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COURT OF
APPEALS DECISION DATED AND
RELEASED January
18, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1983-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
OWEN
JOHNSON,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: RICHARD J.
CALLAWAY, Judge. Affirmed.
DYKMAN,
J. This is a single-judge appeal decided pursuant to
§ 752.31(2)(c), Stats. Owen Johnson appeals from a judgment
convicting him of operating a motor vehicle while under the influence of an
intoxicant (OMVWI), contrary to § 346.63(1)(a), Stats. He raises a
Fourth Amendment issue by asserting that a police officer illegally searched
his truck and found evidence that he was driving while intoxicated. We conclude that the officer was acting in a
community caretaker function and, therefore, the search and seizure of evidence
did not violate the Fourth Amendment.
We, therefore, affirm.
BACKGROUND
On
October 27, 1993, at about 12:40 a.m., Dane County Deputy Sheriff Todd L.
Huppert received a report that an occupied vehicle was parked at the side of a
road in the Town of Middleton. Deputy
Huppert went to the location and saw a man who appeared to be sleeping in a
truck. Deputy Huppert attempted to
contact the man to check on his welfare, thinking there could have been an
accident, that he could be ill, that he might be sleeping, or that he might be
intoxicated. He knocked on the window
and the man did not respond. He then
opened the door and noticed a strong odor of intoxicants. He spoke to the man and received no
response. He shook the man for about
five to ten minutes, finally arousing him.
After
awakening the man, Deputy Huppert asked him to step out of the truck. The man did so, and identified himself as
Owen Johnson. Johnson was eventually
charged with OMVWI. After a suppression
hearing, he pleaded no contest to OMVWI.
Johnson appeals.
DISCUSSION
Johnson asserts that the
search of his truck violated the Fourth Amendment because it was conducted
without probable cause. He notes that
sleeping in a motor vehicle is not a crime, and that this is all Deputy Huppert
knew before the search began.
But
there is an exception to the warrant requirement of the Fourth Amendment which
we recognized in State v. Anderson, 142 Wis.2d 162, 417 N.W.2d
411 (Ct. App. 1987), which is applicable to this case.[1] The exception is called the "community
caretaker" exception and it was described in Cady v. Dombrowski,
413 U.S. 433, 441 (1973). In Cady,
the Supreme Court noted that state police officers have functions which are
unrelated to detecting crime. The Court
said:
Local police officers, unlike federal officers,
frequently investigate vehicle accidents in which there is no claim of criminal
liability and engage in what, for want of a better term, may be described as
community caretaking functions, totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a
criminal statute.
Id.
In
Anderson, we set out the following test for determining whether
the community caretaker exception to the Fourth Amendment is applicable:
when 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 bona fide community caretaker activity; and (3) if so, whether
the public need and interest outweigh the intrusion upon the privacy of the
individual.
Anderson, 142 Wis.2d at 169, 417 N.W.2d at 414.
Assuming
that a Fourth Amendment seizure occurred when Deputy Huppert opened the door
and began shaking Johnson,[2]
the facts lead to only one conclusion:
Deputy Huppert's conduct was bona fide community caretaker
activity. But Johnson points to Deputy
Huppert's testimony that when he observed what appeared to be a sleeping man,
one of the things he considered was the possibility that the man might be an
intoxicated driver. He argues: "Police cannot, however, justify
actions upon a community caretaker basis when their motivations are, even in
part, investigatory."
Johnson's
view of the community caretaker exception is overly broad. Reasonableness is the foundation of Fourth
Amendment questions. If the mere
possibility of criminal liability defeats the community caretaker exception,
that exception will be narrowed to the point of being non-existent. Whenever a police officer approaches an
accident or an ambiguous situation, there will be a possibility, however small,
that evidence of a crime will surface.
Police officers are trained to detect crime, and cannot help but be
attentive to evidence of crime. It is
not reasonable to interpret the community caretaker exception as does Johnson.
The
third factor, whether the public need and interest outweigh the intrusion upon
the privacy of the individual, has four elements. Those are:
(1) the degree of the public interest and the
exigency of the situation; (2) the attendant circumstances surrounding the
seizure, including time, location, the degree of overt authority and force
displayed; (3) whether an automobile is involved; and (4) the
availability, feasibility and effectiveness of alternatives to the type of
intrusion actually accomplished.
Id. at 169-70, 417 N.W.2d at 414 (footnotes omitted). In State v. Ellenbecker, 159
Wis.2d 91, 96, 464 N.W.2d 427, 429 (Ct. App. 1990), we said:
In a community
caretaker case, reasonableness is determined by balancing the public need and
interest furthered by the police conduct against the degree of and nature of
the intrusion upon the privacy of the citizen.
This
balance is heavily weighted in favor of permitting inquiries of the sort done
by Deputy Huppert. The public has a
strong interest in protecting persons who become ill or are injured while in
their automobiles. That interest can
only be satisfied if police officers may investigate circumstances which might
lead to the discovery of an injured or ill motorist. The risk to the motorist is slight. The inconvenience of a knock on the window and further inquiry,
if that produces no response, is far outweighed by the benefit to those
motorists who become ill or injured while in their automobiles and need
help.
From
the evidence produced at Johnson's suppression hearing, it is apparent that
Deputy Huppert was engaged in bona fide community caretaker activity. He did not know what to expect when he
approached Johnson's truck. His actions
were totally divorced from gathering evidence to support a criminal conviction
because he was not specifically conducting an investigation. Even though he considered the fact that the
driver could be intoxicated, that consideration was nonspecific. He had no idea until he opened the door that
intoxication was anything more than one of the possibilities which might
explain a sleeping or comatose occupant of a parked truck. We conclude that Deputy Huppert's actions
which led to Johnson's arrest and conviction did not violate the Fourth
Amendment. We, therefore, affirm.
By
the Court.—Judgment affirmed.
Not recommended for
publication in the official reports. See
Rule 809.23(1)(b)4, Stats.