Court clarifies community caretaker capacity

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The subjective motivations of a police officer are but one factor courts should consider when deciding whether he was acting in a community caretaker capacity.

That Jan. 29 holding by the Wisconsin Supreme Court limits language in some Court of Appeals cases that suggested an officer could not legally act in that capacity, unless it was “totally divorced” from investigating criminal activity.

Writing for a unanimous court, Justice Patience Drake Roggensack explained, “[T]he ‘totally divorced’ language from [Cady v. Dombrowski, 413 U.S. 433 (1973)] does not mean that if the police officer has any subjective law enforcement concerns, he cannot be engaging in a valid community caretaker function. Rather, we conclude that in a community caretaker context, when under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer’s subjective law enforcement concerns.”

Attorney Marsha M. Lysen, of Eisenberg Law Offices S.C. in Madison, represented the defendant. Lysen acknowledged that the opinion was not a big change in the law.

Instead, she said the court just wanted to clarify the standard, and explain the meaning of “totally divorced.”

“We argued that if an officer is suspicious that a stopped motorist is guilty of drunk driving, he can’t make a stop on the pretext of the community caretaker exception,” Lysen said.

“But the court said that officers will always be suspicious — it is just the nature of being a police officer — and if the stop is objectively reasonable, that suspicion won’t negate it,” she added.

Hazard Lights Flashing

The defendant, Todd Lee Kramer, was legally parked on the side of a county highway at night, and his hazard lights were activated.

While Kramer was parked, a sheriff’s deputy passed the vehicle, executed a U-turn, activated his emergency overhead lights, and stopped behind him.

He then exited his vehicle, shined his flashlight through the rear window, and asked Kramer if he needed help. Based on Kramer’s responses, the deputy suspected he was intoxicated, and he ultimately arrested Kramer for operating while intoxicated.

Kramer moved to suppress the evidence, arguing that he was seized without reasonable suspicion, and the seizure was not justified by the community caretaker function.

The circuit court denied the motion, and the Court of Appeals affirmed. State v. Kramer, 2008 WI App 62, 750 N.W.2d 941.

Community Caretaker

However, the Court of Appeals expressed concern that prior decisions by it could be read as meaning that a police officer could not execute the community caretaker function unless he had no subjective law enforcement motivations — an interpretation it found to conflict with U.S. Supreme Court decisions.

The language from Cady at issue provided, “Local police officers … frequently investigate vehicle accidents in which there is no claim of criminal liability and engage 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 (emphasis added).” Cady, 413 U.S. at 441.

Since Cady, some Court of Appeals opinions have suggested that the language means that, in order for the exception to apply, the officer must have had no initial suspicion of criminal activity.

Recognizing that it was applying an incorrect standard, the Court of Appeals wrote, “[Totally divorced] cannot mean that an officer must have subjectively ruled out all possibility of criminal activity in order to act in a community caretaker capacity. Police commonly act as community caretakers in situations where it remains reasonably possible that they will discover some criminal activity.” Kramer, 750 N.W.2d at 944. While affirming the admission of the evidence, the court urged the Supreme Court to clarify the meaning of the term.

Officer’s Suspicions

The Supreme Court agreed that an officer’s subjective suspicions that criminal activity may be occurring does not, in itself, cause a seizure to be unlawful under a community caretaker analysis.

The court noted that, in many Fourth Amendment contexts — such as determining whether probable cause or reasonable suspicion is present — an officer’s subjective motivation is entirely irrelevant.

However, when neither probable cause nor reasonable suspicion is present, the court found that the officer’s subjective motivation is a proper factor to consider. But subjective concerns do not defeat an otherwise legitimate exercise of the community caretaker function.

The court explained, “[A]n officer may come upon what appears to be a stalled vehicle and decide to investigate to determine if assistance is needed; however, the investigation may show that a crime is being committed within the vehicle. Therefore, from the point of view of the officer, he or she must be prepared for either eventuality as the vehicle is approached.”

Agreeing with an Illinois’ judge explanation of the community caretaker exception, the court said it merely recognizes that many police-citizen encounters have nothing to do with crime, but does not require that an encounter have nothing to do with crime. People v. Cordero, 830 N.E.2d 830, 841 (Ill.Ct.App.2005)(O’Malley, P.J., concurring).

Applying its standard, the court concluded that the deputy in this case was conducting a bona fide community caretaker function.

Case analysis

In practice, the standard the court has adopted is no different than if it held outright that an officer’s subjective motivations are entirely irrelevant, and that the only issue is whether a seizure is objectively reasonable as an exercise of the community caretaker function.

The court wrote at length how a determination of whether probable cause or reasonable suspicion is present is purely objective, but that pretextual or subjective motivations may be considered when a seizure takes place in the absence of probable cause.

Later in the opinion, the court noted that it was the community caretaker function that led to the contact with Kramer, and the officer’s law enforcement function that led to his subsequent arrest.

The court wrote, “The objectively reasonable basis for [the deputy] making contact with Kramer was totally divorced from his subjective belief that criminal activity could have been taking place. Furthermore, under the totality of the circumstances, [the deputy’s] subjective belief does not negate his objectively reasonable basis for stopping behind Kramer and contacting him to ascertain if Kramer needed assistance.”

However, a paraphrase of this statement could be made in any case where an officer could reasonably believe a citizen was in need of assistance.

This will be true, even when the law enforcement and community caretaker functions are inextricably intertwined.

Suppose an officer sees a person who appears to have suffered a drug overdose. The same objective circumstances that indicate a citizen needs help necessarily will indicate a
criminal drug offense.

In such a case, there is no way to “divorce” the law enforcement function from the community caretaker function. Yet, barring flagrant indifference by the officer to the apparent medical problem, it is hard to imagine that the fruits of any search will be suppressed.

As a result, it is likely that the standard the court has adopted is effectively the same as if it had held that the officer’s subjective intent is irrelevant.