State v. Shondrell R. Evans, 2020AP286-CR, District 4, 1/28/21 (not recommended for publication); case activity (including briefs)
Evans was seized under the Fourth Amendment when two police officers parked their marked squad cars in a way that restricted—though didn’t totally obstruct—his ability to drive away, shined their headlights and spotlights on his car, and exited their squad cars and approached Evans’s car. Because the police lacked reasonable suspicion to detain Evans, the resulting search of his car was unlawful.
Very early one morning an officer saw a man later identified as Evans leave a hotel with a woman, get into a car, and drive to a nearby apartment building. After parking for a short time, Evans returned to the hotel and parked. His car was facing a concrete barrier and was parked to the left of another car. After a few minutes passed, police decided to investigate further. One officer pulled his squad up to the left and within a few feet of Evans, perpendicular and directly facing Evans’s driver side door. A second officer parked his squad at a 45-degree angle off the right rear bumper of Evans’s car. Both officers trained the squad car’s overhead spotlight on Evans’s car and simultaneously approached. (Photo here.) When they got to the car they smelled marijuana. After having Evans get out of the car, the officers searched it and found a firearm. Evans is a felon. (¶¶4-9).
The well-worn rule is that a person has been seized within the meaning of the Fourth Amendment “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave.” County of Grant v. Vogt, 2014 WI 76, ¶20, 356 Wis. 2d 343, 850 N.W.2d 253. A seizure need not be effectuated by use of physical force; a sufficiently strong “show of authority” is enough. Id.; State v. Young, 2006 WI 998, ¶65, 294 Wis. 2d 1, 717 N.W. 2d 729. This test is objective and “considers whether an innocent reasonable person, rather than the specific defendant, would feel free to leave under the circumstances.” Vogt, 356 Wis. 2d 343, ¶¶25, 30.
Based on case law—in particular Vogt and Young—addressing the effect of blocking the movement of a car, in whole or in part, and the use of spotlights (¶¶13-20), the majority in this case holds Evans was seized:
¶23 Significantly, unlike in either Vogt or Young, we have the compelling fact that Officer Brown did not merely pull up behind Evans’s vehicle. In itself, a squad car pulling in across several parking spaces, both close and directly perpendicular to the driver’s side of an occupied vehicle, sends a strong and unambiguous signal of authority. It is an “adversarial” move toward the vehicle that differs in kind from the officer’s request to communicate in Vogt. See Vogt, 356 Wis. 2d 343, ¶3 (distinguishing an “adversarial” interaction with the “reasonable attempt to have a consensual conversation” by knocking on a car window). While the defendant in Vogt would have reasonably understood that the officer knocking on his window was merely “trying to make contact,” 356 Wis. 2d 343, ¶43, Evans here would not have known what might happen next after seeing a squad car pull up across several parking spaces pointing directly at his window and another pull up not far from his right rear bumper. In addition, that perpendicular approach served as meaningful amplification of the message of police restraint signaled by the following additional facts not present in Vogt or Young.
¶24 Here, the officers used their two squad cars to flank Evans’s vehicle, one pointed directly at his driver’s side seat and one angled diagonally to the rear of his passenger’s side, both positioned in what amounted to a pincer-like formation that was unmistakably focused on the occupants of his vehicle. In contrast, in both Vogt and Young, only one squad car was parked behind the defendant’s vehicle. Young, 294 Wis. 2d 1, ¶65; Vogt, 356 Wis. 2d 343, ¶53 (defendant “was not subject to the threatening presence of multiple” squad cars) (emphasis added).
¶25 Here, the only path of egress for Evans’s vehicle would have been for him to put it in reverse and then attempt whatever reversing maneuver Evans believed would avoid hitting or coming too close to the squad car diagonally behind him. Leaving only this potential reverse between two squad cars does not resemble the situations in Vogt and Young, in which each defendant could have left by driving forward away from the single squad car. Young, 294 Wis. 2d 1, ¶10 (describing positioning of cars); Vogt, 356 Wis. 2d 343, ¶42 (video showed “ample room” for car to move forward).
¶26 In addition, Evans’s vehicle was lit by two spotlights, rather than none as in Vogt, 356 Wis. 2d 343, ¶6, or one as in Young, 294 Wis. 2d 1, ¶10. The shining of spotlights from the two flanking squad cars here would have a measurably greater effect on a reasonable person, as a show of authority, than from one squad car. Moreover, the encounter in Young occurred on a busy road where the spotlight was necessary to alert passing motorists to the officer’s car that was stopped in a traffic lane. Young, 294 Wis. 2d 1, ¶¶64, 66. This is in contrast to the case at bar, which occurred in a mostly empty parking lot. A reasonable person in Evans’s position would have interpreted the unexpected, unexplained, simultaneous double spotlights, occurring in the small hours of the morning, as a show of authority, given that the spotlights were not needed to warn passing motorists.4
¶27 For all these reasons, we conclude that if Vogt was “close” on the non-seizure side of the line, as our supreme court stated, then this case must fall on the seizure side of the line.
A dissenting judge—whose conclusions spark lots of footnoted rebuttals from the majority—concludes in a long separate opinion that Evan’s wasn’t detained, emphasizing the fact that Evans wasn’t trapped, but could have driven away by backing out his parking spot and maneuvering between the two squad cars; that the spotlights are for everyone’s safety and differ from the red and blue lights commonly used to signal a driver to stop; and that neither officer gave verbal instructions to Evans or drew their weapons. (¶¶51-90).
All three judges conclude that, if Evans was seized, there was no reasonable suspicion to justify the seizure. (¶¶33-47, 49). “The circuit court’s determination of reasonable suspicion in this case was based on the high-crime area, the time of day, and Evans’s conduct in coming from and returning to the hotel and sitting in his parked car. Our case law establishes that none of these facts alone creates reasonable suspicion and further it supports our conclusion that they do not do so when considered together.” (¶38).
