author: ROGGENSACK, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Michael A. Sveum, Defendant-Appellant.

    Court of Appeals

      No. 01-0230.

      Submitted on briefs August 7, 2001.

    Decided April 18, 2002.

    2002 WI App 105
    (Also reported in 648 N.W.2d 496.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael A. Sveum, pro se, and on the supplemental brief of Ian A.J. Pitz of Michael Best & Friedrich LLP of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David J. Becker, assistant attorney general.
    Before Dykman, Roggensack and Deininger, JJ.

       Petition to review denied 7-26-02.

   ROGGENSACK, J.

¶ 1. Michael Sveum was convicted of stalking, contrary to Wis. Stat. § 940.32(2m) (1995-96); harassment, contrary to Wis. Stat. § 947.013(lr); violating a harassment injunction issued under Wis. Stat. § 813.125(4); and criminal damage to property, contrary to Wis. Stat. § 943.01(1). Each count included a repeater allegation. Sveum appeals the denial of a postconviction motion in which he argued that two of his convictions violate the double jeopardy clause because violating a harassment injunction is a lesser-included offense of harassment. After reviewing the record, we requested briefing on whether violating a harassment injunction is a criminal offense that is properly subject to the general repeater statute. Because we conclude that violating a harassment injunction is a crime and that it is not a lesser-included offense of § 947.013(lr), we affirm the circuit court's order denying Sveum's motion for postconviction relief.

BACKGROUND

¶ 2. Sveum was charged and tried on a multiple-count information for actions he took against J.J., his former girlfriend, after the entry of an injunction that prohibited him from contacting her. The jury found him guilty on all four counts, including the two counts relevant here: (1) harassment, contrary to Wis. Stat. § 947.013(lr), and (2) violating a harassment injunction issued pursuant to Wis. Stat. § 813.125(4). The circuit court sentenced Sveum, as a repeater, to three-year consecutive prison terms on each of these convictions.

¶ 3. Sveum has filed multiple appeals and post-conviction motions. In the motion that is the subject of this appeal, he contends that violating a harassment injunction is a lesser-included offense of harassment and that his conviction and sentencing for each of these offenses constitutes double jeopardy. Accordingly, he asserts that his conviction for violation of the injunction issued under Wis. Stat. § 813.125(4) should be vacated and that he should be re-sentenced on the remaining counts. The State contends that Sveum's convictions do not violate the constitutional proscriptions against double jeopardy because each offense requires proof of an element that the other does not.

¶ 4. Upon reviewing the record and issues raised by this appeal, we requested briefing to address whether violating a harassment injunction is a criminal offense subject to the repeater statute, Wis. Stat. § 939.62. Sveum contends the violation of an injunction issued pursuant to Wis. Stat. § 813.125(4) is not a criminal offense, and the State takes the opposite view.

DISCUSSION

Standard of Review.

¶ 5. Whether the legislature intended violating a harassment injunction to be a criminal offense is a question of statutory interpretation that we decide de novo. State v. Campbell, 2002 WI App 20, ¶ 4, 250 Wis. 2d 238, 642 N.W.2d 230.

¶ 6. Multiple punishments for the same offense violate the double jeopardy protections of the Wisconsin and United States Constitutions. State v. Sauceda, 168 Wis. 2d 486, 492, 485 N.W.2d 1, 3 (1992). Whether an individual's right to be free from double jeopardy has been violated is also a question of law that we decide without deference to the decision of the circuit court. State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329, 332 (1998).

Wis. Stat. § 813.125(4).

¶ 7. We raised the issue of whether a violation of an injunction issued under Wis. Stat. § 813.125(4) constitutes a criminal offense for two reasons. First, Sveum was sentenced as a repeater for his violation of the § 813.125(4) injunction. A defendant with the requisite criminal history may be sentenced as a repeater only if his or her "present conviction is for any crime for which imprisonment may be imposed." Wis. Stat. § 939.62(1) (emphasis added). Accordingly, if violating a harassment injunction were not a crime, Sveum's sentence as a repeater would be improper. Second, the proper characterization of his conviction may affect the double jeopardy analysis. Double jeopardy protections apply only to multiple convictions or penalties that are at least "essentially criminal" in nature. See generally State v. Thierfelder, 174 Wis. 2d 213, 225-27, 495 N.W.2d 669, 675-76 (1993) (discussing double jeopardy in context of case involving successive prosecutions).

¶ 8. The legislature has defined "crime" to mean "conduct which is prohibited by state law and punishable by fine or imprisonment or both." Wis. Stat. § 939.12. Conduct punishable only by a forfeiture is not a crime. Id. Wisconsin Stat. § 813.125(7) specifies the following penalty for violating a harassment injunction:

Penalty. Whoever violates a temporary restraining order or injunction issued under this section shall be fined not more than $1,000 or imprisoned not more than 90 days or both.

The penalty of § 813.125(7), in combination with the definition of a crime in § 939.12, would appear to make the violation of a harassment injunction a crime. However, in State v. West, 181 Wis. 2d 792, 512 N.W.2d 207 (Ct. App. 1993), we opined that " 'crime' is defined in sec. 939.12, Stats., only for purposes of chs. 939 to 948 and 951." Id. at 796, 512 N.W.2d at 208 (emphasis added). The quoted language in West was focusing on what definition was required when the term, "crime," was used in a statute outside of chs. 939 to 948 and 951. We concluded that it is permissible to use a broader definition of "crime" if the statute using that term occurs other than in chs. 939 to 948 and 951. We did not decide whether conduct that is proscribed by statutes other than those found in chs. 939 to 948 and 951 could be criminal. However, that is the question with which we are presented here, and it was also the question addressed in State v. Mando Enters., Inc., 56 Wis. 2d 801, 203 N.W.2d 64 (1973).

¶ 9. In Mando, the supreme court applied Wis. Stat. § 939.12 to determine whether conduct proscribed by Wis. Stat. §§ 66.054(8a)(c) and (f) and 176.05(23)(c) (1967) was criminal conduct. In its examination, the court focused on the penalties the legislature had chosen for violating those statutes and relied on the explanation in § 939.12 that a crime is conduct which is prohibited by state law and punishable by fine or imprisonment or both. Mando, 56 Wis. 2d at 804 & n.4, 203 N.W.2d at 65 & n.4. The supreme court reasoned that applying the definition of a crime found in § 939.12 is appropriate because Wis. Stat. § 939.20 specifically instructs that there are "crimes defined in other chapters of the statutes" as well as those defined in the criminal code. Mando, 56 Wis. 2d at 804 n.4, 203 N.W.2d at 65 n.4.

