State v. Shondrell R. Evans

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.
January 28, 2021
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. 2020AP286-CR Cir. Ct. No. 2018CF1001

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SHONDRELL R. EVANS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dane County:
SUSAN M. CRAWFORD, Judge. Reversed and cause remanded for further
proceedings.

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

¶1 KLOPPENBURG, J. Shondrell Evans pleaded guilty to possession
of a firearm as a felon after the circuit court denied his motion to suppress
evidence. Evans argued that he was entitled to suppression because the evidence
No. 2020AP286-CR

was obtained through an unconstitutional seizure in violation of his Fourth
Amendment right to be secure against such a seizure. Evans renews his argument
in appealing the circuit court’s denial of his motion.

¶2 Early on a March morning, two police officers in marked squad cars
approached Evans, who was sitting in the driver’s seat of a vehicle parked in a
hotel parking lot. The two squad cars simultaneously converged on Evans’s
vehicle from either side, one perpendicular to and pointed directly at the vehicle’s
driver’s side, and the other pointed diagonally to the rear of the vehicle’s
passenger’s side. This resulted in Evans’s vehicle being blocked in on three sides
in a pincer-like fashion and Evans having no opportunity to exit the parking lot
except by putting his vehicle in reverse and then backing up and maneuvering
between and around the squad cars. The officers shined both their headlights and
overhead spotlights on Evans’s vehicle.

¶3 The officers subsequently approached Evans’s vehicle on foot,
smelled marijuana, and conducted a search of the vehicle. In this search, they
found a firearm that led to Evans’s charging and plea. The issues on appeal are
whether the officers seized Evans within the meaning of the Fourth Amendment
when they used their squad cars to flank Evans’s vehicle and trained their
spotlights on him before they exited the squad cars and smelled marijuana, and, if
so, whether the seizure was supported by reasonable suspicion or otherwise
justified under the Fourth Amendment. Because we conclude that the officers
seized Evans before they exited their squad cars and lacked reasonable suspicion
or other recognized constitutional basis to effectuate this seizure, we reverse the
judgment of the circuit court and remand the cause for further proceedings.

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No. 2020AP286-CR

BACKGROUND

¶4 The following pertinent facts are undisputed. At approximately 2:30
in the morning on March 8, 2018, Town of Madison police officer Logan Brown
was on patrol near the Clarion Suites Hotel on Rimrock Road. He saw a man later
identified as Evans and a woman leave the hotel, enter a vehicle, and exit the hotel
parking lot. Officer Brown followed the vehicle. Evans and his companion drove
to the parking lot of a nearby apartment complex, parked there for about a minute,
then returned to the hotel parking lot.

¶5 When Evans returned to the hotel parking lot, he parked his vehicle
so that it was facing a concrete barrier and alongside another car, which was
parked on the passenger’s side of Evans’s vehicle. Evans and his companion
stayed in the parked vehicle after returning to the hotel parking lot.

¶6 After several minutes passed, Officer Brown decided to make
contact with Evans’s vehicle. Officer Brown called Officer Hoffman, who was in
another squad car nearby. The two officers approached Evans’s vehicle in their
squad cars at the same time.

¶7 Officer Brown pulled his squad car to within a few feet (less than the
width of one parking space) of Evans’s vehicle, perpendicular to it and across
multiple marked parking spaces, so that the front of his squad car was pointed
directly at the driver’s side door of Evans’s vehicle.1 At the same time, Officer

1
The facts as to the positioning of the squad cars are taken from uncontested testimony
at the suppression hearing and one photograph, reproduced in Evans’s appellate briefing, taken
from body and squad car videos shown at the hearing. The DVD in the record purportedly
containing those videos is blank, and the circuit court does not possess a DVD with the videos.

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No. 2020AP286-CR

Hoffman pulled his squad car similarly close (less than the width of one parking
space) to Evans’s vehicle. Officer Hoffman testified that the front of his squad car
pointed “at approximately a 45-degree angle off the rear bumper” of the
passenger’s side of Evans’s vehicle. Thus, after the two squad cars suddenly
converged on him, Evans’s vehicle was blocked in front by the concrete barrier,
on the driver’s side by Officer Brown’s squad car, and on the passenger’s side by
the other parked car, with Officer Hoffman’s squad car placed diagonally a few
feet to the rear of Evans’s vehicle slightly off to the passenger side. Despite the
two flanking squad cars, Evans’s vehicle was not physically blocked directly to
the rear, because neither squad car directly physically blocked reversal by Evans.
Thus, although Evans’s vehicle was physically blocked on three sides, it would
have been physically possible for him to leave by placing his car in reverse and
proceeding in reverse between and around the two squad cars and then driving out
of the parking lot.

¶8 Both officers had their car headlights on and trained overhead
spotlights on Evans’s vehicle. The officers did not activate any other lights or
sound-making devices.

¶9 At the same time, the officers got out of their cars and walked
toward Evans’s vehicle. Before reaching the vehicle, both officers noticed the
smell of marijuana. When Officer Brown arrived at Evans’s window, he had
Evans get out of the vehicle, and the two officers searched it. In this search, they
found a firearm, which led to Evans’s arrest.

¶10 Evans moved to suppress the firearm, arguing that it was the result
of an illegal seizure. The circuit court noted that, although Evans’s vehicle was
blocked on three sides, “the squad vehicles were not parked so close or positioned

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No. 2020AP286-CR

in such a way that he [would have been] unable to back out” and then proceed out
of the lot. The court denied the suppression motion, determining that Evans was
not seized until the officers began questioning him, at which point they smelled
marijuana and had probable cause to arrest him. The court also determined that,
even if Evans was seized at the point that the squad cars flanked his vehicle and
trained their spotlights on it, the seizure was reasonable “based on the officer’s
observations of the individuals coming and going at that hour from the hotel
parking lot in a way that seemed unusual and not explainable in a high crime
area.” Evans pleaded guilty to possession of a firearm as a felon and was
sentenced. He now appeals the circuit court’s denial of his motion to suppress.
We provide additional pertinent facts in the discussion that follows.

DISCUSSION

¶11 We first explain the standard governing our review of the circuit
court’s decision on a motion to suppress evidence. We next explain why we
conclude that: (1) Evans was subject to a Fourth Amendment seizure when his
vehicle was simultaneously flanked and spotlighted by the two officers’ squad
cars, one of which pulled up perpendicular to and was pointed directly at the
driver’s side of Evans’s vehicle and the other of which was pointed diagonally at
the rear passenger’s side of the vehicle; and (2) the seizure was not supported by
reasonable suspicion or otherwise justified under the Fourth Amendment.

I. Standard of Review

¶12 An appellate court reviews a motion to suppress under a two-step
analysis. State v. Eason, 2001 WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625.
First, we review the circuit court’s findings of fact, which we uphold unless they
are clearly erroneous; second, we review the application of constitutional

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No. 2020AP286-CR

principles to those facts de novo. State v. Felix, 2012 WI 36, ¶22, 339 Wis. 2d
670, 811 N.W.2d 775; County of Grant v. Vogt, 2014 WI 76, ¶17, 356 Wis. 2d
343, 850 N.W.2d 253. We determine independently whether and when a seizure
occurred for purposes of the Fourth Amendment. State v. Young, 2006 WI 98,
¶17, 294 Wis. 2d 1, 717 N.W.2d 729. Likewise, whether a seizure is reasonable is
a constitutional question of fact to which we apply the same two-step standard of
review. State v. Knapp, 2005 WI 127, ¶19, 285 Wis. 2d 86, 700 N.W.2d 899.

II. Seizure

¶13 We first summarize the applicable legal principles governing seizure
under the Fourth Amendment. We next apply those principles to the undisputed
facts here and conclude that Evans was seized when the two officers used their
vehicles to flank Evans’s vehicle in what amounted to a pincer-like formation,
with one them pointed directly at the driver’s seat of his vehicle, and directed their
spotlights at him.

¶14 The Fourth Amendment of the United States Constitution and article
I, section 11 of the Wisconsin Constitution protect the right to be free from
unreasonable searches and seizures. Young, 294 Wis. 2d 1, ¶18. Wisconsin
courts generally construe our state constitutional protections in the same way that
the United States Supreme Court has interpreted the Fourth Amendment. Id., ¶30.
Evidence obtained through unconstitutional searches and seizures is generally
suppressed under the exclusionary rule, with the purpose of deterring Fourth
Amendment violations. State v. Dearborn, 2010 WI 84, ¶35, 372 Wis. 2d 252,
786 N.W. 2d 97.

