State v. Michael Gene Wiskowski

2024 WI 23

SUPREME COURT OF WISCONSIN CASE NO.: 2021AP2105-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Michael Gene Wiskowski, Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS

OPINION FILED: June 18, 2024 SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 24, 2024

SOURCE OF APPEAL: COURT: Circuit COUNTY: Sheboygan JUDGE: Kent R. Hoffmann

JUSTICES: HAGEDORN, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET, KAROFSKY, and PROTASIEWICZ, JJ., joined. HAGEDORN, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined with respect to ¶¶39-75, and PROTASIEWICZ, J., joined with respect to ¶¶72 and 74-75. PROTASIEWICZ, J., filed a concurring opinion, in which ANN WALSH BRADLEY, J., joined. ZIEGLER, C.J., filed a dissenting opinion. NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs filed by Kirk B. Obear, and Birdsall Obear & Associates, Sheboygan. There was an oral argument by Kirk B. Obear.

For the plaintiff-respondent, there was a brief filed by Michael J. Conway, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Michael J. Conway, assistant attorney general.

2  2024 WI 23 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2021AP2105-CR (L.C. No. 2019CF628)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. JUN 18, 2024 Michael Gene Wiskowski, Samuel A. Christensen Clerk of Supreme Court Defendant-Appellant-Petitioner.

HAGEDORN, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET, KAROFSKY, and PROTASIEWICZ, JJ., joined. HAGEDORN, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined with respect to ¶¶39-75, and PROTASIEWICZ, J., joined with respect to ¶¶72 and 74-75. PROTASIEWICZ, J., filed a concurring opinion, in which ANN WALSH BRADLEY, J., joined. ZIEGLER, C.J., filed a dissenting opinion.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 BRIAN HAGEDORN, J. Michael Wiskowski fell asleep in

a McDonald's drive-thru lane behind the wheel of his truck. An

employee knocked on his window to wake him up and called the police. Officer Devin Simon was about a minute away when he  No. 2021AP2105-CR

received a call from dispatch regarding the incident. He headed

to the scene and watched a truck matching dispatch's description

pull out of the drive-thru and make a proper turn. Officer

Simon then pulled Wiskowski over. Wiskowski explained that he

was tired because he had just finished a 24-hour shift.

Although Officer Simon did not notice any signs of impairment or

criminality, he felt something was off, and prolonged the stop

to determine whether he had grounds to investigate further.

Officer Simon ultimately ordered Wiskowski out of his truck, at

which point Wiskowski manifested signs of intoxication, leading

to an arrest and charges.

¶2 Wiskowski moved to suppress the evidence discovered

during the stop. The circuit court denied the motion,

concluding that the stop and further investigation were

justified as a permissible "community caretaking function." The

court of appeals agreed, and we now reverse. We first conclude

the traffic stop was not supported by reasonable suspicion.

Furthermore, assuming without deciding that the traffic stop was permissible as a bona fide community caretaking activity, we

hold that the stop was prolonged unreasonably when it

transformed into an unjustified criminal investigation. The

scope of caretaking stops should be guided and limited by the

justification for the stop. This means that, absent another

permissible reason to detain someone, the detention must end

when the original community caretaking justification is

resolved.

2  No. 2021AP2105-CR

I. BACKGROUND ¶3 At around 1:00 p.m., while waiting in the drive-thru

lane of McDonald's, Michael Wiskowski fell asleep behind the

wheel of his truck. An employee knocked on his truck window to

wake him up and called the Plymouth Police Department to report

it. Plymouth Police Officer Devin Simon received word from

dispatch about the incident. When he arrived at McDonald's a

minute or so later, he saw a truck matching the caller's

description near the end of the drive-thru lane.

¶4 Officer Simon saw Wiskowski exit the drive-thru lane,

turn right, stop at a stop sign, and make a "correct, proper,

and legal left turn onto the road." Officer Simon then quickly

turned around in the parking lot and briefly followed Wiskowski.

Wiskowski drove normally and did not commit any traffic

violations; at no time did his driving appear abnormal or arouse

Officer Simon's suspicions. Officer Simon nonetheless activated

his lights and siren and performed a traffic stop. Wiskowski

complied, pulling over into an empty parking lot. ¶5 Officer Simon approached the vehicle, asked Wiskowski

about the report that he fell asleep in his truck, and took

Wiskowski's driver's license and insurance card. Wiskowski

explained that he had been working for the past 24 hours.

Officer Simon later testified that, up to this point, Wiskowski

did not appear sleepy, was not slurring his speech or suffering

from any obvious medical issue like a heart attack or seizure,

and was otherwise "acting normal." He also testified that he did not see or smell any alcohol on Wiskowski, nor did he 3  No. 2021AP2105-CR

observe any other signs of intoxication. The only behavior

Officer Simon characterized as "odd" was that Wiskowski

initially gave him an insurance card for the wrong car before

handing him the correct one around 20 seconds later.

¶6 Following this initial encounter, Officer Simon

returned to his squad car. By this point, a more experienced

colleague——Officer Cobalt——had arrived on the scene. Officer

Simon told Officer Cobalt what Wiskowski had said about working

for 24 hours, and stated that he wanted to get Wiskowski out of

his truck. Officer Cobalt asked, "What are you going to pull

him out for?" The two conversed further, and Officer Cobalt

told Officer Simon to pull up Wiskowski's driving record, which

revealed that Wiskowski had three past OWIs. The two officers

continued to discuss whether there was "enough to take him out"

of the truck and investigate further. Officer Simon said that

he would feel better "smelling booze" on Wiskowski before

pulling him out. Ultimately, he decided to do so, citing

Wiskowski's reported sleepiness and "odd" behavior in handing him two insurance cards. Officer Simon later testified his goal

was to see if there was something "going on that maybe [he]

wasn't seeing in the car," by which he meant determining whether

Wiskowski had been drinking. Approximately five to six minutes

transpired after Officer Simon's initial conversation with

Wiskowski concluded and when he ordered him out of his truck.

¶7 Once Wiskowski got out of his truck, Officer Simon

smelled alcohol for the first time and noticed Wiskowski stumble. Officer Simon asked how much he had to drink, to which 4  No. 2021AP2105-CR

Wiskowski replied, "a couple beers." At that point, Officer

Simon took Wiskowski back to the police station to perform field

sobriety tests. Based on his observations during the tests,

Officer Simon determined Wiskowski had been driving under the

influence of alcohol and arrested him. The State charged

Wiskowski with one count of operating a motor vehicle under the

influence and one count of operating with prohibited alcohol

concentration, both as fourth offenses.

¶8 Wiskowski moved to suppress the evidence resulting

from the traffic stop. After an evidentiary hearing and

briefing, the circuit court1 denied Wiskowski's motion, finding

that Officer Simon's stop was justified as community caretaking

activity. A year later, Wiskowski asked the court to hold

another evidentiary hearing to consider bodycam footage that had

not been presented to the court the first time around. The

court did so, construing it as a motion to reconsider. The

court once again denied Wiskowski's motion to suppress,

continuing to find that Officer Simon "acted reasonably under the community caretaker function."

¶9 Wiskowski eventually pled no contest to one count of

operating a motor vehicle under the influence as a fourth

offense. He appealed the judgement of conviction, arguing that

the circuit court erred in denying his motion to suppress. The

court of appeals affirmed on the same community caretaking

The Honorable Kent 1 Hoffmann of the Sheboygan County Circuit Court presided.

5  No. 2021AP2105-CR

grounds. State v. Wiskowski, No. 2021AP2105-CR, unpublished

order (Wis. Ct. App. Mar. 15, 2023). Wiskowski then petitioned

this court for review.

II. DISCUSSION ¶10 Wiskowski argues that Officer Simon's traffic stop was

unlawful under the Fourth Amendment, which prohibits

"unreasonable searches and seizures."2 U.S. Const. amend. IV.

He seeks the suppression of evidence obtained against him.3 The

facts are not in dispute, so this is a question of law we review

independently. State v. Genous, 2021 WI 50, ¶10, 397

Wis. 2d 293, 961 N.W.2d 41.

¶11 The State contends the stop was lawful for two

independent reasons. First, the State maintains it was a

permissible investigatory stop supported by reasonable

suspicion.4 Second, the State agrees with the circuit court and

2 Wiskowski also references Article I, Section 11 of the Wisconsin Constitution, but he makes no independent argument on this basis. We decline to address this further. As we have said, "any argument based on the Wisconsin Constitution must actually be grounded in the Wisconsin Constitution." State v. Halverson, 2021 WI 7, ¶24, 395 Wis. 2d 385, 953 N.W.2d 847. 3 When a search or seizure is unlawful, a common remedy is to suppress any evidence found as a result. State v. Burch, 2021 WI 68, ¶16, 398 Wis. 2d 1, 961 N.W.2d 314. The parties agree that suppression would be the proper remedy here. 4 Neither party argued reasonable suspicion in the circuit court. In the court of appeals, however, Wiskowski argued that Officer Simon's stop was not supported by reasonable suspicion. The State did not press the issue, and the court of appeals did not substantively address it. State v. Wiskowski, No. 2021AP2105-CR, unpublished order, at 4 n.5 (Wis. Ct. App. Mar. 6  No. 2021AP2105-CR

court of appeals that this was a permissible community caretaker

activity. Neither succeed.

A. Investigatory Stop ¶12 One type of intrusion deemed reasonable under the

Fourth Amendment is an investigatory stop. Id., ¶7. This

temporary infringement on personal liberty must be supported by

reasonable suspicion——that is, in view of the whole picture,

whether a reasonable police officer would reasonably suspect

that criminal activity is afoot. Id., ¶10. While reasonable

suspicion doesn't demand much, it does demand more than a hunch.

Id., ¶8. And that is all we see here.

¶13 It is true that falling asleep in a drive-thru during

the day could be a sign someone is impaired. It is also black-

letter law that officers need not rule out the possibility of

innocent behavior to initiate a traffic stop. Id. But by

itself, without any additional indicators of impairment, we

conclude this is too speculative to amount to reasonable suspicion.

¶14 By the time Officer Simon arrived, Wiskowski was

driving normally out of the drive-thru and onto the road.

15, 2023). In briefing submitted to us, Wiskowski again defensively raises reasonable suspicion, which the State now contends is an independent basis to deny the motion to suppress. Although forfeiture generally applies to arguments not raised in the circuit court, we will address the State's reasonable suspicion argument given the unusual path by which this argument comes to us.

7  No. 2021AP2105-CR

Officer Simon did not observe nor were there any reports of

erratic driving. Wiskowski did not commit any traffic

violations, and there were no other clues suggesting he was

operating his vehicle while intoxicated. Other than falling

asleep, no one reported any other kind of problematic behavior

or indications of impairment during his visit to McDonald's.

Midday drowsiness standing alone, without any other indicators

of impairment, is simply not enough. Reasonable suspicion may

be a low bar, but it's not that low. The State's contention

that Officer Simon's traffic stop was supported by reasonable

suspicion fails.5

B. Community Caretaking ¶15 The State also argues that Officer Simon's seizure of

Wiskowski during the traffic stop was justified as a permissible

community caretaker activity. The line of community caretaker

cases is rooted in the recognition that law enforcement work is

multifaceted. State v. Kramer, 2009 WI 14, ¶32, 315 Wis. 2d 414, 759 N.W.2d 598. Officers wear multiple hats. Id.

