STATE v. ANDERSON, 142 Wis.2d 162 (Ct.App. 1987)

417 N.W.2d 411

Court of Appeals of Wisconsin.
No. 86-2306-CR.Argued August 12, 1987. —
Decided November 4, 1987.

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APPEAL from a judgment of the circuit court for Walworth county: JAMES L. CARLSON, Judge. Reversed and cause remanded.

On behalf of the defendant-appellant there were briefs and oral argument by Patricia Flood, assistant state public defender.

On behalf of the plaintiff-respondent there was a brief by Donald J. Hanaway, attorney general and

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Christopher G. Wren, assistant attorney general, with oral argument by Christopher G. Wren.

Before Scott, C.J., Brown, P.J., and Nettesheim, J.

NETTESHEIM, J.

David P. Anderson appeals his convictions for one count of carrying a concealed weapon contrary to sec. 941.23, Stats., and one count of possession of a firearm by a felon contrary to sec. 941.29(1) and (2), Stats. Anderson contends that the stop, seizure and search of his vehicle and person were unconstitutional. The trial court held that the search and seizure was valid under Terry v. Ohio, 392 U.S. 1
(1968) and sec. 968.24, Stats., the “temporary detention statute.” Upon appeal, the state does not defend the trial court’s ruling under sec. 968.24. Instead, the state contends that the search and seizure of Anderson’s vehicle and person were valid under the police “community caretaker” function. We agree that this case does not present a sec. 968.24 “temporary detention” situation. Therefore we reverse the trial court’s judgment. Because factual issues remain to be resolved under the “community caretaker” function, we remand for further proceedings.

Officers Thomas Bushey and Charles Nicoud of the City of Elkhorn Police Department were patrolling an alley in the city of Elkhorn on May 28, 1985, at approximately 2:00 a.m. when they noticed Anderson’s vehicle approaching their squad car. Officer Bushey had previously received complaints that Anderson’s vehicle was parked in private business stalls in the area. Although Officer Bushey had run a license plate check on Anderson’s vehicle a week or two earlier, he had made no previous attempt to contact Anderson about the parking problem.

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Upon seeing the squad car containing the two officers, Anderson turned south into an adjoining alley, attaining a speed of approximately ten to fifteen miles per hour. He then turned onto the city streets, attaining a speed of approximately thirty miles per hour. The officers followed and activated their red and blue flashing lights. Anderson stopped immediately. After the stop, the officers turned the squad’s spotlights on Anderson’s vehicle.

According to Officer Bushey’s testimony, Anderson was stopped because he had driven his vehicle away from the officers in the alley and because the officers wished to speak to him about the parking matter.

After the vehicle was stopped, the officers saw Anderson’s arms “feverishly moving as to try to hide something underneath the seat or pull something out from underneath the seat.” The officers approached the car, Officer Bushey on the driver’s side and Officer Nicoud on the passenger’s side. As the officers approached, Anderson’s arms were still moving underneath the seat. Officer Nicoud then saw a leather object sticking out from underneath the seat. Officer Bushey ordered Anderson to place his hands on the steering wheel and then ordered Anderson out of the car and handcuffed him. Meanwhile, Officer Nicoud searched the vehicle and found an empty holster (the leather object), a .22 caliber loaded revolver, a Gerber survival knife and two steak knives. A pat-down search of Anderson revealed two multi-functional knives, a pair of handcuffs and a box of .22 caliber shells.

Anderson brought a motion to suppress all the evidence discovered in the search of his vehicle. The trial court denied the motion, concluding that the stop

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of Anderson’s vehicle was permitted under Terry v. Ohio, 392 U.S. 1 and sec. 968.24, Stats. Anderson then entered Alford pleas to the charges. See North Carolina v. Alford, 400 U.S. 25, 37 (1970). Anderson now appeals the denial of the suppression motion, alleging that the stop, seizure and search of his vehicle and person violated the fourth amendment.