¶ 10. We conclude that Mando is dispositive of the decision we must make here because it examined conduct proscribed by a statute and decided whether that conduct was criminal based on the penalty the legislature chose to assign for the statutory violation. Id. at 807, 203 N.W.2d at 67. Here, state law prohibits violating a court-issued harassment injunction, and the prohibited conduct is punishable by a fine of not more than $1,000, or imprisonment for not more than ninety days, or both. The fact that this conduct is proscribed by a statute falling outside of chs. 939 to 951 does not preclude our use of the definition of a crime set out in Wis. Stat. § 939.12, because Wis. Stat. § 939.20 informs our decision, just as it did that of the supreme court in Mando.

¶ 11. Additionally, our research shows that both the supreme court and the court of appeals have, without expressly deciding the issue, previously characterized the violation of an injunction issued pursuant to Wis. Stat. § 813.125(4) as a criminal offense. See Bachowski v. Salamone, 139 Wis. 2d 397, 414, 407 N.W.2d 533, 540 (1987) ("The violation of an injunction issued under sec. 813.125, Stats., is a criminal offense. Substantial fines and imprisonment could result. Section 813.125(7)."); State v. Bouzek, 168 Wis. 2d 642, 643-44, 484 N.W.2d 362, 363 (Ct. App. 1992) (holding that a defendant in a criminal prosecution for violating a § 813.125 injunction may not collaterally attack the underlying injunction; characterizing the violation as a misdemeanor and affirming defendant's conviction). In addition, we note that our decision on Sveum's direct appeal largely presumed that Sveum's conviction for violating the injunction issued under § 813.125(4) was a criminal conviction. See State v. Sveum, 220 Wis. 2d 396, 584 N.W.2d 137 (Ct. App. 1998).

¶ 12. The principal counterweight to the conclusion suggested by Mando, Bachowski, Bouzek and a straightforward application of Wis. Stat. § 939.12 is our decision in State v. Carpenter, 179 Wis. 2d 838, 508 N.W.2d 69 (Ct. App. 1993). In Carpenter, we addressed the issue of whether a defendant convicted of contempt of court in a nonsummary proceeding could be sentenced as a repeater. We held that although ch. 785 of the statutes provides that contempt of court may be punished by a fine and/or imprisonment, contempt of court is not a crime under Wisconsin law. Carpenter, 179 Wis. 2d at 841-43, 508 N.W.2d at 71.

¶ 13. Sveum argues that the violation of an injunction issued pursuant to ■ Wis. Stat. § 813.125(4) should be treated as a species of contempt and that, under Carpenter, such violations are not crimes. While Sveum's argument is not unreasonable, we conclude that the legislature intended such violations to be punished as crimes and that Carpenter can be distinguished from this case.

¶ 14. First, we note that our rationale in Carpenter for looking beyond the statutory definition of "crime" does not readily apply to the offense of violating a harassment injunction. In Carpenter, we relied on prior case law holding that "[c]ontempt proceedings are sui generis and are neither civil actions nor criminal prosecutions within the ordinary meaning of those terms." Carpenter, 179 Wis. 2d at 842, 508 N.W.2d at 71 (quoting McGee v. Racine County Circuit Court, 150 Wis. 2d 178, 184, 441 N.W.2d 308, 310 (Ct. App. 1989)). The reasoning in Carpenter is bottomed on the inextricable link between the contempt power and the broad, inherent authority of the courts to control their domain. In contrast, Wis. Stat. § 813.125 addresses specific concerns about preventing and punishing interpersonal violence, threats and intimidation, which are subjects typical of the societal concerns that the legislature addresses in criminal statutes.

¶ 15. Second, although the legislature could have provided that violations of harassment injunctions should be treated as contempt of court and prosecuted under the general contempt statutes, the legislature instead enacted a penalty provision that is specific to violations of injunctions issued under Wis. Stat. § 813.125. The legislative history of 1983 Wis. Act 336, which created § 813.125, shows that the legislature considered but rejected the idea of punishing violations of harassment injunctions as civil forfeitures. That the legislature was particularly attuned to the punishment scheme for § 813.125 and ultimately settled on a fine and potential imprisonment suggests that the legislature created § 813.125(7) with the intent to classify the violation of an injunction issued under § 813.125(4) as a crime.

¶ 16. Third, the fact that both contempt of court and the violation of a harassment injunction may involve the violation of a court-issued order is not dispositive. In criminal bond proceedings, courts will similarly issue an order that sets particular conditions on a defendant's release. A defendant who violates court-ordered bond conditions commits a crime. See Wis.- Stat. § 946.49. There are, of course, significant differences between criminal bond proceedings and the often informal civil proceedings that result in harassment injunctions, and these differences may raise some policy or even constitutional concerns. However, the legislature has made its choice to define the violation of a harassment injunction as a crime, and the constitutionality of Wis. Stat. § 813.125 is not at issue on this appeal.

¶ 17. In summary, we conclude that the legislature intended violations of harassment injunctions to he prosecuted as crimes. Because Sveum's conviction for violating an injunction issued under Wis. Stat. § 813.125(4) is a criminal conviction, we further conclude that the circuit court properly sentenced him as a repeater. We now turn to the double jeopardy issue.

Double Jeopardy.

1. Overview.

¶ 18. The double jeopardy provisions of the United States Constitution and the Wisconsin Constitution mutually prohibit a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969) overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989); Sauceda, 168 Wis. 2d at 492, 485 N.W.2d at 3. Where, as in this case, the issue alleged is multiple punishments for the same or overlapping criminal conduct arising from a single prosecution, double jeopardy is implicated "only to the extent of preventing a court from imposing a greater penalty than the legislature intended." State v. Derango, 2000 WI 89, ¶ 28, 236 Wis. 2d 721, 613 N.W.2d 833.

¶ 19. Wisconsin courts use a two-part test to determine whether multiple punishments arising from a single prosecution constitute double jeopardy. First, we determine whether the offenses at issue are identical in law and in fact. State v. Lechner, 217 Wis. 2d 392, 403, 576 N.W.2d 912, 918 (1998). Where the conduct underlying each offense is the same or overlapping, the determinative inquiry "is whether the criminal statutes define one offense as a lesser-included offense of the other." Id. at 404, 576 N.W.2d at 919. This part of the analysis is controlled by Blockburger v. United States, 284 U.S. 299, 304 (1932), which requires the court to determine whether "each offense necessarily requires proof of an element the other does not." State v. Kurzawa, 180 Wis. 2d 502, 524, 509 N.W.2d 712, 721 (1994). The analysis of the statutes involved is purely legal, and the facts regarding a given defendant's criminal activity are not relevant to the analysis. State v. Carrington, 134 Wis. 2d 260, 265, 397 N.W.2d 484, 486 (1986); State v. Dauer, 174 Wis. 2d 418, 428, 497 N.W.2d 766, 769 (Ct. App. 1993).