Sometimes they are acting to enforce the law by investigating

and stopping illegal activity. Id. Other times they act to

protect property or help "a member of the public who is in need

5 The State relies in part on State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516 and Navarette v. California, 572 U.S. 393 (2014). Both deal with the reliability of informant tips and are not relevant to this case.

8  No. 2021AP2105-CR

of assistance." Id. This is what we have called the community

caretaking function.

¶16 These diverse strains of law enforcement action

sometimes blend together. An officer might aid someone in need

and at the same time have a hunch something illegal occurred or

observe evidence that gives rise to a criminal investigation.

Id., ¶30. Yet when analyzing the permissibility of a seizure in

the community caretaking context, we have emphasized that

officers act as community caretakers when, viewed objectively,

they engage in activities "totally divorced from the detection,

investigation, or acquisition of evidence" of a crime. Id., ¶23

(quoting another source).

¶17 Although a recent decision of the United States

Supreme Court raises questions regarding the proper way to

analyze community caretaking claims, no party argues that we

should alter or modify our precedent based on the facts of this

case.6 We therefore apply our precedent, which provides a three-

step framework to guide our analysis. Id., ¶21.

6Our cases, like those of other jurisdictions, have described the community caretaking doctrine as arising out of a 1973 United States Supreme Court decision, Cady v. Dombrowski. See, e.g., State v. Kramer, 2009 WI 14, ¶32, 315 Wis. 2d 414, 759 N.W.2d 598. However, the Supreme Court recently held that, although it has recognized law enforcement community caretaking duties, it has not created "a standalone doctrine that justifies warrantless searches and seizures in the home." Caniglia v. Strom, 593 U.S. 194, 196 (2021). Several justices concurred and raised questions about community caretaking as a separate doctrinal category, and how to properly analyze law enforcement's role in assisting citizens in need. See, e.g., id. at 199-200 (Roberts, C.J., concurring); id. at 200-04 (Alito, J., concurring); id. at 204-08 (Kavanaugh, J., 9  No. 2021AP2105-CR

¶18 The first step in cases like this is to determine

whether a seizure within the meaning of the Fourth Amendment

occurred. Id., ¶22. In this case, no one disputes that Officer

Simon seized Wiskowski when he pulled him over.

¶19 Step two asks as an initial matter whether the officer

was engaging in a bona fide community caretaking function. Id.,

¶23. This means we examine whether this was an objective effort

to assist a member of the public in need that was "totally

divorced from the detection, investigation, or acquisition of

evidence relating to the violation of a criminal statute." Id.

(quoting another source). Even if the answer is yes, however,

that is not enough on its own to determine whether the seizure

was lawful. The third step goes further. Tracking the Fourth

Amendment's command, courts must balance the various interests

to determine whether the exercise of that community caretaking

activity was reasonable. Id., ¶40. We ultimately determine

that, assuming without deciding Officer Simon had a bona fide

community caretaking justification when he stopped Wiskowski, the continuation of the stop was unreasonable under the facts of

this case. So we focus our analysis there.

¶20 Under this third step in a community caretaker

analysis, we balance the "public interest or need that is

furthered by the officer's conduct against the degree of and

nature of the restriction upon the liberty interest of the

concurring). Given the briefing in this case and the narrow question presented, we too leave these questions for another day.

10  No. 2021AP2105-CR

citizen." Id. This involves evaluating how important the

intervention was and comparing it with how intrusive and

proportional the seizure was given the alternatives.7 Id., ¶¶41-

45. The central question is——was the police intrusion aimed at

assisting a member of the public in need reasonable under the

circumstances? ¶21 In this case, key to our analysis is whether and when

it is reasonable to extend a seizure undertaken for community

caretaking purposes once an officer resolves the reason for the

stop. The general rule across jurisdictions——and we agree——is

that a seizure should not be extended beyond its initial

justification absent some other justification that emerges, like

reasonable suspicion.

¶22 In an instructive federal case, the Tenth Circuit

considered whether officers who responded to a home in their

community caretaking capacity acted unconstitutionally when they

We have often analyzed the balance of interests in the 7

third step by examining four factors:

(1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.

Kramer, 315 Wis. 2d 414, ¶41. These factors are a less useful guide here because, as we explain below, the balancing in this case is conclusively settled by the principle that a community caretaking stop must end when the justification for the stop dissipates.

11  No. 2021AP2105-CR

detained a man they mistakenly believed was someone else.

Martinez v. Mares, 613 F. Appx 731, 733 (10th Cir. 2015). After

officers were informed that the man they detained was not who

they thought, they nonetheless continued to detain him and

proceeded to pat him down. Id. The man sued, arguing the

detention was unlawful. Id. at 734. The officers responded

that the stop fell within their community caretaker function.

Id. at 738. The court held that, without "some independent

basis to detain and search him," officers were required to

release the man once they discovered he was not the suspect.

Id. at 739. Why? Because a "detention justified under an

officer's community caretaking authority 'must last no longer

than is necessary to effectuate its purpose, and its scope must

be carefully tailored to its underlying justification.'" Id. at

738 (quoting another source). ¶23 In another case, an officer responded to a call

concerning an irregularly parked vehicle with the driver

"slumped over the steering wheel." State v. Zeimer, 510 P.3d 100, ¶2 (Mont. 2022). When the officer went to check on

the driver, he saw him "perk-up, check his mirrors, put the

truck in gear, and lawfully drive away without any apparent

indicia of peril, distress, or need for assistance." Id., ¶33.

At that point, the officer's welfare-check justification

"evaporated." Id. But the officer detained and questioned the

driver anyway. Id., ¶¶3-6. The Montana Supreme Court explained

that welfare checks cannot be used as a pretext for an illegal search or seizure. Id., ¶33. "Once the objective facts and 12  No. 2021AP2105-CR

circumstances manifest that the subject is not or no longer in

peril, distress, or otherwise in need of assistance, the

original constitutional justification for a CCD stop ends unless

some other constitutional justification exists or arises for

completing or prolonging the stop." Id. (cleaned up).

¶24 These cases reflect the general Fourth Amendment

principle that "any warrantless intrusion must be as limited as

is reasonably possible consistent with the purpose justifying it

in the first instance."8 Bies v. State, 76 Wis. 2d 457, 469, 251

N.W.2d 461 (1977). Accordingly, the scope of caretaking stops

should be guided and limited by the original community

caretaking justification. The justification for restricting a

person's liberty ends when the welfare-check justification is

resolved, provided no other independent reason exists to detain

the person.9

See also State v. Brooks, 2020 WI 60, ¶10, 392 Wis. 2d 8

402, 944 N.W.2d 832 (A traffic stop can "last no longer than necessary to complete the purpose of the [] stop."); Rodriguez v. United States, 575 U.S. 348, 354 (2015) ("Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'——to address the traffic violation that warranted the stop, and attend to related safety concerns.") (cleaned up).

See State v. Ellis, 469 P.3d 65, 77 (Kan. 2020) (holding 9

that "a public safety or welfare stop is not for investigative purposes and must end as soon as the officer determines the citizen is not in need of help"); United States v. Harris, 747 F.3d 1013, 1017 (8th Cir. 2014) (noting that the "scope of the encounter must be carefully tailored to satisfy the purpose of the initial detention, and the police must allow the person to proceed once the officer has completed the officer's inquiry, unless, of course, the officer obtains further reason to justify the stop"); State v. Acrey, 64 P.3d 594, 600 (Wash. 2003) (en banc) (welfare check "must end when reasons for initiating an 13  No. 2021AP2105-CR

¶25 Applying these principles to this case, we conclude

that even if the original stop was a bona fide community

caretaking activity, Officer Simon unreasonably extended the

stop beyond its original justification. Officer Simon initially

stopped Wiskowski to perform a welfare check and ensure he was

safe to drive. But after their first conversation, nothing

reinforced continued concern on that basis. In Officer Simon's

telling, Wiskowski was "acting normal." Officer Simon asked

Wiskowski about falling asleep in the drive-thru and received a

reasonable explanation. Wiskowski did not show signs of

sleepiness during their interaction. And Officer Simon did not

see signs of a medical emergency. At that point, the public

interest or exigency that may have existed was resolved; Officer

Simon had no community caretaking justification to prolong the

stop.10

¶26 Yet Officer Simon did prolong the stop. He held

Wiskowski there as he endeavored to determine whether he had

enough to justify a criminal investigation. Wiskowski was clearly not free to leave, despite the welfare-based

justification for the initial stop failing to reveal further

encounter are fully dispelled") (quoting another source).

The only behavior Officer Simon cites as "odd" was 10

Wiskowski initially handing him the wrong insurance card, only to produce the correct one seconds later. Even entertaining the belief that this is odd, it did not portend that Wiskowski was suffering from any malady or otherwise in need of further assistance. Thus, it did not provide a justification for extending the stop.

14  No. 2021AP2105-CR

concern. Under the facts of this case, Wiskowski was in no

additional need of assistance. This means Officer Simon had no

community caretaking justification to extend the stop, and

should have allowed Wiskowski to leave.

¶27 It is true that when the community caretaking concern

dissipated, Officer Simon could have continued Wiskowski's

detainment if facts emerged during their initial conversation

that gave rise to reasonable suspicion. Indeed, Officer Simon's

focus turned to criminal investigation as he probed for a reason

to pull Wiskowski out of his car. But Officer Simon did not

smell alcohol on Wiskowski and did not observe any other

evidence of possible impairment. Having nothing more than a

thought that "something was kind of going on that maybe [he]

wasn't seeing in the car"——i.e., a "hunch"——Officer Simon

detained Wiskowski well beyond the stop's justification. If

Officer Simon, armed solely with a report that a driver fell

asleep in a drive-thru, did not have reasonable suspicion when

he stopped Wiskowski, reasonable suspicion certainly did not materialize following an initial encounter revealing no new

evidence of impaired driving.

¶28 In short, Officer Simon's original community

caretaking justification of helping a member of the public who

is in need of assistance dissipated after their initial

encounter. At this point, the restriction on Wiskowski's

liberty should have ended. The stop transformed from a welfare

check into the "detection, investigation, or acquisition of evidence relating to the violation of a criminal statute," 15  No. 2021AP2105-CR

without the attendant reasonable suspicion necessary to justify

further detention. Id., ¶11 (quoting another source). Officer

Simon ceased being a community caretaker and, thus, had no

authority to extend the stop on that basis.

III. CONCLUSION ¶29 We conclude that Officer Simon's seizure of Wiskowski

violated Wiskowski's rights under the Fourth Amendment. Officer

Simon did not possess reasonable suspicion to conduct the stop.

And even assuming Officer Simon initially engaged in bona fide

community caretaker activity when he stopped Wiskowski, he

unlawfully prolonged the stop and began an investigation without

reasonable suspicion. We therefore reverse the court of appeals

decision and remand to the circuit court with instructions to

vacate the judgment of conviction and grant the motion to

suppress.

By the Court.—The decision of the court of appeals is

reversed, and the cause is remanded to the circuit court.

