State v. David Ray Roberts

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.
November 16, 2023
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. 2022AP1228-CR Cir. Ct. No. 2017CF104

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DAVID RAY ROBERTS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Crawford County:
LYNN M. RIDER, Judge. Affirmed.

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

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1228-CR

¶1 PER CURIAM. David Roberts appeals a judgment of conviction
based on his no-contest plea to one count of possession of amphetamine with
intent to deliver. Roberts contends that the circuit court erred by denying his
motion to suppress evidence obtained when a sheriff department’s deputy patted
him down and searched his vehicle. Roberts argues that the evidence was
discovered based on a seizure that was unsupported by reasonable suspicion. For
the reasons set forth in this opinion, we conclude that the circuit court properly
denied the suppression motion. We affirm.

Background

¶2 In November 2017, Roberts was charged with possession of
methamphetamine with intent to deliver and possession of drug paraphernalia.
Roberts moved to suppress the evidence against him on grounds that it was
obtained through an illegal search and seizure. At the suppression hearing, the
arresting deputy testified as follows.

¶3 During a nighttime patrol, the deputy observed a white van driving
towards him into the Village of Gays Mills. The deputy ran the van’s license
plates and was informed by dispatch that the license plates were not registered to a
white van.

¶4 The deputy turned his squad car around so that he could follow the
van. By the time the deputy turned around, the van had turned off the road.
Within several minutes of first spotting the van, the deputy observed the van
parked on a side street with all of its lights off.

¶5 The deputy parked his squad car directly behind the van, but did not
activate his emergency lights or siren. As the deputy approached the van to make

2
No. 2022AP1228-CR

contact, he learned from dispatch that the van’s license plates were, in fact,
registered to a white van.

¶6 The deputy looked inside the van with his flashlight and saw that
there was no one in the front seat. The deputy then observed Roberts in the back
passenger seat. Roberts responded to the deputy’s flashlight but appeared
“groggy” and as if he was having difficulty opening his eyes. The deputy also
observed two women on the floor of the van in the rear middle aisle, who were
“ducked down” and lying on top of each other. In addition, the deputy observed a
machete inside the van.

¶7 The deputy asked Roberts to open the door, and Roberts slid the
door open. The deputy noted that Roberts had droopy eyelids. The deputy asked
the occupants of the van why they were hiding and what they were doing there.
One of the women responded that they were lost. The deputy also asked if any of
the occupants of the van were on probation, and Roberts responded that he was on
probation for a conviction that was related to methamphetamine.

¶8 The deputy then “had” Roberts exit the van. The deputy performed
a pat-down of Roberts, which led to the discovery of methamphetamine in
Roberts’ pocket. A subsequent search of the van led to the discovery of other
drugs and drug paraphernalia.

¶9 The circuit court ruled that Roberts’ constitutional rights were not
violated and on that basis denied the suppression motion. Roberts pled no-contest
to possession of methamphetamine with intent to deliver, and the paraphernalia
charge was dismissed and read in for sentencing purposes. The court sentenced
Roberts to three years of initial confinement and three years of extended
supervision. Roberts appeals.

3
No. 2022AP1228-CR

Discussion

¶10 On our review of a motion to suppress, we apply a mixed standard of
review. See State v. Felix, 2012 WI 36, ¶22, 339 Wis. 2d 670, 811 N.W.2d 775.
We uphold the circuit court’s findings of fact unless they are clearly erroneous.
Id. We independently determine whether and when a seizure occurred under the
Fourth Amendment. State v. Young, 2006 WI 98, ¶17, 294 Wis. 2d 1, 717
N.W.2d 729. We also independently determine whether the facts meet
constitutional standards. 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. Id., ¶18. “An investigatory stop is
constitutional if the police have reasonable suspicion that a crime has been
committed, is being committed, or is about to be committed.” Id., ¶20. Evidence
that was obtained through an unconstitutional search or seizure is generally
suppressed under the exclusionary rule, to deter Fourth Amendment violations.
State v. Dearborn, 2010 WI 84, ¶35, 327 Wis. 2d 252, 786 N.W. 2d 97.

¶12 “[A] person has been seized within the meaning of the Fourth
Amendment only if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed that [the person] was not free to leave.”
County of Grant v. Vogt, 2014 WI 76, ¶20, 356 Wis. 2d 343, 850 N.W.2d 253
(internal quotation marks and citation omitted). If 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).
The test of whether a seizure has occurred is objective and “considers whether an

4
No. 2022AP1228-CR

innocent reasonable person, rather than the specific defendant, would feel free to
leave under the circumstances.” Vogt, 356 Wis. 2d 343, ¶¶25, 30.