¶ 20. If one offense is not a lesser-included offense of the other, the second part of the test requires the court to determine whether the legislature intended that multiple punishments could be imposed. Lechner, 217 Wis. 2d at 403, 576 N.W.2d at 918. At this stage of the inquiry, there is a presumption that the legislature intended to permit cumulative punishments. Derango, 2000 WI 89 at ¶ 30; see also Wis. Stat. § 939.65. This presumption can be overcome only by a showing of clear legislative intent to the contrary. Derango, 2000 WI 89 at ¶¶ 29-30, 34. Legislative intent may be derived from the language of the statutes and the legislative history, as well as from an analysis of the nature of the proscribed conduct and of the appropriateness of multiple punishments. Sauceda, 168 Wis. 2d at 497, 485 N.W.2d at 5.

2. Blockburger analysis.

¶ 21. Under the Blockburger "elements only" test, the violation of a harassment injunction is a lesser-included offense of harassment only if each element of the former is also an element of the latter. See Sauceda, 168 Wis. 2d at 494-95, 485 N.W.2d at 4-5. The elements of an offense are derived as a matter of statutory interpretation.

¶ 22. Wisconsin Stat. § 947.013 creates the offense of harassment and, in relevant part, provides:

(lm) Whoever, with intent to harass or intimidate another person, does any of the following is subject to a Class B forfeiture:
(a) Strikes, shoves, kicks or otherwise subjects the person to physical contact or attempts or threatens to do the same.
(b) Engages in a course of conduct or repeatedly commits acts which harass or intimidate the person and which serve no legitimate purpose.
(lr) Whoever violates sub. (lm) under all of the following circumstances is guilty of a Class A misdemeanor:
(a) The act is accompanied by a credible threat that places the victim in reasonable fear of death or great bodily harm.
(b) The act occurs while the actor is subject to an order or injunction under s. 813.12, 813.122 or 813.125 that prohibits or limits his or her contact with the victim.

¶ 23. Sveum and the State agree that a straightforward reading of the statutes reveals that harassment under Wis. Stat. § 947.013(lr) includes at least one element that violation of a harassment injunction issued under Wis. Stat. § 813.125(4) does not. Namely, ,to prove harassment as a Class A misdemeanor, the prosecution must show that the defendant's conduct was "accompanied by a credible threat that places the victim in reasonable fear of death or great bodily harm." Section 947.013(lr)(a). Because this element is not an element of violating a harassment injunction, our focus shifts to the elements of the violation of an injunction issued under § 813.125(4), the alleged lesser-included offense.

¶ 24. Before the violation of a harassment injunction may be found, the State must prove at least that: (1) an injunction was issued against the defendant under Wis. Stat. § 813.125; and (2) the defendant committed an act that violated the terms of the injunction. It is probable that the State must also prove that the defendant knew an injunction had been issued and knew that his conduct violated the terms of the injunction. See State v. O'Dell, 193 Wis. 2d 333, 340-45, 532 N.W.2d 741, 744-46 (1995); Wis JI — Criminal 2040 (2001); see also State v. Collova, 79 Wis. 2d 473, 486-87, 255 N.W.2d 581, 588 (1977) (concluding that a mental element not expressly shown from the face of a statute may nevertheless be an element of the crime necessary to a conviction).

¶ 25. The State argues that proof that the defendant committed an act that violated the terms of the injunction, the second element of violating a harassment injunction, is not an element of harassment under Wis. Stat. § 947.013(lr). We agree. To prove harassment under § 947.013(lr), the prosecution must show that the defendant was "subject to an order or injunction" at the time that he harassed his victim but not that he actually violated its terms. We conclude that the legislature's use of the phrase "subject to," as opposed to "in violation of," directs that whether the defendant's conduct actually violated the terms of the court's order is not relevant in a prosecution under § 947.013(lr).

¶ 26. Sveum contends that the phrase "subject to" is equivalent to the phrase "in violation of' because, under his interpretation of Wis. Stat. §§ 813.125 and 947.013, it is "impossible" for a person to commit the crime of harassment while being subject to a harassment injunction without simultaneously violating the harassment injunction. Sveum's argument relies on the assumption that an injunction issued under § 813.125 may prohibit only conduct that would otherwise constitute "harassment" as defined in § 947.013(lm). In other words, Sveum assumes that the only conduct that may be prohibited under § 813.125 is conduct that is already prohibited by § 947.0l3(lm).

¶ 27. We conclude that Sveum's assumption about the permissible scope of harassment injunctions is mistaken. It is true that prior to issuing a temporary restraining order or injunction under Wis. Stat. § 813.125, the court must find that there are "reasonable grounds to believe that the respondent has violated s. 947.013." It is also true that injunctions issued under § 813.125 "must be specific as to the acts and conduct which are enjoined." Bachowski, 139 Wis. 2d at 414,407 N.W.2d at 540. However, we have; held that a circuit court, in an effort to avoid harassment of the petitioner, may prohibit the respondent from engaging in otherwise lawful conduct that, in the past, has escalated into or provided an opportunity for actual harassment. See W.W.W. v. M.C.S., 185 Wis. 2d 468, 496-98, 518 N.W.2d 285, 294-95 (Ct. App. 1994) (holding that an injunction prohibiting respondent from contacting two minors and from frequenting streets around the minors' residence and school was a "sustainable exercise of discretion under § 813.125"). Accordingly, courts are permitted to enjoin conduct under § 813.125 that, standing on its own, would not constitute harassment in violation of Wis. Stat. § 947.013(lm).

¶ 28. Accordingly, because the crime of violating an injunction issued under Wis. Stat. § 813.125(4) and the crime of violating Wis. Stat. § 947.013(lr) each require proof of an element that the other does not, we conclude that violating a harassment injunction is not a lesser-included offense of harassment under § 947.013(lr). The two offenses are not identical in law.

3. Legislative intent.

¶ 29. Sveum concedes that the statutory language in this case fails to indicate the legislature's intent regarding multiple punishments for the crimes of violating a harassment injunction and harassment when the violations of the statutes arise from the same or overlapping criminal conduct. This concession is significant given our analysis under Blockburger. As indicated above, if an offense is not a lesser-included offense, a presumption arises that the legislature intended to permit cumulative punishments. Sveum can overcome the presumption only by showing a clear indication of legislative intent to the contrary. See Derango, 2000 WI 89 at ¶ 34.

¶ 30. Sveum's arguments regarding legislative intent assume that violating a harassment injunction is a lesser-included offense of harassment. We have reached the opposite conclusion. Accordingly, his arguments based on Wis. Stat. § 939.66(1); Whalen v. United States, 445 U.S. 684 (1980); and State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983), are largely irrelevant. Sveum's cited authorities concern circumstances where the offenses at issue are identical in law.

