2014 WI 76

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP1812 

COMPLETE TITLE: County of Grant,

 Plaintiff-Respondent-Petitioner,

 v.

Daniel A. Vogt,

 Defendant-Appellant. 

REVIEW OF A DECISION OF THE COURT OF APPEALS

346 Wis. 2d 551,830 N.W.2d 723

(Ct. App. 2013 – Unpublished)

OPINION FILED: July 18, 2014

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: January 9, 2014 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Grant

JUDGE: Robert VanDeHey

JUSTICES:

CONCURRED: ZIEGLER, ROGGENSACK, GABLEMAN, JJJ., concur. 

(Opinion filed.) 

DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion 

filed.) 

NOT PARTICIPATING: 

ATTORNEYS:

For the plaintiff-respondent-petitioner, there was a brief 

by Anthony J. Pozorski Sr., assistant district attorney, and 

Grant County, and oral argument by Anthony J. Pozorski Sr.

For the defendant-appellant, there was a brief by Jeffery 

J. Scott, and Block, Scott & Heenan, LLC, Platteville, and oral 

argument by Jeffery J. Scott. 
2014 WI 76

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP1812 

(L.C. No. 2012TR459 & 2012TR460)

STATE OF WISCONSIN : IN SUPREME COURT

County of Grant,

 Plaintiff-Respondent-Petitioner,

 v.

Daniel A. Vogt,

 Defendant-Appellant.

FILED

JUL 18, 2014

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Reversed. 

¶1 DAVID T. PROSSER, J. This is a review of an 

unpublished decision of the court of appeals,1 reversing a 

decision of the Grant County Circuit Court, which found the 

defendant guilty of operating a vehicle while intoxicated.

¶2 The case affords this court an opportunity to develop 

the law on "seizure" under the Fourth Amendment. The issue 

presented is whether, under the totality of the circumstances, a 

law enforcement officer "seized" the defendant, Daniel Vogt 

 

1 Cnty. of Grant v. Vogt, No. 2012AP1812, unpublished slip 

op. (Wis. Ct. App. Mar. 14, 2013).
No. 2012AP1812

2

(Vogt), when he knocked on the driver's window of Vogt's vehicle 

and asked Vogt to roll down the window. When Vogt complied, the 

officer immediately smelled alcohol in the vehicle and noticed 

Vogt's slurred speech, leading to an investigation and Vogt's 

ultimate arrest. In these circumstances, did the officer 

"seize" Vogt before the officer had probable cause or reasonable 

suspicion to believe that Vogt committed an offense?

¶3 Although we acknowledge that this is a close case, we 

conclude that a law enforcement officer's knock on a car window 

does not by itself constitute a show of authority sufficient to 

give rise to the belief in a reasonable person that the person 

is not free to leave. The objective of law enforcement is to 

protect and serve the community. Accordingly, an officer's 

interactions with people are not automatically adversarial. A 

court's "seizure" inquiry into one of these interactions must 

examine the totality of the circumstances, seeking to identify 

the line between an officer's reasonable attempt to have a 

consensual conversation and a more consequential attempt to 

detain an individual. The facts in this case do not show a 

level of intimidation or exercise of authority sufficient to 

implicate the Fourth Amendment until after Vogt rolled down his 

window and exposed the grounds for a seizure. Consequently, we 

reverse.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶4 In the early morning of December 25, 2011, Deputy 

Matthew Small (Deputy Small) of the Grant County Sheriff's 

Department was on patrol duty in the Village of Cassville. The 
No. 2012AP1812

3

village is located on the Mississippi River, southwest of 

Lancaster, the Grant County seat. In 2010 Cassville had a 

population of 947. Around 1 a.m., Deputy Small observed a 

vehicle on Prime Street turn west and pull into the parking lot 

next to a closed park and boat landing on the Mississippi. He 

did not observe any traffic violations but thought the driver's 

conduct was suspicious.

¶5 Riverside Park closed at 11 p.m., but the adjacent 

parking lot remained open. Deputy Small said, however, that 

because of the time of year (Christmas), and because the park 

was closed and there were no boats at the landing, he thought it 

was odd for someone to be there.2

¶6 His curiosity piqued, Deputy Small pulled into the 

parking lot and parked his marked squad car behind Vogt's 

vehicle a little off to the driver's side. The squad car's 

headlights were on, but its red and blue emergency lights were 

not. Vogt's car was running and had its lights on as well.

Deputy Small said at the suppression hearing that he was not 

 

2 The circuit court opined that it was reasonable for Deputy 

Small to ask Vogt what he was doing. During the hearing on 

Vogt's motion to suppress, the court commented, "I mean on one

hand, what the officer did seems perfectly reasonable. You 

know, 2:00 in the morning, nobody's going to be launching a boat 

on Christmas Day." At trial, the court reiterated the 

reasonableness of Deputy Small's conduct when it noted that 

"there is really not anything unreasonable with approaching a 

vehicle at bar time and finding out why they're parked 

at . . . a boat landing that apparently was not closed, but the 

park next to it was closed."
No. 2012AP1812

4

blocking the car and that the driver could have left, although

Daniel Vogt later disagreed.

¶7 Deputy Small got out of his squad car and walked up to 

Vogt's window. He was in full uniform and had a pistol in his 

side holster. There were two people in the vehicle: Vogt in the 

driver's seat and Kimberly Russell (Russell) in the passenger's 

seat. Deputy Small testified at the trial that he rapped on the 

window but could not recall if the knock was hard or soft.3 He 

also said that he motioned for Vogt to roll down the window and

that if Vogt had ignored him and driven away, Deputy Small would 

have let him go because he "had nothing to stop him for."

¶8 When Vogt rolled down the window, Deputy Small asked 

him what he was doing, and Vogt said that he was trying to 

figure out his radio. Deputy Small said that Vogt's speech was 

slurred and that he could smell intoxicants coming from inside 

the vehicle. Deputy Small asked Vogt for his driver's license 

and went back to his squad car. He turned on the red and blue 

emergency lights and moved the squad car back and a little to 

the left so that he could videotape the interaction. Deputy 

Small asked Vogt to step out of the vehicle for a field sobriety 

test, during which Vogt showed signs of intoxication. Deputy 

Small then placed Vogt under arrest and transported him to the 

Grant County Jail in Lancaster where Vogt submitted to an 

evidentiary chemical test of his breath. The test indicated 

 

3 Previously, at a suppression hearing, Deputy Small said he 

could not remember whether the window was up or down but said 

that he "may have knocked on the window."
No. 2012AP1812

5

that Vogt had a prohibited alcohol concentration (PAC) of .19——

more than twice the legal limit. See Wis. Stat. 

§ 340.01(46m)(a) (2011-12).

4

¶9 Vogt was cited for operating a motor vehicle while 

under the influence of an intoxicant (OWI) and PAC contrary to 

Wis. Stat. § 346.63(1)(a).

5 Because this was his first violation 

of § 346.63(1)(a), it was a civil violation. See Wis. Stat. 

§ 346.65(2)(am). Vogt filed a plea of not guilty on January 5, 

2012. On February 29, 2012, he moved to suppress all evidence 

obtained during his allegedly unlawful detention and arrest on 

grounds that Deputy Small did not have reasonable suspicion to 

conduct a traffic stop. The Grant County Circuit Court, Robert 

P. VanDeHey, Judge, held a motion hearing on March 30, 2012, 

during which Deputy Small was the only witness to testify.