16  No. 2021AP2105-CR.bh

¶30 BRIAN HAGEDORN, J. (concurring). The opinion for

the court applies our precedent on the community caretaking role

of law enforcement, which the parties did not call into question

in this case. I write separately for two reasons. First, I

explain why the State is wrong to suggest that Wis. Stat.

§ (Rule) 809.62(3m)(b)1. permits it to raise a reasonable

suspicion argument before us despite not raising it in the

circuit court. Second, I discuss why our precedents on

community caretaking may need refinement to better accord this

legitimate function of law enforcement with the Fourth Amendment

principles outlined by the United States Supreme Court.

I. WIS. STAT. § (RULE) 809.62(3m)(b)1.

¶31 In our system of appellate review, the default rule is

that parties may not raise new arguments on appeal that have not

been briefed or preserved in the circuit court. Estate of

Miller v. Storey, 2017 WI 99, ¶67, 378 Wis. 2d 358, 903 N.W.2d 759. If parties do not timely assert their rights, they

forfeit their opportunity to raise them later.1 Id.

¶32 The rule of forfeiture is "as old as the common law

system of appellate review," and for good reason. State v.

Counihan, 2020 WI 12, ¶60, 390 Wis. 2d 172, 938 N.W.2d 530

(Rebecca Grassl Bradley, J., concurring) (quoting another

source). By requiring issues and objections to be timely

Appellate courts can, however, exercise their discretion 1

to hear forfeited issues. Estate of Miller v. Storey, 2017 WI 19, ¶67, 378 Wis. 2d 358, 903 N.W.2d 759.

1  No. 2021AP2105-CR.bh

raised, errors can be corrected by the circuit court, thereby

eliminating the need for or circumscribing the scope of

appellate review. State v. Ndina, 2009 WI 21, ¶30, 315

Wis. 2d 653, 761 N.W.2d 612. This also prevents sandbagging,

where litigants might strategically fail to object or raise

issues so they can make later claims for reversal. State v.

Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727.

Forfeiture thus incentivizes diligent preparation on the front

end, and saves appellate courts from being "in the awkward

position of 'telling a lower court it was wrong when it was

never presented with the opportunity to be right.'" State ex

rel. Davis v. Cir. Ct. for Dane Cnty., 2024 WI 14, ¶78, 411

Wis. 2d 123, 4 N.W. 2d 273 (Hagedorn, J., concurring) (quoting

another source). The appellate system exists to review errors

in the court below, not to give litigants a do-over on claims

that could have been tried or addressed the first time around.

In short, forfeiture is critical to the accuracy, efficiency,

and fairness of the case-deciding function of the judiciary. ¶33 In this case, the State argued in the circuit court

that Officer Simon lawfully stopped Wiskowski based on the

community caretaking doctrine. It made no mention of reasonable

suspicion. The circuit court agreed with the State's community

caretaking argument, so Wiskowski appealed. But in the court of

appeals, Wiskowski defensively argued that Officer Simon

possessed neither reasonable suspicion nor a valid community

caretaking justification for the stop. The State explained that it would not respond to Wiskowski's reasonable suspicion

2  No. 2021AP2105-CR.bh

argument because the circuit court relied only on the community

caretaking doctrine. The court of appeals did not address

reasonable suspicion.

¶34 Wiskowski then petitioned us for review. Rather than

raise the only legal claim relied on by the State at the circuit

court (community caretaking), Wiskowski again asserted that

Officer Simon lacked reasonable suspicion. After we granted the

petition for review, Wiskowski briefed both questions. Then,

unlike its position in the court of appeals, the State argued

for the first time that Officer Simon had reasonable suspicion

for the stop, in addition to a valid community caretaking

justification. It acknowledged that normally forfeiture would

prohibit it from raising this new issue on appeal. But the

State argued that Wis. Stat. § (Rule) 809.62(3m)(b)1. permits

parties to defend the court of appeals' outcome on any ground——

even grounds not presented to the circuit court——as long as it

wouldn't change the ultimate result. Thus, because reasonable

suspicion could support the same outcome in this case, the State contends the rule permits it to be raised. Although Wiskowski's

unusual tactic of raising reasonable suspicion rather than

relying on forfeiture causes us to address the argument in this

case, the State's reliance on § (Rule) 809.62(3m)(b)1. is

misplaced.2

¶35 Section 809.62 governs petitions for review——formal

requests for this court to review a decision of the court of

2I respond only to the State's argument on Wis. Stat. § (Rule) 809.62(3m)(b)1., and express no opinion on how other provisions or rules might apply here.

3  No. 2021AP2105-CR.bh

appeals. These are brought by parties who did not achieve their

preferred outcome——i.e., what the rule calls an "adverse

decision." § (Rule) 809.62(1g). Following a petition for

review, non-petitioning parties have an opportunity to respond,

telling us why we should not take the case.

¶36 The rule also permits petitions for cross-review

during the time frame when initial petitions are filed, or

within 30 days after a petition for review is filed by another

party. § (Rule) 809.62(3m)(a). The rule relied upon by the

State here says:

A petition for cross-review is not necessary to enable an opposing party to defend the court of appeals' ultimate result or outcome based on any ground, whether or not that ground was ruled upon by the lower courts, as long as the supreme court's acceptance of that ground would not change the result or outcome below. § (Rule) 809.62(3m)(b)1. In other words, parties don't have to

file cross-petitions to defend the result or outcome obtained in

the court of appeals on different grounds. The obvious

application of the rule is that a party who argues in the circuit court that it should win for reasons A and B can still

argue both A and B without filing a petition for cross review——

even if the circuit court ruled in their favor for reason A

alone, and did not address reason B at all.

¶37 The State, however, reads this to mean that even a

legal argument not raised below can be argued on appeal if it

supports the same legal outcome. Not so. That would require

interpreting this common-sense procedural rule as overriding or abandoning the principle of forfeiture——a rule as old as the 4  No. 2021AP2105-CR.bh

common law system itself. Nothing in the text of the rule

suggests so radical a proposition. And nothing in this court's

practice suggests we have abandoned basic forfeiture standards,

as the State's position implies. Indeed, we discuss, debate,

and apply forfeiture all the time.

¶38 In short, § (Rule) 809.62(3m)(b)1. should not be

understood as altering the regular rules regarding forfeiture;

it is not an invitation for litigants to raise new, unpreserved

arguments. Rather, it permits parties to argue previously

raised or preserved arguments that were not addressed by the

circuit court without needing to file a petition for cross-

review.

II. COMMUNITY CARETAKING

¶39 Turning to the substantive issue, both the United

States and Wisconsin constitutions prohibit unreasonable

searches and seizures. U.S. Const. amend. IV; Wis Const. art.

I, § 11. As evidenced by the text, the ultimate touchstone of the Fourth Amendment is reasonableness. Lange v. California,

141 S. Ct. 2011, 2017 (2021). Wisconsin courts have held that

searches and seizures may be reasonable when officers act "as a

community caretaker to protect persons and property." State v.

Pinkard, 2010 WI 81, ¶14, 327 Wis. 2d 346, 785 N.W.2d 592. As

the majority opinion explains, this line of cases reflects the

reality that police work is not one-dimensional. While officers

investigate and respond to criminal activity, they also secure property and help members of the public in need of assistance.

5  No. 2021AP2105-CR.bh

This is what we have called the "community caretaker function."

State v. Kramer, 2009 WI 14, ¶32, 315 Wis. 2d 414, 759

N.W.2d 598.

¶40 Our cases addressing this doctrine do not derive from

an independent analysis of the Wisconsin Constitution's text or

history. Rather, we rely on United States Supreme Court

precedent. Pinkard, 327 Wis. 2d 346, ¶14 ("[W]e look to the

United States Supreme Court's interpretation of the community

caretaker exception to the Fourth Amendment's warrant

requirement."). To that end, our cases point back to a United

States Supreme Court case, Cady v. Dombrowski,3 as the origin of

this doctrine. Id., ¶15. Just a few terms ago, however, the

Supreme Court held that the Fourth Amendment does not grant

officers a broad community caretaking license to search homes.

Caniglia v. Strom, 593 U.S. 194, 199 (2021). The Court further

cast at least some doubt about whether the community caretaker

doctrine is a standalone category through which police conduct

should be analyzed. Id. ¶41 If that's true, the doctrines our cases use to address

this kind of law enforcement action may be due for a

reassessment. My aim in this writing is to start the

conversation by briefly telling the story of how the community

caretaker doctrine came to be, surveying where it stands now,

and raising questions that this and other courts may need to

address in future cases.

3 413 U.S. 433 (1973).

6  No. 2021AP2105-CR.bh

A. Cady and Community Caretaking

¶42 This court (along with many others) has said that the

community caretaking doctrine "has its origins" in Cady.

Kramer, 315 Wis. 2d 414, ¶19; Pinkard, 327 Wis. 2d 346, ¶15.

Cady itself comes from a line of cases involving what the United

States Supreme Court would describe as "caretaking" searches of

vehicles in police custody.

¶43 Six years prior to Cady, the Supreme Court was asked

whether officers could lawfully search a vehicle within their

custody. Cooper v. California, 386 U.S. 58, 60 (1967). Police

impounded the vehicle after arresting the defendant for

transporting narcotics. Id. California law required the police

to seize vehicles used to transport narcotics and to hold them

as evidence until the conclusion of forfeiture proceedings. Id.

After seizing the defendant's vehicle, the officers conducted a

search and found a small piece of a brown paper sack that was

later used as evidence in the defendant's trial. Id. at 58.

The Supreme Court ultimately upheld the search. Because California law required the police to impound the car and hold

it until forfeiture proceedings finished, the search was

"closely related to the reason petitioner was arrested, the

reason his car had been impounded, and the reason it was being

retained." Id. Further, the court explained, "it would be

unreasonable to hold that the police, having to retain the car

in their custody for such a length of time, had no right, even

for their own protection, to search it." Id. at 61-62. Thus, the search did not offend the Fourth Amendment. Id.

7  No. 2021AP2105-CR.bh

¶44 The Court dealt with another vehicle search the next

term. In Harris v. United States, police had impounded the

defendant's vehicle and searched it to remove all valuables

pursuant to department regulations. 390 U.S. 234, 235 (1968)

(per curiam). Following the search, an officer rolled up the

windows and locked the doors to protect the car, when he then

discovered evidence of a robbery that was later used at the

defendant's trial. Id. at 234-35. The defendant challenged the

search, unsuccessfully. Id. at 234. The Court concluded that

the discovery of incriminating evidence was not the result of a

search requiring a warrant, "but of a measure taken to protect

the car while it was in police custody." Id. at 236.

¶45 These cases served as the foundation for Cady——the

supposed originator of the community caretaking doctrine. Like

its predecessors, Cady concerned the scope of officers'

authority to search a vehicle within their custody. 413

U.S. 433, 446-47 (1973). The search in Cady took place after

the defendant——a Chicago police officer——drunkenly crashed his car in West Bend, Wisconsin. Id. at 436. The West Bend

officers who responded to the scene believed that Chicago police

officers were required to carry their service revolvers at all

times, but they did not find one on the defendant. Id. Their

department had a "standard procedure" to search for weapons that

might "fall into untrained or perhaps malicious hands," so they

searched the car's front seat and glove compartment. Id. at

436, 443. They found no revolver, however, and eventually had the car towed to a private garage. Id. at 436. One of the

8  No. 2021AP2105-CR.bh

officers then went to the garage to keep searching for weapons.