¶15 “[A] person has been seized within the meaning of the Fourth
Amendment only if, in view of all the circumstances surrounding the incident, a

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No. 2020AP286-CR

reasonable person would have believed that he [or she] was not free to leave.”
Vogt, 356 Wis. 2d 343, ¶20 (internal quotation marks and citation omitted). So
long as a person interacting with police “remains free to … walk away, there has
been no intrusion upon that person’s liberty or privacy as would under the
Constitution require some particularized and objective justification.” United
States v. Mendenhall, 446 U.S. 544, 554 (1980); Vogt, 356 Wis. 2d 343, ¶25
(quoting Mendenhall, 446 U.S. at 554). The test of whether a person is free to
leave is objective and “considers whether an innocent reasonable person, rather
than the specific defendant, would feel free to leave under the circumstances.”
Vogt, 356 Wis. 2d 343, ¶¶25, 30.

¶16 A seizure may be effectuated “by means of physical force or show of
authority.” Vogt, 356 Wis. 2d 343, ¶20 (quoting Mendenhall, 446 U.S. at 552).
To effectuate a seizure without the use of physical force, “an officer must make a
show of authority, and the citizen must actually yield to that show of authority.”2
Kelsey C.R. v. Kelsey C.R., 2001 WI 54, ¶33, 243 Wis. 2d 422, 626 N.W.2d 777.
“Yet, not every display of police authority rises to a ‘show of authority’ that
constitutes a seizure.” Young, 294 Wis. 2d 1, ¶65. “A police officer’s actions
must be assessed in view of all the circumstances surrounding the incident” to
determine if the actions would “cause a reasonable person to believe that he [or
she] was not free to leave.” Id.

¶17 Pertinent here, the courts have considered whether parking a squad
car so as to block the movement of a vehicle may rise to a “show of authority” that

2
The State here does not dispute that, to the extent there was a show of authority, Evans
yielded to it.

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No. 2020AP286-CR

constitutes a seizure. Numerous federal courts have found that blocking the
movement of a vehicle may be a seizure, even if the car is not wholly blocked
from leaving. See, e.g., United States v. Tuley, 161 F.3d 513, 514 (8th Cir. 1998)
(seizure occurred where officer parked squad car behind an individual’s truck that
was blocked in the front by an awning); United States v. Burton, 441 F.3d 509,
510 (7th Cir. 2006) (seizure occurred where officers on bicycles blocked three
sides of car); United States v. Gross, 662 F.3d 393, 399 (6th Cir. 2011) (seizure
occurred where officer parked squad car in front of individual’s car that was
backed into a parking space, such that the car could not exit).3 On the other hand,
situations in which police leave a clear path for egress are less likely to constitute
seizure. See, e.g., United States v. Ringold, 335 F.3d 1168, 1173 (10th Cir. 2003)
(no seizure occurred when officer parked at an angle next to individual’s vehicle
because “nothing prevented” the individual from “simply entering his vehicle and

3
The dissent contends that the reasoning in these cases is unpersuasive because the cases
do not “discuss situations in which a vehicle is not blocked in every direction from leaving.”
Dissent at ¶71. However, federal courts have held that even partially blocking a defendant’s exit
can be an important signal of police authority, particularly when the partial block occurs from
multiple directions and at close quarters. “[O]ur case law makes clear that officers need not
totally restrict a citizen’s freedom of movement in order to convey the message that walking
away is not an option.” United States v. Smith, 794 F.3d 681, 686 (7th Cir. 2015). Examples
include United States v. Burton, 441 F.3d 509, 510-11 (7th Cir. 2006) (seizure when police
blocked defendant on three sides); United States v. Pavelski, 789 F.2d 485, 488-89 (7th Cir.
1986) (holding that suspect was not seized when police parked behind and on one side of his car
but was seized when police blocked suspect’s car on third side) (“A reasonable person in this
situation, bounded on three sides by police patrol cars, would not have believed that he was free
to leave.”); United States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994) (officers effected seizure
when they parked in front of and behind suspect's car and shined “takedown” light [spotlight]
through defendant’s windows); United States v. Kerr, 817 F.2d 1384, 1387 (9th Cir. 1987) (when
police vehicle partially blocked one-lane driveway, it “defies common sense” to suggest that the
defendant could have simply backed around the police vehicle because defendant reasonably
perceived that he was not free to leave); cf., United States v. Douglass, 467 F.3d 621, 624 (7th
Cir. 2006) (no seizure when squad car parked twenty feet away from defendant’s vehicle and
defendant “was not blocked on three sides, or even two”) (citing cases in which blocking on two
and three sides was found to be seizure).

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No. 2020AP286-CR

driving away”); United States v. Carr, 674 F.3d 570, 573 (6th Cir. 2012) (no
seizure occurred when officer parked police vehicle in such a way that individual
had “sufficient room to drive either forward or backward”).

¶18 Our supreme court, examining the question of seizure in Vogt,
concluded that, although it was a “close case,” an individual was not seized when
a single squad car was parked behind his vehicle, obstacles were present on two
other sides of the vehicle, and the officer rapped on the individual’s window,
because the individual “still could have driven away” and “had room to leave.”
Vogt, 356 Wis. 2d 343, ¶¶41, 54.

¶19 Also pertinent here, the use of a squad car’s spotlight is a show of
authority that may, in combination with other circumstances, suffice to effectuate
a seizure. See United States v. Johnson, 874 F.3d 571, 574 (7th Cir. 2017)
(seizure occurred when two squad cars drew up parallel to and behind defendant’s
car and shined spotlights on the car, thus “impl[ying] that the occupants were not
free to drive away”). Under Wisconsin case law, a police spotlight is one
“indici[um] of police authority” but by itself does not necessarily rise to a “‘show
of authority’ that constitutes a seizure.” Young, 294 Wis. 2d 1, ¶65. Our supreme
court observed in Young that it was “reluctant” to conclude that a seizure occurred
when a squad car parked behind an individual’s vehicle and lit the vehicle with a
spotlight, although the court did not make a determination on that point. Young,
294 Wis. 2d 1, ¶69.

¶20 Here, there is no doubt that the simultaneous positioning of the two
squad cars in a flanking maneuver, with one squad car having pulled up
perpendicular to Evans’s vehicle across several parking spaces and pointed
directly at the driver’s side of his vehicle, combined with the use of spotlights,

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No. 2020AP286-CR

present “indicia of police authority.” Young, 294 Wis. 2d 1, ¶65. We must decide
whether, “in view of all the circumstances surrounding the incident,” they rise to a
“show of authority” that would make a reasonable person in Evans’s position at
the moment believe that he was not free to leave, and therefore constitute a
seizure. Id.

¶21 Evans argues that the positions of the two squad cars, one having
pulled up across several parking spaces perpendicular to and pointed directly at
Evans in the driver’s seat and the other pointed diagonally at his vehicle’s
passenger’s side to the rear, together created a situation in which Evans was
required to put his vehicle in reverse and maneuver between and around them in
order to leave. Combined with the overhead spotlights shining on his vehicle, he
contends, this constituted a sufficient show of authority that a reasonable person in
his position would not have felt free to leave. The State responds that a reasonable
person in his position would have felt free to leave because the officers positioned
their squad cars in such a way that he did have a path to exit the parking lot. We
now explain why we agree with Evans.

¶22 To repeat, the circuit court found, consistent with the evidence as we
have summarized it, that after the two squad cars converged on Evans and trained
their spotlights on him, Evans could have put his vehicle in reverse and physically
backed out through the space left by the squad cars and exited the parking lot.
Thus, this situation is not analogous to one in which a vehicle literally cannot
move freely and away from police due to the positioning of one or more police
vehicles. However, as we now explain, it is also not analogous to the two
principal Wisconsin cases briefly summarized above: Vogt, 356 Wis. 2d 343,
¶¶42, 54, the case on which the State relies, in which our supreme court
concluded, in a “close” case, that there was no seizure because the defendant could

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No. 2020AP286-CR

exit; and Young, in which the court intimated that it would be “reluctant” to find
seizure because the positioning of the officer’s car allowed the defendant to exit,
Young, 294 Wis. 2d 1, ¶¶10, 69. While there are aspects of both cases that align
with the circumstances here, there are significant differences that tip the scale in
favor of the conclusion that, even though Evans had a method to exit, a reasonable
person in the circumstances here would not feel free to use that method.

¶23 Significantly, unlike in either Vogt or Young, we have the
compelling fact that Officer Brown did not merely pull up behind Evans’s vehicle.
In itself, a squad car pulling in across several parking spaces, both close and
directly perpendicular to the driver’s side of an occupied vehicle, sends a strong
and unambiguous signal of authority. It is an “adversarial” move toward the
vehicle that differs in kind from the officer’s request to communicate in Vogt. See
Vogt, 356 Wis. 2d 343, ¶3 (distinguishing an “adversarial” interaction with the
“reasonable attempt to have a consensual conversation” by knocking on a car
window). While the defendant in Vogt would have reasonably understood that the
officer knocking on his window was merely “trying to make contact,” 356 Wis. 2d
343, ¶43, Evans here would not have known what might happen next after seeing a
squad car pull up across several parking spaces pointing directly at his window
and another pull up not far from his right rear bumper. In addition, that
perpendicular approach served as meaningful amplification of the message of
police restraint signaled by the following additional facts not present in Vogt or
Young.