¶10 The circuit court denied the motion to suppress in a 

written order on April 23, 2012. Judge VanDeHey relied on the 

seizure analysis articulated in United States v. Mendenhall, 446 

U.S. 544, 554 (1980), and determined that Deputy Small's conduct 

did not constitute a seizure. The circuit court noted:

Deputy Small did not draw his gun. His emergency 

lights were not in operation. There is no showing 

that he raised his voice. There is some evidence that 

he impeded the operation of the defendant's automobile 

 

4 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated.

5 Although the PAC citation lists only Wis. Stat. 

§ 346.63(1)(a) as the violated statute, the statute that 

specifically prohibits driving with a prohibited alcohol 

concentration is Wis. Stat. § 346.63(1)(b).
No. 2012AP1812

6

in that he initially parked somewhat to the side and 

behind the vehicle and then had to re-position his 

vehicle to conduct field sobriety tests. There is no 

evidence that Deputy Small "commanded" Mr. Vogt to 

roll down his window by tapping on the window and 

motioning that he roll down his window.

Although the circuit court believed it was a close case, the 

court denied the motion to suppress.

¶11 A trial to the court took place on July 5, 2012. 

Vogt's passenger, Russell, testified that Deputy Small's rap on 

the window was "hard" and that he said, "Give me your driver's 

license." According to Russell, Deputy Small's voice "was 

forceful," and he did not say "please" or "thank you." Russell 

also described the parking lot. To the right of the vehicle

were a lit pop machine and the park. As Deputy Small said, the 

squad car was behind Vogt's vehicle, a little closer to the 

driver's side. The Mississippi River was in front of Vogt's 

vehicle. Wisconsin Power & Light Company was on the left,6 and 

Deputy Small was standing on the left side of Vogt's vehicle. 

Russell thought that Vogt could not have ignored Deputy Small 

and could not have left because there was nowhere for him to go.

¶12 Vogt testified that Deputy Small "rapped on the window 

very loud" with his knuckles and told Vogt to open the window 

without saying "please" or "would you." Vogt said that Deputy 

Small's voice was commanding and that he did not think he had 

any alternative to rolling down the window. Vogt said that he 

 

6 Vogt admitted on cross-examination that Wisconsin Power & 

Light Company was far enough away that it would not have 

prevented him from turning left.
No. 2012AP1812

7

could not have pulled forward and turned around, could not have 

turned left without hitting Deputy Small, could not have turned 

right without hitting the pop machine, and could not have backed

up because of the squad car. On cross-examination, Vogt 

admitted that the boat landing was roughly 40 yards wide and 

that the Mississippi River could have been 50 feet in front of 

him. In the past, ice had washed up onto the parking lot, but

Vogt did not know how far it had washed up on December 25, 2011, 

if at all. Vogt agreed that he had had too much to drink and 

should not have been driving.

¶13 At the end of the trial, Vogt renewed his motion to 

suppress. In making its decision, the circuit court noted that 

there was a question as to whether Deputy Small verbally 

commanded Vogt to roll down the window. The court said:

There is additional evidence today that was not 

brought forth at the motion hearing, particularly that 

the officer rapped loudly on the window and supposedly 

commanded Mr. Vogt to roll down the window. That's 

different than the officer's testimony who indicated 

that he just wanted to see what was going on. He was 

suspicious. Had Mr. Vogt decided to drive away, he 

would have let him.

The officer also testified that he did not block 

the vehicle in, that the vehicle could have gotten 

around him. So there are a few factual distinctions 

as far as the testimony. It's not a very bright line, 

and I don't know how a driver knows the difference 

between a command and a suggestion, particularly when 

we're talking about a physical movement, the knocking 

on the window.

To the extent that Mr. Vogt and Ms. Russell's 

testimony differs from the officer's, the resolution 

probably is somewhere in between, that the officer 

wasn't as aggressive as the occupants of the vehicle 
No. 2012AP1812

8

thought, and maybe he wasn't quite as subtle as he 

thought he was being. But the basic facts are that 

there was [a] vehicle running at night at bar time. 

The officer knocked on the window, rapped on the 

window. There is a dispute as to whether there was 

actually a verbal command after that. I don't know 

that that's the case. Given that the vehicle was 

running and the time of night and the officer's 

initial testimony that he probably just knocked on the 

window, that that seems to be the——well, at least the 

consistent testimony.

Vogt's attorney interrupted to remind the court that at the 

motion hearing, Deputy Small could not remember how he 

approached Vogt. The court responded:

Yeah, and it was quoted in the decision, but I——his 

testimony today was that it——if Mr. Vogt drove away, 

he wasn't going to stop him. He had no reason to do 

it, which would indicate that he wasn't commanding him 

to do anything, is that he was simply trying to make 

contact.

¶14 The circuit court found Vogt guilty of the OWI 

violation and dismissed the PAC count. The court ordered a 

forfeiture of $899, revoked Vogt's license for seven months, 

ordered alcohol assessment and a driver safety plan, and entered 

an order for a mandatory ignition interlock for one year. All 

penalties were stayed pending appeal. The judgment of 

conviction was filed on August 3, 2012, and Vogt filed a notice 

of appeal on August 13, 2012.

¶15 In an unpublished decision, the court of appeals 

reversed the circuit court. Cnty. of Grant v. Vogt, No. 

2012AP1812, unpublished slip op. (Wis. Ct. App. Mar. 14, 2013). 

The court of appeals determined that "when a uniformed officer 

approaches a vehicle at night and directs the driver to roll 
No. 2012AP1812

9

down his or her window, a reasonable driver would not feel free 

to ignore the officer." Id., ¶13. The court of appeals assumed 

that Deputy Small "directed Vogt to roll down his window, rather 

than asking him if he would do so." Id. Based on this 

assumption, the court of appeals concluded that a reasonable 

driver would not have felt free to leave, and therefore, Deputy 

Small seized Vogt without reasonable suspicion. Id., ¶¶13-14.

¶16 The County of Grant petitioned this court for review, 

which we granted on October 15, 2013.

II. STANDARD OF REVIEW

¶17 Whether someone has been seized presents a two-part 

standard of review. State v. Williams, 2002 WI 94, ¶17, 255 

Wis. 2d 1, 646 N.W.2d 834. This court will uphold the circuit 

court's findings of fact unless they are clearly erroneous, but 

the application of constitutional principles to those facts 

presents a question of law subject to de novo review. Id. The 

same standard of review applies to a motion to suppress. See

State v. Hess, 2010 WI 82, ¶19, 327 Wis. 2d 524, 785 N.W.2d 568.

III. DISCUSSION

¶18 Under the Fourth Amendment of the United States 

Constitution, "The right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated . . . ." U.S. 

Const. amend. IV.7 The Wisconsin Constitution contains the same 

 

7 The Fourth Amendment to the United States Constitution 

reads in full:
No. 2012AP1812

10

language,8 and "[w]e have historically interpreted the Wisconsin 

Constitution's protections in this area identically to the 

protections under the Fourth Amendment as defined by the United 

States Supreme Court."9 State v. Dearborn, 2010 WI 84, ¶14, 327 

Wis. 2d 252, 786 N.W.2d 97 (footnote omitted) (citation 

omitted).

¶19 The law on searches and the law on seizures present

separate lines of analysis. With respect to the latter, the 

 

The right of the people to be secure in their 

persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and 

the persons or things to be seized.

U.S. Const. amend. IV.

8 The Wisconsin Constitution reads: 

The right of the people to be secure in their 

persons, houses, papers, and effects against 

unreasonable searches and seizures shall not be 

violated; and no warrant shall issue but upon probable 

cause, supported by oath or affirmation, and 

particularly describing the place to be searched and 

the persons or things to be seized. 

