Minett, Toussaint v. Overwachter, Bradley

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

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TOUSSAINT MINETT, SR.,

OPINION AND ORDER

Plaintiff,

18-cv-743-bbc

v.

BRADLEY OVERWACHTER,

Defendant.

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Plaintiff Toussaint Minett, Sr., who initially filed a pro se complaint but is now

represented by counsel, is proceeding on a claim that defendant Bradley Overwachter

wrongly arrested him for operating a vehicle while intoxicated, in violation of his rights

under the Fourth Amendment. Before the court is defendant’s motion for summary

judgment in which he maintains that he is entitled to qualified immunity with respect to

plaintiff’s claim. Dkt. #17. Because I conclude that defendant is entitled to qualified

immunity, I am granting the motion.

PRELIMINARY EVIDENTIARY MATTER

Plaintiff objects to defendant’s proposed findings of fact nos. 22 to 23 and 25-29 on

the ground that they are based on hearsay contained in the police report of the incident in

question. Specifically, plaintiff objects to statements made by two other police officers who

reported to the scene with defendant and authored supplements to the police report.

However, a police report is admissible under the business records exception to the hearsay

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rule if: (1) “the record was made at or near the time by—or from information transmitted

by—someone with knowledge”; (2) “the record was kept in the ordinary course of a regularly

conducted activity of a business, organization, occupation, or calling”; (3) “making the

record was a regular practice of that activity”; (4) “all these conditions are shown by the

testimony of a custodian or another qualified witness”; and (5) “the opponent does not show

that the source of the information or the method or circumstances of preparation indicate

a lack of trustworthiness.” Fed. R. Evid. 803(6). Similarly, public records are admissible to

the extent that they set out “a matter observed while under a legal duty to report, but not

including, in a criminal case, a matter observed by law-enforcement personnel,” as long as

there is no reason to doubt the trustworthiness of the record. Fed. R. Evid. 803(8)(A)(ii)

and (B). See also Jordan v. Binns, 712 F.3d 1123, 1133 (7th Cir. 2013) (police reports

generally excluded as hearsay except to extent that they incorporate firsthand observations of

officer). After reviewing the report and defendant’s affidavit submitted in conjunction with

it, I am satisfied that these conditions are satisfied, and plaintiff has not argued otherwise.

Therefore, the officers’ observations and statements contained in the police report are

admissible.

Second, plaintiff contends that third-party witness statements summarized in the

police report are inadmissible hearsay (or hearsay within hearsay). Jordan, 712 F.3d at 1133

(“[T]hird-party statements contained in a police report do not become admissible for their

truth by virtue of their presence in a public record and instead must have an independent

basis for admissibility”). However, plaintiff fails to explain how the third-party witness

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statements are being offered as proof of the truth of the matter asserted. Fed. R. Evid.

801(c)(2) (“‘Hearsay’ means a statement that . . . a party offers in evidence to prove the

truth of the matter asserted in the statement.”). See also Torry v. City of Chicago, 932 F.3d

579, 585 (7th Cir. 2019) (failure to develop hearsay argument is enough to dispense with

it); Mathews v. REV Recreation Group, Inc., 931 F.3d 619, 623 n.2 (7th Cir. 2019). The

witness statements summarized in the police report have been offered to show what

information had been provided to defendant and the effect that this information had on

him. Torry, 932 F.3d at 585 (statements introduced to show effect on listener, rather than

truth of matter asserted, are not hearsay) (citing 4 Christopher B. Mueller & Laird C.

Kirkpatrick, Federal Evidence § 8:20 (4th ed. 2013)); Woods v. City of Chicago, 234 F.3d

979, 986-87 (7th Cir. 2000) (statement in police report not hearsay if offered “to show the

effect that the statements had on the officers” who heard it). For example, statements by

plaintiff’s supervisor that plaintiff had not returned to work after a break and that a cleaning

crew member had seen plaintiff driving a short time earlier were not offered to prove that

plaintiff had been driving while intoxicated but rather to show how a reasonable officer

might have reacted to that information. Torry, 932 F.3d at 585 (suspect descriptions

contained in police report offered to show that competent officer aware of that information

could conclude that there was reasonable suspicion to stop Torry and his passengers);

Woods, 234 F.3d at 987 (Fourth Amendment analysis does not turn on whether witness tip

turns out to be true). Accordingly, plaintiff’s hearsay objections with respect to the third-

party witness statements are denied.

