State v. Donald Simon Mullen

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.
May 20, 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 Nos. 2019AP1187 Cir. Ct. Nos. 2018TR1683
2018TR1713
2019AP1188

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

NO. 2019AP1187

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DONALD SIMON MULLEN,

DEFENDANT-APPELLANT.

NO. 2019AP1188

COUNTY OF WAUKESHA,

PLAINTIFF-RESPONDENT,

V.

DONALD SIMON MULLEN,

DEFENDANT-APPELLANT.
Nos. 2019AP1187
2019AP1188

APPEALS from judgments of the circuit court for Waukesha County:
MICHAEL P. MAXWELL, Judge. Affirmed.

¶1 NEUBAUER, C.J.1 Donald Simon Mullen appeals from judgments
convicting him for refusal to take a test for intoxication and for operating a motor
vehicle while intoxicated (OWI) (first offense) and challenges the denial of his
motion to suppress. He contends an officer seized him without reasonable
suspicion. We reject his challenges and affirm.

BACKGROUND

¶2 The following facts are from testimony at the hearing on the motion
to suppress. At approximately 1:20 a.m. Deputy Nicholas Ollinger observed
Mullen turn into the parking lot of a bar. The officer drove past the bar, made a U-
turn, and drove past the bar a second time. He then made another U-turn and
drove into the bar’s parking lot. Ollinger advised dispatch that he would “be out
with an individual.”

¶3 Ollinger parked his marked squad car behind Mullen’s vehicle,
offset to the left. Ollinger’s squad car was “a fair amount away” from Mullen’s
vehicle, such that Mullen could have backed up and left the parking lot “without
any problem.” A witness for Mullen, a private investigator, agreed that videos

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version.

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from the bar also showed that Mullen could have pulled forward and turned
around to leave the lot.

¶4 The bar was closed, and there were no other vehicles or people in
sight. Mullen was standing on the curb next to the front of the bar. A light from
the bar illuminated him, and the headlights from Ollinger’s squad car illuminated
Mullen’s vehicle.

¶5 Ollinger activated his squad car’s spotlight at Mullen. Ollinger
acknowledged that it is an “extremely high intensity spotlight” and serves a
“disabling function” because it prevents the person from seeing the officer as he or
she approaches.

¶6 Ollinger got out of his squad car and approached Mullen. Ollinger
wore his sheriff’s uniform and had his firearm on his hip. He told Mullen that he
worked for the Waukesha County Sheriff’s Department.

¶7 Ollinger testified he asked Mullen in a conversational tone where
Mullen was coming from. Mullen repeatedly informed Ollinger that he was not
going to drive anymore, that he was being responsible, and that he was going to
get an Uber ride home. Mullen kept repeating himself, had slurred speech, and
was swearing. Ollinger noted a strong odor of intoxicants coming from Mullen.

¶8 Ollinger asked Mullen to perform field sobriety tests. Mullen
initially agreed, but when he began one of the tests, he “had a hard time
maintaining his balance,” and then refused all testing. Ollinger arrested Mullen
for OWI.

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¶9 The State cited Mullen for refusal, and the County cited him for
OWI and operating with a prohibited alcohol content (PAC).2 Mullen moved to
suppress the evidence, arguing that Ollinger did not have reasonable suspicion to
approach and effectively seize him to investigate. The State responded that there
was no seizure until Ollinger asked Mullen to perform field sobriety tests, at which
point there was reasonable suspicion to detain him. The court denied Mullen’s
motion to suppress, affirming its decision after a motion for reconsideration. The
court later found Mullen guilty for the refusal and for OWI after a trial to the court
and dismissed the PAC citation pursuant to WIS. STAT. § 346.63(7)(b). Mullen
appeals.

DISCUSSION

¶10 The question in this case is whether, when Ollinger pulled up behind
Mullen’s vehicle in his marked squad car in an empty parking lot, shined his
spotlight on Mullen and approached Mullen, Mullen was seized for Fourth
Amendment purposes. Review of a decision as to whether someone has been
seized is a mixed question of fact and law. County of Grant v. Vogt, 2014 WI 76,
¶17, 356 Wis. 2d 343, 850 N.W.2d 253. We uphold the circuit court’s findings of
fact unless they are clearly erroneous, but the application of constitutional
principles to those facts is a question of law we review de novo. Id.

