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Wisconsin Supreme Court: Officer’s Retention of Driver’s License Without Reasonable Suspicion to Delay Until Arrival of Drug Dog Constitutes Unlawful Seizure

by Anthony W. Accurso

The Supreme Court of Wisconsin held that an officer who retained a motorist’s driver’s license without any reasonable suspicion of criminal activity—for the purpose of delaying until a drug dog arrived—effectuated an unlawful seizure.

Just after midnight on the evening of November 12, 2017, Sheboygan Police Officer Sung Oetzel parked his squad car behind a truck parked near the intersection of 6th Street and Superior Avenue. Shortly before that, police had received an anonymous tip saying that two individuals had been sitting in a truck at that location for some time and that a third person had delivered a backpack to the truck.

Officer Oetzel approaced the truck and spoke with Heather Jan VanBeek, driver and owner of the vehicle, and her passenger Branden Sitzberger. Oetzel disclosed that police had received a tip about the truck—omitting the detail about the backpack—and asked to run their driver’s licenses.

Oetzel took their licenses. While running their licenses, Oetzel learned that VanBeek had overdosed in February of that year and that Sitzberger was on supervision. Based on these facts, Oetzel summoned a K-9 unit to the scene. He then returned to the truck, but instead of returning the licenses, he kept them and proceeded to ask the pair repetitive questions about their activities that evening in an effort to delay until the K-9 unit arrived.

The K-9 unit arrived about ten minutes after being summoned, and Oetzel asked the pair to exit the truck. The dog alerted on the vehicle, and a search by Oetzel and another officer resulted in the discovery of methamphetamine and pipe.

VanBeek was subsequently charged with possession of meth under Wis. Stat. § 961.41(3g)(g) and paraphernalia possession under § 961.573(1). She filed a motion to suppress the evidence on the ground that she was unlawfully seized prior to the search, but the trial court denied the motion ruling, “the entire contact with the defendant and the passenger was reasonable under a totality of the circumstances.”

VanBeek then pleaded no contest to the charges in order to appeal the denial. The court of appeals then sought clarification from the Wisconsin Supreme Court.

The Court stated: “The court of appeals certified the question of whether an officer taking a citizen’s driver’s license back to the officer’s squad car necessarily constitutes a seizure. As we explain below, we conclude that such law enforcement officer conduct could amount to a seizure. However, rather than create a bright-line rule … we continue to analyze whether a seizure occurred based on the totality of circumstances presented.”

The Court first observed that searches and seizures “are constitutionally and analytically distinct principles,” despite the fact courts talk about them in tandem. State v. Arias, 752 N.W.2d 748 (Wis. 2008). A seizure “deprives the individual of dominion over his or her person or property.” Id. The seizure analysis is a continuum whereby courts determine when it started and whether it was constitutionally permissible at that point and whether the police’s continued actions were “reasonably related in scope to the circumstances which justified the interference in the first place.” Id.; Terry v. Ohio, 392 U.S. 1 (1968).

A temporary investigative detention is a seizure under the Fourth Amendment, and must be supported by reasonable suspicion. Terry. Police have reasonable suspicion “when, at the time of the stop, he or she possesses specific and articulable facts which would warrant a reasonable belief that criminal activity [is or] was afoot.” State v. Waldner, 556 N.W.2d 681 (Wis. 1996).

However, not all interactions with police are seizures, and police may ask questions during a casual encounter with persons “as long as the police do not convey a message that compliance with their request is required.” Florida v. Bostick, 501 U.S. 429 (1991). A casual encounter becomes a seizure when, under a totality of the circumstances, the “police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ request or otherwise terminate the encounter.” Id. That is, a seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” United States v. Mendenhall, 446 U.S. 544 (1980). That analysis uses the “innocent reasonable person, rather than the specific defendant.” County of Grant v. Vogt, 850 N.W.2d 253 (Wis. 2014).

Turning to the specific issue in the present case, the Court reviewed how federal courts and courts in other states have handled the situation where a police officer retains a person’s driver’s license to prolong the encounter without reasonable suspicion of criminal activity. (see opinion for citations) After a lengthy examination of those cases, it announced: “We conclude that an officer’s retention of an individual’s driver’s license is a significant but not the dispositive fact.” Rather, the case law teaches that “police conduct is the dispositive factor in determining whether a seizure has occurred,” the Court explained. SeeBostick; State v. Floyd, 898 N.W.2d 560 (Wis. 2017); State v. Luebeck, 715 N.W.2d 639 (Wis. 2006). Quoting Bostick with approval, the Court declared: “the crucial test is whether, taking into account all of the circumstance surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that the was not a liberty to ignore the police presence and go about his business.’” Thus, the Court reaffirmed that the “totality of circumstances continues to be the correct analytical metric by which to analyze claimed seizures….”