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From the parties’ proposed findings of fact and evidence in the record, I find the

following facts to be material and undisputed unless otherwise noted.

UNDISPUTED FACTS

Plaintiff Toussaint Minett was employed by the Wisconsin Department of

Administration as a senior power plant engineer in July 2016. At that time, he was on light

duty because of an injury and he was performing maintenance at the state capitol building.

Defendant Bradley Duerwachter worked as a police officer for the Wisconsin Division of

Capitol Police from November 2, 2015 until March 25, 2017. He then took a position with

the Oconomowoc Police Department, where he is currently employed.

A little after 10:00 p.m. on July 14, 2016, defendant was patrolling downtown

Madison in his squad car when he noticed a red sports utility vehicle parked in the Martin

Luther King, Jr. Boulevard driveway of the capitol building. Defendant heard loud music

coming from the vehicle, so he parked his squad in the driveway behind the vehicle so he

could investigate. (Defendant says that the music could be heard from a block away.

Plaintiff admits that he was playing music but he says that the music could not be heard

from a block away.) At that time, plaintiff was sitting on a park bench with three other

members of the cleaning staff. Defendant exited his squad and asked plaintiff to turn down

the radio. According to the police report, defendant made contact with plaintiff at

approximately 10:06 p.m., and Officer Bryn Callen reported to the scene on foot at 10:08

p.m. (The parties dispute who encountered the other first. Defendant says that plaintiff

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approached him and said that the vehicle was his. Plaintiff says that defendant was the one

who approached him and asked for the music to be turned down.) The sports utility vehicle

is not registered to plaintiff and belongs to his son.

Plaintiff turned the radio off by grabbing the keys from the ignition. The engine was

off at the time. He then dropped the keys and stated that he was only having a “good time.”

Defendant smelled the odor of intoxicants when he was talking with plaintiff and observed

that plaintiff had slurred speech, was having trouble keeping his balance and had a hard time

sitting still. Based on his training and experience dealing with intoxicated people around the

capitol building, defendant believed that plaintiff was intoxicated. (Plaintiff says that he did

not “feel” intoxicated but he does not otherwise contradict defendant’s observations of his

behavior and actions.) Defendant ordered plaintiff to sit on the ground, not move and

produce identification. (Although defendant does not dispute this fact, he says that he

ordered plaintiff to sit on the bench where he observed plaintiff swaying.) Plaintiff was not

free to go at that point.

Defendant took plaintiff’s identification to the squad car to check plaintiff’s driving

record and criminal history. He learned that plaintiff had a revoked driving status and an

open case with a no-driving condition. After about 10 minutes, defendant walked back to

plaintiff, told him to stand up and asked him whether he had been drinking. Plaintiff told

defendant that he had drunk a couple of beers. Defendant observed that plaintiff was

wearing a shirt that he recognized as a shirt worn by the capitol building cleaning crew and

asked plaintiff whether he had been driving. Plaintiff said no, but it did not appear to

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defendant that there was anyone else in the vicinity who could have driven the vehicle.

(Although plaintiff said he had been sitting with three other men when defendant arrived,

he does not explain their whereabouts or otherwise dispute defendant’s observation.)

Because defendant was concerned that plaintiff may try to drive home, he asked plaintiff if

there was someone he could call to pick him up. Plaintiff gave defendant his wife’s number,

and defendant called her to come pick up plaintiff. Defendant’s questioning of plaintiff

lasted seven or eight minutes. Defendant did not return plaintiff’s identification.

At this point, defendant did not believe that a crime had been committed, but he was

concerned because plaintiff seemed “highly intoxicated.” Therefore, he ordered plaintiff to

take a preliminary breath test to determine whether plaintiff needed medical attention.

Officer Callan performed the test. Plaintiff’s blood alcohol content was .146 percent, which

is well above the legal limit to drive but not high enough to require defendant to bring

plaintiff to a detoxification center for medical care. At some point after the preliminary

breath test, while defendant was talking with plaintiff, Officer Callen spoke with a witness

who claimed to have seen plaintiff driving recklessly earlier that evening.

