State v. Joshua L. Thering, 2024 WI App 10

Joshua Thering was approached by police at approximately 4:15 a.m. after they followed him in a marked squad car into an empty parking lot in Reedsburg, Wisconsin.
The officers did not activate lights or sirens, but one officer immediately exited the squad car, approached Thering’s driver side window, and gestured for him to lower it.
Thering’s car was parked with curbs on two sides and the squad car nearby; his only exit required complicated maneuvering (a Y-turn) rather than a straightforward departure.
Thering was subsequently arrested for OWI (operating while intoxicated), and moved to suppress evidence, arguing the encounter was an unlawful seizure under the Fourth Amendment.
The circuit court denied the motion, finding no seizure, and Thering pleaded no contest and appealed the judgment of conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Thering was seized for Fourth Amendment purposes when the officer gestured for him to lower his window	Thering argues a reasonable person would not feel free to leave due to police conduct and positioning	The State argues the encounter mirrored a prior case (Vogt) and was merely consensual, not a seizure	The court held Thering was seized at the moment of the officer’s gesture, and the seizure was unconstitutional

County of Grant v. Vogt, 356 Wis. 2d 343 (2014) (case on similar facts held mere approach and gesture to lower window does not always constitute a seizure, but this was a “close case”)
United States v. Mendenhall, 446 U.S. 544 (1980) (defining when a person is “seized” for Fourth Amendment purposes)
State v. Young, 294 Wis. 2d 1 (2006) (objective “free to leave” standard for seizures)
Michigan v. Chesternut, 486 U.S. 567 (1988) (seizure is judged by the totality of the circumstances)