State v. Charles v. Matalonis

2016 WI 7

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP108-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Charles V. Matalonis,
Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 359 Wis. 2d 675, 859 N.W.2d 628)
(Ct. App. 2015 – Unpublished)

OPINION FILED: February 10, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 18, 2015

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: Wilber W. Warren, III

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J., dissents. (Opinion Filed)
PROSSER, ABRAHAMSON, A.W. BRADLEY, J.J.J.,
dissent. (Opinion Filed)
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiff-respondent-petitioner, the case was
argued by Donald V. Latorraca, assistant attorney general, with
whom on the briefs was Brad D. Schimel, attorney general.

For the defendant-appellant, there was a brief by Mark D.
Richards, Brian P. Dimmer and Mark D. Richards, S.C., Racine,
and oral arguments by Mark D. Richards.
 2016 WI 7
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP108-CR
(L.C. No. 2012CF81)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner, FILED
v. FEB 10, 2016
Charles V. Matalonis, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an

unpublished decision of the court of appeals, State v.
Matalonis, No. 2014AP108-CR, unpublished slip op. (Wis. Ct. App.

Dec. 23, 2014), which reversed the Kenosha County circuit

court's1 judgment of conviction and order denying defendant

Charles V. Matalonis's ("Matalonis") motion to suppress evidence

of marijuana production in Matalonis's home. Police obtained

1
The Honorable Wilbur W. Warren III presided.
 No. 2014AP108-CR

this evidence while investigating the source of injuries

sustained by Matalonis's brother, Antony.

¶2 We are asked to determine whether a warrantless search

by police of Matalonis's home, including, importantly, of a room

secured by a locked, blood-spattered door, was reasonable under

the Fourth Amendment of the United States Constitution and

Article I, § 11 of the Wisconsin Constitution. The State argues

that the police officers in this case acted reasonably on the

night in question because (1) the police officers were

reasonably exercising a bona fide "community caretaker" function

in ensuring the absence of injured persons in the home; and (2)

the police officers reasonably believed that a protective sweep

of the home was necessary to guarantee their own safety.

¶3 We conclude that the officers in this case reasonably

exercised a bona fide community caretaker function when they

searched Matalonis's home. The officers therefore were not

required to obtain a warrant prior to conducting the search in

question, and the evidence of marijuana production they obtained
should not be suppressed. Because the search was lawful under

the community caretaker doctrine, we need not determine whether

the search was also justified as a protective sweep. We reverse

the decision of the court of appeals and remand the case to the

circuit court for further proceedings consistent with this

opinion.

I. FACTUAL BACKGROUND

¶4 On January 15, 2012, at about 2:45 a.m., Officers
Brian Ruha ("Officer Ruha") and David Yandel ("Officer Yandel")
2
 No. 2014AP108-CR

of the Kenosha Police Department were dispatched for a medical

call to the upper unit of an address on 45th Street in Kenosha.2

When Officer Ruha arrived at the address, he observed "what

appeared to be blood all over the door." He knocked on the door,

entered, and there met Antony Matalonis ("Antony"). Antony

looked as though "he may have been battered[;] . . . his whole

right side of his body was covered in blood." Additionally,

Antony seemed "highly intoxicated." Antony initially told

Officer Ruha that he had been beaten up by four different groups

of people outside of a bar, but some time later said that he was

beaten up by four people outside of a bar. The resident at the

address told Officer Ruha that Antony lived down the street with

his brother. Antony was loaded into an ambulance and taken to a

hospital.

2
The facts in this section are taken from testimony
provided by Officer Ruha, Officer Yandel, and Matalonis at the
April 4, 2013 suppression hearing, as well as from portions of
the officers' police reports that were read at the suppression
hearing. The circuit court stated at the conclusion of the
hearing:

I don't think the material facts are in dispute at
all. The only fact that might be in dispute is
whether initial consent was given to enter the home or
not. But if that issue is of concern, the [c]ourt
certainly would find that the officer[s] did have
consent to enter the home.

On appeal before this court, Matalonis concedes that he
"consented to the [officers'] entering his home to discuss
Antony's injuries." Certain disputed facts not material to the
outcome of this case will be noted as they arise.

3
 No. 2014AP108-CR

¶5 Officer Yandel arrived at the address as Antony was

being placed in the ambulance. Officer Yandel "could tell that

[Antony] had a bloody face. [Antony] had blood on his shirt. He

seemed pretty beat up." Officer Yandel went to the back door

leading to the upper unit of the residence, and "noticed a large

amount of blood that led up the stairwell to that apartment."

¶6 After the ambulance departed, Officer Ruha and Officer

Yandel "checked the surrounding area to determine where [the]

blood had originated from" in order to "find out where [Antony]

came from . . . and if anyone else was even involved," because

the resident of the upper apartment had explained that Antony

had arrived at the residence already injured. There was snow on

the ground, and the officers found a single "blood trail" in the

snow, which they followed.

¶7 The blood led to the side door of a residence on Fifth

Avenue. "There was blood on a screen door and then on the

inside of the screen door. And there was another wooden door,

and there was blood on that door as well." The officers heard
two loud bangs coming from inside the residence that sounded to

Officer Yandel like "[t]hings being shuffled around in the

house."3

¶8 The officers then called for backup because, according

to Officer Ruha, "we had no idea what was going on inside the

3
During the suppression hearing, Officer Yandel admitted
that information regarding the noises did not appear in his
police report. Officer Ruha's police report mentions the noises.

4
 No. 2014AP108-CR

residence," and according to Officer Yandel, because "[i]t's

protocol in case we had to enter that residence to check the

welfare of anybody if we couldn't make contact. It was a pretty

significant amount of blood, and we were concerned that maybe

somebody was injured inside."

¶9 The officers went to the front door of the residence

and knocked on the door. Matalonis "answered the door without a

shirt on. He didn't appear to be injured at all, but he

appeared to be out of breath." He was not intoxicated but

"seemed pretty upset about something." Officer Yandel "noticed

there was blood in the foyer on the floor" as well as "blood to

the right which led up to a stairwell." Matalonis testified

that he had been cleaning up blood when the officers arrived.

¶10 The officers asked Matalonis who lived at the

residence and Matalonis responded that he lived alone. The

officers told Matalonis about the injured individual they had

met and the blood trail leading to the side door of Matalonis's

house. Matalonis explained that he had been in a fight with his
brother Antony, but that his brother had left. According to

Officer Yandel's police report, Matalonis stated, "Yeah, my

brother left already. It was just me and my brother fighting.

I just had to do what I had to do to defend myself but he's gone

now." The officers told Matalonis "that because there was blood

in the house, [they] just wanted to make sure that no one else

was injured." Matalonis let the officers into the house.4
4
See supra note 2.

5
 No. 2014AP108-CR

¶11 Once the officers were inside the house, they directed

Matalonis to sit on the couch in his living room.5 The officers

did not place Matalonis in handcuffs or tell him that he was

under arrest. Officer Yandel did not frisk Matalonis.6 Officer

Ruha then conducted a search of the residence "to make sure that

no one else was inside the house or even injured in the house

that needed medical attention" while Officer Yandel stayed

behind with Matalonis. At no time did Officer Yandel point a

weapon at Matalonis.

¶12 Officer Ruha began his search on the lower level of

the house, where the officers and Matalonis were located. He

5
Matalonis testified that the officers "told" him to sit on
the couch. Officer Yandel initially testified that he "asked"
Matalonis to sit on the couch, but on cross-examination agreed
that he had "directed" Matalonis to sit on the couch and that
the direction was "a direct order." Officer Ruha testified
simply that Matalonis sat on the couch and that he "may have
been" directed to sit on the couch.
6
Officer Ruha could not recall whether he had frisked
Matalonis. Officer Yandel did not see Officer Ruha frisk
Matalonis, and Matalonis did not provide testimony regarding
whether Officer Ruha had frisked him. Counsel for Matalonis
asked Officer Yandel about the fact that Matalonis was
apparently not frisked:

Q: So you're not worried for officer safety
enough to even frisk Mr. Matalonis, correct?

A: We did have officer safety concerns, yes.

Q: But you didn't think enough to even frisk
Mr. Matalonis, correct?

A: Correct.

6
 No. 2014AP108-CR

found "a couple drops of blood" in the living room,7 and then

moved into the kitchen where he found "another couple drops of

blood." A bucket of water and a mop were in the kitchen.

Officer Ruha went to the basement area but "didn't locate any

blood down there."8 Officer Ruha returned to the lower level and

proceeded up the stairs to the second floor. On the stairs to

the second floor "there [were] what appeared to be droplets of

blood on the carpet and blood smeared all along the wall leading

upstairs."

¶13 Upstairs, "[t]here appeared to be blood all over the

handrail. There was a mirror that was down that was broken.

There [were] shards laying all over the floor." Officer Ruha

moved into a "little living area" to his left, but "didn’t

locate anyone in there." He did, however, observe "various

pipes and other smoking utensils used for smoking marijuana."

7
Matalonis testified, "There was no blood in the main
living room that I know of."
8
It is unclear from the record whether Officer Ruha in fact
entered the basement. On direct examination Officer Ruha
stated, "I actually went down to the basement." On cross-
examination Officer Ruha was asked, "[Y]ou don't go into the
basement because there's no blood going down there, correct?"
Officer Ruha responded, "Correct." When rendering judgment the
circuit court stated, "The officers only searched where there
was blood. They didn't go in the basement."

At some point a tenant who lived in the basement came out
of his room——according to Officer Yandel, "came upstairs"——and
spoke with the officers, but the record is not entirely clear
regarding at what point during the search of the house this
happened.