(Plaintiff says that after the test, the officers handcuffed him and sat him on the

ground for about 30 minutes while defendant canvassed the capitol grounds. However,

defendant has produced video footage that clearly shows that this did not happen. The

United States Supreme Court has held that in cases in which video evidence contradicts a

plaintiff’s version of events, the court should not accept the plaintiff’s story for purposes of

summary judgment. Scott v. Harris, 550 U.S. 372, 378-80 (2007); Gillis v. Pollard, 554

Fed. Appx. 502, 506 (7th Cir. 2014). A review of the video shows that plaintiff was not

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handcuffed or placed on the ground after the preliminary breath tests. Dkt. #20, exh. #102

at 45:25 to 52:40. Rather, he was handcuffed about 15 minutes later, after stumbling during

a field sobriety test. Id. at 1:15:58.)

At approximately 10:30 p.m., Sergeant Andrew Hyatt responded to the scene and

observed that plaintiff appeared to be very intoxicated with slurred speech, bloodshot and

glassy eyes and difficulty keeping his balance. Hyatt asked plaintiff if he was taking

medications, and plaintiff said that he was taking a muscle relaxant. Plaintiff retrieved the

pill bottle from the car, and while he was doing so, Hyatt saw a bottle of vodka in the center

console. (Hyatt says that the bottle was open, but plaintiff says that it was sealed.)

While Hyatt was talking to plaintiff, a witness by the name of Sue flagged down

defendant and told him that she was plaintiff’s supervisor. Sue told defendant that plaintiff

had failed to return to work from a break and that she suspected that plaintiff had been

drinking at work the night before. Sue also told defendant that another witness in the

capitol building claimed to have seen plaintiff driving a short time earlier. Based on this

information, defendant’s dispatch officer was able to find video footage of the vehicle

arriving at approximately 9:30 p.m. The driver in the video matched plaintiff’s description.

At approximately 10:40 p.m., defendant began administering standardized field

sobriety testing, during which plaintiff exhibited several signs of intoxication, including

losing his balance to the point where officers had to catch him. By 10:46 p.m., defendant

had placed plaintiff under arrest for suspicion of driving while intoxicated and driving with

a revoked license. One of the officers handcuffed plaintiff and sat him on the ground. After

about 10 to 15 minutes, plaintiff was put into a squad car.

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Plaintiff was charged with operating a motor vehicle while intoxicated (sixth offense)

in Dane County case no. 16-CF-1672. Plaintiff’s attorney filed a motion to suppress,

challenging the administration of the preliminary breath test. The state circuit court granted

the motion, agreeing that the test was invalid and that all evidence obtained afterwards had

to be suppressed as “fruit of the poisonous tree.”

OPINION

Plaintiff was granted leave to proceed on a Fourth Amendment claim that defendant

arrested him without probable cause. In his motion for summary judgment, defendant

contends that he is entitled to qualified immunity with respect to that claim because he had

arguable probable cause to arrest plaintiff. Anticipating that plaintiff may seek to challenge

the preliminary breath test on similar grounds, defendant argues that he is entitled to

qualified immunity with respect to that detention because he had arguable probable cause

to believe that plaintiff had been or was about to operate a vehicle while under the influence

of alcohol. He also argues that he was acting within the scope of the “community caretaker

exception” in ordering plaintiff to take the preliminary breath test.

In response, plaintiff raises three arguments: (1) defendant conducted an illegal

investigatory stop without reasonable suspicion when he took plaintiff’s driver’s license for

a warrant check; (2) the duration and nature of plaintiff’s subsequent detention up to the

time of the formal arrest amounted to a de facto arrest without probable cause; and (3)

defendant’s reliance on the community caretaker exception for the preliminary breath test

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is pretext for unconstitutional conduct. Although defendant argues that plaintiff is asserting

“new claims” related to the investigatory detention and preliminary breath test, I find that

they may be considered because they are sufficiently related to the false arrest claim on

which plaintiff was allowed to proceed. Plaintiff includes several allegations in his complaint

related to the warrant check and preliminary breath test that are sufficient to put defendant

on notice that plaintiff objected to his pre-arrest detention as well as his subsequent arrest.

