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Community Caretaker – Test – Officer’s Subjective Intent

State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62
For Kramer: Stephen J. Eisenberg, Marsha M. Lysen


¶25      Kramer argues that the “totally divorced” language from Cady means that the officer must have ruled out any possibility of criminal activity before the community caretaker function is bona fide. The State, on the other hand, acknowledges that while the subjective intent of the officer may be relevant, it is not dispositive, constituting merely one factor among many to be considered in the totality of the circumstances. We conclude that the State’s view better comports with the requirements of the Fourth Amendment and Article I, Section 11.

The test, the court clarifies, is not always and necessarily wholly objective:

¶27      … That is, when an officer’s Fourth Amendment search and seizure conduct is supported by an objectively ascertainable basis for probable cause or reasonable suspicion, the police conduct meets the Fourth Amendment’s requirement of reasonableness, thereby causing subjective motivations to be of little concern. However, when a search or seizure is not supported by probable cause or reasonable suspicion and it is contended that the reasonableness of police conduct stands on other footing, an officer’s subjective motivation is a factor that may warrant consideration. See 2 Wayne R. Lafave et al., Criminal Procedure § 3.1(d) (3d ed. 2007) (noting that the pretextual, subjective motivations of police officers may be considered when the police conduct takes place in the absence of probable cause) (citing Whren, 517 U.S. at 811); cf 1 Wayne R. Lafave et al., Criminal Procedure § 1.4(f) (3d ed. 2007) (generally criticizing the Whren decision).

¶30      When evaluating whether a community caretaker function is bona fide, we examine the totality of the circumstances as they existed at the time of the police conduct.Cady, 413 U.S. at 440; Kelsey C.R., 243 Wis.  2d 422, ¶37. In so doing, we conclude that the “totally divorced” language from Cady does not mean that if the police officer has any subjective law enforcement concerns, he cannot be engaging in a valid community caretaker function. Rather, we conclude that in a community caretaker context, when under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer’s subjective law enforcement concerns.

¶36      Therefore, we conclude that a court may consider an officer’s subjective intent in evaluating whether the officer was acting as a bona fide community caretaker; however, if the court concludes that the officer has articulated an objectively reasonable basis under the totality of the circumstances for the community caretaker function, he has met the standard of acting as a bona fide community caretaker, whose community caretaker function is totally divorced from law enforcement functions. Furthermore, applying an objective standard, while considering subjective concerns, is consistent with our past jurisprudence in determining the reasonableness of an officer’s actions in regard to a protective frisk for weapons:

The officer’s [subjective] fear or belief . . . is but one factor in the totality of the circumstances that a court may consider in determining whether an [officer’s conduct was objectively reasonable].

State v. Kyles, 2004 WI 15, ¶39, 269 Wis.  2d 1, 675 N.W.2d 449. [9] We now consider whether Wagner conducted a bona fide community caretaker function in this case.


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