On Point: 4. Community caretaker

State v. Heather Jan VanBeek, 2019AP447, certification granted 9/16/20; District 2; case activity (including briefs)

We wrote about this case less than a month ago, when the court of appeals issued its certification to the supreme court. Now the certification is granted, so SCOW will have a chance to deal with the inconvenient fact that our state’s cases permit police to seize people without reasonable suspicion in order to verify their identities.

State v. Heather Jan VanBeek, 2019AP447, 8/12/20, District 2; certification granted 9/16/2020; case activity (including briefs)

VanBeek was sitting with a companion in her parked truck when an officer approached. There’d been a tip that people were sitting in the truck for an hour and that someone had come to the truck with a backpack, then departed. The officer asked a few questions, got satisfactory answers, and then asked for ID, purportedly for his report of the contact. The truck’s occupants were reluctant to hand over their licenses, but the officer insisted, and they did. He held onto them for more than five minutes and summoned a drug dog, who eventually alerted. At some point in this time frame, reasonable suspicion developed, but it wasn’t present when the officer took the IDs. So, was the encounter, at that point, “consensual” (as the state argues) or were the truck’s occupants seized–which, without reasonable suspicion, would be unconstitutional?

State v. Alfonso Lorenzo Brooks, 2020 WI 60, 6/25/20, reversing a per curiam court of appeals decision, 2018AP1774, case activity (including briefs)

The police stopped Brooks for speeding in Milwaukee. Specifically, they pulled him over to the side of a residential/commercial road. The police quickly learned Brooks had a suspended license and was a convicted felon. They wrote him tickets for the speeding and operating on a suspended license. Brooks wasn’t arrested then, but he couldn’t drive away either, on account of the license issue. So, police told him, they were towing his car to impound–even though he told them his girlfriend (to whom the car was registered) was nearby and could pick it up. The police said no, that was against department policy, and then did an inventory search of the car. That search turned up a gun, which Brooks, as a felon, could not have. Then he was arrested.

State v. Shannon G. Potocnik, 2019AP523, 4/14/20, District 3 (one-judge decision; ineligible for publication) case activity (including briefs)

There’s a deep split nationwide about whether the community caretaker doctrine can ever permit entry into a home. Wisconsin has held that it can, and this pro se appeal is of course necessarily fact-bound. But the decision is thorough and provides a good summary of state community-caretaker law as it stands, along with a much briefer discussion of blood draws based on exigency.

Wood County v. Trevor J. Krizan, 2019AP350, 12/12/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

A sheriff’s deputy on patrol at 2:00 a.m. happened by a parking lot for a boat landing. The lot was open to the public 24 hours a day, and he saw a vehicle parked, not running, with its lights off. The officer pulled behind it and shined his spotlight and “takedown lights” (these are apparently very bright lights that may temporarily blind occupants of a vehicle on which they are shined) at the car. He saw two occupants and no signs of distress, but he approached the vehicle, spoke to the occupants, and took their identification. Eventually he noted signs of intoxication that led to Krizan’s arrest for first-offense OWI. But Krizan challenged the stop and won in the trial court, and the county appealed.

State v. Alfonso Lorenzo Brooks, 2018AP1774, review of a per curiam decision granted 12/10/2019; reversed 6/25/20; case activity (including briefs)

Issue presented:

Whether the community caretaker exception permits law enforcement to inventory and tow a vehicle after discovering that the driver does  not have a valid license, when the vehicle is lawfully parked and not obstructing traffic?

State v. Jesse J. Jennerjohn, 2018AP1762, 9/24/19, District 3 (not recommended for publication); case activity (including briefs)

Just last week we had Kettlewell, where the court of appeals rejected the state’s claim that the officers who entered a suspected drunk driver’s home were performing a legitimate community-caretaker search because he might have been injured. Here, we have the police going into a home whose occupant they’ve already arrested outside; the court rejects as merely speculative the state’s argument that someone else might have needed assistance inside, or that firearms in the home might have posed a danger. We also get this gem: “The court did not explain why the fact that Jennerjohn was holding a piece of venison when he came out of his residence supported an objectively reasonable basis for the officers to believe it was necessary to search his residence in order to protect themselves or others.” (¶40).

State v. Troy K. Kettlewell, 2018AP926, 9/18/2019, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

This is a very fact-intensive OWI case and the court is to be commended for really critically examining what all these facts add up to: not much. As in, not much reason to think Kettlewell was in any danger, so no good reason to go into his house without a warrant.

State v. Jodi J. Lux, 2018AP338-CR, District 2, 8/29/18 (one-judge decision; ineligible for publication); case activity (including briefs)

A police officer’s warrantless entry into the apartment Lux was in was justified by his concerns about the safety of the apartment building owner, who told the officer she was going to enter the apartment to figure out what was going on.

Last term, ASPD Andy Hinkel argued an important community caretaker issue that has divided state and federal courts to the Wisconsin Supreme Court. See State v. Asboth, 2015AP2051-CR. The State prevailed but perhaps only temporarily. Today the defense gained traction when SCOTUSblog featured Asboth’s petition for writ of certiorari as its Petition of the Day. Note that Asboth now has four sets of lawyers, including the SPD. Good luck, Team Asboth!!! Here is the question presented: