By SCOTT BAUER
MADISON, Wis. (AP) — A divided Wisconsin Supreme Court ruled Friday that a police officer knocking on the window of a car does not by itself violate a person’s constitutional right against unreasonable seizures.
The 5-2 decision reversed a lower court’s ruling that overturned the drunken driving conviction of a man who was arrested after he rolled down his car window at the request of police. A state appeals court had tossed the man’s conviction, saying the police action constituted an illegal seizure in violation of the Fourth Amendment, but the Supreme Court disagreed.
“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,” Justice David Prosser wrote for the majority.
Daniel Vogt had pulled his vehicle into a Cassville public boat landing at 1 a.m. on Christmas Day in 2011, two hours after the park closed. The Grant County sheriff’s deputy who saw the car testified that because of the time of year and time of night, he considered it suspicious and approached.
The officer knocked on Vogt’s car window and made a motion for him to roll down the window. The officer testified at trial that if Vogt had ignored him and driven away, he would have let him go because he “had nothing to stop him for.”
But Vogt rolled down the window and the officer said his speech was slurred and he could smell alcohol coming from inside the car. Vogt failed a field sobriety test and his blood alcohol level was 0.19, more than twice the legal limit.
The Grant County Circuit Court found Vogt guilty of drunken driving and rejected arguments that the police action constituted an illegal seizure. The state appeals court in 2013 overturned that ruling, determining that there was an illegal seizure because a reasonable driver would not feel like he could just ignore the officer and drive away in that situation.
The Supreme Court disagreed.
“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,” Prosser wrote.
He was joined in the majority by justices Annette Ziegler, Pat Roggensack, Patrick Crooks and Michael Gableman. Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissented, arguing that a reasonable person would not have felt free to leave.
Vogt’s attorney, Jeffery Scott, said the decision “further erodes our Fourth Amendment right to be free from illegal search and seizure.”
Anthony Pozorski, the assistant Grant County district attorney, said he was pleased with the decision but hadn’t read it completely and declined further comment.