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COURT OF APPEALS DECISION DATED AND RELEASED April 17, 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. 95-2924-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GARY RACH,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Sheboygan County: GARY LANGHOFF, Judge. Affirmed.
SNYDER, J. Gary
Rach appeals from an order denying his pretrial motion to suppress evidence and
from a judgment of conviction. On
appeal, Rach questions the constitutionality of the police stop. He claims that there was insufficient
suspicion to warrant a Terry[1]
stop and insufficient exigency to justify invocation of the emergency
doctrine. Consequently, Rach argues
that he was unlawfully seized and all evidence from the subsequent search of
his person should have been suppressed.
We conclude that the
initial stop was constitutional because the police officer was properly
exercising his community caretaker duties.
Second, the totality of the circumstances warranted the performance of a
pat-down search. Accordingly, we
affirm.
At approximately 3:00
a.m., on August 3, 1995, Deputy Blaine Spicer of the Sheboygan County Sheriff's
Department spotted Rach “staggering” along a dark, rural county road. Spicer observed that Rach was having trouble
keeping his balance and was walking about a foot off of the traveled portion of
the pavement.
Spicer stopped his squad
car and asked Rach to cross the road.
They made contact behind the vehicle and Spicer noticed that Rach's eyes
were bloodshot, his breath had a strong odor of intoxicants and his speech was
quite slurred. After speaking with Rach
to ascertain his identity, Spicer determined that Rach's intoxicated condition
placed him at risk of injury.[2] Spicer told Rach that he had concerns about
his safety and feared that he might be hit by oncoming traffic. Spicer informed Rach that he was going to
give him a ride home.[3]
Acting according to
departmental policy, Spicer performed a pat-down search of Rach before letting
him into the vehicle. During the
search, Spicer felt a hard, square box in Rach's left shorts pocket measuring
approximately three by five inches. He
asked Rach about the item and was told it was a lighter box.
Spicer asked Rach to
produce the box, believing that it was large enough to contain a blade or some
other type of weapon. Rach gave the box
to Spicer, who inspected the contents and found a chrome marijuana pipe with
residue in the bowl. Spicer then placed
Rach under arrest for possession of drug paraphernalia and proceeded to execute
a search incident to arrest, recovering a small vial of marijuana from Rach's
left shorts pocket.
At a pretrial motion
hearing, Rach argued that the evidence should be suppressed because he was seized
in violation of the Fourth Amendment prior to being subjected to the
search. The trial court denied the
motion to suppress, concluding that Spicer had properly exercised his community
caretaker duty when he detained Rach.
As a result, the court
ruled that the pretransport pat-down search of Rach and the following search
incident to arrest were lawful.[4] Rach was subsequently convicted at a bench
trial. He now appeals the denial of the
suppression motion and the judgment of conviction.
Determining the
constitutionality of a seizure is a question of law subject to de novo
review. State v. Richardson,
156 Wis.2d 128, 137-38, 456 N.W.2d 830, 833 (1990). It has been well established that the ability of the police to
act is not limited to instances where there is probable cause for the
commission of crime. State v.
Anderson, 142 Wis.2d 162, 167, 417 N.W.2d 411, 413 (Ct. App.
1987). Police action in situations
beyond criminal investigation constitutes a part of the community caretaker
function—an important and essential aspect of the police role. Id.
The community caretaker
function has been defined as police activity totally divorced from the
detection, investigation or acquisition of evidence relating to the violation
of a criminal statute. State v.
Ellenbecker, 159 Wis.2d 91, 96, 464 N.W.2d 427, 429 (Ct. App.
1990). However, the freedom to act
within the caretaker role does not create an opportunity for police to violate
citizens' Fourth Amendment rights to be free of arbitrary invasions from
government officials. See Anderson,
142 Wis.2d at 167, 417 N.W.2d at 413.
Recognition of the police community caretaker function does not
necessarily place the episode beyond constitutional scrutiny. Id.
To ascertain whether a
citizen's Fourth Amendment rights have been violated by police exercise of the
caretaker function, a court must determine whether: (1) a seizure within the meaning of the Fourth Amendment has
occurred, (2) the police conduct was bona fide community caretaker activity,
and (3) the public need and interest outweigh the intrusion upon the
individual. Id. at 169,
417 N.W.2d at 414. It is undisputed by
both parties that Spicer's contact with Rach constituted a seizure within the
meaning of the Fourth Amendment.
We next determine
whether Spicer was engaged in bona fide community caretaker activity. Since community caretaker activity is that
which is divorced from criminal investigation, we look to Spicer's motivation
for stopping to speak with Rach. When
he came upon Rach, Spicer did not suspect him of criminal activity. Spicer stopped because he was concerned for
Rach's welfare and wanted to make sure that he was all right. He saw a pedestrian having difficulty
keeping his balance walking alone on a rural road in the middle of the
night. Stopping Rach to ascertain his
need for assistance was clearly bona fide community caretaking.
