2024 WI 23
SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP2105-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Michael Gene Wiskowski,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
OPINION FILED: June 18, 2024
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 24, 2024
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sheboygan
JUDGE: Kent R. Hoffmann
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET,
KAROFSKY, and PROTASIEWICZ, JJ., joined. HAGEDORN, J., filed a
concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined
with respect to ¶¶39-75, and PROTASIEWICZ, J., joined with
respect to ¶¶72 and 74-75. PROTASIEWICZ, J., filed a concurring
opinion, in which ANN WALSH BRADLEY, J., joined. ZIEGLER, C.J.,
filed a dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Kirk B. Obear, and Birdsall Obear & Associates,
Sheboygan. There was an oral argument by Kirk B. Obear.
For the plaintiff-respondent, there was a brief filed by
Michael J. Conway, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Michael J. Conway, assistant attorney general.
2
2024 WI 23
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP2105-CR
(L.C. No. 2019CF628)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. JUN 18, 2024
Michael Gene Wiskowski, Samuel A. Christensen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
HAGEDORN, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET,
KAROFSKY, and PROTASIEWICZ, JJ., joined. HAGEDORN, J., filed a
concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined
with respect to ¶¶39-75, and PROTASIEWICZ, J., joined with
respect to ¶¶72 and 74-75. PROTASIEWICZ, J., filed a concurring
opinion, in which ANN WALSH BRADLEY, J., joined. ZIEGLER, C.J.,
filed a dissenting opinion.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 BRIAN HAGEDORN, J. Michael Wiskowski fell asleep in
a McDonald's drive-thru lane behind the wheel of his truck. An
employee knocked on his window to wake him up and called the
police. Officer Devin Simon was about a minute away when he
No. 2021AP2105-CR
received a call from dispatch regarding the incident. He headed
to the scene and watched a truck matching dispatch's description
pull out of the drive-thru and make a proper turn. Officer
Simon then pulled Wiskowski over. Wiskowski explained that he
was tired because he had just finished a 24-hour shift.
Although Officer Simon did not notice any signs of impairment or
criminality, he felt something was off, and prolonged the stop
to determine whether he had grounds to investigate further.
Officer Simon ultimately ordered Wiskowski out of his truck, at
which point Wiskowski manifested signs of intoxication, leading
to an arrest and charges.
¶2 Wiskowski moved to suppress the evidence discovered
during the stop. The circuit court denied the motion,
concluding that the stop and further investigation were
justified as a permissible "community caretaking function." The
court of appeals agreed, and we now reverse. We first conclude
the traffic stop was not supported by reasonable suspicion.
Furthermore, assuming without deciding that the traffic stop was
permissible as a bona fide community caretaking activity, we
hold that the stop was prolonged unreasonably when it
transformed into an unjustified criminal investigation. The
scope of caretaking stops should be guided and limited by the
justification for the stop. This means that, absent another
permissible reason to detain someone, the detention must end
when the original community caretaking justification is
resolved.
2
No. 2021AP2105-CR
I. BACKGROUND
¶3 At around 1:00 p.m., while waiting in the drive-thru
lane of McDonald's, Michael Wiskowski fell asleep behind the
wheel of his truck. An employee knocked on his truck window to
wake him up and called the Plymouth Police Department to report
it. Plymouth Police Officer Devin Simon received word from
dispatch about the incident. When he arrived at McDonald's a
minute or so later, he saw a truck matching the caller's
description near the end of the drive-thru lane.
¶4 Officer Simon saw Wiskowski exit the drive-thru lane,
turn right, stop at a stop sign, and make a "correct, proper,
and legal left turn onto the road." Officer Simon then quickly
turned around in the parking lot and briefly followed Wiskowski.
Wiskowski drove normally and did not commit any traffic
violations; at no time did his driving appear abnormal or arouse
Officer Simon's suspicions. Officer Simon nonetheless activated
his lights and siren and performed a traffic stop. Wiskowski
complied, pulling over into an empty parking lot.
¶5 Officer Simon approached the vehicle, asked Wiskowski
about the report that he fell asleep in his truck, and took
Wiskowski's driver's license and insurance card. Wiskowski
explained that he had been working for the past 24 hours.
Officer Simon later testified that, up to this point, Wiskowski
did not appear sleepy, was not slurring his speech or suffering
from any obvious medical issue like a heart attack or seizure,
and was otherwise "acting normal." He also testified that he
did not see or smell any alcohol on Wiskowski, nor did he
3
No. 2021AP2105-CR
observe any other signs of intoxication. The only behavior
Officer Simon characterized as "odd" was that Wiskowski
initially gave him an insurance card for the wrong car before
handing him the correct one around 20 seconds later.
¶6 Following this initial encounter, Officer Simon
returned to his squad car. By this point, a more experienced
colleague——Officer Cobalt——had arrived on the scene. Officer
Simon told Officer Cobalt what Wiskowski had said about working
for 24 hours, and stated that he wanted to get Wiskowski out of
his truck. Officer Cobalt asked, "What are you going to pull
him out for?" The two conversed further, and Officer Cobalt
told Officer Simon to pull up Wiskowski's driving record, which
revealed that Wiskowski had three past OWIs. The two officers
continued to discuss whether there was "enough to take him out"
of the truck and investigate further. Officer Simon said that
he would feel better "smelling booze" on Wiskowski before
pulling him out. Ultimately, he decided to do so, citing
Wiskowski's reported sleepiness and "odd" behavior in handing
him two insurance cards. Officer Simon later testified his goal
was to see if there was something "going on that maybe [he]
wasn't seeing in the car," by which he meant determining whether
Wiskowski had been drinking. Approximately five to six minutes
transpired after Officer Simon's initial conversation with
Wiskowski concluded and when he ordered him out of his truck.
¶7 Once Wiskowski got out of his truck, Officer Simon
smelled alcohol for the first time and noticed Wiskowski
stumble. Officer Simon asked how much he had to drink, to which
4
No. 2021AP2105-CR
Wiskowski replied, "a couple beers." At that point, Officer
Simon took Wiskowski back to the police station to perform field
sobriety tests. Based on his observations during the tests,
Officer Simon determined Wiskowski had been driving under the
influence of alcohol and arrested him. The State charged
Wiskowski with one count of operating a motor vehicle under the
influence and one count of operating with prohibited alcohol
concentration, both as fourth offenses.
¶8 Wiskowski moved to suppress the evidence resulting
from the traffic stop. After an evidentiary hearing and
briefing, the circuit court1 denied Wiskowski's motion, finding
that Officer Simon's stop was justified as community caretaking
activity. A year later, Wiskowski asked the court to hold
another evidentiary hearing to consider bodycam footage that had
not been presented to the court the first time around. The
court did so, construing it as a motion to reconsider. The
court once again denied Wiskowski's motion to suppress,
continuing to find that Officer Simon "acted reasonably under
the community caretaker function."
¶9 Wiskowski eventually pled no contest to one count of
operating a motor vehicle under the influence as a fourth
offense. He appealed the judgement of conviction, arguing that
the circuit court erred in denying his motion to suppress. The
court of appeals affirmed on the same community caretaking
The Honorable Kent
1 Hoffmann of the Sheboygan County
Circuit Court presided.
5
No. 2021AP2105-CR
grounds. State v. Wiskowski, No. 2021AP2105-CR, unpublished
order (Wis. Ct. App. Mar. 15, 2023). Wiskowski then petitioned
this court for review.
II. DISCUSSION
¶10 Wiskowski argues that Officer Simon's traffic stop was
unlawful under the Fourth Amendment, which prohibits
"unreasonable searches and seizures."2 U.S. Const. amend. IV.
He seeks the suppression of evidence obtained against him.3 The
facts are not in dispute, so this is a question of law we review
independently. State v. Genous, 2021 WI 50, ¶10,
397
Wis. 2d 293,
961 N.W.2d 41.
¶11 The State contends the stop was lawful for two
independent reasons. First, the State maintains it was a
permissible investigatory stop supported by reasonable
suspicion.4 Second, the State agrees with the circuit court and
2 Wiskowski also references Article I, Section 11 of the
Wisconsin Constitution, but he makes no independent argument on
this basis. We decline to address this further. As we have
said, "any argument based on the Wisconsin Constitution must
actually be grounded in the Wisconsin Constitution." State v.
Halverson, 2021 WI 7, ¶24,
395 Wis. 2d 385,
953 N.W.2d 847.
3 When a search or seizure is unlawful, a common remedy is
to suppress any evidence found as a result. State v. Burch,
2021 WI 68, ¶16,
398 Wis. 2d 1,
961 N.W.2d 314. The parties
agree that suppression would be the proper remedy here.
4 Neither party argued reasonable suspicion in the circuit
court. In the court of appeals, however, Wiskowski argued that
Officer Simon's stop was not supported by reasonable suspicion.
The State did not press the issue, and the court of appeals did
not substantively address it. State v. Wiskowski, No.
2021AP2105-CR, unpublished order, at 4 n.5 (Wis. Ct. App. Mar.
6
No. 2021AP2105-CR
court of appeals that this was a permissible community caretaker
activity. Neither succeed.
A. Investigatory Stop
¶12 One type of intrusion deemed reasonable under the
Fourth Amendment is an investigatory stop. Id., ¶7. This
temporary infringement on personal liberty must be supported by
reasonable suspicion——that is, in view of the whole picture,
whether a reasonable police officer would reasonably suspect
that criminal activity is afoot. Id., ¶10. While reasonable
suspicion doesn't demand much, it does demand more than a hunch.
Id., ¶8. And that is all we see here.
¶13 It is true that falling asleep in a drive-thru during
the day could be a sign someone is impaired. It is also black-
letter law that officers need not rule out the possibility of
innocent behavior to initiate a traffic stop. Id. But by
itself, without any additional indicators of impairment, we
conclude this is too speculative to amount to reasonable
suspicion.
¶14 By the time Officer Simon arrived, Wiskowski was
driving normally out of the drive-thru and onto the road.
15, 2023). In briefing submitted to us, Wiskowski again
defensively raises reasonable suspicion, which the State now
contends is an independent basis to deny the motion to suppress.
Although forfeiture generally applies to arguments not raised in
the circuit court, we will address the State's reasonable
suspicion argument given the unusual path by which this argument
comes to us.
7
No. 2021AP2105-CR
Officer Simon did not observe nor were there any reports of
erratic driving. Wiskowski did not commit any traffic
violations, and there were no other clues suggesting he was
operating his vehicle while intoxicated. Other than falling
asleep, no one reported any other kind of problematic behavior
or indications of impairment during his visit to McDonald's.
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 State's contention
that Officer Simon's traffic stop was supported by reasonable
suspicion fails.5
B. Community Caretaking
¶15 The State also argues that Officer Simon's seizure of
Wiskowski during the traffic stop was justified as a permissible
community caretaker activity. The line of community caretaker
cases is rooted in the recognition that law enforcement work is
multifaceted. State v. Kramer, 2009 WI 14, ¶32,
315
Wis. 2d 414,
759 N.W.2d 598. Officers wear multiple hats.
Id.
Sometimes they are acting to enforce the law by investigating
and stopping illegal activity.
Id. Other times they act to
protect property or help "a member of the public who is in need
5 The State relies in part on State v. Rutzinski, 2001
WI 22,
241 Wis. 2d 729,
623 N.W.2d 516 and Navarette v.
California,
572 U.S. 393 (2014). Both deal with the reliability
of informant tips and are not relevant to this case.
