An appeals court judge on Tuesday tossed out a fourth offense drunk driving conviction after finding a police officer was not acting in a "community caretaker" role when he seized a man in his garage without a warrant or evidence of wrongdoing, questioned him, and then arrested him.
District 3 Appeals Judge Lisa K. Stark overturned the conviction of Bryan Landwehr, ruling that the ever-expanding "community caretaker" exception "is inapplicable in this case. ... Landwehr's constitutional right to be free from unreasonable searches and seizure while in his garage was violated."
The "community caretaker" exception to the U.S. Constitution's Fourth Amendment allows police to search without a warrant if they believe a person or people may be in distress. Wisconsin courts have expanded the exception's applicability in recent years.
In this case, the state did not even argue until the appeal that the officer was acting under the community caretaker exception.
Landwehr's problems didn't even start with him - Police Officer Mitchell Klieforth, while on patrol, came upon a woman "staggering down the shoulder with her back to traffic." Stark wrote.
The officer talked to the woman and saw that "she appeared to be crying, upset and intoxicated," Stark wrote in her decision.
Klieforth gave the woman a ride home. On the way, they saw a car that the woman said was driven by her boyfriend and that he would meet them at her house.
The woman made several comments that made Klieforth "suspect the two might have had an altercation or were involved in a domestic dispute," Stark wrote. He called for backup and followed the vehicle home.
There was no indication the driver of the car - Landwehr - was drunk or impaired, nor was there any evidence of a crime.
"...the State may raise any argument in defending this appeal, including those inconsistent with positions it took in the circuit court." - Appeals Judge Lisa K. Stark
Landwehr pulled his car into the garage at the woman's house. He got out of the car, but stayed in the garage. Klieforth approached and directed him to " 'step outside for a second. I wanna talk to ya,'" according to the decision.
Klieforth did not tell Landwehr that he was free to ignore the directive or that speaking with the officer would be voluntary, Stark said.
After they talked, the officer concluded Landwehr was intoxicated and arrested him.
Marathon County Circuit Judge Lamont K. Jacobson refused Landwehr's request to suppress the evidence Klieforth gathered.
On appeal, the state contended Klieforth detained Landwehr under the community caretaker exception. The state "abandoned" the argument that the officer's actions were based on his suspicion of wrongdoing, Stark said.
"As the respondent, however, the State may raise any argument in defending this appeal, including those inconsistent with positions it took in the circuit court," she wrote in a footnote.
The state also did not argue that the lower court erred when it found that the officer made contact with Landwehr inside the garage.
"Contrary to the State’s suggestion, we cannot so casually set aside an individual’s right 'to retreat into his [or her] own home and there be free from unreasonable governmental intrusion.' ”
"The State reasons that because Klieforth initially assisted (the woman) with getting home, it was necessary to question Landwehr in order to ensure (the woman) remained safe once there," Stark wrote.
Landwehr, on the other hand, "replies that while Klieforth’s initial contact with (the woman) may have involved a community caretaking function, his contact with Landwehr was purely from the standpoint of a criminal investigation," Stark said. "Landwehr is correct."
The state did not meet its burden to show that any community caretaker function was reasonable under the circumstances, Stark said.
"Contrary to the State’s suggestion, we cannot so casually set aside an individual’s right 'to retreat into his [or her] own home and there be free from unreasonable governmental intrusion,' ” she wrote.
11/9/2017 09:34:18 am
But didn’t the officer see defendant driving the car? And if he had suspicion he was drunk, isn’t that probable cause to ask him to step out?
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