¶24 Here, the officers used their two squad cars to flank Evans’s vehicle,
one pointed directly at his driver’s side seat and one angled diagonally to the rear
of his passenger’s side, both positioned in what amounted to a pincer-like
formation that was unmistakably focused on the occupants of his vehicle. In

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No. 2020AP286-CR

contrast, in both Vogt and Young, only one squad car was parked behind the
defendant’s vehicle. Young, 294 Wis. 2d 1, ¶65; Vogt, 356 Wis. 2d 343, ¶53
(defendant “was not subject to the threatening presence of multiple” squad cars)
(emphasis added).

¶25 Here, the only path of egress for Evans’s vehicle would have been
for him to put it in reverse and then attempt whatever reversing maneuver Evans
believed would avoid hitting or coming too close to the squad car diagonally
behind him. Leaving only this potential reverse between two squad cars does not
resemble the situations in Vogt and Young, in which each defendant could have
left by driving forward away from the single squad car. Young, 294 Wis. 2d 1,
¶10 (describing positioning of cars); Vogt, 356 Wis. 2d 343, ¶42 (video showed
“ample room” for car to move forward).

¶26 In addition, Evans’s vehicle was lit by two spotlights, rather than
none as in Vogt, 356 Wis. 2d 343, ¶6, or one as in Young, 294 Wis. 2d 1, ¶10.
The shining of spotlights from the two flanking squad cars here would have a
measurably greater effect on a reasonable person, as a show of authority, than
from one squad car. Moreover, the encounter in Young occurred on a busy road
where the spotlight was necessary to alert passing motorists to the officer’s car
that was stopped in a traffic lane. Young, 294 Wis. 2d 1, ¶¶64, 66. This is in
contrast to the case at bar, which occurred in a mostly empty parking lot. A
reasonable person in Evans’s position would have interpreted the unexpected,
unexplained, simultaneous double spotlights, occurring in the small hours of the

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No. 2020AP286-CR

morning, as a show of authority, given that the spotlights were not needed to warn
passing motorists.4

¶27 For all these reasons, we conclude that if Vogt was “close” on the
non-seizure side of the line, as our supreme court stated, then this case must fall on
the seizure side of the line.

¶28 Although not binding on Wisconsin courts, Seventh Circuit cases
that bear greater factual similarity to the situation here than Wisconsin authority
are instructive. To repeat, in Johnson, the court determined that seizure occurred
when two squad cars blocked the defendant’s vehicle from two sides and both
squad cars were shining spotlights into the defendant’s car. Johnson, 874 F.3d at
574 (“two squad cars, which bathed the parked car in bright light, implied that the
occupants were not free to drive away”). In Burton, the court considered it to be
“a reasonable, in fact a compelling, inference that the police placed their bikes
where they did [on three sides of the defendant’s vehicle] in order to make sure

4
The dissent contends that Vogt presents a more coercive set of facts than the case at bar
because in Vogt there was a “personal, immediate interaction” between the officer and the
defendant when the officer rapped on the defendant’s window. Dissent at ¶89. However, the
court in Vogt emphasized that such conduct was akin to an attempt to initiate a consensual
conversation. County of Grant v. Vogt, 2014 WI 76, ¶¶7, 51, 356 Wis. 2d 343, 850 N.W.2d 253.
As explained by a “leading commentator,” State v. Young, 2006 WI 98, ¶59, 294 Wis. 2d 1, 717
N.W.2d 729, when police engage in some “action which one would not expect between two
private citizens, such as boxing a car in, it is likely that the event will be considered a fourth
amendment seizure.” Wayne R. LaFave, Search and Seizure, a Treatise on the Fourth
Amendment, § 9.2(h), at 416–17 (2nd ed. 1987). In Vogt the officer parked behind the
defendant’s car in such a way as to leave “ample room” for the car to move forward, turn around,
and exit the parking lot, and the officer rapped on the window and motioned for the defendant to
roll down the window, just as a concerned private citizen might do “to make contact” and initiate
a consensual conversation. Vogt, 356 Wis. 2d 343, ¶¶3, 7, 42, 43. In contrast, the occupant of a
parked car would not reasonably expect two private citizens to suddenly flank the car in a pincer-
like formation such that the flanked car was blocked on three sides and one of the flanking cars is
pointed directly at the driver, for other than “intimidating” purposes. See id., ¶43 (circuit court
found the officer’s conduct “not so intimidating as to constitute a seizure”).

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No. 2020AP286-CR

that Burton didn’t drive away before they satisfied themselves that there was no
criminal activity afoot.” Burton, 441 F.3d at 509. Although the court noted that
the seizure was effectuated in “a severely attenuated sense,” it nonetheless
occurred because the defendant’s vehicle was blocked on three sides, even though
no spotlight was used. Id.5

¶29 The circumstances here present more indicia of restraint than either
the Wisconsin cases or the Seventh Circuit cases because, unlike any of those
cases, it involves the unexpected, late night presence of two squad cars acting
simultaneously, and a close pull up perpendicular to the driver’s side by one of
them, and spotlights, and blocked egress on three sides, and an inability to exit by
driving forward, and having to maneuver in reverse between and around the two

5
The dissent contends that Burton, 441 F.3d 509, should be disregarded because of the
“severely attenuated” reference. Dissent at ¶72. However, subsequent Seventh Circuit case law
makes clear that Burton’s seizure rule is good law and that the reference to severe attenuation
amounts to an observation that seizures can occur in a wide variety of possibly unexpected
circumstances. See, e.g., Smith, 794 F.3d at 686, which explains:

[O]ur case law makes clear that officers need not totally restrict a
citizen's freedom of movement in order to convey the message
that walking away is not an option. In United States v. Burton,
441 F.3d 509 (7th Cir. 2006), three police officers approached
the defendant's car on their bicycles. Id. at 510. One of the
officers placed his bicycle in front of the car and the others
placed their bikes on either side of it. Id. at 510-11. We held
that “[i]t [was] a reasonable, in fact a compelling, inference that
the police placed their bikes where they did in order to make sure
that Burton didn't drive away before they satisfied themselves
that there was no criminal activity afoot. By doing this they
‘seized’ the car, though in a severely attenuated sense.” Id. at
511.

See also Douglass, 467 F.3d at 624 (“it is possible for the officers to have blocked a suspect’s car
so that he does not feel free to leave”) (citing Burton, 441 F.3d at 510-11).

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No. 2020AP286-CR

squad cars to avoid hitting either of them in order to exit.6 We conclude that a
reasonable person in these circumstances would not feel that he or she is free to
leave.7 See Young, 294 Wis. 2d 1, ¶65 (“A police officer’s actions must be
assessed in view of all the circumstances surrounding the incident” to determine if
the actions would “cause a reasonable person to believe that he [or she] was not
free to leave.”).

¶30 Accordingly, we conclude that Evans was seized at the moment
when the two squad cars simultaneously created the sudden, unexplained pincer-

6
The dissent emphasizes the uncontested fact that Evans could have placed his car in
reverse and directly backed up without hitting either of the two squad cars. See, e.g., dissent at
¶69-2. This is true. But we respectfully suggest that the dissent fails to take sufficiently into
account, as part of the totality of the circumstances, that a reasonable person in Evans’s position
would have worried that one or both of the officers might believe that various potential reversal
maneuvers would bring Evans too close to, or actually strike, one of the squad cars. In short,
when two squad cars converge on a car in this manner they limit exit choices for the reasonable
person in the position of the targeted driver. In addition, the circuit court found only that Evans
had a path of egress, but did not characterize that path.

More generally, the dissent discusses various aspects of the circumstances and concludes
that none of these aspects by itself effectuated a seizure. Dissent at ¶¶76-85. The dissent’s
analysis misses the mark because it is the totality of all relevant elements here that signals a show
of authority in the face of which a reasonable person would not feel free to leave. See Young,
294 Wis. 2d 1, ¶65 (stating that the police officers’ actions “must be assessed in view of all of the
circumstances surrounding the incident” to determine if the actions would “cause a reasonable
person to believe that he [or she] was not free to leave.”).
7
Evans argues that our review of whether a reasonable person would have felt free to
leave under the circumstances should take into account that Evans is an African-American man
living in a country and state in which African-American men are disproportionately killed during
police encounters. The Supreme Court acknowledged in United States v. Mendenhall, 446 U.S.
544 (1980), that African-American citizens interacting with white police officers may feel
“unusually threatened” and has treated such considerations as neither “irrelevant” nor “decisive”
in the determination of whether a reasonable individual would feel free to leave under the
circumstances. Id. at 558. However, because we conclude that a reasonable person here would
not have felt free to leave, even absent the perception of a heightened risk for violence, we do not
address whether or how circumstances surrounding race may inform application of the objective
reasonable-person standard in a case such as this one.

