State v. Young

¶1¶ 81. (concurring in part, dissenting in part). The majority, in affirming all three convictions of Charles Young (Young),1 concludes the following: first, the Kenosha police officer had reasonable suspicion for an investigatory stop of the parked car that the defendant, Young, was sitting in; second, when the officer ordered Young to return to the car after Young started to run away, the officer had reasonable suspicion to believe Young was committing a crime; third, Young was not seized within the meaning of the Fourth Amendment until the officer physically detained him. Majority op., ¶¶ 5, 80. Because I agree that Young was not seized within the meaning of the Fourth Amendment until the officer physically detained him, I concur with and join Part III A of the majority opinion. I also join that portion of the mandate that affirms the judgments of conviction for each of the possession and resisting counts, albeit on different grounds. Because I conclude that the police initially lacked reasonable suspicion to stop Young in the first instance, I conclude that the evidence is insufficient to support the charge of obstructing an officer. Consequently, I would reverse the decision of the court of appeals with respect to that count.

¶2¶ 82. The four elements of obstructing an officer pursuant to Wis. Stat. § 946.41(1), are as follows:

*431. The defendant obstructed an officer.

2. The officer was doing an act in an official capacity.

3. The officer was acting with lawful authority.

4. The defendant knew that (officer) was an officer acting in an official capacity and with lawful authority and that the defendant knew (his) (her) conduct would obstruct the officer.

¶3Wis JI — Criminal 1766 (2003) (footnotes omitted). See also State v. Grobstick, 200 Wis. 2d 242, 248, 546 N.W.2d 187 (Ct. App. 1996) (citing § 946.41(1)).

¶4¶ 83. There is no question that the officer was acting in an official capacity when he pulled alongside the vehicle and ordered Young to stop. For purposes of this analysis, I also accept that the term "obstructed" as used in the first element, means "hindered, delayed, impeded, frustrated or prevented an officer from performing his or her duties[.]" State v. Hamilton, 120 Wis. 2d 532, 541, 356 N.W.2d 169 (1984). See also Grobstick, 200 Wis. 2d at 249-50. At issue is whether the officer was acting with lawful authority at the time he initially ordered Young to stop, and whether Young knew that the officer was acting with lawful authority. See State v. Lossman, 118 Wis. 2d 526, 348 N.W2d 159 (1984).

¶5¶ 84. For the reasons stated in Justice Bradley's dissenting opinion,2 I conclude that the officer lacked reasonable suspicion of the parked car in which Young was sitting. An investigatory stop is constitutional if the police have a reasonable suspicion that a crime has been, is being, or is about to be committed. Majority op., ¶ 20 (citing State v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996)). "Reasonable suspicion requires that a police officer possess specific and articulable facts that *44warrant a reasonable belief that criminal activity is afoot.... A mere hunch that a person has been, is, or will be involved in criminal activity is insufficient." Majority op., ¶ 21 (citing Waldner, 206 Wis. 2d at 55; Terry v. Ohio, 392 U.S. 1, 27 (1968)).

¶6¶ 85. Simply stated, five individuals sitting in a legally parked vehicle for nine minutes at night provides no specific or articulable facts that warrant a reasonable belief that criminal activity is afoot. The officer had no complaints linking the vehicle that Young was sitting in to any criminal activity. The individuals in the vehicle had done nothing suspicious to suggest that they were involved in criminal activity, unless, of course, sitting in a vehicle is considered inherently suspicious activity. No one in the car was observed drinking what appeared to be alcohol. No one in the car appeared to be engaged in drug transactions. No one in the car appeared to be arguing. The vehicle's radio was not being played at a loud volume. There was no evidence of littering around the vehicle.

¶7¶ 86. The fact that the vehicle was unfamiliar to the officer adds nothing to the majority's analysis, as that would allow any officer to stop any vehicle that officer was unfamiliar with at any time, without regard to whether the person was acting suspicious. Moreover, while Wisconsin sports fans might view people from Illinois in a suspicious light, a person from Illinois being present in a Wisconsin border community provides no specific or articulable facts that criminal activity is taking place. No massaging of the facts here leads to a viable conclusion that reasonable suspicion existed prior to the stop.

