to legally justify the seizure.
"We conclude that VanBeek was seized when Oetzel returned to her vehicle, retained her driver's license, and continued to pose questions to her and Sitzberger in order to prevent them from leaving before the K9 unit arrived. We conclude that a reasonable person in VanBeek's position would not have felt free to drive away and terminate the encounter with Oetzel while he retained her driver's license and continued to question her and Sitzberger." – Justice Patience D. Roggensack
We conclude that the dearth of significant facts enunciated by the anonymous caller in this case substantially lowers the weight that we place on the call in the totality of circumstances. Unlike [prior U.S. and Wisconsin Supreme Court cases], wherein the respective tipsters were able to provide unique, useful and predictive information to police prior to police interaction, the caller here merely told Sheboygan police that a non-descript truck, occupied by two people, was parked on the street for "an hour" and that someone had approached the vehicle with a backpack and then left without it. Those facts are "minimal facts that any passerby or resident on the street could enunciate." The caller did not allege that the persons in the truck were engaged in criminal activity. Accordingly, as we consider a call about a non-descript truck parked on the street with two occupants, the additional assertion that someone came to the truck with a backpack and left without it does not weigh heavily in our analysis. Apparently, those facts were not significant to Oetzel because he never asked VanBeek or Sitzberger about a third person or a backpack.
Aside from the call, all that Oetzel knew at the time of the seizure was that VanBeek overdosed earlier in the year and that Sitzberger was on supervision. Oetzel did not know the source of drugs that caused VanBeek's overdose, whether from a physician or from an illegal source. There is nothing in the record to connect her overdose in February with criminal activity in November.
That Sitzberger was on supervision also provides no reason to believe that he was involved in criminal activity with VanBeek. As the Tenth Circuit explained in United States v. Sandoval, a prior conviction for an unknown offense provides no support for reasonable suspicion. If this were not the case, those on supervision subsequent to a conviction could be searched anywhere and anytime that the fact of supervision became known.
Accordingly, based on the totality of circumstances, Oetzel did not have reasonable suspicion when he returned to VanBeek's truck, retained her driver's license and continued to question her; therefore her seizure was unlawful.
I concur that Heather VanBeek was unlawfully seized when police retained her driver's license while repetitively questioning her. I disagree, however, with the conclusion that VanBeek was not seized earlier in her encounter with police. The totality of the circumstances reveals that VanBeek was seized when police took her driver's license back to the squad car for a records check because, at that point, a reasonable person would not feel free to leave or to otherwise end the interaction.
We review the court of appeals' certified question of "whether a consensual encounter becomes an unconstitutional seizure under the Fourth Amendment when an officer requests and takes an individual's drivers license to the officer's squad car without reasonable suspicion." While I agree that such conduct is not a seizure in all circumstances, I conclude that under the circumstances here, it was.
Because Oetzel lacked reasonable suspicion that VanBeek had committed or was about to commit a crime or traffic violation, any seizure of VanBeek, even a temporary one, would be unlawful. Oetzel's encounter with VanBeek started out as voluntary, requiring no special justification to initially approach and question VanBeek in her truck since she was parked on a public street. Thus the question is whether Oetzel's subsequent actions toward VanBeek escalated this initially voluntary interaction to the level of a seizure.
The interaction moved toward a seizure when Oetzel asked VanBeek for her photo ID. Generally, such a request is not a Fourth Amendment seizure. But Oetzel's conduct indicated that his request was in fact a command that VanBeek could not refuse. Specifically, Oetzel rejected the offer to write down the requested information, stating instead that he needed a photo ID to "compare faces." When an officer rejects a less intrusive alternative, a reasonable person could believe that her only other option is to comply with the officer's "request."
Even so, until Oetzel walked away, VanBeek at least had an opportunity to ask for her license back so she could terminate the encounter and go on her way (although whether anyone would actually feel comfortable doing this is another question). Once Oetzel left the side of VanBeek's car, however, that opportunity vanished. No reasonable person would think she could drive away when an officer walks off with her driver's license, particularly when doing so would violate state law. Thus, VanBeek was unlawfully seized because Oetzel's conduct would cause a reasonable person in VanBeek's circumstances to feel as though she were not free to leave or to otherwise terminate the encounter.
"No reasonable person would think she could drive away when an officer walks off with her driver's license, particularly when doing so would violate state law." – Justice Rebecca F. Dallet
VanBeek's alleged "consent" to Oetzel confiscating her license does not change that conclusion for two reasons. First, it confuses the role consent plays in a Fourth Amendment analysis. A person's consent informs the reasonableness of a seizure, not whether an officer's conduct constitutes a seizure in the first place. I have uncovered no case supporting the novel proposition that one can consent to a seizure of her person. Second, even if one could so consent, the record contains no support for the conclusion that VanBeek unequivocally consented to Oetzel's taking her license back to his squad car for the purpose of running a records check.
Instead, the record is, at best, ambiguous as to whether VanBeek agreed to Oetzel's taking her license back to his squad car. Oetzel did not testify on that point and the circuit court made no factual findings regarding what VanBeek said to Oetzel or whether she consented to Oetzel taking her license back to his car. That leaves Oetzel's body-camera footage. The video strongly suggests that when Oetzel took VanBeek's license and told her that he would "be right back," he was telling VanBeek what he was going to do, not asking for her permission to do it. Oetzel neither informed VanBeek of the specific reason why he was taking her license nor awaited her response before walking away. Moreover, VanBeek's response is unclear. Although VanBeek's passenger responded to Oetzel's statement by saying "alright," VanBeek's response is muddled and lost under her passenger's voice. While one might infer that she did not say "no," such an inference falls short of the unequivocal, affirmative statement the law requires. The record evidence therefore belies any consent justification (if one were even possible) for her being seized.
