COMMENTARY: Damned if you do, or don’t

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A recent Wisconsin Supreme Court opinion illustrates the tough position police are in when deciding, in a miniscule period of time, whether to stop a vehicle or detain a suspect.  It seems to me that the court made this position even more difficult.

In State v. Wiskoski, 2024 WI 23, a driver fell asleep behind the wheel of his truck at a restaurant drive-thru. The police were called when a restaurant employee knocked on the truck window and could not wake up the driver.

An officer arrived about a minute later and saw a truck matching the caller’s description leaving the restaurant. The officer briefly followed him.  While the driver didn’t commit any traffic violations, the officer performed a traffic stop due to the call.   Although the driver wasn’t slurring his speech or suffering from any obvious medical issue, he gave the officer an insurance card for the wrong car.

The officer then discovered that the driver had three past OWIs. The officer ordered the driver out of his truck, smelled alcohol for the first time and noticed the driver stumble. When asked how much he had to drink, the driver replied: “A couple beers.” The officer performed field sobriety tests and arrested him based on the results.

The trial court denied Wiskowski’s motion to suppress, finding that the officer “acted reasonably under the community caretaker function.” The Court of Appeals affirmed on the same grounds, but the Supreme Court didn’t see it that way.  The majority held that since Wiskowski did not commit any traffic violations and there was no other evidence of intoxication other than falling asleep, the traffic stop wasn’t supported by reasonable suspicion.

Justice Brian Hagedorn wrote: “Other than falling asleep, no one reported any other kind of problematic behavior or indications of impairment during his visit to [the restaurant]. Midday drowsiness standing alone, without any other indicators of impairment, is simply not enough. Reasonable suspicion may be a low bar, but it’s not that low.”

The majority was likewise unconvinced that the community caretaking function applied. Sometimes police “help a member of the public who is in need” and inadvertently discover criminal activity.

The majority concluded that the scope of caretaking stops “should be guided and limited by the original community caretaking justification. The justification for restricting a person’s liberty ends when the welfare-check justification is resolved, provided no other independent reason exists to detain the person.”  The court thus held that the officer’s original community caretaking justification ended after the initial encounter, when the officer didn’t smell alcohol or notice erratic behavior

Chief Justice Annette Ziegler dissented, writing: “The entirety of the interaction with law enforcement at this traffic stop was just over eight minutes … [T]he majority concludes that the evidence against Wiskowski must be suppressed because the officer inquired a bit too long. Apparently, after Wiskowski explained that he fell asleep because he was tired, the police were no longer community caretakers and had to let him drive on. The majority does not say how long is too long, but they know it when they see it.”

Why do I think the majority is wrong and the dissent is correct? Imagine that you are a personal injury lawyer consulting with a potential client who was injured (or the estate of someone who was killed) in an automobile collision where Wiskoski was the driver, having had the encounter with police described above, but the officer let him go after the initial stop. Would you tell the potential client that he had a good case to sue the police officer for failing to adequately perform his duty? My guess is that a personal injury lawyer would love such a case.

The court’s mistake, in my opinion, was to concentrate on the community caretaker function. In doing so, as pointed out by Chief Justice Ziegler in her dissent, the majority focused on individual circumstances rather than the totality of the circumstances. While falling asleep in his truck and producing the wrong insurance card aren’t enough for probable cause for arrest, they are enough to warrant further investigation. Then, once the officer smelled alcohol on the driver, saw him stumble and heard him admit to have “a couple beers,” there was easily probable cause to arrest.

It is not right to put police officers in a “damned if do/damned if you don’t” paradox.  According to this decision, the officer should have let Wiskoski leave after the initial stop.  Yet if he had done so and Wiskoski had caused an accident, the officer could have been sued (and perhaps disciplined) for failing to adequately perform his duties.  The officer made a reasonable decision based on the totality of the circumstances. Placing police into a choice of either violating a person’s Fourth Amendment rights or being sued for negligence is simply unfair.