Wis. Const. art. I, § 11.

9 While this court generally interprets the Wisconsin 

Constitution to give the same protections as the Fourth 

Amendment of the United States Constitution, we have determined 

that the Wisconsin Constitution offers more protection than the 

Fourth Amendment under the good faith exception, which does not 

apply in this case. See State v. Eason, 2001 WI 98, ¶60, 245 

Wis. 2d 206, 629 N.W.2d 625. Because we interpret the Wisconsin 

Constitution to be coterminous with the United States 

Constitution in this area, the analysis in this opinion applies 

to both constitutions.
No. 2012AP1812

11

Fourth Amendment and Article I, Section 11 of the Wisconsin 

Constitution are not implicated until a government agent 

"seizes" a person. State v. Young, 2006 WI 98, ¶23, 294 

Wis. 2d 1, 717 N.W.2d 729. The reason is that not all personal 

interactions between law enforcement officers and people 

constitute a seizure. Mendenhall, 446 U.S. at 552; Young, 294 

Wis. 2d 1, ¶18 ("[N]ot all police-citizen contacts constitute a 

seizure . . . .").

¶20 A seizure occurs "[o]nly when the officer, by means of 

physical force or show of authority, has in some way restrained 

the liberty of a citizen." Mendenhall, 446 U.S. at 552 (quoting 

Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). As Justice Stewart 

stated in Mendenhall, "a person has been 'seized' within the 

meaning of the Fourth Amendment only if, in view of all of the 

circumstances surrounding the incident, a reasonable person 

would have believed that he was not free to leave." Id. at 554 

(footnote omitted).

¶21 When Mendenhall was written, Justice Stewart's lead 

opinion was joined by only Justice Rehnquist. Justice Powell 

authored a concurrence, joined by Chief Justice Burger and 

Justice Blackmun, in which he observed that "I do not 

necessarily disagree with" Justice Stewart's standard, but "the 

question whether the respondent . . . reasonably could have 

thought she was free to 'walk away' when asked by two Government 

agents for her driver's license and ticket is extremely close." 

Id. at 560 n.1 (Powell, J., concurring).
No. 2012AP1812

12

¶22 The Court's tentative acceptance of Justice Stewart's 

standard has since been bolstered and confirmed. INS v. 

Delgado, 466 U.S. 210, 215-17 (1984); Florida v. Royer, 460 U.S. 

491, 497, 502-04 (1983) (plurality opinion); see also Kaupp v. 

Texas, 538 U.S. 626, 629-30 (2003); Florida v. Bostick, 501 U.S. 

429, 434-35 (1991); California v. Hodari D., 499 U.S. 621, 627-

28 (1991); Michigan v. Chesternut, 486 U.S. 567, 573 (1988); 

Delgado, 466 U.S. at 228 (Brennan, J., concurring in part, 

dissenting in part) (citations omitted) ("A majority of the 

Court has since adopted [the Mendenhall] formula as the 

appropriate standard for determining when inquiries made by the 

police cross the boundary separating merely consensual 

encounters from forcible stops to investigate a suspected 

crime.").

¶23 After articulating the test for determining when a 

seizure takes place, Justice Stewart went on to list some 

examples of circumstances that might suggest a seizure: "the 

threatening presence of several officers, the display of a 

weapon by an officer, some physical touching of the person of 

the citizen, or the use of language or tone of voice indicating 

that compliance with the officer's request might be compelled." 

Mendenhall, 446 U.S. at 554 (citations omitted); see Kaupp, 538 

U.S. at 630. Justice Stewart stated that without similar 

evidence that would lead a reasonable person to believe that he 

or she was not free to leave, an interaction with law 

enforcement is not a seizure as a matter of law. Mendenhall, 

446 U.S. at 555 (stating that "inoffensive contact between a 
No. 2012AP1812

13

member of the public and the police cannot, as a matter of law, 

amount to a seizure of that person").

¶24 The Supreme Court provided further guidance in 

Delgado, when it stated that "police questioning, by itself, is 

unlikely to result in a Fourth Amendment violation. While most 

citizens will respond to a police request, the fact that people 

do so, and do so without being told they are free not to 

respond, hardly eliminates the consensual nature of the 

response." Delgado, 466 U.S. at 216 (citing Schneckloth v. 

Bustamonte, 412 U.S. 218, 231-34 (1973)). The Court then 

adopted the Mendenhall standard and stated that there is no 

seizure "[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." Id.

¶25 The rule that a seizure occurs only when law 

enforcement restrains a person's liberty by show of authority 

advances the goals of the Fourth Amendment:

The purpose of the Fourth Amendment is not to 

eliminate all contact between the police and the 

citizenry, but "to prevent arbitrary and oppressive 

interference by enforcement officials with the privacy 

and personal security of individuals." United States 

v. Martinez-Fuerte, 428 U.S. 543, 554 [(1976)]. As 

long as the person to whom questions are put remains 

free to disregard the questions and walk away, there 

has been no intrusion upon that person's liberty or 

privacy as would under the Constitution require some 

particularized and objective justification.

Mendenhall, 446 U.S. at 553-54. To facilitate these goals, the 

test is objective and "calls for consistent application from one 

police encounter to the next, regardless of the particular 
No. 2012AP1812

14

individual's response to the actions of the police." 

Chesternut, 486 U.S. at 574.

¶26 To sum up, there are countless interactions or 

encounters among police and members of the community. Not all 

encounters are seizures, and these non-seizure encounters are 

not governed by the Fourth Amendment. Other interactions or 

encounters are seizures and are subject to Fourth Amendment 

criteria. Fourth Amendment jurisprudence focuses on the line 

between seizures and mere encounters as well as the 

reasonableness of the police/citizen interactions that do 

constitute seizures.

¶27 There are two kinds of permissible seizures. Young, 

294 Wis. 2d 1, ¶20. A Terry stop is an investigatory stop for 

which a law enforcement officer must have reasonable suspicion 

"in light of his experience that criminal activity may be 

afoot."10 Terry, 392 U.S. at 30; see Young, 294 Wis. 2d 1, ¶20; 

State v. Waldner, 206 Wis. 2d 51, 57, 556 N.W.2d 681 (1996). An 

 

10 The standards for a Terry stop are codified in the 

Wisconsin Statutes:

After having identified himself or herself as a 

law enforcement officer, a law enforcement officer may 

stop a person in a public place for a reasonable 

period of time when the officer reasonably suspects

that such person is committing, is about to commit or 

has committed a crime, and may demand the name and 

address of the person and an explanation of the 

person’s conduct. Such detention and temporary 

questioning shall be conducted in the vicinity where 

the person was stopped.

Wis. Stat. § 968.24.
No. 2012AP1812

15

officer has reasonable suspicion when he "possesses specific and 

articulable facts which would warrant a reasonable belief that 

criminal activity was afoot." Waldner, 206 Wis. 2d at 55

(citing State v. Chambers, 55 Wis. 2d 289, 294, 198 N.W.2d 377 

(1972)).

¶28 The second kind of permissible seizure is an arrest, 

which normally involves "a trip to the station house and 

prosecution for crime." Young, 294 Wis. 2d 1, ¶22 (quoting 

Terry, 392 U.S. at 16). To make an arrest, a law enforcement 

officer must have probable cause to believe that the person 

arrested has committed a crime. Id. That is, the officer must 

"have sufficient knowledge at the time of the arrest to 'lead a 

reasonable police officer to believe that the defendant probably 

committed or was committing a crime.'" Id. (quoting State v. 

