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OK to Drive Away When Cop Knocks on Car Window: Wis. High Court

By Brett Snider, Esq. on July 31, 2014 | Last updated on March 21, 2019

The Wisconsin Supreme Court ruled that a driver is free to ignore a cop who walks up and knocks on the window -- even free to drive away.

In a 5-2 decision, the Wisconsin High Court ruled in County of Grant v. Vogt that an intoxicated Wisconsin driver was not "seized" when the officer approached his car and knocked on his window. The court determined that although this was a close case, a motorist isn't detained when an officer knocks on the driver's window, so he or she is "free" to ignore it or even drive away.

Is the Wisconsin Supreme Court kidding? Is it really legal to drive away from a cop at your car window?

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Not a Seizure, So No Suspicion Necessary

Daniel A. Vogt was arrested for drunken driving after an officer approached his vehicle while parked in a parking lot with the car running. The officer tapped on Vogt's window and motioned for him to roll it down, and Vogt complied. With the window down, the officer noticed the scent of alcohol and Vogt's slurred speech, which led to a field sobriety test and Vogt's ultimate arrest.

What Vogt's defense attorney argued was that the officer had violated Vogt's Fourth Amendment rights by effectively seizing him without reasonable suspicion or probable cause. For comparison, officers who pull a car over for DUI need at least reasonable suspicion that an offense has occurred.

The officer testified that he didn't believe Vogt had broken any traffic laws but found it "curious" that he had chosen to park in that area so late at night. Reasonable suspicion requires more than just curiosity, so if tapping on the window was a seizure, then Vogt would have been illegally seized. But the Wisconsin Supreme Court noted that it wasn't a seizure, just a "consensual conversation" which requires no suspicion.

'Consensual Encounters' With Cops

"Consensual encounters" are a cheerful euphemism for moments where police may approach or talk to a person but that person is legally free to leave or ignore the officers. The U.S. Supreme Court has found that even when police stop a bus to search it, a bus passenger may feel free to get up and walk away from this "consensual encounter."

The Wisconsin Supreme Court is calling the officer's window tap a consensual encounter. Common sense or experience, however, may say otherwise.

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