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No. 2020AP286-CR

like formation and shined their spotlights on his vehicle under all of these
circumstances.

¶31 The State points to what the officers did not do: park directly behind
Evans’s vehicle or activate their sirens or their red and blue emergency lights. The
State in essence asks us to adopt the view that, so long as police are careful to
leave some means of egress (even the potential reverse that we have described)
and refrain from using sirens or emergency lights, they can create circumstances
that have the effect of restraining the reasonable occupant of a vehicle but without
triggering a seizure under the Fourth Amendment. The State also points to events
that transpired after the officers got out of their squad cars. However, we have
already explained why what the officers did do, before they got out of their squad
cars, constituted a sufficient show of authority to effectuate a seizure.
Accordingly, the State’s attempt to downplay what happened before the officers
exited their vehicles, and its resort to what happened afterward, are not persuasive.

¶32 Having determined the point at which Evans was seized by the
officers, we now determine whether the officers had reasonable suspicion or any
other constitutional justification to seize Evans at that time.

III. Reasonable Suspicion

¶33 We first review the applicable legal principles governing whether a
seizure is reasonable under the Fourth Amendment. We next apply those
principles to the undisputed facts of this case and conclude that Evans’s seizure
was unreasonable.

¶34 We begin on this issue by noting that the State does not argue that, if
there was a seizure as we have determined above, the officers were allowed to

16
No. 2020AP286-CR

effectuate it consistent with the Fourth Amendment on any ground other than
reasonable suspicion, such as the existence of exigent circumstances.

¶35 An investigatory (or Terry) stop8 is reasonable if it is supported by
reasonable suspicion. Vogt, 356 Wis. 2d 343, ¶27. “An officer has reasonable
suspicion when he [or she] possesses specific and articulable facts which would
warrant a reasonable belief that criminal activity was afoot.” Id. “The
determination of reasonableness is a common sense test. The crucial question is
whether the facts of the case would warrant a reasonable police officer, in light of
his or her training and experience, to suspect that the individual has committed,
was committing, or is about to commit a crime.” State v. Post, 2007 WI 60, ¶13,
301 Wis. 2d 1, 733 N.W.2d 634. “A determination of reasonable suspicion is
made based on the totality of the circumstances.” State v. Anderson, 2019 WI 97,
¶33, 389 Wis. 2d 106, 935 N.W.2d 285.

¶36 An investigative stop must be based on more than a police officer’s
“inchoate and unparticularized suspicion or ‘hunch.’ Rather, the officer ‘must be
able to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant’ the intrusion of the stop.” Post,
301 Wis. 2d 1, ¶10 (quoted source omitted); Vogt, 356 Wis. 2d 343, ¶29
(reasonable suspicion requires more than a “savvy hunch” from an officer); State
v. Houghton, 2015 WI 79, ¶¶12, 21, 364 Wis. 2d 234, 868 N.W.2d 143.
However, the “standard for the stop is less than probable cause,” State v. Patton,
2006 WI App 235, ¶9, 297 Wis. 2d 415, 724 N.W.2d 347, and a police officer is

8
Terry v. Ohio, 392 U.S.1 (1968), announced the applicable constitutional standard for
brief investigatory stops; see State v. Chambers, 55 Wis. 2d 289, 294, 198 N.W.2d 377 (1972)
(recognizing the Terry standard).

17
No. 2020AP286-CR

“not required to rule out the possibility of innocent behavior before initiating a
brief stop.” State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990).

¶37 We now explain why we conclude that the record from the
suppression hearing does not show specific and articulable facts sufficient to
support reasonable suspicion that criminal activity was afoot at the time of the
seizure. Vogt, 356 Wis. 2d 343, ¶27.

¶38 The circuit court’s determination of reasonable suspicion in this case
was based on the high-crime area, the time of day, and Evans’s conduct in coming
from and returning to the hotel and sitting in his parked car. Our case law
establishes that none of these facts alone creates reasonable suspicion and further
it supports our conclusion that they do not do so when considered together.

¶39 A person’s mere presence in a high crime area during the night
cannot be relied upon to justify seizure. We emphatically rejected such a
contention in State v. Gordon, 2014 WI App 44, ¶15, 353 Wis. 2d 468, 846
N.W.2d 483. In that case, officers saw Gordon and some companions walking
along the street while on patrol in a high crime area. Id., ¶3. When Gordon
noticed the police, he made a “security adjustment” by patting his pants pocket, as
if to ensure that an item within was present and secure. Id., ¶4. The officers
suspected that Gordon was concerned about an illegal firearm that he was carrying
(he looked too young to own a firearm legally) and stopped Gordon to investigate.
Id., ¶5. This court found that the officers lacked reasonable suspicion to stop
Gordon. In particular, the court noted the dangers of relying on Gordon’s
presence in a high crime area: “many, many folks, innocent of any crime, are by
circumstances forced to live in areas that are not safe—either for themselves or
their loved ones.” Id., ¶15. “[T]he routine mantra of ‘high crime area’ has the

18
No. 2020AP286-CR

tendency to condemn a whole population to police intrusion that, with the same
additional facts, would not happen in other parts of our community.” Id. “To
conclude that mere presence in a high crime area at night is sufficient justification
for detention by law enforcement is to accept carte blanche the implicit assertion
that Fourth Amendment protections are reserved only for a certain race or class of
people. We denounce such an assertion.” Id. (quoting United States v. Black,
707 F.3d 531, 542 (4th Cir. 2013)). Similarly, the time of day, specifically the late
night and early morning, encompasses far too much innocent conduct (such as by
second-shift and third-shift workers at the hotel and nearby establishments) to
establish, on its own, reasonable suspicion to justify seizure.

¶40 As to Evans’s sitting briefly in an idling car, our supreme court has
ruled that a car idling in a parking lot is not enough to establish reasonable
suspicion. For example, in Vogt, an officer saw a car idling in a parking lot in the
early hours of the morning. Vogt, 356 Wis. 2d 343, ¶4. Although the police
officer suspected that the occupant had been drinking, our supreme court found
that any hunch he had did not rise to the level of reasonable suspicion required to
justify a seizure. Id., ¶29.

¶41 The last fact we consider in isolation is Evans’s coming from and
returning to the hotel parking lot. The State asserts that there was more than a
hunch here based on one of the officers’ testimony that Evans’s conduct was
“consistent with” behaviors the officer had observed in his drug cases. However,
we agree with Evans that the State mischaracterizes the record because the officer
did not testify that he specifically found Evans’s conduct to be “consistent with”
his drug cases, only that he had seen some behavior, at some unspecified time, by
some unspecified person, that was consistent with drug cases.

19
No. 2020AP286-CR

¶42 The following is the pertinent portion of the suppression hearing
transcript:

[Prosecutor]: In the time that you’ve worked patrol
in this area, based on your own experience, would you
describe this area in any way?

[Officer Brown]: I know this area to be a high
crime area, known for shots fired incidents, homicides and
narcotic trafficking.

[Prosecutor]: Is that based on cases you have been
involved in?

[Officer Brown]: Yes, it is.

[Prosecutor]: Have you made drug arrests in this
area?

[Officer Brown]: Yes, I have.

[Prosecutor]: And have you observed conduct
consistent with your drug cases?

[Officer Brown]: Yes, I have.

[Prosecutor]: Is the time of day that this happened
significant to you at all?

[Officer Brown]: Yes, it is.

[Prosecutor]: Why?

[Officer Brown]: It’s consistent with the time frame
in which I make a lot of my drug arrests, and it’s just
unusual for, given the circumstances of this incident, for
people to be up and moving at that time of day.

¶43 This excerpted transcript reveals testimony that the officer had made
drug arrests in the area before, that he had observed conduct consistent with his
drug cases, and that the time frame in which the interaction with Evans occurred
was a time frame in which he had made a lot of drug arrests. However, it does not
show that the officer observed Evans exhibiting conduct consistent with drug
cases.

20
No. 2020AP286-CR

¶44 We now turn to the totality of these facts. Of course, all of the facts
identified above may together “be a significant aspect of the ‘reasonable
suspicion’ calculus,” under certain circumstances because we evaluate reasonable
suspicion under the totality of the circumstances. Gordon, 353 Wis. 2d 468, ¶15.
For example, a defendant’s presence in a high drug trafficking area, when
combined with the officer’s previous arrest of that defendant, a corroborated tip
from an informant, and the defendant’s conduct provided reasonable suspicion in
Anderson, 389 Wis. 2d 106, ¶57. There, our supreme court explained that:

[T]he Gordon court was careful to observe that the result
may have been different if other factors were present in the
totality of the circumstances. Specifically, it wrote:

Without more (such as, for example and not
by way of limitation, the officers being
aware that the person they wanted to stop
was either wanted on a warrant or was
known to have committed gun crimes), these
findings, either taken separately or added
together, do not equal the requisite objective
“reasonable suspicion” that “criminal
activity” by Gordon was “afoot.”