8
No. 2021AP2105-CR
of assistance." Id. This is what we have called the community
caretaking function.
¶16 These diverse strains of law enforcement action
sometimes blend together. An officer might aid someone in need
and at the same time have a hunch something illegal occurred or
observe evidence that gives rise to a criminal investigation.
Id., ¶30. Yet when analyzing the permissibility of a seizure in
the community caretaking context, we have emphasized that
officers act as community caretakers when, viewed objectively,
they engage in activities "totally divorced from the detection,
investigation, or acquisition of evidence" of a crime. Id., ¶23
(quoting another source).
¶17 Although a recent decision of the United States
Supreme Court raises questions regarding the proper way to
analyze community caretaking claims, no party argues that we
should alter or modify our precedent based on the facts of this
case.6 We therefore apply our precedent, which provides a three-
step framework to guide our analysis. Id., ¶21.
6Our cases, like those of other jurisdictions, have
described the community caretaking doctrine as arising out of a
1973 United States Supreme Court decision, Cady v. Dombrowski.
See, e.g., State v. Kramer, 2009 WI 14, ¶32,
315 Wis. 2d 414,
759 N.W.2d 598. However, the Supreme Court recently held that,
although it has recognized law enforcement community caretaking
duties, it has not created "a standalone doctrine that justifies
warrantless searches and seizures in the home." Caniglia v.
Strom,
593 U.S. 194, 196 (2021). Several justices concurred and
raised questions about community caretaking as a separate
doctrinal category, and how to properly analyze law
enforcement's role in assisting citizens in need. See, e.g.,
id. at 199-200 (Roberts, C.J., concurring);
id. at 200-04
(Alito, J., concurring);
id. at 204-08 (Kavanaugh, J.,
9
No. 2021AP2105-CR
¶18 The first step in cases like this is to determine
whether a seizure within the meaning of the Fourth Amendment
occurred. Id., ¶22. In this case, no one disputes that Officer
Simon seized Wiskowski when he pulled him over.
¶19 Step two asks as an initial matter whether the officer
was engaging in a bona fide community caretaking function. Id.,
¶23. This means we examine whether this was an objective effort
to assist a member of the public in need that was "totally
divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute." Id.
(quoting another source). Even if the answer is yes, however,
that is not enough on its own to determine whether the seizure
was lawful. The third step goes further. Tracking the Fourth
Amendment's command, courts must balance the various interests
to determine whether the exercise of that community caretaking
activity was reasonable. Id., ¶40. We ultimately determine
that, assuming without deciding Officer Simon had a bona fide
community caretaking justification when he stopped Wiskowski,
the continuation of the stop was unreasonable under the facts of
this case. So we focus our analysis there.
¶20 Under this third step in a community caretaker
analysis, we balance the "public interest or need that is
furthered by the officer's conduct against the degree of and
nature of the restriction upon the liberty interest of the
concurring). Given the briefing in this case and the narrow
question presented, we too leave these questions for another
day.
10
No. 2021AP2105-CR
citizen." Id. This involves evaluating how important the
intervention was and comparing it with how intrusive and
proportional the seizure was given the alternatives.7 Id., ¶¶41-
45. The central question is——was the police intrusion aimed at
assisting a member of the public in need reasonable under the
circumstances?
¶21 In this case, key to our analysis is whether and when
it is reasonable to extend a seizure undertaken for community
caretaking purposes once an officer resolves the reason for the
stop. The general rule across jurisdictions——and we agree——is
that a seizure should not be extended beyond its initial
justification absent some other justification that emerges, like
reasonable suspicion.
¶22 In an instructive federal case, the Tenth Circuit
considered whether officers who responded to a home in their
community caretaking capacity acted unconstitutionally when they
We have often analyzed the balance of interests in the
7
third step by examining four factors:
(1) the degree of the public interest and the exigency
of the situation; (2) the attendant circumstances
surrounding the seizure, including time, location, the
degree of overt authority and force displayed; (3)
whether an automobile is involved; and (4) the
availability, feasibility and effectiveness of
alternatives to the type of intrusion actually
accomplished.
Kramer, 315 Wis. 2d 414, ¶41. These factors are a less useful
guide here because, as we explain below, the balancing in this
case is conclusively settled by the principle that a community
caretaking stop must end when the justification for the stop
dissipates.
11
No. 2021AP2105-CR
detained a man they mistakenly believed was someone else.
Martinez v. Mares, 613 F. Appx 731, 733 (10th Cir. 2015). After
officers were informed that the man they detained was not who
they thought, they nonetheless continued to detain him and
proceeded to pat him down. Id. The man sued, arguing the
detention was unlawful. Id. at 734. The officers responded
that the stop fell within their community caretaker function.
Id. at 738. The court held that, without "some independent
basis to detain and search him," officers were required to
release the man once they discovered he was not the suspect.
Id. at 739. Why? Because a "detention justified under an
officer's community caretaking authority 'must last no longer
than is necessary to effectuate its purpose, and its scope must
be carefully tailored to its underlying justification.'" Id. at
738 (quoting another source).
¶23 In another case, an officer responded to a call
concerning an irregularly parked vehicle with the driver
"slumped over the steering wheel." State v. Zeimer, 510
P.3d 100, ¶2 (Mont. 2022). When the officer went to check on
the driver, he saw him "perk-up, check his mirrors, put the
truck in gear, and lawfully drive away without any apparent
indicia of peril, distress, or need for assistance." Id., ¶33.
At that point, the officer's welfare-check justification
"evaporated." Id. But the officer detained and questioned the
driver anyway. Id., ¶¶3-6. The Montana Supreme Court explained
that welfare checks cannot be used as a pretext for an illegal
search or seizure. Id., ¶33. "Once the objective facts and
12
No. 2021AP2105-CR
circumstances manifest that the subject is not or no longer in
peril, distress, or otherwise in need of assistance, the
original constitutional justification for a CCD stop ends unless
some other constitutional justification exists or arises for
completing or prolonging the stop." Id. (cleaned up).
¶24 These cases reflect the general Fourth Amendment
principle that "any warrantless intrusion must be as limited as
is reasonably possible consistent with the purpose justifying it
in the first instance."8 Bies v. State, 76 Wis. 2d 457, 469,
251
N.W.2d 461 (1977). Accordingly, 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.9
See also State v. Brooks, 2020 WI 60, ¶10,
392 Wis. 2d
8
402,
944 N.W.2d 832 (A traffic stop can "last no longer than
necessary to complete the purpose of the [] stop."); Rodriguez
v. United States,
575 U.S. 348, 354 (2015) ("Like a Terry stop,
the tolerable duration of police inquiries in the traffic-stop
context is determined by the seizure's 'mission'——to address the
traffic violation that warranted the stop, and attend to related
safety concerns.") (cleaned up).
See State v. Ellis, 469 P.3d 65, 77 (Kan. 2020) (holding
9
that "a public safety or welfare stop is not for investigative
purposes and must end as soon as the officer determines the
citizen is not in need of help"); United States v. Harris, 747
F.3d 1013, 1017 (8th Cir. 2014) (noting that the "scope of the
encounter must be carefully tailored to satisfy the purpose of
the initial detention, and the police must allow the person to
proceed once the officer has completed the officer's inquiry,
unless, of course, the officer obtains further reason to justify
the stop"); State v. Acrey,
64 P.3d 594, 600 (Wash. 2003) (en
banc) (welfare check "must end when reasons for initiating an
13
No. 2021AP2105-CR
¶25 Applying these principles to this case, we conclude
that even if the original stop was a bona fide community
caretaking activity, Officer Simon unreasonably extended the
stop beyond its original justification. Officer Simon initially
stopped Wiskowski to perform a welfare check and ensure he was
safe to drive. But after their first conversation, nothing
reinforced continued concern on that basis. In Officer Simon's
telling, Wiskowski was "acting normal." Officer Simon asked
Wiskowski about falling asleep in the drive-thru and received a
reasonable explanation. Wiskowski did not show signs of
sleepiness during their interaction. And Officer Simon did not
see signs of a medical emergency. At that point, the public
interest or exigency that may have existed was resolved; Officer
Simon had no community caretaking justification to prolong the
stop.10
¶26 Yet Officer Simon did prolong the stop. He held
Wiskowski there as he endeavored to determine whether he had
enough to justify a criminal investigation. Wiskowski was
clearly not free to leave, despite the welfare-based
justification for the initial stop failing to reveal further
encounter are fully dispelled") (quoting another source).
The only behavior Officer Simon cites as "odd" was
10
Wiskowski initially handing him the wrong insurance card, only
to produce the correct one seconds later. Even entertaining the
belief that this is odd, it did not portend that Wiskowski was
suffering from any malady or otherwise in need of further
assistance. Thus, it did not provide a justification for
extending the stop.
14
No. 2021AP2105-CR
concern. Under the facts of this case, Wiskowski was in no
additional need of assistance. This means Officer Simon had no
community caretaking justification to extend the stop, and
should have allowed Wiskowski to leave.
¶27 It is true that when the community caretaking concern
dissipated, Officer Simon could have continued Wiskowski's
detainment if facts emerged during their initial conversation
that gave rise to reasonable suspicion. Indeed, Officer Simon's
focus turned to criminal investigation as he probed for a reason
to pull Wiskowski out of his car. But Officer Simon did not
smell alcohol on Wiskowski and did not observe any other
evidence of possible impairment. Having nothing more than a
thought that "something was kind of going on that maybe [he]
wasn't seeing in the car"——i.e., a "hunch"——Officer Simon
detained Wiskowski well beyond the stop's justification. If
Officer Simon, armed solely with a report that a driver fell
asleep in a drive-thru, did not have reasonable suspicion when
he stopped Wiskowski, reasonable suspicion certainly did not
materialize following an initial encounter revealing no new
evidence of impaired driving.
¶28 In short, Officer Simon's original community
caretaking justification of helping a member of the public who
is in need of assistance dissipated after their initial
encounter. At this point, the restriction on Wiskowski's
liberty should have ended. The stop transformed from a welfare
check into the "detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute,"
15
No. 2021AP2105-CR
without the attendant reasonable suspicion necessary to justify
further detention. Id., ¶11 (quoting another source). Officer
Simon ceased being a community caretaker and, thus, had no
authority to extend the stop on that basis.
III. CONCLUSION
¶29 We conclude that Officer Simon's seizure of Wiskowski
violated Wiskowski's rights under the Fourth Amendment. Officer
Simon did not possess reasonable suspicion to conduct the stop.
And even assuming Officer Simon initially engaged in bona fide
community caretaker activity when he stopped Wiskowski, he
unlawfully prolonged the stop and began an investigation without
reasonable suspicion. We therefore reverse the court of appeals
decision and remand to the circuit court with instructions to
vacate the judgment of conviction and grant the motion to
suppress.
By the Court.—The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court.
16
No. 2021AP2105-CR.bh
¶30 BRIAN HAGEDORN, J. (concurring). The opinion for
the court applies our precedent on the community caretaking role
of law enforcement, which the parties did not call into question
in this case. I write separately for two reasons. First, I
explain why the State is wrong to suggest that Wis. Stat.
§ (Rule) 809.62(3m)(b)1. permits it to raise a reasonable
suspicion argument before us despite not raising it in the
circuit court. Second, I discuss why our precedents on
community caretaking may need refinement to better accord this
legitimate function of law enforcement with the Fourth Amendment
principles outlined by the United States Supreme Court.
