State v. Wiskowski

• Docket Number: 2021AP2105-CR
• Decision Date: 18 June 2024
• Citation: 412 Wis. 2d 185,7 N.W.3d 474
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Michael Gene Wiskowski, Defendant-Appellant-Petitioner
• Court: Wisconsin Supreme Court

412 Wis. 2d 185

7 N.W.3d 474

State of Wisconsin, Plaintiff-Respondent,

v.Michael Gene Wiskowski, Defendant-Appellant-Petitioner.

Supreme Court

No. 2021AP2105–CR. Oral argument January 24, 2024.—Decided June 18, 2024.

2024 WI 23

(Also reported in 7 N.W.3d 474.)

REVIEW of a decision of the Court of Appeals.Reversed and cause remanded.

For the defendant-appellant-petitioner, there were briefs filed by Kirk B. Obear, and Birdsall Obear & Associates, Sheboygan.There was an oral argument by Kirk B. Obear.

For the plaintiff-respondent, there was a brief filed by Michael J. Conway, assistant attorney general, with whom on the brief was Joshua L. Kaul,attorney general.There was an oral argument by Michael J. Conway, assistant attorney general

¶ 1.BRIAN HAGEDORN, J. Michael Wiskowski fell asleep in a McDonald's drive-thru lane behind the wheel of his truck.An employee knocked on his window to wake him up and called the police.Officer Devin Simon was about a minute away when he received a call from dispatch regarding the incident.He headed to the scene and watched a truck matching dispatch's description pull out of the drive-thru and make a proper turn.Officer Simon then pulled Wiskowski over.Wiskowski explained that he was tired because he had just finished a 24-hour shift.Although Officer Simon did not notice any signs of impairment or criminality, he felt something was off, and prolonged the stop to determine whether he had grounds to investigate further.Officer Simon ultimately ordered Wiskowski out of his truck, at which point Wiskowski manifested signs of intoxication, leading to an arrest and charges.

¶ 2.Wiskowski moved to suppress the evidence discovered during the stop.The circuit court denied the motion, concluding that the stop and further investigation were justified as a permissible "community caretaking function."The court of appeals agreed, and we now reverse.We first conclude the traffic stop was not supported by reasonable suspicion.Furthermore, assuming without deciding that the traffic stop was permissible as a bona fide community caretaking activity, we hold that the stop was prolonged unreasonably when it transformed into an unjustified criminal investigation.The scope of caretaking stops should be guided and limited by the justification for the stop.This means that, absent another permissible reason to detain someone, the detention must end when the original community caretaking justification is resolved.

I.BACKGROUND

¶ 3.At around 1:00 p.m., while waiting in the drive-thru lane of McDonald's, Michael Wiskowski fell asleep behind the wheel of his truck.An employee knocked on his truck window to wake him up and called the Plymouth Police Department to report it.Plymouth Police Officer Devin Simon received word from dispatch about the incident.When he arrived at McDonald's a minute or so later, he saw a truck matching the caller's description near the end of the drive-thru lane.

¶ 4.Officer Simon saw Wiskowski exit the drive-thru lane, turn right, stop at a stop sign, and make a "correct, proper, and legal left turn onto the road."Officer Simon then quickly turned around in the parking lot and briefly followed Wiskowski.Wiskowski drove normally and did not commit any traffic violations; at no time did his driving appear abnormal or arouse Officer Simon's suspicions.Officer Simon nonetheless activated his lights and siren and performed a traffic stop.Wiskowski complied, pulling over into an empty parking lot.

¶ 5.Officer Simon approached the vehicle, asked Wiskowski about the report that he fell asleep in his truck, and took Wiskowski's driver's license and insurance card.Wiskowski explained that he had been working for the past 24 hours.Officer Simon later testified that, up to this point, Wiskowski did not appear sleepy, was not slurring his speech or suffering from any obvious medical issue like a heart attack or seizure, and was otherwise "acting normal."He also testified that he did not see or smell any alcohol on Wiskowski, nor did he observe any other signs of intoxication.The only behavior Officer Simon characterized as "odd" was that Wiskowski initially gave him an insurance card for the wrong car before handing him the correct one around 20 seconds later.

