WI: Knocking on the window of a car to get the driver to roll the window down is not a seizure

Knocking on the window of a car to get the driver to roll the window down is not a seizure. The smell of alcohol was then lawfully discovered. County of Grant v. Vogt, 2014 WI 76, 2014 Wisc. LEXIS 490 (July 18, 2014):

¶2 The case affords this court an opportunity to develop the law on “seizure” under the Fourth Amendment. The issue presented is whether, under the totality of the circumstances, a law enforcement officer “seized” the defendant, Daniel Vogt (Vogt), when he knocked on the driver’s window of Vogt’s vehicle and asked Vogt to roll down the window. When Vogt complied, the officer immediately smelled alcohol in the vehicle and noticed Vogt’s slurred speech, leading to an investigation and Vogt’s ultimate arrest. In these circumstances, did the officer “seize” Vogt before the officer had probable cause or reasonable suspicion to believe that Vogt committed an offense?

¶3 Although we acknowledge that this is a close case, we conclude that a law enforcement officer’s knock on a car window does not by itself constitute a show of authority sufficient to give rise to the belief in a reasonable person that the person is not free to leave. The objective of law enforcement is to protect and serve the community. Accordingly, an officer’s interactions with people are not automatically adversarial. A court’s “seizure” inquiry into one of these interactions must examine the totality of the circumstances, seeking to identify the line between an officer’s reasonable attempt to have a consensual conversation and a more consequential attempt to detain an individual. The facts in this case do not show a level of intimidation or exercise of authority sufficient to implicate the Fourth Amendment until after Vogt rolled down his window and exposed the grounds for a seizure. Consequently, we reverse.