State v. Marc Schiel

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 1, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1110-CR Cir. Ct. No. 2018CF1736

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

MARC SCHIEL,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County: JILL
KAROFSKY, Judge. Reversed.

Before Fitzpatrick, P.J., Blanchard, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. The State appeals a circuit court order granting
Marc Schiel’s motion to suppress evidence of Schiel’s intoxication on grounds
No. 2019AP1110-CR

that it was derived from an unlawful seizure, unsupported by reasonable suspicion.
This case arises from a police-citizen encounter that occurred when Schiel was
sitting in his idling vehicle in a parking lot. The State argues that the circuit court
erred in concluding that Schiel was seized when a police officer parked his squad
car at least a car’s length behind Schiel’s vehicle and, without activating his squad
car’s emergency lights, approached the driver’s side window to speak with Schiel.
Because we agree with the State that the officer’s actions did not constitute a
seizure under controlling Wisconsin Supreme Court precedent, we reverse.

BACKGROUND

¶2 Schiel’s running car was in the parking lot owned by, and adjacent
to, a business not open at that time of night when Officer Ryan Roettger pulled in,
got out of his squad, and made contact with Schiel. Less than a minute into their
conversation, Schiel admitted he had consumed alcohol. Because of his prior
convictions, Schiel was prohibited from operating a motor vehicle with a blood
alcohol concentration greater than .02 grams per 100 milliliters. Based on the
results of his field sobriety testing and a preliminary breath test, Schiel was
arrested and charged with operating a motor vehicle with a prohibited alcohol
concentration, as a fourth offense.

¶3 Schiel filed a motion to suppress, asserting that Officer Roettger
“lacked a reasonable, articulable basis to initiate contact with Schiel, and, further,
to tell Schiel not to park there if that was Roettger’s concern.” The following facts
are taken from the evidentiary hearing on Schiel’s suppression motion, namely,
from the testimony of Roettger, as well as squad and body camera videos, and the
transcripts therefrom.

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No. 2019AP1110-CR

¶4 At 1:52 a.m. on a weekend, Schiel was parked in the lot of a building
supply company. Officer Roettger was driving his squad car in the area and saw
Schiel’s running vehicle. Roettger knew from his experience that the company
was closed that early in the morning. He could not think of a reason for someone
to park there, so he pulled into the parking lot because Roettger had what he
referred to as a “suspicious hunch.”

¶5 Officer Roettger parked “roughly a car length, if not more,” behind
Schiel’s car, and was not “blocking [Schiel’s] car in any way.” Roettger had his
headlights on, but not his emergency lights. Roettger used his squad car’s
spotlight to “light up” Schiel’s vehicle for safety purposes.

¶6 Officer Roettger exited his squad car and approached Schiel’s
driver’s side window. Roettger was holding a flashlight. Schiel’s window was
open. Roettger greeted Schiel and noted that he had picked “[a] little bit of a
weird spot to park.” Roettger asked where Schiel was coming from, and Schiel
said “I was just actually down at the Hody [Bar].” Less than one minute into the
conversation, Schiel admitted that he had consumed “two Coors Lights” at the
Hody, he arrived at the Hody at about midnight, and he left that bar a short time
before his conversation with Roettger.

¶7 At least one minute after Schiel made those statements, another
police officer arrived and parked his squad next to Officer Roettger, “a similar
distance behind Mr. Schiel’s vehicle.” His squad car’s headlights were on, too.
The second officer exited his car, approached the passenger’s side window of
Schiel’s car, and shined his flashlight inside while Roettger continued speaking
with Schiel.

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No. 2019AP1110-CR

¶8 During Schiel’s cross-examination of Officer Roettger at the
evidentiary hearing, the circuit court interjected: “Quite honestly, I don’t know
why this officer stopped [Schiel]. I mean, even according to the officer’s own
testimony, he didn’t have enough to stop him ... the stop was illegal.... [I]t just
was.” The court stated that “the only way it could possibly have been okay for
him to stop him was if it was a community caretaker stop, and the officer said
nothing about that. He said he had a suspicious hunch, which is the exact reason
you may not stop.”

¶9 The State countered that it was “not positing that this was a seizure.”
It explained that no seizure occurred “until after the defendant told the officer that
he had been drinking” and that up until that point, “this was a consensual
conversation between a police officer and a citizen” under County of Grant v.
Vogt, 2014 WI 76, 356 Wis. 2d 343, 850 N.W.2d 253. The State argued that
under Vogt, “an officer is completely allowed to go up to ... a citizen and
voluntarily ask for information.”

¶10 The circuit court said it understood the State’s position, “but in order
for there to be suspicious activity, a police officer has to be able to articulate the
reasonable grounds that the officer believes a crime was committed, … is
currently being committed, or was about to be committed in the near future.” The
court acknowledged that it was “truncating this hearing a little bit,” and the
examination of Roettger never resumed. The circuit court then stated its belief
that “we have a constitutional right to be in parking lots at 2:00 in the morning ...
and not be stopped or ... seized ... by the police officers.”