I. WIS. STAT. § (RULE) 809.62(3m)(b)1.
¶31 In our system of appellate review, the default rule is
that parties may not raise new arguments on appeal that have not
been briefed or preserved in the circuit court. Estate of
Miller v. Storey, 2017 WI 99, ¶67,
378 Wis. 2d 358,
903
N.W.2d 759. If parties do not timely assert their rights, they
forfeit their opportunity to raise them later.1
Id.
¶32 The rule of forfeiture is "as old as the common law
system of appellate review," and for good reason. State v.
Counihan, 2020 WI 12, ¶60,
390 Wis. 2d 172,
938 N.W.2d 530
(Rebecca Grassl Bradley, J., concurring) (quoting another
source). By requiring issues and objections to be timely
Appellate courts can, however, exercise their discretion
1
to hear forfeited issues. Estate of Miller v. Storey, 2017
WI 19, ¶67,
378 Wis. 2d 358,
903 N.W.2d 759.
1
No. 2021AP2105-CR.bh
raised, errors can be corrected by the circuit court, thereby
eliminating the need for or circumscribing the scope of
appellate review. State v. Ndina, 2009 WI 21, ¶30,
315
Wis. 2d 653,
761 N.W.2d 612. This also prevents sandbagging,
where litigants might strategically fail to object or raise
issues so they can make later claims for reversal. State v.
Huebner,
2000 WI 59, ¶12,
235 Wis. 2d 486,
611 N.W.2d 727.
Forfeiture thus incentivizes diligent preparation on the front
end, and saves appellate courts from being "in the awkward
position of 'telling a lower court it was wrong when it was
never presented with the opportunity to be right.'" State ex
rel. Davis v. Cir. Ct. for Dane Cnty.,
2024 WI 14, ¶78,
411
Wis. 2d 123,
4 N.W. 2d 273 (Hagedorn, J., concurring) (quoting
another source). The appellate system exists to review errors
in the court below, not to give litigants a do-over on claims
that could have been tried or addressed the first time around.
In short, forfeiture is critical to the accuracy, efficiency,
and fairness of the case-deciding function of the judiciary.
¶33 In this case, the State argued in the circuit court
that Officer Simon lawfully stopped Wiskowski based on the
community caretaking doctrine. It made no mention of reasonable
suspicion. The circuit court agreed with the State's community
caretaking argument, so Wiskowski appealed. But in the court of
appeals, Wiskowski defensively argued that Officer Simon
possessed neither reasonable suspicion nor a valid community
caretaking justification for the stop. The State explained that
it would not respond to Wiskowski's reasonable suspicion
2
No. 2021AP2105-CR.bh
argument because the circuit court relied only on the community
caretaking doctrine. The court of appeals did not address
reasonable suspicion.
¶34 Wiskowski then petitioned us for review. Rather than
raise the only legal claim relied on by the State at the circuit
court (community caretaking), Wiskowski again asserted that
Officer Simon lacked reasonable suspicion. After we granted the
petition for review, Wiskowski briefed both questions. Then,
unlike its position in the court of appeals, the State argued
for the first time that Officer Simon had reasonable suspicion
for the stop, in addition to a valid community caretaking
justification. It acknowledged that normally forfeiture would
prohibit it from raising this new issue on appeal. But the
State argued that Wis. Stat. § (Rule) 809.62(3m)(b)1. permits
parties to defend the court of appeals' outcome on any ground——
even grounds not presented to the circuit court——as long as it
wouldn't change the ultimate result. Thus, because reasonable
suspicion could support the same outcome in this case, the State
contends the rule permits it to be raised. Although Wiskowski's
unusual tactic of raising reasonable suspicion rather than
relying on forfeiture causes us to address the argument in this
case, the State's reliance on § (Rule) 809.62(3m)(b)1. is
misplaced.2
¶35 Section 809.62 governs petitions for review——formal
requests for this court to review a decision of the court of
2I respond only to the State's argument on Wis. Stat.
§ (Rule) 809.62(3m)(b)1., and express no opinion on how other
provisions or rules might apply here.
3
No. 2021AP2105-CR.bh
appeals. These are brought by parties who did not achieve their
preferred outcome——i.e., what the rule calls an "adverse
decision." § (Rule) 809.62(1g). Following a petition for
review, non-petitioning parties have an opportunity to respond,
telling us why we should not take the case.
¶36 The rule also permits petitions for cross-review
during the time frame when initial petitions are filed, or
within 30 days after a petition for review is filed by another
party. § (Rule) 809.62(3m)(a). The rule relied upon by the
State here says:
A petition for cross-review is not necessary to enable
an opposing party to defend the court of appeals'
ultimate result or outcome based on any ground,
whether or not that ground was ruled upon by the lower
courts, as long as the supreme court's acceptance of
that ground would not change the result or outcome
below.
§ (Rule) 809.62(3m)(b)1. In other words, parties don't have to
file cross-petitions to defend the result or outcome obtained in
the court of appeals on different grounds. The obvious
application of the rule is that a party who argues in the
circuit court that it should win for reasons A and B can still
argue both A and B without filing a petition for cross review——
even if the circuit court ruled in their favor for reason A
alone, and did not address reason B at all.
¶37 The State, however, reads this to mean that even a
legal argument not raised below can be argued on appeal if it
supports the same legal outcome. Not so. That would require
interpreting this common-sense procedural rule as overriding or
abandoning the principle of forfeiture——a rule as old as the
4
No. 2021AP2105-CR.bh
common law system itself. Nothing in the text of the rule
suggests so radical a proposition. And nothing in this court's
practice suggests we have abandoned basic forfeiture standards,
as the State's position implies. Indeed, we discuss, debate,
and apply forfeiture all the time.
¶38 In short, § (Rule) 809.62(3m)(b)1. should not be
understood as altering the regular rules regarding forfeiture;
it is not an invitation for litigants to raise new, unpreserved
arguments. Rather, it permits parties to argue previously
raised or preserved arguments that were not addressed by the
circuit court without needing to file a petition for cross-
review.
II. COMMUNITY CARETAKING
¶39 Turning to the substantive issue, both the United
States and Wisconsin constitutions prohibit unreasonable
searches and seizures. U.S. Const. amend. IV; Wis Const. art.
I, § 11. As evidenced by the text, the ultimate touchstone of
the Fourth Amendment is reasonableness. Lange v. California,
141 S. Ct. 2011, 2017 (2021). Wisconsin courts have held that
searches and seizures may be reasonable when officers act "as a
community caretaker to protect persons and property." State v.
Pinkard,
2010 WI 81, ¶14,
327 Wis. 2d 346,
785 N.W.2d 592. As
the majority opinion explains, this line of cases reflects the
reality that police work is not one-dimensional. While officers
investigate and respond to criminal activity, they also secure
property and help members of the public in need of assistance.
5
No. 2021AP2105-CR.bh
This is what we have called the "community caretaker function."
State v. Kramer, 2009 WI 14, ¶32,
315 Wis. 2d 414,
759
N.W.2d 598.
¶40 Our cases addressing this doctrine do not derive from
an independent analysis of the Wisconsin Constitution's text or
history. Rather, we rely on United States Supreme Court
precedent. Pinkard, 327 Wis. 2d 346, ¶14 ("[W]e look to the
United States Supreme Court's interpretation of the community
caretaker exception to the Fourth Amendment's warrant
requirement."). To that end, our cases point back to a United
States Supreme Court case, Cady v. Dombrowski,3 as the origin of
this doctrine. Id., ¶15. Just a few terms ago, however, the
Supreme Court held that the Fourth Amendment does not grant
officers a broad community caretaking license to search homes.
Caniglia v. Strom, 593 U.S. 194, 199 (2021). The Court further
cast at least some doubt about whether the community caretaker
doctrine is a standalone category through which police conduct
should be analyzed.
Id.
¶41 If that's true, the doctrines our cases use to address
this kind of law enforcement action may be due for a
reassessment. My aim in this writing is to start the
conversation by briefly telling the story of how the community
caretaker doctrine came to be, surveying where it stands now,
and raising questions that this and other courts may need to
address in future cases.
3 413 U.S. 433 (1973).
6
No. 2021AP2105-CR.bh
A. Cady and Community Caretaking
¶42 This court (along with many others) has said that the
community caretaking doctrine "has its origins" in Cady.
Kramer, 315 Wis. 2d 414, ¶19; Pinkard,
327 Wis. 2d 346, ¶15.
Cady itself comes from a line of cases involving what the United
States Supreme Court would describe as "caretaking" searches of
vehicles in police custody.
¶43 Six years prior to Cady, the Supreme Court was asked
whether officers could lawfully search a vehicle within their
custody. Cooper v. California, 386 U.S. 58, 60 (1967). Police
impounded the vehicle after arresting the defendant for
transporting narcotics.
Id. California law required the police
to seize vehicles used to transport narcotics and to hold them
as evidence until the conclusion of forfeiture proceedings.
Id.
After seizing the defendant's vehicle, the officers conducted a
search and found a small piece of a brown paper sack that was
later used as evidence in the defendant's trial.
Id. at 58.
The Supreme Court ultimately upheld the search. Because
California law required the police to impound the car and hold
it until forfeiture proceedings finished, the search was
"closely related to the reason petitioner was arrested, the
reason his car had been impounded, and the reason it was being
retained."
Id. Further, the court explained, "it would be
unreasonable to hold that the police, having to retain the car
in their custody for such a length of time, had no right, even
for their own protection, to search it."
Id. at 61-62. Thus,
the search did not offend the Fourth Amendment.
Id.
7
No. 2021AP2105-CR.bh
¶44 The Court dealt with another vehicle search the next
term. In Harris v. United States, police had impounded the
defendant's vehicle and searched it to remove all valuables
pursuant to department regulations. 390 U.S. 234, 235 (1968)
(per curiam). Following the search, an officer rolled up the
windows and locked the doors to protect the car, when he then
discovered evidence of a robbery that was later used at the
defendant's trial.
Id. at 234-35. The defendant challenged the
search, unsuccessfully.
Id. at 234. The Court concluded that
the discovery of incriminating evidence was not the result of a
search requiring a warrant, "but of a measure taken to protect
the car while it was in police custody."
Id. at 236.
¶45 These cases served as the foundation for Cady——the
supposed originator of the community caretaking doctrine. Like
its predecessors, Cady concerned the scope of officers'
authority to search a vehicle within their custody. 413
U.S. 433, 446-47 (1973). The search in Cady took place after
the defendant——a Chicago police officer——drunkenly crashed his
car in West Bend, Wisconsin.
Id. at 436. The West Bend
officers who responded to the scene believed that Chicago police
officers were required to carry their service revolvers at all
times, but they did not find one on the defendant.
Id. Their
department had a "standard procedure" to search for weapons that
might "fall into untrained or perhaps malicious hands," so they
searched the car's front seat and glove compartment.
Id. at
436, 443. They found no revolver, however, and eventually had
the car towed to a private garage.
Id. at 436. One of the
8
No. 2021AP2105-CR.bh
officers then went to the garage to keep searching for weapons.
Id. While doing so, he discovered evidence of a murder that was
later used to convict the defendant.
Id. at 438-39.
¶46 The search was challenged under the Fourth Amendment.
Id. at 434. The Supreme Court began its analysis by observing
the wide variety of reasons state and local law enforcement may
come into contact with automobiles——reasons that go well beyond
criminal investigation.
