State v. Lavelle Edgar Young

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.
December 26, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP470 Cir. Ct. No. 2021CT597

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LAVELLE EDGAR YOUNG,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: JONATHAN D. RICHARDS, Judge. Affirmed.

¶1 DONALD, P.J.1 Lavelle Edgar Young appeals the judgment,
entered upon a jury’s verdict, convicting him of operating a motor vehicle while

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2024AP470

under the influence of an intoxicant as a second offence contrary to WIS. STAT.
§ 346.63(1)(a). Young argues that the evidence recovered from the search of his
vehicle, and the statements he made prior to his arrest should have been
suppressed because the officer lacked reasonable suspicion and Young was not
administered Miranda2 warnings. For the following reasons, this court affirms.

BACKGROUND

¶2 On April 5, 2020, then-police officer for the City of Franklin Adam
Rogge was patrolling motel parking lots along South 27th Street in an area that
was considered a high crime area. At approximately 3:00 a.m., Officer Rogge
noticed that the driver of a vehicle parked in a motel parking lot—who was
subsequently identified as Young—was “slumped over the center console.”
Officer Rogge then exited his vehicle to check on Young’s wellbeing. He
approached the passenger side of Young’s vehicle and knocked a few times on the
window. After a delay of approximately twenty seconds, Young picked his head
up and rolled down the passenger side window.

¶3 Officer Rogge explained why he had made contact with Young and
Young indicated that he was fine. During this exchange Officer Rogge observed
the odors of both alcohol and marijuana emanating from the vehicle, an open
bottle of gin, and that Young had bloodshot eyes, dilated pupils, and slurred
speech.

¶4 After briefly talking with Young, Officer Rogge called for backup
and searched Young’s vehicle finding “nothing of evidentiary value.” Officer

2
Miranda v. Arizona, 384 U.S. 436 (1966).

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Rogge did notice that the keys were in the vehicle turned to the auxiliary position
and that the hood was warm. Officer Rogge also asked Young if he could search
his person and after Young consented, searched, and found nothing of evidentiary
value. Officer Rogge had questioned Young and Young had informed him that he
had recently driven to this motel and that he had been drinking and smoking
marijuana earlier that day. At this point, Officer Rogge asked Young to perform
field sobriety tests and Young cooperated. After Young performed poorly on the
field sobriety tests, Officer Rogge arrested him.

¶5 Before the circuit court, Young moved to suppress all of the
evidence obtained during his encounter with the police on the grounds that Young
was unlawfully seized and searched. The circuit court found Officer Rogge’s
testimony credible and that the community caretaking exception to unlawful
seizures applied. The court also found that Officer Rogge’s observations
regarding the open bottle of gin in the vehicle, the smells of alcohol and
marijuana, and the warm hood of the vehicle gave rise to the requisite reasonable
suspicion to support Officer Rogge’s investigation of Young after he had checked
on Young’s wellbeing. Therefore, the circuit court denied Young’s motion to
suppress the evidence.

¶6 Young then moved to suppress the statements he made to the
officers present, arguing that he was in custody and not provided with Miranda
warnings prior to the officers’ questioning. The circuit court found that the
officers were engaged in a routine investigation and made inquiries relevant to
operating a vehicle while intoxicated, and that during the course of this
questioning Young made several statements that were unprompted by the officers.
The circuit court also considered the circumstances and found that Young was not
in custody and that Young’s statements “were the voluntary product of a free and

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No. 2024AP470

unconstrained will, reflecting the deliberateness of choice.” The court focused on
how Young could have refused to answer the questions and was given the option
to refuse to take the field sobriety tests. Thus, the circuit court denied Young’s
motion. Ultimately, after a jury trial Young was convicted of operating a vehicle
while under the influence of an intoxicant as a second offence.

¶7 Young appeals.

DISCUSSION

¶8 “Our review of an order granting or denying a motion to suppress
evidence presents a question of constitutional fact” which we review under a two
part inquiry. State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421, 857 N.W.2d
120 (citation omitted). “First, we review the circuit court’s findings of fact, and
uphold them unless they are clearly erroneous. Second, we review de novo the
application of constitutional principles to those facts.” State v. Martin, 2012 WI
96, ¶28, 343 Wis. 2d 278, 816 N.W.2d 270.

¶9 Young argues that the evidence discovered from the search of his
vehicle should have been suppressed because Officer Rogge lacked the requisite
reasonable suspicion to seize Young, and that the statements Young made to
Officer Rogge should have been suppressed because he was in custody and not
provided Miranda warnings. We disagree, and take each argument in turn.

