State v. Randy J. Promer ( 2021 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 21, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2020AP1715-CR Cir. Ct. No. 2019CF962
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RANDY J. PROMER,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Eau Claire
County: SARAH MAE HARLESS, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
¶1 STARK, P.J. Randy Promer appeals a judgment convicting him of
one count of operating a motor vehicle with a detectable amount of a restricted
controlled substance in his blood, as a seventh offense, and one count of
possession of methamphetamine. Promer argues the circuit court erred by denying
No. 2020AP1715-CR
his motion to suppress evidence. He contends that law enforcement lacked
reasonable suspicion to stop his vehicle, and that the community caretaker doctrine
did not justify the stop.
¶2 We conclude the stop of Promer’s vehicle was permissible under the
community caretaker doctrine. In so doing, we reject Promer’s argument that the
United States Supreme Court’s decision in Caniglia v. Strom, 141 S. Ct. 1596
(2021), “eliminat[ed] the community caretaker doctrine as a standalone exception
to the Fourth Amendment warrant requirement.” Instead, we conclude Caniglia
merely held that the community caretaker doctrine cannot be used to justify a
warrantless intrusion into a home. As this case involves the stop of an automobile,
Caniglia is inapplicable. Accordingly, the circuit court properly denied Promer’s
suppression motion, and we therefore affirm his judgment of conviction.
BACKGROUND
¶3 The following facts were adduced during the hearing on Promer’s
suppression motion and are not disputed for purposes of this appeal. On July 1,
2019, at around 9:30 p.m., a bartender at a sports bar reported to law enforcement
that a man was passed out or sleeping in a car in the bar’s parking lot. Eau Claire
County Sheriff’s Deputies Riley Schulner and Kyle Jacobson responded to the
call. Dispatch informed the deputies that the car was a blue Volkswagen Jetta that
was registered to Promer; that Promer was on probation and had six prior
convictions for operating a motor vehicle while intoxicated (OWI); that he had an
outstanding warrant from Florida; and that he was subject to a blood alcohol
concentration (BAC) limit of 0.02.
¶4 When Schulner arrived at the bar about ten minutes later, he saw
Promer’s vehicle traveling northbound on the road on which the bar was located.
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As Schulner turned into the bar’s parking lot, the vehicle slowed down and turned
into the lot behind him. Schulner continued into the parking lot and circled around
to get behind Promer’s vehicle. He observed that the vehicle was “traveling kind
of at a slower speed through the middle of the parking lot.” Schulner testified that
seeing the vehicle driving back into the parking lot where the driver had reportedly
been passed out was “kind of concerning.”
¶5 Schulner then activated his squad car’s emergency lights. He
testified that he did so “to make contact with the driver and essentially check [his]
welfare after getting the report of him passed out … behind the wheel.” After
Schulner activated his emergency lights, Promer’s vehicle continued for a short
distance and then pulled into a parking spot where it drove onto the curb before
backing down again.
¶6 Jacobson arrived on the scene shortly after Schulner and observed
Promer’s vehicle traveling slowly with Schulner’s vehicle behind it. Jacobson saw
Promer’s vehicle pull into a parking spot and strike the curb. Jacobson then
parked his squad car next to Schulner’s and activated its emergency lights.
¶7 The deputies approached the driver’s side door of Promer’s vehicle
and made contact with the driver, whom Schulner recognized as Promer from
prior law enforcement contacts. The deputies observed that Promer was slumped
over in his seat with his head dropping forward, and that he appeared to be unable
to keep his head up or his eyes open. When Jacobson asked Promer if he was
okay, Promer sat up and loudly said “yeah.” The deputies observed that Promer’s
speech was slurred, and his pupils were dilated. Promer told the deputies that he
was tired and had not slept for several days. He also stated that he believed his
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blood sugar level was “off” or “high,” that he took the medication Metformin for
diabetes, and that he had not checked his blood sugar in two weeks.
