State v. Michael Gene Wiskowski, 2024 WI 23, 6/18/24, reversing and remanding an unpublished court of appeals decision; case activity (including briefs)
Community caretaking does not allow police to continue seizure after officer resolves purpose for stop unless reasonable suspicion or probable cause developed. Three justices question continuing validity of Wisconsin’s community caretaking precedent in light of SCOTUS’s decision in Caniglia v. Strom.
The Supreme Court considered in this case where a police officer’s community caretaking function ended and where the officer’s criminal investigation began, which required reasonable suspicion or probable cause.
Michael Wiskowski fell asleep in his truck at 1 p.m. while parked in a McDonald’s drive-thru in Plymouth. A McDonald’s employee called police and an officer responded immediately. The officer followed Wiskowski as he pulled out of the McDonald’s parking lot. Although Wiskowski did not commit any traffic violations, the officer activated his lights and siren and performed a traffic stop.
Wiskowski told the officer that he fell asleep because he just finished a 24-hour work shift. The officer later testified that, at this point, he did not smell alcohol on Wiskowski nor observe any signs of intoxication. The officer went back to his squad car to retrieve Wiskowski’s driving record, which showed he had three prior OWI convictions. The officer then returned to Wiskowski and asked him to exit the vehicle. About five to six minutes elapsed between the time when the officer’s initial conversation with Wiskowski ended and when he ordered him out of the truck. When Wiskowski got out of the truck, the officer smelled alcohol and saw him stumble. Wiskowski admitted that he had drank “a couple beers” and was transported to the police station. After failing field sobriety tests, Wiskowski was arrested and charged with OWI.
Wiskowski filed a motion to suppress the fruits of the traffic stop, which was denied by the circuit court because it found the officer’s stop was justified as a community caretaking activity. The circuit court’s decision was affirmed by the court of appeals on the same grounds. State v. Wiskowski, No. 2021AP2105-CR
The Supreme Court, in a 6-1 decision, reversed. First, the court held that police did not have reasonable suspicion to stop Wiskowski because falling asleep in the drive-thru, “without any additional indicators of impairment . . . is too speculative to amount to reasonable suspicion.” ¶ 13.
Moving on to the community caretaker analysis, the Court applied the established three-part test to assess whether police exercised a proper community caretaker function: 1) whether a seizure occurred for purposes of the Fourth Amendment; 2) whether the officer engaged in a bona fide community caretaking function; and 3) whether exercising the community caretaking function was reasonable. ¶¶ 18-19. The parties agreed Wiskowski was seized and the court assumed without deciding that the officer had a bona fide community caretaker justification when he stopped Wiskowski. ¶ 19. The court found, however, that police did not exercise the community caretaking function reasonably because the officer “unreasonably extended the stop beyond its original justification.” ¶ 25. The court noted that the officer testified that Wiskowski acted normal, his answer to why he fell asleep was reasonable, he did not show signs of sleepiness during their interaction, and the officer did not see signs of a medical emergency. “At that point, the public interest or exigency that may have existed was resolved; Officer Simon had no community caretaking justification to prolong the stop.” ¶ 25.
In dissent, Chief Justice Ziegler wrote that the court should not have accepted review because the case did not develop the law and amounted to error correction. ¶ 98. The chief justice also disagreed with the substance of the majority’s opinion and concluded the officer had reasonable suspicion to stop Wiskowski, the officer acted as a bona fide community caretaker, and the stop was not unreasonably extended. ¶ 115.
The Future of the Community Caretaking Doctrine
The chief justice’s critique that this case does not develop the law is understandable considering that the opinion applies familiar reasonable suspicion and community caretaking principles. Justice Hagedorn’s concurrence, however, is instructive for how the Supreme Court might address community caretaking cases going forward in light of Caniglia v. Strom, 151 S.Ct. 1596 (2021), where the U.S. Supreme Court held that community caretaking did not justify warrantless searches and seizures in the home. Justice Hagedorn questioned whether Wisconsin cases permitting home entries under community caretaking remain good law. ¶ 72. He also observed that the U.S. Supreme Court appears “uncomfortable” using community caretaking as an exception to the warrant requirement:
Therefore, we may soon need to address whether to formally abandon community caretaking as a separate, freestanding doctrine through which warrantless searches and seizures should be evaluated. If we do so, courts may need to wrestle with whether functions we might now categorize as “community caretaking” may be better understood or evaluated under other doctrines, such as emergency aid or exigent circumstances.¶ 74.
Justice Hagedorn’s concurrence in this respect was joined by Justice Rebecca Bradley and Justice Protasiewicz.
The future of community caretaking was not resolved by this case because the parties did not argue that the court should modify its precedent.
Forfeiture
Justice Hagedorn’s concurrence also addressed forfeiture because the State first raised reasonable suspicion in its response brief, although Wiskowski’s petition for review argued that he was seized without reasonable suspicion. The State maintained it did not forfeit reasonable suspicion because Wis. Stat. § 809.62(3m)(b)1. allows a party to defend the court of appeals’ ultimate result on any ground without filing a cross-petition for review, whether or not that ground was ruled upon by the lower courts. Justice Hagedorn disagreed with the State’s interpretation of the statute, which “should not be understood as altering the regular rules regarding forfeiture.” Rather, he considers § 809.62(3m)(b)1. to permit “parties to argue previously raised or preserved arguments that were not addressed by the circuit court without needing to file a petition for cross-review.” ¶ 38 (emphasis added). No other justice joined Justice Hagedorn’s concurrence in this regard.
Justice Protasiewicz’s concurrence agreed with the State that it could assert reasonable suspicion because Wiskowski addressed it in his petition for review. ¶ 92. But she disagreed with the State relying on § 809.62(3m)(b)1. because that statute refers to cross-petitions and the State had no adverse decision to challenge. ¶ 94. Instead, she said the State should have raised reasonable suspicion in its response to Wiskowski’s petition for review under Wis. Stat. 809.62(3)(d), which allows the responding party to assert any alternative ground supporting the court of appeals’ result. When a party first raises an issue in its response brief to support the court of appeals’ outcome, Justice Protasiewicz said, the “respondent proceeds at its own risk” because the Supreme Court has discretion to disregard such arguments. ¶ 95. Justice Ann Walsh Bradley joined Justice Protasiewicz’s concurrence.