¶ 31. Sveum presents neither an alternative analysis of the statutory language, nor an alternative argument based on legislative history, the nature of the proscribed conduct or the appropriateness of multiple punishment. See State v. Kuntz, 160 Wis. 2d 722, 756-57, 467 N.W.2d 531, 545 (1991) (listing factors relevant to analysis of legislative intent). In addition, our own research discloses no indication that the legislature intended to prohibit multiple punishments. Rather, this appears to be a case where the legislature chose to use its powers "to attack a discrete social problem by writing multiple statutes with subtle elemental differences in order to capture and criminalize the widest possible variety of conduct." Derango, 2000 WI 89 at ¶ 36. Accordingly, we conclude that Sveum's convictions for violating a Wis. Stat. § 813.125(4) injunction and Wis. Stat. § 947.013(lr) do not violate his right to be free from multiple punishments for the same offense.

CONCLUSION

¶ 32. Because we conclude that violating a harassment injunction is a crime and that it is not a lesser-included offense of Wis. Stat. § 947.013(lr), we affirm the circuit court's order denying Sveum's motion for postconviction relief.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted.

       Sveum was convicted of felony bail jumping, contrary to Wis. Stat. § 946.49(1)(b), on July 29, 1991.

       Under the injunction, Sveum was enjoined and restrained from "contacting [J. J.] personally or by telephone at her home or her work, sending letters or cards directly or indirectly; [and Sveum] shall not contact [J.J.'s] sister, [L.J.], or her parents." The injunction was entered on October 25, 1995 and was effective until October 25, 1996.

       Although Sveum filed his postconviction motion and his appeal pro se, Sveum received court-appointed representation for this additional stage of briefing.

       This statute has remained unchanged since 1955.

       WISCONSIN Stat. § 939.20 (1995-96), as does the current statute, provides:
      Sections 939.22 to 939.25 apply only to crimes defined in chs. 939 to 951. Other sections in ch. 939 apply to crimes defined in other chapters of the statutes as well as to those defined in chs. 939 to 951.

        Bachowski v. Salamone, 139 Wis. 2d 397, 407 N.W.2d 533 (1987), involved a direct appeal from the issuance of an injunction and did not concern any alleged violation of the injunction. The supreme court upheld the constitutionality of Wis. Stat. § 813.125, but'concluded that the statute was improperly applied to Salamone because the proof offered in support of the injunction was insufficient and because the injunction was not sufficiently specific as to the acts and conduct enjoined. Bachowski, 139 Wis. 2d at 413-15, 407 N.W.2d at 540.

       1983 Wis. Act 336 also created Wis. Stat. § 947.013, the statutory section that defines, prohibits and establishes a punishment for harassment. As originally proposed in 1983 Assembly Bill 353, harassment was to be punished as a Class B misdemeanor. However, the legislature modified the punishment to a civil forfeiture. In 1991, the legislature revisited the punishment scheme for § 947.013 and decided to impose criminal sanctions for violations of § 947.013 in some circumstances, including those defined in § 947.013(1r). See 1991 Wis. Act 194.

       As indicated above, the supreme court has reviewed and upheld the constitutionality of certain procedures set forth in Wis. Stat. § 813.125. Bachowski, 139 Wis. 2d at 405-06, 407 N.W.2d at 536-37. The supreme court also held in Bachowski that § 813.125 is facially neither vague nor overbroad in the conduct the statute seeks to proscribe. Id. at 406-12, 407 N.W.2d at 537-39.

       As the Wisconsin Supreme Court has explained:
      [Wlhere the factual circumstances underlying the offenses are the same or identical, the determinative inquiry is whether the offenses are lesser-included offenses of each other — whether each offense requires proof of an additional element that the other does not.... [Wlhere a course of conduct is alleged to have constituted multiple violations of the same statutory provision, the determinative inquiry is whether each offense requires proof of an additional fact that the other offenses do not.

        State v. Sauceda, 168 Wis. 2d 486, 493 n.8, 485 N.W.2d 1, 4 n.8 (1992); see also State v. Lechner, 217 Wis. 2d 392, 404-05, 576 N.W.2d 912, 918-19 (1998).
      In this case, the State has not disputed Sveum's assertion that the same conduct underlies both his conviction for harassment and his conviction for violating the harassment injunction. Our review of the record indicates that the conduct relevant to each of the two counts certainly overlapped, but it is unclear whether it was identical. For purposes of this decision, we assume that the same conduct was at issue under both counts.

       "Elements of a crime are its requisite conduct, either an act or omission, and mental fault. Elements may include particular attendant circumstances, and sometimes, a specified result of the conduct." State v. Howard, 211 Wis. 2d 269, 290, 564 N.W.2d 753, 763 (1997).

       Although we note that it is probable that the State must prove this third element, we do not conclusively decide this issue.

       Sveum was convicted of a violation of Wis. Stat. § 813.125 by a jury that was instructed on the three elements as stated in Wis JI — CRiminal 2040.

       Under Sveum's interpretation of Wis. Stat. §§813.125 and 947.013, the legislature created a graduated offense structure. The least serious offense would be harassment in violation of § 947.013(lm). The middle-level offense would be the violation of a harassment injunction, and, under Sveum's analysis, this middle-level offense alternatively (and equivalently) could be phrased as the violation of § 947.013(lm) while subject to an order that you not violate § 947.013(lm). The most serious offense would be a violation § 947.013(lr), which would be nothing more than the middle-level offense with the added "credible threat" element.
      Sveum's interpretation of Wis. Stat. §§ 813.125 and 947.013 is supported by (1) the jury instruction committee's comments to Wis JI — Criminal 2040, which state that a harassment injunction is "properly framed" if it orders the respondent not to violate § 947.013 again and that "[a] second violation of § 947.013 violates the injunction"; and (2) the jury instruction committee's comments to Wis JI — Chiminal 1912, which state that § 947.013(lr) was intended to penalize "violations of preexisting harassment orders if such violations are accompanied by a 'credible threat that places the victim in reasonable fear of death or great bodily harm.'" To the extent the committee's comments suggest that the only valid harassment injunctions are those that prohibit future harassment, we disagree with the committee's comments. To the extent that the committee's comments suggest that some harassment injunctions might be phrased in terms of prohibiting future violations of § 947.013(lm), we conclude that the comments are compatible with our analysis of the legal elements of the crimes.

        See State v. Koller, 2001 WI App 253, ¶ 30, 248 Wis. 2d 259, 635 N.W.2d 838 (reaching only question of whether offenses were identical in fact because appellant did not attempt to overcome the presumption that the legislature intended to permit multiple punishments); State v. Kanarowski, 170 Wis. 2d 504, 513, 489 N.W.2d 660, 663 (Ct. App. 1992) (declining to reach issues surrounding legislative intent not raised by the parties).


source: Caselaw Access Project

author: DIANE S. SYKES, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Lawrence A. Williams, Defendant-Respondent. State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Antwon C. Mathews, Defendant-Respondent.
    Supreme Court

      Nos. 01-0463-CR, 01-0464-CR.