¶8 Promer told the deputies that he was going home from a friend’s
house in Altoona. Jacobson testified, however, that based on where Promer lived,
his story “didn’t make sense.” Promer also stated that he was resting his eyes, and
that he had pulled back into the parking lot to rest for a few minutes. He denied
drinking or using drugs. The deputies asked Promer if he wanted to be checked
out by emergency medical services, but he declined.
¶9 Jacobson, who is a trained drug recognition expert, did not believe
that Promer’s condition was the result of him being tired or his blood sugar being
high. Instead, Jacobson believed that Promer’s condition was consistent with
“com[ing] down” after using a stimulant drug. Jacobson therefore asked Promer
to get out of his vehicle to perform field sobriety tests. After Jacobson asked
Promer to exit the vehicle three or four times, Promer finally got out but could not
stand still. Promer was not cooperative during the field sobriety tests and began to
walk away from the deputies.
¶10 The deputies then placed Promer under arrest. A search incident to
arrest revealed a scale between Promer’s t-shirt and sweatshirt, which had a white
substance on it that was consistent with illegal drugs. During a subsequent search
of Promer’s vehicle, the deputies discovered a vape cartridge container labeled
“THC” and a pipe consistent with the type commonly used to smoke
methamphetamine.
¶11 The State ultimately charged Promer with five offenses: (1) OWI, as
a seventh offense; (2) possession of methamphetamine, as a repeater;
(3) possession of tetrahydrocannabinols (THC), as a repeater; (4) possession of
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drug paraphernalia, as a repeater; and (5) operating a motor vehicle with a
detectable amount of a restricted controlled substance in the blood, as a seventh
offense. Promer moved to suppress evidence, arguing that the deputies lacked
reasonable suspicion to stop his vehicle, and that the stop was not justified under
the community caretaker doctrine.
¶12 Following an evidentiary hearing, the circuit court denied Promer’s
suppression motion, concluding that the community caretaker doctrine justified the
deputies’ stop of Promer’s vehicle. The court noted that shortly after a bartender
reported that a person was passed out in a car in the bar’s parking lot, Schulner
saw the same car driving back into the parking lot at a slow rate of speed. The
court reasoned that “[t]he description of a person passed out coupled with the
somewhat unusual behavior of, after being described as passed out, getting onto
the road and then coming right back into the parking lot” was “unusual enough to
suggest that the police should be able to check out and make sure that this person
is okay.”
¶13 The circuit court further stated that after making the decision to stop
Promer’s vehicle, the deputies saw the vehicle bump into a curb, and they later
observed that Promer was slumped over, he could not keep his eyes open, his
pupils were dilated, and his speech was slurred. The court concluded that in light
of Jacobson’s training and experience, those observations indicated that Promer
was under the influence of a drug, which provided a basis “to further investigate
and request field sobriety tests.”
¶14 Promer subsequently pled no contest to operating a motor vehicle
with a detectable amount of a restricted controlled substance in his blood, as a
seventh offense, and to possession of methamphetamine, without the repeater
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enhancer. The remaining charges were dismissed and read in at sentencing. The
circuit court followed the parties’ joint sentence recommendation and imposed
concurrent sentences totaling three years’ initial confinement and three years’
extended supervision. Promer now appeals, arguing that the court erred by
denying his suppression motion. See WIS. STAT. § 971.31(10) (2019-20)
(permitting appellate review of an order denying a motion to suppress evidence,
notwithstanding the defendant’s guilty or no-contest plea).
DISCUSSION
¶15 When reviewing the denial of a motion to suppress evidence, we
uphold the circuit court’s findings of fact unless they are clearly erroneous. State
v. Maddix, 2013 WI App 64, ¶12, 348 Wis. 2d 179, 831 N.W.2d 778. However,
the application of constitutional principles to the facts is a question of law that we
review independently. Id.¶16 Both the Fourth Amendment to the United States Constitution and
article I, section 11 of the Wisconsin Constitution protect against unreasonable
searches and seizures. U.S. CONST. amend. IV; WIS. CONST. art. I, § 11. A traffic
stop must be reasonable under the circumstances, and it is “widely accepted that
traffic stops may be justified by either probable cause or reasonable suspicion.”
