State v. Reichert, 2023AP1224, 8/14/24, District II (one-judge decision; ineligible for publication); case activity
Roxanne Reichert appealed from a judgment of conviction after she pled no contest to operating a vehicle under the influence. She argued that the circuit court erred when it denied her motion to suppress evidence seized after she was stopped in her vehicle. The Court of Appeals affirmed and found that: 1) police were justified to stop Reichert as a community caretaking function; and 2) police had reasonable suspicion to extend the stop to investigate Reichert for criminal activity, including OWI.
Waukesha police stopped a purple Honda Pilot driven by Reichert at night in November 2021. Shortly before the stop, police received a report from Reichert’s neighbor that a male and female argued outside Reichert’s residence and left in separate vehicles – the female in a purple Honda Pilot and the male in a silver Chevrolet Malibu. The neighbor told police that the vehicles might have collided and that a third person was following the vehicles in a truck. While an officer proceeded toward Reichert’s residence, he was told by a dispatcher that the male in the Chevrolet told police that he would return to the residence to speak with them, that “some type of a threat of a gun” was involved, and at least one child was in one of the vehicles that collided.
The officer saw a purple Honda Pilot operating on University Avenue in Waukesha and stopped it. Three officers approached the vehicle and asked the driver – Reichert – if she had an altercation with her boyfriend. Reichert confirmed the altercation, and police directed her to step out of the vehicle. Police saw more than one child in the vehicle and asked if they were okay; one responded that they were. At an evidentiary hearing, the officer testified that he determined Reichert and her children “appeared to be safe and not in need of medical assistance” within a couple of minutes after the stop.
The officer spoke with Reichert outside the vehicle and confirmed that her boyfriend kept multiple firearms at their house, they were arguing at the residence, and she left with her children. Reichert told police that her boyfriend blocked her car from leaving the driveway, so she drove onto a neighbor’s yard to get around his vehicle. Reichert denied that she hit her boyfriend’s car or that either vehicle had been damaged.
Thirteen minutes into the officer’s conversation with Reichert, he asked her if she had been drinking that evening. She said she had two drinks at dinner. The officer then spoke with the officer who interviewed Reichert’s boyfriend, who said that he was trying to stop her from driving while she was intoxicated with her children. Reichert denied to the officer that her boyfriend said he was concerned about her driving while intoxicated.
The officer told Reichert that he wanted to make sure she was okay to drive in light of her boyfriend’s statement and drove her to a nearby gas station to perform field sobriety tests. The officer testified at the evidentiary hearing that he subjected Reichert to the tests because she was weaving while she drove, her speech was “thick” and “slightly slowed,” she admitted drinking that evening, and the information provided by Reichert’s boyfriend.
Reichert showed signs of intoxication during the field sobriety tests and was arrested for operating while intoxicated. A subsequent blood test showed her blood alcohol concentration was above the legal limit.
The Court considered three seizures at issue: 1) the initial stop; 2) extending the stop to investigate the alleged domestic altercation and possible hit-and-run incident; and 3) extending the stop to investigate Reichert for OWI.
Initial Stop
The Court determined the initial stop was justified by the police’s community caretaking function. Wisconsin courts assess whether a seizure is justified as a community caretaking function by reviewing: 1) whether a seizure occurred under the Fourth Amendment; 2) whether the officer was engaged in a bona fide community caretaker activity; and 3) whether the public interest furthered by the officer’s conduct outweighs the intrusion on the privacy interest of the seized person. (¶ 21).
The parties did not dispute that Reichert was seized when her car was stopped. The Court concluded the officer engaged in a bona fide community caretaker activity given that: 1) the officer was dispatched to investigate a possible domestic-related incident and hit and run where subjects reportedly fled the scene; 2) Reichert’s vehicle matched the description provided by the informant; 3) the officer said his primary purpose was to check on the well-being of the occupants; 4) a child was reportedly in one of the vehicles; and 5) someone involved in the incident may have made threats with a gun. The Court concluded: “These facts provide additional support for the conclusion that [the officer] had an objective basis to believe that the purple Honda Pilot he encountered was one of the vehicles that had left the scene and that someone in the vehicle, including possibly a child, could have been injured and in need of medical attention.” (¶ 23).
The Court rejected Reichert’s argument that the stop was not a bona fide community caretaking activity because it was not totally divorced from a criminal investigation, citing SCOW’s decision in State v. Blatterman (2015), which held that officers may base their actions simultaneously on law enforcement and community caretaking functions. (¶ 27).
As for balancing the public’s interest against intruding on Reichert’s privacy interest, the Court determined that the factors weighed in favor of finding that the stop was a valid community caretaker activity because: 1) the officer had reason to believe someone in Reichert’s vehicle could have been physically injured and in need of medical attention; 2) although the officer displayed authority and force when he stopped Reichert, the degree was not excessive under the circumstances; 3) the seizure involved an automobile, where there is a diminished expectation of privacy; and 4) there was no feasible alternative to stopping the vehicle in order to determine whether anyone in the vehicle needed medical attention. (¶¶ 28-32).
The First Extension
Reichert argued that, even if the initial stop was valid, extending the stop beyond the point at which the officer determined no one in the vehicle needed medical attention violated the Fourth Amendment. The Court agreed that police could not justify the stop as a community caretaking function once the officer determined no one needed medical attention. (¶ 35).
However, the Court concluded the officer had reasonable suspicion that Reichert “may have committed a crime during the altercation with her boyfriend.” (¶ 36). The Court noted that the officer knew a neighbor reported a “loud argument” between a male and female outside Reichert’s residence, the male and female drove away in separate vehicles that may have collided, a gun was reportedly involved, and Reichert admitted to the officer that she was in an altercation with her boyfriend: “Therefore, [the officer] was justified in continuing to detain Reichert in order to obtain further information from her about what had happened during the altercation and whether a hit-and-run had occurred.” (¶ 39).
The Second Extension
Finally, the Court determined the officer had reasonable suspicion to extend the stop to perform field sobriety tests on Reichert based on the following: 1) the officer knew Reichert was driving; 2) the officer perceived Reichert’s speech to be “thick and slow”; 3) Reichert admitted she drank alcohol that evening; and 4) the officer knew that Reichert’s boyfriend was concerned she was impaired. ( ¶ 42).