      Oral argument March 7, 2002. —
    Decided July 9, 2002.

    2002 WI 94
    (Also reported in 646 N.W.2d 834.)

      For the plaintiff-appellant-petitioner the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the defendant-respondent, Lawrence A. Williams, there was a brief by Thomas E. Knothe and Collins, Quillin & Knothe, Ltd., La Crosse, and oral argument by Thomas E. Knothe.

    For the defendant-respondent, Antwon C. Mathews, there was a brief by Peter J. Thompson, Eau Claire, and oral argument by Peter J. Thompson.

   DIANE S. SYKES, J.

¶ 1. This case involves a consent search of a vehicle, and the issue is whether the driver was "seized" for purposes of the Fourth Amendment when he consented to the search.

¶ 2. Defendant Lawrence Williams was stopped for speeding on 1-94. The state trooper conducting the stop issued a warning citation and returned Williams' driver's license and other paperwork, said "[wej'll let you get on your way then," shook hands, and headed back to his squad car. After two steps, the trooper abruptly turned around and began questioning Williams about whether he had any guns, knives, drugs, or large amounts of money in the car, and asked for permission to search. Williams denied having any of the items in question, and gave consent to search. The trooper found heroin and a gun.

¶ 3. Williams and his passenger, Antwon Mathews, were charged with possession of heroin with intent to deliver and carrying a concealed weapon. The circuit court suppressed the physical evidence recovered in the search, concluding that Williams' consent was invalid because his continued detention after the traffic stop had concluded was illegal. The state appealed, and the court of appeals affirmed. We accepted review, and now reverse.

¶ 4. The question of whether a police contact is a "seizure" under the Fourth Amendment is determined by reference to an objective test. "[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." United States v. Mendenhall, 446 U.S. 544, 554 (1980). Here, the traffic stop that immediately preceded Williams' consent was over, and he had been told unequivocally that he was free to leave. The trooper's subsequent questioning did not constitute a new seizure. Accordingly, Williams’ consent to the vehicle search was not invalid as a result of an illegal seizure. The drugs and the gun should not have been suppressed.

HH

¶ 5. The facts are from the complaint, the suppression hearing, the state trooper's incident report, and a videotape of the traffic stop, the latter two items having been admitted into evidence at the suppression hearing. At approximately 2:30 a.m. on June 7, 2000, State Trooper James Fetherston was patrolling 1-94 in Eau Claire County when he observed a vehicle approaching him rapidly. Fetherston allowed the vehicle to pass, clocked it at 78.7 m.p.h., activated his emergency flashing lights, and pulled the car over for speeding.

¶ 6. Lawrence Williams was the driver and Ant-won Mathews was his front-seat passenger. Fetherston approached the driver's side window, explained that he had stopped the car for speeding, and asked Williams for his driver's license. He then asked Williams whose car he was driving. Williams replied that it was a rental car and that he did not know who the renter was. Mathews told the officer that the car had been rented by his uncle. Williams produced the rental papers and gave them to Fetherston. During this exchange, Williams appeared very nervous, was breathing very fast, and would not make eye contact with the trooper.

¶ 7. Fetherston told Williams and Mathews to "sit tight for a minute," and returned to his patrol car to call in Williams' license. He also requested back-up, saying he had "a Badger going." This particular state patrol terminology, no longer in use, refers to a law enforcement interdiction technique by which the officer attempts to obtain the driver's consent to search the vehicle.

¶ 8. The dispatcher reported that Williams' license was valid and the vehicle was not stolen, but alerted Fetherston that Williams had come up a "ten-zero" on prior offenses, which Fetherston testified meant "caution." At some point during this process, Fetherston turned off his squad's emergency lights. Eau Claire County Sheriffs Deputy Jonathan Staber arrived as backup, parking his squad behind Fetherston's and leaving his emergency lights activated. Both officers then walked towards Williams' car, Staber on the passenger side, and Fetherston on the driver's side.

¶ 9. Fetherston asked Williams to step out of the car. While standing with Williams at the rear of the car, Fetherston pointed out that the rental agreement did not allow Williams to be driving. Williams said he was unaware of that fact. Fetherston then returned Williams' driver's license and the rental papers, and indicated he was going to issue a warning for speeding. He showed Williams the warning citation and said, "This is a warning for speeding, need a signature and we'll get you on your way then." The tone throughout, on both sides, was polite and conversational.

¶ 10. During this exchange, Staber, the back-up officer, was standing next to the passenger side of Williams' car. He held a flashlight in his right hand illuminating the inside of the vehicle, and generally kept his left hand resting on the front of his belt.

¶ 11. Williams signed the warning citation. Fetherston handed it to him and asked if he had any questions. Williams stated that he did not, that he was familiar with the state patrol, and knew how everything worked. The officer replied, "Good, we'll let you get on your way then okay."

¶ 12. Williams extended his hand to the officer and said, "Okay. You have a good day." They shook hands, and Fetherston said, "Take care. We'll see you." Williams turned around and took a couple of steps towards his car. Fetherston turned toward his squad, took a step or two, then abrúptly swiveled back around and in a louder but still conversational tone said, "Hey Lawrence." Williams turned back to face Fetherston, replying, "Yes, sir?" Then, in a rapid succession of questions, Fetherston asked Williams about any contraband he and/or Mathews might be carrying:

Fetherston (Q): There's no guns in the car is there?
Williams (A): No, sir.
Q: Any knives?
A: No, sir.
Q: How about any drugs? You guys got any drugs in there?
A: No, sir.
Q: Any large amounts of money? You guys bringing, not bringing, back any big quantities of money ...
A: No.
Q: ... from ...
A: No.
Q: May I search your car just to be sure those items that 1 mentioned are not in there?
A: Yes, sir.
Q: That's fine?
A: Yes, sir.

¶ 13. Mathews, an amputee, was then asked to step out of the car. The officer assisted Mathews with his crutches, and Mathews engaged him in a friendly, detailed conversation about a prosthesis he was hoping to get and a lawsuit he was pursuing over how he lost his leg. Fetherston then searched the car and found a loaded handgun and heroin. Williams and Mathews were arrested and charged with possession of heroin with intent to deliver and carrying a concealed weapon, as party to the crime, contrary to Wis. Stat. §§ 961.41(lm)(d)3, 941.23, and 939.05 (1999-2000).

¶ 14. Williams moved to suppress the evidence obtained in the search of his vehicle. The Eau Claire County Circuit Court, the Honorable Benjamin D. Proctor, granted the motion.

f 15. The circuit court concluded that Fetherston needed new, separate, and sufficient "reasonable suspicion" to support any further investigation beyond the original traffic stop, and here, all the officer had was "mere curiosity," such that his request for permission to search was just "a shot in the dark." The court held that "[i]t is unreasonable to suspect that under those circumstances any citizen would think that he or she had a right to be uncooperative in the presence of two law enforcement officers at 2:30 in the morning and that any reasonable citizen under those circumstances would think that uncooperativeness might be just cause for further detention. It cannot be expected that every citizen he a lawyer."

