Given the general rule that the U.S. Supreme Court’s interpretations of the Fourth Amendment also apply to the Wisconsin Constitution, it is unlikely that the criticisms of California v. Hodari D., 499 U.S. 621 (1991) by the court of appeals will amount to anything other than dicta.
Nevertheless, for attorneys wishing to make an attempt, the discussion provides an excellent blueprint for the argument.
In addition, even if attempts to overturn the applicability of Hodari D. in Wisconsin do come to naught, the decision still has two valuable passages for defense attorneys.
The first is a footnote discussing whether the initial stop of the vehicle was lawful or not.
The court never actually held that the initial stop was unlawful; it merely assumed for the sake of argument that it was. In a footnote, however, the court suggested that it believes the stop was unlawful.
The court wrote as follows: "Although we do not decide this issue, we nonetheless harbor doubt that Alfredson had reasonable suspicion under Wis. Stat. sec. 968.24 to detain the vehicle or its occupants. We question whether, without more, the mere presence of five individuals in a parked car for a period of five to ten minutes at approximately midnight in an area of taverns and nightclubs constitutes reasonable suspicion that the occupants of the vehicle were committing, were about to commit, or had committed a crime or other violation. We take particular note that Alfredson did not testify to any observations suggesting that the occupants of the vehicle were engaging in any conduct related to the citizen complaints of debris and excessive noise. Nor did the occupants’ conduct suggest any other criminal activity. As such, Alfredson’s detention of the vehicle smacks more of an ‘unparticularized suspicion or hunch’ than solid reasonable suspicion."
The officer testified at the suppression hearing that, when he was patrolling the tavern and nightclub area, he routinely investigated parked cars that had been occupied for five or ten minutes.
Presumably, therefore, there are a number of defendants out there who did not flee, as Young did, but were arrested for drug possession or something else, and could use this footnote as the basis for suppression of the evidence against them, even if Young could not.
Any attorney making such a motion, however, would be wise to spend time contemplating what five young men sitting in a car for five or ten minutes in the city’s nightclub/tavern area might be doing other than smoking marijuana.
If arguing that a suspect’s actions are equally consistent with innocent behavior as criminal behavior, a list of plausibly innocent behaviors should be readily at hand.
The second potentially valuable passage is dicta suggesting that Young may have succeeded if he challenged the sufficiency of the evidence on the counts of resisting an officer and obstructing an officer. The court wrote in a footnote, "Young does not raise a sufficiency of evidence argument as to whether Alfredson was acting with lawful authority. Instead, his argument focuses on the trial court’s ruling denying his motion to suppress all the evidence garnered as a result of the illegal Terry detention."
The court noted that both resisting an officer and obstructing an officer prosecutions require the state to prove that the officer was "doing any act in an official capacity and with lawful authority." The court concluded, "if an officer is acting outside the law, such activity constitutes a defense to the charge[s]."
If the initial stop was unlawful, it is possible that other defendants can use this language to avoid convictions for obstructing or resisting.
– David Ziemer
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David Ziemer can be reached by email.