However, because plaintiff does not respond to defendant’s arguments concerning the actual

arrest at 10:46 p.m., I will assume that he has abandoned that aspect of his claim. C & N

Corp. v. Kane, 756 F.3d 1024, 1026 (7th Cir. 2014) (nonmovant’s failure to present

argument in response to summary judgment motion qualifies as waiver of that argument);

Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an

argument . . . results in waiver.”).

A. Legal Standard

“Qualified immunity shields government officials from civil damages liability unless

the official violated a statutory or constitutional right that was clearly established at the time

of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012). In other words,

qualified immunity “shields from liability police officers ‘who act in ways they reasonably

believe to be lawful.’” Jewett v. Anders, 521 F.3d 818, 822 (7th Cir. 2008) (quoting

Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Qualified immunity is an affirmative

defense, but plaintiff carries the burden of defeating it once it is raised. Rabin v. Flynn, 725

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F.3d 628, 632 (7th Cir. 2013). To defeat the qualified immunity defense, a plaintiff must

show that: (1) the defendant violated a constitutional right and (2) the right was clearly

established at the time so that it would have been clear to a reasonable officer that his

conduct was unlawful in the situation. Saucier v. Katz, 533 U.S. 194, 201-02 (2001).

These questions can be addressed in either order. Pearson v. Callahan, 555 U.S. 223, 236

(2009); Ewell v. Toney, 853 F.3d 911, 919 (7th Cir. 2017).

Relevant in this case is the Fourth Amendment, which protects individuals against

unreasonable searches and seizures. “Ordinarily seizures are ‘reasonable’ only when

supported by probable cause to believe an individual has committed a crime.” Matz v.

Kotka, 769 F.3d 517, 522 (7th Cir. 2014). See also Maniscalco v. Simon, 712 F.3d 1139,

1143 (7th Cir. 2013) (“Probable cause is an absolute bar to a claim of false arrest asserted

under the Fourth Amendment and section 1983.”). “An officer has probable cause to make

an arrest only when the facts and circumstances within his knowledge and of which he has

reasonably trustworthy information are sufficient to warrant a prudent person in believing

that the suspect has committed an offense.” Gibbs v. Lomas, 755 F.3d 529, 537 (7th Cir.

2014) (citation omitted). “In making this assessment, the question is whether, given the

‘totality of the circumstances,’ a reasonable officer would believe that the suspect had

committed a crime.” Id. (quoting Jones v. City of Elkhart, Indiana, 737 F.3d 1107, 1114

(7th Cir. 2013)). This standard “does not require that the officer’s belief be correct or even

more likely true than false, so long as it is reasonable.” Fleming v. Livingston County,

Illinois, 674 F.3d 874, 879 (7th Cir. 2012) (citations omitted). In addition, the subjective

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motivations of the officer are irrelevant. Id.; Abbott v. Sangamon County, Illinois, 705 F.3d

706, 714 (7th Cir. 2013) (“Determining whether an officer had probable cause to arrest

entails a purely objective inquiry; the officer’s subjective state of mind and beliefs are

irrelevant.”). Because probable cause is an objective standard, an arrest is lawful ifthe officer

had probable cause to arrest for any offense, not just the offense cited at the time of arrest

or booking. Devenpeck v. Alford, 543 U. S. 146, 153-55, n.2 (2004). See also McComas

v. Brickley, 673 F.3d 722, 727 (7th Cir. 2012) (“[A]n arrest is reasonable under the Fourth

Amendment so long as there is probable cause to believe that some criminal offense has been

or is being committed, even if it is not the crime with which the officers initially charge the

suspect.”).