Id. While doing so, he discovered evidence of a murder that was

later used to convict the defendant. Id. at 438-39.

¶46 The search was challenged under the Fourth Amendment.

Id. at 434. The Supreme Court began its analysis by observing

the wide variety of reasons state and local law enforcement may

come into contact with automobiles——reasons that go well beyond

criminal investigation. Id. at 441. Examples might include

responding to accidents, assisting disabled vehicles, and

enforcing vehicle regulations. Id. The Court described these

noncriminal police-citizen contacts as the "community caretaking

functions" of police:

Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Id. (emphasis added). The Court noted that these considerations

guided its decision in Cooper——where officers searched the

vehicle to "guarantee the safety of the custodian"——and in

Harris——where officers searched the vehicle "to safeguard the

owner's property." Id. at 447. This case involved a search

with similar motivations——"concern for the safety of the general

public" should someone find the revolver. Id. And although the

police did not have physical custody of the car, they exercised

control of it by directing it to be towed to a private garage.

9  No. 2021AP2105-CR.bh

Id. at 446. Thus, the officers' "caretaking 'search'" did not

violate the Fourth Amendment. Id.

¶47 The Court revisited vehicle searches three years

later. South Dakota v. Opperman, 428 U.S. 364, 365 (1976). By

that time, police departments throughout the country had

established standard procedures to search and inventory the

contents of impounded vehicles. Id. at 369, 376. In Opperman,

officers inventoried the defendant's car, found marijuana, and

charged him accordingly. Id. at 366. He argued the search was

unconstitutional, but the Supreme Court disagreed. Id. at 376.

¶48 Citing Cady, the Court recognized that police officers

will come into frequent, noncriminal contact with automobiles as

part of their "community caretaking functions." Id. at 367-69.

The Court mentioned examples such as responding to accidents or

disabled vehicles, removing vehicles that violate parking

ordinances, and examining vehicles for other regulatory

violations. Id. Officers' authority to do so was "beyond

challenge." Id. at 369. Inventory——or "caretaking"——procedures fell into the same category of noncriminal activities. Id.

Police departments developed these policies to safeguard the

owner's property, prevent claims against the police for lost or

stolen items, and protect officers from potential danger. Id.

Citing Cooper, Harris, and Cady, the Court noted that it had

consistently upheld vehicle intrusions "aimed at securing or

protecting the car and its contents." Id. at 373. Those cases

"unmistakably" pointed to the conclusion that "inventories pursuant to standard police procedures are reasonable." Id. at

10  No. 2021AP2105-CR.bh

372. Thus, the inventory search in Opperman did not violate the

Fourth Amendment. Id. at 376.

¶49 To summarize, this line of cases stands for the

proposition that some noncriminal "caretaking" searches of

vehicles in police custody are reasonable. See Colorado v.

Bertine, 479 U.S. 367, 372 (1987) (noting that Cooper, Harris,

Cady, and Opperman "accorded deference to police caretaking

procedures designed to secure and protect vehicles and their

contents within police custody"). None of these cases

explicitly created a freestanding doctrine by which courts

should evaluate all "community caretaking" actions by the

police.4

B. How Cady Became a Doctrine

¶50 That raises the question of how Cady's recognition of

the noncriminal community caretaking actions of police came to

take on a life of its own. This story is related to and

occurred alongside of other cases involving exigent circumstances and the emergency aid doctrine.

¶51 We begin with exigent circumstances. The Supreme

Court had for years required police to obtain a warrant before

entering a person's home. See Katz v. United States, 389

See United States v. Pichany, 687 F.2d 204, 208-09 (7th 4

Cir. 1982) (explaining that the Supreme Court did not "intend to create a broad exception to the Fourth Amendment warrant requirement" for various caretaking activities; rather, the Cady Court "articulated several premises behind its decision which indicate that the holding in the case extended only to automobiles temporarily in police custody").

11  No. 2021AP2105-CR.bh

U.S. 347, 357 (1967) (collecting cases). But the court began

outlining various circumstances of an urgent character where

there wasn't time to obtain a warrant, yet a search was

permissible. Id. This applied to a wide variety of exigencies,

some criminal and some noncriminal——for example, fighting a fire

and investigating its cause;5 preventing imminent destruction of

evidence;6 engaging in hot pursuit of a fleeing suspect;7 and

rendering emergency aid to persons seriously injured or

threatened with serious injury.8

¶52 The last of these exigencies eventually became known

as the emergency aid exception. See Kentucky v. King, 563

U.S. 452, 460 (2011); Michigan v. Fisher, 558 U.S. 45, 47 (2009)

(per curiam). The Court identified this category of reasonable

searches only a few years after Cady. See Mincey v. Arizona,

437 U.S. 385, 390 (1978). In Mincey, it recognized that the

Fourth Amendment "does not bar police officers from making

warrantless entries and searches when they reasonably believe

that a person within is in need of immediate aid." Id. The "need to protect or preserve life or avoid serious injury"

justified what would otherwise be impermissible absent an

emergency. Id.

5 Michigan v. Tyler, 436 U.S. 499, 509 (1978). 6Ker v. California, 374 U.S. 23, 40 (1963) (plurality opinion). 7Warden v. Hayden, 387 U.S. 294, 298 (1967); United States v. Santana, 427 U.S. 38, 42 (1976). 8Mincey v. Arizona, 437 U.S. 385, 403 (1978); Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

12  No. 2021AP2105-CR.bh

¶53 But the emergency aid exception was understood to be

limited in nature, applying only to the provision of emergency

aid. It was not extended to assisting a disabled vehicle, for

example, or conducting a non-emergency welfare check in

someone's home. This led litigants and courts to Cady, which

had recognized that officers routinely engage in many

noncriminal, community caretaking functions such as assisting

disabled vehicles or responding to accidents. 413 U.S. at 441.

Courts thus began citing Cady to justify these non-emergency

situations. And soon enough, in most courts around the country,

Cady's identification of the community caretaking functions of

police evolved into a doctrine that justified searches and

seizures of all kinds.

¶54 The Texas Court of Appeals issued a decision fifteen

years after Cady following this logic. In McDonald v. State, an

officer observed the defendant pull off the road and slump over

his steering wheel. 759 S.W.2d 784, 784 (Tex. Ct. App. 1988).

After the defendant awoke and attempted to drive off, the officer stopped him to make sure he was okay. Id. He then

observed signs of intoxication. Id. On appeal, the Texas Court

of Appeals upheld this seizure. Id. at 785. Although the court

observed that it was "unclear when a police officer may make a

stop for reasons other than criminal ones," it quoted Cady for

the proposition that police officers "have a duty to protect the

general welfare and safety of the public at large and

individuals on the highways." Id. This was such a situation. The defendant's behavior could have rendered him "unfit to

13  No. 2021AP2105-CR.bh

drive" which would endanger both himself and others. Id. The

court found the situation analogous to that "of the right of a

fireman to enter a burning building to fight the fire without a

warrant." Id. It therefore held that the officer's welfare

check did not violate the Fourth Amendment. Id.

¶55 Similar cases proliferated around the country. See

Ullom v. Miller, 705 S.E.2d 111, 120 (W. Va. 2010) (collecting

cases). These cases dealt largely with searches and seizures of

vehicles——which was, after all, what Cady was about.9 But in

time, the "community caretaking exception" was also extended to

searches of the home. See State v. Deneui, 775 N.W.2d 221, ¶36

n.8 (S.D. 2009) (collecting cases).

¶56 This same evolution took place in Wisconsin. We too

developed what we called the "emergency doctrine." This

permitted warrantless home entries if the officer subjectively

perceived a need to render emergency aid and the situation

objectively presented such an emergency. State v. Boggess, 115

Wis. 2d 443, 449, 340 N.W.2d 516 (1983). ¶57 The community caretaker doctrine emerged around the

same time, though by a different path. In 1977, four years

after Cady, we addressed whether it was lawful for a police

officer to peer into the defendant's garage after a neighbor

9 See State v. Mitchell, 498 N.W.2d 691, 694 (Iowa 1993) (burned-out taillight); State v. Vistuba, 840 P.2d 511, 514 (Kan. 1992) (driving on shoulder); State v. Pinkham, 565 A.2d 318, 318 (Me. 1989) (improper lane change); State v. Oxley, 503 A.2d 756, 759 (N.H. 1985) (unsecured furniture on back of car); State v. Harrison, 533 P.2d 1143, 1144 (Ariz. 1975) (bouncing left tire).

14  No. 2021AP2105-CR.bh

filed a noise complaint. Bies v. State, 76 Wis. 2d 457, 462,

257 N.W.2d 461 (1977). We said yes. We explained that checking

on noise complaints was "probably more a part of the community

caretaker function of the police which, while perhaps lacking in

some respects the urgency of criminal investigation, is

nevertheless an important and essential part of the police

role." Id. at 467.

¶58 The court of appeals took it a step further a decade

later. In State v. Anderson, two officers were patrolling an

alley in the early hours of the morning when they saw the

defendant turn into the alley and drive in their direction. 142

Wis. 2d 162, 164, 417 N.W.2d 411 (Ct. App. 1987). But upon

noticing their presence, the defendant exited the alley. Id.

They recognized the defendant because several businesses had

complained that he had been parking in their reserved spots.

Id. Based on his abrupt exit of the alley and the parking

complaints, the officers pulled him over. Id. at 165. After

speaking with him, they discovered several weapons that led to felon in possession and other related charges. Id. at 164-65.

Among other things, he challenged the officers' authority to

pull him over. Id. at 166. The circuit court upheld the

seizure based on reasonable suspicion but, on appeal, the

arguments focused on whether the officers lawfully seized the

defendant as part of their "community caretaker function." Id.

¶59 The court of appeals began by explaining the concept,

citing Cady and Bies. Id. at 166-67. Although "lacking in some respects the urgency of criminal investigation," the court

15  No. 2021AP2105-CR.bh

described community caretaking as an "important and essential

part of the police role." Id. at 167. That did not, however,

remove such actions from constitutional scrutiny. Id. The

court fashioned a three-part test for analyzing such claims:

"(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." Id. at 169. The court, however, did not

decide the question. Although it noted that "police contacts

with citizens seeking to resolve or defuse private disputes

(such as trespassing) are certainly within the community

caretaker function," there was a suggestion that the officers'

stop was pretextual. Id. at 170. The court therefore remanded

the case to the circuit court to employ the test.10 Id.

¶60 In 2000, the court of appeals extended the doctrine to

the home. State v. Horngren, 2000 WI App 177, ¶¶10-18, 238

Wis. 2d 347, 617 N.W.2d 508. Officers there entered the defendant's home after the police received a report that he was

attempting to commit suicide. Id., ¶¶2-3. Although the court

explained that the officers were rendering "immediate aid and

Subsequent court of appeals decisions used Anderson's 10

test, although not resulting in a decision in the State's favor. See State v. Dull, 211 Wis. 2d 652, 659, 565 N.W.2d 575 (Ct. App. 1997) (officer's warrantless entry into home not justified under community caretaking because he arrested a juvenile and had thus stepped out of his caretaking role); State v. Paterson, 220 Wis. 2d 526, 535-36, 583 N.W.2d 190 (Ct. App. 1998) (even if officer's warrantless home entry in response to a reported burglary was bona fide community caretaking activity, the balancing test tipped in defendant's favor).

