STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Dean M. BLATTERMAN, Defendant-Appellant.
No. 2013AP2107-CR
Supreme Court of Wisconsin
May 5, 2015
Oral argument February 4, 2015
2015 WI 46 | 864 N.W.2d 26
For the defendant-appellant, there was a brief by Marcus J. Berghahn and Hurley, Burish & Stanton, S.C., Madison, and Jonas B. Bednarek and Bednarek Law Office, S.C., Madison. Oral argument by Jonas B. Bednarek.
¶ 1. PATIENCE DRAKE ROGGENSACK, C.J. We review a decision of the court of appeals1 that
¶ 2. We conclude that Blatterman‘s stop and detention satisfied the reasonableness requirement of the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Consti-
I. BACKGROUND
¶ 3. On March 19, 2013, Deputy Nisius of the Dane County Sheriff‘s Department and several other officers received a dispatch that advised Nisius and the other officers that it had been reported to law enforcement that Blatterman was bringing gas into his house through a stove or fireplace to try to blow up the house or light it on fire. The complainant was Blatterman‘s wife. While Nisius was responding to the call, dispatch updated Nisius that Blatterman was leaving the house in a white minivan, with a specific license plate number. Dispatch informed Nisius that Blatterman was possibly intoxicated and had, in the past, mentioned “suicide by cop.”
¶ 4. Soon thereafter, Nisius observed Blatterman‘s white minivan approaching him. Nisius allowed the minivan to pass him, made a U-turn, and followed Blatterman.
¶ 5. Blatterman did not violate any traffic laws. Nisius did not immediately stop the van because Blatterman may have been intoxicated, allegedly tried to ignite his house, and had previously mentioned suicide by cop. Instead, he contacted other officers in order to conduct a high-risk stop.6
¶ 6. When other officers arrived, Nisius turned on his red and blue lights and the van pulled over. Other officers pulled up next to Nisius‘s vehicle on each side, bringing the total number of officers involved and squad cars present to three. The back-up officers opened their doors, drew their weapons, and pointed them at the van. Nisius directed Blatterman to turn off the vehicle, to open the driver‘s side window, and to put his hands outside.
¶ 7. Instead, Blatterman immediately opened the driver‘s side door and began walking toward the officers with his hands in the air. Blatterman‘s actions were contrary to the instructions yelled by all of the officers. One of the back-up officers transitioned from his duty weapon to a Taser, and told Blatterman that he would use the Taser on him if he did not stop walking. Blatterman stopped, approximately six to eight feet away from the bumper of Nisius‘s squad car. A back-up officer instructed Blatterman to turn away and get down onto the ground. Blatterman did not turn away, but did kneel down. Two back-up officers forced Blatterman to the ground. Nisius handcuffed Blatterman and searched him for weapons. After the search, Nisius asked if Blatterman was okay. Blatterman said that his chest hurt, and the officers requested emergency medical services (EMS).
¶ 8. Blatterman was wearing only a short-sleeve shirt and jeans with boots despite the cold weather at the time of the stop. Nisius smelled alcohol on Blatterman and noticed his eyes were watery. The officers placed Blatterman in the back of Nisius‘s squad car because it was “freezing” outside. The back doors of the squad car did not open from the inside. EMS arrived several minutes later, but Blatterman refused medical attention.
¶ 9. Nisius considered Blatterman‘s possible carbon monoxide poisoning, his chest pain, that he was potentially suicidal, and decided Blatterman “should get checked out at the hospital.” Nisius asked Blatterman what hospital he wanted to go to and Blatterman responded that his doctor was associated with St. Mary‘s. After EMS was finished and before Blatterman was moved from the scene of the stop, Nisius checked Blatterman‘s driving record. He found that Blatterman had three prior OWI convictions.7 Nisius also was concerned that Blatterman was intoxicated because of “his strange behavior by not responding to officers who are pointing weapons on you or at you,” the odor of alcohol, watery eyes, and information from dispatch that he may be intoxicated.
¶ 10. Nisius took Blatterman to St. Mary‘s, which was approximately ten miles from the scene of the stop. He informed the staff that his reasons for bringing Blatterman to the hospital were physical and psychological medical concerns, and that he would
¶ 11. After the medical assessment was completed, Nisius removed Blatterman‘s handcuffs and had him perform field sobriety tests in the exam room. Hospital staff drew Blatterman‘s blood. The test of Blatterman‘s blood sample showed his blood alcohol concentration was 0.118%, well over the threshold of 0.02% for the PAC imposed by his prior OWI convictions.