Applying that analytical framework to the present case, the Court determined that VanBeek was unlawfully seized during her encounter with Oetzel. The seizure didn’t occur when the officer took her driver’s license to his squad car; that was constitutionally permissible. Rather, the Court concluded that VanBeek was seized “when Oetzel returned to her vehicle, retained her driver’s license, and continued posing questions to her and Sitzberger in order to prevent them from leaving before the K9 unit arrived.” The Court explained that a reasonable person in VanBeek’s position would not have felt free to drive away and end the encounter while the officer retained her driver’s license and continued his questioning. In addition, after a detailed review of each fact in the case, the Court ruled that “based on the totality of circumstances, Oetzel did not have reasonable suspicion when he returned to VanBeek’s truck … therefore her seizure was unlawful.”

Accordingly, the Court reversed the circuit court’s judgment of conviction and remanded with instruction to grant VanBeek’s motion to suppress. See: State v. VanBeek, 960 N.W.2d 32 (Wis. 2021). 

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Related legal cases

State v. VanBeek

State v. Floyd

State v. Luebeck

Florida v. Bostick

SUPREME COURT OF THE UNITED STATES
501 U.S. 429; 111 S. Ct. 2382; 115 L. Ed. 2d 389

FLORIDA v. TERRANCE BOSTICK

No. 89-1717

February 26, 1991, Argued

June 20, 1991, Decided

SUBSEQUENT HISTORY:

As Amended June 21, 1991.

PRIOR HISTORY: CERTIORARI TO THE SUPREME COURT OF FLORIDA.

DISPOSITION: 554 So. 2d 1153, reversed and remanded.

SYLLABUS:

As part of a drug interdiction effort, Broward County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage. Two officers boarded respondent Bostick's bus and, without articulable suspicion, questioned him and requested his consent to search his luggage for drugs, advising him of his right to refuse. He gave his permission, and the officers, after finding cocaine, arrested Bostick on drug trafficking charges. His motion to suppress the cocaine on the ground that it had been seized in violation of the Fourth Amendment was denied by the trial court. The Florida Court of Appeal affirmed, but certified a question to the State Supreme Court. That court, reasoning that a reasonable passenger would not have felt free to leave the bus to avoid questioning by the police, adopted a per se rule that the sheriff's practice of "working the buses" is unconstitutional.

Held:

1. The Florida Supreme Court erred in adopting a per se rule that every encounter on a bus is a seizure. The appropriate test is whether, taking into account all of the circumstances surrounding the encounter, a reasonable passenger would feel free to decline the officers' requests or otherwise terminate the encounter. Pp. 433-437.

(a) A consensual encounter does not trigger Fourth Amendment scrutiny. See Terry v. Ohio, 392 U.S. 1, 19, n. 16, 20 L. Ed. 2d 889, 88 S. Ct. 1868. Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions, Florida v. Rodriguez, 469 U.S. 1, 5-6, 83 L. Ed. 2d 165, 105 S. Ct. 308, ask to examine identification, INS v. Delgado, 466 U.S. 210, 216, 80 L. Ed. 2d 247, 104 S. Ct. 1758, and request consent to search luggage, Florida v. Royer, 460 U.S. 491, 501, 75 L. Ed. 2d 229, 103 S. Ct. 1319, provided they do not convey a message that compliance with their requests is required. Thus, there is no doubt that if this same encounter had taken place before Bostick boarded the bus or in the bus terminal, it would not be a seizure. Pp. 434-435.

(b) That this encounter took place on a bus is but one relevant factor in determining whether or not it was of a coercive nature. The state court erred in focusing on the "free to leave" language of Michigan v. Chesternut, 486 U.S. 567, 573, 100 L. Ed. 2d 565, 108 S. Ct. 1975, rather than on the principle that those words were intended to capture. This inquiry is not an accurate measure of an encounter's coercive effect when a person is seated on a bus about to depart, has no desire to leave, and would not feel free to leave even if there were no police present. The more appropriate inquiry is whether a reasonable passenger would feel free to decline the officers' request or otherwise terminate the encounter. Thus, this case is analytically indistinguishable from INS v. Delgado, supra. There, no seizure occurred when INS agents visited factories at random, stationing some agents at exits while others questioned workers, because, even though workers were not free to leave without being questioned, the agents' conduct gave them no reason to believe that they would be detained if they answered truthfully or refused to answer. Such a refusal, alone, does not furnish the minimal level of objective justification needed for detention or seizure. Id., at 216-217. Pp. 435-437.

