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COURT OF APPEALS
NOTICE
DECISION
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 17, 2009
A party may file with the Supreme Court a
David R. Schanker                                                                                   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.
Cir. Ct. No.   2008TR19377
Appeal No.                                                                                          2009AP1840
2008TR19378
STATE OF WISCONSIN                                                                                  IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
MARK E. REINWALL,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Dane County:
JOHN W. MARKSON, Judge.   Affirmed.
¶1                                                                                                  VERGERONT,  J.1    Mark  Reinwall  appeals  the  judgment  of
conviction for operating a motor vehicle while intoxicated (OWI) and operating
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) & (3) (2007-
08).  All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.




No.   2009AP1840
with a prohibited alcohol concentration (PAC) of .10 or more, in violation of WIS.
STAT.  § 346.63(1)(a)  and  (b)                                                       (2007-08),  first  offense.    He  contends  that  his
detention by the arresting officer was not supported by reasonable suspicion or by
the community caretaker exception and, therefore, the circuit court should have
granted his motion to suppress evidence.   For the reasons we explain below, we
conclude that the circuit court properly denied the motion based on the community
caretaker exception.   We therefore affirm.
BACKGROUND
¶2                                                                                    Reinwall was arrested by Wisconsin State Patrol Trooper Andrew
Martin for OWI and PAC at approximately 8 p.m. on August 23, 2008. At the
hearing on Reinwall’s motion to suppress evidence, troopers Mark Samborski and
Martin testified to the circumstances of the traffic stop as follows.
¶3                                                                                    At approximately 7:30 p.m. on that date, Trooper Samborski stopped
motorcyclist Daniel Lennon on Interstate  39/90/94 for speeding.    The trooper
subsequently arrested Lennon for OWI.   The trooper and Lennon were on the left-
hand shoulder of the interstate.    During the stop, a second motorcyclist, later
identified as Reinwall, drove by at a reasonable speed and stopped a short distance
ahead on the right-hand shoulder of the interstate.   Trooper Martin and another
trooper arrived on the scene shortly thereafter.
¶4                                                                                    After placing Lennon in custody, Trooper Samborski asked Trooper
Martin to speak to Reinwall in order to confirm that the two motorcyclists were
traveling together and, if Reinwall had not been drinking, to ask Reinwall if he
would be willing to remove Lennon’s motorcycle and sign a responsible party
agreement so Lennon would not have to spend the night in jail.
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No.   2009AP1840
¶5                                                                                      Trooper Martin turned on his emergency lights and crossed from the
left shoulder of the interstate to the right shoulder, where he pulled over behind
Reinwall, who was standing next to his motorcycle talking on a cell phone.   At
nearly  8  p.m on an  August evening,  it was still light out, and traffic on the
interstate was moderate.   Reinwall did not have his motorcycle’s hazard or other
lights  on.    Trooper  Martin  first  asked  Reinwall  if  he  was  okay  or  needed
assistance.   Reinwall replied that he did not need help and that he had stopped to
wait for Lennon, who was his friend.    During this exchange, Trooper Martin
detected a strong odor of  intoxicants and observed that Reinwall had  “glassy
bloodshot  eyes”  and  that  his  speech  was  slurred.     Trooper  Martin  then
administered field sobriety tests and subsequently arrested Reinwall.
¶6                                                                                      The circuit court denied Reinwall’s motion to suppress evidence.
The  court  assumed  without  deciding  that  a  “seizure”  occurred  when  Trooper
Martin pulled his vehicle behind Reinwall with his emergency lights activated, and
the court concluded that the seizure was justified under the community caretaker
exception.
DISCUSSION
¶7                                                                                      On appeal Reinwall renews his contention that his detention was
unconstitutional because it was not based on reasonable suspicion and did not
come  within  the  community  caretaker  exception.    Because  we  conclude  the
community caretaker exception applies, we do not address the parties’ dispute
over whether there was reasonable suspicion.   When we review a decision on a
motion to suppress evidence we uphold the circuit court’s findings of fact unless
they  are  clearly  erroneous,  and  we  review  de  novo  the  application  of  the
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No.   2009AP1840
constitutional principles to those facts.   State v. Kramer, 2008 WI App 62, ¶8, 311
Wis. 2d 468, 750 N.W.2d 941.