¶8¶ 87. The ramifications of the majority's analysis are downright frightening. If police can stop anyone they fail to recognize who is in a "problem area" without *45any articulable showing that the person is doing something to suggest criminal activity, such a rationale could be used to support the wholesale interference of anyone who fails to fit the "community profile": a person who fails to match the racial profile of a community, a person who has out-of-state license plates, etc. Moreover, if this court were to allow such stops within the state, then other states might treat our citizens in the same manner. Would a car possessing Wisconsin license plates provide the basis for a lawful investigatory stop in Rockford, Illinois? What about Duluth, Minnesota? Would wearing a cheesehead provide a sufficient basis for a lawful stop in another state? Of course, such a result would be ridiculous and intolerable.

¶9¶ 88. Based on the majority's analysis, the focus is no longer on the behavior of the accused, but would now rest solely on the character of the community. I am not aware of any decision that justifies the interference of one's liberty without considering that person's conduct. I would not adopt such a rule now. The officer in this case lacked reasonable suspicion that Young and the others who were with him were engaged in criminal activity prior to illuminating Young's vehicle with his spotlight and turning on his flashing emergency lights.

¶10¶ 89. Justice Bradley correctly observes that when the police "do not possess reasonable suspicion to justify such a seizure, citizens have the right to go about their business and walk away." Justice Bradley's dissent, ¶ 97 (citing Florida v. Royer, 460 U.S. 491, 498 (1983)). The mere "refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure." Florida v. Bostick, 501 U.S. 429, 437 (1991). Young, therefore, had every right to go about his business and walk away, which, according to the majority opinion, is exactly *46what he did. Majority op., ¶ 11. Young got out of the vehicle, which he had a right to do absent reasonable suspicion. When ordered to get back into the vehicle, he started to walk away, which he also had a right to do absent reasonable suspicion. It was after the officer ordered Young to return to the vehicle a second time that Young started running toward the house, subsequently resisted the officer, and finally slipped out of his coat (which contained marijuana).

¶11¶ 90. This court has recognized that "[fllight at the sight of police is undeniably suspicious behavior." State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990). Similarly, the United States Supreme Court has recognized that unprovoked flight is not a mere refusal to cooperate, but, by its very nature, is the opposite of "going about one's business[.]" Illinois v. Wardlow, 528 U.S. 119, 125 (2000). While both courts recognize that there are many innocent explanations for flight from police,3 "flight is not necessarily indicative of ongoing criminal activity. This fact is undoubtedly true[.]" Id.As such, while flight "does not rise to a level of probable cause,"4 it does provide the officer with "a reasonable suspicion that all is not well." Anderson, 155 Wis. 2d at 84. See also Wardlow, 528 U.S. at 125.

¶12¶ 91. It is Young's flight, his physical resistance of the officer, coupled with this court's decision in State v. Hobson, 218 Wis. 2d 350, 380, 577 N.W.2d 825 (1998) (abrogating the previously recognized common law *47privilege to forcibly resist an unlawful arrest),5 that compel the conclusion that the officer was justified in arresting Young on the porch. It does not matter that the officer lacked a reasonable suspicion to initially stop Young. For public policy reasons,6 he had no right to physically resist the officer, and in any case, Young's flight ultimately provided the officer with a reasonable suspicion that criminal activity was afoot. Similarly, Young's coat could be seized and searched incident to his arrest for resisting the officer on the porch.

¶13¶ 92. The same cannot be said of the obstructing count. Prior to Young's flight, the officer lacked reasonable suspicion that would justify a Terry7stop. Thus, he was without lawful authority to order Young to get back in or return to the vehicle. Absent that lawful authority, the State has failed to establish the third element of the offense here, that being that the officer was acting with lawful authority prior to Young's flight. Thus, his flight cannot provide the basis for the obstructing charge. Further, the State has not and cannot establish that Young subjectively knew that the officer was acting with lawful authority. See Lossman, 118 Wis. 2d at 542-43. To conclude otherwise would relieve the State of its burden of proving each element beyond a reasonable doubt, and render the third and fourth elements meaningless. Consequently, I would reverse the court of appeals decision with respect to the obstructing count, as the evidence is insufficient to support that charge.

¶14*48¶ 93. For the forgoing reasons, I concur with the mandate affirming Young's convictions for possession of marijuana and for resisting an officer, but I respectfully dissent from the decision and mandate affirming Young's conviction for obstructing an officer.

¶22¶ 94. (<dissenting). Although I disagree with the majority opinion in several respects I write to focus on its unfortunate, perhaps even needless, adherence to the test for a seizure under the now-infamous case of California v. Hodari D., 499 U.S. 621 (1991).1 As a consequence of this test, the right that Wisconsin citizens once possessed to go about their business and "walk away" from police during the course of a casual encounter may no longer exist.

