State v. Pamela L. Hammersley, 2012AP1131-CR, District 2, 9/26/12
Stop of vehicle, assertedly for violating local trespassing ordinance, held not supportable:
¶3 It is settled law that a stop cannot be based on an officer’s mistaken understanding of the law. State v. Longcore, 226 Wis. 2d 1, 3-4, 594 N.W.2d 412 (Ct. App. 1999). It appears that this is what happened here. …
¶4 The evidence does not support a stop based on the ordinance. First, there is no testimony that the land was enclosed. Indeed, because Hammersley was parked in an access way, the only implication is that it was open. The only description given in the testimony is that she was parked in an “open field.” This was the description provided by the deputy himself. Second, the only testimony was that she was parked on a field access pathway. There is nothing to suggest that the land was cultivated. Clearly, if the deputy believed that parking in an open field without consent of the owner or occupant is a violation of the trespass ordinance, he was mistaken. Thus, we apply Longcore and hold that there was no reasonable suspicion for the deputy to stop Hammersley’s vehicle based on the municipal ordinance.
Nor is an alternative, community caretaker rationale available, State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598 and State v. Truax, 2009 WI App 60, 318 Wis. 2d 113, 767 N.W.2d 369, applied: “What these two cases teach is that the possibility of assistance being needed, based on unusual vehicle conduct, is what forms the basis of a bona fide community caretaker function,” ¶5.
¶6 But here, there is no vehicle conduct which would lead a reasonable police officer to believe that assistance was needed. In fact, as noted by the trial court, the vehicle soon backed out and drove away. This simple fact brings to waste the State’s defense of the stop on grounds that there might have been mechanical problems or health problems necessitating having to park in an open field. The State also keys on the deputy’s concern about the vehicle due to two murders in wooded areas in the preceding two years as a reason to make sure the occupants in the vehicle were alright. But, again, the vehicle backed out and drove away. Clearly, the occupants were not victims of a murder. The bottom line is that there simply was no bona fide caretaker function afoot. Because the motion to suppress should have been granted, we reverse the judgment and remand with directions that the trial court proceed in a manner not inconsistent with this opinion.
(Exceptionally well-written opinion, incidentally.)