In this case, the “more” referenced by the Gordon
court is present. Officer Seeger was aware that Anderson
was known to have committed drug crimes—the officer
had, after all, previously arrested Anderson for such a
crime. Additionally, in this case we consider the tips
Officer Seeger received indicating Anderson was selling
drugs at a specific location, corroborated by Anderson's
presence at that specific location and his behavior upon
recognizing law enforcement. These factors that were not
present in Gordon tip the balance.

Id., ¶56-57.

¶45 The State argues that specific articulable facts supported reasonable
suspicion here because Evans left a hotel with no luggage at a time when, one of
the officers testified, aside from criminal activity, “[t]here’s not really anything

21
No. 2020AP286-CR

else that goes on in that area at that time of day,” drove briefly to a nearby parking
lot, and returned and sat in a running car for several minutes, all in a high-crime
area where the officer had made several previous drug arrests. However, none of
these facts constitute the “more” referenced by Gordon and Anderson. There is
no evidence that officers were aware that Evans had engaged in criminal activity
in the past, that they were aware of any warrants, that they had received a tip
regarding illegal activity, that Evans behaved suspiciously upon recognizing a
police presence, or that any other specific and articulable facts supported the
officers’ hunch that Evans was engaged in illegal activity. Although it turned out
that the officers found Evans to be in the illegal possession of a firearm, “there is
nothing new in the realization that the Constitution sometimes insulates the
criminality of a few in order to protect the privacy of us all.” Arizona v. Hicks,
480 U.S. 321, 329 (1987).

¶46 Finally, we agree with Evans that his case is also distinguishable
from Young, 294 Wis. 2d 1. In Young our supreme court stated that an officer
had reasonable suspicion that criminal activity was afoot because “[t]he officer
described the particular facts that made him suspicious and linked those facts to
his seven years of experience patrolling the neighborhood.” Id., ¶64. These facts
included not only that the area was high-crime at that time of night, but also that
five persons sat in an idling car for at least nine minutes around the corner from a
popular bar that “had become a problem area for the police,” the car was
unfamiliar to the officer who had been patrolling the area for seven years and had
Illinois plates, none of the occupants of the car entered or exited a bar or party, and
the car did not drop anyone off or pick anyone up. Id., ¶¶6-9. The officer testified
that there was a correlation between these facts and the use of alcohol and

22
No. 2020AP286-CR

narcotics in cars. Id., ¶61-63. Here, unlike in Young, there is no testimony that
Evans’s conduct correlated with specified criminal activity.

¶47 In sum, we conclude that the State has failed to identify specific
articulable facts that would “tip the balance” here from a mere generalized hunch
as in Gordon to reasonable suspicion as in Anderson, and that, therefore, the
officers in this case lacked reasonable suspicion that Evans was engaged in
criminal activity. Accordingly, we conclude that his seizure was unreasonable.

CONCLUSION

¶48 For all these reasons, we conclude that Evans was seized before the
officers emerged from their squad cars, and that the officers did not have
reasonable suspicion to seize Evans at that time. Therefore, we reverse the circuit
court’s denial of Evans’s suppression motion and remand for further proceedings.

By the Court.—Judgment reversed and cause remanded for further
proceedings.

Not recommended for publication in the official reports.

23
No. 2020AP286-CR(CD)

¶49 FITZPATRICK, P.J. (concurring in part; dissenting in part). I
concur with the analysis and result stated in the majority opinion that the officers
did not have reasonable suspicion that a crime had been, or was about to be,
committed prior to the point in time the officers smelled marijuana smoke
emanating from Evans’s vehicle. (Majority, ¶¶33-47.)

¶50 I part ways with my colleagues, and respectfully dissent from the
majority opinion’s analysis and result, regarding whether Evans was “seized” by
the officers in the hotel parking lot prior to the time the officers smelled marijuana
smoke coming from Evans’s vehicle. The circuit court’s findings of fact, the
record, and applicable authorities lead only to the conclusion that, prior to the time
the officers smelled marijuana smoke coming from Evans’s vehicle, Evans was
not “seized” within the meaning of the Fourth Amendment.

I. Evans Was Not “Seized” Within the Meaning of the Fourth Amendment.

¶51 I start with the framing of this issue.

¶52 Once both police vehicles stopped, each officer got out of their car
and walked toward Evans’s vehicle. (Transcript of Oct. 16, 2018 Motion Hrg.,
pp. 14, 16, 40.)1 Officer Brown testified that, as he walked toward Evans’s
vehicle, he could smell marijuana. (Tr., pp. 14, 16.) Officer Hoffman testified

1
All references to the October 16, 2018 hearing transcript will be abbreviated as “(Tr.,
p. __.).”
No. 2020AP286-CR(CD)

that, upon stepping out of his vehicle, he “immediately noted an odor of marijuana
in the air,” and that odor became stronger as he approached Evans’s vehicle. (Tr.,
pp. 39-40.) The circuit court found that “based on the testimony the court
concludes that [the officers] did smell the odor of marijuana as they approached on
foot and before they actually made contact with [Evans’s] vehicle.” (Tr., p. 68.)

¶53 I agree with the circuit court and the majority opinion (Majority, ¶3)
that, when the officers smelled marijuana as they approached Evans’s vehicle,
there was probable cause to conclude that a crime had been, or was being,
committed. See State v. Secrist, 224 Wis. 2d 201, 210, 589 N.W.2d 387 (1999).
For that reason, the question is whether Evans was “seized” by the officers, within
the meaning of the Fourth Amendment, in the short time between when the squad
cars both stopped and the officers smelled marijuana as they walked toward
Evans’s vehicle.2

A. Controlling Principles.

¶54 Our supreme court has summarized the principles we are to use in
deciding this issue:

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.” [United States v.]
Mendenhall, 446 U.S. [544,] 552, 100 S. Ct. 1870 [(1980)]
(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868,
20 L.Ed.2d 889 (1968)). As Justice Stewart stated in

2
The testimony from the evidentiary hearing, and the circuit court’s findings of fact, do
not state the length of time between when both squad cars stopped in the parking lot and the
officers stepped out of their vehicles. However, neither party contends that it was more than a
few moments. Videos from body cameras and squad car cameras may shed light on that but, as
noted in the majority opinion, the DVD in the record that is supposed to contain these videos is
blank.

2
No. 2020AP286-CR(CD)

Mendenhall, “a person has been ‘seized’ within the
meaning of the Fourth Amendment 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. at 554, 100 S. Ct. 1870 (footnote omitted).

….

The rule that a seizure occurs only when law
enforcement restrains a person’s liberty by show of
authority advances the goals of the Fourth Amendment:

The purpose of the Fourth
Amendment is not to eliminate all contact
between the police and the citizenry, but “to
prevent arbitrary and oppressive interference
by enforcement officials with the privacy
and personal security of individuals.”
United States v. Martinez–Fuerte, 428 U.S.
543, 554 [96 S. Ct. 3074, 49 L.Ed.2d 1116
(1976)]. As long as the person to whom
questions are put remains free to disregard
the questions and walk away, there has been
no intrusion upon that person’s liberty or
privacy as would under the Constitution
require some particularized and objective
justification.

Mendenhall, 446 U.S. at 553-54, 100 S. Ct. 1870.

County of Grant v. Vogt, 2014 WI 76, ¶¶20, 25, 356 Wis. 2d 343, 850 N.W.2d
253 (first set of brackets added).3

¶55 Of importance is our standard of review. Whether someone has
been seized is a question of constitutional fact. State v. Young, 2006 WI 98, ¶17,
294 Wis. 2d 1, 717 N.W.2d 729. “As such, we accept the circuit court’s findings

3
Neither party, nor the circuit court, mentions that Evans could have “walk[ed] away”
(using the phrase in United States v. Mendenhall, 446 U.S. 544 (1980)) instead of driving away.
As a result, I will also ignore that distinction even though it raises the question as to whether
Evans’s person was seized as opposed to his vehicle. See United States v. Mabery, 686 F.3d 591,
597 (8th Cir. 2012) (“Nor would blocking the parking lot driveway establish a seizure of
Mabery’s person—he could have been free to leave, even if his vehicle had to remain parked.”).