¶23¶ 95. In applying Hodari D., the majority:

¶24(I) embraces a case that has been widely criticized and oft rejected for good reason;

¶25(II) ignores the test for a seizure as stated in the recent United States Supreme Court decision of Kaupp v. Texas, 538 U.S. 626 (2003); and

¶26(III) assumes that this court previously adopted Hodari D. even though that is less than clear.

¶27*49¶ 96. I would decline to apply Hodari D. Instead, I would continue to follow the test the Court set forth in United States v. Mendenhall, 446 U.S. 544 (1980), and recently reaffirmed in Kauppin order to determine whether a citizen has been seized.

¶28¶ 97. Under this test the existence of a seizure does not depend on whether the citizen submitted to a police show of authority, absent physical force. Rather, a citizen is seized when, taking into account all of the circumstances involved in an encounter with police, a reasonable person would not feel free to leave. Kaupp, 538 U.S. at 629; Mendenhall, 446 U.S. at 554. In the case of a temporary seizure (a Terry stop), as is implicated here, when police do not possess reasonable suspicion to justify such a seizure, citizens have the right to go about their business and walk away. Florida v. Royer, 460 U.S. 491, 498 (1983).2

¶29¶ 98. Ultimately, I am convinced that the distinctions the majority draws between what constitutes the legitimate exercise of the right to walk away and what constitutes illegitimate flight will often amount to a line drawn in the sand on a windy day. For all of these reasons, I respectfully dissent.

¶30rH

¶31¶ 99. Commentators and courts alike have criticized Hodari D. Many courts have rejected it. This is for good reason.

¶32*50¶ 100. Professor LaFave, in his leading treatise on the láw of search and seizure, devotes approximately 13 pages to the matter, impressively synthesizing a large body of Fourth Amendment case law. Wayne R. LaFave, 4 Search and Seizure § 9.4(d), at 453-66 (4th ed. 2004).

¶33¶ 101. Numerous other commentators have approached Hodari D. with similar skepticism. Juan F. Alanis, To Seize or not to Seize ..., 23 Am. J. Crim. L. 461, 474-478 (1996); Ronald J. Bacigal, The Right of the People to Be Secure, 82 Ky. L.J. 145, 146, 179-188 (1993); Thomas K. Clancy, The Future of Fourth Amendment Seizure Analysis after Hodari D. and Bo-stick, 28 Am. Crim. L. Rev. 799, 841-842 (1991); Patrick T. Costello, California v. Hodari D.: The Demise of the Reasonable Person Test in Fourth Amendment Analysis, 12 N. Ill. U. L. Rev. 463, 483-84 (1992); Michelle R. Ghetti, Seizure Through the Looking Glass: Constitutional Analyses in Alice's Wonderland, 22 S.U. L. Rev. 231, 243 (1995); Randolph Alexander Piedrahita, A Conservative Court says "Goodbye to All That" and Forges a New Order in the Law of Seizure — California v. Hodari D., 52 La. L. Rev. 1321,1333 (1992); Victor R. Quiros, The Impact of California v. Hodari D. Upon Police Pursuits in California: The Fruit of the Poisonous Tree is No Longer Poisonous, 19 W. St. U. L. Rev. 641, 661-62 (1992); Alyssa Saks, Can Attempted Seizures be Unreasonable?: Applying the Law of Attempt to the Fourth Amendment, 37 Cal. W. L. Rev. 427, 429-430, 438 (2001); Richard W. Zahn, California v. Hodari D.: An Evolving Definition of Seizure Under the Fourth Amendment, 27 New Eng. L. Rev. 447, 466 (1992); Defining a Seizure — Police Chases and Bus Sweeps: Florida v. Bostick and California v. Hodari D., 105 Harv. L. Rev. 297, 298-299 (1991).

¶34*51¶ 102. I highlight some of the most compelling criticisms as summarized by Professor LaFave.3

¶35¶ 103. Criticism 1. Contrary to the Hodari D. hypothesis, pursuit constitutes an immediate infringement on the suspect's freedom of movement. This is because the person being pursued reasonably knows that the object of the chase is capture; that the police purpose is to restrain his liberty; that if he stopped running, he would not be free to leave; and that in effecting the capture police will resort to physical force if necessary. 4 Search and Seizure § 9.4(d), at 459-60.