Secrist, 224 Wis. 2d 201, 212, 589 N.W.2d 387 (1999)).

¶29 In the present case, neither type of permissible 

seizure came into play until Vogt opened the window and Deputy 

Small detected signs of intoxication. Deputy Small may have had 

a savvy hunch that the driver of the Vogt vehicle had been 

drinking. But a savvy hunch is not equivalent to the reasonable 

suspicion that would have justified a Terry-type temporary 

detention. Because Deputy Small did not have reasonable 

suspicion to believe Vogt was operating while intoxicated until 

after Vogt opened his window, we must determine whether Vogt was 

seized before his window was rolled down.

A. Wisconsin Seizure Law
No. 2012AP1812

16

¶30 This court has adopted the Mendenhall test for 

determining whether a seizure took place, and it is the proper 

test for this case. Id., ¶37 ("Mendenhall is the appropriate 

test for situations where the question is whether a person 

submitted to a police show of authority because, under all the 

circumstances surrounding the incident, a reasonable person 

would not have felt free to leave."). The test is objective and 

considers whether an innocent reasonable person, rather than the 

specific defendant, would feel free to leave under the 

circumstances. See Williams, 255 Wis. 2d 1, ¶23.

¶31 The seizure test is necessarily objective,11 but it is 

complicated by the tendency of people to defer to a symbol of 

authority no matter how it is manifested. A badge might imbue 

an officer's request with intimidation in the mind of some 

persons, but the law must be more discerning. In most cases it 

is important for courts conducting a Fourth Amendment seizure 

analysis to distinguish between a person's individual 

predisposition, which might lead the person to consent to an 

 

11 The test must be objective because "any test intended to 

determine what street encounters are not seizures must be 

expressed in terms that can be understood and applied by the 

officer. Asking him to determine whether the suspect feels free 

to leave, however 'would require a prescience neither the police 

nor anyone else possesses.'" 4 Wayne R. LaFave, Search and 

Seizure § 9.4(a), at 568 (5th ed. 2012) (quoting United States 

v. Hall, 421 F.2d 540 (2d Cir. 1969)).
No. 2012AP1812

17

officer's inquiry, and an officer's objective conduct.12 To 

their credit, citizens and others may feel tethered by social 

norms to an officer's request and may consent in order to avoid 

the taboo of disrespecting an officer of the law. However, a 

person's consent is no less valid simply because an individual 

is particularly susceptible to social or ethical pressures.13 

Were it otherwise, officers would be hesitant to approach anyone 

for fear that the individual would feel "seized" and that any 

question asked, however innocuous, would lead to a violation of 

the Fourth Amendment. Thus, when determining whether an 

individual was seized, we must replace the individual with the 

 

12 See INS v. Delgado, 466 U.S. 210, 228 (1984) (Brennan, 

J., concurring in part, dissenting in part) (stating that the 

seizure analysis "properly looks not to the subjective 

impressions of the person questioned but rather to the objective 

characteristics of the encounter which may suggest whether or 

not a reasonable person would believe that he remained free 

during the course of the questioning to disregard the questions 

and walk away") (citing 3 W. LaFave, Search and Seizure § 9.2, 

at 52 (1978)).

13 4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 581 

(5th ed. 2012) (footnote omitted) (suggesting that law 

enforcement "should be allowed 'to seek cooperation, even where 

this may involve inconvenience or embarrassment for the citizen, 

and even though many citizens will defer to this authority of 

the police because they believe——in some vague way——that they 

should.'") (quoting Model Code of Pre-Arraignment Procedure 258 

(1975)).
No. 2012AP1812

18

paradigmatic reasonable person and focus on the officer's 

conduct under the totality of the circumstances.14

¶32 Although we have established the proper standards for 

seizure cases, this court has not yet considered whether a 

person is necessarily seized within the meaning of the Fourth 

Amendment when a law enforcement officer knocks on the window of 

the person's vehicle. However, we have expressed reluctance to 

determine that pulling up behind a car and "present[ing] indicia 

of police authority" automatically constitutes a seizure. 

Young, 294 Wis. 2d 1, ¶¶65, 69 ("[N]ot every display of police 

authority rises to a 'show of authority' that constitutes a 

seizure."). In Young, the officer stopped his squad car in the 

middle of the street behind the defendant's car, which was 

parked on the side of the street. Id., ¶10. The officer shined 

his spotlight on the defendant's vehicle and turned on his 

emergency flashers, but he did not activate his red and blue 

emergency lights. Id. This court was reluctant to label the 

officer's conduct a "seizure," in part because he did not stop 

 

14 To some extent, the "reasonable person" here is a legal 

fiction. That defendants often consent to searches of areas 

that reveal incriminating evidence demonstrates that people 

often do not feel free to decline an officer's request, even 

absent a manifest show of authority. However, the reasonable 

person standard is necessary if the inquiry is to remain 

objective. The value of objective standards in this area cannot 

be gainsaid because the alternative is to equate the innocuous 

to the arbitrary and substantially limit the role of law 

enforcement in the community.
No. 2012AP1812

19

the defendant's car (it was parked already),15 and the officer 

did not use his red and blue emergency lights. Id., ¶¶66, 68-

69. We did not have to decide in Young whether the officer's 

conduct was a seizure, but the case demonstrates that not all 

manifestations of authority will result in a seizure.

B. Decisions from Other Jurisdictions

¶33 Several jurisdictions outside Wisconsin have 

determined that knocking on a vehicle's window does not 

necessarily constitute a seizure.16 We discuss some of these 

factually similar cases below.

 

15 In contrast, we determined that an impermissible seizure 

occurred when officers stopped a moving vehicle without 

reasonable suspicion by blocking its path with an unmarked squad 

car. State v. Harris, 206 Wis. 2d 243, 247, 258-59, 263, 557 

N.W.2d 245 (1996).

16 See, e.g., United States v. Barry, 394 F.3d 1070 (8th 

Cir. 2005) (no seizure when officer got out of his squad car, 

shined a flashlight on his uniform and kept a hand on his gun as 

he approached the defendant and knocked on the defendant's 

vehicle window three separate times until defendant opened the 

window); Ex parte Betterton, 527 So. 2d 747, 748-50 (Ala. 1988) 

(determining that it was not a seizure when an officer 

approached a parked car and knocked on the driver's window); 

State v. Cerrillo, 93 P.3d 960 (Wash. Ct. App. 2004) (officer 

knocking on vehicle window to wake up sleeping occupants and 

requesting driver's license was not a seizure); Custer v. State, 

135 P.3d 620, 625-26 (Wyo. 2006) (no seizure when officer 

knocked on vehicle window twice to get defendant's attention). 

But see State v. Patterson, 868 A.2d 188, 192-93 (Me. 2005) 

(concluding that officer's knock on a car window and an order to 

roll down the window constituted a seizure, although a mere 

request might have led to a different result); Williams v. State 

Dep't of Safety, 854 S.W.2d 102 (Tenn. Ct. App. 1992) 

(determining that an officer's knock on a car window violated 

the Fourth Amendment because there was no reasonable suspicion).
No. 2012AP1812

20

¶34 In State v. Randle, 276 P.3d 732 (Idaho Ct. App. 

2012), an officer saw the defendant's "vehicle alone in a 

parking lot with its front-end abutting a grassy knoll." Id. at 

733. The officer parked about two car lengths behind the 

defendant, left the headlights of his squad car on, and knocked 

on the defendant's window. Id. The defendant opened the door, 

and the officer noticed two open beer cans in the cup holder. 

