COURT OF APPEALS DECISION DATED AND FILED November 19, 2009 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. |
2007TR17368 |
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT IV |
|||
|
|
|||
|
|
|||
Plaintiff-Respondent, v. Sharon M. Lamb,
Defendant-Appellant. |
||||
|
|
|||
APPEAL
from a judgment of the circuit court for
¶1 HIGGINBOTHAM, J.[1] Sharon Lamb appeals her judgment of conviction for operating a motor vehicle while impaired and operating a motor vehicle with a prohibited alcohol concentration, first offense. Lamb argues that the circuit court erred in denying her motion to suppress evidence. There are two issues in this case: (1) whether the stop of Lamb’s vehicle constituted a seizure under the Fourth Amendment of the United States Constitution and Art. 1, Section 11 of the Wisconsin Constitution; and (2) if a seizure did occur, whether it was justified under the community caretaker doctrine. We assume without deciding that a seizure occurred in this case, and conclude that the deputy’s conduct was reasonable within the community caretaker function and thus satisfies the requirements of the federal and state constitutions. We therefore affirm.
BACKGROUND
¶2 Deputy David Hopperdietzel was patrolling Highway 12,
commonly known as the Beltline, in the City of
¶3 The deputy activated his vehicle’s overhead emergency lights as he pulled behind the stopped vehicle. Walking toward the stopped vehicle, Hopperdietzel saw vomit on the road near the vehicle’s left-side rear bumper. Upon making contact with the driver, Sharon Lamb, the deputy observed that the passenger in the left rear of the vehicle had vomited on himself and on the vehicle’s interior. Additionally, Hopperdietzel noticed Lamb’s eyes were bloodshot and her speech was slurred, and detected the odor of intoxicants and vomit emanating from the vehicle.
¶4 Hopperdietzel asked Lamb if she had been drinking, and Lamb responded affirmatively, volunteering that she had had four drinks. Hopperdietzel then asked her to step out of the vehicle to perform field sobriety tests. Lamb complied with the request, failed three field sobriety tests, and was arrested for operating a motor vehicle while intoxicated.
¶5 Lamb filed a motion to suppress the evidence of her intoxication, alleging that the deputy’s conduct constituted an unlawful stop and detention. The court denied the motion by written order without an evidentiary hearing. Lamb filed a motion to reconsider. At a hearing on the motion, the court again found no basis for an evidentiary hearing and denied Lamb’s motion to reconsider. Lamb renewed her motion to suppress at the bench trial and it was again dismissed. The court found Lamb guilty of both operating a motor vehicle while impaired and operating a motor vehicle with a prohibited alcohol concentration. This appeal follows.
DISCUSSION
A. Standard of Review
¶6 When reviewing a motion to suppress evidence, we uphold the
circuit court’s findings of fact unless they are clearly erroneous and review
constitutional issues de novo. State
v. Young, 2006 WI 98, ¶17, 294
B. Community Caretaker Function
¶7 The
¶8 We apply a three-part test to determine whether a seizure
that is unsupported by probable cause or reasonable suspicion is justified
under the community caretaker doctrine. Kramer,
315
1.
Seizure
¶9 A seizure occurs when, by physical force or show of
authority, a reasonable person would not feel free to leave. See
2.
Bona Fide Community Caretaker Function
¶10 Next, we evaluate whether the deputy’s actions constituted a
bona fide community caretaker function. See Kramer, 315
¶11 We conclude that the deputy had a reasonable basis for assuming
that the motorist, Lamb, may have been in need of assistance. The facts in this case are similar to those in
Kramer,
315
¶12 Lamb argues that her case is distinguishable from Kramer
because the deputy did not testify to any observations or experiences that
would have led him to believe that the motorist was in need of assistance.
¶13 Similar to Kramer, the facts indicate that
Deputy Hopperdietzel reasonably and objectively believed that the motorist may
have needed assistance.
¶14 As discussed in Kramer, the law enforcement and
community caretaker roles of an officer can shift to adapt to new
circumstances.
3.
The Balancing Test
¶15 In the final part of the community caretaker test, we consider
four factors to determine whether the public need and interest for the police
conduct outweigh the intrusion upon the individual’s privacy. Kramer, 315
(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.
¶16 First, we examine the “degree of the public interest and the
exigency of the situation.”
¶17 Lamb argues that the public interest in this case is not as
great as in Kramer. Specifically,
she suggests that Hopperdietzel’s concerns about whether the motorist was
stranded should have been negated because the deputy saw her pull over and stop
on the highway’s shoulder. Additionally,
Lamb stopped in the City of
¶18 Lamb reads Kramer too narrowly. Kramer does not hold that a
significant public interest supporting an exercise of the community caretaker
function exists only when a vehicle is stranded in a remote area and a heightened
possibility of a medical emergency exists. Instead, the Kramer court states more
generally that “the public has a substantial interest in police offering
assistance to motorists who may need assistance .…”
¶19 The second factor requires us to consider the attendant
circumstances surrounding the seizure including whether the time, location, and
degree of authority and force the deputy displayed were appropriate under the
circumstances.
¶20 In Kramer, the court found that the use of emergency lights was
not an overt act of authority or force, but a reasonable safety measure.
¶21 We conclude that Hopperdietzel’s actions were also appropriate
under these circumstances. As in Kramer,
safety reasons justified the officer’s use of his emergency lights; the two
vehicles were parked on the shoulder of a busy highway at night. Moreover, the driver’s side tires of Lamb’s
vehicle were parked on the fog line, unusually close to traffic traveling at
highway speeds. Hopperdietzel’s use of the
emergency lights allowed him to approach the vehicle safely on the driver’s side.
For her part, Lamb argues that the
officer should have approached the vehicle on the passenger’s side. However, Hopperdietzel testified that he
approached the driver’s side because it was “standard procedure” to deal with
potential threats to officer safety. Clearly,
it is “unreasonable to require that police officers take unnecessary risks in
the performance of their duties.” Terry
v.
¶22 Under the third factor, we consider whether the presence of an
automobile influenced the reasonableness of the community caretaker function. Kramer,
315
¶23 Finally, we must evaluate the feasibility and availability of
alternatives to the officer’s conduct.
¶24 Lamb argues that Hopperdietzel could have approached the vehicle without engaging the emergency lights. This argument fails to address the core of this factor. The issue is whether the officer had a feasible alternative to approaching the vehicle and having contact with the driver in order to determine whether there was a problem. We conclude that the evidence supports the officer’s actions as the only reasonable means of gathering this information. Further, as we addressed under the second factor, it was reasonable for the officer to activate his lights for emergency purposes. Therefore, we conclude that the fourth factor’s requirements have been met and support the conclusion that Hopperdietzel reasonably acted within his community caretaker function. Because all four factors of the third part of the test weigh in favor of the public interest and need for the officer’s action, the final part of the community caretaker test is satisfied.
CONCLUSION
¶25 Assuming without deciding that a seizure occurred, we conclude that Deputy Hopperdietzel’s actions fell within the scope of the community caretaker exception to the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. Applying the community caretaker test, we conclude that Hopperdietzel actions constituted a bona fide community caretaker function, and that the public need and interest for the officer’s actions outweighed the minimal intrusion of Lamb’s privacy interest. We therefore affirm.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(d) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.