Id. at 441. Examples might include
responding to accidents, assisting disabled vehicles, and
enforcing vehicle regulations.
Id. The Court described these
noncriminal police-citizen contacts as the "community caretaking
functions" of police:
Local police officers, unlike federal 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.
Id. (emphasis added). The Court noted that these considerations
guided its decision in Cooper——where officers searched the
vehicle to "guarantee the safety of the custodian"——and in
Harris——where officers searched the vehicle "to safeguard the
owner's property."
Id. at 447. This case involved a search
with similar motivations——"concern for the safety of the general
public" should someone find the revolver.
Id. And although the
police did not have physical custody of the car, they exercised
control of it by directing it to be towed to a private garage.
9
No. 2021AP2105-CR.bh
Id. at 446. Thus, the officers' "caretaking 'search'" did not
violate the Fourth Amendment.
Id.
¶47 The Court revisited vehicle searches three years
later. South Dakota v. Opperman, 428 U.S. 364, 365 (1976). By
that time, police departments throughout the country had
established standard procedures to search and inventory the
contents of impounded vehicles.
Id. at 369, 376. In Opperman,
officers inventoried the defendant's car, found marijuana, and
charged him accordingly.
Id. at 366. He argued the search was
unconstitutional, but the Supreme Court disagreed.
Id. at 376.
¶48 Citing Cady, the Court recognized that police officers
will come into frequent, noncriminal contact with automobiles as
part of their "community caretaking functions." Id. at 367-69.
The Court mentioned examples such as responding to accidents or
disabled vehicles, removing vehicles that violate parking
ordinances, and examining vehicles for other regulatory
violations.
Id. Officers' authority to do so was "beyond
challenge."
Id. at 369. Inventory——or "caretaking"——procedures
fell into the same category of noncriminal activities.
Id.
Police departments developed these policies to safeguard the
owner's property, prevent claims against the police for lost or
stolen items, and protect officers from potential danger.
Id.
Citing Cooper, Harris, and Cady, the Court noted that it had
consistently upheld vehicle intrusions "aimed at securing or
protecting the car and its contents."
Id. at 373. Those cases
"unmistakably" pointed to the conclusion that "inventories
pursuant to standard police procedures are reasonable."
Id. at
10
No. 2021AP2105-CR.bh
372. Thus, the inventory search in Opperman did not violate the
Fourth Amendment. Id. at 376.
¶49 To summarize, this line of cases stands for the
proposition that some noncriminal "caretaking" searches of
vehicles in police custody are reasonable. See Colorado v.
Bertine, 479 U.S. 367, 372 (1987) (noting that Cooper, Harris,
Cady, and Opperman "accorded deference to police caretaking
procedures designed to secure and protect vehicles and their
contents within police custody"). None of these cases
explicitly created a freestanding doctrine by which courts
should evaluate all "community caretaking" actions by the
police.4
B. How Cady Became a Doctrine
¶50 That raises the question of how Cady's recognition of
the noncriminal community caretaking actions of police came to
take on a life of its own. This story is related to and
occurred alongside of other cases involving exigent
circumstances and the emergency aid doctrine.
¶51 We begin with exigent circumstances. The Supreme
Court had for years required police to obtain a warrant before
entering a person's home. See Katz v. United States, 389
See United States v. Pichany, 687 F.2d 204, 208-09 (7th
4
Cir. 1982) (explaining that the Supreme Court did not "intend to
create a broad exception to the Fourth Amendment warrant
requirement" for various caretaking activities; rather, the Cady
Court "articulated several premises behind its decision which
indicate that the holding in the case extended only to
automobiles temporarily in police custody").
11
No. 2021AP2105-CR.bh
U.S. 347, 357 (1967) (collecting cases). But the court began
outlining various circumstances of an urgent character where
there wasn't time to obtain a warrant, yet a search was
permissible. Id. This applied to a wide variety of exigencies,
some criminal and some noncriminal——for example, fighting a fire
and investigating its cause;5 preventing imminent destruction of
evidence;6 engaging in hot pursuit of a fleeing suspect;7 and
rendering emergency aid to persons seriously injured or
threatened with serious injury.8
¶52 The last of these exigencies eventually became known
as the emergency aid exception. See Kentucky v. King, 563
U.S. 452, 460 (2011); Michigan v. Fisher,
558 U.S. 45, 47 (2009)
(per curiam). The Court identified this category of reasonable
searches only a few years after Cady. See Mincey v. Arizona,
437 U.S. 385, 390 (1978). In Mincey, it recognized that the
Fourth Amendment "does not bar police officers from making
warrantless entries and searches when they reasonably believe
that a person within is in need of immediate aid."
Id. The
"need to protect or preserve life or avoid serious injury"
justified what would otherwise be impermissible absent an
emergency.
Id.
5 Michigan v. Tyler, 436 U.S. 499, 509 (1978).
6Ker v. California, 374 U.S. 23, 40 (1963) (plurality
opinion).
7Warden v. Hayden, 387 U.S. 294, 298 (1967); United States
v. Santana,
427 U.S. 38, 42 (1976).
8Mincey v. Arizona, 437 U.S. 385, 403 (1978); Brigham City
v. Stuart,
547 U.S. 398, 403 (2006).
12
No. 2021AP2105-CR.bh
¶53 But the emergency aid exception was understood to be
limited in nature, applying only to the provision of emergency
aid. It was not extended to assisting a disabled vehicle, for
example, or conducting a non-emergency welfare check in
someone's home. This led litigants and courts to Cady, which
had recognized that officers routinely engage in many
noncriminal, community caretaking functions such as assisting
disabled vehicles or responding to accidents. 413 U.S. at 441.
Courts thus began citing Cady to justify these non-emergency
situations. And soon enough, in most courts around the country,
Cady's identification of the community caretaking functions of
police evolved into a doctrine that justified searches and
seizures of all kinds.
¶54 The Texas Court of Appeals issued a decision fifteen
years after Cady following this logic. In McDonald v. State, an
officer observed the defendant pull off the road and slump over
his steering wheel. 759 S.W.2d 784, 784 (Tex. Ct. App. 1988).
After the defendant awoke and attempted to drive off, the
officer stopped him to make sure he was okay.
Id. He then
observed signs of intoxication.
Id. On appeal, the Texas Court
of Appeals upheld this seizure.
Id. at 785. Although the court
observed that it was "unclear when a police officer may make a
stop for reasons other than criminal ones," it quoted Cady for
the proposition that police officers "have a duty to protect the
general welfare and safety of the public at large and
individuals on the highways."
Id. This was such a situation.
The defendant's behavior could have rendered him "unfit to
13
No. 2021AP2105-CR.bh
drive" which would endanger both himself and others. Id. The
court found the situation analogous to that "of the right of a
fireman to enter a burning building to fight the fire without a
warrant."
Id. It therefore held that the officer's welfare
check did not violate the Fourth Amendment.
Id.
¶55 Similar cases proliferated around the country. See
Ullom v. Miller, 705 S.E.2d 111, 120 (W. Va. 2010) (collecting
cases). These cases dealt largely with searches and seizures of
vehicles——which was, after all, what Cady was about.9 But in
time, the "community caretaking exception" was also extended to
searches of the home. See State v. Deneui,
775 N.W.2d 221, ¶36
n.8 (S.D. 2009) (collecting cases).
¶56 This same evolution took place in Wisconsin. We too
developed what we called the "emergency doctrine." This
permitted warrantless home entries if the officer subjectively
perceived a need to render emergency aid and the situation
objectively presented such an emergency. State v. Boggess, 115
Wis. 2d 443, 449,
340 N.W.2d 516 (1983).
¶57 The community caretaker doctrine emerged around the
same time, though by a different path. In 1977, four years
after Cady, we addressed whether it was lawful for a police
officer to peer into the defendant's garage after a neighbor
9 See State v. Mitchell, 498 N.W.2d 691, 694 (Iowa 1993)
(burned-out taillight); State v. Vistuba,
840 P.2d 511, 514
(Kan. 1992) (driving on shoulder); State v. Pinkham,
565
A.2d 318, 318 (Me. 1989) (improper lane change); State v. Oxley,
503 A.2d 756, 759 (N.H. 1985) (unsecured furniture on back of
car); State v. Harrison,
533 P.2d 1143, 1144 (Ariz. 1975)
(bouncing left tire).
14
No. 2021AP2105-CR.bh
filed a noise complaint. Bies v. State, 76 Wis. 2d 457, 462,
257 N.W.2d 461 (1977). We said yes. We explained that checking
on noise complaints was "probably more 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 467.
¶58 The court of appeals took it a step further a decade
later. In State v. Anderson, two officers were patrolling an
alley in the early hours of the morning when they saw the
defendant turn into the alley and drive in their direction. 142
Wis. 2d 162, 164,
417 N.W.2d 411 (Ct. App. 1987). But upon
noticing their presence, the defendant exited the alley.
Id.
They recognized the defendant because several businesses had
complained that he had been parking in their reserved spots.
Id. Based on his abrupt exit of the alley and the parking
complaints, the officers pulled him over.
Id. at 165. After
speaking with him, they discovered several weapons that led to
felon in possession and other related charges.
Id. at 164-65.
Among other things, he challenged the officers' authority to
pull him over.
Id. at 166. The circuit court upheld the
seizure based on reasonable suspicion but, on appeal, the
arguments focused on whether the officers lawfully seized the
defendant as part of their "community caretaker function."
Id.
¶59 The court of appeals began by explaining the concept,
citing Cady and Bies. Id. at 166-67. Although "lacking in some
respects the urgency of criminal investigation," the court
15
No. 2021AP2105-CR.bh
described community caretaking as an "important and essential
part of the police role." Id. at 167. That did not, however,
remove such actions from constitutional scrutiny.
Id. The
court fashioned a three-part test for analyzing such claims:
"(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."
Id. at 169. The court, however, did not
decide the question. Although it noted that "police contacts
with citizens seeking to resolve or defuse private disputes
(such as trespassing) are certainly within the community
caretaker function," there was a suggestion that the officers'
stop was pretextual.
Id. at 170. The court therefore remanded
the case to the circuit court to employ the test.10
Id.
¶60 In 2000, the court of appeals extended the doctrine to
the home. State v. Horngren, 2000 WI App 177, ¶¶10-18,
238
Wis. 2d 347,
617 N.W.2d 508. Officers there entered the
defendant's home after the police received a report that he was
attempting to commit suicide. Id., ¶¶2-3. Although the court
explained that the officers were rendering "immediate aid and
Subsequent court of appeals decisions used Anderson's
10
test, although not resulting in a decision in the State's favor.
See State v. Dull, 211 Wis. 2d 652, 659,
565 N.W.2d 575 (Ct.
App. 1997) (officer's warrantless entry into home not justified
under community caretaking because he arrested a juvenile and
had thus stepped out of his caretaking role); State v. Paterson,
220 Wis. 2d 526, 535-36,
583 N.W.2d 190 (Ct. App. 1998) (even if
officer's warrantless home entry in response to a reported
burglary was bona fide community caretaking activity, the
balancing test tipped in defendant's favor).
16
No. 2021AP2105-CR.bh
assistance," it upheld the warrantless entry using the community
caretaking framework outlined in Anderson, not the emergency aid
doctrine.11 Id., ¶11.
¶61 The court of appeals applied the doctrine to a variety
of similar scenarios in the following years. See State v.