I. Seizure

¶10 The parties dispute whether Young was seized when Officer Rogge
initially contacted him. Young argues that Officer Rogge’s knocking on the
passenger side window was a seizure because he did not reasonably believe he
was free to disregard Officer Rogge’s presence. We disagree.

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No. 2024AP470

¶11 Both the Fourth Amendment to the United States Constitution and
article I, section 11 of the Wisconsin Constitution guarantee “[t]he right of the
people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures[.]”3 However, “[n]ot every contact between
the police and a citizen constitutes a seizure.” State v. Young, 2006 WI 98, ¶66,
294 Wis. 2d 1, 717 N.W.2d 729. “[N]on-seizure encounters are not governed by
the Fourth Amendment.” County of Grant v. Vogt, 2014 WI 76, ¶26, 356 Wis. 2d
343, 850 N.W.2d 253. “[P]olice-citizen contact becomes a seizure within the
meaning of the Fourth Amendment ‘when an officer by means of physical force or
show of authority, has in some way restrained the liberty of a citizen[.]’” Young,
294 Wis. 2d 1, ¶66 (citations omitted). “[W]hen determining whether an
individual was seized, we must replace the individual with the paradigmatic
reasonable person and focus on the officer’s conduct under the totality of the
circumstances.” Vogt, 356 Wis. 2d 343, ¶31.

¶12 In Vogt, our supreme court examined a situation similar to the one
before us where an officer parked his squad car directly behind a vehicle in a
parking lot before exiting, knocking loudly on the vehicle’s window, and ordering
the driver to lower the window. Id., ¶¶6-7, 40. The Vogt court held that this
initial contact did not constitute a seizure because the driver still had room to leave
by driving forward and that the officer’s behavior was indicative of simply making
contact with the driver. Id., ¶¶41-43. The Vogt court further explained that “when

3
For readability we refer to the protections under both the Fourth Amendment to the
United States Constitution and article I, section 11 of the Wisconsin Constitution by reference to
just the Fourth Amendment in this decision. See State v. Kramer, 2009 WI 14, ¶18, 315 Wis. 2d
414, 759 N.W.2d 598 (“Historically, we generally have interpreted Article I, Section 11 to
provide the same constitutional guarantees as the Supreme Court has accorded through its
interpretation of the Fourth Amendment.”).

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No. 2024AP470

an officer parks near a person’s vehicle, gets out, and knocks on the person’s
window, the officer has not necessarily displayed sufficient authority to cause a
reasonable person to feel that he or she was not free to leave.” Id., ¶38.

¶13 Like the driver in Vogt, the record here is clear that Young’s liberty
was not restrained because a reasonable person in Young’s situation would have
felt free to leave. Young was not stopped by Officer Rogge but instead was
approached while Young was parked in a motel parking lot after Officer Rogge
became concerned upon seeing Young slumped over in his vehicle. Young was
not blocked in by Officer Rogge’s squad car and could have backed out of his
parking space. Furthermore, Young was in the driver’s seat and Officer Rogge
approached the passenger side of the vehicle, thus, Young could have also freely
opened his door, exited his vehicle, and entered the motel.

¶14 Although Young argues that Officer Rogge’s knocking compelled
Young to respond, “a law enforcement officer’s knock on a vehicle window does
not automatically constitute a seizure.” Id., ¶53. The circumstances surrounding
Officer Rogge’s initial contact with Young were not so intimidating as to
transform the knocking into a seizure. See id. Therefore, we conclude that based
on the totality of the circumstances Young was not seized when Officer Rogge
initially contacted him and sought to confirm whether he needed emergency
assistance.4

4
Because we conclude that Young was not seized during Officer Rogge’s initial contact
with him, we do not address the parties’ arguments regarding whether the community caretaking
exception to seizures devoid of probable cause or reasonable suspicion apply here. See State v.
Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should be decided on
the narrowest possible ground[.]”).

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No. 2024AP470

¶15 Young also argues that after Officer Rogge confirmed that Young
did not need medical assistance the interaction turned into a seizure which lacked
the requisite reasonable suspicion. The State contends that the observations
Officer Rogge made during his initial contact with Young constituted sufficient
reasonable suspicion to justify any subsequent search or seizure. We agree with
the State.