¶ 12. Blatterman was charged with OWI, fourth offense, in violation of
¶ 13. Blatterman moved for suppression of the blood test results, claiming that his transportation to the hospital amounted to an arrest unsupported by probable cause. The court considered whether the transport was within the vicinity under State v. Quartana, and whether Nisius‘s purpose in transporting Blatterman was reasonable. State v. Quartana, 213 Wis. 2d 440, 570 N.W.2d 618 (Ct. App. 1997)id. at 446-47. As for reasonable suspicion for the stop and transport, the court noted that dispatch said Blatterman was filling a house with gas, he possibly was
¶ 14. Blatterman appealed. The court of appeals focused primarily on whether transportation outside the vicinity of the stop transformed the initial investigatory detention into a “de facto arrest” in violation of the Fourth Amendment. State v. Blatterman, No. 2013AP2107-CR, unpublished slip op., ¶ 18 (Wis. Ct. App. Apr. 24, 2014). The court of appeals held that Blatterman‘s transportation to the hospital was not within the vicinity, exceeded the scope of investigatory detention, and violated Blatterman‘s Fourth Amendment rights. Id., ¶¶ 27, 33.
¶ 15. The State petitioned for review, which we granted.
II. DISCUSSION
A. Standard of Review
¶ 16. We review the circuit court‘s denial of Blatterman‘s motion to suppress. When we review a decision on a motion to suppress evidence, we uphold
B. Investigatory Detention
¶ 17. We assume without deciding that there was not sufficient evidence to support probable cause to arrest Blatterman when the officers stopped his vehicle. However, the officers’ temporary investigative stop was a seizure within the meaning of the Fourth Amendment and Article I, Section 11 of the federal and state Constitutions. See State v. Arias, 2008 WI 84, ¶ 29, 311 Wis. 2d 358, 752 N.W.2d 748; State v. Williams, 2001 WI 21, ¶ 18, 241 Wis. 2d 631, 623 N.W.2d 106. Accordingly, the State bears the burden of proving that the seizure complied with the Fourth Amendment and Article I, Section 11. See State v. Harris, 206 Wis. 2d 243, 263, 557 N.W.2d 245 (1996).
¶ 18. Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), a police officer may, under certain circumstances, temporarily detain a person for purposes of
¶ 19. According to
¶ 20. Working from our conclusion that the officers’ temporary detention of Blatterman was supported by reasonable suspicion, we next consider whether the length of the stop was reasonable. See Florida v. Royer, 460 U.S. 491, 499 (1983) (stating that unreasonably prolonged detentions may violate the Fourth Amendment absent probable cause). We must “guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires.” Terry, 392 U.S. at 15. “[T]he police [may not] seek to verify their suspicions by means that approach the conditions of arrest.” Royer, 460 U.S. at 499. Consequently, the detention “must be
¶ 14. Blatterman appealed. The court of appeals focused primarily on whether transportation outside the vicinity of the stop transformed the initial investigatory detention into a “de facto arrest” in violation of the Fourth Amendment. State v. Blatterman, No. 2013AP2107-CR, unpublished slip op., ¶ 18 (Wis. Ct. App. Apr. 24, 2014). The court of appeals held that Blatterman‘s transportation to the hospital was not within the vicinity, exceeded the scope of investigatory detention, and violated Blatterman‘s Fourth Amendment rights. Id., ¶¶ 27, 33.
¶ 15. The State petitioned for review, which we granted.
II. DISCUSSION
A. Standard of Review
¶ 16. We review the circuit court‘s denial of Blatterman‘s motion to suppress. When we review a decision on a motion to suppress evidence, we uphold
B. Investigatory Detention
¶ 17. We assume without deciding that there was not sufficient evidence to support probable cause to arrest Blatterman when the officers stopped his vehicle. However, the officers’ temporary investigative stop was a seizure within the meaning of the Fourth Amendment and Article I, Section 11 of the federal and state Constitutions. See State v. Arias, 2008 WI 84, ¶ 29, 311 Wis. 2d 358, 752 N.W.2d 748; State v. Williams, 2001 WI 21, ¶ 18, 241 Wis. 2d 631, 623 N.W.2d 106. Accordingly, the State bears the burden of proving that the seizure complied with the Fourth Amendment and Article I, Section 11. See State v. Harris, 206 Wis. 2d 243, 263, 557 N.W.2d 245 (1996).
