State v. Michael Gene Wiskowski, 2021AP2105, review of a per curiam court of appeals decision granted 9/26/23; reversed 6/18/24 case activity (including briefs, PFR and response)
Issues presented (from the PFR):
When the report of a person sleeping in a car while waiting in line at a drive thru is contradicted by the officer’s observation of the car driving on the road without any traffic violations, is there reasonable suspicion to stop the car or can police justify the stop based on the community caretaker doctrine?
After the stop, when the driver provides a reasonable explanation, can the officer use the community caretaker doctrine to extend the stop to perform field sobriety tests?
Dispatch sent an officer to investigate a driver asleep at the wheel of his truck, parked in the McDonald’s drive-thru parking lot. The officer got to the scene about a minute later and saw the truck leave the drive-thru window and make a legal left turn onto the street. The officer stopped the truck and approached the driver. Wiskowski turned over his license upon request, and explained that he was a welder who had been working for about the past 24 hours. The officer then consulted with a supervisor, who said it was permissible to ask Wiskowski to exit the truck. When Wiskowski got out, he stumbled, and the officer could, for the first time, smell intoxicants on his breath. Wiskowski was eventually arrested for OWI.
He argued in the circuit court and the court of appeals that there was no valid basis to stop his truck because, despite the report he’d been sleeping in the drive-thru lot, the officer saw him driving normally before pulling him over. Further, even assuming the initial stop was permissible, Wiskowski argued that once he’d told the officer about his fatigue and failed to exhibit signs of intoxication (before he was taken out of the truck), there was no reason for his detention to continue.
The state’s response, accepted by both lower courts, is that both the commencement and the continuation of the stop were lawful “community caretaker” responses to the situation. Our state’s appellate courts have long applied this doctrine by way of a three-part test: “the court must determine: (1) whether a seizure under the Fourth Amendment has occurred; (2) if so, whether the officer was acting as a bona fide community caretaker; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual.” State v. Kramer, 2009 WI 14, ¶21, 315 Wis. 2d 414, 759 N.W.2d 598.
It’s not clear what prompted SCOW to take this case. Neither party suggests a change in the law is necessary, or even that this case falls into some previously gray area. SCOTUS did recently tackle the community caretaker doctrine in Caniglia v. Strom, 141 S. Ct. 1596 (2021). But Wisconsin courts have chugged along since on the theory that Caniglia didn’t change anything about community caretaker traffic stops; it just said community caretaker concerns can’t get police into the home. We’ve suggested otherwise; we’ll see what SCOW says.