Id. The officer smelled alcohol on the defendant's breath and 

decided to conduct a field sobriety test, which the defendant 

failed. Id. at 734. In considering the defendant's motion to 

suppress the evidence of intoxication, the circuit court 

determined that even though he could not pull forward, the 

defendant could have backed up and driven away and was not 

seized. Id. at 737. The court of appeals agreed, stating:

After this review of the totality of the 

circumstances surrounding the encounter between Randle 

and the officer, we conclude that, when the officer 

parked behind Randle's vehicle, left the patrol car's 

headlights on, approached Randle's vehicle and knocked 

on the window, such conduct would not have 

communicated to a reasonable person that he or she was 

not at liberty to ignore the officer's presence and go 

about his or her business.

 

Both cited cases that have determined that the 

circumstances surrounding an officer's knock on a vehicle window 

constituted a seizure are readily distinguishable. In 

Patterson, the court determined that the officer commanded the 

driver to roll down the window instead of merely making a 

request. Patterson, 868 A.2d at 192-93. The court in Williams

did not conduct a seizure analysis and instead ended the inquiry 

when it determined that the officers did not have a reasonable 

suspicion to knock on the vehicle window. Williams, 854 S.W.2d 

at 105-07. Therefore, neither case provides persuasive guidance 

for this court.
No. 2012AP1812

21

Id. at 738.

¶35 In State v. Steffes, 791 N.W.2d 633 (N.D. 2010), an 

officer responded to a tip that a man who appeared intoxicated 

was entering a vehicle in the parking lot of a bar. Id. at 634. 

The officer arrived and parked far enough from Steffes' vehicle 

so that Steffes could leave the parking spot if he wanted. Id. 

Steffes was sitting in the driver's seat holding a cell phone, 

and the radio was playing loudly. Id. at 635. The officer 

"tapped on the driver's side window and with his finger motioned 

downward indicating he wanted Steffes to lower the window." Id. 

Steffes looked at the officer but did not respond, so the 

officer knocked again. Id. At that point, Steffes opened the 

door slightly and began to talk with the officer. Id.

¶36 While the two were talking, another officer arrived. 

Id. When the first officer asked Steffes for his driver's 

license, Steffes said that he did not have it with him and gave 

a fake name and birthdate. Id. Steffes was charged with 

providing false information to a law enforcement officer and 

moved to suppress on grounds that he was unlawfully seized. Id. 

The district court denied the motion and entered judgment on 

Steffes' conditional guilty plea. Id. On appeal, Steffes 

argued that the officer's second knock, oral request, and hand 

gesture constituted a seizure. Id. at 636. The Supreme Court 

of North Dakota noted that the officer did not turn on the red 

and blue emergency lights, did not block Steffes' car, and did 

not display authority. Id. Therefore, Steffes was not seized. 

Id. at 637.
No. 2012AP1812

22

¶37 In State v. Bryant, 161 S.W.3d 758 (Tex. App. 2005), 

around 2:00 a.m., an officer noticed the defendant's car turn 

into a shopping center in which the businesses were closed. Id.

at 760, 762. The officer pulled into the parking lot, got out 

of his patrol car, and knocked on the defendant's window. Id. 

When the defendant opened his car door, the officer smelled 

alcohol and arrested the defendant for driving while 

intoxicated. Id. The circuit court suppressed the evidence of 

intoxication because the defendant did not violate any traffic 

laws, and the officer did not have reasonable suspicion to 

approach the defendant's car and knock on the window. Id. at 

761. The court of appeals reversed, determining that the 

officer "was not required to have reasonable suspicion that [the 

defendant] was engaged in criminal activity to approach [the 

defendant's] car and knock on his window." Id. at 762. Thus, 

the interaction "did not become an investigative detention until 

after [the defendant] opened his car door." Id.

¶38 These cases demonstrate that when an officer parks 

near a person's vehicle, gets out, and knocks on the person's 

window, the officer has not necessarily displayed sufficient 

authority to cause a reasonable person to feel that he or she 
No. 2012AP1812

23

was not free to leave.17 While a person is not automatically 

seized by a knock on the window, or even a supplementary

request, the seizure inquiry looks at the totality of the 

circumstances to determine whether the officer has effected a 

detention. Thus, we turn to the facts of the case before us to 

determine whether Vogt was unlawfully seized.

C. The Interaction Between Vogt and Deputy Small

¶39 Vogt's argument focuses mainly on Deputy Small's 

conduct before Vogt opened the window. Once the window was open 

and Deputy Small smelled intoxicants and detected Vogt's slurred 

speech, Deputy Small had reasonable suspicion that Vogt was 

operating his vehicle while intoxicated. Before that point, the 

parties agree that Deputy Small did not have reasonable 

suspicion to stop Vogt. Thus, the question for this court is 

whether Deputy Small seized Vogt at any time before Vogt rolled 

down his window. We conclude that he did not.

¶40 Vogt suggests that the seizure occurred when Deputy 

Small knocked on the window and "commanded" Vogt to roll down 

the window. Vogt admits that Deputy Small did not seize him by 

 

17 See 4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 

574-77 (5th ed. 2012) (footnotes omitted) ("[I]f an officer 

merely walks up to a person standing or sitting in a public 

place (or, indeed, who is seated in a vehicle located in a 

public place) and puts a question to him, this alone does not 

constitute a seizure."). In addition, "The officer may tap on 

the window and perhaps even open the door if the occupant is 

asleep. A request that the suspect open the door or roll down 

the window would seem equally permissible, but the same would 

not be true of an order that he do so." Id., § 9.4(a), at 594-

95 (footnotes omitted).
No. 2012AP1812

24

following him into the parking lot. He admits that Deputy Small 

did not seize him by getting out of his squad car and would not 

have seized him by walking around Vogt's car and looking through 

the windows. However, Vogt takes issue with the location of 

Deputy Small's car and his conduct at Vogt's window. In 

claiming that a seizure took place, Vogt highlights several 

alleged facts: (1) Deputy Small parked right behind Vogt's 

vehicle; (2) "the location of Mr. Vogt's vehicle in the parking 

lot was not conducive to simply driving away"; (3) Deputy Small 

commanded Vogt to roll down the window; and (4) Deputy Small 

rapped loudly on the window.

¶41 Even taken together, these facts do not demonstrate 

that Vogt was seized. Although Deputy Small parked directly 

behind Vogt and allegedly there were obstacles on three sides of 

Vogt's vehicle, these facts do not demonstrate that Vogt was 

seized because he still could have driven away. The circuit 

court did not explicitly find that Vogt had room to leave the 

parking lot, but "if a circuit court fails to make a finding 

that exists in the record, an appellate court can assume that 

the circuit court determined the fact in a manner that supports 

the circuit court's ultimate decision." State v. Martwick, 2000 

WI 5, ¶31, 231 Wis. 2d 801, 604 N.W.2d 552 (citing Sohns v. 

Jensen, 11 Wis. 2d 449, 453, 105 N.W.2d 818 (1960)). The 

appellate court is entrusted to make that assumption "only when 

evidence exists in the record to support the 'assumed fact.'" 

Id., ¶74 (Abrahamson, C.J., dissenting). The record supports 

the assumption that Vogt had room to leave.
No. 2012AP1812

25

¶42 Although Deputy Small pulled up behind Vogt's vehicle, 

there was testimony at trial that Vogt might have had 50 feet in 

front of him in which he could have pulled forward and turned 

around. In addition, the video from the camera in Deputy 

Small's squad car shows ample room for the car to move forward. 

There was some discussion about ice washing up onto the lot in 

the past; however, there is no ice visible on the video and no 

evidence that there actually was ice on December 25, 2011. 