¶11 The circuit court again brought up the community caretaker
exception, and the State reiterated its position that no stop or seizure had occurred:

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No. 2019AP1110-CR

“This was not coerced. This was not based on any authoritative pressure by the
officer. The officer was not giving any commands. And for those reasons, the
seizure did not occur.”

¶12 The circuit court concluded that Officer Roettger had unlawfully
seized Schiel:

Mr. Schiel was pulled over. He had two police officers --
one in one window, one in the other window. A reasonable
person would not have thought that that conversation -- that
they didn’t have to say anything. A reasonable person -- it
wouldn’t be reasonable for someone to think that they
could roll up their window and just drive away.

The court granted Schiel’s suppression motion and later dismissed the case. The
State appeals.

DISCUSSION

¶13 On appeal, the State asserts that the circuit court erred by
determining that Schiel was seized for Fourth Amendment purposes at the time he
told Officer Roettger he was coming from Hody’s Bar, where he had consumed
alcohol. That is, the State frames the issue on appeal as whether Officer Roettger
seized Schiel before Schiel admitted to drinking alcohol in the amounts and at the
times already noted, and argues that, under the reasoning and facts in Vogt, the
encounter at this point was not a seizure but a consensual encounter. We agree
with the State’s analysis and conclusion.

¶14 The Fourth Amendment to the United State Constitution, and WIS.
CONST. art. I, § 11, protect citizens against unreasonable governmental seizures.
These provisions “are not implicated until a government agent ‘seizes’ a person.”
Vogt, 356 Wis. 2d 343, ¶19. Not all police-citizen encounters constitute seizures.

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No. 2019AP1110-CR

Id. “A seizure occurs ‘[o]nly when the officer, by means of physical force or
show of authority, has in some way restrained the liberty of a citizen.’” Id., ¶20
(quoting United States v. Mendenhall, 446 U.S. 544, 552 (1980)). Examples of
circumstances tending to show a seizure include “the threatening presence of
several officers, the display of a weapon by an officer, some physical touching of
the person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” Id., ¶¶23, 53 (quoting
Mendenhall, 446 U.S. at 554). A person has been seized for Fourth Amendment
purposes “only if, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.” Id., ¶20
(quoting Mendenhall, 446 U.S. at 554).

¶15 In determining whether a seizure has occurred, we apply a two-part
standard of review. See id., ¶17. We will uphold the circuit court’s factual
findings unless they are clearly erroneous, but we independently review the
application of those facts to constitutional principles. Id.

¶16 This case strongly resembles Vogt. In Vogt, at around 1:00 a.m., an
officer saw Vogt’s vehicle pull into a parking lot next to a closed park and boat
landing. Id., ¶4. The officer did not witness any traffic violations but thought that
Vogt’s conduct was suspicious. Id. Curious, the officer pulled into the lot and
parked his marked squad car “behind Vogt’s vehicle a little off to the driver’s
side.” Id., ¶6. Vogt’s car was running with the headlights on. “The squad car’s
headlights were on, but its red and blue emergency lights were not.” Id. The
officer, in full uniform and carrying a pistol in his holster, walked up to the car,
knocked on the driver’s side window, and motioned for Vogt to roll the window
down. Id., ¶¶7, 43. Vogt complied, and the officer asked what he was doing. Id.,
¶8. When Vogt responded, the officer noticed the smell of intoxicants and that

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No. 2019AP1110-CR

Vogt’s speech was slurred. Ultimately, Vogt was arrested and charged with OWI.
Id., ¶¶8-9.

¶17 Vogt moved to suppress, arguing that the location of the officer’s
squad car and the officer’s actions in getting Vogt to roll down his window
constituted a seizure unsupported by reasonable suspicion. Id., ¶¶9, 40. The
Wisconsin Supreme Court disagreed, holding that Vogt was not seized at the point
the officer observed signs of intoxication. Facts central to the court’s decision
were that the officer’s squad car was not completely impeding Vogt’s ability to
drive away, and the officer did not “command” Vogt to roll down his window.
Id., ¶¶41-43.1 The court explained its task as “seeking to identify the line between
an officer’s reasonable attempt to have a consensual conversation and a more
consequential attempt to detain an individual.” Id., ¶¶3, 54. While recognizing
that the objective reasonable person test “is complicated by the tendency of people
to defer to a symbol of authority no matter how it is manifested,” the court
concluded that “a person’s consent is no less valid simply because an individual is
particularly susceptible to social or ethical pressures.” Id., ¶31.