16  No. 2021AP2105-CR.bh

assistance," it upheld the warrantless entry using the community

caretaking framework outlined in Anderson, not the emergency aid

doctrine.11 Id., ¶11.

¶61 The court of appeals applied the doctrine to a variety

of similar scenarios in the following years. See State v.

Ferguson, 2001 WI App 102, ¶1, 244 Wis. 2d 17, 629 N.W.2d 788

(upholding warrantless bedroom search because officers

discovered underage drinking in the apartment and feared

occupants of a locked room may be injured); State v. Ziedonis,

2005 WI App 249, ¶¶17-34, 287 Wis. 2d 831, 707 N.W.2d 565

(upholding warrantless home entry after police received 911 call

about the defendant's two vicious dogs on the loose and officers

found his back door ajar); State v. Truax, 2009 WI App 60, ¶¶11-

21, 318 Wis. 2d 113, 767 N.W.2d 369 (upholding seizure because

officer saw defendant abruptly exit the roadway and wanted to

make sure the driver was not suffering from a medical problem or

the car from mechanical failure).

¶62 A lead opinion in this court first applied Anderson's test in 2001.12 State v. Kelsey C.R., 2001 WI 54, ¶¶36-37, 243

Wis. 2d 422, 626 N.W.2d 777 (lead op.). The officers in that

case had seized the defendant, a young girl who was sitting

Horngren was not the only case to blend community 11

caretaking and emergency aid. See State v. Pinkard, 2010 WI 81, ¶26 n.8, 327 Wis. 2d 346, 785 N.W.2d 592 (collecting cases mixing the two); State v. Deneui, 775 N.W.2d 221, ¶22 (S.D. 2009) (observing the confusion).

Although the majority opinion was not joined by four 12

justices, all seven appeared to agree with its application of Anderson's community caretaking test.

17  No. 2021AP2105-CR.bh

alone in a high-crime area at night, to make sure she was not a

runaway. Id., ¶5. The opinion upheld the seizure as a

reasonable exercise of the officers' community caretaking

function. Id., ¶¶36-37.

¶63 Eight years after Kelsey C.R., we officially adopted

the Anderson test. Kramer, 315 Wis. 2d 414, ¶¶20-21. Kramer,

like Anderson and Kelsey C.R., involved a seizure. Id., ¶2. An

officer seized the defendant who had parked his car on the side

of a county highway with its hazards flashing. Id., ¶¶4-5. We

upheld the seizure as a lawful exercise of the officer's

community caretaking function. Id., ¶3.

¶64 A year after Kramer, we held that the exception

permits warrantless home entries. Pinkard, 327 Wis. 2d 346,

¶¶13-27. Officers in Pinkard had entered the defendant's home

to check on the welfare of its residents after an anonymous

caller expressed concern for the house's occupants. Id., ¶¶2-4.

Once inside, officers discovered drugs which led to charges.

Id., ¶¶5-6. The circuit court upheld the officers' actions based on the community caretaking exception. Id., ¶7. In this

court, the defendant argued that Cady and Opperman limited the

community caretaking exception to incidents involving

automobiles. Id., ¶19. We disagreed. We concluded Cady and

Opperman were not limited to automobiles; instead, they

counseled a cautious approach when employing the exception in

the home. Id., ¶20. We also harkened back to the very first

community caretaker case in Wisconsin——Bies v. State. Id., ¶21. Bies upheld an officer's search of a homeowner's garage——an area

18  No. 2021AP2105-CR.bh

constitutionally protected as part of the home. 76 Wis. 2d at

467. Bies, therefore, implied that such community caretaker

searches within the home are permissible, and other states had

come to a similar conclusion. Pinkard, 327 Wis. 2d 346, ¶¶22-

27. We therefore upheld the search. Id., ¶63.

¶65 Our use of community caretaking grew as time went on.

In 2013, we upheld officers' warrantless entry into the

defendant's bedroom to make sure he was not injured after a car

accident. State v. Gracia, 2013 WI 15, ¶3, 345 Wis. 2d 488, 826

N.W.2d 87. In 2015, we held officers' seizure of the defendant

reasonable because they sought to transport him to the hospital

for carbon monoxide poisoning, reported chest pain, and suicidal

comments. State v. Blatterman, 2015 WI 46, ¶¶1-2, 362

Wis. 2d 138, 864 N.W.2d 26. In 2016, we permitted a warrantless

room entry after officers followed a blood trail to the

defendant's house and entered a room to make sure no one was

hurt. State v. Matalonis, 2016 WI 7, ¶3, 366 Wis. 2d 443, 875

N.W.2d 567. Finally, in 2017, we upheld officers' seizure of the defendant's car because it was blocking access to a private

storage unit, officers wanted to protect the property inside the

car from theft, and the car was registered to someone else.

State v. Asboth, 2017 WI 76, ¶¶1, 18-21, 376 Wis. 2d 644, 898

N.W.2d 541.

¶66 Our cases——and those in other states——paint a clear

picture. After four decades, the community caretaker functions

of police recognized in Cady expanded from its original application to automobile inventory searches into a broad

19  No. 2021AP2105-CR.bh

doctrine. Courts utilized this framework to permit all kinds of

noncriminal searches and seizures, both on the road and in the

home. These doctrinal developments marched forward in the lower

courts with little to no direction from the United States

Supreme Court. That changed in 2021.

C. Caniglia and the Future of the Doctrine

¶67 Almost 50 years after Cady, the United States Supreme

Court heard a case questioning whether the community caretaker

doctrine supported a warrantless home entry. Caniglia, 593

U.S. at 194. In Caniglia, the plaintiff and his wife got into

an argument in their home. Id. at 196. The husband eventually

pulled out his handgun and told his wife to "shoot him now and

get it over with." Id. (cleaned up). She left, but called the

police the next day after she couldn't reach him. Id. When

officers arrived, they found the plaintiff on his porch. Id.

He agreed to go to the hospital, and the officers then searched

his home for the gun. Id. at 197. They found and confiscated two firearms. Id. The plaintiff sued the city and the police

officers, arguing his Fourth Amendment rights were violated.

Id. The District Court granted summary judgment to the

defendants, and the First Circuit affirmed based on the

"community caretaking exception." Id.

¶68 The Supreme Court saw it differently. In a brief,

unanimous opinion, the Court reiterated that officers are

sometimes permitted to enter the home and its curtilage without a warrant, such as when rendering emergency aid. Id. at 198.

20  No. 2021AP2105-CR.bh

The First Circuit's community caretaking rule, however, went

beyond anything the Court had recognized. Id. Cady involved

the search of an impounded vehicle, not a home. Id. at 199.

And the Cady court "expressly contrasted its treatment of a

vehicle already under police control with a search of a car

'parked adjacent to the dwelling place of the owner.'" Id.

(quoting another source). This distinction between vehicles and

homes placed Cady's use of the phrase "community caretaking"

into its proper context. Id. The Court had used the phrase to

explain why frequent traffic accidents and disabled vehicles

often require the police to perform noncriminal "community

caretaking functions," such as aiding motorists. Id. This

recognition that officers perform a variety of noncriminal tasks

as part of their duties was exactly that——"a recognition that

these tasks exist, and not an open-ended license to perform them

anywhere." Id. Therefore, because the First Circuit had

extended Cady beyond its holding and logic, the Supreme Court

reversed. Id. ¶69 Chief Justice Roberts, Justice Alito, and Justice

Kavanaugh concurred. Chief Justice Roberts, joined by Justice

Breyer, clarified that the Court's decision should not be read

as changing the Court's prior holdings that officers can enter

homes without warrants when assisting persons who are seriously

injured or threatened with such injury. Id. at 199-200

(Roberts, C.J., concurring). Police have a proper role in

"preventing violence and restoring order, not simply rendering first aid to casualties." Id. at 199.

21  No. 2021AP2105-CR.bh

¶70 Justice Alito agreed with the Court "that there is no

special Fourth Amendment rule for a broad category of cases

involving 'community caretaking.'" Id. at 200 (Alito, J.,

concurring). He worried that community caretaking was too

amorphous a concept that could involve a variety of tasks, with

no clear limiting principle. Id. Given this, the same Fourth

Amendment principles used in criminal cases "may not be

appropriate for use in various non-criminal-law-enforcement

contexts." Id. at 201. In addition, among other concerns,

Justice Alito pointed to the lack of cases addressing a very

real world scenario: a risk of suicide that is real, but whose

immediacy is unclear. Id. at 202. This type of encounter falls

outside of the typical "exigent circumstances" exception to the

warrant requirement because it lacks an apparent exigency. Id.

Thus, courts will likely need "to grapple with the basic Fourth

Amendment question of reasonableness." Id. at 203.

¶71 Justice Kavanaugh wrote to underscore Chief Justice

Roberts's point that the Court's decision did not "prevent officers from taking reasonable steps to assist those who are

inside a home and in need of aid." Id. at 204 (Kavanaugh, J.,

concurring). Although Cady dealt with vehicles rather than

homes, the issue was "more labeling than substance." Id. at

205. The Court's case law already included the "exigent

circumstances doctrine" which permitted officers to enter homes

without warrants to assist persons "who are seriously injured or

threatened with such injury." Id. at 206 (quoting another source). The officers in Caniglia had not relied on that

22  No. 2021AP2105-CR.bh

doctrine, leading to the Court's ultimate conclusion. But that

did not change longstanding exigent circumstances precedent.

Id.

¶72 So where does that leave us now? First, Caniglia

appears to mean that Wisconsin cases permitting home entries

under community caretaking are no longer good law——at least

insofar as they rely on community caretaking to justify the

intrusion. It remains to be seen whether other doctrines might

lead to the same outcome.

¶73 More generally, Caniglia also suggests that the

Supreme Court is uncomfortable with community caretaking as a

broad category authorizing warrantless searches and seizures.

However, it seems equally clear that the Court is not abandoning

the proposition that some searches and seizures by law

enforcement conducted to aid citizens, protect property, and

ensure safety are permissible under the Fourth Amendment.

¶74 Therefore, we may soon need to address whether to

formally abandon community caretaking as a separate, freestanding doctrine through which warrantless searches and

seizures should be evaluated. If we do so, courts may need to

wrestle with whether functions we might now categorize as

"community caretaking" may be better understood or evaluated

under other doctrines, such as emergency aid or exigent

circumstances, as Justice Kavanaugh suggested. See State v.

Ware, 2021 WI App 83, ¶15, 400 Wis. 2d 118, 968 N.W.2d 752

("Because the community caretaker exception cannot justify the warrantless search of a home under Caniglia, we frame our

23  No. 2021AP2105-CR.bh

analysis using the related——but conceptually distinct——emergency

aid exception to the warrant requirement of the Fourth

Amendment."). In addition, it's possible some of the more

expansive understandings of community caretaking in Wisconsin

and elsewhere may need to be circumscribed. This is especially

true where the need for the search or seizure is less urgent or

could be accomplished through other means.

