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Defense win! No community caretaker basis to seize people sitting in car in parking lot

Wood County v. Trevor J. Krizan, 2019AP350, 12/12/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

A sheriff’s deputy on patrol at 2:00 a.m. happened by a parking lot for a boat landing. The lot was open to the public 24 hours a day, and he saw a vehicle parked, not running, with its lights off. The officer pulled behind it and shined his spotlight and “takedown lights” (these are apparently very bright lights that may temporarily blind occupants of a vehicle on which they are shined) at the car. He saw two occupants and no signs of distress, but he approached the vehicle, spoke to the occupants, and took their identification. Eventually he noted signs of intoxication that led to Krizan’s arrest for first-offense OWI. But Krizan challenged the stop and won in the trial court, and the county appealed.

The county first argues that the officer’s actions didn’t constitute a seizure, so no constitutional justification was required. Seems like a stretch, but it doesn’t matter because, as the court of appeals observes, the county didn’t take this position in the circuit court, and in fact submitted that there was a seizure, so the issue is forfeited. (¶¶8-9).

Also a stretch: the county’s next argument that even if there was a seizure, there was reasonable suspicion. But that also doesn’t matter, because the county didn’t take this position until its reply brief, so again, forfeited. (¶¶12-13).

The county’s sole preserved argument is that the officer was acting within the community caretaker exception. This claim involves a three-step inquiry:

(1) that a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual.

(¶15 (citing State v. Maddix, 2013 WI App 64, ¶14, 348 Wis. 2d 179, 831 N.W.2d

Here the county’s argument fails on the second step: “whether there is an objectively reasonable basis to believe that there is a member of the public who is in need of assistance”:

Here, the circuit court first found that the officer did nothing “wrong” when he drove through the parking lot to make sure nothing was “going on.” The court went on to find that when the officer discovered Krizan’s car, and then pulled up behind Krizan’s car and turned on his lights, the officer saw “two people are sitting in the car … not doing anything to each other … [not] appear[ing] to be in any distress.” At that point, the court determined that the  County had proven no facts that would support the exercise of the community caretaker function and justify the stop of Krizan.

The County does not argue that any of the circuit court’s factual findings are clearly erroneous. Instead, the County points to the officer’s testimony as to what the officer was considering when he saw the vehicle in the parking lot, including the possibility that the driver could be lost or tired. However, the test requires “an objectively reasonable basis” to believe a member of the public is in need of assistance, and the County does not explain how the circumstances here, in light of the court’s findings, establish an objective basis to believe that the occupants of Krizan’s vehicle were in need of assistance.


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