7
 No. 2014AP108-CR

This included "a small silver grinder that lay opened on the

coffee table containing a green leafy substance that [Officer

Ruha] identified as marijuana through [his] training and

experience." Then he continued right, and "saw that there was a

door with a deadbolt that had blood splatters on the door

itself."9 Officer Ruha tried unsuccessfully to open the door,

which was locked. He then moved past the door and into a

bathroom. There were no individuals in the bathroom, but

Officer Ruha saw a "ceramic water bong used for smoking

marijuana." Officer Ruha went back to the locked door, where he

"could not hear anyone inside, but . . . did smell a strong odor

of marijuana coming through [the] door and . . . heard a fan

running." Officer Ruha testified that at that point he was

9
On cross-examination counsel for Matalonis, using a
photograph of the door, questioned Officer Ruha about the extent
of blood on the door.

Q: And the blood you're speaking about are
these two little drops here?

A: Drops here, drops all the way down here.

Q: And that is like the least amount of blood
anywhere in that house, is that a fair statement,
compared to, let's say, the stairway?

A: That would be fair to say.

In his brief before this court, Matalonis characterizes the
blood on the locked door as "two little drops of blood." The
State argues that photographs of the door "show a number of
spatter marks running across the bottom of the door and on the
adjacent wall," and "three red drops forming a triangle between
the lock and door handle as well as additional red marks on the
adjacent door jamb."

8
 No. 2014AP108-CR

"interested in knowing that there's no one injured behind that

door."10 Since he "realized that [the locked room] was the only

place [he] could not get into to check," Officer Ruha went back

downstairs to ask Matalonis for the key to the room in order "to

ensure that no one is injured behind that door."

¶14 While Officer Ruha was searching the house, Officer

Yandel asked Matalonis about the fight he had had with his

brother Antony. Matalonis described what had happened. He also

mentioned that somebody lived in the basement of the house. At

some point in their conversation, Matalonis asked Officer Yandel

"if, while they were doing their sweep [of the house], [he]

could continue cleaning up the blood from the fight." According

to Matalonis, Officer Yandel did not allow him to do so, but

instead told Matalonis that he "had to stay right where [he was]

and to not get up."11

10
Officer Ruha was asked by counsel for Matalonis:

Q: Can you tell me what, objectively, would
lead you to believe someone was behind that door?

A: There's droplets of blood around the door
handle and it's locked from the inside.

Q: Well, it's not locked from the inside. It's
locked from the deadbolt.

A: It's deadbolted. Either you lock it with a
key or you lock it from the inside.
11
Officer Yandel did not remember Matalonis asking him if
he could continue cleaning the house, but agreed that he did not
allow Matalonis to get up from the couch.

9
 No. 2014AP108-CR

¶15 Officer Ruha returned to the living room. According

to Matalonis, Officer Ruha's search took "10 to 15 minutes."

Testimony regarding the conversation that followed differed

slightly when recounted by Matalonis, Officer Ruha, and Officer

Yandel. According to Matalonis, Officer Ruha asked Matalonis

what was in the locked room. Matalonis responded that the room

was "a security room where I keep my valuables."12 Officer Ruha

then "said he needed to get in the room, and he was going to

kick the door down unless [Matalonis] told him where the key

was." At some point during the conversation, according to

Matalonis, Officer Ruha asked whether there was anyone else in

the room or made clear that "[h]e wanted to go and look for

bodies in that room."

¶16 According to Officer Yandel, Officer Ruha "asked what

was in that room, said that he noticed that there was blood on

that door and said that he would have to check that room to make

sure no one was injured in there." Officer Yandel then "noticed

[Matalonis's] breathing started becoming faster. He looked
nervous to me. Officer Ruha told him he was going to kick the

door in unless he had a key." At some unspecified point in the

conversation Matalonis told the officers the room "was a

security room and he had some security equipment in there," that

he kept the room locked, and that no one was in the room.

Additionally, at some point in the conversation Officer Ruha

12
Matalonis admitted at the suppression hearing that this
statement was "obviously" not true.

10
 No. 2014AP108-CR

informed Officer Yandel that he had found drug paraphernalia and

marijuana upstairs.13

¶17 According to Officer Ruha, upon his return to the

living room, "I asked [Matalonis] where the key to the door was.

I gave him the options of [sic] I needed to ensure that no one

was injured inside [the locked] room. There's blood on the

door. Either I need to know where the key's at or I'm going to

kick the door in."14 Matalonis said he would not consent to the

officers' entry into the room, and "said it was a security room

for his security cameras."

¶18 Matalonis testified that approximately 20 minutes had

elapsed between the officers' initial entry into Matalonis's

home and the moment that Officer Ruha asked Matalonis for the

key to the locked room. The officers obtained the key to the

13
When asked on cross-examination whether Officer Ruha also
told Officer Yandel at that time about the smell of marijuana
and sound of a fan coming from the inside of the locked room,
Officer Yandel stated, "I don't remember that conversation."
14
Both officers were asked by counsel for Matalonis why
they declined to kick down the door immediately without asking
Matalonis for a key, given their testimony that they were
concerned about possible injured persons inside the room. Both
responded to the effect that allowing Matalonis to produce the
key would avoid damage to the home.

11
 No. 2014AP108-CR

room15 after waiting for a certain amount of time.16 Officer Ruha

testified that the key was located next to an aquarium on the

second floor, and that there was a bag of marijuana next to the

key. Matalonis testified that the key was not hidden and was

kept in a red cup on top of the aquarium, "probably five to six

feet" away from the locked door.17

15
The question of the circumstances under which the
officers obtained the key was sharply disputed by the parties at
the suppression hearing. Officers Ruha and Yandel testified
that Matalonis assisted them in locating the key and told the
officers that he had marijuana plants growing in the locked
room. Matalonis testified that he provided no assistance in
finding the key to the room, that he never consented to their
entry into the room, and that he intended to let the officers
kick down the door to the room. Matalonis maintained that
Officer Ruha went upstairs and found the key to the room on his
own. Matalonis also denied making the statement about the
presence of marijuana in the locked room. The circuit court
concluded, "If I had to resolve that question of fact, I would
resolve it in the direction of there was assistance in obtaining
the key, especially in light of the fact that, unequivocally,
the officers had told [Matalonis] that they were going to kick
the door down."
16
Officer Ruha contended that Matalonis sat for "a matter
of seconds" before telling the officers the location of the key.
Officer Yandel wrote in his police report that Matalonis paused
"for several minutes" when he was asked for the key, but stated
at the suppression hearing, "[f]rom my recollection, it was a
pause for several seconds." Officer Yandel testified that
Matalonis then told Officer Ruha where the key was. Matalonis
testified that he "sat there for probably about five minutes"
before Officer Ruha left to look for the key.
17
At the suppression hearing Officer Ruha was presented
with a picture of the red cup but could not remember "exactly"
if the key had been located in the cup, though he stated "[i]t
may have been."

12
 No. 2014AP108-CR

¶19 According to Officer Ruha, Officer Ruha went back

upstairs,18 unlocked the locked room, announced "Kenosha Police,"

and entered the room. "A large marijuana plant was being grown

as soon as you opened the door. It was a pretty sophisticated

system." No one was present in the room.

¶20 Officer Ruha returned downstairs. Matalonis was still

sitting in the living room on the couch. Officer Ruha asked

Matalonis about the marijuana. Matalonis "said the plants were

his and he didn't wish to talk any further about the plants."

Officer Ruha then spoke with him about the fight between him and

his brother. Matalonis eventually asked to speak with a lawyer

and was arrested later that night. At some point "[a]fter the

residence was secured and [the officers] found no one else

injured or hurt inside [the] house," the officers attempted to

obtain a search warrant but were denied the warrant. Officer

Ruha testified that "[w]hatever [evidence] we found in plain

view, we took," and that after the search warrant was denied he

"didn't open any drawers or go any further into the house and
look for anything else."

II. PROCEDURAL BACKGROUND

¶21 On January 17, 2012, the State filed a criminal

complaint against Matalonis, charging him with possession of

drug paraphernalia, contrary to Wis. Stat. § 961.573(1) (2011-

18
Officer Ruha testified that he was accompanied by his
sergeant, who, according to Officer Ruha and Officer Yandel, had
arrived during the conversation with Matalonis and had been
briefed on the situation.

13
 No. 2014AP108-CR

12),19 possession of tetrahydrocannabinols ("THC"), contrary to

§ 961.41(3g)(e), and manufacture or delivery of THC in an amount

not more than 200 grams or four plants, contrary to

§ 961.41(1)(h). On November 28, 2012, Matalonis filed a motion

to suppress the evidence seized in the search of his residence

as unconstitutionally conducted without a warrant and without

consent. On April 4, 2013, a hearing on Matalonis's suppression

motion was held in Kenosha County circuit court. The circuit

court denied Matalonis's motion. The court concluded in part:

The search there once inside the house was not
directed at finding evidence but for protective search
and for injured parties. . . . [The officers]
searched only in areas where there was blood found and
they didn't search drawers or places where obviously
people could not hide but only rooms and larger areas
where bodies might be found.

. . .

[T]here was blood on the door. . . . So it was
reasonable for them to extend their search for injured
parties to that area. Again, with someone who is
bleeding, someone who is taken away by ambulance, to
have a locked door in a house with blood on that door
and not search behind that door and to later find that
there's a dead body or a bleeding body or a person in
need of medical assistance behind that door I think

19
All subsequent references to the Wisconsin Statutes are
to the 2011-12 version unless otherwise indicated.

14
 No. 2014AP108-CR

would not only be improper, it would be a sign of poor
police work.[20]
¶22 On May 15, 2013, Matalonis pleaded no contest to the

charge of manufacture or delivery of THC in an amount not more

than 200 grams or four plants; the two other charges were

dismissed and read in for purposes of sentencing. On June 28,

2013, the court withheld sentence and placed Matalonis on

probation for 18 months. On January 14, 2014, Matalonis filed a

notice of appeal.