¶36¶ 104. Criticism 2. Under Hodari D., the timing of a seizure is governed not by the officer's conduct but by the citizen's reaction, a result inconsistent with other established Fourth Amendment jurisprudence. The Court in Michigan v. Chesternut, 486 U.S. 567, 574 (1988), for example, emphasized the necessity of a standard that "allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment."

¶37¶ 105. Criticism 3. When applying Hodari D., courts will frequently be confronted with difficult questions concerning precisely when the requisite physical force or submission to authority commenced. 4 Search and Seizure § 9.4(d), at 462. As Justice Stevens put it in his dissent to Hodari D.: "The range of possible responses to a police show of force, and the multitude of problems that may arise in determining whether, and at which moment, there has been 'submission,' can only create uncertainty and generate litigation." Hodari D., 499 U.S. at 644 (Stevens, J., dissenting).

¶38*52¶ 106. Some cases may involve rather obvious flight. However, it may be difficult for courts in future cases to distinguish between what constitutes the legitimate exercise of the right to walk away and what constitutes illegitimate flight.

¶39¶ 107. Criticism 4. Under Hodari D., it will be advantageous to police officers to place the seizure at the latest possible moment so as to be able to use any earlier-revealed evidence as part of the basis for a Terry stop. 4 Search and Seizure § 9.4(d), at 462. Such an approach diminishes the established constitutional protections against unreasonable seizures.

¶40¶ 108. No fewer than 11 other courts of last resort have rejected Hodari D. State v. Oquendo, 613 A.2d 1300, 1309 (Conn. 1992); Jones v. State, 745 A.2d 856, 863-68 (Del. 1999); State v. Quino, 840 P.2d 358, 362 (Haw. 1992); Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999); Commonwealth v. Stoute, 665 N.E.2d 93, 97-98 (Mass. 1996); Matter of E.D.J., 502 N.W2d 779, 780-83 (Minn. 1993); State v. Clayton, 45 P.3d 30, 34 (Mont. 2002); State v. Tucker, 642 A.2d 401, 405 (N.J. 1994); Commonwealth v. Matos, 672 A.2d 769, 771-76 (Fa. 1996); State v. Randolph, 74 S.W.3d 330, 331-37 (Tenn. 2002); State v. Young, 957 E2d 681, 687 (Wash. 1998); see also People v. Holmes, 619 N.E.2d 396, 397-98 (N.Y. 1993) (without citing Hodari D., holding that police pursuit of an individual significantly impedes the person's freedom of movement and thus must be justified by reasonable suspicion).

¶41¶ 109. The widespread criticism and rejection of Hodari D. is well founded. Hodari D. states that, absent physical force, a seizure does not occur unless the citizen under investigation yields to the police show of authority. Hodari D., 499 U.S. at 626. This statement is *53difficult to reconcile with the Court's other established Fourth Amendment jurisprudence.

¶42¶ 110. For example, I cannot reconcile Hodari D.'s statement with Terry, which held:

[C]ourts still retain their traditional responsibility to guard against police conduct which is over-bearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.

¶43Terry v. Ohio, 392 U.S. 1, 15 (1968).

¶44¶ 111. Similarly, I cannot reconcile Hodari D.'s statement with Chesternut. In Chesternut, the Court held: "[The test for a seizure] calls for consistent application from one police encounter to the next, regardless of the particular individual's response to the actions of the police." Chesternut, 486 U.S. at 574 (emphasis added).

¶45¶ 112. Moreover, the Court's decision in Menden-hall strongly suggests that its test contemplated that suspects may often attempt to flee or otherwise evade police but that this did not forestall the seizure. In Mendenhall, the Court gave "[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave." Mendenhall, 446 U.S. at 554 (emphasis added). The Court's use of "even where" evinces its assumption that in the course of a typical seizure the suspect often would attempt to leave.

¶46¶ 113. The examples the Court gave of what might "indicate a seizure" include "the threatening presence of several officers, the display of a weapon by *54an 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." Id.These examples of what might "indicate a seizure" further suggest that the test for a seizure does not encompass a citizen's response to the police officers' conduct.

¶47¶ 114. Yet, in Hodari D., the Court did not say it was overruling any of this previous jurisprudence. On the contrary, it purported to rely on at least some of it. Hodari D., 499 U.S. at 627-28.

¶48¶ 115. I am persuaded by the commentators and courts that have, rightly criticized and rejected Hodari D.