3
No. 2020AP286-CR(CD)

of evidentiary or historical fact unless they are clearly erroneous, but we
determine independently whether or when a seizure occurred.” Id. (emphasis
added). Also of importance is that Evans never argues that the circuit court’s
findings of fact are clearly erroneous. Indeed, in briefing in this court, Evans
concedes that the “historical facts of the police encounter are not in dispute.”

¶56 For the reasons that follow, I conclude that, when the facts are
looked at either individually or considered together, there was no seizure of Evans
prior to the officers smelling marijuana smoke wafting from his vehicle.

¶57 I next discuss the circuit court’s findings of fact, applicable portions
of the record, and arguments from Evans.

B. The Circuit Court’s Findings of Fact, the Record,
and Evans’s Arguments.

¶58 A key premise to its conclusion is the majority opinion’s assertions
about where the two squad cars were positioned. See, e.g., “Officer Brown pulled
his squad car to within a few feet (less than the width of one parking space) of
Evans’s vehicle.” (Majority, ¶7.) “At the same time, Officer Hoffman pulled his
squad car similarly close (less than the width of one parking space) to Evans’s
vehicle.” (Majority, ¶7.) From these assertions, the majority opinion contends
that it would have been difficult for Evans to find a path to drive away. See, e.g.,
“Here, the only path of egress for Evans’s vehicle would have been for him to put
it in reverse and then attempt whatever reversing maneuver Evans believed would
avoid hitting or coming too close to the squad car diagonally behind him.”
(Majority, ¶25.) And, according to the majority opinion, those assertions are
important to the conclusion that Evans was “seized.” However, the assertions of

4
No. 2020AP286-CR(CD)

the majority opinion on those points cannot be reconciled with the circuit court’s
findings of fact, are not supported by the record, and are not argued by Evans.

1. The Circuit Court’s Findings of Fact.

¶59 Whether it would have been difficult for Evans’s vehicle to exit was
raised in the circuit court, and the circuit court rejected that contention.

¶60 Based on the testimony of the police officers and the videos seen by
the circuit court, in argument to the circuit court the parties pressed a factual
dispute about Evans’s route to exit once the police showed up. The State argued
in relevant part: “When [the officers] got there, as you saw in the video, there was
plenty of room for the defendant to have reversed between these two cars, the
squads, I should say, and exit the parking lot.” (Tr., p. 59.) Evans’s position in
the circuit court was manifested through his counsel’s argument: “And this
narrow pathway of this parking lot with another concrete median behind it, it
would be pretty precarious for him to be able to exit.” (Tr., p. 61.)4

¶61 At the conclusion of the evidentiary hearing, the circuit court made
the following pertinent findings of fact in rejecting Evans’s factual contention that
Evans was hindered from driving away:

Both of the squad cars did park in a way that would have
allowed the vehicle that the defendant was in to back out of
the parking lot. Apparently the way the defendant’s vehicle
entered the parking lot, he was certainly parked in a

4
The questioning of Officer Brown and Officer Hoffman by Evans’s trial counsel at the
evidentiary hearing, and Evans’s argument in the circuit court, show that counsel’s assertion
about a “narrow” space referred to the space between the concrete barrier in front of Evans’s
vehicle and the concrete barrier for the parking spot directly behind Evans’s vehicle. Any
reference to “narrow” did not refer to the space between the two squad cars. (Tr., pp. 32, 51-52,
59, 61.)

5
No. 2020AP286-CR(CD)

parking spot that didn’t allow him to pull forward, but
[Evans] could have backed out the way he came in. The
squad vehicles were not parked so close or positioned in
such a way that [Evans] was unable to back out of that lot.

(Tr., p. 67.) After making other findings and conclusions, the circuit court
concluded: “So for those reasons the court is denying the motion to suppress.”
(Tr., p. 69.)5

¶62 We cannot conclude that a circuit court’s findings of fact are clearly
erroneous if there is any credible evidence in the record, or any reasonable
inference that can be drawn from that evidence, that supports the finding.
Insurance Co. of N. Am. v. DEC Int’l, Inc., 220 Wis. 2d 840, 845, 586 N.W.2d
691 (Ct. App. 1998); see, e.g., Vogt, 356 Wis. 2d 343, ¶41 (concluding that the
facts as found by the circuit court did not demonstrate that the defendant was
seized because the defendant could have driven away, which supported the court’s
ultimate decision). It is solely within the discretion of the circuit court to accept,
reject, or give weight to portions of the testimony regarding the size of the space
Evans would have driven through if he attempted to leave and whether Evans was
hindered from driving away by the positions of the vehicles. That discretion
cannot be usurped by this court.

5
In addition to the circuit court determining the credibility of the two police officers,
relevant portions of the body and squad car camera videos were shown to the circuit court during
the testimony of the officers. At two points in Evans’s briefing in this court, Evans refers us to
those videos. The DVD in the record is supposed to contain those videos but as noted it is blank,
and we do not have the benefit of seeing those videos as the circuit court did. Evans, as the
appellant, has the burden to ensure that the record on appeal is complete. See State v. Marks,
2010 WI App 172, ¶20, 330 Wis. 2d 693, 794 N.W.2d 547. “[W]hen an appellate record is
incomplete in connection with an issue raised by the appellant, we must assume that the missing
material supports the [circuit] court’s ruling.” Fiumefreddo v. McLean, 174 Wis. 2d 10, 27, 496
N.W.2d 226 (Ct. App. 1993).

6
No. 2020AP286-CR(CD)

¶63 It is true that, if a circuit court does not make an explicit finding on a
factual point “that exists in the record, an appellate court can assume that the
circuit court determined the fact in a manner that supports the circuit court’s
ultimate decision.” Vogt, 356 Wis. 2d 343, ¶41. Here, however, the circuit court
did not fail to make a pertinent finding on whether Evans would have difficulty
driving away. Rather, the circuit court made findings of fact that cannot be
reconciled with the factual assertions of the majority opinion already mentioned.
Moreover, while we can assume facts in the record that support a decision of the
circuit court, the motion to suppress brought by Evans was denied. Accordingly,
this court is not allowed to, as I believe the majority opinion has done here,
assume facts that are contrary to the ultimate decision of the circuit court and the
specific, uncontested findings of fact of the circuit court.6

2. The Record on the Position of the Police Vehicles.

¶64 The positioning of the two police vehicles should also be clarified.

¶65 As mentioned, the majority opinion states that the Brown squad car
and the Hoffmann squad car were each less than the width of one parking space
from the Evans vehicle. (Majority, ¶7.) Those assertions are not accurate as
phrased. In fact, there is no evidence to support those factual assertions of the
majority opinion, the circuit court’s findings of fact cannot be reconciled with
those assertions, and (as will be seen) Evans never contends that the police
vehicles were that close to his vehicle.

6
The majority opinion also adopts, at numerous points, military-like language such as
“in a pincer-like fashion” and “flanking maneuver” to describe the placement of the squad cars. I
suggest that these attempts to emphasize certain facts that cannot be reconciled with the circuit
court’s findings do not change the result.

7
No. 2020AP286-CR(CD)

¶66 For context, I note the following. Evans agrees, at two points in his
briefing in this court, that Officer Brown’s squad car was not in the lane of traffic
Evans would need to drive through to leave the parking lot. Both Officer Brown
and Officer Hoffman testified that the Hoffman squad car was not behind Evans’s
vehicle. (Tr., pp. 13, 39.)

¶67 To determine the locations of the Brown squad car and the Hoffman
squad car, a photo is reproduced below. Evans twice placed the same photo in his
brief-in-chief in this court. He represents to us that the photo is taken from one of
the videos entered into evidence at the evidentiary hearing, and the photo shows
“the orientation of the vehicles.”

¶68 Officer Hoffman testified that the video (from which the photo is
taken) shows Officer Brown’s squad car on the left, Evans’s vehicle is the silver
vehicle near the middle of the photo, and the front of Officer Hoffman’s squad car
is shown at the bottom of the photo. (Tr., pp. 50-51.) That photo establishes that

8
No. 2020AP286-CR(CD)

there was more than (not less than) the width of a parking space between Officer
Brown’s squad car and the Evans vehicle. The photo also establishes that: Officer
Hoffman’s squad car was not directly behind the vehicle parked on the passenger
side of Evans’s vehicle; and the Hoffman squad car was more than the width of
one parking space from Evans’s vehicle. Those facts just stated about the
positions of the vehicles can be assumed by this court because each fact is
supported by: the record in the form of the photo; the ultimate decision of the
circuit court to deny Evans’s motion; and the circuit court’s factual findings
including that “[t]he squad vehicles were not parked so close or positioned in such
a way that [Evans] was unable to back out of that lot.” See id., ¶41.