State v. Houghton, 2015 WI 79, ¶29, 364 Wis. 2d 234, 868 N.W.2d 143. In this
case, the State does not argue that the initial stop of Promer’s vehicle was based on
either probable cause or reasonable suspicion. Instead, the State argues that the
stop was justified under the community caretaker doctrine.
¶17 The community caretaker doctrine provides that “[w]hen acting as a
community caretaker, an officer may conduct a search or seizure without probable
cause or reasonable suspicion, as long as the search or seizure satisfies the
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No. 2020AP1715-CR
reasonableness requirement of the Fourth Amendment.” Maddix, 348 Wis. 2d
179, ¶14. The doctrine has its origins in Cady v. Dombrowski, 413 U.S. 433(1973), and was first applied by the Wisconsin Supreme Court in Bies v. State, 76
Wis. 2d 457, 251 N.W.2d 461 (1977). State v. Kramer, 2009 WI 14, ¶¶19-20, 315
Wis. 2d 414, 759 N.W.2d 598. Promer argues, however, that the United States
Supreme Court’s recent decision in Caniglia eliminated the community caretaker
doctrine as a standalone justification for warrantless seizures effectuated without
probable cause or reasonable suspicion.
¶18 Promer reads Caniglia too broadly. Caniglia’s wife contacted law
enforcement and reported that during an argument the previous evening, Caniglia
had placed a handgun on the dining room table of their home and had asked her to
shoot him. Caniglia, 141 S. Ct. at 1598. When law enforcement arrived at the
home, they spoke with Caniglia on the porch, and he denied that he was suicidal.
Id. Nonetheless, he agreed to go to the hospital for a psychiatric evaluation, but
only after the officers promised not to confiscate his firearms. Id. After Caniglia
left for the hospital, however, the officers entered the home and seized two
handguns. Id.
¶19 Caniglia sued, asserting that the officers had violated the Fourth
Amendment “when they entered his home and seized him and his firearms without
a warrant.” Id. Relying on Cady, the United States Court of Appeals for the First
Circuit concluded that the “decision to remove [Caniglia] and his firearms from
the premises fell within a ‘community caretaking exception’ to the warrant
requirement.” Caniglia, 141 S. Ct. at 1598.
¶20 The United States Supreme Court reversed. The Court noted that
Cady involved the warrantless search of an impounded vehicle for an unsecured
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No. 2020AP1715-CR
firearm. Caniglia, 141 S. Ct. at 1598. The Cady Court determined that search did
not violate the Fourth Amendment, reasoning that “police officers who patrol the
‘public highways’ are often called to discharge noncriminal ‘community
caretaking functions,’ such as responding to disabled vehicles or investigating
accidents.” Caniglia, 141 S. Ct. at 1598 (quoting Cady, 413 U.S. at 441). The
Caniglia Court explained: “The question today is whether Cady’s
acknowledgment of these ‘caretaking’ duties creates a standalone doctrine that
justifies warrantless searches and seizures in the home. It does not.” Caniglia,
141 S. Ct. at 1598 (emphasis added).
¶21 In reaching that conclusion, the Caniglia Court emphasized that
Cady involved the warrantless search of a vehicle, and that the Cady Court had
drawn an “unmistakable distinction between vehicles and homes” when discussing
law enforcement’s community caretaking functions. Caniglia, 141 S. Ct. at 1599.
The Court concluded: “What is reasonable for vehicles is different from what is
reasonable for homes. Cady acknowledged as much, and this Court has repeatedly
‘declined to expand the scope of ... exceptions to the warrant requirement to
permit warrantless entry into the home.’” Caniglia, 141 S. Ct. at 1600 (quoting
Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663, 1672 (2018)).
¶22 As the foregoing excerpts make clear, contrary to Promer’s
assertion, Caniglia did not “eliminate” the community caretaker doctrine as a
justification for warrantless seizures unsupported by probable cause or reasonable
suspicion. Instead, Caniglia clarified that the community caretaker doctrine, as
originally recognized in Cady, is limited to cases involving searches and seizures
of automobiles and cannot be used to justify warrantless intrusions into a home.
Here, the seizure occurred when law enforcement stopped Promer’s vehicle.
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No. 2020AP1715-CR
Nothing in Caniglia prevents us from applying the community caretaker doctrine
in that context.
¶23 We therefore consider whether the State has met its burden to
establish that the seizure of Promer’s vehicle was permissible under the
community caretaker doctrine. See Kramer, 315 Wis. 2d 414, ¶17 (“The State
bears the burden of proving that the officer’s conduct fell within the scope of a
reasonable community caretaker function.”). To determine whether a seizure was
justified under the community caretaker doctrine, we conduct a three-step analysis,
considering: (1) whether a seizure within the meaning of the Fourth Amendment
occurred; (2) if so, whether the police conduct was a bona fide community
caretaker activity; and (3) if so, whether the public need and interest outweighed
the intrusion upon the individual’s privacy. Id., ¶21. In this case, it is undisputed
that a seizure occurred within the meaning of the Fourth Amendment when
Schulner activated his squad car’s emergency lights and stopped Promer’s vehicle.
We therefore turn to the second and third steps of the analysis.
A. Bona fide community caretaker activity
¶24 When determining whether law enforcement was engaged in a bona
fide community caretaker activity, we consider whether there was an “objectively
reasonable basis” for law enforcement to believe that there was “a member of the
public who [was] in need of assistance.” State v. Ultsch, 2011 WI App 17, ¶15,
331 Wis. 2d 242, 793 N.W.2d 505 (2010) (quoting Kramer, 315 Wis. 2d 414,
¶¶30, 32). In so doing, we consider “the totality of the circumstances as they
existed at the time of the police conduct.” Kramer, 315 Wis. 2d 414, ¶30.
¶25 Here, we agree with the circuit court that when the deputies stopped
Promer’s vehicle, they had an objectively reasonable basis to believe, under the
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totality of the circumstances, that a member of the public was in need of
assistance. The deputies knew that a bartender had called law enforcement to
report that a man was passed out or sleeping in a car parked in the bar’s parking
lot. When the deputies arrived at the bar about ten minutes later, they saw the
same vehicle driving northbound on the road where the bar was located, and the
vehicle then turned back into the bar’s parking lot and drove through the lot at a
slow speed. The circuit court correctly recognized that a person being passed out
or sleeping in a vehicle in a parking lot, combined with the “somewhat unusual
behavior of, after being described as passed out, getting onto the road and then
coming right back into the parking lot” was “unusual enough to suggest that the
police should be able to check out and make sure that this person is okay.”
¶26 Promer concedes that if the deputies had found a person sleeping or
passed out in a car when they arrived at the bar, it would have been reasonable for
them “to believe the person may need assistance[,] and the community caretaker
function arguably would be in play.” However, because the deputies instead
found the car in question “driving safely on the road and observed the car safely
execute a turn into a parking lot,” Promer asserts that the initial safety concern
created by the bartender’s report dissipated, and the deputies’ performance of their
community caretaker function therefore terminated.
¶27 Promer relies on Ultsch in support of his dissipation argument. In
Ultsch, a vehicle hit and caused substantial damage to a building. Ultsch, 331
Wis. 2d 242, ¶2. Law enforcement later found the vehicle located outside of a
private residence two to three miles away from the accident scene. Id. Officers
observed that the damage to the vehicle was limited to its left front fender, the
airbags had not deployed, the windshield was intact, there was no damage to the
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passenger compartment or to the driver’s side door, and there was no blood or
other indication of injury. Id., ¶19.
¶28 The officers encountered an individual who was leaving the
residence and who identified himself as the owner of the home. Id., ¶3. He told
police that the driver of the damaged vehicle was his girlfriend and that she was
inside the house “possibly in bed or asleep.” Id. He did not tell the officers that
the driver was injured or in need of assistance. Id., ¶20. The officers proceeded to
the house, where they knocked and announced their presence but received no
answer. Id., ¶4. They then opened the house’s unlocked door, entered the house,
and proceeded to a back bedroom, where they found Ultsch asleep in bed. Id.
Ultsch was subsequently placed under arrest for OWI. Id., ¶5.
¶29 On appeal, we concluded that the officers were not performing a
bona fide community caretaker function when they entered the residence because
there was no objectively reasonable basis for them to conclude that Ultsch was in
need of assistance. Id., ¶22. We noted that the damage to Ultsch’s vehicle was
not significant enough to give rise to a concern for her safety. Id., ¶19. We also
observed that no person had given the officers any information to indicate that
Ultsch was in a vulnerable situation, nor did they observe anything to suggest that
she was injured or in need of assistance. Id., ¶¶20-21.
¶30 Thus, in Ultsch, although the officers’ knowledge that a vehicle had
hit and caused substantial damage to a building supported a belief that the
vehicle’s driver might be in need of assistance, the officers subsequently became
aware of other facts that dispelled that belief. The same is not true here. The
bartender’s report that a person was sleeping or passed out in a vehicle in the bar’s
parking lot gave rise to an objectively reasonable belief that the person was
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No. 2020AP1715-CR
experiencing some type of medical difficulty or was too tired to drive safely. The
deputies’ observation of the same vehicle driving a short time later—and,
specifically, driving back into the same parking lot—gave rise to an objectively
reasonable concern that the driver was in need of assistance, and that his continued
operation of the vehicle could put both the driver and the public at risk.
¶31 Promer next argues that after the deputies saw him awake and safely
driving, “this case pivoted from a community caretaker action into a criminal
investigation” because the deputies’ conduct was no longer “totally divorced from
the detection, investigation, or acquisition of evidence relating to the violation of a
criminal statute.” See Cady, 413 U.S. at 441. Promer emphasizes that the
deputies: (1) knew him from prior law enforcement contacts; (2) knew that he was
on probation; (3) knew that he had prior OWI convictions and was subject to a
0.02 BAC limit; and (4) knew that he was subject to a Florida warrant. Promer
asserts that the deputies’ knowledge of these facts “could not help but impact the
focus of the investigation.” He further asserts that Schulner “admitted” during his
testimony that he intended to perform a traffic stop when he activated his squad
car’s emergency lights.
¶32 Promer’s argument fails because although the Cady Court described
community caretaking functions as being “totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a criminal
statute,” see id., our supreme court has clarified that this language “does not mean
that if the police officer has any subjective law enforcement concerns, he [or she]
cannot be engaging in a valid community caretaker function,” see Kramer, 315
Wis. 2d 414, ¶30. Instead, “in a community caretaker context, when under the
totality of the circumstances an objectively reasonable basis for the community
caretaker function is shown, that determination is not negated by the officer’s
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subjective law enforcement concerns.” Id. Thus, while a court may consider an
officer’s subjective intent in evaluating whether the officer was acting as a
bona fide community caretaker, “if the court concludes that the officer has
articulated an objectively reasonable basis under the totality of the circumstances
for the community caretaker function, [the officer] has met the standard of acting
as a bona fide community caretaker, whose community caretaker function is
totally divorced from law enforcement functions.” Id., ¶36.
¶33 As explained above, we have already concluded that the deputies in
this case had an objectively reasonable basis to believe that Promer was in need of
assistance. The deputies’ awareness of other facts suggesting that Promer’s
operation of his vehicle might also constitute the commission of a crime did not
negate their objectively reasonable concern for Promer’s safety. Moreover, while
Schulner acknowledged that he intended to perform a “traffic stop” when he
stopped Promer’s vehicle, he also testified that the reason for the stop was “to
check the welfare of the operator based on the information we had been provided.”
Jacobson similarly testified that he made contact with Promer “[t]o check on his
welfare to make sure that he’s okay.” This testimony supports a conclusion that
the deputies were engaging in a bona fide community caretaker activity when they
stopped Promer’s vehicle.
¶34 Promer also contends that even if the stop of his vehicle was
permissible under the community caretaker doctrine, “the community caretaker
exception terminated once the deputies spoke with [him].” Promer asserts it
became clear during that conversation that he did not require assistance, as he
provided the deputies with a detailed explanation for his conduct. He argues that
this explanation, coupled with the fact that the deputies had not observed any
erratic driving, “eliminated the community caretaker justification.”
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¶35 Viewed objectively, nothing that Promer told the deputies dispelled
a reasonable belief that he needed assistance. Instead, Promer’s conversation with
the deputies, combined with their observations of him during the stop, made it
apparent that he did need assistance because he was in no condition to drive. As
noted above, when the deputies made contact with Promer, he was slumped over
in his seat with his head falling forward, and he appeared to be unable to keep his
head up or his eyes open. Promer’s speech was slurred and his pupils were
dilated. Promer told the deputies that he was tired, that he had not slept for several
days, that his blood sugar was “off” or “high,” and that he had not checked his
blood sugar in two weeks. He said that he was resting his eyes, and that had he
had pulled back into the parking lot to rest for a few minutes. These additional
facts confirmed that Promer was not fit to drive and did nothing to dispel the
deputies’ objectively reasonable belief that he was in need of assistance.
¶36 For all of the foregoing reasons, we conclude the State met its
burden to establish that the deputies were engaged in a bona fide community
caretaker activity when they stopped Promer’s vehicle. We therefore turn to the
third step of the community caretaker analysis.
B. Public interest versus intrusion upon privacy
¶37 In the third and final step of the community caretaker analysis, we
consider whether the public need and interest outweighed the intrusion upon
Promer’s privacy. See Kramer, 315 Wis. 2d 414, ¶21. Stated differently, we must
determine whether the deputies’ “exercise of a bona fide community caretaker
function was reasonable.” See id., ¶40. “The stronger the public need and the
more minimal the intrusion upon an individual’s liberty, the more likely the police
conduct will be held to be reasonable.” Id., ¶41. In balancing these interests, we
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consider the following 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, and the degree of overt authority and force displayed;
(3) whether an automobile was involved; and (4) the availability, feasibility, and
effectiveness of alternatives to the type of intrusion actually accomplished. Id.
¶38 We conclude that all four of these factors support a determination
that the public need and interest supporting the stop of Promer’s vehicle
outweighed the intrusion upon his privacy. First, there was a strong public interest
in the deputies checking on Promer’s well-being in order to protect both Promer
and the public. As described above, the bartender’s report and the deputies’
observations of Promer’s vehicle prior to the stop gave rise to an objectively
reasonable concern that Promer was experiencing some kind of medical difficulty
or was too tired to drive safely. After the deputies stopped Promer’s vehicle, his
condition further demonstrated that he could not drive safely, as he was slumped
over and could not keep his head up or his eyes open. We agree with the State that
even if Promer’s condition “actually had been caused by blood sugar issues and
tiredness, the deputies would have been justified in stopping his car to protect him
and the public.” Obviously, Promer’s condition was such that his driving
presented a significant risk of harm to both Promer and others.
¶39 Promer asserts that “[t]he public need was minimal” because there is
no evidence that the parking lot was full, that his driving interrupted traffic, or that
the stop was necessary to preserve evidence. He also notes that when the deputies
activated their vehicles’ emergency lights, he “drove slowly and parked in a
parking stall.” He therefore contends that the situation presented no exigencies
because there was no risk to either the public or to Promer himself if the officers
failed to act quickly.
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¶40 We reject this argument because at the time the deputies stopped
Promer’s vehicle, they had no way of knowing that he was about to park his car.
Given that Promer had previously been sleeping or passed out in his vehicle in the
parking lot, had subsequently left the parking lot and driven on the road, and had
then returned to the parking lot, the officers could reasonably believe that if they
did not stop Promer’s vehicle, there was a risk that he would proceed back onto
the road, where he would pose a danger to himself and to the public.
¶41 Turning to the second factor, the attendant circumstances
surrounding the seizure show that it was not particularly intrusive. The stop
occurred shortly after 9:30 p.m. in a public place. Although there were two
deputies present, and both of them activated their squad cars’ emergency lights,
there is no evidence in the appellate record to suggest that they made any other
overt display of authority or force. Instead, the record merely indicates that the
deputies stood near the driver’s side door of Promer’s vehicle and asked him
questions.
