WI: A car parked on the shoulder of a highway with the flashers on invites a police look

An officer pulling over to check a vehicle parked on the side of a highway with its lights flashing is subject to the community caretaking function, assuming that a “stop” even occurs. Here, the officer walked up to the side window and determined that the driver was intoxicated. The court admits that the Wisconsin courts have unnecessarily confused the Cady doctrine. State v. Kramer, 2008 WI App 62, 311 Wis. 2d 468, 750 N.W.2d 941 (2008), review granted 2008 WI 115, 2008 Wisc. LEXIS 384 (2008):

P19 Under the first factor, Kramer argues that the public interest in the officer’s conduct was low. We disagree. The public has a substantial interest in encouraging police officers to be on the look-out for and offer aid to motorists who may be stranded or otherwise in need of assistance. “Contacts of this sort are not only authorized, but constitute an important duty of law enforcement officers.” State v. Goebel, 103 Wis. 2d 203, 208, 307 N.W.2d 915 (1981) (officer stopped to see if a motorist who had pulled to the side of the road was in need of assistance).

P20 Kramer seems to be arguing that this interest was not implicated here because he was not attempting to signal for help and because there was no indication that he or his truck was in distress. This argument misses the mark because Kramer’s flashing hazard lights signaled to any reasonable observer that Kramer or his truck might be experiencing some sort of problem. It is common knowledge that motorists with vehicle trouble often pull over and activate their hazard lights without taking additional steps to flag down passers-by.

. . .

P35 In sum, apart from the community caretaker law we apply today, well-settled Fourth Amendment law provides that a search or seizure may not be found legal or illegal because of an officer’s subjective motives or thoughts.

P36 The reason community caretaker cases in Wisconsin have strayed from well-settled Fourth Amendment law appears to be that, in Anderson, we misinterpreted the United States Supreme Court’s decision in Cady. It seems the same sort of misreading of Cady occurred in Illinois, prompting an appellate court justice there to explain the misreading and propose a course correction, albeit in a concurrence. Because the case law addressed by the Illinois justice is essentially the same as Wisconsin case law, and because the justice aptly addresses the topic, we begin by quoting from that concurrence.

. . .

P41 We do not suggest that the entire community caretaker analysis used in Wisconsin is problematic. To the contrary, the most significant aspect of our current test is the directive that courts consider four factors in balancing the public need and interest in the officer’s action with the intrusion on individual privacy. See, e.g., Anderson, 142 Wis. 2d at 169-70. The Anderson balancing requirement tracks what Presiding Justice O’Malley in Cordero recommends as the full community caretaker test. See Cordero, 830 N.E.2d at 841-42 (suggesting a case-by-case balancing of the individual’s interest in proceeding about his or her business, unfettered by police, against the public’s interest in having police officers perform public assistance services).

The court “assume[s], without deciding, that a seizure had occurred by the time the officer observed signs of intoxication.” It is clear to me, however, that this almost certainly would be found to not be a stop. The bluelights were not turned on to stop the defendant–they were turned on to show that the police car was just parked there.