¶ 18. Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), a police officer may, under certain circumstances, temporarily detain a person for purposes of
¶ 19. According to
¶ 20. Working from our conclusion that the officers’ temporary detention of Blatterman was supported by reasonable suspicion, we next consider whether the length of the stop was reasonable. See Florida v. Royer, 460 U.S. 491, 499 (1983) (stating that unreasonably prolonged detentions may violate the Fourth Amendment absent probable cause). We must “guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires.” Terry, 392 U.S. at 15. “[T]he police [may not] seek to verify their suspicions by means that approach the conditions of arrest.” Royer, 460 U.S. at 499. Consequently, the detention “must be
¶ 21. In determining whether the length of a stop is permissible, it is “appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the [person].” United States v. Sharpe, 470 U.S. 675, 686 (1985). “In making this assessment, courts should not indulge in unrealistic second-guessing. In assessing a detention‘s validity, courts must consider the totality of the circumstances--the whole picture, because the concept of reasonable suspicion is not readily, or even usefully, reduced to a neat set of legal rules.” State v. Wilkens, 159 Wis. 2d 618, 626, 465 N.W.2d 206 (Ct. App. 1990) (internal quotation marks and citations omitted).
¶ 22. In the instant case, the duration of Blatterman‘s stop was reasonable. Nisius diligently pursued his investigation. He called an officer at Blatterman‘s residence for further information; he checked Blatterman‘s driving record; and he interacted with Blatterman due to what appeared to be an emerging medical concern. He also sought medical attention for Blatterman and waited for EMS and EMS‘s interaction with Blatterman. Medical attention is a valid reason to extend an investigatory detention. State v. Colstad, 2003 WI App 25, ¶ 17, 260 Wis. 2d 406, 659 N.W.2d 394.
¶ 23. In Colstad, a chaotic accident scene required the attention of the police officer who stopped Colstad. Id. Colstad had to wait 30 to 45 minutes for questioning to resume. Id. The court of appeals held
¶ 24. Blatterman‘s stop and detention were supported by reasonable suspicion and lasted a reasonable length of time. We next consider whether Nisius‘s transportation of Blatterman was within the vicinity of the stop and therefore, within the scope of an investigatory detention. Quartana, 213 Wis. 2d at 446. We also note that the express language of
¶ 25. In Quartana, the court of appeals referred to a dictionary to define “vicinity” to mean “a surrounding area or district” or “locality.” Id. (quoting Webster‘s Third New International Dictionary: Unabridged 2550 (1976)). The court concluded that the officer‘s transportation of Quartana between his house and the accident scene one mile away was within the “surrounding area” or “locality.” Id. at 447. The court noted that the accident scene was within walking distance of the home, even in the winter, and that Quartana had initially walked from the scene to his home. Id. at 444, 447.
¶ 26. In the case now before us, Nisius transported Blatterman from where he was stopped to a hospital ten miles away. We conclude that ten miles is too distant a transportation to be within the vicinity so long as the temporary detention is supported by no more than a reasonable suspicion.9 A transportation of ten miles from the place of the stop is not within “a surrounding area or district,” or the “locality.” See id. at 446 (quoting Webster‘s Third New International Dictionary: Unabridged 2550). We decline to determine the precise outer limits of the “vicinity” for purposes of transportation during an investigatory detention.
¶ 27. Unpublished cases interpreting Quartana, while not precedential, support our interpretation that
¶ 28. Since Nisius transported Blatterman beyond the vicinity of the original stop, we need not inquire whether Nisius‘s purpose in moving Blatterman was reasonable.10 See Quartana, 213 Wis. 2d at 446. Furthermore, because transporting Blatterman to the hospital was not in the vicinity of the Terry stop, in order to be lawful, it must have been supported by probable cause to arrest or by a reasonable exercise of the community caretaker function.11
C. Probable Cause to Arrest
¶ 29. Given our conclusion that Blatterman‘s transportation was outside the scope of a temporary investigatory detention, our next inquiry is whether Nisius‘s transportation of Blatterman was supported by probable cause to arrest. It is necessary to determine when the arrest occurred because “[p]robable
1. Timing of arrest
¶ 30. In Wisconsin, the test for whether a person has been arrested is whether a “reasonable person in the defendant‘s position would have considered himself or herself to be ‘in custody,’ given the degree of restraint under the circumstances.” State v. Swanson, 164 Wis. 2d 437, 447, 475 N.W.2d 148 (1991), abrogated on other grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277. “The circumstances of the situation including what has been communicated by the police officers, either by their words or actions, shall be controlling under the objective test.” Id.
¶ 31. Blatterman argues that his transportation to the hospital while handcuffed amounted to an arrest. Although the use of handcuffs is certainly restrictive, it “does not necessarily render a temporary detention unreasonable [or transform a] detention into an arrest.” State v. Pickens, 2010 WI App 5, ¶ 32, 323 Wis. 2d 226, 779 N.W.2d 1. However, for such measures to be reasonable, they must be justified by particular circumstances, such as the risk of harm to the officers. See State v. Vorburger, 2002 WI 105, ¶ 65, 255 Wis. 2d 537, 648 N.W.2d 829.