3. Evans Does Not Make This Argument.

¶69 Evans does not renew in this court his argument made in the circuit
court that there was a “narrow pathway” for his car to exit the parking lot. Evans,
at a few spots in his briefing in this court, states only that to leave he would have
been required to “maneuver … around” or “maneuver[] past” the squad cars.
However, those snippets of phrases are not a developed argument from Evans that
the squad cars and the car parked next to him hindered him from driving away. In
addition, at no point in the circuit court or this court has Evans contended that the
squad cars were less than the width of a parking space from his vehicle.

¶70 In his reply brief in this court, Evans recognizes the State’s argument
that the squad cars did not block him in. With the opportunity to try to rebut that
argument from the State, Evans does not contend that he would have had any
difficulty driving away, or any similar argument. Instead, Evans summarizes his
arguments made in this court about why he was purportedly “seized” by law
enforcement:

9
No. 2020AP286-CR(CD)

The State does offer that the squad cars did not
block Evans in. (State Br. at 13). While physically
preventing a person from moving is sufficient to create a
seizure, it is not necessary. A “person is ‘seized’ only
when, by means of physical force or a show of authority,
his freedom of movement is restrained.” Mendenhall, 446
U.S. at 553…. As discussed in Evans’s brief-in-chief, the
police flexed their muscles and showed their authority by
(a) arriving in two squad cars, (b) shining spotlights not
found on civilian cars on Evans’s car, and (c) ignoring the
parking lot line markings in order to point the squad car
and the spotlight directly at Evans as he was sitting behind
the steering wheel. (Evans Br. at 8-9). A reasonable
person could conclude that this was a signal that they were
not free to leave.

(Reply Brief of Defendant-Appellant at p. 3.) Given the opportunity to make the
argument that it would have been at all difficult for him to drive away because the
opening for him to drive through was restricted, Evans does not do so. As a result,
Evans has conceded the point. Schlieper v. DNR, 188 Wis. 2d 318, 322, 525
N.W.2d 99 (Ct. App. 1994) (stating that a proposition asserted by a respondent on
appeal and not disputed by the appellant’s reply may be taken as admitted).7 I
suggest that we should not, as I believe the majority opinion has done, make an
argument for Evans that he decided not to make in this court. See Industrial Risk
Insurers v. Am. Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769
N.W.2d 82 (“[W]e will not abandon our neutrality to develop arguments [for the
parties].”).

7
Evans does mention, but only in a hypothetical sense and in the context of his race, that
“[a] reasonable person would have to be concerned that if they came too close to officers or drove
too quickly, the officers would view that as an act of aggression, and defend themselves with their
firearms.” (Brief-in-Chief of Defendant-Appellant, p. 11.) (Emphasis added.) But, that is not an
argument that the space was in fact narrow or that the vehicles were close to his.

10
No. 2020AP286-CR(CD)

C. Federal Court Opinions.

¶71 The majority opinion (Majority, ¶17) states that federal courts have
concluded “that blocking the movement of a vehicle may be a seizure, even if the
car is not wholly blocked from leaving.” In support of that statement, the majority
opinion cites United States v. Tuley, 161 F.3d 513 (8th Cir. 1998). However, that
opinion concerns only a vehicle that was wholly blocked from leaving and does
not discuss situations in which a vehicle is not blocked in every direction from
leaving:

Blocking a vehicle so its occupant is unable to leave during
the course of an investigatory stop is reasonable to maintain
the status quo while completing the purpose of the stop.
We conclude that blocking Tuley’s truck with the squad car
resulted in a Fourth Amendment seizure.

Id. at 515 (internal citations omitted). That paragraph of the majority opinion cites
United States v. Gross, 662 F.3d 393, 399 (6th Cir. 2011) for the same point.
However, again, the vehicle at issue in Gross was completely blocked from
leaving. See id. at 399 (“Gross is correct that when Officer Williams blocked the
car in, he began an investigatory Terry stop.”). Accordingly, those federal court
opinions do not assist the analysis of the issue before this court.

¶72 For the same proposition, the majority opinion also relies on United
States v. Burton, 441 F.3d 509 (7th Cir. 2006). There, police officers placed their
bicycles on three sides of a car while a man named Johnson was leaning into the
window on the driver’s side of Burton’s car (the only side of the car where the
police did not place their bicycles). Id. at 510. The Seventh Circuit recognized
the limited usefulness of stating that the Burton car was “seized” under those facts:

By … [placing police bicycles on three sides of the car the
police] “seized” the car, though in a severely attenuated
sense. Burton’s car was stopped, albeit with its motor

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No. 2020AP286-CR(CD)

running, when the police approached, because he was
talking (probably transacting) with Johnson. [Burton]
could hardly have driven away with Johnson leaning into
the window. Between the time the police moved Johnson
away from the car to frisk him and the time they learned
that Burton was not carrying a driver’s license and was
fussing in a suspicious manner with something in his
pocket—a concatenation of suspicious circumstances that
justified their ordering him out of the car and frisking
him—only a few minutes elapsed. The net delay may have
been zero, since Burton’s transaction with Johnson was not
complete. Had the police kept their distance, Burton would
have remained stopped until he finished striking the drug
deal with Johnson and the latter went and fetched the drugs.

Id. at 511 (emphasis added). With that explicit qualification of the conclusion
about the car being “seized,” the Burton opinion is of no, or at most limited,
usefulness in the analysis of the facts of this case.

D. The Experience of a Reasonable Person.

¶73 The State argues in this court that the officers could have, but did
not, take certain actions in the parking lot, and that should be considered in
determining if Evans believed he was free to leave. In reply, Evans argues that the
subjective intent of the officers does not matter. Evans’s reply misses the mark.

¶74 We must consider the effect of the officers’ actions on a “reasonable
person.” Vogt, 356 Wis. 2d 343, ¶20. That reasonable person would have within
his or her experience the actions a police officer may take in order to assert
authority. In other words, any reasonable person will consider what the officers
are doing, but that person will also consider the panoply of actions the officers
may, but did not, take as a show of authority. The reasonable person will then
consider actions taken, and not taken, in their calculus of whether he or she is free
to leave. See id. (stating that courts must view all of the circumstances
surrounding the incident).

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No. 2020AP286-CR(CD)

¶75 Here, during the period of time when the purported seizing of Evans
took place, there is no dispute that neither officer: (1) lit the red and blue lights on
the top of their squad car; (2) gave verbal instructions8 to Evans to stay where he
was in the car; (3) used the siren on their squad car; (4) touched Evans;9 (5) drew
their weapon or taser;10 or (6) knocked on the window of Evans’s vehicle.11 Each
of those actions might be an indication to a reasonable person that they were not
free to leave. Because the officers took none of those actions, this tends to support
the conclusion that a reasonable person would believe that they were free to leave.

E. Spotlights.

¶76 To come to its conclusion, the majority opinion relies in part on the
fact that spotlights were used by the officers when they pulled up in the parking
lot. I do not find that to be an important facet of the analysis.

¶77 Our supreme court has stated that “[o]n these facts, we are reluctant
to conclude that the positioning of the officer’s car, together with the lighting [the
officer] employed, necessarily involved such a show of authority that ‘a
reasonable person would have believed that he was not free to leave.’” Young,
294 Wis. 2d 1, ¶69 (quoting Mendenhall, 446 U.S. at 554). The supreme court
recognized that “many courts” have come to the same conclusion:

8
See County of Grant v. Vogt, 2014 WI 76, ¶23, 356 Wis. 2d 343, 850 N.W.2d 253
(citing Mendenhall, 446 U.S. at 554).
9
Id.
10
Id.
11
Id., ¶3.

13
No. 2020AP286-CR(CD)

Although a police officer’s use of a spotlight in
conjunction with emergency flashers may constitute a show
of authority, we note that many courts have concluded that
the use of a spotlight is not a show of authority sufficient to
effect a seizure. See State v. Baker, 141 Idaho 163, 107
P.3d 1214, 1216–18 (2004) (use of spotlight is no seizure;
collecting cases holding the same); State v. Young, 135
Wash. 2d 498, 957 P.2d 681, 688–89 (1998) (finding that
under the totality of the circumstances, illuminating the
defendant with a spotlight does not a seizure make).

Id., ¶65 n.18.

¶78 Case law from other jurisdictions supports that conclusion and
establishes that the use of a spotlight encourages the safety of officers. See, e.g.,
United States v. Lawhorn, 735 F.3d 817, 820 (8th Cir. 2013) (“The act of shining
a spotlight on a person’s car typically does not constitute a seizure.”); United
States v. Mabery, 686 F.3d 591, 597 (8th Cir. 2012) (“[T]he act of shining a
spotlight on [the] vehicle from the street was certainly no more intrusive (and
arguably less so) than knocking on the vehicle’s window.”); Campbell v. State,
841 N.E.2d 624, 628, 630 (Ind. App. 2006) (collecting state court cases and stating
that, by itself, shining of spotlight does not reflect a show of authority to make a
reasonable person believe that he or she is not free to leave); Commonwealth v.
Briand, 879 N.E.2d 1270, 1272 (Mass. App. 2008) (“[The law enforcement
officer’s] use of take down lights to illuminate the area before approaching the
vehicle did not constitute a seizure. To hold otherwise would discourage officers
from using such lights when necessary for their safety or the safety of others.”);
Dorsey v. United States, 372 F.2d 928, 931 (D.C. Cir. 1967) (“If policemen are to
serve any purpose of detecting and preventing crime by being out on the streets at
all, they must be able to take a closer look at challenging situations as they
encounter them.”).

