June 24, 2024 – A police officer who saw no signs of drowsiness or intoxication in a driver he stopped was not justified in extending the traffic stop and ordering the driver out of the car, the Wisconsin Supreme Court has ruled (6-1) in State v. Wiskowski, 2024 WI 23 (June 18, 2024).

Justice Brian Hagedorn wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Grassl Bradley, Justice Rebecca Dallet, Justice Jill Karofsky, and Justice Janet Protasiewicz. Chief Justice Annette Ziegler dissented.

Hagedorn wrote a concurrence, which R. Bradley joined with respect to ¶¶39-75 and Protasiewicz joined with respect to ¶¶72 and 74-75. Justice Protasiewicz wrote a concurrence, which A. Bradley joined.

Asleep in the Drive-Through

One day in the fall of 2019, at about 1 p.m., Michael Wiskowski fell asleep in his truck while parked in the drive-through of the McDonalds in Plymouth.

A restaurant employee saw Wiskowski in his truck and called the Plymouth Police Department.

Officer Devin Simon responded. He watched as Wiskowski, who’d woken up, pulled out of the drive-through and made a legal left turn onto a city street.

Simon wheeled his cruiser around and followed Wiskowski for a short distance. Wiskowski drove normally and committed no traffic violations.

Traffic Stop

Simon pulled Wiskowski over anyway. Simon walked up to Wiskowski’s truck, asked for his drivers’ license and insurance information, and asked him about falling asleep in the drive-through.

Wiskowski said he was tired after working for 24 hours straight.

Simon didn’t notice any signs that Wiskowski was sleepy. Wiskowski’s speech was normal, and Simon didn’t smell alcohol emanating from Wiskowski.

The only thing out of the ordinary was that Wiskowski gave Simon two insurance cards, one after the other. The first covered a different vehicle.

Fails Sobriety Tests

Simon went back to his squad car, where he conferred with a second officer who’d arrived on the scene.

The second officer told Simon to look up Wiskowski’s record. The search revealed that Wiskowski had three prior operating-while-intoxicated (OWI) convictions.

Simon walked back to the truck and ordered Wiskowski to get out. As Wiskowski stepped out of the truck, Simon smelled alcohol on him.

Simon took Wiskowski back to the police station.

At the station, Wiskowski failed a series of field sobriety tests and Simon arrested him.

Motion to Suppress Denied

The Sheboygan County District Attorney prosecuted Wiskowski for OWI (fourth offense) and operating with a prohibited alcohol concentration (fourth offense).

Wiskowksi moved to suppress the evidence resulting from the traffic stop.

The Sheboygan Circuit Court denied the motion, on the grounds that Simon’s stop was a permissible exercise of the police department’s community caretaking function. Wiskowski then pled guilty to OWI (fourth offense).

Wiskowski appealed, arguing that the circuit had erred by denying his motion to suppress. The Wisconsin Court of Appeals affirmed and Wiskowski appealed to the Wisconsin Supreme Court.

No Reasonable Suspicion

On appeal, the State argued that Simon’s stop of Wiskowski was permissible under the Fourth Amendment because it was an investigatory stop supported by reasonable suspicion.

But Justice Hagedorn reasoned that although Wiskowski’s nap in the drive-through could indicate he was impaired, it didn’t amount to reasonable suspicion.

“Mid-day drowsiness standing alone, without any other indicators of impairment, is simply not enough,” Hagedorn wrote. “Reasonable suspicion may be a low bar, but it’s not that low.”

No Justification Beyond Community Caretaking

The State also argued that Simon’s stop of Wiskowski was a valid exercise of the police department’s community caretaker function.

Hagedorn explained that the general rule is that a seizure made for community caretaking purposes should not be extended beyond the bounds of the justification for the seizure, unless the police develop an additional justification – for instance, reasonable suspicion.

Applying that rule, Justice Hagedorn concluded that even if Simon’s initial stop was justified by the community caretaker function, his extension of the stop was unreasonable.

Hagedorn pointed out that: 1) Wiskowski didn’t act tired during the first part of the stop; and 2) Simon saw no signs that Wiskowski was experiencing a medical emergency.

“Officer Simon had no community care-taking justification to prolong the stop,” Justice Hagedorn wrote.

Dissent: Mistake to Grant Petition

Chief Justice Annette Ziegler argued in her dissent that, under the totality of the circumstances, Officer Simon’s conduct in stopping Wiskowski and extending the stop was reasonable.

Ziegler also argued that the Supreme Court should not have granted Wiskowski’s petition for review, because in deciding his case the Supreme Court had merely applied and re-stated the settled law regarding the community caretaking exception to the Fourth Amendment’s warrant requirement.

“We are not an error-correcting court,” Chief Justice Ziegler wrote. “We are a law-developing court … The majority opinion does not engage in law development.”

Hagedorn Concurrence

Justice Hagedorn wrote in his concurrence that the State erred by suggesting that Wis. Stat. section (Rule) 809.62(3m)(b)1. allowed it to raise the reasonable suspicion argument before the Supreme Court even though it hadn’t raised the issue in the circuit court.

Under that rule, a party is not required to file a cross-petition “to defend the court of appeals’ ultimate result or outcome based on any ground, whether or not that ground was ruled upon by the lower courts, as long as the supreme court’s acceptance of that ground would not change the result or outcome below.”

Hagedorn noted that the State hadn’t argued reasonable suspicion in the trial court and didn’t respond to Wiskowski’s lack-of-reasonable suspicion argument in the Court of Appeals because the circuit court had based its decision solely on the community caretaker exception.

Justice Hagedorn noted that Wiskowski again made the lack-of-reasonable suspicion argument in his petition to the Supreme Court, and the State then – for the first time – argued reasonable suspicion.

Hagedorn explained that the State apparently interpreted Rule 809.62(3m)(b)1. to allow it to argue reasonable suspicion before the Supreme Court, even though it hadn’t raised that issue below, because deciding the case on that argument wouldn’t change the Court of Appeals’ decision.

But Justice Hagedorn argued that such an interpretation of the rule would override the common law rule of forfeiture.

“Rule 809.62(3m)(b)1. should not be understood as altering the regular rules regarding forfeiture,” Hagedorn wrote. “Rather, it permits parties to argue previously raised or preserved arguments that were not addressed by the circuit court without needing to file a petition for cross-review,” Hagedorn wrote.

Protasiewicz Concurrence

Justice Protasiewicz agreed with Justice Hagedorn that the State’s reliance on Rule 809.62(3m)(b)1. was misplaced, but for a different reason.

Protasiewicz concluded that the State should have relied on Rule 809.62(3)(d) in raising the reasonable suspicion argument before the Supreme Court, because Rule 809.62(3m) governed petitions for cross-review and the State had prevailed in the Court of Appeals.