Thus, we assume that because the circuit court determined that a 

reasonable person in Vogt's circumstances would have felt free 

to leave, there was an avenue by which Vogt could have actually 

left. Like the defendant in Randle who was not seized simply 

because the grassy knoll limited his exit options, Randle, 276 

P.3d at 733, 738, Vogt was not seized simply because there was 

only one way out of the parking lot.

¶43 Vogt's assertion that he was seized because of Deputy 

Small's "command" to roll down the window also is unpersuasive. 

The circuit court found in its decision on the motion to 

suppress that "[t]here is no evidence that Deputy Small 

'commanded' Mr. Vogt to roll down his window by tapping on the 

window and motioning that he roll down his window." At trial, 

the court found that Deputy Small's testimony "would indicate 

that he wasn't commanding [Vogt] to do anything, . . . that he 

was simply trying to make contact." Even though the circuit 

court noted that Deputy Small maybe "wasn't quite as subtle as 

he thought he was being," the court still determined that Deputy 

Small's conduct was not so intimidating as to constitute a 
No. 2012AP1812

26

seizure. Thus, Vogt's arguments that he was seized due to a 

"command" from Deputy Small are unavailing.18

¶44 Vogt also emphasizes the loudness of the knock in 

arguing that he was seized. Although the seizure analysis 

considers the totality of the circumstances, the volume of the 

knock generally will not play a significant roll in the 

analysis. We live in a time of distraction where earbuds 

connected to smartphones or other music devices are commonplace. 

Vehicles may be outfitted with sophisticated stereo systems. It 

might be necessary for an officer to motion or to knock in order 

to attract the attention of a person with whom he would like to 

speak if the person is willing. To prescribe the types of 

permissible attention-getting gestures or the allowable volume 

of a knock would be an unrealistic venture. A knock might sound 

loud to an unsuspecting vehicle occupant, but that alone does 

not mean the occupant has been seized.

¶45 Vogt also implies that the fact that he was in a 

vehicle affects the analysis because if he had left, he might 

have been charged with obstruction. Vogt's argument implicitly 

 

18 The court of appeals decided to assume that Deputy Small 

"commanded" Vogt to roll down the window. Cnty. of Grant v. 

Vogt, No. 2012AP1812, unpublished slip op., ¶13 (Wis. Ct. App. 

Mar. 14, 2013). After noting that there was a discrepancy 

between Deputy Small's and Vogt's testimony, the court of 

appeals said that "those distinctions are not determinative in 

this case because without clarification, we must assume that the 

officer directed Vogt to roll down his window, rather than 

asking him if he would do so." Id. Because the circuit court 

made findings that Deputy Small did not command Vogt and 

determined Vogt was not seized, the court of appeals' assumption 

was not correct.
No. 2012AP1812

27

suggests that Wis. Stat. § 346.04,19 which prohibits a driver 

from ignoring a signal from a traffic officer, limited Vogt's 

ability to drive away. At oral argument, the County of Grant 

pointed out that Wis. Stat. § 346.04 is inapplicable because it 

applies only to highways. We agree.

¶46 Wisconsin Stat. § 346.02(1) is clear: "This chapter 

applies exclusively upon highways except as otherwise expressly 

provided in this chapter." The term, "highways," does not 

include public parking lots. 65 Wis. Op. Att'y Gen. 45 (1976) 

(OAG 45-47). A 1957 legislative committee note to Wis. Stat. 

 

19 Wisconsin Stat. § 346.04 provides:

(1) No person shall fail or refuse to comply 

with any lawful order, signal or direction of a 

traffic officer.

(2) No operator of a vehicle shall disobey the 

instructions of any official traffic sign or signal 

unless otherwise directed by a traffic officer.

(2t) No operator of a vehicle, after having 

received a visible or audible signal to stop his or 

her vehicle from a traffic officer or marked police 

vehicle, shall knowingly resist the traffic officer by 

failing to stop his or her vehicle as promptly as 

safety reasonably permits.

(3) No operator of a vehicle, after having 

received a visual or audible signal from a traffic 

officer, or marked police vehicle, shall knowingly 

flee or attempt to elude any traffic officer by 

willful or wanton disregard of such signal so as to 

interfere with or endanger the operation of the police 

vehicle, or the traffic officer or other vehicles or 

pedestrians, nor shall the operator increase the speed 

of the operator's vehicle or extinguish the lights of 

the vehicle in an attempt to elude or flee.
No. 2012AP1812

28

§ 346.61 is "highly persuasive evidence of legislative intent 

that public parking lots are not highways for the purpose of 

enforcement of ch. 346, Stats., generally." Id. at 46.

¶47 The exceptions alluded to in the phrase "except as 

otherwise expressly provided in this chapter" are the exceptions 

found in Wis. Stat. § 346.61, namely, §§ 346.62 to 346.64 

(reckless driving and drunken driving). These exceptions apply 

beyond the limitation of "highways" and thus may be applied in 

public parking lots. However, these exceptions do not include 

Wis. Stat. § 346.04, which applies "exclusively upon highways." 

Thus, Vogt could have driven out of the parking lot without 

violating § 346.04.

¶48 If Deputy Small had pursued Vogt and ordered him to

stop once he left the parking lot, Vogt could have pulled over 

to comply. But stopping a moving vehicle is indisputably a 

seizure, State v. Harris, 206 Wis. 2d 243, 557 N.W.2d 245 

(1996), and requires Fourth Amendment analysis.

¶49 In any event, Vogt cannot speculate about what might 

have happened if he had tried to leave. See Delgado, 466 U.S. 

at 220-21 (stating that defendants "may only litigate what 

happened to them"). In short, § 346.04 does not support Vogt's 

argument. We need not decide whether § 346.04 would affect the 

seizure analysis if Deputy Small had encountered Vogt on a 

highway. However, § 346.04 does not apply to the facts as we 

know them.

¶50 To support his arguments, Vogt cites an unpublished 

court of appeals decision involving an interaction between a 
No. 2012AP1812

29

person in a vehicle and two police officers. See City of 

Kenosha v. Tower, No. 2009AP1957, unpublished slip op. (Wis. Ct. 

App. Oct. 6, 2010). In Tower, two bike patrol officers 

approached the defendant's van, which was stopped with the 

engine running on the side of the street where there was a "no 

parking" sign. Id., ¶2. Immediately after making contact with 

the defendant, the officers ordered her to "put the vehicle in 

'park.'" Id. The officers noticed signs of intoxication, and 

eventually, because the defendant refused to provide a breath 

sample, her license was revoked. Id., ¶¶2-4. On appeal, the 

city appeared to acknowledge that a seizure occurred and focused 

on whether there was reasonable suspicion. Id., ¶¶7, 11

("Because the City argues this was a valid Terry stop, on appeal 

we need only address whether the facts known to the officers, 

considered together as a totality of the circumstances, provided 

them the requisite reasonable suspicion to justify stopping 

Tower."). Thus, Tower does not support Vogt's argument because 

the question in that case was whether there was reasonable 

suspicion, not whether the defendant was seized.

