State v. David C. Marker, 2014AP1122-CR, District 2, 12/10/14 (1-judge decision; ineligible for publication); case activity
The stop of the vehicle Marker was driving was justified under the community caretaker exception because, based on a call from Marker’s ex-wife, police had reason to believe Marker was driving while intoxicated with his children in the vehicle.
The three elements of the community caretaker exception to the warrant requirement, see State v. Kramer, 2009 WI 14, ¶21, 315 Wis. 2d 414, 759 N.W.2d 598, are met here. First, there was obviously a seizure. As to the second and third elements—whether the police conduct was a bona fide community caretaker activity, and whether the public need and interest outweighed the intrusion on individual privacy—the court says:
¶10 …[T]he totality of the circumstances supported a community caretaking function. Here, the circumstances that led to the stop—the mother of Marker’s children having phoned police to report that Marker was intoxicated when he drove away with them moments earlier—provided an objectively reasonable basis to fear for the children’s safety. There were over 5,000 alcohol-related traffic crashes on Wisconsin roads in 2012. Wisconsin DOT, 2012 Wisconsin Crash Facts at 79 (2014), available at http://www.dot.wisconsin.gov/safety/motorist/crashfacts/docs/crash-alcohol.pdf. Those accidents caused 223 deaths. Id. If Marker was allegedly driving his children while drunk, the children were in danger, so the officer was justified in stopping the vehicle to investigate the report.
¶11 The last element, whether the officer’s exercise of the caretaking function was reasonable, requires us to balance the community interest that the officer was addressing against the intrusion on the individual’s privacy interest. Kramer, 315 Wis. 2d 414, ¶40. Relevant factors include the degree of the public interest and the exigency; the time, location, and degree of overt authority and force displayed; whether an automobile is involved; and the availability of feasible alternatives to the intrusion that was used. Id., ¶41. Obviously, the safety of children is of great public interest, and because the threat to the children was the car itself, there was really no feasible alternative to a simple investigatory stop to, as the circuit court stated, “preserve the status quo” and check on the children’s welfare. The officer did not use a great degree of authority or force, but simply conducted a traffic stop and spoke to the driver. On balance, this was a reasonable exercise of community caretaking under the circumstances.
The court rejects Marker’s complaint that this effectively allows a blanket exception for stops based on drunk driving tips, given that the tip came not from an anonymous tipster, but from a caller who identified herself as his ex-wife. (¶12 ).
The court of appeals originally decided this case in October, issuing an opinion that affirmed the circuit court on the alternate ground that the tip from Marker’s ex-wife provided reasonable suspicion for the stop. It withdrew that opinion after Marker filed a motion for reconsideration because “[s]ome of the facts supporting reasonable suspicion were merely described in the criminal complaint and not put into evidence at the motion hearing in question.” (¶2). On reconsideration, the court now decides that “although an argument remains that reasonable suspicion existed to justify the stop, the evidence is stronger to support the circuit court’s conclusion that the community caretaker doctrine justified the stop.” (Id.).
