Acquiescence Case Analysis

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Even if the decision is published as recommended, it should be viewed as only an interim decision, because the Wisconsin Supreme Court has accepted review in a similar case, in which that court may address the issue in this case. State v. Young, 2004 WI App 227, 277 Wis.2d 715, 690 N.W.866, review granted 2005 WI 21, 693 N.W.2d 75.

In Young, police officers made a traffic stop that the court of appeals assumed, without deciding, was not supported by reasonable suspicion. A passenger exited the vehicle, refused police orders to halt, and ran. As he was being tackled, he tossed his jacket, which contained contraband.

The court of appeals held the drugs were admissible, relying on Hodari, but the court expressed its disagreement with Hodari at length, and its hopes the Wisconsin Supreme Court would hold it inapplicable in Wisconsin. Young, 690 N.W.2d at 872-873.

One of the issues certified by the Supreme Court is as follows: "What is the test for determining when and whether a seizure has occurred within the meaning of the state and federal constitutions?"

If the Supreme Court in Young rejects the reasoning of the U.S. Supreme Court in Hodari, then the decision in the case at bar will remain valid law.

However, if the court determines that Hodari applies in Wisconsin, this decision will likely be either expressly overruled by the court, or at least, implicitly overruled.

The core holding of Hodari is, as the court of appeals acknowledged in Young, even though it disagreed: "A suspect who does not submit to the show of police authority will not be heard to assert a Fourth Amendment violation or rewarded with an order suppressing evidence obtained as a result of such claimed violation."

Young, 690 N.W.2d at 870.

In the case at bar, the court found this rule inapplicable, because Washington did not run from police, as Young and Hodari did, but threw up his hands. And the distinction would be sound, were it not for the fact that Washington threw up his hands so that he could toss the drugs from his person.

Tossing away contraband is simply not consistent with submission and acquiescence to police authority, any more than fleeing, or — as was the case in Hodari and Young — fleeing and tossing the drugs. It may be a lesser form of resistance, but it can’t be considered acquiescence to authority."

Hodari may be a bad decision, as many feel, but if the decision by the court of appeals in Young — that Hodari applies in Wisconsin — is affirmed by the Supreme Court, it should be expected that this decision will cease to be valid law.

Another similar case may be overruled as well (it has actually already been overruled, but on different grounds), State v. Hart, 2001 WI App 283, 249 Wis.2d 639 N.W.2d 213, overruled on other grounds, State v. Sykes, 2005 WI 48, 695 N.W.2d 277.

In Hart, the police decided not to arrest an intoxicated driver, but to drive him to the police station, from where he could call for a ride home. The officer patted the driver down, though, pursuant to department policy not to allow anyone into a squad car without frisking them first.

While he was being frisked, the driver threw a marijuana pipe on the ground. The court of appeals held the pipe inadmissible, because it was thrown away during what the court had previously found was an unlawful search.

The Supreme Court’s decision in Sykes overruled Hart, because it found the search legal.

However, the other holding in Hart — that contraband thrown away during an unlawful pat down search is inadmissible — remains valid law, although the court in the case at bar did not cite Hart for support.

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Specifically, the court in Hart wrote, "The district attorney correctly cites cases holding that a warrantless seizure of property whose owner has abandoned it does not violate the Fourth Amendment. State v. Bauer, 127 Wis.2d 401, 407, 379 N.W.2d 895 (Ct.App.1985). The district attorney has also cited California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), for the proposition that a person who throws something to the ground as he or she is being approached by the police will be deemed to have voluntarily abandoned it. But the district attorney has cited no case holding that when a person throws something to the ground ‘during’ an illegal pat-down, it is a ‘voluntary’ abandonment of property which is admissible in court." Hart, 249 Wis.2d at 346.

The court held, "Hart acted in response to the illegal pat-down. There was no distinct, separate crime or intervening illegal activity which attenuated the link between the discovery of the marijuana pipe and the illegal search. Therefore, the district attorney’s abandonment theory cannot stand under these facts." Id., at 347-348.

Accordingly, the court held the pipe must be suppressed.

The Supreme Court’s decision in Young will necessarily shed guidance on whether this part of Hart remains valid law or not.

– David Ziemer

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David Ziemer can be reached by email.