¶ 32. Here, Blatterman repeatedly failed to follow the officers’ instructions, and dispatch informed the officers that Blatterman had mentioned suicide by cop, causing concern that their interactions with him could escalate into a violent confrontation. Therefore, the use of handcuffs and detention in the squad car are not sufficient to transform Blatterman‘s investigatory detention into an arrest. Furthermore, even though the officers approached Blatterman at gunpoint, this did not transform the investigatory stop into an arrest. Jones v. State, 70 Wis. 2d 62, 70, 233 N.W.2d 441 (1975) (explaining that an officer drawing a weapon during a Terry stop does not transform the stop into an arrest).
¶ 33. Though Blatterman‘s handcuffing and detention alone did not transform his temporary investigatory detention into an arrest, we conclude Blatterman was arrested at the time of his transportation to the hospital. Upon transportation, a reasonable person in Blatterman‘s position would have believed that he was in custody due to an arrest because his transportation was involuntary, and he had experienced a significant level of force and restraint since the initial stop. See Vorburger, 255 Wis. 2d 537, ¶ 68 (concluding that “we use an objective test, assessing the totality of the circumstances, to determine whether a seizure has escalated into an arrest“); State v. Burton, No. 2009AP180, unpublished slip op., ¶ 19 (Wis. Ct. App.
2. Probable cause
¶ 34. Warrantless arrests are unlawful unless they are supported by probable cause.13 Lange, 317 Wis. 2d 383, ¶ 19. “Probable cause to arrest... refers to that quantum of evidence within the arresting officer‘s knowledge at the time of the arrest that would lead a reasonable law enforcement officer to believe that the defendant was operating a motor vehicle [at a prohibited alcohol concentration].” Id. “The burden is on the state to show [it] had probable cause to arrest.” Id.
¶ 35. In determining whether probable cause exists, we examine the totality of the circumstances and consider whether the police officer had “facts and circumstances within his or her knowledge sufficient to warrant a reasonable person to conclude that the defendant... committed or [was] in the process of committing an offense.” State v. Richardson, 156 Wis. 2d 128, 148, 456 N.W.2d 830 (1990). The probable cause requirement “deals with probabilities” and must be sufficient “to lead a reasonable officer to believe that
¶ 36. Police may properly consider prior convictions in a probable cause determination. State v. Goss, 2011 WI 104, ¶ 24, 338 Wis. 2d 72, 806 N.W.2d 918 (evaluating probable cause to request a preliminary breath test); Lange, 317 Wis. 2d 383, ¶ 33 (evaluating probable cause to arrest). Prior convictions are especially relevant in this case because the statute reduced the PAC threshold applicable to Blatterman from 0.08% to 0.02% alcohol concentration. Goss, 338 Wis. 2d 72, ¶ 24;
¶ 37. Here, Nisius checked Blatterman‘s driving record, which showed three prior OWI convictions that lowered Blatterman‘s PAC threshold to 0.02%.
¶ 38. By the time Nisius transported Blatterman to the hospital, Nisius had ascertained Blatterman‘s prior OWI conviction record and, together with infor-
D. Community Caretaker Exception
¶ 39. The federal and state Constitutions protect persons against unreasonable seizures. Arias, 311 Wis. 2d 358, ¶ 13. We “have recognized that a police officer serving as a community caretaker to protect persons and property may be constitutionally permitted to perform” seizures without probable cause. Pinkard, 327 Wis. 2d 346, ¶ 14 (citing Cady v. Dombrowski, 413 U.S. 433, 448 (1973)); accord Kramer, 315 Wis. 2d 414, ¶ 18. A law enforcement officer exercises a community caretaker function, rather than a law enforcement function, when an “officer discovers a member of the public who is in need of assistance.” Kramer, 315 Wis. 2d 414, ¶ 32. It is the State‘s burden to prove that the officer‘s conduct is a reasonable community caretaker function. Id., ¶ 17.