2. This case is remanded for the Florida courts to evaluate the seizure question under the correct legal standard. The trial court made no express findings of fact, and the State Supreme Court rested its decision on a single fact -- that the encounter took place on a bus -- rather than on the totality of the circumstances. Rejected, however, is Bostick's argument that he must have been seized because no reasonable person would freely consent to a search of luggage containing drugs, since the "reasonable person" test presumes an innocent person. Pp. 437-440.

COUNSEL: Joan Fowler, Assistant Attorney General of Florida, argued the cause for petitioner. With her on the brief was Robert A. Butterworth, Attorney General.

Solicitor General Starr argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Mueller, Deputy Solicitor General Bryson, Christopher J. Wright, and Kathleen A. Felton.

Donald B. Ayer argued the cause for respondent. With him on the brief was Robert H. Klonoff. *

* Mary Irene Coombs, Steven R. Shapiro, John A. Powell, James K. Green, Jeffrey S. Weiner, and Robert G. Amsel filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

Fred E. Inbau, Wayne W. Schmidt, Bernard J. Farber, and James P. Manak filed a brief for Americans for Effective Law Enforcement as amicus curiae.

JUDGES: O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, SCALIA, KENNEDY, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 440.

OPINION: [*431] [***396] [**2384] JUSTICE O'CONNOR delivered the opinion of the Court.

[***HR1A] [1A]
[***HR2A] [2A]
We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. This case requires us to determine whether the same rule applies to police encounters that take place on a bus.

I

Drug interdiction efforts have led to the use of police surveillance at airports, train stations, and bus depots. Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them potentially incriminating questions. Broward County has adopted such a program. County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage.

In this case, two officers discovered cocaine when they searched a suitcase belonging to Terrance Bostick. The underlying facts of the search are in dispute, but the Florida Supreme Court, whose decision we review here, stated explicitly the factual premise for its decision:
"'Two officers, complete with badges, insignia and one of them holding a recognizable zipper pouch, containing a pistol, boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. Eyeing the passengers, the officers, admittedly without articulable suspicion, picked [**2385] out the defendant passenger and asked to inspect his ticket and identification. The ticket, from Miami to Atlanta, matched the defendant's identification and both were immediately returned to him as unremarkable. However, the two police officers persisted and explained their presence as narcotics agents on the [*432] lookout for illegal drugs. In pursuit of that aim, they then requested the defendant's consent to search his luggage. Needless to say, there is a conflict in the evidence about whether the defendant consented to the search of the second bag in [***397] which the contraband was found and as to whether he was informed of his right to refuse consent. However, any conflict must be resolved in favor of the state, it being a question of fact decided by the trial judge.'" 554 So. 2d 1153, 1154-1155 (1989), quoting 510 So. 2d 321, 322 (Fla. App. 1987) (Letts, J., dissenting in part).


Two facts are particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent. Bostick appears to have disputed the point, but, as the Florida Supreme Court noted explicitly, the trial court resolved this evidentiary conflict in the State's favor. Second, at no time did the officers threaten Bostick with a gun. The Florida Supreme Court indicated that one officer carried a zipper pouch containing a pistol -- the equivalent of carrying a gun in a holster -- but the court did not suggest that the gun was ever removed from its pouch, pointed at Bostick, or otherwise used in a threatening manner. The dissent's characterization of the officers as "gun-wielding inquisitor[s]," post, at 448, is colorful, but lacks any basis in fact.

Bostick was arrested and charged with trafficking in cocaine. He moved to suppress the cocaine on the grounds that it had been seized in violation of his Fourth Amendment rights. The trial court denied the motion but made no factual findings. Bostick subsequently entered a plea of guilty, but reserved the right to appeal the denial of the motion to suppress.