¶75 Given this newfound uncertainty, both this court and

the court of appeals must work to ensure our decisions have a

firm foundation in United States Supreme Court precedent. While

this case does not ask us to resolve these questions, I write

here to highlight them so the discussion can begin.

¶76 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this concurrence with respect to ¶¶39-75, and

Justice JANET PROTASIEWICZ joins with respect to ¶¶72, 74-75.

24  No. 2021AP2105.jcp

¶77 JANET C. PROTASIEWICZ, J. (concurring). I concur

with the majority opinion. I write separately to address

confusion in the law regarding a respondent's ability to argue

alternative grounds for affirming the court of appeals in its

response brief. The State seems confused because it erroneously

cited Wis. Stat. § (Rule) 809.62(3m)(b)1. regarding petitions

for cross-review to justify waiting until its response brief to

argue reasonable suspicion. And this court has sown confusion by, in some cases, ignoring Wis. Stat. § (Rule) 809.62(3)(d) and

improperly holding respondents to rules that govern only

petitioners. The court should clarify the law on these matters.

I. RULES

¶78 Rule 809.62 governs how petitioners and respondents

preserve issues for this court’s review. The rule governing

petitioners uses “shall” and is mandatory. The rule governing

respondents uses “may” and is permissive.1

¶79 A petition for review “must contain a statement of the

issues the petitioner seeks to have reviewed” and “shall also

identify any issues the petitioner seeks to have reviewed that

were not decided by the court of appeals.” Wis. Stat. § (Rule)

809.62(2)(a) (emphasis added). If the court grants the petition

for review, the petitioner “cannot raise or argue issues not set

The word "shall" ordinarily is presumed to be mandatory. 1

The word "may" indicates a possibility. When the two words appear in the same statute, courts presume that the words have their precise meanings. Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26, ¶32, 339 Wis. 2d 125, 810 N.W.2d 465.

1  No. 2021AP2105.jcp

forth in the petition . . . unless ordered otherwise by the

supreme court.” Wis. Stat. § (Rule) 809.62(6) (emphasis added).2

¶80 In contrast, the rules governing the responses are

permissive. The respondent “may file a response to a petition.”

Wis. Stat. § (Rule) 809.62(3) (emphasis added). But a response

is not required. If the respondent chooses to file a response,

it “may contain . . . any alternative ground supporting the

court of appeals result or a result less favorable to the

opposing party than that granted by the court of appeals.” Wis.

Stat. § (Rule) 809.62(3)(d) (emphasis added). This rule

“addresses the circumstances in which the respondent asserts an

alternative ground to defend the court of appeals’ ultimate

result or outcome, whether or not that ground was raised or

ruled upon by the lower courts.” Judicial Council Committee

Comment, July 2008, Wis. Stat. § (Rule) 809.62(3)(d) (emphasis

added).3

¶81 Similarly, Rule 809.62(3m)(b)1. Provides that a

respondent need not file a petition for cross-review in order

“to defend the court of appeals’ ultimate result or outcome based on any ground, whether or not that ground was ruled upon

by the lower courts, as long as the supreme court’s acceptance

of that ground would not change the result or outcome below.”

2 However, "[o]nce a case is before us, it is within our discretion to review any substantial and compelling issue which the case presents." Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 32, 435 N.W.2d 234 (1989). 3 Judicial Council Committee Comments "may be consulted for guidance in interpreting and applying Wis. Stat. ss. 809.30, 809.32 and 809.62." Sup. Ct. Order No. 04-08, 2008 WI 108.

2  No. 2021AP2105.jcp

(Emphasis added). “Any such alternative ground for affirmance

or lesser relief should, however, be identified in the

response.” Judicial Council Committee Comment, July 2008, Wis.

Stat. § (Rule) 809.62(3m)(b) (citing Rules 809.62(3)(d), (3)(e),

and (6)). The rule uses the word “should” not “shall.”

¶82 Our case law provides additional guidance for

respondents on these matters. Where an issue was presented to,

but not decided by, the court of appeals, the respondent may

assert it in its brief for this court and fully discuss it.

Cynthia E. v. LaCrosse Cnty. Hum. Servs. Dep’t, 172 Wis. 2d 218,

232-33, 493 N.W.2d 56 (1992); Smith v. Anderson, 2017 WI 43,

¶¶24-26, 374 Wis. 2d 715, 893 N.W.2d 790 (Abrahamson, J.

dissenting). This court may exercise its discretion to review

the issue. Univest Corp. v. General Split Corp., 148 Wis. 2d

29, 39, 435 N.W.2d 234 (1989). Nothing guarantees that this

court will exercise its discretion to review it. Cynthia E.,

172 Wis. 2d at 232.

¶83 In addition, the respondent’s brief may raise grounds

for affirming the lower courts, even if those grounds were not presented to the lower courts. Liberty Trucking Co. v. DILHR,

57 Wis. 2d 331, 342, 204 N.W.2d 457 (1973) (appellate court may

sustain the circuit court “on a theory or on reasoning not

presented to the lower court”). This is “well-established law

in Wisconsin.” Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, ¶27

n.4, 326 Wis. 2d 729, 786 N.W.2d 78; see also State v. Delap,

2018 WI 64, ¶5 n.2, 382 Wis. 2d 92, 913 N.W.2d 175 (applying the rule where both parties had an opportunity to brief the new

3  No. 2021AP2105.jcp

grounds); State v. Holt, 128 Wis. 2d 110, 122-25, 382 N.W.2d 679

(Ct. App. 1985) (explaining the rule), superseded by statute on

other grounds, Wis. Stat. § 940.225(7).4

¶84 We abide by the rule of forfeiture, but we acknowledge

that concerns about judicial economy “are less relevant when new

arguments are raised by respondents who seek ‘to uphold rather

than reverse the result reached at trial.’” Blum, 326

Wis. 2d 729, ¶27 n.4. Again, we have the discretion to

disregard arguments presented for the first time in a response

brief. We have done so, for example, to prevent prejudice to

the petitioner. See, e.g., Paynter v. ProAssurance Wisconsin

Ins. Co., 2019 WI 65, ¶¶105-09, 387 Wis. 2d 278, 929 N.W.2d 113.

Thus, a respondent would be prudent to assert alternative

grounds for affirming the lower courts in its response to the

petition for review.

¶85 While the rules governing a respondent’s presentation

of issues for this court’s review seem clear enough, the court

and the State in this case have stumbled over them.

Rule 809.62(3)(d) and (e) "are intended to facilitate the 4

supreme court's assessment of the issues presented for review, not to change current law regarding the application of waiver principles to a respondent." Judicial Council Committee Comment, July 2008, Wis. Stat. § (Rule) 809.62(3)(d), (e). The Comment specifically cites State v. Holt, 128 Wis. 2d 110, 125, 382 N.W.2d 679 (Ct. App. 1985) ("An appellate court may sustain a lower court's holding on a theory or on reasoning not presented to the lower court.") Id.

4  No. 2021AP2105.jcp

II. CONFUSING CASE LAW

¶86 In recent years, the court has issued decisions

ignoring Rule 809.62(3)(d) and making incorrect and confusing

statements of law regarding the respondent's ability to argue

alternative grounds supporting the court of appeals result. Two

examples are State v. Sulla, 2016 WI 46, ¶7 n.5, 369 Wis. 2d

225, 800 N.W.2d 659 and State v. Smith, 2016 WI 23, ¶41, 367

Wis. 2d 483, 878 N.W.2d 135.

¶87 In Sulla, the defendant raised multiple issues in the

court of appeals. The court of appeals reversed without

deciding some of them. The State's petition for review did not

raise the undecided issues. We granted the State's petition.

The defendant filed a response brief arguing the undecided

issues, but the court refused to address them because they were

"not raised in the petition for review" and "[w]e did not order

that any issues presented outside of the petition for review be

granted and briefed." Id., ¶7 n.5 (emphasis added) (citing

Jankee v. Clark County, 2000 WI 64, ¶7, 235 Wis. 2d 700, 612

N.W.2d 297). ¶88 Sulla erred by taking the rule requiring the

petitioner to preserve issues in the petition for review and

applying it to the respondent. Sulla also incorrectly relied on

Jankee, which concerned petitioners who forfeited issues by not

raising them in their petition for review. See 235 Wis. 2d 700,

¶7. Jankee did not address forfeiture by respondents. In

addition, Sulla ignored Rule 809.62(3)(d), which provides that a

5  No. 2021AP2105.jcp

respondent "may" but is not required to file a response raising

alternative grounds supporting the court of appeals' result.

¶89 Smith compounded the confusion. The defendant raised

three issues in the court of appeals, and the court of appeals

decided one of them. The state's petition for review preserved

only the decided issue. The defendant did not raise the

undecided issues in his response to the petition. After we

granted review, the defendant argued the undecided issues in his

response brief. The court refused to address them because:

"[A]ll of these claims are not properly before us, as they were

raised in neither the State's petition for review nor in Smith's

response to the State's petition for review." Smith, 367 Wis.

2d 483, ¶41 (citing Jankee, 235 Wis. 2d 700, ¶7).

¶90 Smith appropriately considered whether the undecided

issues had been raised in either the petition for review or the

response. But Smith incorrectly applied a rigid rule: The

failure to raise issues not decided by the court of appeals in

either the petition for review or the response forfeits them.

Smith ignored Rule 809.62(3)(d), which permits, but does not require, the respondent to identify alternative grounds

supporting the court of appeals' result in his response to the

petition for review. Smith also invoked Jankee incorrectly.

Jankee did not involve, and does not govern, forfeiture by

respondents. Smith should have stated (but did not) that the

defendant was free to argue the undecided issues in his response

brief, but the court had the discretion to disregard them.

6  No. 2021AP2105.jcp

¶91 In two recent cases, this court has cited Sulla and

Smith placing its imprimatur on their erroneous statements of

law. See State v. Sholar, 2018 WI 53, ¶49, 381 Wis. 2d 560, 912

N.W.2d 89; Security Finance v. Kirsch, 2019 WI 42, ¶11 n.3, 386

Wis. 2d 388, 926 N.W.2d 167. To prevent further confusion on

this matter, the court should clarify that Sulla, 369 Wis. 2d

700, ¶7 n.5 and Smith, 367 Wis. 2d 483, ¶41 are incorrect for

the reasons I have stated.

III. APPLICATION

¶92 In this case, the State waited until its response

brief to argue reasonable suspicion——an issue the court of

appeals did not decide. The State argued that its strategy was

permissible for two reasons. First, Wiskowski raised the issue

below and in his petition for review. The State is correct.

Wiskowski argued that the State lacked reasonable suspicion in

his motion to suppress, his initial court of appeals' brief, and

his petition for review. The State's response did not raise

reasonable suspicion as an alternative ground for affirming the court of appeals as permitted by Rule 809.62(3)(d). That does

not matter because Wiskowski himself preserved the issue under

Rule 809.62(2)(a).

