State v. Kramer

• Decision Date: 27 March 2008
• Docket Number: No. 2007AP1834-CR.,2007AP1834-CR.
• Court: Wisconsin Court of Appeals
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Todd Lee KRAMER, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>

750 N.W.2d 941

2008 WI App 62

STATE of Wisconsin, Plaintiff-Respondent, v. Todd Lee KRAMER, Defendant-Appellant.^†

No. 2007AP1834-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs February 8, 2008.

Opinion Filed March 27, 2008.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen J. Eisenberg of Eisenberg Law Offices, S.C., Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Stephen W. Kleinmaier, assistant attorney general, and J.B. Van Hollen, attorney general.

Before HIGGINBOTHAM, P.J., LUNDSTEN and BRIDGE, JJ.

¶ 1 LUNDSTEN, J

This is a Fourth Amendment "community caretaker" case. Todd Kramer appeals a circuit court judgment convicting him of operating a motor vehicle while under the influence of an intoxicant. Some unknown time after Kramer pulled his pickup truck over to the side of a highway with its hazard lights flashing, a police officer happened by. The officer decided to check on the stopped truck. With the squad's red and blue emergency lights activated, the officer pulled in behind the truck to inquire whether Kramer needed assistance. This inquiry led to the discovery that Kramer was intoxicated. Kramer argues that he was unlawfully seized by the time the officer approached Kramer's side window and observed signs of intoxication. We disagree. Assuming that a seizure occurred, we conclude that it was lawful because the officer was acting in a community caretaker capacity. We affirm the judgment.

Background

¶ 2 Kramer moved to suppress evidence of his intoxicated driving acquired after the officer pulled up behind his truck and approached his side window. At a hearing on the motion, the arresting officer testified that he was on patrol on a county highway when he observed a truck parked on the shoulder of the roadway with its hazard lights on. It was late August, approximately 8:45 p.m., and dark outside. The officer did not know how long the truck had been there, and did not see inside the truck as he passed it.

¶ 3 The truck appeared to be legally parked, and it was not impeding traffic or jeopardizing public safety. Aside from being stopped on a roadside with its hazard lights flashing, the truck did not appear damaged or disabled. The officer observed nothing suggesting that a crime was being committed or that any traffic law was being broken.

¶ 4 The officer made a U-turn, activated his red and blue emergency lights, and pulled in behind the truck to see if there was a need for help. The officer approached Kramer's truck with his hand on his gun, something the officer always did when he approached a stopped vehicle "for safety considerations." In addition, the officer shined a light in the back of Kramer's truck in an attempt to see inside, again for "safety concerns."

¶ 5 The officer's first words to Kramer were something to the effect of "Can I help you?" At that point, the officer noticed that Kramer's speech was slurred, and he could smell the odor of intoxicants coming from inside Kramer's truck. Subsequent investigation led to Kramer's arrest and conviction.

¶ 6 Kramer's testimony was brief. Kramer explained that he had pulled over to take a phone call, and had activated his hazard lights because there was a hill nearby and he wanted other vehicles to see him.

¶ 7 The circuit court denied Kramer's suppression motion, apparently assuming that a seizure occurred, but concluding that the seizure was legal because the officer was acting as a community caretaker by stopping to inquire into the situation.

Standard Of Review For Suppression Decisions

¶ 8 When we review a motion to suppress, we uphold the circuit court's findings of fact unless those findings are clearly erroneous. State v. Horngren, 2000 WI App 177, ¶ 7, 238 Wis.2d 347, 617 N.W.2d 508. The application of constitutional principles to the facts is a question of law that we review de novo. Id.

Discussion

¶ 9 The seizure in this case was justified, if at all, because the officer was acting in his community caretaker capacity. We will assume, without deciding, that the officer lacked reasonable suspicion or probable cause when he seized Kramer by activating his red and blue emergency lights, pulling his squad car in behind Kramer's truck, and approaching the truck on foot. If the officer was not acting in his community caretaker capacity at the time of this seizure, it was unlawful and the evidence of intoxication must be suppressed.¹

¶ 10 In State v. Anderson, 142 Wis.2d 162, 417 N.W.2d 411 (Ct.App.1987), we adopted a test for determining when a seizure is justified by the community caretaker function. We held that, if there is a seizure, the community caretaker function justifies that seizure if two requirements are met. First, the police activity must be a "bona fide community caretaker activity." Id. at 169, 417 N.W.2d 411. Second, "the public need and interest outweigh the intrusion upon the privacy of the individual." Id. We explained that the balancing aspect of this test requires "an objective analysis of the circumstances confronting the police officer" and "an objective assessment of the intrusion upon the privacy of the citizen." Id. at 168, 417 N.W.2d 411.

