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Search & Seizure – Community Caretaker; Police Activity Outside Jurisdiction

State v. Michael P. Parizanski, 2011AP395, District 2, 11/30/11

court of appeals decision (1-judge, not for publication); for Parizanski: Andrew Mishlove; case activity

Seizure of motorist who had parked by the side of a road, leading to an OWI arrest, was supported by community caretaker rationale as informed by State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598.

¶10      Here, West testified that Parizanski’s vehicle was pulled over onto the partially paved shoulder of a two-lane highway.  It was in the early morning hours, dark out, and Parizanski’s “lights were on.”  West testified that, according to the map presented at the hearing, the vehicle was stopped outside of the village of Fontana borders.  That same map indicates that there were no side streets off of that stretch of Highway 67 where Parizanski was stopped.  As did the officer in Kramer, West identified a concern that Parizanski may be in need of assistance.  He testified, “Often we see cars pulled over and I wanted to check to see if he needed any assistance ….  I felt I wouldn’t have been diligent in my job if I didn’t check to see if the person needed assistance.”  Indeed, West’s first inquiry upon approaching Parizanski’s vehicle was whether everything was all right.

The various factors involved in weighing public need versus privacy interests appear all militate in favor of the former: substantial public interest in assisting possibly stranded motorists; time and location (1:13 a.m., shoulder of state highway outside village borders); minimal display of authority (emergency lights, already-stopped motorist); “stopping briefly to make contact with Parizanski was the only reasonable means of determining whether he was in need of assistance,” ¶¶13-14.

Although Parizanski was parked 200 feet outside the officer’s jurisdiction, suppression isn’t required notwithstanding the § 175.40(6)(a) restrictions on authority to arrest and render assistance outside the police officer’s jurisdiction:

¶17      Both parties cite to State v. Popenhagen, 2008 WI 55, ¶¶68, 70, 309 Wis. 2d 601, 749 N.W.2d 611, for the proposition that, even if there were a statutory violation, the suppression of evidence is within the discretion of the court.  See also State v. Keith, 2003 WI App 47, ¶9, 260 Wis. 2d 592, 659 N.W.2d 403 (suppression not required merely because an officer acts outside of his or her jurisdiction).  The parties disagree as to whether suppression is appropriate in this case.  However, the circuit court determined that West was engaged in bona fide community caretaker activity when he approached Parizanski’s vehicle.  The court further determined that the fact that West was outside of his jurisdiction by 200 feet at the time of the stop did not negate the validity of the initial stop.  In light of its determination that West was engaged in a reasonable community caretaker function when he stopped Parizanski’s vehicle, the circuit court did not erroneously exercise its discretion in denying Parizanski’s request to exclude evidence stemming therefrom for purposes of the refusal hearing.[4]

The cited statutory provision (§ 175.40(6)(a)) limits an officer’s authority to “arrest or provide aid or assistance” “outside of his or her territorial jurisdiction,” absent certain enumerated conditions. Included among the latter: “The officer is taking action that he or she would be authorized to take under the same circumstances in his or her territorial jurisdiction. … [Or,] The officer is acting to respond to … An emergency situation that poses a significant threat to life or of bodily harm.” The court may have meant that one if not both conditions applied here. (The court, to be sure, didn’t say so explicitly.) It’s far from obvious that the officer confronted an emergency involving a significant threat. On the other hand, it might be said that the activity would have been no less “authorized” by the community caretaker doctrine had it occurred 200 feet away – but this assumes that the territorial jurisdiction provision applies to such a broad grant of authority, a question that is precedential to say the least. Consider the State’s justification for this extra-territorial action, namely: “Officer West’s arrest of Parizanski was lawful under the citizen’s arrest analysis … Upon approaching the vehicle to offer his assistance, as any citizen could do, Officer West then observed facts which led him to believe that Parizanski was operating a motor vehicle while intoxicated. … Thus, a citizen’s arrest was appropriate.” Resp. Br., p. 28. But remember in the first instance that the officer didn’t merely approach and offer assistance, he indisputably seized Parizanski before offering assistance, ¶7. The question, then, is whether a private citizen may detain someone else in order “to offer his assistance.” If you think that proposition doubtful, then you probably see the need for more elaborate discussion of the reach of § 175.40(6)(a). That provision was promulgated as part of 93 Wis Act 98, sec. 115. A drafting file of that vintage isn’t available on-line, so if you’re interested in seeing what if any evidence exists of drafting intent, you’ll have to go old-school: look in a library that is a depository for drafting files.

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