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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
January 18, 1996
A party may file with the Supreme Court                                            This opinion is subject to further editing.
a petition to review an adverse decision                                           If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                         appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                Official Reports.
No.   95-1983-CR
STATE OF WISCONSIN                                                                 IN COURT OF APPEALS
                                                                                   DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
OWEN JOHNSON,
Defendant-Appellant.
APPEAL  from  a  judgment  of  the  circuit  court  for  Dane
County:  RICHARD J. CALLAWAY, Judge.  Affirmed.
DYKMAN, J.    This is a single-judge appeal decided pursuant to
§ 752.31(2)(c), STATS.  Owen Johnson appeals from a judgment convicting him of
operating a motor vehicle while under the influence of an intoxicant (OMVWI),
contrary to  § 346.63(1)(a), STATS.    He raises a Fourth Amendment issue by
asserting that a police officer illegally searched his truck and found evidence
that he was driving while intoxicated.   We conclude that the officer was acting
in a community caretaker function and, therefore, the search and seizure of
evidence did not violate the Fourth Amendment.  We, therefore, affirm.




No.                                                                                       95-1983-CR
BACKGROUND
On October 27, 1993, at about 12:40 a.m., Dane County Deputy
Sheriff Todd L. Huppert received a report that an occupied vehicle was parked
at the side of a road in the Town of Middleton.   Deputy Huppert went to the
location and saw a man who appeared to be sleeping in a truck.    Deputy
Huppert attempted to contact the man to check on his welfare, thinking there
could have been an accident, that he could be ill, that he might be sleeping, or
that he might be intoxicated.   He knocked on the window and the man did not
respond.  He then opened the door and noticed a strong odor of intoxicants.  He
spoke to the man and received no response.  He shook the man for about five to
ten minutes, finally arousing him.
After awakening the man, Deputy Huppert asked him to step out
of the truck.  The man did so, and identified himself as Owen Johnson.  Johnson
was eventually charged with OMVWI.  After a suppression hearing, he pleaded
no contest to OMVWI.  Johnson appeals.
DISCUSSION
Johnson asserts that the search of his truck violated the Fourth
Amendment because it was conducted without probable cause.   He notes that
sleeping in a motor vehicle is not a crime, and that this is all Deputy Huppert
knew before the search began.
But there is an exception to the warrant requirement of the Fourth
Amendment which we recognized in State v. Anderson, 142 Wis.2d 162, 417
N.W.2d 411 (Ct. App. 1987), which is applicable to this case.1   The exception is
called the "community caretaker" exception and it was described in Cady v.
Dombrowski, 413 U.S. 433, 441 (1973).   In Cady, the Supreme Court noted that
state police officers have functions which are unrelated to detecting crime.   The
Court said:
1  Wisconsin also recognizes an "emergency" exception to the warrant requirement.   See
State v. Dunn, 158 Wis.2d 138, 144, 462 N.W.2d 538, 540 (Ct. App. 1990).
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No.                                                                                      95-1983-CR
Local police officers, unlike federal officers, frequently investigate
vehicle  accidents  in  which  there  is  no  claim  of
criminal liability and engage in what, for want of a
better  term,  may  be  described  as  community
caretaking  functions,  totally  divorced  from  the
detection,  investigation, or acquisition of evidence
relating to the violation of a criminal statute.
Id.
In Anderson, we set out the following test for determining whether
the community caretaker exception to the Fourth Amendment is applicable:
when a community caretaker function is asserted as justification
for  the  seizure  of  a  person,  the  trial  court  must
determine:                                                                               (1) that a seizure within the meaning of
the  fourth  amendment  has  occurred;                                                   (2) if  so,
whether   the   police   conduct   was   bona   fide
community caretaker activity; and (3) if so, whether
the public need and interest outweigh the intrusion
upon the privacy of the individual.
Anderson, 142 Wis.2d at 169, 417 N.W.2d at 414.
Assuming  that  a  Fourth  Amendment  seizure  occurred  when
Deputy Huppert opened the door and began shaking Johnson,2 the facts lead to
only one conclusion:   Deputy Huppert's conduct was bona fide community
caretaker activity.    But Johnson points to Deputy Huppert's testimony that
when he observed what appeared to be a sleeping man, one of the things he
considered was the possibility that the man might be an intoxicated driver.   He
argues:   "Police cannot, however, justify actions upon a community caretaker
basis when their motivations are, even in part, investigatory."
2  The parties do not argue, and we do not consider, whether opening the truck's door
constituted a valid stop under § 968.24, STATS., and Terry v. Ohio, 392 U.S. 1 (1968).
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No.                                                                                    95-1983-CR
Johnson's view of the community caretaker exception is overly
broad.   Reasonableness is the foundation of Fourth Amendment questions.   If
the  mere  possibility  of  criminal  liability  defeats  the  community  caretaker
exception, that exception will be narrowed to the point of being non-existent.
Whenever a police officer approaches an accident or an ambiguous situation,
there will be a possibility, however small, that evidence of a crime will surface.
Police officers are trained to detect crime, and cannot help but be attentive to
evidence of crime.   It is not reasonable to interpret the community caretaker
exception as does Johnson.
The third factor, whether the public need and interest outweigh
the intrusion upon the privacy of the individual, has four elements.  Those are:
(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. at 169-70, 417 N.W.2d at 414 (footnotes omitted).  In State v. Ellenbecker, 159
Wis.2d 91, 96, 464 N.W.2d 427, 429 (Ct. App. 1990), we said:
In  a  community  caretaker  case,  reasonableness  is
determined by balancing the public need and interest
furthered by the police conduct against the degree of
and nature of the intrusion upon the privacy of the
citizen.
This balance is heavily weighted in favor of permitting inquiries of
the sort done by Deputy Huppert.  The public has a strong interest in protecting
persons who become ill or are injured while in their automobiles.   That interest
can only be satisfied if police officers may investigate circumstances which
might lead to the discovery of an injured or ill motorist.  The risk to the motorist
is slight.   The inconvenience of a knock on the window and further inquiry, if
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No.                                                                                95-1983-CR
that produces no response, is far outweighed by the benefit to those motorists
who become ill or injured while in their automobiles and need help.
From the evidence produced at Johnson's suppression hearing, it
is  apparent  that  Deputy  Huppert  was  engaged  in  bona  fide  community
caretaker activity.    He did not know what to expect when he approached
Johnson's truck.   His actions were totally divorced from gathering evidence to
support a criminal conviction because he was not specifically conducting an
investigation.    Even though he considered the fact that the driver could be
intoxicated, that consideration was nonspecific.  He had no idea until he opened
the door that intoxication was anything more than one of the possibilities which
might explain a sleeping or comatose occupant of a parked truck.   We conclude
that Deputy Huppert's actions which led to Johnson's arrest and conviction did
not violate the Fourth Amendment.  We, therefore, affirm.
By the Court.—Judgment affirmed.
                                                                                   Not recommended for publication in the official reports.   See RULE
809.23 (1)                                                                         (b)4, STATS.
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