¶16 For an officer to have reasonable suspicion that a crime has been or
will be committed the “officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably
warrant” the seizure. Terry v. Ohio, 392 U.S. 1, 21 (1968). “Reasonable
suspicion is ‘a low bar,’” requiring more than a mere hunch, but less proof than is
necessary to support probable cause. State v. Nimmer, 2022 WI 47, ¶25, 402
Wis. 2d 416, 975 N.W.2d 598 (citation omitted).

¶17 During Officer Rogge’s initial contact with Young he observed
odors of both alcohol and marijuana emanating from the vehicle and an open
bottle of gin in the vehicle. These observations were sufficient for Officer Rogge
to reasonably suspect that Young had operated a vehicle while intoxicated thus
permitting him to switch his focus from checking on Young’s condition to
investigating Young. See Young, 294 Wis. 2d 1, ¶¶21-22. Therefore, we
conclude that Young’s Fourth Amendment rights were not violated, thus, the
circuit court did not err by denying Young’s motion to suppress.

II. Miranda Warnings

¶18 Next we turn to Young’s argument that the statements he made prior
to his arrest should have been suppressed because he was never provided Miranda
warnings. The State responds that Miranda warnings were not necessary because

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No. 2024AP470

Young was not in custody when he made statements to the police. We agree with
the State.

¶19 Miranda warnings5 are necessary to protect a person’s Fifth and
Fourteenth Amendment privilege against compulsory self-incrimination when he
or she is subject to a “custodial interrogation.” Rhode Island v. Innis, 446 U.S.
291, 297 (1980). Custodial interrogation refers to “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” Berkemer v. McCarty,
468 U.S. 420, 428 (1984). To determine whether a person is in custody, we look
at the totality of the circumstances to consider “whether ‘a reasonable person
would not feel free to terminate the interview and leave the scene.’” State v.
Bartelt, 2018 WI 16, 379 Wis. 2d 588, ¶31, 906 N.W.2d 684 (citation omitted).

¶20 Relevant to this inquiry are factors including but not limited to “the
degree of restraint; the purpose, place, and length of the interrogation; and what
has been communicated by police officers.” Id., ¶32. Additionally, we consider
“whether the suspect is handcuffed, whether a weapon is drawn, whether a frisk is
performed, the manner in which the suspect is restrained, whether the suspect is
moved to another location, whether questioning took place in a police vehicle, and
the number of officers involved” as relevant to the degree a person is restrained
Id. (citation omitted).

5
Miranda warnings are “namely, that the defendant be informed ‘that he [or she] has the
right to remain silent, that anything he [or she] says can be used against him [or her] in a court of
law, that he [or she] has the right to the presence of an attorney, and that if he [or she] cannot
afford an attorney one will be appointed for him [or her] prior to any questioning if he [or she] so
desires’—or their equivalent.” Rhode Island v. Innis, 446 U.S. 291, 297 (1980) (citing Miranda,
384 U.S. at 478-79).

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No. 2024AP470

¶21 Here, all of the questioning took place in a publicly accessible
parking lot, initially while Young was inside of his vehicle, but primarily while he
was outside of it. At the outset only Officer Rogge was present but he was soon
joined by two other officers. Young was not in handcuffs, and the entire pre-arrest
exchange took approximately forty minutes. Young cooperated with the officers
and made several unprompted statements. Furthermore, Young was specifically
asked to perform field sobriety tests, informed he did not have to if he did not
want to, and in response Young indicated that he was willing and performed the
tests. See State v. Gruen, 218 Wis. 2d 581, 596, 582 N.W.2d 728 (Ct. App. 1998)
(“A reasonable person is less likely to believe he or she is in custody when he or
she is asked, rather than ordered, to do something by a police officer.”).

¶22 Young argues that the presence of three officers and repeated
questions made him reasonably consider himself in custody. However, throughout
the questioning Young gave inconsistent information. A reasonable person under
these circumstances would not interpret multiple similar questions in response to
inconsistent information as a restraint on their freedom to leave. Based on the
totality of the circumstances, we conclude that Young was not in custody prior to
his arrest; therefore, Miranda warnings were not required and the circuit court
properly denied the motion to suppress.

CONCLUSION

¶23 We conclude that Young was not seized when Officer Rogge
initially contacted him to check on his welfare and that Officer Rogge’s
observations during his initial contact with Young constituted sufficient
reasonable suspicion that Young had operated a vehicle while under the influence
of an intoxicant. We also conclude that Young was not in custody while he was

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No. 2024AP470

talking to the officers prior to his arrest. Therefore, Young’s constitutional rights
were not violated. Accordingly, we affirm.

By the Court.—Judgment affirmed.

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

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