¶23 On December 23, 2014, the court of appeals reversed

the circuit court's judgment of conviction and order denying

Matalonis's motion to suppress, and remanded the case to the

circuit court to suppress the evidence resulting from the

warrantless search. See State v. Matalonis, No. 2014AP108-CR,

unpublished slip op., ¶37 (Wis. Ct. App. Dec. 23, 2014). The

court of appeals concluded that the officers were not exercising

a bona fide community caretaker function. See id., ¶¶25, 31.

¶24 The court of appeals stated that the police were

required to possess, under the totality of the circumstances,
"an 'objectively reasonable basis' to believe there [was] 'a

member of the public who [was] in need of assistance.'" Id.,

¶15 (quoting State v. Ultsch, 2011 WI App 17, ¶15, 331

20
The court based its ruling on multiple grounds,
including, apparently, the hot pursuit and emergency aid
doctrines. Both before the court of appeals and in its petition
for review to this court, the State argued the search at issue
should be upheld under the community caretaker and protective
sweep doctrines. We do not address any other grounds for
upholding the search.

15
 No. 2014AP108-CR

Wis. 2d 242, 793 N.W.2d 505). The court analyzed two cases in

which officers were found to be exercising a bona fide community

caretaker function, State v. Gracia, 2013 WI 15, 345

Wis. 2d 488, 826 N.W.2d 87, and State v. Pinkard, 2010 WI 81,

327 Wis. 2d 346, 785 N.W.2d 592. It also examined two cases in

which officers were found not to be exercising a bona fide

community caretaker function, State v. Maddix, 2013 WI App 64,

348 Wis. 2d 179, 831 N.W.2d 778, and State v. Ultsch, 2011 WI

App 17, 331 Wis. 2d 242, 793 N.W.2d 505. The court concluded:

In Pinkard and Gracia, the officers had specific
concerns about the welfare of people known to be
present in the homes when the officers entered the
homes. However, the present case is more similar to
Maddix in that the officers in this case did not have
before them any evidence pointing "concretely to the
possibility that a member of the public was in need of
assistance" inside Matalonis's home.
Matalonis, unpublished slip op., ¶24 (quoting State v. Maddix,

2013 WI App 64, ¶27, 348 Wis. 2d 179,831 N.W.2d 778). The court

of appeals recognized that there were "conflicting versions of

how Matalonis's brother sustained his injuries" but added that

"in no version is there reference to any other person being

injured." Id. Ultimately, the court decided, "A mere

possibility that another person may be injured without any other

evidence that concretely points to the possibility that a member

of the public required assistance does not meet the more

demanding objective reasonable basis standard." Id., ¶25

(citing Ultsch, 331 Wis. 2d 242, ¶15).

16
 No. 2014AP108-CR

¶25 The court further held that, assuming the officers

were acting as community caretakers, id., ¶31, their exercise of

that function was not reasonable because "the public's interest

in the intrusion was minimal and . . . did not outweigh the

substantial intrusion upon Matalonis's privacy interest in his

home." Id., ¶36. In particular, any exigency that existed

"diminished significantly once the officers were informed by

Matalonis that he had been involved in a fight with his brother

and that his brother had left," and "by the time the officers

reached the locked door, which at best revealed only very minor

streaks of blood on the door's surface and on the doorknob, a

reasonable officer would have suspected that Matalonis was the

only person in the residence." Id., ¶32. Additionally, "the

degree of authority and force displayed by the officers in this

case was considerable." Id., ¶33.

¶26 Finally, the court determined that the officers'

search did not constitute a lawful protective sweep because "the

evidence before the officers did not provide an objectively
reasonable basis for the officers to believe their safety was at

risk." Id., ¶¶29-30.21

¶27 On January 22, 2015, the State filed a petition for

review in this court. On April 17, 2015, we granted the

petition.

21
Judge Blanchard dissented and would have upheld the
search on community caretaker grounds. See State v. Matalonis,
No. 2014AP108-CR, unpublished slip op., ¶38 (Wis. Ct. App.
Dec. 23, 2014) (Blanchard, P.J., dissenting).

17
 No. 2014AP108-CR

III. STANDARD OF REVIEW

¶28 When we review an order granting or denying a motion

to suppress evidence, we are presented with a question of

constitutional fact requiring application of a two-step

analysis. State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302,

786 N.W.2d 463 (citations omitted). "First, we review the

circuit court's findings of historical fact under a deferential

standard, upholding them unless they are clearly erroneous.

Second, we independently apply constitutional principles to

those facts." Id. (citations omitted).

IV. ANALYSIS

¶29 The Fourth Amendment to the United States Constitution

and Article I, § 11 of the Wisconsin Constitution prohibit

"unreasonable searches and seizures." U.S. Const. amend. IV;

Wis. Const. art. 1, § 11. "[W]arrantless searches of homes are

presumptively unreasonable." Robinson, 327 Wis. 2d 302, ¶24

(citation omitted). As we have noted, however, "the nature of a

police officer's work is multifaceted." State v. Kramer, 2009
WI 14, ¶32, 315 Wis. 2d 414, 759 N.W.2d 598. Put differently,

Police officers wear many hats: criminal
investigator, first aid provider, social worker,
crisis intervener, family counselor, youth mentor and
peacemaker, to name a few. They are charged with the
duty to protect people, not just from criminals, but
also from accidents, natural perils and even self-
inflicted injuries. We ask them to protect our
property from all types of losses——even those
occasioned by our own negligence. They counsel our
youth. They quell disputes between husband and wife,
parent and child, landlord and tenant, merchant and
patron and quarreling neighbors. Although they search
for clues to solve crime, they also search for missing

18
 No. 2014AP108-CR

children, parents, dementia patients, and occasionally
even an escaped zoo animal. They are society's
problem solvers when no other solution is apparent or
available.
Ortiz v. State, 24 So. 3d 596, 607 n.5 (Fla. Dist. Ct. App.

2009) (Torpy, J., concurring and concurring specially).

¶30 We have acknowledged that "a police officer serving as

a community caretaker to protect persons and property may be

constitutionally permitted to perform warrantless searches and

seizures." State v. Pinkard, 2010 WI 81, ¶14, 327 Wis. 2d 346,

785 N.W.2d 592. An officer's community caretaker function is

"totally divorced from the detection, investigation, or

acquisition of evidence relating to the violation of a criminal

statute." Kramer, 315 Wis. 2d 414, ¶¶19, 23 (quoting Cady v.

Dombrowski, 413 U.S. 433, 441 (1973)).22 That is, an officer's

community caretaker function is distinct from the officer's law

enforcement function. See Pinkard, 327 Wis. 2d 346, ¶¶18, 31

(citation omitted). In sum, we need not invalidate a

warrantless search of a residence if the search was conducted

pursuant to a police officer's reasonable exercise of a bona

fide community caretaker function. See id., ¶¶28-29.

¶31 Our community caretaker analysis is the same under

both the United States and Wisconsin Constitutions. State v.

Gracia, 2013 WI 15, ¶14, 345 Wis. 2d 488, 826 N.W.2d 87

22
As we will explain shortly, however, see infra ¶32, an
officer engaged in a bona fide community caretaker function
might also possess subjective law enforcement concerns. State
v. Pinkard, 2010 WI 81, ¶31, 327 Wis. 2d 346, 785 N.W.2d 592.

19
 No. 2014AP108-CR

(citation omitted). As always, "[t]he ultimate standard set

forth in the Fourth Amendment is reasonableness." Pinkard, 327

Wis. 2d 346, ¶13 (citing Cady, 413 U.S. at 439). However, we

analyze the reasonableness of a residential search alleged to be

justified under the community caretaker doctrine using a three-

step test:

(1) whether a search or seizure within the meaning of
the Fourth Amendment has occurred; (2) if so, whether
the police were exercising a bona fide community
caretaker function; and (3) if so, whether the public
interest outweighs the intrusion upon the privacy of
the individual such that the community caretaker
function was reasonably exercised within the context
of a home.
Id., ¶29 (footnote omitted) (citation omitted). The State bears

the burden of proving that these factors have been met. Id.

(citation omitted).

¶32 With regard to the second step,

When evaluating whether a community caretaker
function is bona fide, we examine the totality of the
circumstances as they existed at the time of the
police conduct. In so doing . . . the "totally
divorced" language from Cady does not mean that if the
police officer has any subjective law enforcement
concerns, he cannot be engaging in a valid community
caretaker function. Rather, . . . in a community
caretaker context, when under the totality of the
circumstances an objectively reasonable basis for the
community caretaker function is shown, that
determination is not negated by the officer's
subjective law enforcement concerns.

Kramer, 315 Wis. 2d 414, ¶30 (citations omitted).
¶33 The third step requires us to "balance the public

interest or need that is furthered by the officers' conduct
against the degree and nature of the intrusion on the citizen's

20
 No. 2014AP108-CR

constitutional interest." Pinkard, 327 Wis. 2d 346, ¶41

(citation omitted). Four considerations are of immediate

relevance to this question:

(1) [T]he degree of the public interest and the
exigency of the situation; (2) the attendant
circumstances surrounding the search, 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.

Gracia, 345 Wis. 2d 488, ¶15 (citation omitted).
¶34 The State does not contest that the officers conducted

a search of Matalonis's residence, including of the locked room

containing the marijuana plants. Therefore, we need only decide

whether the officers were exercising a bona fide community

caretaker function and doing so in a constitutionally reasonable

manner. Because we conclude that the officers in this case

reasonably exercised a bona fide community caretaker function

when they searched Matalonis's home, we need not determine

whether the search was justified as a protective sweep.

A. Whether the Officers Were Exercising a
Bona Fide Community Caretaker Function
¶35 It is obvious to all, in hindsight, that Matalonis's

home did not in fact contain a "member of the public . . . in

need of assistance." Kramer, 315 Wis. 2d 414, ¶32. But that is

not the question before us today. Instead, we must decide

whether, "under the circumstances as they existed at the time of

the police conduct, [the officers were] engaged in a bona fide
community caretaker function." Pinkard, 327 Wis. 2d 346, ¶31

21
 No. 2014AP108-CR

(emphasis added) (citation omitted). Therefore, we are

concerned with the extent of the officers' knowledge at the time

they conducted the search, not after.