Ferguson, 2001 WI App 102, ¶1,
244 Wis. 2d 17,
629 N.W.2d 788
(upholding warrantless bedroom search because officers
discovered underage drinking in the apartment and feared
occupants of a locked room may be injured); State v. Ziedonis,
2005 WI App 249, ¶¶17-34,
287 Wis. 2d 831,
707 N.W.2d 565
(upholding warrantless home entry after police received 911 call
about the defendant's two vicious dogs on the loose and officers
found his back door ajar); State v. Truax,
2009 WI App 60, ¶¶11-
21,
318 Wis. 2d 113,
767 N.W.2d 369 (upholding seizure because
officer saw defendant abruptly exit the roadway and wanted to
make sure the driver was not suffering from a medical problem or
the car from mechanical failure).
¶62 A lead opinion in this court first applied Anderson's
test in 2001.12 State v. Kelsey C.R., 2001 WI 54, ¶¶36-37,
243
Wis. 2d 422,
626 N.W.2d 777 (lead op.). The officers in that
case had seized the defendant, a young girl who was sitting
Horngren was not the only case to blend community
11
caretaking and emergency aid. See State v. Pinkard, 2010 WI 81,
¶26 n.8,
327 Wis. 2d 346,
785 N.W.2d 592 (collecting cases
mixing the two); State v. Deneui,
775 N.W.2d 221, ¶22 (S.D.
2009) (observing the confusion).
Although the majority opinion was not joined by four
12
justices, all seven appeared to agree with its application of
Anderson's community caretaking test.
17
No. 2021AP2105-CR.bh
alone in a high-crime area at night, to make sure she was not a
runaway. Id., ¶5. The opinion upheld the seizure as a
reasonable exercise of the officers' community caretaking
function. Id., ¶¶36-37.
¶63 Eight years after Kelsey C.R., we officially adopted
the Anderson test. Kramer, 315 Wis. 2d 414, ¶¶20-21. Kramer,
like Anderson and Kelsey C.R., involved a seizure. Id., ¶2. An
officer seized the defendant who had parked his car on the side
of a county highway with its hazards flashing. Id., ¶¶4-5. We
upheld the seizure as a lawful exercise of the officer's
community caretaking function. Id., ¶3.
¶64 A year after Kramer, we held that the exception
permits warrantless home entries. Pinkard, 327 Wis. 2d 346,
¶¶13-27. Officers in Pinkard had entered the defendant's home
to check on the welfare of its residents after an anonymous
caller expressed concern for the house's occupants. Id., ¶¶2-4.
Once inside, officers discovered drugs which led to charges.
Id., ¶¶5-6. The circuit court upheld the officers' actions
based on the community caretaking exception. Id., ¶7. In this
court, the defendant argued that Cady and Opperman limited the
community caretaking exception to incidents involving
automobiles. Id., ¶19. We disagreed. We concluded Cady and
Opperman were not limited to automobiles; instead, they
counseled a cautious approach when employing the exception in
the home. Id., ¶20. We also harkened back to the very first
community caretaker case in Wisconsin——Bies v. State. Id., ¶21.
Bies upheld an officer's search of a homeowner's garage——an area
18
No. 2021AP2105-CR.bh
constitutionally protected as part of the home. 76 Wis. 2d at
467. Bies, therefore, implied that such community caretaker
searches within the home are permissible, and other states had
come to a similar conclusion. Pinkard,
327 Wis. 2d 346, ¶¶22-
27. We therefore upheld the search. Id., ¶63.
¶65 Our use of community caretaking grew as time went on.
In 2013, we upheld officers' warrantless entry into the
defendant's bedroom to make sure he was not injured after a car
accident. State v. Gracia, 2013 WI 15, ¶3,
345 Wis. 2d 488,
826
N.W.2d 87. In 2015, we held officers' seizure of the defendant
reasonable because they sought to transport him to the hospital
for carbon monoxide poisoning, reported chest pain, and suicidal
comments. State v. Blatterman,
2015 WI 46, ¶¶1-2,
362
Wis. 2d 138,
864 N.W.2d 26. In 2016, we permitted a warrantless
room entry after officers followed a blood trail to the
defendant's house and entered a room to make sure no one was
hurt. State v. Matalonis,
2016 WI 7, ¶3,
366 Wis. 2d 443,
875
N.W.2d 567. Finally, in 2017, we upheld officers' seizure of
the defendant's car because it was blocking access to a private
storage unit, officers wanted to protect the property inside the
car from theft, and the car was registered to someone else.
State v. Asboth,
2017 WI 76, ¶¶1, 18-21,
376 Wis. 2d 644,
898
N.W.2d 541.
¶66 Our cases——and those in other states——paint a clear
picture. After four decades, the community caretaker functions
of police recognized in Cady expanded from its original
application to automobile inventory searches into a broad
19
No. 2021AP2105-CR.bh
doctrine. Courts utilized this framework to permit all kinds of
noncriminal searches and seizures, both on the road and in the
home. These doctrinal developments marched forward in the lower
courts with little to no direction from the United States
Supreme Court. That changed in 2021.
C. Caniglia and the Future of the Doctrine
¶67 Almost 50 years after Cady, the United States Supreme
Court heard a case questioning whether the community caretaker
doctrine supported a warrantless home entry. Caniglia, 593
U.S. at 194. In Caniglia, the plaintiff and his wife got into
an argument in their home.
Id. at 196. The husband eventually
pulled out his handgun and told his wife to "shoot him now and
get it over with."
Id. (cleaned up). She left, but called the
police the next day after she couldn't reach him.
Id. When
officers arrived, they found the plaintiff on his porch.
Id.
He agreed to go to the hospital, and the officers then searched
his home for the gun.
Id. at 197. They found and confiscated
two firearms.
Id. The plaintiff sued the city and the police
officers, arguing his Fourth Amendment rights were violated.
Id. The District Court granted summary judgment to the
defendants, and the First Circuit affirmed based on the
"community caretaking exception."
Id.
¶68 The Supreme Court saw it differently. In a brief,
unanimous opinion, the Court reiterated that officers are
sometimes permitted to enter the home and its curtilage without
a warrant, such as when rendering emergency aid. Id. at 198.
20
No. 2021AP2105-CR.bh
The First Circuit's community caretaking rule, however, went
beyond anything the Court had recognized. Id. Cady involved
the search of an impounded vehicle, not a home.
Id. at 199.
And the Cady court "expressly contrasted its treatment of a
vehicle already under police control with a search of a car
'parked adjacent to the dwelling place of the owner.'"
Id.
(quoting another source). This distinction between vehicles and
homes placed Cady's use of the phrase "community caretaking"
into its proper context.
Id. The Court had used the phrase to
explain why frequent traffic accidents and disabled vehicles
often require the police to perform noncriminal "community
caretaking functions," such as aiding motorists.
Id. This
recognition that officers perform a variety of noncriminal tasks
as part of their duties was exactly that——"a recognition that
these tasks exist, and not an open-ended license to perform them
anywhere."
Id. Therefore, because the First Circuit had
extended Cady beyond its holding and logic, the Supreme Court
reversed.
Id.
¶69 Chief Justice Roberts, Justice Alito, and Justice
Kavanaugh concurred. Chief Justice Roberts, joined by Justice
Breyer, clarified that the Court's decision should not be read
as changing the Court's prior holdings that officers can enter
homes without warrants when assisting persons who are seriously
injured or threatened with such injury. Id. at 199-200
(Roberts, C.J., concurring). Police have a proper role in
"preventing violence and restoring order, not simply rendering
first aid to casualties."
Id. at 199.
21
No. 2021AP2105-CR.bh
¶70 Justice Alito agreed with the Court "that there is no
special Fourth Amendment rule for a broad category of cases
involving 'community caretaking.'" Id. at 200 (Alito, J.,
concurring). He worried that community caretaking was too
amorphous a concept that could involve a variety of tasks, with
no clear limiting principle.
Id. Given this, the same Fourth
Amendment principles used in criminal cases "may not be
appropriate for use in various non-criminal-law-enforcement
contexts."
Id. at 201. In addition, among other concerns,
Justice Alito pointed to the lack of cases addressing a very
real world scenario: a risk of suicide that is real, but whose
immediacy is unclear.
Id. at 202. This type of encounter falls
outside of the typical "exigent circumstances" exception to the
warrant requirement because it lacks an apparent exigency.
Id.
Thus, courts will likely need "to grapple with the basic Fourth
Amendment question of reasonableness."
Id. at 203.
¶71 Justice Kavanaugh wrote to underscore Chief Justice
Roberts's point that the Court's decision did not "prevent
officers from taking reasonable steps to assist those who are
inside a home and in need of aid." Id. at 204 (Kavanaugh, J.,
concurring). Although Cady dealt with vehicles rather than
homes, the issue was "more labeling than substance."
Id. at
205. The Court's case law already included the "exigent
circumstances doctrine" which permitted officers to enter homes
without warrants to assist persons "who are seriously injured or
threatened with such injury."
Id. at 206 (quoting another
source). The officers in Caniglia had not relied on that
22
No. 2021AP2105-CR.bh
doctrine, leading to the Court's ultimate conclusion. But that
did not change longstanding exigent circumstances precedent.
Id.
¶72 So where does that leave us now? First, Caniglia
appears to mean that Wisconsin cases permitting home entries
under community caretaking are no longer good law——at least
insofar as they rely on community caretaking to justify the
intrusion. It remains to be seen whether other doctrines might
lead to the same outcome.
¶73 More generally, Caniglia also suggests that the
Supreme Court is uncomfortable with community caretaking as a
broad category authorizing warrantless searches and seizures.
However, it seems equally clear that the Court is not abandoning
the proposition that some searches and seizures by law
enforcement conducted to aid citizens, protect property, and
ensure safety are permissible under the Fourth Amendment.
¶74 Therefore, we may soon need to address whether to
formally abandon community caretaking as a separate,
freestanding doctrine through which warrantless searches and
seizures should be evaluated. If we do so, courts may need to
wrestle with whether functions we might now categorize as
"community caretaking" may be better understood or evaluated
under other doctrines, such as emergency aid or exigent
circumstances, as Justice Kavanaugh suggested. See State v.
Ware, 2021 WI App 83, ¶15,
400 Wis. 2d 118,
968 N.W.2d 752
("Because the community caretaker exception cannot justify the
warrantless search of a home under Caniglia, we frame our
23
No. 2021AP2105-CR.bh
analysis using the related——but conceptually distinct——emergency
aid exception to the warrant requirement of the Fourth
Amendment."). In addition, it's possible some of the more
expansive understandings of community caretaking in Wisconsin
and elsewhere may need to be circumscribed. This is especially
true where the need for the search or seizure is less urgent or
could be accomplished through other means.
¶75 Given this newfound uncertainty, both this court and
the court of appeals must work to ensure our decisions have a
firm foundation in United States Supreme Court precedent. While
this case does not ask us to resolve these questions, I write
here to highlight them so the discussion can begin.
¶76 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence with respect to ¶¶39-75, and
Justice JANET PROTASIEWICZ joins with respect to ¶¶72, 74-75.
24
No. 2021AP2105.jcp
¶77 JANET C. PROTASIEWICZ, J. (concurring). I concur
with the majority opinion. I write separately to address
confusion in the law regarding a respondent's ability to argue
alternative grounds for affirming the court of appeals in its
response brief. The State seems confused because it erroneously
cited Wis. Stat. § (Rule) 809.62(3m)(b)1. regarding petitions
for cross-review to justify waiting until its response brief to
argue reasonable suspicion. And this court has sown confusion
by, in some cases, ignoring Wis. Stat. § (Rule) 809.62(3)(d) and
improperly holding respondents to rules that govern only
petitioners. The court should clarify the law on these matters.