A longstanding exception to this rule arises under Terry v. Ohio, 392 U.S. 1, 21-22

(1968), which authorizes brief investigatory detentions based on the less demanding

standard of reasonable suspicion of criminal activity. See also Wis. Stat. § 968.24 (“After

having identified himself or herself as a law enforcement officer, a law enforcement officer

may stop a person in a public place for a reasonable period of time when the officer

reasonably suspects that such person is commnitting, is about to commit or has committed

a crime, and may demand the name and address of the person and an explanation of the

person’s conduct.”). A Terry stop “is permitted when it demands only a limited intrusion

into an individual’s privacy and rests on ‘specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant that intrusion.”” Matz, 769

F.3d at 522 (quoting Terry, 392 U.S. at 21). Although reasonable suspicion is a less

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demanding standard than probable cause, the officer must be able to articulate more than

an “inchoate and unparticularized suspicion or ‘hunch’” of criminal activity. Id. “A Terry

stop based on reasonable suspicion can ripen into a de facto arrest that must be based on

probable cause if it continues too long or becomes unreasonably intrusive.” United States

vy. Bullock, 632 F.3d 1004, LO15 (7th Cir. 2011).

Therefore, defendant is entitled to qualified immunity if a reasonable officer could

have believed that “arguable” reasonable suspicion or probable cause existed to detain

plaintiff. Fleming v. Livingston County, Illinois, 674 F.3d 874, 878 (7th Cir. 2012)

(Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir.1998)); Rouei v. Vill. of Skokie, 61 F.

Supp. 3d 765, 778 (N.D. Ill. 2014) (citing Huff v. Reichert, 744 F.3d 999, 1007 (7th Cir.

2014)); Bernardi v. Klein, 682 F. Supp. 2d 894, 903 (W.D. Wis. 2010). Arguable

reasonable suspicion and probable cause are established “when ‘a reasonable police officer

in the same circumstances and with the same knowledge and possessing the same knowledge

as the officer in question could have reasonably believed that [reasonable suspicion or]

probable cause existed in light of well-established law.’” Fleming, 674 F.3d at 880.

To overcome defendant’s qualified immunity defense, plaintiff must “‘identify a case

where an officer acting under similar circumstances . . . was held to have violated the Fourth

Amendment.” District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (citing White

v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)). See also Reed v. Palmer, 906 F.3d 540,

547 (7th Cir. 2018) (“[P]laintiffs must point to a “closely analogous case” finding the alleged

violation unlawful.”). Although it is not necessary to have “‘a case directly on point,’ existing

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precedent must place the lawfulness of the particular arrest ‘beyond debate.’” Wesby, 138

S. Ct. at 590 (internal citations omitted) (“The precedent must be clear enough that every

reasonable official would interpret it to establish the particular rule the plaintiff seeks to

apply.”). I will address separately the parties’ arguments with respect to each aspect of

plaintiff’s pre-arrest detention.

B. Taking of Plaintiff’s Driver’s License

Plaintiff avers that he was not free to leave as soon as defendant took his driver’s

license for a warrant check. United States v. Tyler, 512 F.3d 405, 410-11 (7th Cir. 2008)

(officers’ retention of defendant’s identification while they ran warrant check qualified as

seizure). Defendant has not disputed that the warrant check qualifies as an investigative

detention under Terry for purposes of summary judgment, but argues that there was at least

arguable reasonable suspicion that plaintiff had driven or was going to drive drunk. Wis.

Stat. § 346.63 (no person may drive or operate motor vehicle while under influence of

intoxicant).

It is undisputed that at the time defendant asked plaintiff for his identification, he

knew that (1) plaintiff showed signs of intoxication, including smelling of alcohol, slurred

speech, trouble keeping his balance and a hard time keeping still; (2) plaintiff was wearing

a work shirt worn by the capitol building cleaning crew; (3) plaintiff was sitting near a

vehicle parked at the capitol building and the keys were in the vehicle; (4) plaintiff

responded to defendant’s request to turn the music down; and (5) plaintiff appeared to be

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the only person associated with the vehicle at the time. Although plaintiff has averred that

he did not “feel” intoxicated, a reasonable officer with this information in the same

circumstance could suspect—even if mistakenly—that plaintiff was intoxicated when

defendant arrived at the scene. Tyler, 512 F.3d at 411 (usual signs of intoxication cited by

law enforcement officers include stumbling, staggering, weaving, unsteadiness, slurred speech

and bloodshot eyes). The closer question is whether arguable reasonable suspicion existed

that plaintiff had driven the vehicle or was going to drive it in the future.

