State v. Keith J. Dresser

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.
July 22, 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. 2020AP2017-CR Cir. Ct. No. 2019CT731

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEITH J. DRESSER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dane County:
JOHN D. HYLAND, Judge. Affirmed.

¶1 GRAHAM, J.1 Keith J. Dresser appeals a judgment of conviction
for operating a motor vehicle while intoxicated and with a prohibited alcohol

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP2017-CR

concentration. Dresser argues that he was seized by a sheriff’s deputy while he sat
apparently unconscious in his vehicle, and further, that the warrantless seizure was
not justified under the community caretaker doctrine. I conclude that the circuit
court properly denied Dresser’s motion to suppress evidence gathered during the
seizure. Accordingly, I affirm.

BACKGROUND

¶2 The following facts are undisputed. Deputy Trent Schafer was on
patrol during the early morning hours of October 5, 2019. At approximately 5:00
a.m., he saw a single vehicle in the parking lot of a closed fast food restaurant.
Schafer drove past the vehicle to get a closer look and saw a person, later
identified as Dresser, who appeared to be either sleeping or passed out. Schafer
then pulled into the parking lot, parked behind the vehicle, and activated his red
and blue emergency lights.

¶3 According to Schafer’s subsequent testimony, he activated his lights
“[b]ased on the procedures we use whenever we’re making contact with somebody
in a safe manner.” On appeal, the State does not contend that Schafer had
reasonable suspicion or probable cause to temporarily seize Dresser at that time.

¶4 When Schafer approached the vehicle, he observed Dresser in the
driver’s seat with his head straight down and something in his hand that appeared
to be vomit or snot. Schafer then knocked on the passenger side window, waking
Dresser, and either Schafer or Dresser, or both of them, opened the passenger side
door. The parties do not dispute that, based on Schafer’s subsequent observations,
he had probable cause to arrest Dresser for OWI-related offenses.

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No. 2020AP2017-CR

¶5 Dresser was charged with operating a motor vehicle while under the
influence of an intoxicant and with a prohibited alcohol concentration, both as
third offenses. He subsequently filed a motion to suppress all evidence obtained in
the seizure and subsequent arrest. After a hearing, the circuit court denied the
motion. The court concluded that Dresser was seized at the time Schafer pulled
behind his vehicle and activated the squad car’s emergency lights, but that the
warrantless seizure was justified based on the community caretaker doctrine.
Dresser appeals.

DISCUSSION

¶6 A motion to suppress evidence presents a question of constitutional
fact. I uphold the circuit court’s findings of fact unless they are clearly erroneous,
and I review de novo the application of constitutional principles to those facts.
State v. Kramer, 2009 WI 14, ¶16, 315 Wis. 2d 414, 759 N.W.2d 598. Dresser
does not challenge any fact found by the circuit court. The dispositive issue is the
application of the community caretaker doctrine, which presents an issue of law
subject to de novo review. Id.

¶7 The Fourth Amendment to the United States Constitution and
Article I, Section 11 of the Wisconsin Constitution both guarantee that the “right
of the people to be secure in their persons ... against unreasonable searches and
seizures” “shall not be violated.” A warrantless seizure is unreasonable, and
therefore unconstitutional, unless it falls within one of the “‘specifically
established and well-delineated’” exceptions to the warrant requirement.
Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (quoting Katz v. United States,
389 U.S. 347, 357 (1967)).

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No. 2020AP2017-CR

¶8 One such exception is the community caretaker function. Kramer,
315 Wis. 2d 414, ¶20. An officer’s community caretaker function is distinct from
the officer’s law enforcement function, which involves the “‘detection,
investigation, or acquisition of evidence relating to the violation of a criminal
statute.’” Id., ¶23 (citation omitted). An officer may seize a person without a
warrant when the officer is exercising their community caretaker function. State
v. Kelsey C.R., 2001 WI 54, ¶34, 243 Wis. 2d 422, 626 N.W.2d 777.

¶9 The community caretaker exception applies when the following
requirements are satisfied: (1) a seizure within the meaning of the Fourth
Amendment occurred; (2) the officer was engaged in a bona fide community
caretaking activity; and (3) the public need and interest outweighs the intrusion
upon the privacy of the individual. Kramer, 315 Wis. 2d 414, ¶21. The State
bears the burden of “proving that the officer’s conduct fell within the scope of a
reasonable community caretaker function.” Id., ¶17.

¶10 With respect to the first requirement, the circuit court determined
that Dresser was seized within the meaning of the Fourth Amendment at the time
that Schafer parked behind him and activated his emergency lights. The State
challenges this determination, but I assume without deciding that the court’s
determination that Dresser was seized is correct.

¶11 As for the second requirement, Wisconsin courts “carefully
examine[] the expressed concern for which the community caretaker function was
undertaken to determine if it was bona fide.” State v. Pinkard, 2010 WI 81, ¶26,

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No. 2020AP2017-CR

327 Wis. 2d 346, 785 N.W.2d 592.2 The question is whether, under the totality of
circumstances, the officer had an “objectively reasonable basis” to believe that “a
member of the public” was “in need of assistance.” Kramer, 315 Wis. 2d 414,
¶¶30, 32. I conclude that the facts as found by the circuit court meet this objective
standard.