¶49¶ 116. So was the court of appeals. In the case before us, it expressed serious reservations about the problems with Hodari D. "[W]e are less than enthusiastic," the court flatly stated, "about the result that Hodari D. mandates in this case." State v. Young, 2004 WI App 227, ¶ 19, 277 Wis. 2d 715, 690 N.W.2d 866. The court then explained its concern that Hodari D. may eviscerate the right to walk away:

[A]fter Hodari D., [Young's] supposed right to "go on his way" becomes an empty right because it vests police with the authority to pursue and detain anew. In short, the person is penalized for legal conduct while police are rewarded for illegal conduct.

¶50Id., ¶ 20.

¶51¶ 117. The court of appeals was correct. The right to go about one's business and "walk away" cannot coexist with a rule that, absent physical force, no seizure may attach before a citizen submits to the police show of authority.

¶52*55¶ 118. Even the majority feels it necessary to "recognize the strength" of some of the criticisms described. Majority op., ¶ 47. Unfortunately, the majority embraces Hodari D. anyway.

¶53II ¶ 119. Adding to my concern with the majority's embrace of Hodari D. is that the United States Supreme Court's recent decision in Kauppleaves uncertain the present status of Hodari D.

¶54¶ 120. In Kaupp, the Court unequivocally reaffirmed what I always understood to be the Mendenhalltest:

A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when ... the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.

¶55Kaupp, 538 U.S. at 629 (emphasis added; internal quotations omitted).

¶56¶ 121. In Kauppthe Court did not say that a seizure "may occur when" or "can occur when" or "occurs 'only' when." In other words, the Court in Kauppwas clear that "when" police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business, that is a sufficient condition to effect a seizure.4

¶57*56¶ 122. Unlike the straightforward reading of Mendenhallthat the Court in Kauppreaffirmed, the Court in Hodari D. sliced and diced and nuanced the text of Mendenhall. See Hodari D., 499 U.S. at 628 ("[Mendenhall] says that a person has been seized 'only if [a reasonable person would have believed that he was not free to leave], not that he has been seized 'whenever'; it states a necessary, but not a sufficient, condition for seizure — or, more precisely, for seizure effected through a 'show of authority.'") (emphasis in original).5

¶58¶ 123. Thus, the interpretative gloss the Court placed on Mendenhallin Hodari D. does not square with its subsequent reaffirmation of the Mendenhalltest in Kaupp.

¶59*57¶ 124. The majority does not account for the test in Kaupp. Unlike the majority, I would give credence to the most recent pronouncement of the Court. Following Kaupp, I would ask "when, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Kaupp, 538 U.S. at 629 (internal quotations omitted).6

¶60HH H-i >-H

¶61¶ 125. What is additionally unfortunate about the majority's embrace of Hodari D. today is that it may have been needless. The majority assumes that "[i]n State v. Kelsey C.R., 2001 WI 54, ¶ 33, 243 Wis. 2d 422, 626 N.W.2d 777, this court adopted the Hodari D. test for 'when a seizure occurs'" Majority op., ¶ 4; see also majority op., ¶¶ 26, 51. It is less than clear, however, whether this court adopted Hodari D. in Kelsey C.R. In order to see why, I begin by delving deeper into Kelsey C.R.

¶62¶ 126. The language in Kelsey C.R. "adopting" Hodari D. comes from the "majority" opinion of three justices. Two justices concurred. Kelsey C.R., 243 Wis. 2d 422, ¶¶ 52, 72. Two justices dissented. Id., ¶¶ 73, 98.

¶63¶ 127. The defendant in Kelsey C.R. was a juvenile girl, who police officers suspected might be a runaway. Id., ¶¶ 4-5. They found her sitting in the *58middle of a block in a high-crime neighborhood in Milwaukee. Id., ¶ 4. From their car, the officers asked her some questions, remained concerned based on her answers, and told her to "stay put" so they could make a U-turn to be on the same side of the street as Kelsey to ask her more questions. Id., ¶ 5. At that point, she fled. Id.

¶64¶ 128. After a 30- to 40-second chase, the officers caught Kelsey. They contacted her mother, who asked that they bring Kelsey home. Id., ¶ 6. Before the officers placed her in their car, they conducted a pat-down search and found a loaded handgun. Id:, ¶ 7 7

¶65¶ 129. The three-justice opinion in Kelsey C.R. stated three issues:

One, did the police officers seize Kelsey, thereby invoking her constitutional protection against unreasonable seizures, when [one of the officers] told her to "stay put" but she ran away? Two, was the investigative detention after she fled based on a reasonable suspicion that she had committed, was committing, or was about to commit, a crime? Three, was the pat-down search of Kelsey based on a reasonable suspicion that she may be armed and dangerous?