¶36 We have no difficulty concluding that the officers in

this case were engaged in a bona fide community caretaker

function at the time they searched the house and the locked

room. The events that unfolded before the officers——when viewed

without the benefit of hindsight——are alarming, to say the

least.

¶37 The officers, responding to a medical call at almost

three in the morning, are confronted with a beaten, bloody, and

"highly intoxicated" man, injured to an extent sufficient to

justify an ambulance ride to the hospital. The man provides the

officers with inconsistent accounts of how many people had

injured him, but both accounts feature multiple potential

assailants. The officers find blood on a door and a stairway

and a "trail" of blood in the snow. At the end of the trail the

officers find a residence bearing more blood-stained doors, and
hear loud bangs inside the residence. The officers, noting the

"pretty significant amount of blood" and fearing potential

injured persons inside the residence, call for backup and

proceed to knock on the front door of the home.

¶38 Answering the front door is a breathless, shirtless,

and "pretty upset" man, Matalonis, who informs the officers that

he lives alone and that he had fought with his brother Antony,

who has since left. This statement was contrary to information
the officers already possessed in three respects. First, Antony
22
 No. 2014AP108-CR

had told the officers that he was beaten up by multiple people.

Second, Antony had told the officers he sustained his injuries

outside of a bar. Third, the officers had been told at the

previous residence that Antony lived with his brother. Officer

Yandel notices blood on the floor and the stairs.

¶39 At this point, according to the court of appeals, "the

exigent nature of the situation," if any, "diminished

significantly." Matalonis, unpublished slip op., ¶32. We do

not agree with this contention. Instead, the officers now had

to make a decision after observing: (1) lots of blood, including

some blood in the house before them; (2) an injured person; and

(3) inconsistent stories regarding the number of participants in

the fight, whether Matalonis lived alone, and exactly what had

transpired. The officers requested and obtained entry into

Matalonis's house. The officers maintained "that because there

was blood in the house, [they] just wanted to make sure that no

one else was injured."

1. The Inception of the Search
¶40 After the officers' entry into the home, the search in

question began. We ignore, for the time being, the officers'

conduct toward Matalonis; this will become relevant at the next

step of our analysis. Instead, we ask whether, based on the

circumstances at the time, the officers were engaged in a bona

fide community caretaker function at the inception of the

search.

¶41 We conclude that they were. As the circuit court
found——and the circuit court's finding was not clearly
23
 No. 2014AP108-CR

erroneous——the officers were not searching for evidence, but for

injured parties. See State v. Popke, 2009 WI 37, ¶20, 317

Wis. 2d 118, 765 N.W.2d 569 (under clearly erroneous standard,

"we are bound not to upset the trial court's findings of

historical or evidentiary fact unless they are contrary to the

great weight and clear preponderance of the evidence" (citation

omitted)). This is the quintessence of the community caretaker

function. See, e.g., Pinkard, 327 Wis. 2d 346, ¶¶14, 34.

¶42 The State has shown "an objectively reasonable basis

for the community caretaker function." Kramer, 315 Wis. 2d 414,

¶30. Although the court of appeals stated that "[a] mere

possibility that another person may be injured without any other

evidence that concretely points to the possibility that a member

of the public required assistance does not meet the more

demanding objective reasonable basis standard," Matalonis,

unpublished slip op., ¶25 (citation omitted), there was "other

evidence" in this case: blood inside the house, the loud bangs

heard by the officers while they were outside, Antony's
statement that multiple other individuals were involved, and

Matalonis's assertions to the contrary, which were therefore

suspect (as was Antony's account).23 The officers did not know

who to believe or what had happened. At Matalonis's door, the

officers were basically told, "Yes, I just beat a drunken man

23
Matalonis's statements were also suspect because,
although the resident at the original address had told the
officers that Antony lived with Matalonis, Matalonis told the
officers that he lived alone.

24
 No. 2014AP108-CR

senseless, but there's nothing to see here; all this blood is

his." The officers need not have had their concerns assuaged by

Matalonis's explanation.24

¶43 The court of appeals apparently relied to some extent

on the fact that, in some of our other cases upholding searches

under the community caretaker doctrine, namely Pinkard and

Gracia, "officers had specific concerns about the welfare of

people known to be present in the homes when the officers

entered the homes." Matalonis, unpublished slip op., ¶24

(emphasis added). Here, it is true, the officers did not know

that there was an injured individual in any of the home's rooms.

But the Fourth Amendment does not inflexibly require that

officers be concerned about specific, "known" individuals in

order to be acting as community caretakers.

¶44 For instance, the case in which the community

caretaker doctrine "has its origins," Cady v. Dombrowski, 413

U.S. 433 (1973), involved Wisconsin police taking actions

directed toward the welfare of unknown individuals. Pinkard,
327 Wis. 2d 346, ¶15. In Cady a Wisconsin police officer

searched the trunk of a vacant car that had been towed to a

24
We recognize that it is possible, and even likely, that
the officers in this case were also motivated by the desire to
investigate a potential battery. However, "when under the
totality of the circumstances an objectively reasonable basis
for the community caretaker function is shown, that
determination is not negated by the officer's subjective law
enforcement concerns." State v. Gracia, 2013 WI 15, ¶19, 345
Wis. 2d 488, 826 N.W.2d 87.

25
 No. 2014AP108-CR

privately-owned garage. Cady v. Dombrowski, 413 U.S. 433, 436-

37 (1973). The car belonged to a man who had become drunk,

crashed the car, and later identified himself to police as a

Chicago police officer. Id. at 435-37. The Wisconsin police

officer searched the car "to protect the public from the

possibility that [the Chicago police officer's service] revolver

would fall into untrained or perhaps malicious hands." Id. at

437, 443. The police did not find a revolver in the car. Id.

at 436. The Supreme Court upheld the search. See id. at 446.

Cady thus involved (1) a search based on the potential existence

of a dangerous object, (2) to protect against the potential that

some unknown person might be harmed by the object. See id. at

447.

¶45 In Bies v. State, 76 Wis. 2d 457, 251 N.W.2d 461

(1977), which constituted "our very first discussion of the

community caretaker exception to the warrant requirement,"

Pinkard, 327 Wis. 2d 346, ¶21, an officer responded to

information provided by an anonymous telephone caller——
information "therefore . . . not possessed of even minimal

'indicia of reliability,'"——that "someone" was "making noise

shortly after midnight" in an unspecified garage in an alley.

Bies v. State, 76 Wis. 2d 457, 461, 470, 251 N.W.2d 461 (1977).

We stated,

Checking noise complaints bears little in common with
investigation of crime. As a general matter it is
probably more a part of the "community caretaker"
function of the police. . . . The officer was clearly
justified in proceeding to the alley in question and
conducting a general surveillance of the area to

26
 No. 2014AP108-CR

determine whether some noise or other disturbance was
present.
Id. at 471. Bies thus involved an investigation that was only

marginally directed at the welfare of an identifiable person,

the anonymous caller.

¶46 In a more recent case, Kramer, there was no dispute

between the parties that, but for the possibility of certain

subjective concerns, an officer was acting in a community

caretaker capacity when he activated his police cruiser's

emergency overhead lights while pulling up behind a vehicle

which was legally parked on the side of the road and which had

activated its hazard lights. Kramer, 315 Wis. 2d 414, ¶¶4-5,

22, 24, 37. The officer in that case "testified that his reason

for stopping was to 'check to see if there actually was a

driver, [and to] offer any assistance.'" Id., ¶5 (emphasis

added). We later acknowledged that the officer did not know

"what was going on inside the vehicle, or whether there was a

driver present," id., ¶38 (emphasis added), and did so again

when we explained that "it was [the officer's] community
caretaker function of offering assistance to what could have

been a motorist stranded in a stalled vehicle after dark that

led to the officer's contact with Kramer." Id., ¶39 (emphasis

added).

¶47 Although the parties in that case were litigating the

constitutional implications of the officer's subjective concerns

rather than whether the officer's actions constituted community
caretaking in the first place, see id., ¶24, the case is

27
 No. 2014AP108-CR

illustrative for our purposes. Requiring an officer such as the

one in Kramer to have concern for specific, "known" individuals

in order to be acting as a community caretaker might well mean

that an officer would have to have some kind of evidence

pointing to the presence of specific individuals in a stalled,

abandoned, or overturned vehicle on the side of the road before

he or she could investigate the vehicle as a community

caretaker.

¶48 Kramer suggests, like Cady and Bies, that whether the

police are acting in their capacity as community caretakers does

not depend upon whether the police are acting to protect persons

that have been specifically identified. The reverse is also

true: just because the police are acting to protect a person

that has been specifically identified does not mean that the

police are acting in their capacity as community caretakers.

See, e.g., Ultsch, 331 Wis. 2d 242, ¶¶1, 3-4 (police not engaged

in community caretaker function when they entered home to locate

driver of damaged vehicle after driver's boyfriend informed the
officers the driver was "up at the house 'possibly in bed or

asleep'"). We cannot lose sight of the fact that the question

of the lawfulness of the officers' conduct is ultimately one of

28
 No. 2014AP108-CR

reasonableness. Pinkard, 327 Wis. 2d 346, ¶13 (citation

omitted).25

¶49 The blood in this case——on the stairwell of the first

apartment, in the snow, on the side doors of Matalonis's house,

on the floor of the foyer of Matalonis's house, and leading up

to the stairwell in Matalonis's house——came from somewhere,

obviously, and Antony indicated that multiple individuals were

involved in the fight that led to his injuries. Antony

initially told Officer Ruha that he had been beaten up by four

different groups of people outside of a bar, but later said that

he was beaten up by four people outside of a bar. Matalonis, in

contrast, told the officers that he and Antony alone had fought.