¶ 40. In the case before us, we discuss the applicability of the community caretaker exception as an alternative ground for the officer‘s transportation of Blatterman to the hospital, assuming arguendo, that the officer‘s arrest of Blatterman was unsupported by probable cause. We “interpret the provisions of the Fourth Amendment and Article I, Section 11 as equivalent in regard to community caretaker analyses.” Id.,
¶ 41. The community caretaker exception has its origins in Cady. In Cady, Dombrowski‘s car was disabled by an accident and sitting on the side of a road. Cady, 413 U.S. at 435-36. The responding officers knew Dombrowski was a Chicago police officer and believed he was required to carry a service revolver at all times. Id. at 436. The officers conducted a warrantless search “to protect the public from the possibility that a revolver would fall into untrained or perhaps malicious hands.” Id. at 443. The Court upheld the warrantless search, providing the following rationale:
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. at 441. Soon after, we first applied the community caretaker exception in Bies v. State, 76 Wis. 2d 457, 251 N.W.2d 461 (1977). In Bies, we noted that “[a]s a general matter [checking noise complaints] is 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 471.
¶ 42. In Kramer, we adopted a three-component test for evaluating potential community caretaker
1. Seizure
¶ 43. A seizure within the meaning of the Fourth Amendment occurred here. We assume for the purposes of this discussion that the officer did not have probable cause to arrest Blatterman at that time. See Vorburger, 255 Wis. 2d 537, ¶ 68. Accordingly, our discussion of the community caretaker exception focuses on whether the officer was exercising a community caretaker function at the time of Blatterman‘s transportation. However, as we explain further below, the officer began exercising his community caretaker function earlier in his interaction with Blatterman and therefore, our community caretaker analysis begins before Blatterman‘s transportation.
2. Bona fide community caretaker function
¶ 44. The second component in reviewing whether an officer was acting as a community caretaker requires the officer to be engaged in a bona fide community caretaker function if the officer‘s conduct is to be upheld. Kramer, 315 Wis. 2d 414, ¶ 23 (citing
¶ 45. Here, we conclude that the officer was engaged in a bona fide community caretaker function. The officer began to exercise his community caretaking function shortly after he stopped Blatterman‘s vehicle. Our conclusion is based on the circuit court‘s findings of fact14 that dispatch informed the officer that Blatterman attempted to blow up his house by filling it with gas, that Blatterman may be intoxicated, and that Blatterman had, in the past, talked of suicide by cop.15 The circuit court also found that Blatterman
¶ 46. The officer kept Blatterman handcuffed, placed him in the back of a squad car, called EMS, and transported Blatterman to the hospital after he refused EMS attention. The handcuffs kept Blatterman from hurting himself or others if concerns about his mental state were correct. Placing Blatterman in the back of a squad car kept him out of the cold weather. Calling EMS to assess his medical condition and transporting him to the hospital also addressed the officer‘s concerns about Blatterman‘s possible carbon monoxide poisoning, his self-reported chest pain, his possible alcohol use, and his mental health. The totality of circumstances demonstrates that the officer‘s actions were undertaken as community caretaker functions, directly related to concern for Blatterman‘s physical and mental health. See Kramer, 315 Wis. 2d 414, ¶ 30.
¶ 47. We conclude that although Nisius held subjective law enforcement concerns, as we have explained above, those subjective concerns did not negate the objectively reasonable basis for a community caretaker function. Id. Officers may base their actions simultaneously on law enforcement and community caretaker functions. We have repeatedly explained that officers are charged with both law enforcement and community caretaker functions as part of their service of the public. Pinkard, 327 Wis. 2d 346, ¶ 53; Kramer, 315 Wis. 2d 414, ¶ 32.
To conclude otherwise would ignore the multifaceted nature of police work and force police officers to let down their guard and unnecessarily expose themselves to dangerous conditions.
Kramer, 315 Wis. 2d 414, ¶¶ 32-33. Accordingly, we conclude that the officer was engaged in a bona fide community caretaker function when he transported Blatterman to the hospital.
3. Reasonableness balance
¶ 48. We now consider the third component: “whether the officer‘s exercise of a bona fide community caretaker function was reasonable.” Id., ¶ 40 (citing Kelsey C.R., 243 Wis. 2d 422, ¶ 35). We consider the third component by “balancing a 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 citizen.” Id. (citing Arias, 311 Wis. 2d 358, ¶ 32). “The stronger the public need and the more minimal the intrusion upon an individual‘s liberty, the more likely the police conduct will be held to be reasonable.” Id., ¶ 41. We balance these interests by weighing 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.
Id. (quoting Kelsey C.R., 243 Wis. 2d 422, ¶ 36).
a. public interest and exigency
¶ 49. The first factor is “the degree of the public interest and the exigency of the situation.” Id. An individual‘s physical and mental health status is an issue of public interest and presents an exigency when an officer reasonably determines that physical or mental health could be in jeopardy. See Pinkard, 327 Wis. 2d 346, ¶¶ 47-48.
