What Happens When a Cop Taps at Your Car Window…and You Just Drive Away?

Posted by Lawrence Taylor on July 31st, 2014

So you've had a few drinks.  You decide to pull over, and you're sitting behind the wheel of your car in an empty parking lot with the engine running.  Suddenly, in your rear-view mirror you see a police car pull in behind you with his headlights on.  You wait for the friendly face to appear in your driver's side window.  Sure enough, a uniformed cop walks up from his car and knocks on your window.  He shines a flashlight in your face and motions for you to roll the window down.

Then you pop it into gear and drive away…

Major problems, right?  Maybe not:

Wisconsin Supreme Court Upholds Driving Away from Cop at Window

Grant County, WI.  July 25 — When Wisconsin police officers knock on the window of a car and motion to roll down the window, the state Supreme Court said in a 5 to 2 ruling that the motorist is free to ignore the cop and drive away.

"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," Justice David T. Prosser wrote for the majority.

The justices argued in the context of the December 25, 2011 incident in which Grant County Deputy Sheriff Matthew Small knocked on the window of Daniel A. Vogt who was parked with the engine running in the Riverdale Park parking lot the village of Cassville at 2am. It was 37 degrees at the time. Vogt had done nothing illegal, but Deputy Small thought it was suspicious that Vogt was in the parking lot of a park that had closed at 11pm.

Deputy Small stopped behind Vogt's car with his headlights on, but his overhead red and blue lights off. He walked up to the car and saw Vogt in the driver's seat and Kimberly Russell in the passenger seat. He testified that he would have let Vogt go had he driven off because he "had nothing to stop him for."

Vogt did not drive off, because he thought he could no do so without hitting the deputy. He believed that he had no choice but to comply. Once the window was down, Deputy Small smelled alcohol and noticed Vogt's speech was slurred. This led to Vogt's arrest for driving under the influence of alcohol (DUI). The court's majority argued that the initial interaction was voluntary.

"The objective of law enforcement is to protect and serve the community," Justice Prosser wrote. "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."

Because the deputy did not have his emergency lights activated, the majority believed a reasonable innocent person in the same situation could have driven off while the officer knocked at the window. The majority refused to speculate what would have happened to Vogt had he actually driven away. The dissenting justices said the majority position was absurd.

"The world of legal decisions does not reflect the real world," Chief Justice Shirley S. Abrahamson wrote. "No reasonable person I can imagine would feel free to drive away under the circumstances of the present case when the officer knocked on the car window and instructed the person to roll down the car window. A reasonable person would be concerned that driving away could be viewed as violating some law that governs obstructing an officer, disobeying an officer, or fleeing."

Why is this state supreme court court decision so surprising to most of us?  The reason this ruling is newsworthy is that we've slowly accepted the fact that in DUI investigations, most constitutional rights have gradually been eliminated.  See The DUI Exception to the Constitution.  This decision is a somewhat startling reminder that the Constitution still exists — even in suspected drunk driving cases.