Additionally, the resident at the address to which the officers

had first responded told the officers that Antony lived with his

25
The court of appeals below relied upon a formulation of
the "objectively reasonable basis" test it had earlier set forth
in its Ultsch opinion, namely that "there must have been 'an
"objectively reasonable basis" to believe there [was] "a member
of the public who [was] in need of assistance."'" Matalonis,
unpublished slip op., ¶15 (quoting State v. Ultsch, 2011 WI App
17, ¶15, 331 Wis. 2d 242, 793 N.W.2d 505). This slightly
misleading phrasing was created by splicing together two
distinct quotations from Kramer. See Ultsch, 331 Wis. 2d 242,
¶15 (quoting State v. Kramer, 2009 WI 14, ¶¶30, 32, 315
Wis. 2d 414, 759 N.W.2d 598). Our original formulation of that
test was that there must be "an objectively reasonable basis for
the community caretaker function." Kramer, 315 Wis. 2d 414, ¶30
(emphasis added). We also stated in Kramer that an officer
"serves as a necessary community caretaker when the officer
discovers a member of the public who is in need of assistance."
Id., ¶32. This statement should not be read to require
certainty as to whether a dangerous situation involves the
presence of individuals. As we have explained, Kramer itself
arguably implied that that kind of certainty is not required.

29
 No. 2014AP108-CR

brother, but Matalonis told the officers that he lived alone.

Officers Ruha and Yandel were apparently concerned that perhaps

Matalonis was not telling the truth. They had also heard loud

noises coming from inside Matalonis's residence. The evidence

in this case sufficiently provides an objectively reasonable

basis for the police to believe an injured individual needed

their help. We conclude that the officers in this case were

engaged in the exercise of a bona fide community caretaker

function when they searched Matalonis's home.26

26
The court of appeals thought that this case was similar
to State v. Maddix "in that the officers in this case did not
have before them any evidence pointing 'concretely to the
possibility that a member of the public was in need of
assistance' inside Matalonis's home," but that case is
distinguishable. See Matalonis, unpublished slip op., ¶24. In
Maddix evidence pointing to an individual in need of protection
included: (1) a call reporting a domestic disturbance, and (2)
hearing screams from inside the residence upon the officers'
arrival. State v. Maddix, 2013 WI App 64, ¶26, 348 Wis. 2d 179,
831 N.W.2d 778. Once inside the residence, the officers met and
separately interviewed two individuals. Id. One of the
individuals explained that she had screamed because "she was
scared but she didn't know what she was scared of." Id. The
Maddix court determined that a subsequent search of the
residence did not fall within the scope of the community
caretaker function. Id., ¶25.

The Maddix court noted that the "female's failure to
identify the source of the fear that caused her to scream" had
been the "primary basis" for the officers' subsequent search of
the apartment. Id., ¶26. Both individuals "gave the same basic
account" of what had happened. Id., ¶29. The court explained
that "no evidence directly corroborated the officers' theory
that another person was present in the apartment" and that there
was no "corroboration that someone was in need of assistance."
Id., ¶¶26-28. During the 25 to 30 minutes that the officers
were in the apartment prior to the inception of the search, the
officers were presented with "virtually no" relevant evidence
(continued)
30
 No. 2014AP108-CR

2. The Search of the House and of the Locked Room

¶50 Given our conclusion that the officers' search of

Matalonis's home was an exercise of the community caretaker

function, we examine whether the officers were presented with

evidence during their search that rendered that function no

longer necessary or otherwise negated it. If the officer in

Bies had discovered a person loudly playing music in the alley

in question, for example, the officer might not have been

justified in continuing his search after asking that the music

be turned off. See Maddix, 348 Wis. 2d 179, ¶¶29-30 (officers

who entered apartment and interviewed occupants "properly

exercised their community caretaker function and achieved the

purpose for which they were dispatched" and were not justified

in also searching the apartment). As we have made clear,

"such as noises, nervous behavior by Maddix or the female, or
statements by either of them that implied the presence of
another person." Id., ¶28.

In this case, in contrast, the blood trail and significant
amounts of blood that the officers discovered supported the
officers' theory that an individual in Matalonis's residence was
in need of assistance. This theory was "corroborated" by
Antony's statement that multiple individuals were involved. In
contrast to Maddix, moreover, the parties involved in this case
did not "[give] the same basic account." Id., ¶29 Finally, the
officers perceived suspicious noises coming from within the
residence and were confronted by Matalonis's suspicious
behavior: he answered the door breathless and "pretty upset" and
offered a version of events that did not match the information
the officers had gained earlier. While the Maddix court found
"no . . . facts," id., ¶30 (emphasis added), suggesting someone
else was present, here there was sufficient evidence supporting
the officers' concern that someone was in need of their
assistance.

31
 No. 2014AP108-CR

Matalonis's explanation was not sufficient for this purpose

because, among other things, the officers already possessed

contrary information.

¶51 The officers' community caretaking logically would

have been fulfilled only after they had checked the areas of the

home where persons might be located. The circuit court found

that "[the officers] searched only in areas where there was

blood found and they didn't search drawers or places where

obviously people could not hide but only rooms and larger areas

where bodies might be found." This conclusion is not clearly

erroneous.

¶52 During his search, Officer Ruha located numerous signs

of drug use. This does not invalidate the search. "[W]hen

under the totality of the circumstances an objectively

reasonable basis for the community caretaker function is shown,

that determination is not negated by the officer's subjective

law enforcement concerns." Gracia, 345 Wis. 2d 488, ¶19.

Police officers do not operate in a vacuum and may be confronted
with evidence of criminal activity as they seek to execute tasks

that are not related to law enforcement. See Pinkard, 327

Wis. 2d 346, ¶¶18, 40. The fact that there was evidence of drug

use in the house was not Officer Ruha's fault, and we find no

reason to disturb the circuit court's conclusion that the reason

for the search was to check the house for injured parties.

¶53 Similarly, we are convinced that Officer Ruha had the

welfare of potentially injured parties in mind when he obtained
access to the locked room in question. Upstairs, Officer Ruha
32
 No. 2014AP108-CR

had found "blood all over the handrail. There was a mirror that

was down that was broken. There [were] shards laying all over

the floor." These were further signs of an altercation.

Officer Ruha then observed (1) a locked door, (2) with blood on

it. If Matalonis had been lying about the presence of injured

parties, the room was obviously a likely candidate for

concealment of those parties. When Matalonis was questioned

about the door, Officer Yandel "noticed [Matalonis's] breathing

started becoming faster. [Matalonis] looked nervous to" Officer

Yandel. At that time the officers clearly had not yet completed

their legitimate community caretaking function. The circuit

court put it well:

[W]ith someone who is bleeding, someone who is taken
away by ambulance, to have a locked door in a house
with blood on that door and not search behind that
door and to later find that there's a dead body or a
bleeding body or a person in need of medical
assistance behind that door I think would not only be
improper, it would be a sign of poor police work.
¶54 Again, we recognize that the officers may have had

other subjective, enforcement-related interests at this time.

In particular, Officer Ruha testified that he heard a running

fan behind the locked door and smelled marijuana. If these two

facts were the only relevant ones before Officer Ruha, a

warrantless entry might not have been justified. But in light

of all the facts that Officer Ruha had to consider——the blood

(outside the house, inside the house, and on the door itself),

the fact that the door was locked, the conflicting stories, and
the noises the officers had heard——Officer Ruha's testimony that

33
 No. 2014AP108-CR

he heard a fan inside the locked room and smelled marijuana does

not negate the officers' bona fide community caretaking

function. See Gracia, 345 Wis. 2d 488, ¶19. The potential for

the presence of marijuana in the locked room did not render it

impossible that there were also injured parties in that room.27

¶55 It is easy, after the fact, to say that there was not

an injured person behind the locked door. But the police

officers in this case had to rely solely on the facts they

possessed at the time. Had there been a bludgeoned, bleeding

person suffering inside that locked room and had law enforcement

not investigated, we would be wondering why not, considering the

facts before them. Simply stated, we expect law enforcement to

respond to exigent situations, and that is just what they did in

this case.

27
Counsel for Matalonis found significant the fact that
Officer Ruha asked Matalonis "what" was in the locked room, as
opposed to "who" was in the locked room. We do not ascribe the
same significance to Officer Ruha's choice of words. First, we
do not think it prudent to imbue a single word with so much
consequence, especially given that events on the night in
question unfolded rapidly. Second, had there actually been
injured persons in the locked room, Matalonis would have been
actively concealing those persons from the police, and would
therefore not necessarily be expected to freely admit to doing
so in response to a question about the contents of the room.
For all we know, Officer Ruha framed the question the way he did
in order to gauge Matalonis's reaction, or to appear less
concerned than he actually was so as to keep Matalonis's guard
down. There is not enough evidence in the record to ascertain
the reason for Officer Ruha's particular phrasing of the
question.

34
 No. 2014AP108-CR

¶56 We conclude that the officers were exercising a bona

fide community caretaker function when they searched Matalonis's

home for injured parties. This function continued for the

duration of Officer Ruha's search of the home, including of the

locked room.

B. Whether the Officers Exercised their
Community Caretaker Function Reasonably
¶57 All that has been determined thus far, from a

constitutional perspective, is that a search of Matalonis's
house occurred, and that the officers conducted that search in

good faith as community caretakers in order to locate injured

parties.

¶58 The State still retains the burden, however, of

showing that the officers exercised their community caretaker

function reasonably. We must "balance the public interest or

need that is furthered by the officers' conduct against the

degree and nature of the intrusion on the citizen's

constitutional interest," Pinkard, 327 Wis. 2d 346, ¶41

(citation omitted), and consider:

(1) [T]he degree of the public interest and the
exigency of the situation; (2) the attendant
circumstances surrounding the search, 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.
Gracia, 345 Wis. 2d 488, ¶15 (citation omitted). We conclude

that the officers in this case exercised their community
caretaker function reasonably. Although the nature of the

35
 No. 2014AP108-CR

officers' intrusion was substantial, the public interest to be

served by the intrusion was also substantial, and the nature of

the intrusion was strictly limited to the requirements of the

situation.