¶ 50. In Pinkard, officers entered a residence when two occupants were unconscious. Id., ¶ 5. In weighing public interest and exigency as a factor to determine whether exercise of the community caretaker function was reasonable, we considered the medical consequences of officers not exercising the community caretaker function. Id., ¶¶ 47-48. “If Pinkard and his companion had been suffering from a cocaine overdose, a reasonable inference based on these facts, the officers were presented with a significant exigency, for every passing minute could have been the difference between life and death.” Id., ¶ 47. Similarly, here, the officer reasonably inferred that Blatterman could have been suffering from carbon monoxide poisoning or other serious illness, given the information from dispatch that he had been exposed to some kind of gas and his own statement that he had chest pain.
¶ 51. In State v. Horngren, 2011 WI App 177, 238 Wis. 2d 347, 617 N.W.2d 508, officers entered a residence in response to a call that an individual there was
¶ 52. In the case now before us, the officer knew of Blatterman‘s previous remarks about suicide by cop. Though the circumstances here differ from the threats of suicide in Horngren, nevertheless they evidence a similar public interest at stake and exigency presented to the officer. The public has a substantial interest in police ensuring the well-being and safety of citizens who may be suffering from health concerns that present exigencies. Accordingly, the first factor favors the conclusion that the officer reasonably performed his community caretaker function.
b. attendant circumstances
¶ 53. In considering the second factor, whether the time, location, and degree of authority and force displayed were appropriate under the circumstances, we refer to the information available to the officer at the time of the investigatory stop and observations by the officer subsequent to the stop. In Pinkard, we “first note[d] that the officers did not control the time of day or location,” but were responding to a phone call. Pinkard, 327 Wis. 2d 346, ¶ 49. Similarly, here, Blatterman‘s seizure stems from Nisius being dispatched in response to a phone call by Blatterman‘s wife.
¶ 54. Nisius and the other officers undeniably displayed overt authority and force when they stopped
¶ 55. The degree of force and display of authority were reasonable given the officer‘s concerns for Blatterman‘s physical and mental health. Therefore, we conclude that the second factor favors the conclusion that the officer reasonably performed his community caretaker function.
c. vehicle
¶ 56. The third factor addresses whether a person‘s privacy interests were being invaded while he or
d. alternatives
¶ 57. Under the fourth factor, “we consider the feasibility and availability of alternatives” to taking Blatterman to the hospital. Kramer, 315 Wis. 2d 414, ¶ 45. Blatterman argues that calling the EMS was sufficient to address any medical concern. However, this alternative, which stops short of Nisius transporting Blatterman to the hospital, fails to acknowledge the circumstances surrounding Blatterman‘s stop. At the time that officers took Blatterman into custody, he had refused to comply with the officers’ commands; the officers also were concerned about possible carbon monoxide poisoning, possible suicidal thoughts, and his chest pain.
¶ 58. As we have explained previously, “[p]rinciples of reasonableness demand that we ask ourselves whether ‘the officers would have been derelict in their duty had they acted otherwise.’ ” Pinkard, 327 Wis. 2d 346, ¶ 59 (quoting State v. Deneui, 775 N.W.2d 221,
¶ 59. We conclude that the officer was engaged in a bona fide community caretaker function and that he exercised the community caretaker function reasonably under the totality of the circumstances. Therefore, Nisius‘s transportation of Blatterman to the hospital was a lawful community caretaker function.
III. CONCLUSION
¶ 60. We conclude that Blatterman‘s stop and detention satisfied the reasonableness requirement of the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution because they were supported by reasonable suspicion to conduct an investigatory detention. Blatterman‘s arrest, which occurred when Nisius transported Blatterman to the hospital, satisfied the reasonableness requirement of the Fourth Amendment of the
By the Court. ----The decision of the court of appeals is reversed.