Finally, we consider
whether the public need and interest outweigh the intrusion upon the privacy of
the individual. The following factors
are determinative: (1) the degree of
the public interest and the exigency of the situation; (2) the attendant
circumstances surrounding the seizure, including the time, location and degree
of overt authority and force displayed; and (3) the availability, feasibility
and effectiveness of alternatives to the type of intrusion actually
accomplished. Anderson,
142 Wis.2d at 169‑70, 417 N.W.2d at 414.
There is a strong public
interest in administering assistance to individuals who may be incapacitated or
stranded along the side of the road.
Given the remote location, the time of the incident and Rach's obvious
physical impairment due to his admitted state of intoxication, the slight
intrusion upon his privacy was distinctly outweighed by the need to ensure his
safe return home. Spicer momentarily
stopped Rach, asked him a few questions and determined that he needed a ride
home. This was the most effective and
least intrusive way of satisfying the public interest.
Rach contends that
Spicer unlawfully subjected him to a Terry stop because there was
insufficient suspicion that a crime had been or was about to be committed. See Terry v. Ohio, 392
U.S. 1 (1968). However, the State is
not arguing that this case involves a Terry stop. At the pretrial hearing, the State expressly
noted, “[T]his is not a Terry stop .... It's just a very dutiful, caretaker-type stop.”
Rach also argues that
there was insufficient exigency to justify an emergency doctrine seizure. The medical emergency exception allows
warrantless entries and searches when police reasonably believe a person is in
need of aid. State v. Prober, 98 Wis.2d 345, 360, 297 N.W.2d 1, 9 (1980), overruled
on other grounds by State v. Weide, 155 Wis.2d 537, 455
N.W.2d 899 (1990). For example, persons
who are unconscious or semi-conscious may be searched to ascertain the cause,
and homes may be entered to search for victims or apprehend those responsible
for a crime. Id. at
360-61, 297 N.W.2d at 9.
The emergency doctrine
is not at issue in this case. The State
does not offer this exception as its justification for seizing Rach, and the
doctrine does not apply to the factual situation in this case. Nonetheless, based on our previous analysis,
we conclude that Spicer's stop was a proper exercise of his community caretaker
duty and as such did not violate Rach's Fourth Amendment rights.
We now shift our
analysis to a determination of whether the pat-down search was reasonable. Whether a search is reasonable is a question
of law and is reviewed without deference to the trial court. See State v. Morgan, 197
Wis.2d 200, 208, 539 N.W.2d 887, 891 (1995).
In making its
determination, the court must balance the need for the search against the
invasion of the individual's privacy. Id.
at 208‑09, 539 N.W.2d at 891. The
objective test is whether “a reasonably prudent [person] in the circumstances
would be warranted in the belief that his [or her] safety ... was in
danger. ... [D]ue weight must be given
... to the specific reasonable inferences which he [or she] is entitled to draw
from the facts in light of his [or her] experience.” Id. at 209, 539 N.W.2d at 891 (quoting Terry,
392 U.S. at 27).
Pat-down searches are
justified when an officer has a reasonable suspicion that a suspect may be
armed. Id. The determination of reasonableness is based
on the totality of the circumstances known to the searching officer. Id.
The decision to give
Rach a ride home placed Spicer in a vulnerable position. Spicer was alone in an isolated area and he
was about to place an intoxicated person he did not know into his squad
car. There was the possibility that
Rach could suddenly become irrational and act unpredictably. Spicer testified that he was accustomed to
performing a pat-down search for officer safety before allowing anyone into his
squad car, and that this was part of the policy of the Sheboygan County Sheriff's
Department. Given the time, the location
and Rach's state of intoxication, it was reasonable for Spicer to perform the
pat-down search.
Spicer testified that
when he performed the pat-down search, he felt a hard, square object in Rach's
shorts pocket. He testified that
because of the size and configuration of the object, he believed that it was
large enough to contain a knife or some type of blade. He asked Rach what it was, and after Rach
responded that it was a lighter box, Spicer asked to see it. Rach then pulled it from his pocket and gave
it to Spicer.
Based on the totality of
the circumstances as articulated earlier, we conclude that the pat-down search
and subsequent examination of the lighter box were not violative of Rach's
Fourth Amendment protections. Spicer
was justified in his suspicion that Rach might be armed.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] Rach told Spicer that he had been at a tavern playing darts and was on his way home. At the suppression hearing, Rach testified that he had consumed approximately two pitchers of beer at the tavern and admitted that he felt intoxicated.