Byline: David Ziemer
The subjective motivations of a police officer are but one factor courts should consider when deciding whether he was acting in a community caretaker capacity.
That Jan. 29 holding by the Wisconsin Supreme Court limits language in some Court of Appeals cases that suggested an officer could not legally act in that capacity, unless it was totally divorced from investigating criminal activity.
Writing for a unanimous court, Justice Patience Drake Roggensack explained, [T]he 'totally divorced' language from [Cady v. Dombrowski, 413 U.S. 433 (1973)] 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.
Attorney Marsha M. Lysen, of Eisenberg Law Offices S.C. in Madison, represented the defendant. Lysen acknowledged that the opinion was not a big change in the law.
Instead, she said the court just wanted to clarify the standard, and explain the meaning of totally divorced.
We argued that if an officer is suspicious that a stopped motorist is guilty of drunk driving, he can't make a stop on the pretext of the community caretaker exception, Lysen said.
But the court said that officers will always be suspicious -- it is just the nature of being a police officer -- and if the stop is objectively reasonable, that suspicion won't negate it, she added.
Hazard Lights Flashing
The defendant, Todd Lee Kramer...
