COURT OF APPEALS
DATED AND FILED
April 28, 2010
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Tommy K. Miller,
from a judgment of the circuit court for
¶1 ANDERSON, J. Tommy K. Miller appeals from a judgment of conviction of operating a motor vehicle while intoxicated, second offense. Miller entered a guilty plea after the circuit court denied Miller’s motion to suppress statements and evidence due to unlawful search and seizure, detention and arrest. In denying the motion to suppress, the circuit court upheld the validity of the stop based on its determination that the officer was acting as a bona fide community caretaker. We do not agree and, therefore, reverse the judgment.
¶2 In the early morning hours of August 13, 2008, Officer Matthew
Harper was on routine patrol in the
¶3 Harper continued to observe the SUV from a distance and saw
it continue slowly, southbound on
¶4 Endter’s had been closed for several hours, and Harper
decided to follow up and determine what the SUV was doing in the parking lot. Harper drove his squad into the Hartland police
department parking lot across from Endter’s with the intent of walking from his
squad toward Endter’s parking lot to see why the SUV pulled behind the
building. Harper exited his squad car to
inspect the situation, but before he began walking toward Endter’s, he saw
headlights emerging from behind the building.
He then observed the same SUV drive back onto
¶5 While on
¶6 Once the SUV was past Harper, its driver accelerated up to the speed limit. At that time, Harper started the engine of his squad car, accelerated to catch up to the SUV, and followed it through two controlled intersections toward Highway 16. When the SUV turned onto the highway on-ramp, Harper followed, turning on his red and blue lights to stop the vehicle. Harper testified that at no time did he witness the SUV commit any traffic violations or engage in any other suspicious driving.
¶7 Upon stopping the SUV, Harper identified the driver as the defendant, Miller. Harper asked Miller to step out of his vehicle to perform field sobriety tests and also gave Miller a preliminary breath test. Based on the results of the tests, Harper believed Miller to be under the influence of intoxicants and placed him under arrest.
¶8 Miller was subsequently charged and on October 1, 2008, he filed a motion to suppress statements and evidence due to unlawful seizure, detention and arrest. At the motion hearing on November 19, 2008, the circuit court denied the motion, ruling the court was “satisfied that the officer was operating appropriately in ... the community caretaker function” and that there “was a basis for the officer to have had contact with the defendant under the circumstances.”
¶9 Following the court’s denial of the motion to suppress,
Miller pled guilty to operating while intoxicated as a second offense, contrary
to Wis. Stat.
§ 346.63(1)(a), and was sentenced to the same. Miller appeals from the judgment.
¶10 Whether a stop passes constitutional muster is a question of
law that an appellate court reviews de novo.
State v. King, 175
¶11 On appeal, Miller argues that Harper was not acting as a bona fide community caretaker; therefore, the circuit court erred when it denied his motion to suppress. The State argues that Miller’s “extremely slow speed,” combined with the late hour of the night, constitute a sufficient basis on which we can hold that Harper acted as a bona fide community caretaker under State v. Kramer, 2009 WI 14, ¶42, 315 Wis. 2d 414, 759 N.W.2d 598.
¶12 In order to assess whether Harper was acting as a community
caretaker, we begin with State v. Anderson, 142
[W]hen a community caretaker function is asserted as justification for the seizure of a person, the trial court must determine: (1) that a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was a bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual.
¶13 The first step of the
¶14 The second step requires that the police action in seizing the
defendant be a “bona fide community caretaker activity.” Anderson, 142
¶15 In Kramer, our supreme court articulated what is required when
evaluating whether a community caretaker function is bona fide. It determined that Cady’s “totally divorced”
language does not mean that the officer must have no law enforcement
concerns. Kramer, 315
¶16 We conclude that Harper’s conduct was not a bona fide community
caretaker activity because it did not meet the standard. See id., ¶¶27, 35; see also Anderson, 142
By the Court.—Judgment reversed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
its ruling, the circuit court also stated it was “hard pressed to view that
under the circumstances … there was probable
cause for the commission of a crime or traffic offense.” (Emphasis added.) However, in order for an officer to make an
investigatory stop, the officer must possess “specific and articulable facts
which would warrant a reasonable
belief that criminal activity was afoot.”
State v. Waldner, 206
Regardless, the circuit court’s holding that the stop was valid under the officer’s community caretaker function implies a finding that reasonable suspicion under Terry did not exist. We need not address this issue further because the narrow issue on appeal is whether the officer was acting as a bona fide community caretaker when he performed the stop.
appeal, Miller also argues that reasonable suspicion for an investigatory stop
did not exist. See Waldner, 206
Harper was not acting as a bona fide community caretaker, we need not proceed
to the third step of the