¶51 Ultimately, what Deputy Small did in this case is what 

any traffic officer might have done: investigate an unusual 

situation. As the circuit court noted, "what the officer did 

seems perfectly reasonable." Deputy Small was acting as a 

conscientious officer. He saw what he thought was suspicious 

behavior and decided to take a closer look. Even though Vogt's 

conduct may not have been sufficiently suspect to raise 

reasonable suspicion that a crime was afoot, it was reasonable 
No. 2012AP1812

30

for Deputy Small to try to learn more about the situation by 

engaging Vogt in a consensual conversation.20

¶52 The Fourth Amendment's prerequisites for a seizure are 

intended to safeguard the privacy of all persons; thus, a mere 

hunch is not enough to condone a seizure. See Terry, 392 U.S. 

at 27. Yet, while the law applicable to the facts of this case 

does not condone a seizure, it does not forestall an officer's 

reasonable attempt at further inquiry. In similar 

circumstances, a person has the choice to refuse an officer's 

attempt to converse and thereby retain his privacy, or respond 

by talking to the officer and aiding the officer in his duty to 

protect the public. A dutiful officer does not make a mistake 

by presenting a person with that choice. Only when the officer 

forecloses the choice by the way in which he exercises his 

authority——absent reasonable suspicion or probable cause——does 

he violate the Fourth Amendment.

¶53 Although it may have been Vogt's social instinct to 

open his window in response to Deputy Small's knock, a 

reasonable person in Vogt's situation would have felt free to 

leave. As several jurisdictions have recognized, a law 

enforcement officer's knock on a vehicle window does not 

automatically constitute a seizure. The circumstances attendant 

to the knock in the present case are not so intimidating as to 

 

20 See Barry, 394 F.3d at 1075 (citation omitted) (stating 

that the officer "probably would have been remiss had he ignored 

the vehicle parked in an alley behind closed stores at 11:18 

p.m.").
No. 2012AP1812

31

transform the knock into a seizure. None of the examples 

outlined by Justice Stewart as demonstrating a seizure are 

present in this case. See Mendenhall, 446 U.S. at 554-55. Vogt 

was not subject to the threatening presence of multiple 

officers. Deputy Small did not brandish any weapon. There is 

no evidence that Deputy Small touched Vogt, and as discussed 

above, Deputy Small did not speak in a way that would suggest 

Vogt was compelled to roll down the window. While the facts of 

Justice Stewart's examples need not be present for there to be a 

seizure, the facts in this case are not sufficient to 

demonstrate that a reasonable person would not feel free to 

leave. Therefore, under the totality of the circumstances, Vogt 

was not seized.

IV. CONCLUSION

¶54 Although we acknowledge that this is a close case, we 

conclude that a law enforcement officer's knock on a car window 

does not by itself constitute a show of authority sufficient to 

give rise to the belief in a reasonable person that the person 

is not free to leave. The objective of law enforcement is to 

protect and serve the community. Accordingly, an officer's 

interactions with people are not automatically adversarial. A 

court's "seizure" inquiry into one of these interactions must 

examine the totality of the circumstances, seeking to identify 

the line between an officer's reasonable attempt to have a 

consensual conversation and a more consequential attempt to 

detain an individual. The facts in this case do not show a 

level of intimidation or exercise of authority sufficient to 
No. 2012AP1812

32

implicate the Fourth Amendment until after Vogt rolled down his 

window and exposed the grounds for a seizure. Consequently, we 

reverse.

By the Court.—The decision of the court of appeals is 

reversed.
No. 2012AP1812.akz

1

¶55 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join 

the majority opinion, but concur and go further to conclude that 

even if a seizure were to have occurred, the officer was acting 

as a community caretaker at the time of the seizure.

¶56 "Officers may exercise two types of functions: law 

enforcement functions and community caretaker functions." State 

v. Pinkard, 2010 WI 81, ¶18, 327 Wis. 2d 346, 785 N.W.2d 592 

(citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). Officers 

acting in their community caretaker capacity "may be 

constitutionally permitted to perform warrantless searches and 

seizures." Id., ¶14 (citing Cady, 413 U.S. at 448; State v. 

Ziedonis, 2005 WI App 249, ¶14, 287 Wis. 2d 831, 707 

N.W.2d 565). The exception exists, in part, because "'[a]n 

officer less willing to discharge community caretaking functions 

implicates seriously undesirable consequences for society at 

large.'" Id., ¶33 (quoting State v. Horngren, 2000 WI App 177,

¶18, 238 Wis. 2d 347, 617 N.W.2d 508).

¶57 An officer is engaged in a "bona fide community 

caretaker function" only if that officer has "an objectively 

reasonable basis" to conclude "that a motorist may have been in 

need of assistance" at the time of the stop. State v. Kramer, 

2009 WI 14, ¶¶36-37, 315 Wis. 2d 414, 759 N.W.2d 598. Further, 

the exception to the warrant requirement is satisfied only if 

"the officer's exercise of a bona fide community caretaker 

function was reasonable." Id., ¶40 (citing State v. Kelsey 

C.R., 2001 WI 54, ¶35, 243 Wis. 2d 422, 626 N.W.2d 777). This 
No. 2012AP1812.akz

2

requires courts to "balanc[e] a public interest or need that is 

furthered by the officer's conduct against the degree of and 

nature of the restriction upon the liberty interest of the 

citizen." Id. In balancing these interests, courts consider 

the following factors:

(1) the degree of the public interest and the exigency 

of the situation; (2) the attendant circumstances 

surrounding the seizure, including time, location, the 

degree of overt authority and force displayed; (3) 

whether an automobile is involved; and (4) the 

availability, feasibility and effectiveness of 

alternatives to the type of intrusion actually 

accomplished.

Id., ¶41.

¶58 With respect to the first factor, "the public has a 

substantial interest in ensuring that police assist motorists 

who may be stranded . . . ." Kramer, 315 Wis. 2d 414, ¶42. 

Police assistance to motorists is "'not only authorized, but 

constitute[s] an important duty of law enforcement officers.'" 

Id. (quoting State v. Goebel, 103 Wis. 2d 203, 208, 307 

N.W.2d 915 (1981)). Thus, the first factor weighs in favor of 

the reasonableness of Officer Small's exercise of the community 

caretaker function.

¶59 With respect to the second factor, Officer Small was 

checking on the occupants of a vehicle parked at the top of a 

boat ramp in a closed park at approximately 1:00 on Christmas 
No. 2012AP1812.akz

3

morning.1 The presence of the vehicle in a closed park, at that 

hour, and at that time of the year, was unusual at a minimum. 

Under the totality of the circumstances, it was objectively 

reasonable for Officer Small to conclude that the occupants of 

the vehicle might be in need of assistance.2 Further, as the 

majority opinion properly notes, Officer Small used a minimum of 

overt authority and force in contacting the driver of the 

vehicle. Majority op., ¶¶40-44. The second factor thus weighs 

in favor of the reasonableness of Officer Small's conduct.

¶60 The third factor also militates in favor of finding 

that Officer Small acted reasonably, as the case at issue 

involves an automobile. See Kramer, 315 Wis. 2d 414, ¶44. As 

this court has stated, "a citizen has a lesser expectation of 

privacy in an automobile," and so the privacy interest at issue 

weighs less heavily against the officer. Ziedonis, 287 

Wis. 2d 831, ¶31.

¶61 Finally, in considering the fourth factor, Officer 

Small had no other reasonable alternatives for discharging his 

 

1 As a practical matter, Vogt's presence in the parking lot 

after the park had closed was quite possibly illegal. Vogt 

concedes that the park was closed, and that a posted sign 

indicated that it was illegal to enter the park after closing. 

Grant County Ordinances § 200-2 gives a broad definition of 

"park" that would seem to encompass the parking lot.