¶59 The public has a significant interest in ensuring the

safety of a home's occupants when officers cannot ascertain the

occupants' physical condition and reasonably conclude that

assistance is needed. Pinkard, 327 Wis. 2d 346, ¶¶45-48 (citing

State v. Ziedonis, 2005 WI App 249, ¶29, 287 Wis. 2d 831, 707

N.W.2d 565). Here, Officer Ruha and Officer Yandel reasonably

concluded based on the evidence before them that their

assistance was needed to verify that the blood in Matalonis's

house did not belong to an injured person other than Antony.

The situation was exigent in nature. The officers were not

responding to a mere noise complaint, such as occurred in Bies,

but instead investigating the possibility that a person lay

injured, perhaps critically, in Matalonis's home. If the blood

in the house belonged to someone besides Antony who "had been
seriously injured[,] . . . quick medical assistance would have

been necessary." Gracia, 345 Wis. 2d 488, ¶25 (applying first

36
 No. 2014AP108-CR

factor of balancing test to situation involving individual who

potentially had been injured in a car accident).28

¶60 The attendant circumstances surrounding the search

demonstrate the reasonableness of the search, given the

circumstances. Before we analyze this factor, we emphasize the

fact that we are not here presented with a police officer's

warrantless, nonconsensual entry into a home. Instead, we

examine whether the officers in this case, while already

lawfully in Matalonis's home, acted reasonably in searching the

rooms of the home without consent. Nevertheless, the police

undeniably intruded on Matalonis's significant constitutional

right "to retreat into his own home and there be free from

unreasonable governmental intrusion." Silverman v. United

28
Matalonis argues that if the police had actually believed
the situation was urgent, they would have immediately kicked
down the door to the locked room without going to the trouble of
obtaining the key from Matalonis. We are not convinced by this
argument. The decisive issue before us is whether the conduct
of the police while at Matalonis's residence was reasonable,
see Pinkard, 327 Wis. 2d 346, ¶13, and the police must similarly
ensure that they are acting reasonably as situations before them
progress. If the police had immediately broken down the door
without asking for a key, Matalonis would likely be arguing that
"the degree of overt authority and force displayed" was
unreasonable. Gracia, 345 Wis. 2d 488, ¶15 (citation omitted).
Because our analysis of whether the officers exercised the
community caretaking function reasonably is a balancing test, we
are concerned with the officers' conduct as a whole. A quick
detour to attempt to obtain a key to the locked room (as well as
to ask Matalonis about the room) in order to avoid having to
kick down a door in Matalonis's house does not prove that the
situation was something less than exigent.

37
 No. 2014AP108-CR

States, 365 U.S. 505, 511 (1961) (citation omitted); see Payton

v. New York, 445 U.S. 573, 586-87, 589-90 (1980).

¶61 The officers did not choose the time or location of

the search because they were initially responding to a medical

call and reacting to evidence discovered upon their arrival.

See Pinkard, 327 Wis. 2d 346, ¶49 (officers did not control time

of day or location because they were responding to an anonymous

tip). As for the search itself, as we have noted, the circuit

court found "[the officers] searched only in areas where there

was blood found and they didn't search drawers or places where

obviously people could not hide but only rooms and larger areas

where bodies might be found. "

¶62 We agree with the court of appeals that the degree of

authority and force the officers displayed was "considerable":

"Officer Ruha conducted a warrantless search of Matalonis's

residence without Matalonis's consent, . . . Matalonis was

detained in his living room with Officer Yandel, and Officer

Ruha threatened to break down the locked door on the second
floor if a key to the door was not provided." Matalonis,

unpublished slip op., ¶33. However, the authority and force

displayed was appropriate for the legitimate community

caretaking objective the officers were pursuing. In order to

ensure that there were no injured parties in Matalonis's house,

Officer Ruha needed to check the rooms of the house, and

quickly. Obtaining a warrant was not practicable given the

exigency of the situation. Further, and for the same reason,
the officers needed to obtain immediate access to the locked
38
 No. 2014AP108-CR

room. In asking Matalonis for a key to the room rather than

abruptly breaking it down, Officer Ruha was attempting to use

less authority and force than might have been justified under

the circumstances. See Pinkard, 327 Wis. 2d 346, ¶¶50-51

(citing State v. Horngren, 2000 WI App 177, ¶17, 238

Wis. 2d 347, 617 N.W.2d 508) (exigency of situation rendered

officers' actions reasonable). Matalonis was detained on the

living room couch in his own home while Officer Ruha checked the

rooms of the home. However, Matalonis was not handcuffed. He

was not placed under arrest. There is no evidence in the record

that Matalonis was frisked. There is no evidence in the record

that a weapon was ever pointed at Matalonis. All in all, the

force and authority displayed in this situation was

"considerable" but appropriately tailored to the needs of the

situation. See id., ¶55 ("The officers' search was limited to

minimize the intrusion into Pinkard's home.").

¶63 No automobile was involved in this case. "This is not

a relevant factor here except to recognize that one has a
heightened privacy interest in preventing intrusions into one's

home." Pinkard, 327 Wis. 2d 346, ¶56.

¶64 Finally, we consider the "availability, feasibility

and effectiveness of alternatives to the type of intrusion

actually accomplished." Gracia, 345 Wis. 2d 488, ¶15 (citation

omitted). As we have said, a warrant was not a feasible

alternative. The court of appeals below thought the officers

could have "ask[ed] Matalonis whether there was anyone injured
(or uninjured) in his home." Matalonis, unpublished slip op.,
39
 No. 2014AP108-CR

¶35. We note that the officers asked Matalonis who lived at his

residence and Matalonis told the officers that he lived alone.29

Officer Ruha also asked Matalonis about the contents of the

locked room (and was lied to). Given their time constraints,

and the fact that the officers "would not have been required to

accept at face value" Matalonis's responses, id. (citation

omitted), further questioning was not clearly an effective

alternative to the route actually taken by the officers. It is

difficult to second-guess credibility determinations invariably

made by the officers on the night in question.

¶65 The one additional step not taken by Officer Ruha that

he could have taken was to knock on the locked door and call out

to potential parties on the other side of the door. However,

had there been no answer, the officers would have had the same

cause for concern. An injured party on the other side of the

door could be unconscious, incapacitated, or dead. Though

available and feasible, the alternative would not, ultimately,

have been effective; Officer Ruha's failure to knock on the
locked door only marginally reduces the reasonableness of his

actions, if at all.30

29
As has been explained, this statement by Matalonis was
inconsistent with information the officers had received at the
first address to which they had responded.
30
Counsel for Matalonis found Officer Ruha's failure to
knock on the door to the locked room probative. But Officer
Ruha's failure to knock on the door is not enough, standing
alone, to disturb the circuit court's finding that the officers
were in fact searching for injured parties. We do not possess
sufficient information regarding Officer Ruha's thought process
(continued)
40
 No. 2014AP108-CR

¶66 Taken together, our balancing test shows: (1) a

significant public interest and an exigent situation; (2) a

significant intrusion on Matalonis's constitutional rights, but

one tailored to the needs of the situation; and (3) few or no

available, feasible, and effective alternatives. We conclude

that, on balance, the officers' exercise of the community

caretaker function was reasonable "because the public interest

in the search outweighed [Matalonis's] privacy interests."

Gracia, 345 Wis. 2d 488, ¶30.

V. CONCLUSION

¶67 We conclude that the officers in this case reasonably

exercised a bona fide community caretaker function when they

searched Matalonis's home. The officers therefore were not

required to obtain a warrant prior to conducting the search in

question, and the evidence of marijuana production they obtained

should not be suppressed.31 Because the search was lawful under

in the face of a developing situation to decide that asking
Matalonis for access to the locked room rather than pounding on
the door demonstrates that Officer Ruha was unconcerned about
injured parties. And on the other side of the ledger, although
Officer Ruha did not knock on the door to the locked room, he
testified that he announced "Kenosha Police" as he entered the
locked room. This would tend to show that Officer Ruha believed
there might have been individuals in the room.
31
The State contends, and we agree, that if the officers'
search was justified as a reasonable exercise of a bona fide
community caretaker function, the officers "acted within the
scope of the plain view doctrine when they seized contraband
from the residence, including the locked room." See Pinkard,
327 Wis. 2d 346, ¶62; Gracia, 345 Wis. 2d 488, ¶29 n.14
(explaining plain view exception to the warrant requirement).

41
 No. 2014AP108-CR

the community caretaker doctrine, we need not determine whether

the search was also justified as a protective sweep. We reverse

the decision of the court of appeals and remand the case to the

circuit court for further proceedings consistent with this

opinion.

By the Court.—The decision of the court of appeals is

reversed, and the cause is remanded to the circuit court for

further proceedings consistent with this opinion.

42
 No. 2014AP108-CR.ssa

¶68 SHIRLEY S. ABRAHAMSON, J. (dissenting). I agree

with Justice David T. Prosser that the community caretaker

exception is important but cannot be interpreted so broadly as

to swallow the Fourth Amendment. See, e.g., State v. Gracia,

2013 WI 15, ¶¶42-46, 345 Wis. 2d 488, 826 N.W.2d 87 (Abrahamson,

C.J., dissenting, joined by Ann Walsh Bradley, J. & Prosser,

J.); Gracia, 345 Wis. 2d 488, ¶¶47-90 (Prosser, J., dissenting,

joined by Abrahamson, C.J. & Ann Walsh Bradley, J.); State v.