¶93 The State's second reason is the source of

controversy. The State argues that under Rule 809.62(3m)(b)1.

and Delap, a respondent may defend the court of appeals'

ultimate result based on any ground whether or not it was ruled on by the lower courts. This prompted Justice Hagedorn's

7  No. 2021AP2105.jcp

concurrence, which argues that the State's reliance on Rule

809.62(3m)(b)1. is misplaced. The rule does not allow the State

to assert an argument not raised below to support the same

result. Justice Hagedorn's concurrence, ¶8. "That would

require interpreting this common-sense procedural rule as

overriding or abandoning the principle of forfeiture——a rule as

old as the common law system itself." Id.

¶94 I agree with Justice Hagedorn that the State's

reliance on Rule 809.62(3m)(b)1. is misplaced, but for a

different reason. Rule 809.62(3m) governs petitions for cross-

review. The State prevailed in the court of appeals. It had no

adverse decision to challenge in a cross-petition. See Cynthia

E., 172 Wis. 2d at 232. Instead, the State should have

proceeded under Rule 809.62(3)(d).

¶95 On the other hand, I agree with the State that a

response brief may raise alternative grounds for sustaining the

court of appeals result. The State may do so even if the

alternative ground was not raised in the lower courts. Holt,

128 Wis. 2d at 124-25. Like it or not, that is "well- established law in Wisconsin." Blum, 326 Wis. 2d 729, ¶27 n.4.

But the respondent proceeds at its own risk. This court is not

required to address arguments presented for the first time in a

respondent's brief.

¶96 I am authorized to state that Justice ANN WALSH

BRADLEY joins this concurrence.

8  No. 2021AP2105-CR.akz

¶97 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting).

Wiskowski was arrested and charged with operating a motor

vehicle under the influence of an intoxicant and with a

prohibited alcohol concentration that was nearly 10 times over

his legal limit. In the middle of the day, Wiskowski placed his

order at a McDonald's drive-through and then did not appear at

the window to pick it up. He evidently fell asleep at some

point between ordering and the pick-up window. Understandably,

the McDonald's employee who found him slumped over the steering

wheel was concerned and called the police. Law enforcement

responded within a minute or so and ultimately determined that

Wiskowski, who had been convicted three prior times for drunk

driving, was again drunk driving. Well over his legal limit, he

was charged a fourth time.

¶98 The entirety of the interaction with law enforcement

at this traffic stop was just over eight minutes. Most likely,

the average traffic stop is longer than this eight minute

inquiry. But the majority concludes that the evidence against Wiskowski must be suppressed because the officer inquired a bit

too long. Apparently, after Wiskowski explained that he fell

asleep because he was tired, the police were no longer community

caretakers and had to let him drive on. The majority does not

say how long is too long, but they know it when they see it.

The majority opinion addresses traditional community caretaker

and extension of stop principles. The majority opinion also

opines that the officer could not have had reasonable suspicion to believe Wiskowski was drunk driving. Under the totality of

1  No. 2021AP2105-CR.akz

the circumstances, the officer's conduct was reasonable. I

dissent, because, among other things, this case does not develop

the law and is at most error correction. Our court should not

accept review merely to correct error.

¶99 Clearly, this court does not grant every petition for

review.1 Rather, we accept or deny cases based on evaluating the

following statutory criteria:

(a) A real and significant question of federal or state constitutional law is presented.

(b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.

(c) A decision by the supreme court will help develop, clarify or harmonize the law, and

1. The case calls for the application of a new doctrine rather than merely the application of well- settled principles to the factual situation; or

2. The question presented is a novel one, the resolution of which will have statewide impact; or

3. The question presented is not factual in nature but rather is a question of law of the type that is likely to recur unless resolved by the supreme court.

(d) The court of appeals' decision is in conflict with controlling opinions of the United

1Jessie Opoien, The Wisconsin Supreme Court is headed for its lowest output term ever. A look behind the numbers, Milwaukee Journal Sentinel (May 10, 2024), https://www.jsonline.com/story/news/politics/2024/05/10/wisconsi n-supreme-court-headed-for-its-lowest-output-term-in- history/73630399007/; Alan Ball, How Many Decisions Can We Expect in 2023-2024?, SCOWstats (Apr. 30, 2024), https://scowstats.com/2024/04/30/how-many-decisions-can-we- expect-in-2023-24/.

2  No. 2021AP2105-CR.akz

States Supreme Court or the supreme court or other court of appeals' decisions.

(e) The court of appeals' decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination. Wis. Stat. § (Rule) 809.62(1r).

¶100 Given these criteria, and the fact that the majority

opinion engages in only "error-correction" and develops no new

law, we should not have accepted review of this case. Rather

than applying a "new doctrine," the majority merely applies

"well-settled principles to [a new] factual situation." Both

the circuit court and the court of appeals denied Wiskowski's

motion to suppress.

¶101 We are not an error-correcting court.2 We are a law-

developing court.3 It is the court of appeals which is charged

primarily with error correcting. State ex rel. Swan v.

Elections Bd., 133 Wis. 2d 87, 93-94, 394 N.W.2d 732 (1986)

State ex rel. Davis v. Cir. Ct. for Dane Cnty., 2024 2

WI 14, ¶¶79-83, 411 Wis. 2d 123, 4 N.W.3d 273 (Ziegler, C.J., dissenting) (arguing case should be dismissed as improvidently granted because this court is not an error-correcting court and the case was not law-developing).

See Cook v. Cook, 208 Wis. 2d 166, 188-89, 560 N.W.2d 246 3

(1997) (determining that the court of appeals' "primary function is error correcting" while "[i]n contrast, the supreme court's primary function is that of law defining and law development"); State v. Lee, 197 Wis. 2d 959, 970, 542 N.W.2d 143 (1996) ("The rules of appellate practice applicable to the court of appeals are not always applicable to this court, which functions primarily as a law-developing court."); State v. Schumacher, 144 Wis. 2d 388, 407, 424 N.W.2d 672 (1988) (stating the court of appeals is an error-correcting court while the supreme court is a law-developing or law-declaring court).

3  No. 2021AP2105-CR.akz

("The supreme court is primarily concerned with the

institutional functions of our judicial system, while the court

of appeals is charged primarily with error correcting in the

individual case."). "This means that, unlike the supreme court,

the court of appeals does not have a law-developing or law-

declaring function." State v. Schumacher, 144 Wis. 2d 388, 407,

424 N.W.2d 672 (1988); see also id. (citing State v. Mosley, 102

Wis. 2d 636, 665-66, 307 N.W.2d 200 (1981) ("The court of

appeals is an error-correcting court.")).

¶102 The majority opinion does not engage in law

development. It restates established principles to a fact

specific situation. The current law is (1) that officers can

engage in community caretaking;4 (2) that a traffic stop cannot

4 See, e.g., State v. Brooks, 2020 WI 60, ¶23, 392 Wis. 2d 402, 944 N.W.2d 832; State v. Asboth, 2017 WI 76, ¶15, 376 Wis. 2d 644, 898 N.W.2d 541; State v. Matalonis, 2016 WI 7, ¶¶29-30, 366 Wis. 2d 443, 875 N.W.2d 567; State v. Blatterman, 2015 WI 46, ¶39, 362 Wis. 2d 138, 864 N.W.2d 26; State v. Gracia, 2013 WI 15, ¶¶14-15, 345 Wis. 2d 488, 826 N.W.2d 87; State v. Pinkard, 2010 WI 81, ¶14, 327 Wis. 2d 346, 785 N.W.2d 592; State v. Kramer, 2009 WI 14, ¶32, 315 Wis. 2d 414, 759 N.W.2d 598; State v. Anderson, 142 Wis. 2d 162, 167-68, 417 N.W.2d 411 (Ct. App. 1987).

4  No. 2021AP2105-CR.akz

be unnecessarily extended;5 and that an officer must have

reasonable suspicion to stop a vehicle.6 The majority applies

well-established law to the specific facts of this case.7

5 I recognize that "[t]he temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of the Fourth Amendment." State v. Popke, 2009 WI 37, ¶11, 317 Wis. 2d 118, 765 N.W.2d 569 (quoting State v. Gaulrapp, 207 Wis. 2d 600, 605, 558 N.W.2d 696 (Ct. App. 1996) (citing Whren v. United States, 517 U.S. 806, 809-10 (1996)). Because a seizure implicates a party's Fourth Amendment rights, "[t]he scope of the detention must be carefully tailored to its underlying justification." Florida v. Royer, 460 U.S. 491, 500 (1983). "[E]vidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification" for the stop. Terry v. Ohio, 392 U.S. 1, 29 (1968). "Authority for the seizure ends when tasks tied to the traffic infraction are——or reasonably should have been—— completed." Rodriguez v. United States, 575 U.S. 348, 354 (2015). See, e.g., Bies v. State, 76 Wis. 2d 457, 469, 251 N.W.2d 461 (1977) (determining that "any warrantless intrusion must be as limited as is reasonably possible consistent with the purpose justifying it in the first instance"); Rodriguez, 575 U.S. at 354 ("Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'——to address the traffic violation that warranted the stop[.]"); State v. Floyd, 2017 WI 78, ¶21, 377 Wis. 2d 394, 898 N.W.2d 560 ("Traffic stops are meant to be brief interactions with law enforcement officers, and they may last no longer than required to address the circumstances that make them necessary."). 6 "An investigatory stop is constitutional if the police have reasonable suspicion that a crime has been committed, is being committed, or is about to be committed." State v. Young, 2006 WI 98, ¶20, 294 Wis. 2d 1, 717 N.W.2d 729 (citing State v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996)). "An investigatory stop, though a seizure, allows police officers to briefly 'detain a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.'" Id. (quoting Waldner, 206 Wis. 2d at 55).

5  No. 2021AP2105-CR.akz

¶103 While the United States Supreme Court recently

considered the community caretaker warrant exception in Caniglia

v. Strom, 593 U.S. 194 (2021), the majority does not rest its

opinion on that case. Notably, the majority does not adopt that

analysis, nor does it in any way alter the community caretaker

exception to the warrant requirement. Perhaps it does not

because the facts of Caniglia, which involved entry into a home,

differ from those here——a vehicle stop. Indeed, while Caniglia

may have further refined the community caretaker doctrine and

some of my colleagues may wish to further consider the community

caretaker doctrine in Wisconsin, the majority opinion merely

applies previously accepted doctrine regarding an extended stop.

See majority op., ¶¶2, 21.

¶104 Since this case turns on its facts, I briefly engage

in an alternative legal analysis of those facts. Wiskowski

placed an order in the McDonald's drive-through at about 1:00 in

the afternoon. Wiskowski did not arrive at the pickup window.

The McDonald's employee called the police to explain that someone had fallen asleep behind the wheel in the drive-through

lane. Wiskowski placed his order and fell asleep before

arriving at the pick-up window. Law enforcement arrived within

a minute or so in response to the employee's call and witnessed

Wiskowski pulling out of the parking lot into the street. It is

7See majority op., ¶2 ("The scope of caretaking stops should be guided and limited by justification for the stop. This means that, absent another permissible reason to detain someone, the detention must end when the original community caretaking function is resolved.").

6  No. 2021AP2105-CR.akz

undisputed that Wiskowski had fallen asleep after ordering food.

It was not unreasonable for the officer to take a closer look.

