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Defense win on community caretaking seizure

State v. Bryan J. Landwehr, 2016AP2536-CR, 11/7/17, District 3 (one-judge decision; ineligible for publication) case activity (including briefs)

The court of appeals holds that officers lacked a valid community caretaker basis to seize Landwehr from his garage based on speculation that he might engage in a domestic dispute in the future.

An officer on patrol encountered a woman staggering down the highway, intoxicated and crying. She eventually agreed to let the officer give her a ride. During the ride, she (Paulson) told him that a car ahead of them belonged to her and was being driven to their home by her boyfriend. She told the officer that her boyfriend was “so mad at her right now” but also that nothing had happened, and when they arrived at the house told the officer to leave her alone.

Landwehr, the boyfriend, had parked his car in the garage, while the officer pulled his squad into the driveway. Landwehr got out of the car but stayed in the garage; the officer approached and and directed him to come out to talk. He did, at which point all parties agree he had been seized.

On appeal, the state argued that the seizure was a valid community caretaker action, which as the court notes it to satisfy a three-part test: that a seizure occurred (as all agree it did); that the police “were exercising a bona fide community caretaker function”; and that “the public interest outweigh[ed] the intrusion upon the privacy of the individual” such that the action was reasonable. State v. Pinkard, 2010 WI 81, ¶29, 327 Wis. 2d 346, 785 N.W.2d 592.

The court holds the state fails both of the last two steps. While it agrees that giving the woman a ride home was a bona fide community caretaker activity, the record shows she

was not in immediate danger once Klieforth [the officer] brought her to the residence. Specifically, there were no outward signs that Paulson the had been physically injured beforehand, and Paulson also denied several times she had been involved in an altercation. See State v. Ultsch, 2011 WI App 17, ¶¶19-21, 331 Wis. 2d 242, 793 N.W.2d 505 (concluding limited damage to vehicle after accident plus lack of information about any present condition or injury of the driver did not provide objectively reasonable basis to infer need for assistance). Klieforth testified that he informed the backup officer via radio prior to reaching the residence Paulson was “fine to leave on her own” and also that he “had suspicions that there might be a fight as well.” As Paulson waited in the squad car while Klieforth spoke to Landwehr, Klieforth testified the backup officer, who arrived at the residence at the same time as Klieforth and was observing Paulson in Klieforth’s squad, called out to Klieforth twice to affirm “everything seems fine on this end ….” Thus, at the point Klieforth directed Landwehr to leave the garage, Paulson, who remained in Klieforth’s squad car, was neither injured nor in need of further assistance. See Gracia, 345 Wis. 2d 488, ¶17. Klieforth’s community caretaking function was concluded, and his subsequent contact with Landwehr was “related to detection, investigation, or acquisition of evidence.” See Cady, 413 U.S. at 441.

(¶13).

On the third step, the court continues, even assuming a bona fide community caretaker function, that the officers’ stated concerns about possible danger to Paulson were “purely speculative” and did not justify seizing Landwehr; it also notes that Klieforth had other viable options for dealing with the situation:

For example, he could have permitted Landwehr to remain in the garage while attempting to speak with him from outside of the curtilage, offered to take Paulson elsewhere for the night, called Landwehr by telephone, or waited until Landwehr entered the home and contacted Landwehr at the front door. If he had probable cause to arrest Landwehr, Klieforth could have applied for a warrant to enter Landwehr’s home. Contrary to the State’s suggestion, we cannot so casually set aside an individual’s right “to retreat into his [or her] own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511 (1961); see also Dumstrey, 366 Wis. 2d 64, ¶23. Balancing all the above factors, we conclude any discernable community caretaker function in this case was nevertheless unreasonably exercised.

(¶19).

 

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