¶13 A seizure may occur “by means of physical force or show of
authority.” Id., ¶20 (citation omitted). For a seizure to occur without physical
force, “an officer must make a show of authority, and the citizen must actually
yield to that show of authority.” State 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 [the person] was not free to leave.” Id.

¶14 Roberts argues that he was seized under the Fourth Amendment
when the deputy “ordered” him to open the van door and speak with him after
shining his flashlight into the vehicle. Roberts argues that the deputy’s conduct
was a display of authority such that a reasonable person would not have felt free to
ignore the deputy. Alternatively, Roberts argues that he was seized when the
deputy questioned him as to why he was hiding, why he was there, and whether he
was on probation. Roberts then asserts that, even if a seizure had not yet occurred
at that point, Roberts was clearly seized once he was ordered out of the van and
patted down for weapons.

¶15 Roberts argues that this case is distinguishable from Vogt. There,
our supreme court held that Vogt was not seized when a police officer knocked on
Vogt’s car window and motioned for him to roll the window down, and Vogt
complied. Vogt, 356 Wis. 2d 343, ¶¶2-3. The Vogt court concluded that “a law
enforcement officer’s knock on a car window does not by itself constitute a show

5
No. 2022AP1228-CR

of authority sufficient to give rise to the belief in a reasonable person that the
person is not free to leave.” Id., ¶3. Here, Roberts argues, the facts are
“significantly more intimidating.” He contends that the deputy “actually
order[ed]” him to open the door and then “immediately began interrogating” him
as to why he was “hiding,” why he was there (where he was legally parked), and
whether he was on probation. Roberts contends that a reasonable person would
not have felt free to ignore the deputy or terminate the encounter.

¶16 Roberts also contends that the deputy lacked reasonable suspicion at
any point until he discovered methamphetamine in Roberts’ pocket, after he had
ordered Roberts out of the van and patted him down for weapons. He contends
that the only facts that could have supported reasonable suspicion prior to that
point were the following: (1) the encounter took place during nighttime hours;
(2) the van had parked and turned its lights off before the deputy had time to turn
around, search, and then find it; and (3) there were three occupants in the van, one
asleep in a rear seat and two lying on top of each other on the floor. He argues
that those facts, taken together, do not amount to reasonable suspicion that
criminal activity was afoot. See State v. VanBeek, 2021 WI 51, ¶28, 397 Wis. 2d
311, 960 N.W.2d 32. In support, Roberts cites cases in which we have found that
a traffic stop late at night, in connection with an area associated with drug activity,
plus a nervous suspect, did not support reasonable suspicion to extend the stop for
a drug investigation. See State v. Gammon, 2001 WI App 36, 241 Wis. 2d 296,
625 N.W.2d 623; State v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App.
1999). Roberts also argues that the fact that he was on probation for a drug
offense, alone, did not provide reasonable suspicion. See State v. House, 2013 WI
App 11, ¶10 n.2, 350 Wis. 2d 478, 837 N.W.2d 645.

6
No. 2022AP1228-CR

¶17 We now apply the pertinent legal standards to the undisputed facts at
the suppression hearing.1 Based on that analysis we conclude that Roberts was not
seized under the Fourth Amendment until the deputy “had” him step out of the
van. Prior to that point, the deputy did not make a display of authority that would
have caused a reasonable person in Roberts’ position to believe that he was not
free to leave.

¶18 The facts regarding the deputy’s initial contact with Roberts are
sufficiently analogous to Vogt that Vogt defeats Roberts’ argument that he was
seized when the deputy first made contact with him. As in Vogt, the deputy in this
case pulled behind Roberts’ van after it was already parked, leaving Roberts ample
room to drive away. See Vogt, 356 Wis. 2d 343, ¶41 (“Although [the deputy]
parked directly behind Vogt and allegedly there were obstacles on three sides of
Vogt’s vehicle, these facts do not demonstrate that Vogt was seized because he
still could have driven away.”). Additionally, as in Vogt, there was no evidence
that the deputy “ordered” Roberts to open the van door and to speak with him. See
id., ¶43 & n.18 (concluding that the deputy did not “command” Vogt to roll down
his window by knocking on the window and motioning for Vogt to roll the
window down; “[t]hus, Vogt’s arguments that he was seized due to a ‘command’
from [the deputy were] unavailing”). Here, the deputy shined his flashlight into
the van and “asked” Roberts to open the van door. As in Vogt, at that point, there
was no show of authority by the deputy that would have signaled to a reasonable

1
The circuit court did not make extensive factual findings. “However, if a circuit court
fails to make a finding 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.” State v.
Martwick, 2000 WI 5, ¶31, 231 Wis. 2d 801, 604 N.W.2d 552. Here, the record reveals the
specific facts that we now discuss in the text, which support the circuit court’s decision to deny
the suppression motion.

7
No. 2022AP1228-CR

person that the person was not free to decline that request. See id., ¶53 (“Although
it may have been Vogt’s social instinct to open his window in response to [the
deputy’s] knock, a reasonable person in Vogt’s situation would have felt free to
leave.”).

¶19 We also conclude that Roberts was not seized after he slid open the
van door and the deputy asked him why he was hiding, what he was doing there,
and whether he was on probation. “Questioning by law enforcement officers does
not alone effectuate a seizure.” State v. Williams, 2002 WI 94, ¶22, 255 Wis. 2d
1, 646 N.W.2d 834. Rather, “a person has the choice to refuse an officer’s attempt
to converse … or respond by talking to the officer …. Only when the officer
forecloses the choice by the way in which [the officer] exercises [the officer’s]
authority” does the interaction amount to a seizure under the Fourth Amendment.
Vogt, 356 Wis. 2d 343, ¶52. Here, the facts do not support a conclusion that the
deputy’s questions foreclosed Roberts’ choice to refuse the deputy’s attempt to
converse.

¶20 We conclude, however, that Roberts was seized when the deputy
“had” Roberts exit the van. We understand the deputy’s testimony that he “had”
Roberts exit the van as indicating that he in some manner commanded or directed
Roberts to do so. At that point—after Roberts acquiesced to the deputy’s request
to open the van door and answered the deputy’s questions as to why he was
hiding, what he was doing there, and whether he was on probation—a reasonable
person in his position would not have felt free to disregard the deputy’s order to
exit the van.

¶21 We turn, then, to whether the seizure was supported by reasonable
suspicion. We conclude that it was.

8
No. 2022AP1228-CR

¶22 “Reasonable suspicion requires that a police officer possess specific
and articulable facts that warrant a reasonable belief that criminal activity is
afoot.” Young, 294 Wis. 2d 1, ¶21. Here, the specific facts known to the officer
included the following. The van was travelling during nighttime hours when,
upon seeing a marked squad car turn around to follow in its direction, the van
immediately turned off onto a side street, parked, and turned off its lights. Within
a few minutes, all of the occupants were in the backseat of the van. Roberts
appeared unconscious and the other two occupants were “ducked down” on the
floor. The occupants told the officer they were “lost,” but that statement could
have been reasonably construed as inconsistent with the events and the unusual
behavior that the deputy had observed. Roberts’ visual appearance suggested that
he may have been intoxicated—he appeared to have difficulty keeping his eyes
open and had droopy eyelids—and Roberts was on probation for a drug-related
offense. All of those facts, together, established a reasonable suspicion that
Roberts had committed a crime by operating a vehicle after consuming a
controlled substance.

¶23 We also conclude that the deputy had reasonable suspicion to
perform a pat-down of Roberts.2 “During an investigatory stop, an officer is
authorized to conduct” a pat-down “to determine whether the person is armed if
the officer is ‘able to point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that intrusion.’”

2
Roberts does not develop a separate argument that the deputy did not have reasonable
suspicion to support the pat-down. Rather, he argues only that the officer lacked reasonable
suspicion for a seizure until after the pat-down. However, the State argues that both the seizure
and the pat-down were constitutional. For the sake of completeness, we address the
constitutionality of the pat-down.

9
No. 2022AP1228-CR

State v. Johnson, 2007 WI 32, ¶21, 299 Wis. 2d 675, 729 N.W.2d 182 (citation
omitted). On our review of whether the pat-down was constitutional, we
determine “[w]hether a reasonably prudent [officer] in the circumstances would be
warranted in the belief that [the officer’s] safety or that of others was in danger.”
Id. (citation omitted). We “decide on a case-by-case basis, evaluating the totality
of the circumstances, whether an officer had reasonable suspicion to effectuate a
protective search for weapons in a particular case.” Id., ¶22 (citation omitted).

¶24 Our supreme court has recognized that drug-related offenses are
“known by law enforcement to be associated with weapons possession.” Id., ¶29.
In addition to the deputy’s knowledge that Roberts was on probation for a drug-
related offense, the deputy had observed the van apparently attempting to avoid a
marked squad car while driving during nighttime hours, and had observed all three
occupants of the van engage in apparently evasive behavior. The deputy also
noted signs that Roberts was impaired, and observed a machete in the van.
Additionally, the deputy was alone on the scene, and there were three occupants in
the van. Those facts, taken together, justified the pat-down for officer safety
because, under the totality of the circumstances, the officer had reasonable
suspicion to believe that Roberts may have been dangerous and that he had access
to a weapon. See id., ¶¶31, 35. We affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

10