¶42 Promer contends that a reasonable person, “who by his own
admission was tired enough to pull off the road to rest and who suffered from low
blood sugar, would be alarmed by the squad cars and officers.” We agree with the
State, however, that a reasonable person in Promer’s position—that is, a person
who had passed out or fallen asleep in his vehicle, had woken up, had driven a
short distance, and had then returned to the same parking lot intending to park his
car because his tiredness and blood sugar level made him unable to drive safely—
likely would not have been alarmed by the deputies’ conduct. Instead, as the State
aptly notes, a reasonable person in that position “would understand why officers
might be concerned for his safety and the safety of the public.”
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¶43 As for the third factor, the fact that the seizure involved an
automobile further supports a conclusion that the public interest outweighed the
intrusion on Promer’s privacy. As discussed above, although the Supreme Court
recently held in Caniglia that the community caretaker doctrine cannot be used as
a standalone justification for warrantless searches and seizures in the home, the
Court emphasized that “[w]hat is reasonable for vehicles is different from what is
reasonable for homes.” Caniglia, 141 S. Ct. at 1598, 1600.
¶44 Under the fourth factor, we must consider the availability,
feasibility, and effectiveness of alternatives to the type of intrusion actually
accomplished. See Kramer, 315 Wis. 2d 414, ¶41. We agree with the State that
under the circumstances presented here, the deputies had no reasonable alternative
but to stop Promer’s vehicle to determine whether he needed assistance. It would
not have been reasonable for the deputies to simply do nothing and hope that
Promer could drive safely, even though they knew that he had been passed out or
asleep in his vehicle in a parking lot about ten minutes earlier, and that he had
subsequently left the parking lot but had returned to it a short time later. If Promer
was experiencing a medical emergency, or was too tired to drive safely, and the
deputies had declined to stop his vehicle when they arrived at the bar, “it may have
been too late for effective assistance at some later time.” See id., ¶45.
¶45 Promer argues that instead of having both deputies approach his
vehicle, “[o]ne deputy could have remained in his squad car while the other spoke
to … Promer.” However, Promer does not explain why it would have made any
difference if only one deputy had approached his vehicle during the stop. It does
not appear that the stop would have been significantly less intrusive if only one of
the deputies had approached Promer’s vehicle, while the other remained in his
squad car a short distance away.
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¶46 Accordingly, all four factors under the third step of the community
caretaker analysis support a conclusion that the deputies’ exercise of a bona fide
community caretaker function was reasonable under the circumstances. See id.,
¶40. In other words, the public need and interest supporting the stop of Promer’s
vehicle outweighed the intrusion upon his privacy. See id., ¶21.
CONCLUSION
¶47 For the reasons explained above, we conclude that the State has
satisfied each of the three steps of the community caretaker analysis. Like the
circuit court, we therefore conclude that the deputies’ stop of Promer’s vehicle
was permissible under the community caretaker doctrine. We reject Promer’s
argument that Caniglia eliminated the community caretaker doctrine as a
standalone justification for all warrantless searches and seizures. Instead,
Caniglia merely clarified that the community caretaker doctrine cannot be used to
justify warrantless intrusions into the home. As such, the court properly denied
Promer’s suppression motion.1
1
The State asserts that after the deputies stopped Promer’s vehicle and made contact
with him, their observations of Promer gave rise to reasonable suspicion that he had operated his
vehicle while intoxicated, which allowed the deputies to investigate further, including by asking
Promer to perform field sobriety tests. The State also contends that after Promer refused to
perform field sobriety tests, the deputies had probable cause to arrest him and to search his person
and vehicle.
Promer does not dispute that if the initial stop of his vehicle was valid, then the deputies’
observations during the stop gave rise to reasonable suspicion allowing them to investigate
further and to request field sobriety tests. Promer also fails to dispute the State’s assertion that his
arrest and the subsequent searches were supported by probable cause. We therefore deem these
points conceded, and we do not address them further. See Charolais Breeding Ranches, Ltd. v.
FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments may
be deemed conceded).
18
No. 2020AP1715-CR
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
19