¶8                                                                                         As  did  the  circuit  court,  we  assume  without  deciding  that,  as
Reinwall  argues,  a  seizure  occurred  when  Trooper  Martin  stopped  behind
Reinwall  with  his  emergency lights  activated.    Police  may conduct  a  seizure
within  the  meaning  of  the  Fourth  Amendment  without  probable  cause  or
reasonable suspicion, “provided that the seizure based on the community caretaker
function is reasonable.”   State v. Truax, 2009 WI App 60, ¶9, 318 Wis. 2d 113,
767 N.W.2d 369.   A seizure is justified by the community caretaker exception if
two requirements are met:   (1) the police activity must be a “bona fide community
caretaker  activity,”  and                                                                 (2)  the  public  need  and  interest  must  outweigh  the
intrusion upon the privacy of the individual.   State v. Kramer, 2009 WI 14, ¶21,
315 Wis. 2d 414, 759 N.W.2d 598 (citing State v. Anderson, 142 Wis. 2d 162,
169, 417 N.W.2d 411 (Ct. App. 1987)).
¶9                                                                                         With  respect  to  the  first  requirement,  a  bona  fide  community
caretaker activity must be “totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute.”   Kramer,
315  Wis.  2d  414,  ¶23  (citations  omitted).    However,  the                           “totally  divorced”
language does not mean that a police officer cannot also have subjective law
enforcement concerns at the time he or she is engaged in a valid community
caretaker function.   Id., ¶30.   For example, in Kramer, the officer testified that his
reason for approaching a vehicle parked at the roadside with its hazard lights
flashing was to offer assistance, but as he approached the vehicle, “[i]t was in [his]
mind” that a crime might be happening.   Id., ¶¶5-6.   The Kramer court concluded
that a community caretaker function is bona fide when under the totality of the
circumstances  an  objectively  reasonable  basis  for  the  community  caretaker
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No.   2009AP1840
function  is  shown,  and                                                                   “that  determination  is  not  negated  by  the  officer’s
subjective law enforcement concerns.”   Id., ¶¶30-32.
¶10    With respect to the second requirement, we determine whether an
officer’s exercise of a bona fide community caretaker function was reasonable by
“balancing a 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
citizen.”   Id., ¶ 40.   In balancing these interests, we consider the following 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.
Id., ¶41 (quoting State v. Kelsey C.R., 2001 WI 54, ¶36, 243 Wis. 2d 422, 626
N.W.2d 777).
¶11    Turning to the first requirement of a bona fide community caretaker
activity, we conclude that the facts as found by the circuit court meet this objective
standard.   It was nearly 8 p.m. on a summer evening, and while there was still
daylight, the court found that under the circumstances, it was clearly unusual for a
motorcyclist  to  be  stopped  on  the  shoulder  of  a  moderately  busy  interstate
highway with no lights activated and talking on a cell phone.
¶12    Reinwall argues that Trooper Martin was not engaged in a bona fide
community caretaker activity because of the trooper’s testimony that, in addition
to wanting to check to see if Reinwall was in need of assistance, he wanted to
check to see if Reinwall could remove Lennon’s motorcycle, and if Reinwall did
not need assistance, he wanted to inform Reinwall that it was illegal to park on the
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No.   2009AP1840
shoulder of an interstate highway absent an emergency.    Reinwall asserts that
these two additional reasons are law enforcement functions.
¶13    This argument ignores the supreme court’s holding in Kramer that
an  “officer may have law enforcement concerns, even when the officer has an
objectively  reasonable  basis  for  performing  a  community  caretaker  function.”
Kramer, 315 Wis. 2d 414, ¶32.   Describing the multifaceted nature of police work,
the Kramer court explained that “which function is primary may shift during the
course of the officer’s interaction with members of the public.” Id., ¶39.   In the
present case, Trooper Martin testified on cross-examination that “[i]t’s my job to
check on people that are stopped to see if they are in any sort of a need.”   While it
is true that, if Reinwall was not impaired and was Lennon’s friend, Trooper Martin
intended to ask if Reinwall could serve as a responsible party for Lennon, that
does not negate the objectively reasonable basis for concern that Reinwall might
need assistance.