¶105 Wiskowski was thereafter properly pulled over by law

enforcement. Wiskowski explained that he fell asleep because he

had been working 24 hours straight and was tired. However, that

did not dispel the officer's belief that he might need some sort

of assistance. While the officer did not immediately smell

alcohol on Wiskowski's breath, the officer did eventually ask

Wiskowski to step out of his truck, and Wiskowski stumbled as he

did so. At that point, the officer did smell alcohol on

Wiskowski's breath. Wiskowski admitted to having a couple of

beers, a few hours before the stop. The officer took Wiskowski

to the police station, administered field sobriety tests, and

arrested him for fourth offense operating while under the

influence of an intoxicant and operating with a prohibited

alcohol concentration of nearly 10 times his legal limit of less

than .02. Wiskowski was subsequently charged with fourth

offense drunk driving. ¶106 I disagree with the majority's assertion that law

enforcement did not possess reasonable suspicion in pulling over

Wiskowski. Reasonable suspicion is a low bar: "[It] need not

rise to the level required for probable cause, and it falls

considerably short of satisfying a preponderance of the evidence

standard." United States v. Arvizu, 534 U.S. 266, 274 (2002)

(citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). "The

essential question is whether the action of the law enforcement officer was reasonable under all the facts and circumstances

7  No. 2021AP2105-CR.akz

present." State v. Richardson, 156 Wis. 2d 128, 139-40, 456

N.W.2d 830 (1990); see also State v. Popke, 2009 WI 37, ¶23, 317

Wis. 2d 118, 765 N.W.2d 569 ("[A] police officer may still

conduct a traffic stop when, under the totality of the

circumstances, he or she has grounds to reasonably suspect that

a crime or traffic violation has been or will be committed.")

(citing State v. Gaulrapp, 207 Wis. 2d 600, 605, 558 N.W.2d 696

(Ct. App. 1996)). The test is reasonableness. An analysis of

reasonable suspicion asks "whether the facts of the case would

warrant a reasonable police officer, in light of his or her

training and experience, to suspect that the individual has

committed, was committing, or is about to commit a crime."

State v. Post, 2007 WI 60, ¶13, 301 Wis. 2d 1, 733 N.W.2d 634

(citing State v. Anderson, 155 Wis. 2d 77, 83-84, 454 N.W.2d 763

(1990)). While an officer's "inchoate and unparticularized

suspicion or hunch" is not enough to satisfy reasonable

suspicion justifying an investigative stop, id., ¶10, "officers

are not required to rule out the possibility of innocent behavior before initiating a brief stop." State v. Genous, 2021

WI 50, ¶8, 397 Wis. 2d 293, 961 N.W.2d 41 (quoting Anderson, 155

Wis. 2d at 84). "Therefore, if any reasonable inference of

wrongful conduct can be objectively discerned, notwithstanding

the existence of other innocent inferences that could be drawn,

the officers have the right to temporarily detain the individual

for the purpose of inquiry." State v. Young, 2006 WI 98, ¶21,

294 Wis. 2d 1, 717 N.W.2d 729 (quoting Anderson, 155 Wis. 2d at 84)).

8  No. 2021AP2105-CR.akz

¶107 Under the facts of this case, law enforcement

responded to a named informant's call about a driver asleep

behind the wheel of his vehicle, in a McDonald's drive-through,

in the middle of the day. Law enforcement arrived shortly

thereafter on scene and observed a vehicle matching the named

informant's description, exiting the drive-through. The driver,

who according to the named informant had been sleeping a moment

prior, was now operating his vehicle out of the parking lot and

back into traffic. Law enforcement was not required to "rule

out the possibility of innocent behavior" or make "other

innocent inferences" to explain this unusual behavior. Genous,

397 Wis. 2d 293, ¶8; Young, 294 Wis. 2d 1, ¶21. Rather, the

officer based his decision to initiate a traffic stop on the

"totality of the circumstances" present at the time. Reasonable

suspicion demands no more.

¶108 The majority seems to make much of the fact that the

officer testified that he did not initially smell the odor of

intoxicants and somehow the stop lasted a bit too long. Majority op., ¶¶5-6. The majority rests its community caretaker

conclusion on the officer asking and requiring too much of

Wiskowski in his exchange with him, extending the stop beyond

what is necessary for the community caretaker function. Id.,

¶25. The majority sheds little light on what rule law

enforcement should follow in the future other than the Wiskowski

stop was a bit too long. Id., ¶2. In other words, this case is

very fact-dependent.

9  No. 2021AP2105-CR.akz

¶109 If the officer testified that he stopped the vehicle

for a traffic violation, such as Wiskowski not using a turn

signal, the majority analysis would likely be different.

Officers also can base a vehicular stop upon a call from an

informant, whether unknown, or as in this case, known.8 If just

a bit earlier in this stop the officer smelled intoxicants or

witnessed slurred speech or stumbling, the majority likely would

not reach the same conclusion. Here, the majority says, this

information came to the officer too late even though it was

within minutes. The majority essentially manufactures a two-

part stop out of what is one continuous inquiry. This officer

did not unreasonably extend this stop. The officer's

observations occurred within a fairly short time period and his

8See Navarette v. California, 572 U.S. 393, 398-99 (2014) (concluding that a traffic stop based on tip from unknown 911 caller "bore adequate indicia of reliability for the officer to credit the caller's account"); Alabama v. White, 496 U.S. 325, 326-27, (1990) (holding officers were justified in conducting a traffic stop based off of an unknown informant's tip and "corroborated by independent police work"); Adams v. Williams, 407 U.S. 143, 146-47 (1972) (concluding that an officer "acted justifiably" in responding to an informant's tip as "[t]he informant was known to him personally" and gave information "that was immediately verifiable at the scene"); State v. Rutzinski, 2001 WI 22, ¶¶37-38, 241 Wis. 2d 729, 623 N.W.2d 516 (holding that a tip from unknown informant observing erratic driving "provided sufficient justification for an investigative stop" as, among other things, the tip "reported contemporaneous and verifiable observations," and the allegations in the tip "could suggest to a reasonable police officer that [the driver] was operating his vehicle while intoxicated"); State v. Miller, 2012 WI 61, ¶5, 341 Wis. 2d 307, 815 N.W.2d 349 (concluding that "under the totality of the circumstances police acted reasonably when they conducted an investigatory stop of the vehicle" as the officers "had the requisite reasonable suspicion primarily based on the reliability" of an informant and his verifiable tip).

10  No. 2021AP2105-CR.akz

inquiry was reasonable under the circumstances. After all, the

touchstone of the Fourth Amendment is reasonableness.

¶110 Also consider that any variety of other substances,

which do not necessarily have an odor, can constitute "drunk

driving" or operating under the influence of another drug.

Operating a motor vehicle with any amount of these prohibited

substances in one's system constitutes operating with a

prohibited substance.9 For example, a person could be driving

illegally while having any amount of these prohibited substances

in their system. Many prohibited substances are odorless, such

as oxycodone, heroin, or tetrahydrocannabinol (THC). The fact

that this officer did not initially detect of an odor of alcohol

should not automatically dispel the officer, under these facts,

from looking further into whether Wiskowski was otherwise unsafe

9 Chapter 961 of the Wisconsin Statutes, referred to as the Uniform Controlled Substances Act, lists the standards and schedules of various prohibited substances as well as the correlated offenses and penalties. While Wiskowski was convicted for driving with a prohibited alcohol concentration, fourth offense, Wis. Stat. § 346.63 also forbids any person from driving or operating a motor vehicle while:

(a) Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; or

(am) The person has a detectable amount of a restricted controlled substance in his or her blood.

§ 346.63(1)(a), (am).

11  No. 2021AP2105-CR.akz

to operate his motor vehicle. The majority opinion feels no

need to address this fact.

¶111 Instead, the majority assumes without deciding that

the traffic stop was conducted under the community caretaker

exception to the warrant requirement. The community caretaker

exception allows police to conduct a seizure without first

obtaining a warrant. See State v. Pinkard, 2010 WI 81, ¶¶13-14,

327 Wis. 2d 346, 785 N.W.2d 592. Under the community caretaker

exception the court must determine (1) whether a Fourth

Amendment seizure occurred; (2) if so, whether the officer was

acting as a bona fide community caretaker; and (3) if so,

whether the public need and interests outweigh the intrusion on

the individual's privacy. State v. Kramer, 2009 WI 14, ¶21, 315

Wis. 2d 414, 759 N.W.2d 598. In the case at issue, neither

party disputed that there was a Fourth Amendment seizure, so the

court of appeals focused on the other two elements of the test.

¶112 Regarding the second element——whether the officer was

acting as a bona fide community caretaker——the court of appeals correctly concluded that there was an "objectively reasonable

basis" to believe that a member of the public is in need of

assistance. State v. Wiskowski, No. 2021AP2105-CR, unpublished

order, at 4 (Wis. Ct. App. Mar. 15, 2023). See State v. Maddix,

2013 WI App 64, ¶20, 348 Wis. 2d 179, 831 N.W.2d 778 (stating

that an analysis of whether police are engaged in a bona fide

community caretaker function "requires us to determine whether

there is 'an "objectively reasonable basis" to believe [that]

12  No. 2021AP2105-CR.akz

there is "a member of the public who is in need of assistance"'"

(quoting another source)).

¶113 The court of appeals observed:

[The officer] was called to the scene because of a report about a person sleeping in a drive-through in the middle of the day. This was not where one would fall asleep absent some substantial problem, including a potential medical issue, because one must maneuver a vehicle through the drive-through and interact with restaurant employees. Though [the officer] observed the truck turn out of the parking lot when he arrived, he still had an objectively reasonably basis to be concerned that the driver needed assistance or might not be able to safely drive the truck. Wiskowski, No. 2021AP2105-CR, unpublished order, at 5.

¶114 The third element of the test——whether the public need

and interests outweigh the intrusion on the individual's

privacy——further supports the legality of the stop.10 The

balancing test employed militated in favor of there being a

significant public interest in ensuring that drivers are able to

safely operate their vehicles on public roads. I agree with the

court of appeals' conclusion that by immediately stopping

Courts consider the following "relevant considerations" 10

when assessing the balancing act of the third element of the community caretaker test, namely:

(1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location, and degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.

Anderson, 142 Wis. 2d at 169-70 (footnotes omitted).

13  No. 2021AP2105-CR.akz

Wiskowski, the officer was able to check on his condition and

mitigate the risk to public safety——and to Wiskowski himself.

¶115 The circumstances surrounding the stop do not

demonstrate that the officer used a high degree of overt

authority or force, nor was there an extensive intrusion into a

private space. In fact, the average speeding or traffic stop

would likely take about the same amount of time——perhaps more.

In short, the officer had reasonable suspicion to stop

Wiskowski, the officer was acting as a bona fide community

caretaker, and the traffic stop was not unreasonably extended.

¶116 Unfortunately, our court's review of this fact-

specific case fails to provide a clear rule for law enforcement.

No law is developed. Long established law about reasonable

suspicion is misapplied, even though its application to the case

at issue should militate against suppression of the evidence.

Under the totality of the circumstances, the officer's conduct

was reasonable.

¶117 For the foregoing reasons, I respectfully dissent.

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