¶11 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. State v. Young, 2006 WI 98, ¶18, 294

2
Because the same issue is involved, we consolidated these appeals for disposition on
our own motion. See WIS. STAT. RULE 809.10(3).

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Wis. 2d 1, 717 N.W.2d 729. Wisconsin courts generally construe our state
constitutional protections in the same way as the United States Supreme Court has
interpreted the Fourth Amendment. Id., ¶30.

¶12 The protections against unreasonable seizures have bearing only
when a government agent “seizes” a person. Id., ¶23. Not every encounter with
police is a seizure under the Fourth Amendment. Florida v. Bostick, 501 U.S.
429, 434 (1991). Courts have recognized two types of seizures: an investigatory
or Terry3 stop and an arrest. Vogt, 356 Wis. 2d 343, ¶27. An investigatory stop
typically entails only temporary questioning and is constitutional if police have a
reasonable suspicion that a crime has been, is being or about to be committed.
Young, 294 Wis. 2d 1, ¶20. An arrest is a more permanent seizure, often leading
to a criminal prosecution, and is constitutional if police officers have probable
cause to suspect that a crime has been committed. Id., ¶22.

¶13 It is well settled that, absent a restraint on a person’s liberty (a
seizure), officers may seek a citizen’s voluntary cooperation through noncoercive
questioning. City of Sheboygan v. Cesar, 2010 WI 170, ¶12, 330 Wis. 2d 760,
796 N.W.2d 429; Bostick, 501 U.S. at 434 (“no reasonable suspicion is required”
if “the encounter is consensual”). Thus, officers do not infringe on the right
against unreasonable seizures simply by approaching persons on the street or in
other public places and asking questions of them if they are agreeable to listen.
United States v. Drayton, 536 U.S. 194, 200 (2002); see also Vogt, 356 Wis. 2d
343, ¶¶24-26. “While most citizens will respond to a police request, the fact that
people do so, and do so without being told they are free not to respond, hardly

3
Terry v. Ohio, 392 U.S. 1, 30 (1968).

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eliminates the consensual nature of the response.” Drayton, 536 U.S. at 205
(citation omitted).

¶14 Our supreme court’s recent decision in Vogt is instructive. The
police officer saw Vogt turn and pull into an empty parking lot at about 1:00 a.m.
on Christmas morning. Vogt, 356 Wis. 2d 343, ¶4. The officer did not observe
any traffic violations, but given the time, day and location, he thought it was odd
for someone to park there. Id., ¶¶4-5. The officer parked his squad car behind
Vogt; his headlights were on but his emergency lights were not. Id., ¶6.

¶15 The officer, in full uniform and carrying a pistol in his holster, got
out of his squad car, walked up to Vogt’s window, and rapped on the window for
Vogt to roll it down. Id., ¶¶7, 43. When Vogt rolled down the window, the
officer asked him what he was doing, and when Vogt responded, the officer
observed that Vogt’s speech was slurred and that the smell of intoxicants
emanated from the vehicle. Id., ¶8. Ultimately, Vogt was arrested for OWI. Id.,
¶9. The question on appeal was whether the officer’s approach of rapping on the
window of Vogt’s car constituted a seizure under the Fourth Amendment for
which the officer would have needed reasonable suspicion that Vogt had
committed, was committing, or was about to commit a crime.

¶16 As the Vogt court explained, the state and federal constitutional
protections against unreasonable seizures do not come into play until a
government agent “seizes” a person. Id., ¶19. A seizure occurs when the police
officer has restrained the liberty of an individual “by means of physical force or
show of authority.” Id., ¶20 (citation omitted). “[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

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that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554
(1980). Behaviors that might suggest 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. Without similar
evidence that the officer conducted himself, such that a reasonable person would
not feel free to leave, there is no seizure as a matter of law. Vogt, 356 Wis. 2d
343, ¶23. It is an objective test that “presupposes an innocent person.” Bostick,
501 U.S. at 438.

¶17 There was no seizure when the officer approached Vogt’s car and
rapped on the window for him to roll it down. Vogt, 356 Wis. 2d 343, ¶41. The
Vogt trial court found that the officer was not commanding Vogt but merely trying
to make contact. Id., ¶43. Indeed, he was investigating an unusual situation.

[The officer] was acting as a conscientious officer. He saw
what he thought was suspicious behavior and decided to
take a closer look. Even though Vogt’s conduct may not
have been sufficiently suspect to raise reasonable suspicion
that a crime was afoot, it was reasonable for [the officer] to
try to learn more about the situation by engaging Vogt in
consensual conversation.

Id., ¶51 (footnote omitted). “The circumstances attendant to the knock … [we]re
not so intimidating as to transform the knock into a seizure.” Id., ¶53.

¶18 Comparing Vogt to Mullen’s case, we agree with the circuit court
that, under the totality of the circumstances, Ollinger did not seize Mullen. As in
Vogt, the officer did not stop Mullen. See Vogt, 356 Wis.2d 343, ¶41. Mullen
was already out of his vehicle and the officer simply approached him. None of the
Mendenhall examples of behavior demonstrating a seizure were present. See
Vogt, 356 Wis. 2d 343, ¶53. Only one officer was present in each case, no

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displays of weapons were made, neither officer attempted to touch the suspect or
issue forceful verbal commands, and the officers did not manage the person’s
movements or require the individual to stay on the scene. Similarly, both squad
cars were parked partly behind the other vehicle, but still allowed room to leave.
No emergency lights were activated.4

¶19 Mullen contends he was seized because it was late at night and there
were no pedestrians around; the officer had a firearm and identified himself as a
deputy sheriff; Mullen had exited his vehicle and it would be awkward to simply
get in his vehicle and drive away; and the officer shined a high-intensity spotlight
on him, unnecessarily because the bar’s lights already illuminated Mullen.

¶20 Again similar to Vogt, it was late at night and Mullen was in an
empty parking lot, and further the officer was investigating unusual
circumstances—why someone entered an empty parking lot of a business that was
clearly closed. In both cases, the officers were in marked squad cars, were in
uniform, and had firearms. Marked squad cars, uniforms, and side arms are well
known and common tools of the police professions, such that their presence,
without more, does not establish that a reasonable person would not have believed
he or she was not free to leave.

¶21 Mullen contends he was less likely to feel free to leave because he
had exited his vehicle, unlike Vogt, who was still in his vehicle. We see little

4
Mullen suggests that the consensual nature of the encounter with Ollinger is
undermined by the fact that Ollinger followed him for a period of time without any reason, that is
to say, without Mullen committing any traffic violations. Mullen points to no authority, legal or
factual, to demonstrate how this is relevant to whether the consensual encounter amounted to a
seizure, particularly given that there is no evidence that Mullen was aware that Ollinger had
followed him, making two U-turns before entering the parking lot.

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difference, as the issue is whether he was able to decline to engage with the
officer. As the court in Vogt stated, “[I]f an officer merely walks up to a person
standing or sitting in a public place ... and puts a question to him [or her], this
alone does not constitute a seizure.” Vogt, 356 Wis. 2d 343, ¶38 n.17 (citation
omitted). The court recognized that the analysis is complicated because people
tend to defer to a symbol of authority no matter how manifested, but concluded
that “a person’s consent is no less valid simply because an individual is
particularly susceptible to social or ethical pressures.” Id., ¶31.

¶22 Thus, the issue is whether the combination of the spotlight and the
approach served to detain Mullen. We think not. In Young, our supreme court
considered whether a seizure occurred when a police officer pulled up in the
middle of the street next to a vehicle parked behind Young’s car, activated its
emergency flashers, and pointed a spotlight at the car. Young, 294 Wis. 2d 1, ¶65.
The court noted that “many courts have concluded that the use of a spotlight is not
a show of authority sufficient to effect a seizure.” Id., ¶65 n.18 (citing State v.
Baker, 107 P.3d 1214, 1216-18 (Idaho 2004) (no seizure when spotlight was used;
citing cases with similar holdings)); State v. Young, 957 P.2d 681, 688-89 (Wash.
1998) (en banc) (under the totality of the circumstances, the court found no seizure
when spotlight illuminated the defendant). Indeed, the court noted that “spotlights
are likely to be used at night.” Young, 294 Wis. 2d 1, ¶65 n.18. While the court
did not reach the issue of seizure at that point in time, the court opined “we are
reluctant to conclude that the positioning of the officer’s car, together with the
lighting he employed, necessarily involved such a show of authority that ‘a
reasonable person would have believed that he was not free to leave.’” Id., ¶69
(citation omitted).

