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Passenger’s apparent distress supported stop of car

State v. Tommy K. Miller, 2015AP1211-CR, District 4, 12/23/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The seizure of Miller’s car was justified under the community caretaker doctrine because the officer’s observations led him to believe Miller’s passenger was in distress. Having lawfully seized the car, the officer’s subsequent discoveries gave him reason to ask Miller to perform field sobriety tests (FSTs) and submit to a preliminary breath test (PBT).

The officer saw a woman, perhaps by herself, sitting with the passenger door of a car open, late at night. After a delayed exit from the car, she stood outside the car, looking as though she were in physical distress. He pulled up, activated his lights, and then noticed Miller standing behind the car. Assuming (as the state concedes) this was a seizure, it was supported by the community caretaker doctrine. (¶¶3-4, 16-27).

The court rejects Miller’s claim the community caretaker doctrine can’t apply because it requires the officer’s acts to be “totally divorced” from criminal investigation, Cady v. Dombrowski, 413 U.S. 433, 441 (1973), and the officer here had some law enforcement motivation. State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598. 2009 WI 14, holds that the “totally divorced” doesn’t mean the officer must have subjectively ruled out all possibility of criminal activity in order to act as a community caretaker; thus, if there’s an objectively reasonable basis for the community caretaker function, “that determination is not negated by the officer’s subjective law enforcement concerns.” Id., ¶30. And in any event, the court concludes the record shows the officer, as he testified, had no subjective law enforcement concerns because the car was legally parked and the officer observed no wrongdoing. (¶¶3, 20-21).

With the seizure justified, it’s easy to validate the officer’s continued detention of Miller (even though it turned out the passenger needed no assistance) and to find there was sufficient basis for the FSTs and PBT. Miller admitted he had been driving the car, the officer smelled intoxicants coming from Miller, Miller’s eyes were bloodshot and glassy and he slurred his speech, and Miller showed consciousness of guilt by being evasive on the question of his drinking, while the woman volunteered that Miller had been drinking. (¶¶4, 30-32).

A final point: Miller challenged the circuit court’s reliance on the officer’s testimony, saying the squad video contradicted or undermined the testimony. The circuit court found the video of little value (e.g., it couldn’t reveal whether the officer smelled the odor of alcohol) and the court of appeals, having reviewed the video itself, concludes the circuit court’s findings weren’t clearly erroneous. State v. Walli, 2011 WI App 86, 334 Wis. 2d 402, 799 N.W.2d 899. (¶¶7, 12-15).

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