Sitting in a car at night not enough for police stop, appeals judge rules; Wood County trips over itself

Kloppenburg

By Gretchen Schuldt

​Simply being in a car parked in a "24/7" boat landing parking lot does not provide police reasonable cause to question the occupants of the car,  a state appeals judge ruled Thursday.

In addition, Wood County failed to show that Sheriff's Deputy Nathan Dean was acting in a community caretaker role when he approached the car, District IV Court of Appeals Judge JoAnne Kloppenburg said.

Kloppenburg upheld Wood County Circuit Judge Nicholas Brazeau Jr., suppressing in a drunk driving case evidence obtained by Wood County Sheriff’s Deputy Nathan Dean.

Dean saw nothing illegal and nothing suspicious before he approached the parked car to question to the two adults inside.

"The vehicle was not running, the lights were not on, and the hood was closed....The officer saw no indication that the persons were in distress," Kloppenburg wrote.

After Dean talked to the two, he cited one of them, Trevor Krizan, for first-offense drunk driving. Krizan, Dean testified, had glassy eyes and slurred his speech a few times when they talked.

Wood County argued for the first time on appeal that Krizan was never actually "seized," and so the Fourth Amendment prohibition against unreasonable search and seizures did not apply.

Lawyers generally are not allowed to raise an issue for the first time on appeal. Wood County not only did that; it directly contradicted in its appeal what it said in Circuit Court, according to Kloppenburg's decision.

There, the county argued that Dean was acting in his "community caretaker" role, which would allows exceptions to Fourth Amendment requirements when officers are acting as caretakers, rather than as crime investigators.

But a legitimate community caretaking function requires the occurrence of a seizure within the meaning of the Fourth Amendment,  Kloppenburg wrote.

In short, Wood County tried to deny on appeal what it embraced in Circuit Court.

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"I conclude that the County has both forfeited its right to raise, and effectively conceded, this argument," Kloppenburg said.

Wood County also argued for the first time on appeal that Dean had reasonable suspicion to approach the two people in the car. But before switching gears, the county stated twice in the same appeal that Dean “may not have had a reasonable suspicion that a crime was being committed, had been committed or was about to be committed," Kloppenburg wrote.

The county had argued in Circuit Court that Dean did not need reasonable suspicion because he was acting in his community caretaker role, she said.

The county effectively conceded the issue and forfeited it, Kloppenburg ruled.

​Wood County tried to deny on appeal what it embraced in Circuit Court.

Finally, Kloppenburg wrote, the county failed to show that Dean was actually engaged in a community caretaking function. He had no reason to believe the two people inside the car  were in trouble or distress, she wrote.

The test for a legitimate community caretaking role requires 'an objectively reasonable basis' to believe a member of the public is in need of assistance, Kloppenburg said.

"Instead, the County points to the officer’s testimony as to what the officer was considering when he saw the vehicle in the parking lot, including the possibility that the driver could be lost or tired," she said.

Krizan was represented by attorney Leon S. Schmidt, Jr. Wood County was represented by Assistant District Attorney David Knaapen.