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¶23 Here, the circuit court expressed concern that a rule that an officer’s
use of a spotlight creates a per se detention would discourage officers from using
such lights when necessary for their safety or the safety of others. The Baker
court, cited favorably in Young, agreed. See Baker, 107 P.3d at 1218. Here, the
officer testified that he was trained to use the light for officer safety, and the
circuit court found the use was reasonable.

¶24 Lastly, since Young and Baker, a number of courts have adopted the
same reasoning, finding that the use of a spotlight, absent other coercive
circumstances, does not amount to a seizure. For example, although unpublished
but available for its persuasive value,5 in State v. Macho, No. 2011AP1841-CR,
unpublished slip op. ¶2 (WI App May 23, 2012), the police officer pulled up
behind the defendant’s vehicle and shined his spotlight on the vehicle. Relying on
Young, we found that the officer’s actions did not amount to a seizure of the
defendant. Macho, No. 2011AP1841-CR, ¶8. See also 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.”); United States v. Clements, 522 F.3d 790, 792, 795 (7th
Cir. 2008) (no seizure where squad car parked fifteen to twenty feet behind
defendant’s vehicle, and officers “shined a spotlight on the [vehicle] and activated
their flashing red and blue lights” before approaching; the officers were merely
“illuminating their flashing lights for identification and safety purposes”);

5
See WIS. STAT. RULE 809.23(3)(b) (a one-judge opinion may be cited for persuasive
authority if issued on or after July 1, 2009).

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Campbell v. State, 841 N.E.2d 624, 628, 630 (Ind. Ct. App. 2006) (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. Ct. App. 2008) (an officer illuminating the area before
approaching the vehicle does not constitute a seizure; otherwise, officers would be
discouraged from using their lights when necessary for their safety or the safety of
others).6

¶25 In sum, the use of the spotlight, where there was no effort to block
Mullen’s vehicle, no activation of emergency lights, and no verbal commands,
does not amount to a seizure. There was no seizure until Ollinger asked Mullen to
perform field sobriety tests, at which point there is no question that Ollinger had
reasonable suspicion.7

6
Mullen cites to several cases that purportedly support his argument that the shining of a
high-intensity spotlight effectively constitutes a seizure. These cases are not compelling, as each
involved other coercive circumstances that, added to the spotlight, amounted to a seizure. See
People v. Garry, 67 Cal. Rptr. 3d 849, 851-52 (Cal. Ct. App. 2007) (officer also all but ran at
defendant while asking about his legal status in such a manner that a reasonable person would
feel compelled to respond); State v. Jestice, 861 A.2d 1060, 1062 (Vt. 2004) (officer used squad
car to block, nose-to-nose, the defendant’s car); State v. Garcia-Cantu, 253 S.W.3d 236, 245-49
& n.43 (Tex. Crim. App. 2008) (finding a seizure under the circumstances [using spotlight,
parking close to box in defendant’s car, using a commanding, authoritative voice and demeanor
that brooked no disagreement, waving flashlight into defendant’s eyes while questioning], but
noting the distinction that “[t]he use of ‘blue flashers’ or police emergency lights are frequently
held sufficient to constitute a detention or seizure,” whereas “[t]he use of a [patrol car] spotlight,
by itself,” does not necessarily convert a consensual encounter into a seizure).
7
Mullen’s challenge is limited to whether the consensual encounter became a seizure,
and he does not develop any argument challenging reasonable suspicion after Ollinger spoke with
him and noticed his slurred speech, his repeated statements that he did not intend to drive
anymore, and the odor of intoxicants on this breath.

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By the Court.—Judgments affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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