COURT OF APPEALS DECISION DATED AND FILED April 28, 2010 David R. Schanker Clerk of Court of Appeals	NOTICE
	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.�

Appeal No.�	2009AP2056-CR	Cir. Ct. No.� 2008CT2074
STATE OF WISCONSIN���			IN COURT OF APPEALS
			DISTRICT II
State of Wisconsin, ��������� Plaintiff-Respondent, ���� v. Tommy K. Miller, ��������� Defendant-Appellant.

����������� APPEAL from a judgment of the circuit court for Waukesha County:� lee s. dreyfus, jr., Judge.� Reversed.�

�1������� ANDERSON, J.[1]�� 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 village of Hartland.� At approximately 1:19 a.m., Harper observed Miller�s vehicle, a white Lexus SUV, in the 300 block of Cottonwood Avenue.� At first, the SUV appeared to be stopped in the middle of the road; however, as Harper approached, he saw that it was traveling at approximately five miles per hour.

�3������� Harper continued to observe the SUV from a distance and saw it continue slowly, southbound on Cottonwood Avenue and turn into the driveway for Endter�s Sports Bar and Grill.� Harper then lost sight of the SUV as it pulled behind the building.� Harper�s observation lasted approximately ten to fifteen seconds.

�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 Cottonwood Avenue, this time heading northbound.� The 300 block of Cottonwood Avenue is a single-lane road with a parking lane on either side, divided by a double yellow center line.� In order for a vehicle to turn around, it would need to turn around in a driveway or parking lot, as it would be illegal to make a U-turn.

�5������� While on Cottonwood, the SUV proceeded slowly in Harper�s direction, again at about five miles per hour.� Harper testified that as the SUV approached, its driver looked in his direction.� The area was lit well enough that Harper identified the driver as male.

�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.�[2]�

�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 Wis. 2d 146, 150, 499 N.W.2d 190 (Ct. App. 1993). �Accordingly, an appellate court independently reviews whether an officer�s conduct falls within the community caretaker function and satisfies the requirements of the Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution. �See State v. Kelsey C.R., 2001 WI 54, ��29, 34, 243 Wis. 2d 422, 626 N.W.2d 777.� A circuit court�s findings of fact will be affirmed upon appeal unless they are against the great weight and clear preponderance of the evidence.� State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990).

�11����� On appeal, Miller argues that Harper was not acting as a bona fide community caretaker;[3] 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 Wis. 2d 162, 417 N.W.2d 411 (Ct. App. 1987), rev�d on other grounds, 155 Wis. 2d 77, 454 N.W.2d 763 (1990).� There, we outlined the three-step test for this evaluation:

[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.

Id. at 169.�

�13����� The first step of the Anderson test requires that there must be a seizure under the Fourth Amendment.� Id.� A Fourth Amendment seizure has occurred when an officer, �by means of force or show of authority, has in some way restrained the liberty of a citizen.�� Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).� Here, there is no issue as to whether a seizure occurred.� Harper seized Miller when he activated his red and blue squad lights and pulled over Miller�s SUV.

�14����� The second step requires that the police action in seizing the defendant be a �bona fide community caretaker activity.�� Anderson, 142 Wis. 2d at 169.� �When evaluating whether a community caretaker function is bona fide, we examine the totality of the circumstances as they existed at the time of the police conduct.�� Kramer, 315 Wis. 2d 414, �30. �In order to be considered a community caretaker function, the police action must be �totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.�� Cady v. Dombrowski, 413 U.S. 433, 441 (1973).�

�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 Wis. 2d 414, �30.� Rather, the community caretaker function is ��totally divorced� from an officer�s law enforcement function because a different facet of police work is paramount.�� Id., �35.� Given this, the supreme court held that �when a search or seizure is not supported by probable cause or reasonable suspicion and it is contended that the reasonableness of police conduct stands on other footing, an officer�s subjective motivation is a factor that may warrant consideration.�� Id., �27.� Moreover, �[i]f the [circuit] court concludes that the officer has articulated an objectively reasonable basis under the totality of the circumstances ... he [or she] has met the standard of acting as a bona fide community caretaker, whose community caretaker function is totally divorced from law enforcement functions.�� Id., �36.

�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 Wis. 2d at 169.� Harper did not testify that he was motivated by a belief that the driver was in need of any assistance, medical or mechanical. �See Kramer, 315 Wis. 2d 414, �27.� Additionally, Harper did not articulate an objectively reasonable basis for his actions as a community caretaker.� See id., �36. �Indeed, the record is void of any showing that Harper was concerned that Miller may have been in need of assistance.� The record tells us little more than Harper �wanted to stop [Miller�s] vehicle right away before it merged onto [Highway] 16.�� Harper�s actions were not �totally divorced� from his law enforcement function and, therefore, do not qualify as actions within his community caretaker function.[4]� See id.

����������� By the Court.�Judgment reversed.

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.

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[1]  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.

[2]  In 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 Wis. 2d 51, 55, 556 N.W.2d 681 (1996) (emphasis added).� Stated another way, the officer must have �reasonable suspicion� and does not need �probable cause� to perform a Terry stop.� See Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) (A Fourth Amendment seizure has occurred when an officer, �by means of force or show of authority, has in some way restrained the liberty of a citizen.�). �

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.

[3]  On appeal, Miller also argues that reasonable suspicion for an investigatory stop did not exist.� See Waldner, 206 Wis. 2d at 55.� Whether there was reasonable suspicion under Terry has already been decided by the circuit court in Miller�s favor and is not at issue in this appeal.� See footnote 2 of this opinion.

[4]  Because Harper was not acting as a bona fide community caretaker, we need not proceed to the third step of the Anderson test.� See State v. Anderson, 142 Wis. 2d 162, 417 N.W.2d 411 (Ct. App. 1987), rev�d on other grounds, 155 Wis. 2d 77, 454 N.W.2d 763 (1990).� The three-step Anderson test requires that all factors be answered in the affirmative.� Specifically, the test attaches an �if-so� proposition to each subsequent step.� The test as applied to the third factor reads as follows:� �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.�� Id. at 169 (emphasis added).� We have answered the second step in the negative and therefore do not proceed to the third step.