I. RULES
¶78 Rule 809.62 governs how petitioners and respondents
preserve issues for this court’s review. The rule governing
petitioners uses “shall” and is mandatory. The rule governing
respondents uses “may” and is permissive.1
¶79 A petition for review “must contain a statement of the
issues the petitioner seeks to have reviewed” and “shall also
identify any issues the petitioner seeks to have reviewed that
were not decided by the court of appeals.” Wis. Stat. § (Rule)
809.62(2)(a) (emphasis added). If the court grants the petition
for review, the petitioner “cannot raise or argue issues not set
The word "shall" ordinarily is presumed to be mandatory.
1
The word "may" indicates a possibility. When the two words
appear in the same statute, courts presume that the words have
their precise meanings. Heritage Farms, Inc. v. Markel Ins.
Co., 2012 WI 26, ¶32,
339 Wis. 2d 125,
810 N.W.2d 465.
1
No. 2021AP2105.jcp
forth in the petition . . . unless ordered otherwise by the
supreme court.” Wis. Stat. § (Rule) 809.62(6) (emphasis added).2
¶80 In contrast, the rules governing the responses are
permissive. The respondent “may file a response to a petition.”
Wis. Stat. § (Rule) 809.62(3) (emphasis added). But a response
is not required. If the respondent chooses to file a response,
it “may contain . . . any alternative ground supporting the
court of appeals result or a result less favorable to the
opposing party than that granted by the court of appeals.” Wis.
Stat. § (Rule) 809.62(3)(d) (emphasis added). This rule
“addresses the circumstances in which the respondent asserts an
alternative ground to defend the court of appeals’ ultimate
result or outcome, whether or not that ground was raised or
ruled upon by the lower courts.” Judicial Council Committee
Comment, July 2008, Wis. Stat. § (Rule) 809.62(3)(d) (emphasis
added).3
¶81 Similarly, Rule 809.62(3m)(b)1. Provides that a
respondent need not file a petition for cross-review in order
“to defend the court of appeals’ ultimate result or outcome
based on any ground, whether or not that ground was ruled upon
by the lower courts, as long as the supreme court’s acceptance
of that ground would not change the result or outcome below.”
2 However, "[o]nce a case is before us, it is within our
discretion to review any substantial and compelling issue which
the case presents." Univest Corp. v. Gen. Split Corp., 148
Wis. 2d 29, 32,
435 N.W.2d 234 (1989).
3 Judicial Council Committee Comments "may be consulted for
guidance in interpreting and applying Wis. Stat. ss. 809.30,
809.32 and 809.62." Sup. Ct. Order No. 04-08, 2008 WI 108.
2
No. 2021AP2105.jcp
(Emphasis added). “Any such alternative ground for affirmance
or lesser relief should, however, be identified in the
response.” Judicial Council Committee Comment, July 2008, Wis.
Stat. § (Rule) 809.62(3m)(b) (citing Rules 809.62(3)(d), (3)(e),
and (6)). The rule uses the word “should” not “shall.”
¶82 Our case law provides additional guidance for
respondents on these matters. Where an issue was presented to,
but not decided by, the court of appeals, the respondent may
assert it in its brief for this court and fully discuss it.
Cynthia E. v. LaCrosse Cnty. Hum. Servs. Dep’t, 172 Wis. 2d 218,
232-33,
493 N.W.2d 56 (1992); Smith v. Anderson,
2017 WI 43,
¶¶24-26,
374 Wis. 2d 715,
893 N.W.2d 790 (Abrahamson, J.
dissenting). This court may exercise its discretion to review
the issue. Univest Corp. v. General Split Corp.,
148 Wis. 2d
29, 39,
435 N.W.2d 234 (1989). Nothing guarantees that this
court will exercise its discretion to review it. Cynthia E.,
172 Wis. 2d at 232.
¶83 In addition, the respondent’s brief may raise grounds
for affirming the lower courts, even if those grounds were not
presented to the lower courts. Liberty Trucking Co. v. DILHR,
57 Wis. 2d 331, 342,
204 N.W.2d 457 (1973) (appellate court may
sustain the circuit court “on a theory or on reasoning not
presented to the lower court”). This is “well-established law
in Wisconsin.” Blum v. 1st Auto & Cas. Ins. Co.,
2010 WI 78, ¶27
n.4,
326 Wis. 2d 729,
786 N.W.2d 78; see also State v. Delap,
2018 WI 64, ¶5 n.2,
382 Wis. 2d 92,
913 N.W.2d 175 (applying the
rule where both parties had an opportunity to brief the new
3
No. 2021AP2105.jcp
grounds); State v. Holt, 128 Wis. 2d 110, 122-25,
382 N.W.2d 679
(Ct. App. 1985) (explaining the rule), superseded by statute on
other grounds,
Wis. Stat. § 940.225(7).4
¶84 We abide by the rule of forfeiture, but we acknowledge
that concerns about judicial economy “are less relevant when new
arguments are raised by respondents who seek ‘to uphold rather
than reverse the result reached at trial.’” Blum, 326
Wis. 2d 729, ¶27 n.4. Again, we have the discretion to
disregard arguments presented for the first time in a response
brief. We have done so, for example, to prevent prejudice to
the petitioner. See, e.g., Paynter v. ProAssurance Wisconsin
Ins. Co.,
2019 WI 65, ¶¶105-09,
387 Wis. 2d 278,
929 N.W.2d 113.
Thus, a respondent would be prudent to assert alternative
grounds for affirming the lower courts in its response to the
petition for review.
¶85 While the rules governing a respondent’s presentation
of issues for this court’s review seem clear enough, the court
and the State in this case have stumbled over them.
Rule 809.62(3)(d) and (e) "are intended to facilitate the
4
supreme court's assessment of the issues presented for review,
not to change current law regarding the application of waiver
principles to a respondent." Judicial Council Committee
Comment, July 2008, Wis. Stat. § (Rule) 809.62(3)(d), (e). The
Comment specifically cites State v. Holt, 128 Wis. 2d 110, 125,
382 N.W.2d 679 (Ct. App. 1985) ("An appellate court may sustain
a lower court's holding on a theory or on reasoning not
presented to the lower court.") Id.
4
No. 2021AP2105.jcp
II. CONFUSING CASE LAW
¶86 In recent years, the court has issued decisions
ignoring Rule 809.62(3)(d) and making incorrect and confusing
statements of law regarding the respondent's ability to argue
alternative grounds supporting the court of appeals result. Two
examples are State v. Sulla, 2016 WI 46, ¶7 n.5,
369 Wis. 2d
225,
800 N.W.2d 659 and State v. Smith,
2016 WI 23, ¶41,
367
Wis. 2d 483,
878 N.W.2d 135.
¶87 In Sulla, the defendant raised multiple issues in the
court of appeals. The court of appeals reversed without
deciding some of them. The State's petition for review did not
raise the undecided issues. We granted the State's petition.
The defendant filed a response brief arguing the undecided
issues, but the court refused to address them because they were
"not raised in the petition for review" and "[w]e did not order
that any issues presented outside of the petition for review be
granted and briefed." Id., ¶7 n.5 (emphasis added) (citing
Jankee v. Clark County,
2000 WI 64, ¶7,
235 Wis. 2d 700,
612
N.W.2d 297).
¶88 Sulla erred by taking the rule requiring the
petitioner to preserve issues in the petition for review and
applying it to the respondent. Sulla also incorrectly relied on
Jankee, which concerned petitioners who forfeited issues by not
raising them in their petition for review. See 235 Wis. 2d 700,
¶7. Jankee did not address forfeiture by respondents. In
addition, Sulla ignored Rule 809.62(3)(d), which provides that a
5
No. 2021AP2105.jcp
respondent "may" but is not required to file a response raising
alternative grounds supporting the court of appeals' result.
¶89 Smith compounded the confusion. The defendant raised
three issues in the court of appeals, and the court of appeals
decided one of them. The state's petition for review preserved
only the decided issue. The defendant did not raise the
undecided issues in his response to the petition. After we
granted review, the defendant argued the undecided issues in his
response brief. The court refused to address them because:
"[A]ll of these claims are not properly before us, as they were
raised in neither the State's petition for review nor in Smith's
response to the State's petition for review." Smith, 367 Wis.
2d 483, ¶41 (citing Jankee,
235 Wis. 2d 700, ¶7).
¶90 Smith appropriately considered whether the undecided
issues had been raised in either the petition for review or the
response. But Smith incorrectly applied a rigid rule: The
failure to raise issues not decided by the court of appeals in
either the petition for review or the response forfeits them.
Smith ignored Rule 809.62(3)(d), which permits, but does not
require, the respondent to identify alternative grounds
supporting the court of appeals' result in his response to the
petition for review. Smith also invoked Jankee incorrectly.
Jankee did not involve, and does not govern, forfeiture by
respondents. Smith should have stated (but did not) that the
defendant was free to argue the undecided issues in his response
brief, but the court had the discretion to disregard them.
6
No. 2021AP2105.jcp
¶91 In two recent cases, this court has cited Sulla and
Smith placing its imprimatur on their erroneous statements of
law. See State v. Sholar, 2018 WI 53, ¶49,
381 Wis. 2d 560,
912
N.W.2d 89; Security Finance v. Kirsch,
2019 WI 42, ¶11 n.3,
386
Wis. 2d 388,
926 N.W.2d 167. To prevent further confusion on
this matter, the court should clarify that Sulla,
369 Wis. 2d
700, ¶7 n.5 and Smith,
367 Wis. 2d 483, ¶41 are incorrect for
the reasons I have stated.
III. APPLICATION
¶92 In this case, the State waited until its response
brief to argue reasonable suspicion——an issue the court of
appeals did not decide. The State argued that its strategy was
permissible for two reasons. First, Wiskowski raised the issue
below and in his petition for review. The State is correct.
Wiskowski argued that the State lacked reasonable suspicion in
his motion to suppress, his initial court of appeals' brief, and
his petition for review. The State's response did not raise
reasonable suspicion as an alternative ground for affirming the
court of appeals as permitted by Rule 809.62(3)(d). That does
not matter because Wiskowski himself preserved the issue under
Rule 809.62(2)(a).
¶93 The State's second reason is the source of
controversy. The State argues that under Rule 809.62(3m)(b)1.
and Delap, a respondent may defend the court of appeals'
ultimate result based on any ground whether or not it was ruled
on by the lower courts. This prompted Justice Hagedorn's
7
No. 2021AP2105.jcp
concurrence, which argues that the State's reliance on Rule
809.62(3m)(b)1. is misplaced. The rule does not allow the State
to assert an argument not raised below to support the same
result. Justice Hagedorn's concurrence, ¶8. "That would
require interpreting this common-sense procedural rule as
overriding or abandoning the principle of forfeiture——a rule as
old as the common law system itself." Id.
¶94 I agree with Justice Hagedorn that the State's
reliance on Rule 809.62(3m)(b)1. is misplaced, but for a
different reason. Rule 809.62(3m) governs petitions for cross-
review. The State prevailed in the court of appeals. It had no
adverse decision to challenge in a cross-petition. See Cynthia
E., 172 Wis. 2d at 232. Instead, the State should have
proceeded under Rule 809.62(3)(d).