Pinkard, 2010 WI 81, ¶¶64-101, 327 Wis. 2d 346, 785 N.W.2d 592

(Ann Walsh Bradley, J., dissenting, joined by Abrahamson, C.J. &

Prosser, J.). Accordingly, I join Justice Prosser's dissent.

¶69 I write separately not only to reaffirm my assessment

that this court has taken too broad a view of the community

caretaker exception, but also to memorialize once again the

approach being taken in the instant case and in other cases

argued and tentatively decided before a new justice's (here

Justice Rebecca G. Bradley's) appointment to the court, and to
compare the practice at this time with past practice in this

court and in the United States Supreme Court.

¶70 As I have written previously, these cases "pose[] the

question of how a case should be treated by the court when the

case was heard and decided before a new justice became a member

of the court and the new member joins the court before an

opinion is released." New Richmond News v. City of New

Richmond, 2015 WI 106, ¶7, 365 Wis. 2d 610, ___ N.W.2d ___
(Abrahamson, J., concurring).

1
 No. 2014AP108-CR.ssa

¶71 Let me briefly set forth the facts and circumstances

of the change in membership of the court, the status of cases

heard in September and October, and the issues raised by a new

justice's joining the court at this time.1

¶72 Justice N. Patrick Crooks passed away on September 21,

2015. Justice Rebecca G. Bradley joined the court on October 9,

2015.

¶73 Prior to September 21, 2015, the court heard oral

argument in the instant case and eight other cases. Justice N.

Patrick Crooks participated in these nine cases. No opinion was

released in these nine cases prior to Justice Rebecca G.

Bradley's joining the court. These nine cases are set forth in

the attached oral argument schedule (Attachment A) released by

the Clerk of the Supreme Court.

¶74 In addition, after Justice N. Patrick Crooks passed

away on September 21, 2015, and prior to Justice Rebecca G.

Bradley's appointment, the court heard oral argument in seven

cases on September 22, October 5, and October 6, 2015. No
opinion was released in these seven cases prior to Justice

Rebecca G. Bradley's appointment to the court. These seven

cases are set forth in the attached oral argument schedules

1
I am not writing about the Office of Lawyer Regulation
lawyer discipline cases and petitions for review or bypass and
certifications by the court of appeals. These matters are too
numerous and involve a large variety of factual patterns. They
do, however, present issues similar to those presented by the
oral argument cases.

2
 No. 2014AP108-CR.ssa

(Attachments A and B) released by the Clerk of the Supreme

Court.

¶75 Opinions have been released in five cases heard and

decided before Justice Rebecca G. Bradley joined the court.

Justice Rebecca G. Bradley did not participate in these five

cases: State v. Dumstrey, 2016 WI 3, ¶52, ___ Wis. 2d ___, ___

N.W.2d ___; Winnebago Cnty. v. Christopher S., 2016 WI 1, ¶58,

___ Wis. 2d ___, ___ N.W.2d ___; Wis. DOJ v. Wis. DWD, 2015 WI

114, ¶60, 365 Wis. 2d 694, ___ N.W.2d ___; New Richmond News,

2015 WI 106, ¶4, 365 Wis. 2d 610, ___ N.W.2d ___; State v.

Iverson, 2015 WI 101, ¶62, 365 Wis. 2d 302, 871 N.W.2d 661.

¶76 The per curiam opinion in New Richmond News explained

Justice Rebecca G. Bradley's non-participation thusly: "Justice

Rebecca G. Bradley was appointed to the court after the court's

decision, and therefore did not participate."2 No other opinion

has explained Justice Rebecca G. Bradley's non-participation.

¶77 The same situation as described in New Richmond News

appears to exist in the instant case. Justice Rebecca G.
Bradley was appointed to the court after the court heard oral

argument and tentatively decided the instant case on September

18, 2015. Yet unlike New Richmond News and the four other cases

from September and October in which opinions have been issued

(in which Justice Rebecca G. Bradley did not participate),

Justice Rebecca G. Bradley participates in the instant case.

2
New Richmond News, 365 Wis. 2d 610, ¶1.

3
 No. 2014AP108-CR.ssa

¶78 Although the majority opinion looks regular in its

form, the opinion differs from other opinions released in

September and October cases. The vote in the instant case is 4-

3, with Justice Rebecca G. Bradley as part of the majority of

four. Without Justice Rebecca G. Bradley's vote, this case

would result in a tie vote. The decision of the court of

appeals would be affirmed. With Justice Rebecca G. Bradley's

vote, the decision of the court of appeals is reversed.

¶79 In sum, Justice Rebecca G. Bradley's participation in

the instant case appears inconsistent with her non-participation

in New Richmond News and other cases argued in September and

October.

¶80 Although this court has not had much experience with a

new justice joining the court after a case has been heard but

before an opinion is released, we have had some. In my

concurring opinion in New Richmond News, I wrote at length,

reviewing this court's past experiences and the past experiences

and practice of the United States Supreme Court.3
¶81 I concluded that the process when a new justice joins

the court after a case has been heard but before an opinion is

released is as follows: The justices who originally

participated in the case, without the new justice's input,

decide whether to reargue the case. The new justice may

3
See New Richmond News, 365 Wis. 2d 610, ¶¶17-25
(Abrahamson, J., concurring).

4
 No. 2014AP108-CR.ssa

participate in reargument and subsequent proceedings.4 No

precedent appears to exist in the United States Supreme Court or

in this court for a new justice who did not participate in oral

argument to participate in the case without reargument.

¶82 In the instant case, which predates Justice Rebecca G.

Bradley's appointment to the court, Justice Rebecca G. Bradley

participates without a reargument. Justice Rebecca G. Bradley's

participation in some (but not all) cases predating her

appointment to the court, and participation in those cases

without a reargument appear to be internally inconsistent and

inconsistent with the court's prior practice and the practices

in the United States Supreme Court.

¶83 As I stated previously, to aid the court in the

future, I write once again to memorialize the approach being

taken by the court in the instant case and to compare the

present practice with this court's past practice and the

practices of the United States Supreme Court.

¶84 For the reasons set forth, I join Justice David T.
Prosser's dissent and write separately.

4
Thus, "under past precedent of this court and the United
States Supreme Court, it appears that if a new justice is
available to break a tie vote, then the court, without the new
justice's input, decides whether to reargue the case. In
reargument, the new justice participates." See New Richmond
News, 365 Wis. 2d 610, ¶¶21-26 (Abrahamson, J., concurring)
(citing Buse v. Smith, 74 Wis. 2d 550, 247 N.W.2d 141 (1976);
Stephen M. Shapiro et al., Supreme Court Practice, ch. 15.6 at
838-39 (10th ed. 2013)).

5
 No. 2014AP108-CR.ssa

ATTACHMENT A

1
 No. 2014AP108-CR.ssa

ATTACHMENT B

2
 No. 2014AP108-CR.dtp

¶85 DAVID T. PROSSER, J. (dissenting). The Fourth

Amendment to the United States Constitution reads as follows:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
¶86 There are exceptions to the Fourth Amendment's warrant

requirement, but these exceptions are "few in number and

carefully delineated." United States v. U.S. Dist. Court, 407

U.S. 297, 318 (1972). In cases in which the police have seized

evidence that a defendant seeks to suppress, a court must

determine whether the police conducted a search and, if so,

whether they were required to obtain a judicial warrant before

the search. No warrant is required when the police are acting

pursuant to a recognized exception to the warrant requirement.

¶87 Whether an exception to the warrant requirement exists

in a particular case is often a close question. When a court
consistently resolves these close questions against the

necessity for a warrant, the court tends to expand the

exceptions and reduce the protections of the Fourth Amendment.

Because I believe the scope of the community caretaker exception

is being substantially expanded in this case, without any

compelling justification, I respectfully dissent.

I

¶88 The facts in this case are carefully set out by the
majority opinion. See majority op., ¶¶4-20. Summarizing

1
 No. 2014AP108-CR.dtp

briefly, Kenosha police were called to assist a man who was

bleeding profusely. The man, Antony Matalonis (Antony), told

inconsistent stories about how he was beaten before he was taken

to a hospital. Advised that Antony lived with his brother

nearby, the police were able to follow a trail of blood to the

home of the brother, Charles Matalonis (Charles), a relatively

short distance away.

¶89 There was blood on the door of Charles's house. After

calling for backup, the police knocked on his door and were

quickly admitted. There were splotches of blood throughout the

first and second floors. Charles admitted he had been in a

fight with his brother. He admitted he had been cleaning up

blood. He permitted officers to go through the house to assure

their own safety and explore the possibility of other injured

persons in the house. They found no injured persons.

¶90 On the second floor, in plain view, a police officer

did see marijuana and a variety of drug paraphernalia——pipes and

other smoking utensils, a small silver grinder, and a ceramic
water bong. The officer also encountered a locked door with a

few droplets of blood scattered on the door. The officer

smelled a strong odor of marijuana coming through the door and

heard a fan running behind the door.

¶91 The date was January 15; the time was after 3:00 a.m.

A reasonable person could infer that a fan is not normally

operating at such a date and time merely for purposes of

comfortable climate control.

2
 No. 2014AP108-CR.dtp

¶92 In my view, the officer's observations on the second

floor, followed by Charles's refusal to give consent to open the

locked door, provided ample probable cause for a search warrant

for the locked room to search for drugs. Conversely, the

officers would have been hard pressed to make a case for a

search warrant to find a body in some condition behind the door.

Officers had already accounted for other known occupants of the

house, including a basement tenant.

II

¶93 If one acknowledges that there was no probable cause

to search for a person——living or dead——behind the door, the

government had to have an exception to the warrant requirement

that did not require probable cause.

¶94 Consent to search is an exception to the warrant

requirement, but everyone understands that threats and duress

are inconsistent with voluntary consent. There is no claim in

this case that Charles Matalonis freely consented to the search

of the locked room.
¶95 The exigent circumstances exception also is

inappropriate because the exigent circumstances exception

requires probable cause.