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No. 2020AP286-CR(CD)

¶79 In addition to case law, common sense establishes that illuminating
the area the officers are about to enter in the middle of the night helps to keep the
officers (and others) safe. Officer Brown testified at the evidentiary hearing that
he uses a spotlight to illuminate the general vicinity in front of his vehicle. (Tr.,
pp. 27-28.) Officer Hoffman testified that “typically at night [the spotlight is]
turned on for my safety.” (Tr., p. 46.)

¶80 I conclude that the use of spotlights in these circumstances would
not lead a reasonable person to believe that they were not free to leave.

F. More Than One Officer.

¶81 The majority opinion asserts several times that, because two squad
cars were present, that makes a difference to the result. The Supreme Court has
stated that one factor which may be considered in this context is the “threatening
presence of several officers.” Mendenhall, 446 U.S. at 554-55. But, I do not
accept the implicit propositions of the majority opinion that “several officers” now
means “more than one” and more than one officer is always “threatening.” The
fact that there were two officers present in these circumstances does not contribute
in any material way to the question of whether a reasonable person would feel free
to leave under these circumstances.

G. Putting the Vehicle in Reverse.

¶82 The majority opinion continually returns to the fact that, to leave,
Evans was required to put his car in reverse and drive in reverse for a few feet.
That fact should not make a material difference to the analysis.

¶83 Our supreme court has cited with approval State v. Randle, 276 P.3d
732 (Idaho App. 2012). See Vogt, 356 Wis. 2d 343, ¶¶34, 38. In doing so, our

15
No. 2020AP286-CR(CD)

supreme court stated: “In considering [Randle’s] motion to suppress the evidence
of intoxication, the circuit court determined that even though he could not pull
forward, the defendant could have backed up and driven away and was not
seized.” Id., ¶34 (citing Randle, 276 P.3d at 737). In relying on Randle, the
supreme court put no emphasis on the fact that the car needed to be put into
reverse to leave rather than driving forward.

¶84 An opinion from the Iowa Supreme Court is instructive. In State v.
Fogg, 936 N.W.2d 664 (Iowa 2019), the issue was whether a driver was seized for
Fourth Amendment purposes. Id. at 665. The Iowa Supreme Court stated:
“Fogg’s appeal boils down to a simple point. The alley was only wide enough for
one car at a time, and by driving down it from the north, Officer Frazier created a
situation where [Fogg] would have had to leave by backing up about 125 feet to
the south.” Id. at 669. The court concluded that Fogg was free to leave and was
not boxed in:

It is true that Fogg could not have driven forward.
However, she could have driven backward either with or
without turning around. She was not “boxed in.” 4
LaFave, Search and Seizure § 9.4(a) n.122, at 596-97.
“[T]here was an avenue by which [Fogg] could have
actually left.” County of Grant v. Vogt, 356 Wis. 2d 343,
850 N.W.2d 253, 265, 268 (2014) (finding no seizure when
the deputy pulled up behind a vehicle in a parking lot, got
out, and knocked on the window of the defendant’s car
because the defendant could have “pulled forward and
turned around”).

Id. at 670 (emphasis added).

¶85 More important than the case law is common experience of
reasonable persons. Placing a vehicle into reverse (as opposed to placing a vehicle
into forward gear) and driving in reverse for a few feet in a parking lot to leave a
parking space is an act that Wisconsin residents accomplish millions of times each

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No. 2020AP286-CR(CD)

year. It is not an act reserved for specially trained drivers. A reasonable person
who believes that they are free to leave police presence by putting their vehicle in
gear to drive forward is not going to believe they cannot leave police presence
because they must put the car in reverse gear and drive in reverse for a few feet as
part of the process of leaving. The citizenry of Wisconsin does not consider
driving in reverse for a few feet to be so onerous that they feel frozen in place and
not free to leave.

H. Supreme Court’s Opinion in Vogt.

¶86 Finally, I conclude that the Vogt opinion from the Wisconsin
Supreme Court leads to the conclusion that a reasonable person in Evans’s
position would have believed they were free to leave.12

¶87 As with the Evans vehicle, the Vogt vehicle was boxed in on three
sides:

Although Deputy Small pulled up behind Vogt’s
vehicle, there was testimony at trial that Vogt might have

12
At Majority ¶28, the majority opinion relies on another federal court opinion and
considers it more “instructive” than Wisconsin authority. That opinion is United States v.
Johnson, 874 F.3d 571 (7th Cir. 2017). But, that court confirmed that whether the car was
“seized” within the meaning of the Fourth Amendment made little difference:

The district judge treated this as a seizure; so do we. But issuing
a ticket always entails a brief seizure…. What is more, when the
officers approached this parked car, no one was in the driver’s
seat. (The driver was inside a liquor store making a purchase.)
So both as a matter of the suspects’ legal entitlements and as a
matter of brute fact, it did not make any difference whether the
police approached with two cars rather than one, or whether the
cars’ spotlights were on. Johnson’s car was not going anywhere.

Id. at 574. In light of that court’s own comments, I fail to see how that federal court opinion is
“instructive.”

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No. 2020AP286-CR(CD)

had 50 feet in front of him in which he could have pulled
forward and turned around. In addition, the video from the
camera in Deputy Small’s squad car shows ample room for
the car to move forward. There was some discussion about
ice washing up onto the lot in the past; however, there is no
ice visible on the video and no evidence that there actually
was ice on December 25, 2011. Thus, we assume that
because the circuit court determined that a reasonable
person in Vogt’s circumstances would have felt free to
leave, there was an avenue by which Vogt could have
actually left. Like the defendant in Randle who was not
seized simply because the grassy knoll limited his exit
options, Randle, 276 P.3d at 733, 738, Vogt was not seized
simply because there was only one way out of the parking
lot.

Vogt, 356 Wis. 2d 343, ¶42; see also State v. Snyder, No. 2013AP299-CR,
unpublished slip op. ¶16 (WI App Oct. 2, 2014) (Blanchard, J., authoring)
(recognizing that the Vogt vehicle had “obstacles on three sides”).

¶88 The Vogt vehicle could not have continually driven forward to leave
the area where the deputy was standing next to Vogt’s window because no more
than fifty feet ahead of the Vogt vehicle was the edge of the Mississippi River.
Instead, to leave the area, Vogt was required to make a U-turn in that fifty-foot
area and then drive directly past the same deputy in order to leave. Vogt, 356 Wis.
2d 343, ¶42; see also Snyder, No 2013AP299-CR, ¶19 (“As I read Vogt, while
Vogt had fifty feet in which to pull forward, still, in order to leave the area Vogt
would have needed to make a U-turn and then pass the deputy.”). On those facts,
our supreme court concluded that “a reasonable person in Vogt’s situation would
have felt free to leave.” Vogt, 356 Wis. 2d 343, ¶53.

¶89 The facts in this case and Vogt are, of course, not exactly the same.
However, I fail to see any material difference between Evans putting his vehicle
into reverse to leave as opposed to Vogt leaving the presence of the deputy. The
record does not show any more difficulty for Evans in putting his car in reverse for

18
No. 2020AP286-CR(CD)

a few feet and leaving as compared to Vogt trying not to drive over the deputy’s
feet as he moved the car forward, avoiding the Mississippi River with a quick U-
turn, and then avoiding the deputy again as he drives past the deputy. Moreover,
in Vogt, the deputy was in a personal, immediate interaction with Vogt by rapping
on Vogt’s window. That personal and immediate deputy at the window is not
present in this case. Put another way, our supreme court concluded that a
reasonable person in Vogt’s circumstances would believe he was free to leave and
not seized by a show of authority. It follows that a reasonable person in Evans’s
circumstances would believe they were free to leave and not subject to a show of
authority from the police officers.

¶90 In sum, when considered either individually or collectively, I
conclude that the facts in this case would have led a reasonable person in Evans’s
situation to believe that they were free to leave. Accordingly, I also conclude that
Evans was not seized within the meaning of the Fourth Amendment prior to the
time the officers smelled marijuana smoke coming from Evans’s vehicle. I would
affirm the order and judgment of the circuit court.

¶91 For those reasons, I concur in part with the majority opinion, and I
respectfully dissent in part from the majority opinion.

19