¶95 On the other hand, I agree with the State that a
response brief may raise alternative grounds for sustaining the
court of appeals result. The State may do so even if the
alternative ground was not raised in the lower courts. Holt,
128 Wis. 2d at 124-25. Like it or not, that is "well-
established law in Wisconsin." Blum,
326 Wis. 2d 729, ¶27 n.4.
But the respondent proceeds at its own risk. This court is not
required to address arguments presented for the first time in a
respondent's brief.
¶96 I am authorized to state that Justice ANN WALSH
BRADLEY joins this concurrence.
8
No. 2021AP2105-CR.akz
¶97 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting).
Wiskowski was arrested and charged with operating a motor
vehicle under the influence of an intoxicant and with a
prohibited alcohol concentration that was nearly 10 times over
his legal limit. In the middle of the day, Wiskowski placed his
order at a McDonald's drive-through and then did not appear at
the window to pick it up. He evidently fell asleep at some
point between ordering and the pick-up window. Understandably,
the McDonald's employee who found him slumped over the steering
wheel was concerned and called the police. Law enforcement
responded within a minute or so and ultimately determined that
Wiskowski, who had been convicted three prior times for drunk
driving, was again drunk driving. Well over his legal limit, he
was charged a fourth time.
¶98 The entirety of the interaction with law enforcement
at this traffic stop was just over eight minutes. Most likely,
the average traffic stop is longer than this eight minute
inquiry. But the 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.
The majority opinion addresses traditional community caretaker
and extension of stop principles. The majority opinion also
opines that the officer could not have had reasonable suspicion
to believe Wiskowski was drunk driving. Under the totality of
1
No. 2021AP2105-CR.akz
the circumstances, the officer's conduct was reasonable. I
dissent, because, among other things, this case does not develop
the law and is at most error correction. Our court should not
accept review merely to correct error.
¶99 Clearly, this court does not grant every petition for
review.1 Rather, we accept or deny cases based on evaluating the
following statutory criteria:
(a) A real and significant question of federal
or state constitutional law is presented.
(b) The petition for review demonstrates a need
for the supreme court to consider establishing,
implementing or changing a policy within its
authority.
(c) A decision by the supreme court will help
develop, clarify or harmonize the law, and
1. The case calls for the application of a new
doctrine rather than merely the application of well-
settled principles to the factual situation; or
2. The question presented is a novel one, the
resolution of which will have statewide impact; or
3. The question presented is not factual in
nature but rather is a question of law of the type
that is likely to recur unless resolved by the supreme
court.
(d) The court of appeals' decision is in
conflict with controlling opinions of the United
1Jessie Opoien, The Wisconsin Supreme Court is headed for
its lowest output term ever. A look behind the numbers,
Milwaukee Journal Sentinel (May 10, 2024),
https://www.jsonline.com/story/news/politics/2024/05/10/wisconsi
n-supreme-court-headed-for-its-lowest-output-term-in-
history/73630399007/; Alan Ball, How Many Decisions Can We
Expect in 2023-2024?, SCOWstats (Apr. 30, 2024),
https://scowstats.com/2024/04/30/how-many-decisions-can-we-
expect-in-2023-24/.
2
No. 2021AP2105-CR.akz
States Supreme Court or the supreme court or other
court of appeals' decisions.
(e) The court of appeals' decision is in accord
with opinions of the supreme court or the court of
appeals but due to the passage of time or changing
circumstances, such opinions are ripe for
reexamination.
Wis. Stat. § (Rule) 809.62(1r).
¶100 Given these criteria, and the fact that the majority
opinion engages in only "error-correction" and develops no new
law, we should not have accepted review of this case. Rather
than applying a "new doctrine," the majority merely applies
"well-settled principles to [a new] factual situation." Both
the circuit court and the court of appeals denied Wiskowski's
motion to suppress.
¶101 We are not an error-correcting court.2 We are a law-
developing court.3 It is the court of appeals which is charged
primarily with error correcting. State ex rel. Swan v.
Elections Bd., 133 Wis. 2d 87, 93-94,
394 N.W.2d 732 (1986)
State ex rel. Davis v. Cir. Ct. for Dane Cnty., 2024
2
WI 14, ¶¶79-83,
411 Wis. 2d 123,
4 N.W.3d 273 (Ziegler, C.J.,
dissenting) (arguing case should be dismissed as improvidently
granted because this court is not an error-correcting court and
the case was not law-developing).
See Cook v. Cook, 208 Wis. 2d 166, 188-89,
560 N.W.2d 246
3
(1997) (determining that the court of appeals' "primary function
is error correcting" while "[i]n contrast, the supreme court's
primary function is that of law defining and law development");
State v. Lee,
197 Wis. 2d 959, 970,
542 N.W.2d 143 (1996) ("The
rules of appellate practice applicable to the court of appeals
are not always applicable to this court, which functions
primarily as a law-developing court."); State v. Schumacher, 144
Wis. 2d 388, 407,
424 N.W.2d 672 (1988) (stating the court of
appeals is an error-correcting court while the supreme court is
a law-developing or law-declaring court).
3
No. 2021AP2105-CR.akz
("The supreme court is primarily concerned with the
institutional functions of our judicial system, while the court
of appeals is charged primarily with error correcting in the
individual case."). "This means that, unlike the supreme court,
the court of appeals does not have a law-developing or law-
declaring function." State v. Schumacher, 144 Wis. 2d 388, 407,
424 N.W.2d 672 (1988); see also
id. (citing State v. Mosley,
102
Wis. 2d 636, 665-66,
307 N.W.2d 200 (1981) ("The court of
appeals is an error-correcting court.")).
¶102 The majority opinion does not engage in law
development. It restates established principles to a fact
specific situation. The current law is (1) that officers can
engage in community caretaking;4 (2) that a traffic stop cannot
4 See, e.g., State v. Brooks, 2020 WI 60, ¶23,
392
Wis. 2d 402,
944 N.W.2d 832; State v. Asboth,
2017 WI 76, ¶15,
376 Wis. 2d 644,
898 N.W.2d 541; State v. Matalonis,
2016 WI 7,
¶¶29-30,
366 Wis. 2d 443,
875 N.W.2d 567; State v. Blatterman,
2015 WI 46, ¶39,
362 Wis. 2d 138,
864 N.W.2d 26; State v.
Gracia,
2013 WI 15, ¶¶14-15,
345 Wis. 2d 488,
826 N.W.2d 87;
State v. Pinkard,
2010 WI 81, ¶14,
327 Wis. 2d 346,
785
N.W.2d 592; State v. Kramer,
2009 WI 14, ¶32,
315 Wis. 2d 414,
759 N.W.2d 598; State v. Anderson,
142 Wis. 2d 162, 167-68,
417
N.W.2d 411 (Ct. App. 1987).
4
No. 2021AP2105-CR.akz
be unnecessarily extended;5 and that an officer must have
reasonable suspicion to stop a vehicle.6 The majority applies
well-established law to the specific facts of this case.7
5 I recognize that "[t]he temporary detention of individuals
during the stop of an automobile by the police, even if only for
a brief period and for a limited purpose, constitutes a
'seizure' of 'persons' within the meaning of the Fourth
Amendment." State v. Popke, 2009 WI 37, ¶11,
317 Wis. 2d 118,
765 N.W.2d 569 (quoting State v. Gaulrapp,
207 Wis. 2d 600, 605,
558 N.W.2d 696 (Ct. App. 1996) (citing Whren v. United States,
517 U.S. 806, 809-10 (1996)). Because a seizure implicates a
party's Fourth Amendment rights, "[t]he scope of the detention
must be carefully tailored to its underlying justification."
Florida v. Royer,
460 U.S. 491, 500 (1983). "[E]vidence may not
be introduced if it was discovered by means of a seizure and
search which were not reasonably related in scope to the
justification" for the stop. Terry v. Ohio,
392 U.S. 1, 29
(1968). "Authority for the seizure ends when tasks tied to the
traffic infraction are——or reasonably should have been——
completed." Rodriguez v. United States,
575 U.S. 348, 354
(2015). See, e.g., Bies v. State,
76 Wis. 2d 457, 469,
251
N.W.2d 461 (1977) (determining that "any warrantless intrusion
must be as limited as is reasonably possible consistent with the
purpose justifying it in the first instance"); Rodriguez,
575
U.S. at 354 ("Like a Terry stop, the tolerable duration of
police inquiries in the traffic-stop context is determined by
the seizure's 'mission'——to address the traffic violation that
warranted the stop[.]"); State v. Floyd, 2017 WI 78, ¶21,
377
Wis. 2d 394,
898 N.W.2d 560 ("Traffic stops are meant to be
brief interactions with law enforcement officers, and they may
last no longer than required to address the circumstances that
make them necessary.").
6 "An investigatory stop is constitutional if the police
have reasonable suspicion that a crime has been committed, is
being committed, or is about to be committed." State v. Young,
2006 WI 98, ¶20,
294 Wis. 2d 1,
717 N.W.2d 729 (citing State v.
Waldner,
206 Wis. 2d 51, 56,
556 N.W.2d 681 (1996)). "An
investigatory stop, though a seizure, allows police officers to
briefly 'detain a person for purposes of investigating possible
criminal behavior even though there is no probable cause to make
an arrest.'"
Id. (quoting Waldner,
206 Wis. 2d at 55).
5
No. 2021AP2105-CR.akz
¶103 While the United States Supreme Court recently
considered the community caretaker warrant exception in Caniglia
v. Strom, 593 U.S. 194 (2021), the majority does not rest its
opinion on that case. Notably, the majority does not adopt that
analysis, nor does it in any way alter the community caretaker
exception to the warrant requirement. Perhaps it does not
because the facts of Caniglia, which involved entry into a home,
differ from those here——a vehicle stop. Indeed, while Caniglia
may have further refined the community caretaker doctrine and
some of my colleagues may wish to further consider the community
caretaker doctrine in Wisconsin, the majority opinion merely
applies previously accepted doctrine regarding an extended stop.
See majority op., ¶¶2, 21.
¶104 Since this case turns on its facts, I briefly engage
in an alternative legal analysis of those facts. Wiskowski
placed an order in the McDonald's drive-through at about 1:00 in
the afternoon. Wiskowski did not arrive at the pickup window.
The McDonald's employee called the police to explain that
someone had fallen asleep behind the wheel in the drive-through
lane. Wiskowski placed his order and fell asleep before
arriving at the pick-up window. Law enforcement arrived within
a minute or so in response to the employee's call and witnessed
Wiskowski pulling out of the parking lot into the street. It is
7See majority op., ¶2 ("The scope of caretaking stops
should be guided and limited by justification for the stop.
This means that, absent another permissible reason to detain
someone, the detention must end when the original community
caretaking function is resolved.").
6
No. 2021AP2105-CR.akz
undisputed that Wiskowski had fallen asleep after ordering food.
It was not unreasonable for the officer to take a closer look.
¶105 Wiskowski was thereafter properly pulled over by law
enforcement. Wiskowski explained that he fell asleep because he
had been working 24 hours straight and was tired. However, that
did not dispel the officer's belief that he might need some sort
of assistance. While the officer did not immediately smell
alcohol on Wiskowski's breath, the officer did eventually ask
Wiskowski to step out of his truck, and Wiskowski stumbled as he
did so. At that point, the officer did smell alcohol on
Wiskowski's breath. Wiskowski admitted to having a couple of
beers, a few hours before the stop. The officer took Wiskowski
to the police station, administered field sobriety tests, and
arrested him for fourth offense operating while under the
influence of an intoxicant and operating with a prohibited
alcohol concentration of nearly 10 times his legal limit of less
than .02. Wiskowski was subsequently charged with fourth
offense drunk driving.