¶ 16. The State appealed, and the court of appeals affirmed. State v. Williams, 2001 WI App 249, 248 Wis. 2d 361, 635 N.W.2d 869. Applying the Mendenhall test, the court concluded that Williams was "seized" within the meaning of the Fourth Amendment at the time he consented to the search. The court emphasized that its conclusion was based on the totality of the circumstances — including, in particular, the rapid succession of questions, the more abrupt and slightly louder tone, the presence and. stance of the back-up officer, the flashing emergency lights of the second squad, the location (a rural interstate highway), and the time of night (2:30 a.m.). Williams, 2001 WI App 249, ¶ 19. In this situation, the court held, a reasonable person "would not have felt free to disregard the questions and walk away." Id.

HH HH

¶ 17. This case presents a question of constitutional fact subject to a two-part standard of review. State v. Matejka, 2001 WI 5, ¶ 16, 241 Wis. 2d 52, 621 N.W.2d 891; see also State v. Griffith, 2000 WI 72, ¶ 23, 236 Wis. 2d 48, 58, 613 N.W.2d 72. The circuit court's findings of evidentiary or historical fact are upheld unless clearly erroneous. Matejka, 2001 WI 5, ¶ 16. The determination of whether Williams was "seized" for Fourth Amendment purposes is reviewed de novo. Id.

¶ 18. Warrentless searches are per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357 (1967). But there are certain "specifically established and well-delineated" exceptions to the Fourth Amendment's warrant requirement. Id. Included among these exceptions are searches conducted pursuant to voluntarily given consent. Id. at 358; State v. Phillips, 218 Wis. 2d 180, 196, 577 N.W.2d 794 (1998).

¶ 19. A "search authorized by consent is wholly valid" under the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). Consent searches are standard, accepted investigative devices used in law enforcement, and are not in any general sense constitutionally suspect. Id. at 231-32, 243.

¶ 20. The defendants contend, and the lower courts held, that the consent to search in this case was invalid because Williams was illegally "seized" when he gave it. Not all encounters with law enforcement officers are "seizures" within the meaning of the Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434 (1991); State v. Kelsey C.R., 2001 WI 54, ¶ 30, 243 Wis. 2d 422, 442, 626 N.W.2d 777. The general rule is that a seizure has occurred when an officer, "by means of physical force or show of authority, has in some way restrained the liberty of a citizen . ..." Mendenhall, 446 U.S. at 552 (quoting Terry v. Ohio, 392 U.S. 1, 19, n.16 (1968)); State v. Harris, 206 Wis. 2d 243, 253, 557 N.W.2d 245 (1996).

¶ 21. The Mendenhall test for determining whether a particular police contact constitutes a seizure for purposes of the Fourth Amendment was adopted by the United States Supreme Court in INS v. Delgado, 466 U.S. 210, 215 (1984), and Michigan v. Chesternut, 486 U.S. 567, 573 (1988), and derives from Justice Stewart's lead opinion in the Mendenhall case:

We conclude that 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. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be 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. ... In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Mendenhall, 446 U.S. at 554-55 (citations omitted); see also California v. Hodari D., 499 U.S. 621, 627-28 (1991).

¶ 22. Questioning by law enforcement officers does not alone effectuate a seizure. "[P]olice questioning, by itself, is unlikely to result in a Fourth Amendment violation." Delgado, 466 U.S. at 216. Unless the surrounding conditions "are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment." Delgado, 466 U.S. at 216; see also Griffith, 2000 WI 72, ¶ 39. "As long as the person to whom the 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 particular and objective justification." Mendenhall, 446 U.S. at 554.

¶ 23. The Mendenhall test for determining whether a seizure has occurred "is necessarily imprecise because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation." Chesternut, 486 U.S. at 573. The test is an objective one, focusing not on whether the defendant himself felt free to leave but whether a reasonable person, under all the circumstances, would have felt free to leave. Hodari D., 499 U.S. at 628; Chesternut, 486 U.S. at 574. "[T]he 'reasonable person' test presupposes an innocent person." Bostick, 501 U.S. at 438. While it is true that "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 eliminates the consensual nature of the response." Delgado, 466 U.S. at 216.

¶ 24. The Supreme Court has very recently added to its "seizure" jurisprudence in United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105 (2002). Drayton involved the issue of drug and weapons interdiction on buses. Id. at 2108. The defendants were passengers on a Greyhound bus. At a scheduled stop in Tallahasse, the bus was boarded by local police, who proceeded to question the passengers and ask for consent to search their luggage. Id. at 2109. The defendants were questioned, gave consent to searches of their luggage and persons, and were found to be carrying cocaine. Id. at 2110.

¶ 25. The Supreme Court concluded that the defendants were not "seized" for purposes of the Fourth Amendment. Id. Citing Bostick, the Court held that "[e]ven when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage — provided they do not induce cooperation by coercive means." Id. The Court noted that the officers were armed and displayed their badges, and that one of them positioned himself at the front of the bus, but that their conduct was otherwise not intimidating — no guns were drawn, no commands issued, no show of force made. Id. at 2112. Accordingly, the Court held that the circumstances did not amount to a seizure. Id.

¶ 26. It is quite clear based upon the established evidentiary facts in this case that the traffic stop had concluded before Fetherston questioned Williams about contraband in the car and asked for permission to search. Fetherston told Williams he would be free to go after he signed the warning citation; Williams did so, and the citation was handed to him. Fetherston had already returned Williams' driver's license and rental papers. Fetherston said, unequivocally, ”[w]e'll let you get on your way then okay." Fetherston and Williams shook hands and exchanged common parting pleasantries ("have a good day" and "take care, we'll see you"), and turned away from each other, at least momentarily.

¶ 27. Indeed, the circuit court made the following finding: "it is clear that, at least verbally, the trooper had given the defendant permission to be on his way." Accordingly, the court of appeals properly focused its analysis on the events at the conclusion of the initial seizure, and immediately thereafter. Like the court of appeals, we see the case as calling for a determination of whether Williams was seized after the conclusion of the original traffic stop, when he was questioned about contraband and asked for permission to search.

¶ 28. This requires, as noted above, consideration of all the circumstances and application of an objective "reasonable person" standard. We know that questioning alone does not a seizure make, and the fact that this defendant — perhaps like most people — spontaneously and voluntarily responded to the officer's questions is not enough to transform an otherwise consensual exchange into an illegal seizure. Delgado, 466 U.S. at 216; Drayton, 536 U.S. at _, 122 S.Ct. at 2112-13. We conclude that a reasonable person in these circumstances would not have considered himself compelled to stay and answer the officer's questions. Stated positively, a reasonable person would have felt free to decline to answer the officer's questions and simply "get on [his] way."