¶66Id., ¶ 11.

¶67¶ 130. In addressing the first issue, three justices clearly applied Hodari D. to determine that there was no seizure of Kelsey until the officers applied physical force by catching her after a chase. Id., ¶ 33. Those justices did not, however, stop with Hodari D. They also addressed the first issue using a community caretaker analysis, concluding that "if this initial exchange was a *59seizure, then it was reasonable under the police community caretaker function." Id., ¶ 37. They then addressed the second issue, another Terrystop question, and the third issue, which involved the pat-down. Id., ¶¶ 38, 47.

¶68¶ 131. Without mention of Hodari D., the concurring opinion in Kelsey C.R. stated that it agreed with "the majority's two-part analysis of the stop in this case." Id., ¶ 52 (Sykes, J., concurring). It is less than clear what the concurrence was referencing because there were two asserted "stops" in the case, and the "majority" concluded that only the second was a seizure. Like the concurrence, the dissent made no mention of Hodari D.

¶69¶ 132. The lack of clarity as to whether a majority of justices took a position on Hodari D. in Kelsey C.R. is underscored by an examination of the court of appeals' decisions that have subsequently interpreted Kelsey C.R.

¶70¶ 133. In State v. Hart, 2001 WI App 283, 249 Wis. 2d 329, 639 N.W.2d 213,8 the court of appeals interpreted Kelsey C.R. as follows: "Apparently, all of the justices agreed that the officers did not seize Kelsey by telling her to 'stay put.'" Hart, 249 Wis. 2d 329, ¶ 16 (emphasis added). In a footnote, the court of appeals elaborated:

The plurality relied on California v. Hodari D., 499 U.S. 621, 626 (1991), to hold that in order to effect a seizure, 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, *60626 N.W.2d 777. Because Kelsey did not yield to the officer when he told her to "stay put," no seizure occurred until the officers caught her after she fled. Id. Neither the concurring or dissenting opinions disagreed with this portion of the plurality's decision.

¶71Hart, 249 Wis. 2d 329, ¶ 16 n.6 (emphasis added). Thus, the court of appeals concluded that all of the justices "[apparently" agreed that Hodari D. applied because a "plurality" relied on Hodari D. and because neither the concurring nor dissenting opinions expressly "disagreed" that it applied.

¶72¶ 134. In a later case, State v. Powers, 2004 WI App 143, 275 Wis. 2d 456, 685 N.W.2d 869, the court of appeals was not so equivocal. There, it interpreted Kelsey C.R. differently. It unequivocally stated that in Kelsey C.R. "the supreme court held, 'In order to effect a seizure, an officer must make a show of authority, and the citizen must actually yield to that show of authority.' " Powers, 275 Wis. 2d 456, ¶ 8 (quoting Kelsey C.R., 243 Wis. 2d 422, ¶ 33).

¶73¶ 135. Then, in State v. Washington, 2005 WI App 123, 284 Wis. 2d 456, 700 N.W.2d 305, the court of appeals seemed to give Kelsey C.R. yet a third interpretation, again taking a slightly different view of the case. It first said that "[o]ur supreme court has indicated that it 'will follow the Hodari D. standard for when a seizure occurs.'" Washington, 284 Wis. 2d 456, ¶ 13 n.4. However, it qualified: "While Kelsey C.R. wás a case concerning ... the community caretaker function, this court [the court of appeals] has also employed the Hodari D. standard in a Terrystop case." Id.,¶ 13 n.4. The case to which the court of appeals was referring was its decision in the case now before us.

¶74¶ 136. Whether more them three justices in Kelsey C.R. adopted Hodari D. is less than clear from the *61Kelsey C.R. decision. The court of appeals has interpreted Kelsey C.R. at least three times, each time in a slightly different way. For me, this underscores the lack of clarity as to whether a majority of this court even adopted Hodari D. in Kelsey C.R. Yet today, the majority simply assumes that Hodari D. is settled law in Wisconsin. It laments the strength of the criticisms of Hodari D., while professing to be bridled by its own recent precedent. See majority op., ¶¶ 43, 51.

¶75IV

¶76¶ 137. For the reasons stated, I would decline to apply Hodari D. Instead, I would continue to follow the test the Court set forth in Mendenhalland recently reaffirmed in Kauppin order to determine the moment that a citizen is seized. Under that test the existence of a seizure does not depend on whether the citizen submitted to a police show of authority. I therefore respectfully dissent.