2 While Officer Small testified that he thought the vehicle 

was "suspicious," we have held that when "'an objectively 

reasonable basis for the community caretaker function is shown, 

that determination is not negated by the officer's subjective 

law enforcement concerns.'" State v. Pinkard, 2010 WI 81, ¶31 

n.11, 327 Wis. 2d 346, 785 N.W.2d 592 (quoting State v. Kramer, 

2009 WI 14, ¶30, 315 Wis. 2d 414, 759 N.W.2d 598).
No. 2012AP1812.akz

4

community caretaker function. See Kramer, 315 Wis. 2d 414, ¶45.

Officer Small had to contact the driver of the vehicle in order 

to determine whether he was in need of assistance. As 

discussed, the manner of that contact was reasonable. The 

fourth factor thus weighs in Officer Small's favor as well. 

Thus, I conclude that Officer Small's conduct in the case at 

issue was a reasonable exercise of his community caretaker 

function.

¶62 Indeed, not only was Officer Small's checking on the 

occupants of the vehicle objectively reasonable, we also expect 

our officers to react to such situations in this way and not sit 

idly by with the hope that the occupants will be safe.

¶63 The facts in the case at issue are essentially 

identical to those in Kramer. Officer Small did not act in an 

overbearing or excessively intrusive manner. His behavior was 

constitutionally permissible. Officer Small simply walked up to 

the driver's side window of the vehicle to initiate contact with 

the driver. Under the circumstances presented, his action was 

"the only reasonable approach that [the officer] could take in 

performing this community caretaker function." Kramer, 315 

Wis. 2d 414, ¶44. As a result, I conclude that Officer Small's 

conduct was justified under the community caretaker exception.

¶64 For the foregoing reasons, I concur.

¶65 I am authorized to state that Justices PATIENCE DRAKE 

ROGGENSACK and MICHAEL J. GABLEMAN join this concurrence.
No. 2012AP1812.ssa

1

¶66 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I would 

affirm the decision of the court of appeals holding that the 

officer's conduct in the instant case constituted a seizure of 

the defendant within the meaning of the federal and state 

constitutions.

¶67 No one disputes that the legal standard to be applied 

to determine whether a seizure occurred in the instant case is 

as follows: "[A] seizure occurs if 'in view of all of the 

circumstances surrounding the incident, a reasonable person 

would have believed that he was not free to leave.'"1

¶68 The dispute is about the application of the legal 

standard to the totality of the circumstances of the instant 

case.2 

 

1 Brendlin v. California, 551 U.S. 249, 255 (2007) (quoting 

United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

See also majority op., ¶30; State v. Williams, 2002 WI 94, 

¶23, 255 Wis. 2d 1, 646 N.W.2d 834.

2 The totality of the circumstances is important. A small 

variation in the circumstances often determines the outcome. 

See Wayne R. LaFave, 4 Search & Seizure: A Treatise on the 

Fourth Amendment § 9.4(a), at 594-95 (5th ed. 2013):

[T]he mere approach and questioning of [persons seated 

in parked vehicles] does not constitute a seizure. 

The result is not otherwise when the officer utilizes 

some generally accepted means of gaining the attention 

of the vehicle occupant or encouraging him to 

eliminate any barrier to conversation. The officer 

may tap on the window and perhaps even open the door 

if the occupant is asleep. A request that the suspect 

open the door or roll down the window would seem 

equally permissible, but the same would not be true of 
No. 2012AP1812.ssa

2

¶69 Here are the circumstances: It was late at night; the 

parking lot was empty; Deputy Small was in full uniform with his 

pistol fully visible; the deputy parked his squad car with 

headlights on right behind the defendant's vehicle; the location 

of the defendant's vehicle in the parking lot was not conducive 

to simply driving away; Deputy Small rapped loudly on the 

window; Deputy Small signaled the defendant to roll down the 

window.

¶70 Courts across the country have divided when confronted 

with facts substantially similar to the ones in the instant 

case.3 Why? Because courts engage in a fiction in determining 

whether the mythical reasonable person in the position of the 

defendant would have believed that he or she was not free to 

leave.4 

¶71 Studies demonstrate that the reasonable person "free 

to leave" standard applied in judicial decisions does not 

generally reflect what real, everyday people think and how they 

 

an order that he do so (footnotes omitted, emphasis 

added). 

3 See several cases described in majority op., ¶¶33-38.

4 See majority op., ¶31 n.14.
No. 2012AP1812.ssa

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act when approached by law enforcement officers.5 In short, the 

world of legal decisions does not reflect the real world. 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."6 

¶72 When I look to the totality of the circumstances in 

the instant case, I conclude that, under the circumstances, a 

reasonable person would not have felt free to leave. A 

reasonable person would have had three options: (1) to drive 

away; (2) to stay put with the window closed; or (3) to comply 

with the officer's directions. 

¶73 No reasonable person I can imagine would feel free to 

drive away under the circumstances of the present case when the 

 

5 See, e.g., David K. Kessler, Free To Leave: An Empirical 

Look at the Fourth Amendment's Seizure Standard, 99 J. Crim. L. 

& Criminology 51 (2009) (concluding that the average person does 

not feel free to leave simple interactions with police officers, 

based on empirical evidence from studying two scenarios in which 

the United States Supreme Court has held that a reasonable 

person would feel free to leave, on public sidewalks and on 

busses); Edwin J. Butterfoss, Bright Line Seizures: The Need for 

Clarity in Determining When Fourth Amendment Activity Begins, 79 

J. Crim. L. & Criminology 437, 439-42 (1988) (describing the 

"free to leave" test as artificial, resulting in outcomes "which 

bear little relationship to the individual's actual freedom to 

walk away"); Janice Nadler, No Need to Shout: Bus Sweeps and 

the Psychology of Coercion, 2002 Sup. Ct. Rev. 153 (2002) 

(criticizing broadly the Court's post-Mendenhall jurisprudence 

as ignorant of human behavior with respect to authority figures, 

creating a set of non-seizures that nonetheless relied upon the 

coercive force of law enforcement).

6 Wayne R. LaFave, Pinguitudinous Police, Pachydermatous 

Prey: Whence Fourth Amendment "Seizures"?, 1991 U. Ill. L. Rev. 

729, 739-40.
No. 2012AP1812.ssa

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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. 

¶74 No reasonable person I can imagine would feel free to 

simply stay put with the car window closed for substantially the 

same reasons that no reasonable person would have just driven 

off. 

¶75 As the court of appeals wrote, "when a uniformed 

officer approaches a vehicle at night and directs the driver to 

roll down his or her window, a reasonable driver would not feel 

free to ignore the officer." County of Grant v. Vogt, No. 

2012AP1812, unpublished slip op. ¶13 (Wis. Ct. App. March 14, 

2013). 

¶76 Before I conclude, I address the community caretaker 

function that the concurrence addresses.

¶77 Exceptions to the warrant requirement are to be 

carefully delineated. "The State bears the burden of proving 

that the officer's conduct fell within the scope of a reasonable 

community caretaker function." State v. Kramer, 2009 WI 14, 

¶17, 315 Wis. 2d 414, 759 N.W.2d 598 (citation omitted). The 

State in the instant case never met or attempted to meet this 

burden. 

¶78 The concurring opinion concludes, "Under the totality 

of the circumstances, it was objectively reasonable for Officer 

Small to conclude that the occupants of the vehicle might be in 
No. 2012AP1812.ssa

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need of assistance." Concurrence, ¶59. But neither the 

officer's testimony nor the State's arguments demonstrate that 

the officer ever came to that conclusion or that that conclusion 

is objectively reasonable on the basis of this record. Overall, 

the concurring opinion relies on a wholly speculative premise.

¶79 For the reasons set forth, I dissent.

¶80 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this dissent.
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