The Florida District Court of Appeal affirmed, but considered the issue sufficiently important that it certified a question to the Florida Supreme Court. 510 So. 2d at 322. The [*433] Supreme Court reasoned that Bostick had been seized because a reasonable passenger in his situation would not have felt free to leave the bus to avoid questioning by the police. 554 So. 2d at 1154. It rephrased and answered the certified question so as to make the bus setting dispositive in every case. It ruled categorically that "'an impermissible seizure result[s] when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers' luggage.'" Ibid. The Florida Supreme Court thus adopted a per se rule that the Broward County Sheriff's practice of "working the buses" is unconstitutional. * The result of this decision is that police in Florida, as elsewhere, may approach persons at random in most public places, ask them questions and seek consent to a search, see id., at 1156; but they may not engage in the same behavior on a bus. Id., at 1157. We granted certiorari, 498 U.S. 894 (1990), [***398] to determine whether the Florida Supreme Court's per se rule is consistent with our Fourth Amendment jurisprudence.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


* The dissent acknowledges that the Florida Supreme Court's answer to the certified question reads like a per se rule, but dismisses as "implausible" the notion that the court would actually apply this rule to "trump" a careful analysis of all the relevant facts. Post, at 445. Implausible as it may seem, that is precisely what the Florida Supreme Court does. It routinely grants review in bus search cases and quashes denials of motions to suppress expressly on the basis of its answer to the certified question in this case. See, e. g., McBride v. State, 554 So. 2d 1160 (1989); Mendez v. State, 554 So. 2d 1161 (1989); Shaw v. State, 555 So. 2d 351 (1989); Avery v. State, 555 So. 2d 351 (1989); Serpa v. State, 555 So. 2d 1210 (1989); Jones v. State, 559 So. 2d 1096 (1990).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[**2386] II

[***HR1B] [1B]
The sole issue presented for our review is whether a police encounter on a bus of the type described above necessarily constitutes a "seizure" within the meaning of the Fourth Amendment. The State concedes, and we accept for purposes of this decision, that the officers lacked the reasonable [*434] suspicion required to justify a seizure and that, if a seizure took place, the drugs found in Bostick's suitcase must be suppressed as tainted fruit.

[***HR3A] [3A]
Our cases make it clear that HN1 a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free "to disregard the police and go about his business," California v. Hodari D., 499 U.S. 621, 628, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991), the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U.S. 1, 19, n. 16, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968): "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred."

Since Terry, we have held repeatedly that mere police questioning does not constitute a seizure. In Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983) (plurality opinion), for example, we explained that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Id., at 497; see id., at 523, n. 3 (REHNQUIST, J., dissenting).

[***HR1C] [1C]
There is no doubt that if this same encounter had taken place before Bostick boarded the bus or in the lobby of the bus terminal, it would not rise to the level of a seizure. The Court has dealt with similar encounters in airports and has found them to be "the sort of consensual encounter[s] that implicate no Fourth Amendment interest." Florida v. Rodriguez, 469 U.S. 1, 5-6, 83 L. Ed. 2d 165, 105 S. Ct. 308 (1984). We have stated that HN2 even [*435] when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, see INS v. Delgado, 466 U.S. 210, 216, 80 L. Ed. 2d 247, 104 S. Ct. 1758 (1984); Rodriguez, supra, at 5-6; ask to examine the individual's identification, see Delgado, supra, at 216; Royer, supra, at 501 (plurality opinion); United States v. Mendenhall, 446 U.S. 544, 557-558, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980); and request consent to search his or her luggage, see Royer, supra, at 501 (plurality opinion) -- as long [***399] as the police do not convey a message that compliance with their requests is required.

Bostick insists that this case is different because it took place in the cramped confines of a bus. A police encounter is much more intimidating in this setting, he argues, because police tower over a seated passenger and there is little room to move around. Bostick claims to find support in language from Michigan v. Chesternut, 486 U.S. 567, 573, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988), and other cases, indicating that a seizure occurs when a reasonable person would believe that he or she is not "free to leave." Bostick maintains that a reasonable bus passenger would not have felt free to leave under the circumstances of this case because there is nowhere to go on a bus. Also, the bus was about to depart. Had Bostick disembarked, he would have risked being stranded and losing whatever baggage [**2387] he had locked away in the luggage compartment.

The Florida Supreme Court found this argument persuasive, so much so that it adopted a per se rule prohibiting the police from randomly boarding buses as a means of drug interdiction. The state court erred, however, in focusing on whether Bostick was "free to leave" rather than on the principle that those words were intended to capture. When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking. But when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person [*436] would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.

Here, for example, the mere fact that Bostick did not feel free to leave the bus does not mean that the police seized him. Bostick was a passenger on a bus that was scheduled to depart. He wo

 

 

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