¶ 11 In the sections below, we first examine whether the police officer here was engaged in a bona fide community caretaker activity. We then engage in balancing the "public need and interest" against the "intrusion upon the privacy of the individual." Finally, we comment on the Anderson formulation of the community caretaker analysis and suggest that the analysis is inconsistent with longstanding Fourth Amendment search and seizure principles.

A. Bona Fide Community Caretaker Activity

¶ 12 The Anderson requirement that police must be engaged in a "bona fide community caretaker activity" is met only if the police activity is "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Dull, 211 Wis.2d 652, 658, 565 N.W.2d 575 (Ct. App.1997) (internal quotation marks omitted; quoting Anderson, 142 Wis.2d at 166, 417 N.W.2d 411 (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973))).

¶ 13 There is no dispute that, but for the officer's subjective concerns when he approached Kramer's truck, the officer was acting in his community caretaker capacity when the seizure occurred. Kramer argues, however, that the officer was not engaged in a "bona fide community caretaker activity" because the officer's conduct was not "totally divorced" from the officer's law enforcement function. More specifically, Kramer points out that the officer testified that it "was in [the officer's] mind" that a crime might be going on; that the officer was not sure what was going on in Kramer's truck, but that concerns about something illegal are "always in [the officer's] mind"; and that "[i]t could have been anything" going on in the truck. Thus, according to Kramer, the officer's conduct did not meet the "totally divorced" rule.

¶ 14 Kramer's argument assumes that we may rely on the officer's subjective concern about the possibility of criminal activity to conclude that his motivation, in seizing Kramer and checking on him, supports a conclusion that the officer was not motivated only by a desire to assist Kramer if help was needed and, therefore, was not engaged in activity "totally divorced" from the officer's law enforcement function. Kramer's assumption is supported by cases such as Horngren, 238 Wis.2d 347, 617 N.W.2d 508, in which we considered an officer's actual motivation in deciding whether the officer's conduct fit the community caretaker function. See id., ¶¶ 10-12. As explained in section C below, we question whether an officer's subjective motivation should be relevant to this Fourth Amendment seizure question. Here, however, we assume that the officer's subjective motivation is relevant. Nonetheless, we conclude that the officer's subjective concern that the innocent-seeming situation he faced might turn out to be dangerous or involve criminality does not prevent the officer's activity from being a bona fide community caretaker activity.

¶ 15 Whatever the precise meaning of "totally divorced," it cannot mean what Kramer is suggesting. In other words, it cannot mean that an officer must have subjectively ruled out all possibility of criminal activity in order to act in a community caretaker capacity. Police commonly act as community caretakers in situations where it remains reasonably possible that they will discover some criminal activity. See, e.g., State v. Ziedonis, 2005 WI App 249, ¶¶ 2-3, 17, 287 Wis.2d 831, 707 N.W.2d 565 (no dispute that police were acting as bona fide community caretakers when they first approached dwelling in response to a loose animal complaint involving two vicious dogs that were "chasing people around"); State v. Ferguson, 2001 WI App 102, ¶ 13, 244 Wis.2d 17, 629 N.W.2d 788 (police were engaged in bona fide community caretaker activity when investigating a call about a fight that led to discovery of underage drinkers); Dull, 211 Wis.2d at 659-60, 565 N.W.2d 575 (officer investigating a noise complaint was initially acting as community caretaker, even though officer's role as community caretaker ended when officer determined that juvenile was intoxicated and took him into custody under the juvenile justice code).

¶ 16 If the meaning of "totally divorced" were as Kramer suggests, the situations in which an officer could lawfully perform valuable community caretaker services would be few and far between. This court has previously cautioned against a "too-narrow view" of the community caretaker function, lest police officers be dissuaded from discharging that function. See Ziedonis, 287 Wis.2d 831, ¶ 15, 707 N.W.2d 565; see also Horngren, 238 Wis.2d 347, ¶ 18, 617 N.W.2d 508.

¶ 17 Accordingly, because we reject Kramer's "totally divorced" argument...