Flight forfeits Fourth Amendment objection

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When a passenger fled a parked vehicle upon an officer’s stop of the vehicle, his subsequent seizure did not violate the Fourth Amendment, even if the initial stop was unlawful, the Wisconsin Court of Appeals reluctantly held on Nov. 17.

On Oct. 26, 2002, City of Kenosha Police Officer David Alfredson was patrolling an area of the city where taverns and popular nightspots are located. Residents of the area had previously complained about "people leaving beer bottles in their yards, loud music, [people] being loud and boisterous going to and from the clubs."

Alfredson was patrolling the area in light of these complaints.

As Alfredson was driving in the area, he noticed a parked car occupied by about five people, including Charles E. Young. Alfredson continued driving, and about five to 10 minutes later, he again saw the same car in the same place, still occupied by the same number of people.

Alfredson decided too "stop" the vehicle to check it out for possible drinking or narcotics, consistent with a practice of investigating parked vehicles that are occupied for inordinate periods of time.

Alfredson stopped his squad car nearby, activated his flashing emergency lights, and used his spot light to illuminate the vehicle. Young then exited the vehicle from the backseat. Alfredson exited his squad and ordered Young back into the vehicle.

Young nevertheless started walking away from the vehicle. Alfredson yelled to Young, "Get back in that car right now." Young then started running toward a nearby house. Alfredson took up pursuit and caught Young at the porch of the residence as Young was trying to gain entry.

During the struggle, Young discarded his coat, throwing it toward the door of the residence. Eventually, Alfredson subdued and handcuffed Young, retrieved the coat, and discovered a vial of marijuana.

Young was charged with possession of THC, resisting an officer, and obstructing an officer. Young moved to suppress the evidence, arguing that he was illegally seized, because Alfredson did not have reasonable suspicion pursuant to sec. 968.24.

Kenosha County Circuit Court Judge Michael S. Fisher denied the motion, and a jury found Young guilty of all three counts. Young appealed the denial of the suppression motion, but the court of appeals affirmed in a decision by Judge Neal Nettesheim.

The court assumed, for purposes of the argument, that Alfredson lacked reasonable suspicion to "stop" the vehicle in the manner he did. Nevertheless, the court concluded that the evidence need not be suppressed because, pursuant to California v. Hodari D., 499 U.S. 621 (1991), Young’s failure to submit to the officer’s show of police authority means that he was not seized at the time of the initial stop.

In Hodari D., the police were patrolling a high-crime area when they saw four or five youths, including Hodari D., huddled around a car parked at a curb. When the youths saw the police car, they fled on foot, and the car departed at a high rate of speed.

A police officer chased Hodari D., and just before the officer captured him, Hodari D. tossed away what appeared to be a small rock that was ultimately established to be crack cocaine.

The U.S. Supreme Court held the evidence need not be suppressed, stating, "An arrest requires either physical force … or, where that is absent, submission to the assertion of authority." Since Hodari D. had cast away the cocaine before he was apprehended and since he had not yielded to the police show of authority prior thereto, the Court concluded the cocaine was not the fruit of a seizure.

Interpreting Hodari D., which was adopted by the Wisconsin Supreme Court in State v. Kelsey C.R., 2001 WI 54, 243 Wis.2d 422, 626 N.W.2d 777, the court of appeals observed, "Thus, after Hodari D., the focus is no longer on the legality of the police conduct; rather, the focus is on the conduct of the suspect in response to the police conduct."

Applying the holding in Hodari D., the court found, "Here, as in Hodari D., the police did not apply any physical force against Young prior to the actual capture. Also like Hodari D., Young did not submit to the police show of authority when Alfredson detained the vehicle and later ordered Young to return to the vehicle. Instead, Young initially walked away from the scene and later fled by running after Alfredson ordered him to return to the vehicle. Given those facts, Hodari D. precludes Young from raising his Fourth Amendment claim that Alfredson illegally detained the vehicle under Terry."

The court rejected Young’s attempt to distinguish Hodari D. on the basis that the youths in that case fled immediately upon seeing the police, while Young did not flee until after the officer activated his lights and ordered Young to get back in the vehicle.

The court reasoned, "that subtle difference in the facts does not permit us to evade the core holding of Hodari D. that a suspect who does not submit to the show of police authority in an illegal Terry stop will not be heard to assert a Fourth Amendment violation or rewarded with an order suppressing evidence obtained as the result of suc
h claimed violation."

Accordingly, the court affirmed the denial of Young’s suppression motion.

However, the court went on at length to discuss why it believes Hodari D. was incorrectly decided, stating, "we are less than enthusiastic about the result that Hodari D. mandates in this case."

The court noted that in Florida v. Royer, 460 U.S. 491, 497-498 (1983), the U.S. Supreme Court recognized the right of a person to walk away from an encounter with a police officer that is not supported by probable cause or reasonable suspicion.

The court of appeals concluded, "However, after Hodari D., this supposed right to ‘go on his way’ becomes an empty right because it vests the police with the authority to pursue and detain anew. In short, the person is penalized for legal conduct while the police are rewarded for illegal conduct."

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The court added, "True, the suspect does not have the benefit of a judicial declaration regarding the validity of the police conduct at the moment of the encounter, but neither do the police. Moreover, the suspect also faces serious consequences if the decision to walk away proves flawed. Not only will any evidence subsequently discovered be admissible, but also, as evidenced by this case, the suspect could well face charges for obstructing an officer and resisting an officer."

The court also noted that Hodari D. may conflict with Wisconsin law governing resisting an officer and obstructing an officer that requires the State to prove that the officer was acting with lawful authority.

The court observed "If a defendant’s resistance to an officer is excused [if an officer is acting outside the law], we are left to wonder why a defendant may not rely on similar police conduct to assert a suppression of evidence claim based on a Fourth Amendment violation."

After citing extensive commentary critical of the decision in Hodari D., the court urged that the Wisconsin Supreme Court take a further look at it, notwithstanding that the court has held that the standards governing the Fourth Amendment are generally applicable to the construction of the Wisconsin Con-stitution, as well.

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David Ziemer can be reached by email.