by Sam Rutherford

The Supreme Court of Wisconsin held that a police officer exceeded the proper bounds of the community caretaking function exception to the Fourth Amendment during the course of a traffic stop. The officer stopped the driver to perform a welfare check after the driver had fallen asleep in a drive-­thru, but he then unreasonably extended the detention once an initial conversation with the driver dispelled the officer’s safety concerns, i.e., the community caretaking function.

Background

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 police. Officer Devin Simon was nearby and watched as Wiskowski left the drive-­thru. He did not observe any traffic violations. Simon stopped Wiskowski anyway, out of concern for his ability to drive safely and to ensure he did not require medical attention.

During their initial conversation, Wiskowski said that he was tired because he had just worked a 24-­hour shift. Simon did not observe any signs of impairment or other criminality. Officer Cobalt arrived not long after and asked Simon what was going on. Simon relayed the information he had at that point, including Wiskowski’s explanation for why he fell asleep but said he wanted to remove Wiskowski from his vehicle anyway because he believed something was “off.” The officers decided to pull Wiskowski’s driving record and discovered he had three previous convictions for driving while drunk.

Simon ordered Wiskowski from his vehicle. Only then did he smell alcohol on Wiskowski’s breathe and observe other signs of impairment. Wiskowski was charged with a fourth offense driving while impaired, and he moved to suppress the arrest as the result of an illegal search. The trial court denied the motion, and Wiskowski pleaded no-­contest to the charge but preserved his right to appeal the suppression ruling. The Court of Appeals affirmed, holding that the stop and subsequent detention were permissible under the community caretaking function exception to the Fourth Amendment. The Wisconsin Supreme Court granted review and reversed.

Analysis

Wiskowski argued that Simon’s decision to remove him from his vehicle violated the Fourth Amendment, which prohibits “unreasonable searches and seizures.” U.S. Const., amend. IV. Because there were no factual disputes, Wiskowski’s appeal presented a pure “question of law” that the Court reviewed “independently.” State v. Genous, 961 N.W.2d 41 (Wis. 2021). The appeal presented two legal issues: whether Simon’s traffic stop and detention of Wiskowski was reasonable as either (1) an investigatory stop or (2) under the community caretaking function.

An investigatory stop is permissible if the officer, under the totality of the circumstances, reasonably suspects that criminal activity is afoot. State v. Matalonis, 875 N.W.2d 567 (Wis. 2016). While this standard is not overly demanding, it does require more than a mere hunch. Genous.

The Court concluded that Simon’s traffic stop was not permissible for investigatory purposes because he “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.” That Wiskowski fell asleep in the drive-­thru was insufficient. “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 Court stated.

Next, the Court turned to whether the community caretaking function justified Simon’s initial stop and extended detention of Wiskowski. The community caretaking function permits a police officer to briefly detain a citizen to render aid to someone in need, but such detentions must be “totally divorced from the detection, investigation, or acquisition of evidence” of a crime. State v. Kramer, 759 N.W.2d 598 (Wis. 2009).

Wisconsin courts employ a three-­part test to determine whether a stop is justified under the community caretaking function. First courts ask whether a seizure has occurred within the meaning of the Fourth Amendment. Second, courts determine whether the officer was engaging in a bona fide community caretaking function. And third, they assess whether the nature of the detention was reasonable. Kramer.

Here, neither party disputed that Simon’s traffic stop constituted a seizure under the Fourth Amendment, so the first factor was met. Turning to the second factor, the Court noted that it was required to examine whether the stop was “an objective effort to assist a member of the public in need” completely divorced from criminal investigation. The Court assumed without deciding that stopping a motorist who had fallen asleep in a drive-­thru satisfied this standard. Therefore, the only actual dispute in this case was the third and final factor.

Under the third factor, courts must ascertain whether the “continuation” of a stop initially justified by the community caretaking function was reasonable under the facts of the case. This requires 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.” Kramer. According to the Court, the “key” to answering this question in Wiskowski’s case was determining “whether and when it is reasonable to extend a seizure undertaken for community caretaking purposes once an officer resolves the reason for the stop.”

Several out-­of-­jurisdiction cases informed the Court’s decision. In Martinez v. Mares, 613 F. Appx 731 (10th Cir. 2015), officers went to a home in their community caretaking capacity and detained the wrong person, but they pat searched him anyway. This violated the Fourth Amendment because the officers should have released the man once they determined he was not the person they were looking for. Similarly, in State v. Zeimer, 510 P.3d 100 (Mont. 2022), police noticed an irregularly parked vehicle with its occupant slumped over the steering wheel. The driver perked up, began checking his mirrors, and put his vehicle in gear without any apparent need for assistance as the officers approached, but they decided to detain him anyway. This too violated the Fourth Amendment because the police should not have detained the driver once the basis for their initial concern dissipated.

The Court determined that these cases “reflect the general Fourth Amendment principle that ‘any warrantless intrusion must be as limited as is reasonably possible consistent with the purpose justifying it in the first instance.’” Quoting Bies v. State, 251 N.W.2d 461 (Wis. 1977). It then instructed: “the scope of caretaking stops should be guided and limited by the original community caretaking justification. The justification for restricting a person’s liberty ends when the welfare-­check justification is resolved, provided no other independent reason exists to detain the person.”

Applying these principles to Wiskowski’s case, the Court had little trouble concluding that Simon unreasonably extended what was initially a justifiable stop under the community caretaking function for the purpose of performing a welfare check and ensuring that Wiskowski was capable of driving safely. Simon’s conversation with Wiskowski dispelled any concerns he might have had concerning Wiskowski’s health or ability to drive, so the community caretaking justification for the stop ended at that time. However, Simon unreasonably extended the detention, which then became a criminal investigation, based on nothing more than a “hunch.” Thus, the Court held that Simon violated Wiskowski’s rights under the Fourth Amendment.

Conclusion

Accordingly, the Court vacated Wiskowski’s conviction and remanded the case to the trial court with instructions to grant his motion to suppress. See: State v. Wiskowski, 7 N.W.3d 474 (Wis. 2024).

Writer’s note: In a concurring opinion in Wiskowski, Judge Hagedorn specifically noted that he is unsure whether the community caretaking function, at least as currently formulated, remains a valid standalone exception to the warrant requirement under the Fourth Amendment following the U.S. Supreme Court’s decision in Caniglia v. Strom, 593 U.S. 194 (2021). Anyone interested in the continuing validity of the community caretaking exception is encouraged to read Judge Hagedorn’s concurring opinion for an understanding of the uncertainty created by Caniglia.

It is worth noting that the New York Court of Appeals, that state’s highest appellate court, has also questioned the continuing validity of the community caretaking function after Caniglia. People v. Brown, 2024 N.Y. LEXIS 630 (2024). Anyone engaged in litigation involving the community caretaking function should carefully review both the majority and concurring opinions in all three of these cases.

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