¶ 61. ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join the majority opinion. I write further to briefly explain why the officer here was not required to first administer a preliminary breath test (“PBT“) to Dean Blatterman in order to have his blood tested at the hospital.1 I also concur and write separately to further discuss why odor alone establishes probable
¶ 62. Why is it important to address this issue? The courts and law enforcement face these real life determinations when evaluating whether probable cause to arrest exists for a .02% prohibited alcohol concentration (“PAC“) offense, especially in light of Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013). For example, what if the officer had sought a warrant to draw a suspected .02% PAC offender‘s blood based upon odor alone? Does probable cause exist or not? What if a law enforcement officer had asked a suspected offender—known to be a repeat operating-while-intoxicated (“OWI“) offender, subject to a .02% PAC legal limit and smelling of intoxicants—to submit to a PBT, and the PBT was refused? Would the suspect be free to leave? Are officers on scene always required to obtain a PBT from a suspected .02% PAC offender? If a PBT is refused, is that, coupled with odor, enough for probable cause? What if the officer does not have a PBT device? Are officers without the lawful ability to pursue whether such chronic offenders are committing
¶ 63. I reach my conclusion because the legislature has spoken by enacting legislation that prohibits a serial OWI offender, like Blatterman, from operating a motor vehicle with this exceedingly small amount of alcohol, .02%, in his system. The legislature essentially imposed an absolute sobriety standard by adopting the .02% limit for serial OWI offenders while they are operating a motor vehicle.4 The legislature did not set such an extraordinarily low legal limit for first, second, or third offenders. In fact, most drivers are subject to a PAC legal limit of .08%, not a limit of .02%. Blatterman, however, was subject to this low legal limit, .02%,
I. THE OFFICERS HAD PROBABLE CAUSE TO ARREST AND TEST BLATTERMAN UNDER THE FACTS OF THIS CASE
¶ 64. Blatterman‘s traffic stop was not an ordinary OWI investigation. Blatterman was pulled over because his wife called police to report that he had driven away from their house after he tried to blow it up or start it on fire by drawing in carbon monoxide. She also reported that he might be intoxicated and that he had mentioned “suicide by cop” in the past. Officers subsequently found Blatterman‘s vehicle and performed a “high risk” traffic stop. Immediately after
¶ 65. After Blatterman was placed in handcuffs, he told the officers that his chest hurt. Based on his chest pain, the officers were reasonably concerned that he may have impending health issues. Due to his wife‘s report that he had mentioned “suicide by cop” in the past and that he had been drawing carbon monoxide into the house, the officers were reasonably concerned that he may have been suicidal. Clearly, the officers were concerned about Blatterman‘s well-being. The officers then summoned emergency medical services (“EMS“) to evaluate Blatterman‘s health, namely, his chest pain. In the meantime, the officers placed Blatterman in the back of a squad car, as he was not dressed appropriately for the cold weather. When EMS
¶ 66. Under the facts of this case, the officers could not be expected to request a PBT before transporting an offender like Blatterman to the hospital. Officers stopped Blatterman in response to a serious
¶ 67. In the case at issue, these legitimate concerns alone support the officers’ decision to transport Blatterman to a hospital for testing without first requesting that he submit to a PBT. Should officers be expected to request a PBT breath sample from a driver who smells of alcohol, is subject to a .02% PAC legal limit, acts very strangely, is potentially dangerous, and
II. AN OFFICER HAS PROBABLE CAUSE TO ARREST AND TEST A MOTORIST IF THE MOTORIST EMITS AN ODOR OF INTOXICANTS AND THE OFFICER KNOWS THE MOTORIST IS SUBJECT TO A PROHIBITED ALCOHOL CONCENTRATION LEGAL LIMIT OF .02%
¶ 68. I write separately because I conclude that odor of intoxicants alone is sufficient to establish probable cause to arrest and further test an operator of a motor vehicle when the officer knows that the operator has three or more previous OWI-related convictions. When practical, a PBT will be a useful tool in determining whether to arrest and further test. In general, PBTs serve to bolster the probable cause analysis. However, a PBT is not always required and if it is refused by the chronic offender who is required not to exceed a .02% PAC while driving, I would conclude that probable cause to arrest exists based upon odor alone. Field sobriety tests may also be administered, but are not required, for the seemingly obvious reason that in order to exceed the .02% PAC legal limit, the operator need not exhibit any indicia of intoxication or impairment. Because the law requires that this class of serial drunk drivers maintain an alcohol concentration of less than .02% if operating a motor vehicle, probable cause must exist based on the odor of alcohol alone.
