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Community caretaking justified contact with man sleeping or passed out in car

State v. John D. Myer, 2016AP490-CR, District 4, 12/22/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Assuming a police officer’s contact with Myer constituted a seizure, it was justified under the community caretaker doctrine.

At 2:30 a.m. one October night the officer passed the parking lot of a closed business and saw a vehicle idling, its headlights on, with a person “sitting in the driver’s seat with his head back.” The officer made a U-turn and entered the parking lot, and officer observed that, in addition to his head being “back,” the person’s jaw was “open.” (¶4). Based on his experience, the officer was concerned the person might have overdosed rather than just fallen asleep. (¶5). So he walked up to the vehicle, knocked on the window, and then opened the driver’s door without waiting for Myer to respond to the knock. (¶¶6-7).

Assuming this was a seizure of Myer, it is justified by the community caretaker function because it was bona fide community caretaker activity and the public need and interest outweighed the intrusion upon the privacy of the individual. State v. Kramer, 2009 WI 14, ¶21, 315 Wis. 2d 414, 759 N.W.2d 598. To Myer’s argument that it was “mere speculation” to worry that “a man sleeping in a legally parked car” could be in need of assistance due to the harmful effects of alcohol or drug intake, the court says:

¶13     …. To the contrary, I conclude that the totality of circumstances here—including the time of day, the location, the fact that the vehicle was running, and the posture of Myer, head back and jaw open—demonstrates that the officer’s actions were directly related to concern for Myer’s physical well being. See State v. Blatterman, 2015 WI 46, ¶46, 362 Wis. 2d 138, 864 N.W.2d 26; Kramer, 315 Wis. 2d 414, ¶30.

As to whether the public need and interest in the seizure outweighed the intrusion on Myer’s privacy, the balancing of the four primary factors shows the action was justified:

¶15     With respect to the first factor, the public has a strong interest in police responding to persons who may be suffering from the effects of harmful substance abuse or other medical emergencies, and the exigencies here were obviously high. ….

¶16     The second factor—the time and location of the search, and the degree of overt authority and force displayed—also weighs primarily in favor of a conclusion that the officer reasonably exercised a community caretaker function. The officer responded as one would expect a responsible officer to respond, and did not use excessive force or commands for the circumstances. Opening the door and having Myer turn off the ignition was a reasonable approach. …. A running vehicle with a sleeping or passed-out driver at the wheel is a potential hazard in itself, and the officer could reasonably have decided on the spot that he needed to address that in a direct manner.

¶17     The third factor is whether an automobile was involved, due to the reduced Fourth Amendment protections in that context. The officer here was presented with a running vehicle.

¶18     The fourth factor, involving the availability, feasibility, and effectiveness of alternatives to the seizure, also weighs in favor of the State. Myer argues that a “simple knock” would have sufficed. It is conceivable that a “simple knock” might have resulted in a prompt, safe, and reassuring response that Myer could have clearly communicated to the officer through the vehicle window or otherwise. However, in addition to the running vehicle problem referenced above, the officer was presented with someone who might have needed immediate care, on a moment-to-moment survival or disability basis. See State v. Horngren, 2000 WI App 177, ¶17, 238 Wis. 2d 347, 617 N.W.2d 508 (counting a “split-second” police decision made in response to danger of physical harm in favor of State on fourth factor).

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