State v. Wiskowski, 2024 WL 3034325 (Wisc. 2024)
How can anyone sleep through the noise and smells at a McDonald’s drive-through window? Michael Wiskowski did … at least, until a worker woke him. The worker also called the Plymouth (Wisconsin) Police Department.
Just a minute after the call, an officer saw a truck matching the description provided by the McDonald’s worker pull out of the drive-through and make a lawful turn. The officer then pulled Wiskowski over. Wiskowski said he was tired because he had just finished a 24-hour shift. The officer did not see any signs of impairment, but he “felt something was off.” Wiskowski initially gave the officer an insurance card for the wrong car before handing him the correct one around 20 seconds later, but that was the extent of any suspicious behavior.
A second, more experienced officer arrived and asked what basis might exist for asking Wiskowski to get out of his truck. The two checked Wiskowski’s driving history and found three prior impaired driving charges. The first officer approached Wiskowski and asked him to step out. Only then did the officer smell the odor of alcohol. The officer took Wiskowski to the station to perform sobriety tests and subsequently arrested him.
Wiskowski challenged the legality of the stop. The trial judge, affirmed by the intermediate appellate court, concluded that the stop was a proper community caretaking stop. Wiskowski appealed to the state Supreme Court. As the first step, the court held the stop could not have been based upon reasonable suspicion. The officer did not observe any traffic violations or cues that Wiskowski might be driving impaired. “It is true that falling asleep in a drive-thru during the day could be a sign someone is impaired…. But by itself, without any additional indicators of impairment, we conclude this is too speculative to amount to reasonable suspicion.” As the court added: “Reasonable suspicion may be a low bar, but it’s not that low.”
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But that was just the first step. The court applied a three-step analysis to assess the validity of the community caretaking stop. First, the court considered whether Wiskowski was seized for Fourth Amendment purposes. Second, it questioned whether the officer was engaging in a bona fide community caretaking function. Third, in balancing the “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,” was the stop reasonable? These questions must all be asked considering the “general Fourth Amendment principle that ‘any warrantless intrusion must be as limited as is reasonably possible consistent with the purpose justifying it in the first instance.’”
The court found for Wiskowski, saying the seizure violated his rights under the Fourth Amendment.
Wiskowski may be an experienced drunk. With three prior convictions for drunk driving, he may have gained some skills in avoiding detection. In this case, though, the lack of suspicious behavior or objective signs of impairment meant that the officer’s community caretaking mission should have ended when Wiskowski explained why he dozed off. For the sake of the community and its members, one hopes that Wiskowski will either refrain from drinking and driving or be caught another day.