Under Wis. Stat. § 346.63(3)(b), “operate” means “the physical manipulation or

activation of any of the controls of a motor vehicle necessary to put it in motion.” As

plaintiff argues, Wisconsin courts have found that the factors sufficient to support a finding

of probable cause (and presumably reasonable suspicion) in drunk driving cases include more

than just signs of intoxication. E.g., State v. Kennedy, 2014 WI 132, ¶¶ 22-23, 359 Wis.

2d 454, 468-69, 856 N.W.2d 834, 841 (officers reported to scene of traffic accident at

which skid marks facing wrong direction led to defendant’s car, defendant was identified as

driver and defendant had bloodshot and glassy eyes, had slurred speech, was swaying and

smelled of alcohol); State v. Welsh, 108 Wis.2d 319, 333-35, 321 N.W.2d 245 (1982),

overruled on other grounds, Welsh v. Wisconsin, 466 U.S. 740 (1984) (erratic driving and

subsequent “stumbling” after driver exited vehicle supported probable cause); State v. Meye,

2010 WI App 120, ¶ 6, 329 Wis. 2d 272, 789 N.W.2d 755 (“Not one [of the many cases

in which the state court of appeals or supreme court has found facts sufficient for an

investigatory stop] has held that reasonable suspicion to seize a person on suspicion of drunk

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driving arises simply from smelling alcohol on a person who has alighted from a vehicle after

it has stopped—and nothing else.”); State v. Babbitt, 188 Wis.2d 349, 357, 525 N.W.2d

102 (Ct. App. 1994) (officer’s observation of erratic driving and physical signs of

intoxication supported probable cause).

In this case, defendant did not observe plaintiff driving erratically or even sitting

behind the wheel of the vehicle when he asked for plaintiff’s identification; plaintiff was

sitting on a bench near a parked vehicle that was not running. However, as defendant points

out, Wisconsin courts have held that “operation of a vehicle” does not necessarily mean

putting the vehicle in motion. Operation of a vehicle can occur even when it is standing still

so long as the person is keeping the vehicle in restraint or in a position to regulate its

movements. Milwaukee County v. Proegler, 95 Wis. 2d 614, 628-29, 291 N.W.2d 608 (Ct.

App. 1980) (citing State v. Ruona, 133 Mont. 243, 321 P.2d 615, 618 (1958)) (officers who

found truck stopped but not completely pulled off highway with motor running, lights on

and defendant asleep behind wheel could reasonably infer that defendant was in actual

physical control of truck and therefore “operating” it within meaning of § 346.63).

Defendant argues that there was at least arguable reasonable suspicion that plaintiff was in

physical control of the vehicle parked near him because plaintiff knew the keys were in the

vehicle, plaintiff responded to defendant’s request to turn down the music and there was no

one else around who seemed to have access or control over the vehicle. Although plaintiff

argues that these facts are not sufficient to establish reasonable suspicion, he has not

identified any legal authority establishing that an officer acting under similar circumstances

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violated the Fourth Amendment. Hernandez v. Cook County Sheriff’s Office, 634 F.3d 906,

915 (7th Cir. 2011) (constitutional right is “clearly established” when reasonable official

would know that his “conduct was unlawful in the situation he confronted”). Although

plaintiff states generally that the court should consider whether defendant’s conduct was so

egregious or unreasonable that no reasonable official could have thought he was acting

lawfully, Reed v. Palmer, 906 F.3d 540, 547 (7th Cir. 2018), he has failed to show that

defendant’s conduct rose to this level in this case. Defendant has articulated specific facts

from which a reasonable officer could infer—even mistakenly—that plaintiff had driven or

would be operating a vehicle while intoxicated. Accordingly, defendant is entitled to

qualified immunity with respect to the Terry stop.

C. Subsequent Detention and Breath Test of Plaintiff

Plaintiff argues that the stop lasted so long and became so intrusive that it became

a de facto arrest without arguable probable cause. The undisputed facts show that after

defendant ran the warrant check, he questioned plaintiff for about eight minutes, asking him

whether he had been drinking and driving. Plaintiff said that he had not been driving, but

he admitted having had a couple of beers. Defendant then asked plaintiff if there was

someone he could call to pick him up, plaintiff gave defendant his wife’s number and

defendant called plaintiff’s wife, who agreed to come pick up plaintiff. All told, defendant

held plaintiff a total of 24 minutes from the time he stopped him until Sergeant Hyatt

arrived and the officers learned that witnesses had seen plaintiff driving erratically not long

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before defendant arrived on scene. (Plaintiff does not argue that the information that

defendant later obtained from witnesses and surveillance video footage failed to establish

arguable probable cause for the standardized field testing that led to his subsequent arrest.)

