WI: “Bona fide community caretaking function” and subjective basis

Some subjective basis in a community caretaking search does not invalidate it if it has a real basis. State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598 (2009). This is a really interesting and educational opinion. Take a refresher course:

[*P30] When evaluating whether a community caretaker function is bona fide, we examine the totality of the circumstances as they existed at the time of the police conduct. Cady, 413 U.S. at 440; Kelsey C.R., 2001 WI 54, 243 Wis. 2d 422, P37, 626 N.W.2d 777. In so doing, we conclude that the “totally divorced” language from Cady does not mean that if the police officer has any subjective law enforcement concerns, he cannot be engaging in a valid community caretaker function. Rather, we conclude that in a community caretaker context, when under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer’s subjective law enforcement concerns.

[*P31] In some respects, our analysis is similar to the analysis described in Whren. It is similar because in both a determination of probable cause to arrest, such as Whren, and in a community caretaker context, as we have in the case before us, when an objectively reasonable basis for probable cause or the community caretaker function exists, an officer’s subjective motivations do not negate either the probable cause determination or the determination that the community caretaker function was bona fide. However, our analysis of the community caretaker function is also distinct from an analysis of whether there exists probable cause to arrest. In a probable cause analysis, the subjective intent of the officer plays no role in the totality of the circumstances that a court considers in determining whether there is probable cause to arrest. Whren, 517 U.S. at 813. In our community caretaker analysis, it constitutes a factor that may be considered in the totality of the circumstances.

[*P32] In regard to our community caretaker analysis, the nature of a police officer’s work is multifaceted. An officer is charged with enforcing the law, but he or she also serves as a necessary community caretaker when the officer discovers a member of the public who is in need of assistance. As an officer goes about his or her duties, an officer cannot always ascertain which hat the officer will wear–his law enforcement hat or her community caretaker hat. For example, an officer may come upon what appears to be a stalled vehicle and decide to investigate to determine if assistance is needed; however, the investigation may show that a crime is being committed within the vehicle. Therefore, from the point of view of the officer, he or she must be prepared for either eventuality as the vehicle is approached. Accordingly, the officer may have law enforcement concerns, even when the officer has an objectively reasonable basis for performing a community caretaker function.

[*P33] To conclude otherwise would ignore the multifaceted nature of police work and force police officers to let down their guard and unnecessarily expose themselves to dangerous conditions. See, e.g., Maryland v. Wilson, 519 U.S. 408, 412-13, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (“Regrettably, traffic stops may be dangerous encounters. In 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops.”); Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) (“[W]e have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. ‘According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.'”) (quoting Adams v. Williams, 407 U.S. 143, 148 n.3, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972)); State v. Ellenbecker, 159 Wis. 2d 91, 97, 464 N.W.2d 427 (Ct. App. 1990) (“[E]ven seemingly innocent activity, such as refueling a disabled car, could later turn out to be theft of a car that was left on the shoulder of the highway.”); Charles Remsberg, The Tactical Edge: Surviving High-Risk Patrol 271-72 (Calibre Press 1988) (noting that officers approaching vehicles typically know nothing about the threat level passengers may pose, because they know nothing about the passengers themselves, and the officers thus expose themselves to considerable danger).

[*P34] Furthermore, to interpret the “totally divorced” language in Cady to mean that an officer could not engage in a community caretaker function if he or she had any law enforcement concerns would, for practical purposes, preclude police officers from engaging in any community caretaker functions at all. This result is neither sensible nor desirable.