¶14    Trooper Martin’s subjective view that it was illegal to park on the
shoulder of the interstate unless there was an emergency also does not negate the
objectively reasonable basis for asking if Reinwall needed assistance.   Whether or
not the trooper’s view of the law was correct, an issue we need not decide,2 it was
objectively reasonable for Trooper Martin to view as unusual a person stopped on
the  shoulder  of  the  highway  as  Reinwall  was.    Under  the  totality  of  these
circumstances,  we  conclude  that  Trooper  Martin  was  acting  as  a  bona  fide
community caretaker.
2  The parties dispute whether it is illegal to park a vehicle on the shoulder of an interstate
highway when there is not an emergency.
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No.   2009AP1840
¶15    Turning to the balancing requirement, we conclude that this is also
met.    First, the public has a  “substantial interest in ensuring that police assist
motorists who may be stranded on the side of a highway,” especially after dark
and in less urban areas.   Id., ¶42.   Reinwall argues that he was stopped less than a
mile from the East Towne area of Madison, and thus assistance may have been
available nearby.   He further argues that, since he was talking on a cell phone, he
could have called for assistance had he needed it.   However, Trooper Martin could
not have  known  what  Reinwall’s situation  actually was and we  have  already
decided that it was objectively reasonable for him to view what he observed as
unusual.
¶16    The second reasonableness factor also favors the application of the
community caretaker exception.   It was nearly 8 p.m. in the evening, and while
there was still daylight, it would be getting dark soon.   Reinwall was standing on
the shoulder of the interstate, and there is no evidence that he could have safely
walked from where he was to a business district about a mile away.   Trooper
Martin, in asking Reinwall if he was okay, was showing at most a minimal degree
of overt authority: activation of his emergency lights.   While that might be viewed
as a show of authority, it was also a safety precaution.   Trooper Martin testified
that he activated his lights to “warn other traffic around [him] that there’s someone
that’s stopped on the shoulder of the road.”   Both Troopers Samborski and Martin
testified that they are required to activate their emergency lights for safety anytime
they stop on the interstate.   We conclude Trooper Martin’s manner of performing
his community caretaker function was reasonable.
¶17    The third reasonableness factor considers “whether the involvement
of an automobile has an effect on whether the community caretaker function was
reasonably performed.”   Kramer, 315 Wis. 2d 414, ¶44.   In this case, Reinwall
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No.   2009AP1840
was standing next to his motorcycle.    As we have explained in discussing the
second factor, the trooper’s approach to determine if Reinwall needed assistance in
these circumstances was reasonable.
¶18    Finally, we consider the availability of alternatives to the type of
intrusion that actually occurred.   Reinwall argues that Trooper Martin did not need
to activate his emergency lights and could have used his hazard lights or activated
only his rear-facing emergency lights instead.   Trooper Martin testified that using
his hazard lights was not an available option, but he did acknowledge that he could
have used only his rear-facing emergency lights.   However, we conclude that it
was reasonable for Trooper Martin to activate both front and back emergency
lights as he crossed three lanes of speeding traffic from the left median to the right
shoulder because, as he stated, “[i]t’s a warning to oncoming vehicles that there’s
an emergency vehicle moving in the roadway.”
¶19    Weighing these factors, we conclude that the public’s substantial
interest in ensuring that police assist motorists, including motorcyclists, who may
be  stranded  on  the  side  of  a  highway  outweighs  the  limited  intrusion  into
Reinwall’s privacy.
CONCLUSION
¶20    In summary, Trooper Martin’s conduct fell within the scope of the
community  caretaker  exception  to  the  Fourth  Amendment’s  guarantee  against
unreasonable searches and seizures.    Accordingly, we  affirm the  judgment of
conviction.
By the Court.—Judgment affirmed.
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No.   2009AP1840
                   This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)          (b)4.
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