VanBeek was thus seized when Oetzel took her license back to his squad car. That seizure continued when Oetzel returned to VanBeek's truck yet retained her license and repetitively questioned her until a drug-sniffing dog arrived. Accordingly, any evidence obtained as a result of Oetzel's unlawful seizure of VanBeek must be suppressed. For these reasons, I concur.
While I agree with the majority/lead opinion's conclusion that VanBeek was not seized when Officer Oetzel took her driver's license to his squad car and ran a warrant check, I write separately because VanBeek was not seized when Officer Oetzel returned to VanBeek's vehicle and continued asking her follow-up questions. When looking at the totality of the circumstances, it is clear that VanBeek was free to ask for her driver's license back and end the interaction. Consequently, her encounter with Officer Oetzel was consensual, and she was not seized. Accordingly, I respectfully dissent.
I agree with the majority/lead opinion's statement "that [Officer] Oetzel taking VanBeek's license back to his squad car did not amount to a seizure."...The concurrence suggests that there is "no case supporting the novel proposition that one can consent to a seizure of her person." However, an individual affirmatively approving an officer's retention of a driver's license indicates that the encounter has not lost its consensual nature....Thus, as the majority/lead opinion aptly described, "A reasonable person in VanBeek's position would have understood that [VanBeek's and her passenger's] 'alright' responses permitted [Officer] Oetzel to retain her driver's license."
Moreover, even without her license, VanBeek could still "disregard the police and go about [her] business." As she explained to Officer Oetzel when he first approached, she and her passenger were sitting in the vehicle for some period of time. As such, VanBeek's "business"—that she must have felt free to return to – was sitting in her vehicle with her passenger. Officer Oetzel returning to his squad car with VanBeek's driver's license in no way impeded upon VanBeek's business of sitting in her vehicle. Furthermore, VanBeek never signaled that she wanted to leave, which would indicate that her business was leaving the area.... Accordingly, VanBeek was not seized when Officer Oetzel returned to his squad car with VanBeek's driver's license. [Footnote: The concurrence wrongly concludes to the contrary, believing that Officer Oetzel walking away with VanBeek's driver's license automatically transformed the consensual encounter into a seizure. Such a conclusion effectively asks for a bright-line rule that whenever an officer walks away with an individual's driver's license, the individual is automatically seized....Instead of a bright-line rule, as the concurrence essentially suggests, the proper inquiry is whether, under the totality of the circumstances, a reasonable person would have felt free to terminate the encounter and go about their business.]
Having concluded that VanBeek was not seized when Officer Oetzel returned to his squad car, I now address the point at which I diverge from the majority/lead opinion – when Officer Oetzel returned to VanBeek's vehicle. The majority/lead opinion concludes that "VanBeek was seized during the second round of repetitive questions while Oetzel retained her driver's license." I disagree because there are no facts in the record that demonstrate that the otherwise consensual encounter between Officer Oetzel and VanBeek transformed into an impermissible seizure.
An officer can ask questions and retain identification of an individual without that encounter transforming into a seizure. This includes if the officer asks follow-up questions. As the United States Supreme Court has explained, "[u]nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment." Only "if the person refuses to answer and the police take additional steps...to obtain an answer, then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure."....
Here, the only circumstances that the majority/lead opinion points to are that Officer Oetzel retained VanBeek's driver's license and continued to ask repetitive questions....A reasonable person is willing to ask for the return of their identification. VanBeek could have requested that Officer Oetzel return her identification, and she could have gone about her business. However, she chose not to. Instead, she "nonetheless remain[ed] in police presence, perhaps because of a desire to be cooperative." Accordingly, Officer Oetzel's retention of VanBeek's identification was not "so intimidating" that VanBeek could not have requested the return of her identification and terminated the encounter.
Moreover, the majority/lead opinion relies heavily on the fact VanBeek would not have been able to terminate the encounter and leave the scene because she needed her license to lawfully operate her vehicle. However, this reliance is misplaced. The test for a seizure is not whether a person would feel free to leave the scene; rather, the proper inquiry is whether a person would feel free to terminate the encounter and go about their business. As I explained above, VanBeek's "business" when Officer Oetzel arrived was sitting in her vehicle with her passenger. Although she expressed an interest in leaving the scene, this was not her "business." Consequently, Officer Oetzel's retention of her driver's license in no way impeded her ability to go about the business of sitting in her vehicle with her passenger.
Accordingly, based on the totality of the circumstances, VanBeek was not seized when Officer Oetzel returned to her vehicle, asked follow-up questions, and retained her identification....Because VanBeek was not seized, the circuit court did not err when it denied VanBeek's motion to suppress.
"Here, the only circumstances that the majority/lead opinion points to are that Officer Oetzel retained VanBeek's driver's license and continued to ask repetitive questions....A reasonable person is willing to ask for the return of their identification. VanBeek could have requested that Officer Oetzel return her identification, and she could have gone about her business. However, she chose not to." – Justice Annette K. Ziegler
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