¶106 I disagree with the majority's assertion that law
enforcement did not possess reasonable suspicion in pulling over
Wiskowski. Reasonable suspicion is a low bar: "[It] need not
rise to the level required for probable cause, and it falls
considerably short of satisfying a preponderance of the evidence
standard." United States v. Arvizu, 534 U.S. 266, 274 (2002)
(citing United States v. Sokolow,
490 U.S. 1, 7 (1989)). "The
essential question is whether the action of the law enforcement
officer was reasonable under all the facts and circumstances
7
No. 2021AP2105-CR.akz
present." State v. Richardson, 156 Wis. 2d 128, 139-40,
456
N.W.2d 830 (1990); see also State v. Popke,
2009 WI 37, ¶23,
317
Wis. 2d 118,
765 N.W.2d 569 ("[A] police officer may still
conduct a traffic stop when, under the totality of the
circumstances, he or she has grounds to reasonably suspect that
a crime or traffic violation has been or will be committed.")
(citing State v. Gaulrapp, 207 Wis. 2d 600, 605,
558 N.W.2d 696
(Ct. App. 1996)). The test is reasonableness. An analysis of
reasonable suspicion asks "whether the facts of the case would
warrant a reasonable police officer, in light of his or her
training and experience, to suspect that the individual has
committed, was committing, or is about to commit a crime."
State v. Post,
2007 WI 60, ¶13,
301 Wis. 2d 1,
733 N.W.2d 634
(citing State v. Anderson,
155 Wis. 2d 77, 83-84,
454 N.W.2d 763
(1990)). While an officer's "inchoate and unparticularized
suspicion or hunch" is not enough to satisfy reasonable
suspicion justifying an investigative stop, id., ¶10, "officers
are not required to rule out the possibility of innocent
behavior before initiating a brief stop." State v. Genous,
2021
WI 50, ¶8,
397 Wis. 2d 293,
961 N.W.2d 41 (quoting Anderson,
155
Wis. 2d at 84). "Therefore, if any reasonable inference of
wrongful conduct can be objectively discerned, notwithstanding
the existence of other innocent inferences that could be drawn,
the officers have the right to temporarily detain the individual
for the purpose of inquiry." State v. Young,
2006 WI 98, ¶21,
294 Wis. 2d 1,
717 N.W.2d 729 (quoting Anderson,
155 Wis. 2d at
84)).
8
No. 2021AP2105-CR.akz
¶107 Under the facts of this case, law enforcement
responded to a named informant's call about a driver asleep
behind the wheel of his vehicle, in a McDonald's drive-through,
in the middle of the day. Law enforcement arrived shortly
thereafter on scene and observed a vehicle matching the named
informant's description, exiting the drive-through. The driver,
who according to the named informant had been sleeping a moment
prior, was now operating his vehicle out of the parking lot and
back into traffic. Law enforcement was not required to "rule
out the possibility of innocent behavior" or make "other
innocent inferences" to explain this unusual behavior. Genous,
397 Wis. 2d 293, ¶8; Young,
294 Wis. 2d 1, ¶21. Rather, the
officer based his decision to initiate a traffic stop on the
"totality of the circumstances" present at the time. Reasonable
suspicion demands no more.
¶108 The majority seems to make much of the fact that the
officer testified that he did not initially smell the odor of
intoxicants and somehow the stop lasted a bit too long.
Majority op., ¶¶5-6. The majority rests its community caretaker
conclusion on the officer asking and requiring too much of
Wiskowski in his exchange with him, extending the stop beyond
what is necessary for the community caretaker function. Id.,
¶25. The majority sheds little light on what rule law
enforcement should follow in the future other than the Wiskowski
stop was a bit too long. Id., ¶2. In other words, this case is
very fact-dependent.
9
No. 2021AP2105-CR.akz
¶109 If the officer testified that he stopped the vehicle
for a traffic violation, such as Wiskowski not using a turn
signal, the majority analysis would likely be different.
Officers also can base a vehicular stop upon a call from an
informant, whether unknown, or as in this case, known.8 If just
a bit earlier in this stop the officer smelled intoxicants or
witnessed slurred speech or stumbling, the majority likely would
not reach the same conclusion. Here, the majority says, this
information came to the officer too late even though it was
within minutes. The majority essentially manufactures a two-
part stop out of what is one continuous inquiry. This officer
did not unreasonably extend this stop. The officer's
observations occurred within a fairly short time period and his
8See Navarette v. California, 572 U.S. 393, 398-99 (2014)
(concluding that a traffic stop based on tip from unknown 911
caller "bore adequate indicia of reliability for the officer to
credit the caller's account"); Alabama v. White,
496 U.S. 325,
326-27, (1990) (holding officers were justified in conducting a
traffic stop based off of an unknown informant's tip and
"corroborated by independent police work"); Adams v. Williams,
407 U.S. 143, 146-47 (1972) (concluding that an officer "acted
justifiably" in responding to an informant's tip as "[t]he
informant was known to him personally" and gave information
"that was immediately verifiable at the scene"); State v.
Rutzinski,
2001 WI 22, ¶¶37-38,
241 Wis. 2d 729,
623 N.W.2d 516
(holding that a tip from unknown informant observing erratic
driving "provided sufficient justification for an investigative
stop" as, among other things, the tip "reported contemporaneous
and verifiable observations," and the allegations in the tip
"could suggest to a reasonable police officer that [the driver]
was operating his vehicle while intoxicated"); State v. Miller,
2012 WI 61, ¶5,
341 Wis. 2d 307,
815 N.W.2d 349 (concluding that
"under the totality of the circumstances police acted reasonably
when they conducted an investigatory stop of the vehicle" as the
officers "had the requisite reasonable suspicion primarily based
on the reliability" of an informant and his verifiable tip).
10
No. 2021AP2105-CR.akz
inquiry was reasonable under the circumstances. After all, the
touchstone of the Fourth Amendment is reasonableness.
¶110 Also consider that any variety of other substances,
which do not necessarily have an odor, can constitute "drunk
driving" or operating under the influence of another drug.
Operating a motor vehicle with any amount of these prohibited
substances in one's system constitutes operating with a
prohibited substance.9 For example, a person could be driving
illegally while having any amount of these prohibited substances
in their system. Many prohibited substances are odorless, such
as oxycodone, heroin, or tetrahydrocannabinol (THC). The fact
that this officer did not initially detect of an odor of alcohol
should not automatically dispel the officer, under these facts,
from looking further into whether Wiskowski was otherwise unsafe
9 Chapter 961 of the Wisconsin Statutes, referred to as the
Uniform Controlled Substances Act, lists the standards and
schedules of various prohibited substances as well as the
correlated offenses and penalties. While Wiskowski was
convicted for driving with a prohibited alcohol concentration,
fourth offense, Wis. Stat. § 346.63 also forbids any person from
driving or operating a motor vehicle while:
(a) Under the influence of an intoxicant, a
controlled substance, a controlled substance analog or
any combination of an intoxicant, a controlled
substance and a controlled substance analog, under the
influence of any other drug to a degree which renders
him or her incapable of safely driving, or under the
combined influence of an intoxicant and any other drug
to a degree which renders him or her incapable of
safely driving; or
(am) The person has a detectable amount of a
restricted controlled substance in his or her blood.
§ 346.63(1)(a), (am).
11
No. 2021AP2105-CR.akz
to operate his motor vehicle. The majority opinion feels no
need to address this fact.
¶111 Instead, the majority assumes without deciding that
the traffic stop was conducted under the community caretaker
exception to the warrant requirement. The community caretaker
exception allows police to conduct a seizure without first
obtaining a warrant. See State v. Pinkard, 2010 WI 81, ¶¶13-14,
327 Wis. 2d 346,
785 N.W.2d 592. Under the community caretaker
exception the court must determine (1) whether a Fourth
Amendment seizure occurred; (2) if so, whether the officer was
acting as a bona fide community caretaker; and (3) if so,
whether the public need and interests outweigh the intrusion on
the individual's privacy. State v. Kramer,
2009 WI 14, ¶21,
315
Wis. 2d 414,
759 N.W.2d 598. In the case at issue, neither
party disputed that there was a Fourth Amendment seizure, so the
court of appeals focused on the other two elements of the test.
¶112 Regarding the second element——whether the officer was
acting as a bona fide community caretaker——the court of appeals
correctly concluded that there was an "objectively reasonable
basis" to believe that a member of the public is in need of
assistance. State v. Wiskowski, No. 2021AP2105-CR, unpublished
order, at 4 (Wis. Ct. App. Mar. 15, 2023). See State v. Maddix,
2013 WI App 64, ¶20,
348 Wis. 2d 179,
831 N.W.2d 778 (stating
that an analysis of whether police are engaged in a bona fide
community caretaker function "requires us to determine whether
there is 'an "objectively reasonable basis" to believe [that]
12
No. 2021AP2105-CR.akz
there is "a member of the public who is in need of assistance"'"
(quoting another source)).
¶113 The court of appeals observed:
[The officer] was called to the scene because of a
report about a person sleeping in a drive-through in
the middle of the day. This was not where one would
fall asleep absent some substantial problem, including
a potential medical issue, because one must maneuver a
vehicle through the drive-through and interact with
restaurant employees. Though [the officer] observed
the truck turn out of the parking lot when he arrived,
he still had an objectively reasonably basis to be
concerned that the driver needed assistance or might
not be able to safely drive the truck.
Wiskowski, No. 2021AP2105-CR, unpublished order, at 5.
¶114 The third element of the test——whether the public need
and interests outweigh the intrusion on the individual's
privacy——further supports the legality of the stop.10 The
balancing test employed militated in favor of there being a
significant public interest in ensuring that drivers are able to
safely operate their vehicles on public roads. I agree with the
court of appeals' conclusion that by immediately stopping
Courts consider the following "relevant considerations"
10
when assessing the balancing act of the third element of the
community caretaker test, namely:
(1) the degree of the public interest and the exigency
of the situation; (2) the attendant circumstances
surrounding the seizure, including time, location, and
degree of overt authority and force displayed; (3)
whether an automobile is involved; and (4) the
availability, feasibility and effectiveness of
alternatives to the type of intrusion actually
accomplished.
Anderson, 142 Wis. 2d at 169-70 (footnotes omitted).
13
No. 2021AP2105-CR.akz
Wiskowski, the officer was able to check on his condition and
mitigate the risk to public safety——and to Wiskowski himself.
¶115 The circumstances surrounding the stop do not
demonstrate that the officer used a high degree of overt
authority or force, nor was there an extensive intrusion into a
private space. In fact, the average speeding or traffic stop
would likely take about the same amount of time——perhaps more.
In short, the officer had reasonable suspicion to stop
Wiskowski, the officer was acting as a bona fide community
caretaker, and the traffic stop was not unreasonably extended.
¶116 Unfortunately, our court's review of this fact-
specific case fails to provide a clear rule for law enforcement.
No law is developed. Long established law about reasonable
suspicion is misapplied, even though its application to the case
at issue should militate against suppression of the evidence.
Under the totality of the circumstances, the officer's conduct
was reasonable.
¶117 For the foregoing reasons, I respectfully dissent.
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No. 2021AP2105-CR.akz
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