¶ 29. That the officer had just invited Williams to "get on [his] way" strongly influences our conclusion. The officer's words and actions, considered as a whole, communicated permission to leave, as the traffic stop was over. The officer did nothing, verbally or physically, to compel Williams to stay. That Williams stayed, and answered the questions, and gave consent to search, is not constitutionally suspect, and does not give rise to an inference that he must have been compelled to do so. Mendenhall specifically rejected this argument. Mendenhall, 446 U.S. at 555-56.

¶ 30. The court of appeals was persuaded that the following circumstances combined to constitute a seizure: the tone, tenor, and rapidity of Fetherston's questioning; the presence and stance of the back-up officer, whose squad lights were still flashing; the location; and the time of night. We disagree.

¶ 31. It is true that Fetherston's questions came hard on the heels of the conclusion of the traffic stop, and that he used a somewhat louder and more assertive tone. But apart from the "Hey, Lawrence," which was spoken at a higher volume, the officer essentially continued to maintain a normal speaking voice. The questions were not accusatory in nature. The exchange was largely non-confrontational; indeed, there was sympathetic small talk as Mathews was being assisted with his crutches immediately after consent to search was granted. The change in tone and tenor was not so significant in degree that the officer's questions took on the character of an official command, suggesting that compliance was required.

¶ 32. Furthermore, the presence and behavior of the back-up officer was not so intimidating as to convert this consensual exchange into a seizure. Staber stood nearby, on the passenger side of Williams' car, with a flashlight in his right hand and his left hand resting on his belt. That his left hand was therefore near his weapon is not remarkable, unless we are willing to say that the mere presence of an armed back-up officer always tips the scales toward a finding of a seizure. See Drayton, 536 U.S. at_, 122 S.Ct. at 2112 ("That most law enforcement officers are armed is a fact well known to the public. The presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon."). Mendenhall made reference to the "threatening presence of several officers," the "display of a weapon by an officer," or the "physical touching of the person of the citizen" as factors suggesting that compliance with an officer's request is required. Here, the officers did not display their weapons or physically touch Williams, nor can their presence be characterized as "threatening."

¶ 33. That the emergency lights on Staber's squad were activated does not make a significant difference. Staber's squad was parked behind Fetherston's, and Fetherston's emergency lights were off. In any event, officers conducting traffic stops often leave their emergency lights on until everyone has left the scene, presumably for reasons of safety. This factor does not suggest that Williams was required to remain after the traffic stop had concluded.

¶ 34. Finally, the location and time of night did not materially contribute to a coercive atmosphere so as to transform the officer's questioning into a seizure. True, it was 2:30 in the morning on a rural section of the interstate. But there was plenty of traffic, so the situation was not as isolating and desolate as it might otherwise seem. Besides, it is not entirely clear why police questioning on the shoulder of a rural interstate at night should be considered inherently more coercive than police questioning in other situations. The suggestion is made that fear of unscrupulous or illegal police tactics is necessarily heightened under these circumstances; we decline to elevate this subjective suggestion to objective status under the "reasonable person" test.

¶ 35. Accordingly, we conclude that the totality of the circumstances establish that a reasonable person would have felt free to decline the officer's questions and leave the scene, or otherwise terminate the encounter. Williams was free to leave when Fetherston returned his driver's license and rental paperwork, gave him the warning citation, and said "we'll let you get on your way then okay." Fetherston's subsequent questioning, considered in the context of all the circumstances and against the objective, "reasonable person" standard, did not constitute a seizure for purposes of the Fourth Amendment. Accordingly, Williams' consent to the vehicle search was not invalid, and the evidence obtained in the search should not have been suppressed. The decision of the court of appeals is reversed.

By the Court. — The decision of the court of appeals is reversed.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 36. (dissenting). I agree with the circuit court and the court of appeals in concluding that a reasonable motorist under the circumstances of the present case would not have felt free to refuse to answer the officer's questions and would not have felt free to get into his or her car and leave the scene. It makes no difference whether the seizure is conceived of as an unreasonable extension of the initial traffic stop, or alternatively, a second seizure beginning with the state trooper's line of questioning after issuing the warning citation.

¶ 37. Professor LaFave has it right: courts are engaging in nothing more than a legal fiction when they say that motorists under these circumstances have consented to the encounter and interaction. Therefore, I dissent.

¶ 38. I agree with U.S. Supreme Court Justice David Souter, who stated in United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105 (2002) (Souter, J., dissenting), that "a display of power rising to [a] threatening level may overbear a normal persons [sic] ability to act freely, even in the absence of explicit commands or the formalities of detention." Under the display of police power in the present case, what reasonable person would believe that "he stood to lose nothing if he refused to cooperate with the police, or that he had any free choice to ignore the police altogether. No reasonable [person] could have believed that, only an uncomprehending one."

¶ 39. In the present case, the officers effectively displayed both their power and their accoutrements of authority. The traffic stop occurred at 2:30 a.m. on a rural part of the interstate highway. Two patrol cars were at the scene, one with its emergency lights activated. One officer, a sheriffs deputy, stood at the ready by the passenger door. Another officer, a state trooper, presented the driver with a warning citation for speeding. The state trooper was trained as an "interdiction instructor." His goal was to obtain the driver's consent to search the vehicle.

¶ 40. After the state trooper issued the warning citation, he told Williams, probably much to Williams' relief, "We'll let you get on your way then. Take care. We'll see ya." Immediately thereafter, the state trooper asked Williams a series of questions regarding whether weapons, drugs, and large amounts of money were in the vehicle. The questioning culminated in a request to Williams for permission to search the vehicle. What reasonable motorist would feel free to walk away as the officer continues to address them? Under the circumstances of the present case, what reasonable motorist would feel free to ignore the questioning of the state trooper, get in his or her vehicle, and then leave the scene? Empirical studies show that most people believe they are validly in a police officer's custody so long as the police officer continues to interrogate them.

¶ 41. Not only was there a display of power by the police, but there also was a seamless series of events with no real break between the detention during the traffic stop and the request for consent to search the vehicle. A reasonable motorist would not have detected the transition from detention to non-detention, from the traffic stop to a series of questions that they need not answer, and from the questioning to a request for consent to search the vehicle. Reasonable motorists would have thought that they were subject to police restraint at all times.

¶ 42. Beyond the display of power and the seamless series of events, the state trooper in the present case skillfully manipulated the circumstances in order to prevent any opportunity for Williams to refuse the officer's requests. The majority opinion gives no weight to the type of law enforcement technique used in the present case.