¶12 Here, the circuit court determined that, under the circumstances, the
only conclusion that could be drawn is that Schafer was engaged in a bona fide
community caretaking activity. As the court explained:

The video and the testimony demonstrate that the vehicle
was sitting in a parked stall outside of a closed business at
5:00 in the morning. Driving up to look more closely at the
vehicle was an appropriate police step to take in order to
protect persons and property. Upon observing that a person
seated in the driver’s seat appeared to be passed out or
asleep, the deputy had a duty to ensure that the person was
safe; that they were not in medical distress or in need of
assistance. This is especially true when overdose deaths
are prevalent in this community.

¶13 On appeal, Dresser contends that “there was no reason to believe
that anything more distressing was occurring than an individual sleeping in his
car—hardly a remarkable occurrence, especially given the time of day.” I
disagree. Dresser’s posture, the time of day, and the prevalence of overdoses in
the community all contribute to an objectively reasonable basis for Schafer to

2
The State cites State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592, in its
appellate brief. To the extent that Pinkard held that a warrantless search of a house was
constitutional based on the community caretaker doctrine, that holding has been recently
overruled by the United States Supreme Court. See Caniglia v. Strom, __ U.S. __, 141 S. Ct.
1596 (2021) (holding that police officers’ community caretaking duties do not justify warrantless
searches and seizure in the home). Caniglia was decided after the briefing in this case was
completed. I cite Pinkard here to support a principle that has not been overruled.

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No. 2020AP2017-CR

conclude that Dresser may have been in need of medical assistance. Schafer was
not required to rule out the possibility that the driver was not in need of assistance
before exercising his bona fide community caretaker function.3

¶14 I now turn to the third requirement and consider whether the public
need and interest outweigh the intrusion upon Dresser’s liberty interests. Kramer,
315 Wis. 2d 414, ¶40. In weighing these interests, courts have considered “‘the
degree of public interest and exigency of the situation’”; “‘the attendant
circumstances surrounding the seizure, including time, location and degree of
overt authority and force displayed’”; “‘whether an automobile is involved’”; and
“‘the availability, feasibility and effectiveness of alternatives to the type of
intrusion actually accomplished.’” Id., ¶41 (citation omitted). The ultimate
touchstone for this analysis is reasonableness. Kelsey C.R., 243 Wis. 2d 422, ¶34.
“The stronger the public need and more minimal the intrusion upon an individual’s
liberty, the more likely the police conduct will be held to be reasonable.” Kramer,
315 Wis. 2d 414, ¶41.

¶15 Dresser argues that “[t]here was virtually no public interest or
exigency demanding action in this case,” but I disagree for the reasons discussed
above.

¶16 Dresser’s remaining argument is almost exclusively focused on the
fact that Schafer activated his squad car’s emergency lights. Dresser appears to

3
See State v. Kramer, 2009 WI 14, ¶30, 315 Wis. 2d 414, 759 N.W.2d 598 (holding that
an officer who stopped to check on a vehicle legally parked, with hazard lights activated, on the
side of a highway at 8:45 p.m. “had an objectively reasonable basis for deciding that a motorist
may have been in need of assistance”).

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No. 2020AP2017-CR

acknowledge that, under the circumstances, it would have been reasonable for
Schafer to park his squad car and approach Dresser’s vehicle on foot to check on
his medical condition. However, according to Dresser, Schafer did not need to
activate his emergency lights as a safety precaution in the parking lot. Dresser
argues that Schafer’s decision to do so was “gratuitous,” and there existed “clearly
less intrusive means, both available and feasible,” for checking on whether
Dresser needed medical attention. As I understand it, Dresser is arguing that
everything Schafer did was appropriate except for the activation of his emergency
lights, which was an overt display of authority and was unnecessary under the
circumstances.

¶17 Here, the intrusion upon Dresser’s liberty interests was minimal.
Dresser’s vehicle was already parked. By activating his emergency lights, Schafer
temporarily prevented Dresser from leaving while Schafer checked on Dresser’s
condition. Although the record does not demonstrate a strong need for Schafer to
activate his lights, this point alone does not outweigh the undeniable public
interest in law enforcement responding to individuals who may be suffering from
the effects of substance abuse or other medical emergencies. Therefore, I
conclude that the public need and interest outweigh the minimal intrusion upon
Dresser’s liberty interests.

¶18 In sum, I assume that Schafer seized Dresser when he activated his
emergency lights and conclude that, based on the totality of the circumstances,
Schafer’s conduct fell within the scope of the exception for a bona fide community
caretaker function. Accordingly, I conclude that the circuit court properly denied
Dresser’s motion to suppress, and I affirm the judgment of conviction.

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No. 2020AP2017-CR

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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