Although defendant did not gain any further information about plaintiff’s past or future

criminal activity during this period, plaintiff has failed to cite any authority showing that the

length of the detention or the questioning was clearly prolonged or intrusive or that it was

unreasonable for defendant to stay around to make sure that plaintiff got a ride home.

Defendant’s decision to order a preliminary breath test during this period is a closer

call. Under Wisconsin law, an officer may conduct a preliminary breath test in cases in

which he has “probable cause to believe” the person was operating under the influence. Wis.

Stat. § 343.303. “‘[P]robable cause to believe’ refers to a quantum of proof greater than the

reasonable suspicion necessary to justify an investigative stop, . . . but less than the level of

proof required to establish probable cause for arrest.” County of Jefferson v. Renz, 231 Wis.

2d 293, 316, 603 N.W.2d 541, 552 (1999). The facts in this case do not satisfy this

standard. Defendant had not yet learned from witnesses or the surveillance camera footage

that plaintiff recently had driven the vehicle into the capitol driveway. Plaintiff also had

made no moves toward the vehicle and seemed committed to wait for his wife to pick him

up.

Defendant contends that he is entitled to qualified immunity because he was acting

arguably within the “community caretaker” doctrine, which “recognizes that police

sometimes take actions not for any criminal law enforcement purpose but rather to protect

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members of the public.” Sutterfield v. City of Milwaukee, 751 F.3d 542, 553 (7th Cir.

2014). See also State v. Blatterman, 2015 WI 46, ¶ 39, 362 Wis. 2d 138, 166, 864 N.W.2d

26, 39 (internal citation omitted) (officer exercises community caretaker function rather

than law enforcement function in cases in which officer discovers member of public in need

of assistance). In Wisconsin, there is a three-part test for evaluating whether the doctrine

applies: (1) whether a Fourth Amendment seizure has occurred; (2) whether the police

conduct was a “bona fide” community caretaker function; and (3) whether the public

interest outweighs the intrusion on the privacy of the individual. Id. at ¶ 42, 362 Wis. 2d

at 168. Assessing whether an officer acted for a bona fide community purpose “ultimately

turns on whether the officer can articulate[] an objectively reasonable basis for exercising a

community caretaker function.” State v. Asboth, 2017 WI 76, ¶ 15, 376 Wis. 2d 644,898

N.W.2d 541.

In this case, defendant says that he was concerned that plaintiff might be

incapacitated by alcohol and require medical attention. Wis. Stat. 51.45(11)(b) (defining

law enforcement responsibilities related to persons found to be incapacitated by alcohol).

Plaintiff challenges the reasonableness of defendant’s belief in light of the fact that plaintiff

did not exhibit any specific behavior that would have called his health or mental state into

question. For example, plaintiff says that he did not disobey orders, threaten defendant, act

erratically or complain about any physical illness. Cf. Blatterman, 362 Wis. 2d at ¶ 45 (wife

accused defendant of trying to blow up their house by filling it with gas and defendant was

erratic, disoriented, inappropriately dressed for cold weather and complaining of chest pain).

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However, as with the other aspects of his stop and detention, plaintiff has failed to cite any

legal authority showing that defendant clearly acted outside the bounds of the community

caretaker doctrine under the circumstances present in this case. Defendant’s belief that a

preliminary breath test was needed to assess plaintiff’s need for medical attention was not

so egregious or unreasonable that no reasonable official could have thought he was acting

lawfully had he taken the same step. Accordingly, I find that defendant also is entitled to

qualified immunity with respect to plaintiff’s subsequent detention and preliminary breath

test.

ORDER

IT IS ORDERED that defendant Bradley Overwachter’s motion for summary

judgment, dkt. #17, is GRANTED. The clerk of court is directed to enter judgment for

defendant and close this case.

Entered this 15th day of January, 2020.

BY THE COURT:

/s/

________________________

BARBARA B. CRABB

District Judge

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