¶ 43. The state trooper had "a Badger going." As the state trooper explained at the suppression hearing, a "Badger stop" is an interdiction stop where a law enforcement officer attempts to obtain a driver's consent to search a car for possible criminal activity. A "Badger stop" obviously takes advantage of the fact that motorists think that they are obliged to answer questions and not to leave the scene. Ordinarily, a court does not concern itself with the subjective intent of law enforcement officers when it determines whether a violation of the Fourth Amendment has occurred. The officer's subjective intent is important here, however, because the whole point of the "Badger stop" is to make a reasonable motorist think he has to respond and consent even though as a matter of law the motorist is free to go.

¶ 44. In light of the state trooper's role, I find the reasoning of the circuit court especially persuasive. The circuit court concluded that "[i]t is unreasonable to suspect that under [these] circumstances any citizen would think that he or she had a right to be uncooperative .... It cannot be expected that every citizen be a lawyer." In the words of another state supreme court, I am "concerned with the dubious message we send to law enforcement officers and the public if we validate a procedure allowing officers to falsely tell traffic offenders they are free to go, only for the purpose of eliciting their uncoerced agreement to search their automobiles."

¶ 45. Law enforcement officers are apparently being trained to use a "Badger stop" to trick motorists into giving up their rights. The state trooper in the present case who was an "interdiction instructor" videotaped the entire interdiction. Perhaps the videotape will be used to teach this technique to other law enforcement officers. Shouldn't the public be educated about their rights to refuse to answer police questions and their rights to refuse to consent to a search of their vehicles?

¶ 46. As I wrote in Jennings, and express here again, trickery on the part of law enforcement officers undermines public trust in law enforcement, the courts, and the law as an institution. In order for law enforcement and the courts to be successful in carrying out their responsibilities, they must have the cooperation, trust and confidence of the public.

¶ 47. For the reasons stated, I dissent.

¶ 48. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.

       The court has viewed the videotape.

       All future references to the Wisconsin Statutes will be to the 1999-2000 version unless otherwise stated.

       Although Mathews did not file a separate motion, his counsel participated in the suppression hearing and the circuit court's order pertained to both Williams' case and Mathews' case. Prior to the State's appeal, the parties entered into a stipulation preserving Mathews' rights for purposes of this appeal.

       The court of appeals granted the State's motion to consolidate Williams' and Mathews' appeals.

       The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ...." U.S. Const. Amend. IV Article I, Section 11 of the Wisconsin Constitution is nearly identical, and states in relevant part: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures ..." This court has generally followed the United States Supreme Court's Fourth Amendment jurisprudence when interpreting the Wisconsin Constitution's parallel provision. State v. Matejka, 2001 WI 5, ¶ 17 n.2, 241 Wis. 2d 52, 621 N.W.2d 891.

       If a person is not free to leave due to circumstances unrelated to the presence of an officer, then the proper inquiry is whether the totality of the circumstances establishes that a reasonable person "would feel free to decline the officers' requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 436 (1991) (applying the above inquiry where the individual did not feel free to leave because the bus in which he was sitting was about to depart).

         Although the defendants do not argue voluntariness here, we note that there is no Fourth Amendment requirement that consent searches be preceded by a warning that the subject has a right to refuse or is free to go in order for the consent to be recognized as voluntary. Ohio v. Robinette, 519 U.S. 33, 39-40 (1996); see also Schneckloth v. Bustamonte, 412 U.S. 218, at 232-33 (1973). This principle was just affirmed in United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 2113 (2002).

       This case does not, therefore, present a question of whether the officer impermissibly exceeded the scope of or prolonged the initial seizure in violation of the Fourth Amendment. See State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72 (noting that a reasonable seizure can become an unreasonable one if the officer's investigation extends beyond that which is related to the purpose of the stop, but holding that mere identification questions asked of a passenger do not malee a seizure unreasonable); State v. Betow, 226 Wis. 2d 90, 94, 593 N.W.2d 499 (Ct. App. 1999) (holding that "the scope of the officer's inquiry, or the line of questioning, may be broadened beyond the purpose for which the person was stopped only if additional suspicious factors come to the officer's attention ...."); State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996) (traffic stop not unreasonably prolonged by question about contraband in the car and subsequent request for consent to search).

        United States v. Mendenhall, 446 U.S. 544, 554 (1980), sets forth this reasonable person test.

         State v. Robinette, 685 N.E.2d 762 (Ohio 1997) (taking second seizure approach on remand from U.S. Supreme Court).

       4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 95-96 (3d ed. 1996).

        United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105 (2002) (Souter, J., dissenting).

         Id.

       4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 112 (3d ed. 1996).

       For cases so holding, with similar circumstances, see, for example, Padilla v. Miller, 143 F.Supp.2d 453, 468 (M.D.Pa. 1999) (informing driver of vehicle that he was free to leave did not convert the stop into a consensual encounter when officer immediately thereafter told driver he wanted to ask him more questions); United States v. Mota, 864 F.Supp. 1123, 1128 (D.Wyo. 1994) (returning papers to driver following traffic stop absent other words or gestures of closure provided no way for reasonable listener to conclude that the reason for detention was over and a consensual encounter was beginning); State v. Hadley, 932 P.2d 1194, 1197-98 (Ore. Ct. App. 1997) (traffic stop continues until the motorist has had an objectively and distinct real time opportunity to move on, meaning there must be a temporal break in the action between an officer's indication that a motorist is free to go and any unrelated inquiries); Commonwealth v. Freeman, 757 A.2d 903, 907-08 (Pa. 2000) (police officer illegally seized defendant following traffic stop after stating she was free to leave, returning to his patrol car, and then again approaching the defendant's car and asking her consent to search the car when no reasonable suspicion existed; "although these events occurred after express conferral of advice that [the defendant] was free to depart, they would have suggested to a reasonable person that such advice was no longer operative"); Commonwealth v. Sierra, 723 A.2d 644, 646-47 (Pa. 1999) (police officer's repeated questioning of the driver of stopped vehicle with same question after having returned driver's license and issued warning for speeding was investigative detention); State v. Ballard, 617 N.W.2d 837, 841 (S.D. 2000) (police officer had illegally seized defendant following traffic stop after stating that she was free to leave, then asking her consent to search the car; when she refused telling her he would detain her vehicle until a drug dog was summoned).

        See majority op. at ¶ 7.

        State v. Wallace, 2002 WI App 61, ¶ 13, 251 Wis. 2d 625, 642 N.W.2d 549; Strickler v. Commonwealth, 757 A.2d 884, 893, (Pa. 2000) (officer's subjective intentions irrelevant).

       Majority op. at ¶ 15.

        State v. Ballard, 617 N.W.2d 837, 842 (S.D. 2000).

        State v. Jennings, 2002 WI 44, 252 Wis. 2d 228, 647 N.W.2d 142 (Abrahamson, C.J., dissenting).