¶18 We agree with the State that, under the reasoning of Vogt, Schiel
was not seized at the time he admitted to drinking alcohol. The totality of the
circumstances facing Schiel were strikingly similar to, and no more intimidating
than, those in Vogt. Similar to Vogt, with his headlights on and without activating
his emergency lights, Officer Roettger pulled his squad car behind Schiel’s

1
The Vogt court also explicitly considered that none of the examples described in
United States v. Mendenhall, 446 U.S. 544, 552 (1980), were present, and that Vogt could have
driven out of the parking lot without being charged with obstruction under WIS. STAT. § 346.04
because that statute applies only to highways. See County of Grant v. Vogt, 2014 WI 76, ¶¶44-
47, 356 Wis. 2d 343, 850 N.W.2d 253.

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No. 2019AP1110-CR

vehicle, which was already in a parking lot. As in Vogt, no weapons were drawn,
Schiel’s vehicle was not blocked in, and Roettger was the only officer present
when Schiel admitted to drinking alcohol. While it is true that Roettger used his
squad car’s spotlight and carried a flashlight, this is not sufficiently intimidating to
transform a consensual encounter into a seizure under the reasoning in Vogt.
Additionally, whereas the officer in Vogt tapped on the window and motioned for
Vogt to roll it down, Schiel’s window was already open when Roettger made
contact.

¶19 Next, Schiel argues that his suppression motion was sufficient to
challenge the constitutionality of the entire encounter, and that it was the State’s
burden to identify the precise point at which the encounter became a seizure, and
to prove that after that point, the seizure was justified by reasonable suspicion.
According to Schiel, the State’s failure to do so is fatal to its appeal. We are not
persuaded.

¶20 WISCONSIN STAT. § 971.30(2)(c)2 provides that all motions must
“[s]tate with particularity the grounds for the motion and the order or relief
sought.” “Neither the principle of notice, nor … § 971.30 makes an exception for
motions raising Fourth Amendment challenges.” State v. Caban, 210 Wis. 2d
597, 606, 563 N.W.2d 501 (1997). In Caban, although the defendant asserted a
“broad Fourth Amendment challenge” to the warrantless search of his vehicle, his
failure to specifically challenge probable cause to search in his motion and at the
suppression hearing meant that he forfeited his right to raise that issue on appeal.

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP1110-CR

Id. at 604-09; see also State v. Radder, 2018 WI App 36, ¶16, 382 Wis. 2d 749,
915 N.W.2d 180 (“The fact that the State would bear the burden of proof at a
hearing does not mean [the defendant] simply gets to raise questions and put the
State to its proof.… [T]he State is entitled to notice of the factual disputes
supporting a purported constitutional violation.”).

¶21 In the case at bar, Schiel was required to plead the nature of the
challenged police conduct, including when it occurred. The only reasonable
reading of Schiel’s arguments in the circuit court is that he was challenging the
conduct of law enforcement before Schiel informed Officer Roettger that he had
consumed alcohol. Schiel’s suppression motion alleged: “Officer Roettger had a
hunch, nothing more, to support his seizure of Marc Schiel for the purpose of
conducting an investigation. He observed no law violation. He observed no
driving that suggested an impaired driver.” The motion continued: “There was
nothing objectively suspicious about a person sitting in a running vehicle in a
parking lot at 1:50 a.m. Roettger lacked a reasonable, articulable basis to initiate
contact with Schiel ….”

¶22 Likewise, in his supporting circuit court brief, Schiel alleged: “The
police officer lacked specific and articulable facts to believe that a crime or traffic
violation was occurring, or had occurred, when he pulled up to Marc Schiel’s
lawfully parked vehicle and made contact with him.” The brief also contended,
“Nothing about the time or manner of parking, or the location of Schiel’s vehicle
created any reasonable suspicion of criminal activity or violation of traffic laws. It
did not permit further investigation, nor did it even necessitate contact by the
officer.” The brief further alleged: “In the present case, though Roettger
apparently did not initiate a formal traffic stop using his emergency lights, his
contact with Schiel was, nonetheless, a seizure.”

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No. 2019AP1110-CR

¶23 Schiel’s repeated assertion that Officer Roettger seized him on
nothing more than a “hunch” makes clear that he sought to challenge the police
action preceding his admission to drinking alcohol. If Schiel wanted to oppose the
police action following his admission, he needed to specify that in his motion or at
the suppression hearing so that the State had an opportunity to directly address that
issue, and so that the circuit court could fully consider it. See Caban, 210 Wis. 2d
at 605-09. The State had no obligation to address a legal theory that Schiel failed
to advance in the circuit court.

¶24 Finally, Schiel urges us to assume that the circuit court made certain
factual findings that might justify its conclusion that Schiel was unlawfully seized.
These include the following: that Officer Roettger accused Schiel of wrongdoing
by stating, “A little bit of a weird spot to park”; that Roettger used a “loud,
commanding tone” during the encounter; and that the presence of a second officer
is relevant to whether the encounter was consensual when Schiel admitted
drinking. We decline the request. The evidence of record does not support these
findings, and we independently review whether the circuit court applied the
correct legal standard to the facts.

By the Court.—Order reversed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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