¶ 6.Following this initial encounter, Officer Simon returned to his squad car.By this point, a more experienced colleague—Officer Cobalt—had arrived on the scene.Officer Simon told Officer Cobalt what Wiskowski had said about working for 24 hours, and stated that he wanted to get Wiskowski out of his truck.Officer Cobalt asked, "What are you going to pull him out for?"The two conversed further, and Officer Cobalt told Officer Simon to pull up Wiskowski's driving record, which revealed that Wiskowski had three past OWIs.The two officers continued to discuss whether there was "enough to take him out" of the truck and investigate further.Officer Simon said that he would feel better "smelling booze" on Wiskowski before pulling him out.Ultimately, he decided to do so, citing Wiskowski's reported sleepiness and "odd" behavior in handing him two insurance cards.Officer Simon later testified his goal was to see if there was something "going on that maybe [he] wasn't seeing in the car," by which he meant determining whether Wiskowski had been drinking.Approximately five to six minutes transpired after Officer Simon's initial conversation with Wiskowski concluded and when he ordered him out of his truck.

¶ 7.Once Wiskowski got out of his truck, Officer Simon smelled alcohol for the first time and noticed Wiskowski stumble.Officer Simon asked how much he had to drink, to which Wiskowski replied, "a couple beers."At that point, Officer Simon took Wiskowski back to the police station to perform field sobriety tests.Based on his observations during the tests, Officer Simon determined Wiskowski had been driving under the influence of alcohol and arrested him.The State charged Wiskowski with one count of operating a motor vehicle under the influence and one count of operating with prohibited alcohol concentration, both as fourth offenses.

¶ 8.Wiskowski moved to suppress the evidence resulting from the traffic stop.After an evidentiary hearing and briefing, the circuit court¹ denied Wiskowski's motion, finding that Officer Simon's stop was justified as community caretaking activity.A year later, Wiskowski asked the court to hold another evidentiary hearing to consider bodycam footage that had not been presented to the court the first time around.The court did so, construing it as a motion to reconsider.The court once again denied Wiskowski's motion to suppress, continuing to find that Officer Simon "acted reasonably under the community caretaker function."

¶ 9.Wiskowski eventually pled no contest to one count of operating a motor vehicle under the influence as a fourth offense.He appealed the judgement of conviction, arguing that the circuit court erred in denying his motion to suppress.The court of appeals affirmed on the same community caretaking grounds.State v. Wiskowski,No. 2021AP2105–CR, unpublished order (Wis. Ct. App. Mar. 15, 2023).Wiskowski then petitioned this court for review.

II.DISCUSSION

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¶ 10.Wiskowski argues that Officer Simon's traffic stop was unlawful under the Fourth Amendment, which prohibits "unreasonable searches and seizures."²U.S. Const. amend. IV.He seeks the suppres- sion of evidence obtained against him.³The facts are not in dispute, so this is a question of law we review independently.State v. Genous,2021 WI 50, ¶ 10, 397 Wis. 2d 293, 961 N.W.2d 41.

¶ 11.The State contends the stop was lawful for two independent reasons.First, the State maintains it was a permissible investigatory stop supported by reasonable suspicion.⁴Second, the State agrees with the circuit court and court of appeals that this was a permissible community caretaker activity.Neither succeed.

A.Investigatory Stop

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¶ 12.One type of intrusion deemed reasonable under the Fourth Amendment is an investigatory stop.

Id.,¶ 7.This temporary infringement on personal liberty must be supported by reasonable suspicion—that is, in view of the whole picture, whether a reasonable police officer would reasonably suspect that criminal activity is afoot.Id.,¶ 10.While reasonable suspicion doesn't demand much, it does demand more than a hunch.Id.,¶ 8.And that is all we see here.

¶ 13.It is true that falling asleep in a drive-thru during the day could be a sign someone is impaired.It is also black-letter law that officers need not rule out the possibility of innocent behavior to initiate a traffic stop.Id.But by itself, without any additional indicators of impairment, we conclude this is too speculative to amount to reasonable suspicion.

¶ 14.By the time Officer Simon arrived, Wiskowski was driving normally out of the drive-thru and onto the road.Officer Simon did not observe nor were there any reports of erratic driving.Wiskowski did not commit any traffic violations, and there were no other clues suggesting he was operating his vehicle while intoxicated.Other than falling asleep, no one reported any other kind of problematic behavior or indications of impairment during his visit to McDonald's.Midday drowsiness standing alone, without any other indicators of impairment, is simply not enough.Reasonable suspicion may be a low bar, but it's not that low.The State's contention that Officer Simon's traffic stop was supported by reasonable suspicion fails.⁵

B.Community Caretaking

¶ 15.The State also argues that Officer Simon's seizure of Wiskowski during the traffic stop was justified as a permissible community caretaker activity.The line of community caretaker cases is rooted in the recognition that law enforcement work is multifaceted.State v. Kramer,2009 WI 14, ¶ 32, 315 Wis. 2d 414, 759 N.W2d 598.Officers wear multiple hats.Id.Sometimes they are acting to enforce the law by...