The state tried last week to sell the Wisconsin Supreme Court on a very expansive view of the community caretaker exception to Fourth Amendment protections, but it apparently did not go well.
The community caretaker exception allows law enforcement to take otherwise prohibited actions, such as a without-reasonable-suspicion traffic stop to ensure a driver is OK. The stop must be unrelated to a criminal investigation.
That started out as the case with Plymouth police officers who stopped Michael Wiskowski, who fell asleep in a McDonald's drive-thru lane at 1 p.m. but who otherwise, at first, showed no signs of anything wrong and emitted no odor of alcohol. Then the officers extended the stop for eight minutes while they hunted around for reasons to test his sobriety.
"The purpose (of the community caretaker stop) is to see if he's okay," Justice Rebecca Dallet said. "It's not to ensure that he's going to be able to drive 20 miles or 50 miles or two miles. It's to make sure he's okay. Weren't they satisfied that he was okay before the officers extended the stop by eight minutes to conduct a further investigation?"
And here's where Assistant Attorney General Michael J. Conway maybe made a wrong move.
The road-related community caretaking duty of officers is not to to make sure the individual driver is safe, he said, but to "ensure the highways are safe for the community."
Justice Rebecca Dallet did and reacted with disbelief to Conway's contention, as illustrated by the photo below.
Dallet reacts to Conway's definition of the community caretaker exception. Screen shot from Wisconsin Eye.
"Where does your community caretaker argument end?" she asked. "You want us to say the community caretaker could extend to just protecting the highways from all the people."
"Tell me where this gets cut off because like under that scenario, they can arrest him –they're afraid he's gonna fall asleep again – community caretaker," she said.
"If you're sure the person is okay, then there's the caretaking stop ends but the state contends that the officer never learned that the driver was okay," Conway said.
While Conway never specifically identified a limit to the exception, he did say it would not apply to a person eating in a car, even if that meant the person was driving with only one hand. (Conway said in a brief that "spontaneously falling asleep is a hallmark of intoxication." Hmmm. And spontaneous munchies are a hallmark of cannabis use so under Conway's definition of community caretaking ....)
A bit more background:
This case started because a McDonald's worker called police when Wiskowski fell asleep in his car in the drive-thru lane.
When Plymouth Police Officer Devin Simon arrived, he watched Wiskowski navigate the drive-thru, get his food, and make a legal left turn out of the parking lot. Simon saw no traffic violations and no signs of intoxication.
Simon stopped him anyway to make sure he was OK.
Wiskowski told Simon he was a welder and had worked a 24-hour shift. Simon did not smell any booze at that time.
When asked, Wiskowski at first produced the wrong insurance card from his wallet, then found the right one in his wallet and produced it.
Another officer arrived and the two ran Wiskowski's record, learning that he had three prior convictions for OWI.
Simon asked Wiskowski to get out of the car and Wiskowski stumbled a bit. Simon then smelled alcohol on Wiskowski's breath and that led to a breath test and field sobriety tests, which led to a blood test and a charge of fourth-offense drunk driving.
Both Sheboygan County Circuit Judge Kent Hoffmann and the District II Court of Appeals found the stop reasonable and denied Wiskowski's motion to suppress.
But Dallet and other justices were clearly skeptical of Conway's community caretaker definition.
Justice Brian Hagedorn weighed in as well.
"The broad thrust of a lot of the case law seems to be you have some like, emergency, ... kind of gravish issues, threats to public safety, law enforcement...can step in and kind of make sure everybody's okay. ... This does seem like a pretty expansive view of stopping somebody because you got a call that they fell asleep," he said.
And Justice Ann Walsh Bradley also had concerns. "This raw definition...frightens me. Tell me why I should just think, "oh, this is this is just fine.'"
Near the end of his argument, Conway said that risks to other drivers matters and consideration of the community as a "community of drivers" should not be precluded
"since we're talking about a duty on the road. We all share the road and it's a highly regulated environment."
"But the public – society – also has a strong interest in losing its freedom to come and go as we please without police interference unless there is a strong justification for it," Justice Rebecca Grassl Bradley said.
Wiskowski's lawyer, Kirk Obear, unsurprisingly agreed that Conway's community caretaker definition went too far.
"If the community at large is all people at all times in all places, that's an unworkable way to define the community, he said.
Even if the "community" is limited to those nearby and the risks they may face from potential drunk drivers, Obear said,"it's still so broad that it I don't know how this court or any court can give sufficient guidance to the law enforcement community and the courts below."
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