State v. Rogers
| Decision Date | 06 December 2022 |
| Docket Number | 2021AP995-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Jason Gene Rogers, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5. (2019-20).
APPEAL from a judgment of the circuit court for Milwaukee County Cir. Ct. No. 2017CF1876 PEDRO COLON, Judge. Affirmed.
Before Brash, C.J., Dugan and White, JJ.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).
¶1 Jason Gene Rogers appeals from a judgment entered following his guilty plea to one count of possession of a firearm by a felon. On appeal, Rogers argues that the circuit court erroneously denied his motion to suppress the firearm found in the vehicle he was driving at the time of his arrest. Upon review, we conclude that the officer was acting as a community caretaker when he impounded Rogers's vehicle and then searched the vehicle prior to the tow. Accordingly, the circuit court properly denied Rogers's motion to suppress, and we affirm.
¶2 Milwaukee County Sheriff's Deputy Ryan Richards stopped Rogers near the Potawatomi Hotel &Casino on the night of Friday, April 14, 2017, for speeding and deviating from his lane. When Deputy Richards approached Rogers during the stop Deputy Richards immediately noticed signs of intoxication including that Rogers smelled of alcohol and had red, glassy eyes. Deputy Richards conducted field sobriety tests and a breathalyzer test and arrested Rogers for operating while intoxicated.
¶3 Following Rogers's arrest, Deputy Richards arranged a tow for the vehicle that Rogers was driving. Prior to the tow truck arriving, Deputy Richards searched the vehicle for valuables and discovered a firearm in the vehicle's center console.
¶4 Rogers sought to suppress the firearm that Deputy Richards discovered in the center console of the vehicle, and the circuit court held a hearing at which Deputy Richards Rogers, Rogers's friend, and Rogers's brother testified.[1] ¶5 Deputy Richards testified that he was on patrol at approximately 10:30 p.m. on the night of Friday, April 14, 2017, when he stopped a white Chevy SUV on Canal Street and Potawatomi Circle. Deputy Richards was questioned further regarding where precisely he stopped the vehicle: "And now when the vehicle stopped for you, was it in a lane of traffic, a parking lane, a parking lot, something else; where was the vehicle stopped?" Deputy Richards responded, "It was in the lane of traffic, the right lane." On cross-examination, Deputy Richards was further questioned about the location of the vehicle:
¶6 After the vehicle stopped, Deputy Richards approached the driver and conducted an operating while intoxicated investigation. Following that investigation, Deputy Richards arrested Rogers and eventually placed him in the back of the squad car. He then arranged to have the vehicle towed because there was not another person at the scene who was authorized to take the vehicle. He testified that, pursuant to the Milwaukee Police Department's "Arrest Tow" policy, only the owner of the vehicle may give permission for someone to take the vehicle from the scene, and people who arrive during the stop are not permitted to take the vehicle.[2] Deputy Richards further confirmed that Rogers was the sole occupant of the vehicle at the time of the stop and, by Rogers's own admission, was not the vehicle's owner.[3]
¶7 Deputy Richards further testified that two individuals arrived at the scene during the stop. Both of the individuals that arrived informed Deputy Richards that they would be willing to take the vehicle. As Rogers testified, he called his friend when he noticed Deputy Richards behind him to "say [he] was being pulled over," and he asked his friend "if he could come down and help out." Rogers's friend then testified that he went to the scene with Rogers's brother. According to Rogers, his friend, and his brother, Rogers was sitting on the curb at the time that they arrived at the scene. Rogers's friend and brother further described that Rogers was in handcuffs by the time they arrived, and they were not able to speak with Rogers.
¶8 After Deputy Richards arranged to have the vehicle towed, he conducted an inventory search to search the vehicle for valuables and "prevent [the] department from theft lawsuits." Prior to conducting the inventory search, Deputy Richards asked Rogers if he wanted any specific valuables out of the vehicle, and "he stated his phone and wallet." Deputy Richards testified that he then uncovered the firearm in the center console during the inventory search.
¶9 The circuit court denied Rogers's motion, and Rogers ultimately pled guilty to one count of possession of a firearm by a felon. He was subsequently sentenced to three years of initial confinement and three years of extended supervision, which was imposed and stayed for three years of probation.
¶10 Rogers now appeals.
¶11 On appeal, Rogers argues that the circuit court erroneously denied his motion to suppress the firearm discovered in the center console of the vehicle that he was driving at the time of his arrest. Specifically, Rogers argues that Deputy Richards was not exercising a bona fide community caretaker function when he impounded the vehicle, and thus, Deputy Richards was not authorized to search the vehicle for valuables as part of that impoundment.[4]
¶12 We review a circuit court's denial of a motion to suppress evidence using a two-step standard. State v Lonkoski, 2013 WI 30, ¶21, 346 Wis.2d 523, 828 N.W.2d 552. We will uphold the circuit court's findings of fact unless they are clearly erroneous, and we review independently the application of the facts to the constitutional principles. Id.
¶13 We apply a three-step test when evaluating the exercise of the community caretaker function:
(1) whether a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, whether the police were exercising a bona fide community caretaker function; and (3) if so, whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised[.]
State v. Asboth, 2017 WI 76, ¶13, 376 Wis.2d 644, 898 N.W.2d 541 (citation omitted). The parties do not dispute that a search or seizure within the meaning of the Fourth Amendment occurred, and that Rogers's arguments focus on the second and third steps of the community caretaker test. Thus, we turn our attention to whether the second and third steps of the community caretaker test were met.
¶14 Rogers argues that Deputy Richards was not performing a bona fide community caretaker function under the second step because Deputy Richards "clarified" on cross-examination that he did not know if there was a parking sign posted where the vehicle was stopped or if there was a parking lane. Whether there was a parking sign posted at the place the vehicle stopped is irrelevant- Deputy Richards testified that the vehicle was stopped in the right lane of traffic. Indeed, Deputy Richards was presented with a choice between a traffic lane and a parking lane when describing where the vehicle stopped, and Deputy Richards specifically testified that the vehicle stopped "in the lane of traffic." On crossexamination, he also testified that he did not believe that Rogers pulled over into a parking lane and instead, he believed there were two lanes of traffic. Thus, we reject Rogers's argument.
¶15 The second step of the test "ultimately turns on whether the officer can 'articulate[] an objectively reasonable basis' for exercising a community caretaker function." Asboth, 376 Wis.2d 644, ¶15 (alteration in original; citation omitted). Here, because Deputy Richards testified that the vehicle was stopped in a lane of traffic near a casino on a Friday night and there was no one else authorized to take the vehicle from the scene, he has articulated an objectively reasonable basis for exercising his community caretaker function and arranging a tow for the vehicle. "'[T]he authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge' in the community caretaker context." Id., ¶16 (citation omitted). Therefore, we conclude that Deputy Richards articulated an objectively reasonable basis for exercising his community caretaker function, and the second step is satisfied. See id., ¶15.
¶16 Turning to the third step, Rogers argues that the community caretaker function was not reasonably exercised. Rogers contends that the vehicle was not at risk of theft or vandalism, there were no exigent circumstances warranting an immediate tow of the vehicle, and Deputy Richards's testimony "was equivocal whether the vehicle was illegally parked."
¶17 Under the third step of the community caretaker test "we evaluate the reasonableness of the law enforcement officer's exercise of a bona fide community caretaker function by 'balancing [the] public interest or need that is furthered by the officer's conduct against the degree of and nature of the restriction upon the liberty interest of the citizen.'" Asboth, 376 Wis.2d 644, ¶30 (alteration in...
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