¶ 69. The law concerning probable cause is not new. Probable cause is required for an arrest to be valid. State v. Secrist, 224 Wis. 2d 201, 212, 589 N.W.2d 387 (1999) (citing State v. Mitchell, 167 Wis. 2d 672, 681, 482 N.W.2d 364 (1992)). “Probable cause to arrest is the quantum of evidence within the arresting officer‘s knowledge at the time of the arrest which would lead a reasonable police officer to believe that the defendant probably committed or was committing a crime.” Id. (citations omitted). “There must be more than a possibility or suspicion that the defendant committed an offense, but the evidence need not reach the level of proof beyond a reasonable doubt or even that guilt is more likely than not.” Id. (citing Mitchell, 167 Wis. 2d at 681-82). Probable cause to arrest depends on the totality of the circumstances. State v. Kennedy, 2014 WI 42, ¶ 21, 359 Wis. 2d 454, 856 N.W.2d 834. An officer may have probable cause to arrest a person for an OWI-related offense without administering a PBT.11 See Cnty. of Dane v. Sharpee,
¶ 70. Given that a law enforcement officer must have probable cause in order to arrest, it is important to pay heed to the elements of the PAC offense and then evaluate what quantum of evidence satisfies probable cause for each element. This crime is not complex. The legislature enacted
¶ 71. Specifically, the legislature has determined that for this unique group of repeat drunk drivers, .02%, not .08%, is a PAC. See 1999 Wis. Act 109, §§ 16d, 16e.12 In adopting such a low legal limit, the legislature essentially required absolute sobriety of this group of drivers. The Legislative Reference Bureau has explained that “Act 109 require[d] that drivers with three or more prior convictions may not exceed an absolute sobriety standard of .02 BAC. (A BAC of .02 is considered ‘absolute sobriety’ because of the limitations in breath testing devices and the fact that the slight alcohol content of mouthwash or some medications can influence a test.)” Legislative Briefs, OWI Laws Revised, LB-00-7, at 1 (July 2000), available at http://legis.wisconsin.gov/lrb/pubs/lb/001b7.pdf.
¶ 72. Operating a motor vehicle with a PAC is a stand-alone crime. See
¶ 73. Simply stated, a person can commit a PAC offense without being or appearing intoxicated or impaired. A person who is subject to a .02% PAC legal limit could rarely, if ever, exhibit any sign of intoxication or impairment when operating with a PAC. To require more than odor of an intoxicant would require more than is legislatively contemplated.
¶ 74. Specifically, an operator who is subject to this low legal limit can certainly reach a .02% PAC without exhibiting any of the traditional indicia of intoxication. See State v. Muehlenberg, 118 Wis. 2d 502, 505, 347 N.W.2d 914 (Ct. App. 1984). In other words, such a prior offender need not be intoxicated or otherwise impaired in order to be in violation of the PAC law. Id.; see also State v. Bohacheff, 114 Wis. 2d 402, 414, 338 N.W.2d 466 (1983). For these offenders, the legislature must have intended that odor of intoxicants alone raises a red flag. A PAC violation is “highly plausible” when a person who is subject to a PAC legal limit of .02% operates a motor vehicle and smells of alcohol. Goss, 338 Wis. 2d 72, ¶ 26. An officer certainly has probable cause to arrest when a law violation is “highly plausible.” See Secrist, 224 Wis. 2d at 212 (citation omitted) (explaining that probable cause to arrest requires more than suspicion or a possibility, but the evidence need not establish that guilt is more
¶ 75. Thus, the legislature has spoken and set a particularly low PAC limit for a driver who has three or more prior OWI-related convictions. In other words, the legislature sent a strong message to those serial offenders not to drink and drive. Those serial offenders who want to test what amount of alcohol they can have and not reach .02% do so at great risk. Those drivers know that they place themselves at great risk of arrest if they have any alcohol in their system and get behind the wheel. If this court were to conclude that more than the odor of intoxicants is required to arrest a motorist subject to a .02% PAC legal limit, we would undermine, if not invalidate, the .02% PAC offense as a stand-alone crime. See
¶ 76. Blatterman argues that Goss requires a PBT under all circumstances. It does not. In fact, Goss supports the conclusion that I reach today. The sole question before the Goss court was whether the officer had probable cause to request a PBT. Goss, 338 Wis. 2d 72, ¶ 2. The court concluded that a PBT may be requested of a prior offender who is subject to a .02%
¶ 77. Finally, I address why, even if we were to
¶ 78. When we decline to answer the issues for which we accepted review in this case, we leave significant uncertainty for the courts and law enforcement. We should answer whether odor of intoxicants alone is probable cause to arrest those operators who are subject to a .02% PAC legal limit. If the officers had requested that Blatterman submit to a PBT, what
¶ 79. Although I join the majority opinion, I write separately to explain that Deputy Nisius had probable cause to arrest and test Blatterman based on the facts of this case. I would further conclude that odor of intoxicants alone establishes probable cause sufficient to arrest and test operators of motor vehicles who are subject to the .02% PAC legal limit. For the foregoing reasons, I respectfully concur.
¶ 80. I am authorized to state that Justice DAVID T. PROSSER joins this concurrence and that Chief Justice PATIENCE DRAKE ROGGENSACK joins section II of this concurrence.
Notes
Temporary questioning without arrest. After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person‘s conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.
The record does not reflect why Deputy Nisius removed Blatterman‘s handcuffs and administered field sobriety tests, and the record does not reflect how Blatterman performed on the tests.