It is acknowledged that the police officers did not have probable cause to stop, seize or search Anderson’s vehicle. The state also concedes upon appeal that there was no reasonable basis for the officers to conclude that Anderson was committing, was about to commit or had committed a crime, thereby allowing a temporary stop under sec. 968.24, Stats.[1]

Instead, the state relies upon the police “community caretaker” function to justify the officers’ actions in this case. This concept was addressed by the United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433 (1973), where a warrantless search of a vehicle was permitted because the police were engaged 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. at 441.

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This concept was approved by the Wisconsin Supreme Court in Bies v. State, 76 Wis.2d 457, 251 N.W.2d 461 (1977). The freedom of the police to act is not limited to cases where there is probable cause as to the commission of crime. Id. at 465, 251 N.W.2d at 465. Police actions beyond the investigation of crime constitute “a part of the `community caretaker’ function of the police which, while perhaps lacking in some respects the urgency of criminal investigation, is nevertheless an important and essential part of the police role.” Id. at 471, 251 N.W.2d at 468. The key question in such a case is one of prior justification; in other words, did the police have the right to be where they were, make their observations, and take their responsive action. See id. at 464, 251 N.W.2d at 465.

Recognizing that police conduct can fall within the community caretaker function, however, does not always place it beyond constitutional scrutiny. The fourth amendment provides in part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. The basic purpose of the fourth amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials See Schneckloth v. Bustamonte, 412 U.S. 218, 242
(1973). Stopping a vehicle and detaining its occupant constitute a seizure within the meaning of the fourth amendment. Delaware v. Prouse, 440 U.S. 648, 653
(1979); State v. Guzy, 139 Wis.2d 663, 675, 407 N.W.2d 548, 554 (1987). Therefore fourth amendment considerations are implicated under the facts of this case

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even if the officers were acting pursuant to the community caretaker function of the police.

The ultimate standard under the fourth amendment is the reasonableness of the search or seizure in light of the facts and circumstances of the case. Bies, 76 Wis.2d at 468, 251 N.W.2d at 466. In a community caretaker case, this requires a balancing of 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. Id. at 469, 251 N.W.2d at 467. This test requires an objective analysis of the circumstances confronting the police officer, including the nature and reliability of his information, with a view toward determining whether the police conduct was reasonable and justified. Id. This test also requires an objective assessment of the intrusion upon the privacy of the citizen. See United States v. Martinez-Fuerte, 428 U.S. 543, 558 (1976).[2] As the state noted at oral argument, this is essentially the Terry
test, but applied in a community caretaker setting.

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Overriding this entire process is the fundamental consideration that any warrantless intrusion must be as limited as is reasonably possible, consistent with the purpose justifying it in the first instance. Bies, 76 Wis.2d at 469, 251 N.W.2d at 467; see Terry, 392 U.S. at 20-21.

This objective intrusion — the stop itself, the questioning, and the visual inspection — also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in the case of a checkpoint stop.

Id. at 558. We conclude that an objective analysis of the intrusion is appropriate because it does not “imprison” the trial court in the citizen’s evaluation — be it great or slight — of the intrusion.

We conclude that 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.

As to the last factor — weighing the public need and interest against the intrusion — relevant considerations include: (1) the degree of the public interest and the exigency of the situation;[3] (2) the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved;[4] and

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(4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.

Only the first factor — seizure — has been established thus far in this case. A remand for purposes of determining whether the officers were performing a bona fide community caretaker function is necessary. While police contacts with citizens seeking to resolve or defuse private disputes (such as trespassing) are certainly within the community caretaker function, there is a suggestion in this case that the stop of Anderson’s vehicle was a subterfuge.[5] If the trial court finds that a bona fide exercise of the community

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caretaker function existed, it shall then apply the balancing test prescribed herein and determine the ultimate issue as to the reasonableness of the seizure.

We therefore reverse the judgment of the circuit court and remand for further proceedings consistent with this opinion relative to Anderson’s motion to suppress. If the trial court again denies the motion to suppress, the judgment shall be reinstated. If the motion to suppress is granted, further appropriate proceedings in the trial court shall be conducted.

By the Court. — Judgment reversed and cause remanded.

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