¶96 Thus, the State and the majority rely upon the

community caretaker exception. This exception does not require

probable cause because investigation of a crime is not the

predominant motivation for police action.

¶97 In State v. Gracia, 2013 WI 15, 345 Wis. 2d 488, 826
N.W.2d 87, I traced the history and evolution of the community

3
 No. 2014AP108-CR.dtp

caretaker exception in Wisconsin. My dissent did not discuss

the court of appeals' decision in State v. Ziedonis, 2005 WI App

249, 287 Wis. 2d 831, 707 N.W.2d 565, which is a very persuasive

analysis of the community caretaker exception.

¶98 There is no need here to restate the analysis in all

past cases. It is enough to note that community caretaking has

moved beyond fact situations involving automobiles to fact

situations inside people's houses and even situations involving

locked rooms inside people's homes. Moreover, community

caretaking has moved from fact situations in which the actions

of police are "totally divorced from the detection,

investigation, or acquisition of evidence relating to the

violation of a criminal statute," State v. Anderson, 142

Wis. 2d 162, 166, 417 N.W.2d 411 (Ct. App. 1987) (quoting Cady

v. Dombrowski, 413 U.S. 433, 441 (1973)), rev'd on other

grounds, 155 Wis. 2d 77, 454 N.W.2d 763 (1990), and, more than

three decades later, fact situations in which a police officer's

subjective law enforcement concerns do not negate an
"objectively reasonable basis" for the officer's community

caretaker function, State v. Kramer, 2009 WI 14, ¶¶29-32, 315

Wis. 2d 414, 759 N.W.2d 598, to situations in which a community

caretaking theory supported by corroborating facts does not

require a warrant even where traditional law enforcement

concerns predominate.

III

¶99 As the majority properly states, majority op., ¶31,
this court uses a three-part test when evaluating whether a law

4
 No. 2014AP108-CR.dtp

enforcement officer's performance of a community caretaker

function provides an exception to the warrant requirement:

When a community caretaker function is asserted as the
basis for a home entry, the circuit court must
determine: (1) whether a search or seizure within the
meaning of the Fourth Amendment has occurred; (2) if
so, whether the police were exercising a bona fide
community caretaker function; and (3) if so, whether
the public interest outweighs the intrusion upon the
privacy of the individual such that the community
caretaker function was reasonably exercised within the
context of a home.
State v. Pinkard, 2010 WI 81, ¶29, 327 Wis. 2d 346, 785

N.W.2d 592 (citing Kramer, 315 Wis. 2d 414, ¶21).

¶100 This dissent focuses on the second and third prongs

stated above.

A

¶101 The majority concludes that Officer Brian Ruha

exercised a bona fide community caretaker function because he

had an objectively reasonable basis to enter the locked room

based on his observations. Majority op., ¶42. However, the

majority opinion is unclear on what degree of certainty an
officer must possess to initiate the community caretaker

function and then to maintain it as circumstances change.

¶102 In State v. Ferguson, 2001 WI App 102, ¶22, 244

Wis. 2d 17, 629 N.W.2d 788, Judge Curley, joined by Judge Fine,

used a felicitous phrase: "Unlike the facts in [State v.] Dull[,

211 Wis. 2d 652, 565 N.W.2d 575 (Ct. App. 1997)], the police

here never stepped out of their caretaking role." (Emphasis

added.) How do we determine when a police officer steps out of

5
 No. 2014AP108-CR.dtp

his "caretaking role" to focus on the investigation of criminal

activity?

¶103 Cady v. Dombrowski and Bies v. State, 76 Wis. 2d 457,

251 N.W.2d 461 (1977), were cases in which officers were not

seeking evidence of specific crimes. They were pursuing the

non-criminal facet of police work and were surprised at the

evidence of criminal activity that they encountered. Both cases

are distinguishable from Matalonis's situation.

¶104 From the outset in this case, after seeing Antony, the

police thought that a crime might have been committed. If a

crime had been committed, there might have been other victims.

However, this "theory" was pursued to extreme lengths when an

officer postulated that a deceased or injured person might be

found behind a locked door, knowing that marijuana would almost

certainly be found beyond the locked door.

¶105 The majority declares: "In this case, . . . the blood

trail and significant amounts of blood that the officers

discovered supported the officers' theory that an individual in
Matalonis's residence was in need of assistance. . . . [H]ere

there was sufficient evidence supporting the officers' concern

that someone was in need of their assistance." Majority op.,

¶49 n.26.

¶106 This expansive conception of community caretaking

transforms community caretaking from a narrow exception into a

powerful investigatory tool. No longer limited to the purpose

of allowing the State to rely upon evidence obtained by law
enforcement officers incidental to their provision of valuable

6
 No. 2014AP108-CR.dtp

services to the public, community caretaking becomes an end in

itself. Officers can now easily conduct a warrantless search in

the name of "community caretaking"; they must merely articulate

a hypothetical community need——here, checking to see whether an

injured person was trapped in the closet——based on circumstances

that they observe. Conveniently, they may then retain any

evidence of criminal activity that comes into their plain view

as they conduct their community caretaking search.

B

¶107 A broad statement of a bona fide community caretaker

function becomes more concerning when considered in conjunction

with the public interest that the majority articulates in this

case: "The public has a significant interest in ensuring the

safety of a home's occupants when officers cannot ascertain the

occupants' physical condition and reasonably conclude that

assistance is needed." Majority op., ¶59.

¶108 For this proposition, the majority cites Pinkard and

Ziedonis. The Pinkard court characterized Ziedonis as involving
"a significant public interest in ensuring the safety of the

occupants because the officers could not ascertain their

physical condition and 'reasonably concluded' that assistance

was needed." Pinkard, 327 Wis. 2d 346, ¶45 (quoting Ziedonis,

287 Wis. 2d 831, ¶29). Like Pinkard, Ziedonis involved police

officers entering a residence for the purpose of checking the

welfare of a resident. Pinkard, 327 Wis. 2d 346, ¶4; Ziedonis,

287 Wis. 2d 831, ¶5. In both cases, officers received
information indicating that a person was present in the

7
 No. 2014AP108-CR.dtp

residence, found a door ajar allowing access to the interior of

the residence, announced themselves before searching the

residence, and ultimately encountered the resident inside.

Pinkard, 327 Wis. 2d 346, ¶¶2-5; Ziedonis, 287 Wis. 2d 831, ¶¶2-

8.

¶109 Unlike the residents in Pinkard and Ziedonis,

Matalonis responded immediately when law enforcement officers

knocked on his door. Matalonis told the officers that he lived

alone, and they confirmed the safety of Matalonis's tenant

without accessing the locked room.1 Consequently, with

Matalonis, his brother, and his tenant accounted for, Officer

Ruha searched the house not for a particular person suspected of

needing care but to determine whether any other person was

present.

¶110 An open-ended search for occupants illustrates the

danger that results when the majority's description of the

community caretaker function combines with its statement of the

public interest present in this case. As occurred here,
officers could point to facts and——without demonstrating

1
The record is unclear as to the exact timing of the
officers' interaction with the tenant living in Matalonis's
basement. At the beginning of his testimony at the suppression
hearing, Officer Ruha indicated that he did not go into the
basement during his search because no blood led into the
basement. Rather than enter the tenant's room, the officers
"waited till he came out to talk" to them. Later in his
testimony, Officer Ruha indicated that he spoke with the tenant
at approximately the same time he decided not to search the
basement, saying, "I believe I talked to him right then and
there in the basement."

8
 No. 2014AP108-CR.dtp

probable cause or even reasonable suspicion——use those facts to

set forth a theory that a person in a building requires

immediate police assistance. Given that the public would then

have an interest in the officers assisting the theoretical

person inside the building, officers could enter the building

and search it to determine whether there is in fact a person in

need of assistance. Once officers enter the building, the plain

view doctrine allows them to seize evidence of unrelated

criminal activity that they encounter——even if the search

ultimately reveals that the person to whom they attempted to

provide care remains purely theoretical. Furthermore, officers

may conduct their search for the theoretical person who might

need care regardless of whether other law enforcement objectives

affect their desire to enter the building2——such as probable

cause or reasonable suspicion that they will encounter evidence

of unrelated criminal activity inside——so long as a factual

basis supports their community caretaking theory.

IV
¶111 The community caretaker exception recognizes the

crucial role that law enforcement officers play in our society.

The exception allows the State to rely on evidence that officers

2
See Whren v. United States, 517 U.S. 806, 813 (1996)
("Subjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis."); State v. Kramer, 2009 WI 14, ¶29,
315 Wis. 2d 414, 759 N.W.2d 598 ("The reasoning of Whren is not
inconsistent with the analysis in a community caretaker context,
since police conduct is not based on probable cause or
reasonable suspicion when a community caretaker function is
ongoing.").

9
 No. 2014AP108-CR.dtp

obtain when providing valuable services to the community.

Officers frequently engage fellow citizens with no intention of

investigating criminal activity, but sometimes they encounter

evidence of criminal conduct during the course of those

interactions. An officer engaged in a genuine community

caretaking function will not and should not hesitate to assist

members of the public when time is of the essence. Cf. Brigham

City v. Stuart, 547 U.S. 398, 400 (2006) ("[P]olice may enter a

home without a warrant when they have an objectively reasonable

basis for believing that an occupant is seriously injured or

imminently threatened with such injury.").

¶112 But the majority's embrace of a broad, ever-expanding

version of the exception risks transforming a shield for

evidence encountered incidental to community caretaking into an

investigatory sword. Wisconsin already applies a generous

interpretation of the exception. See 3 Wayne R. LaFave, Search

and Seizure § 6.6 n.4, at 595 (5th ed. 2012) ("Because

[Cady] stressed 'the distinction between motor vehicles and
dwelling places,' it is commonly responded that the Cady

doctrine is limited to vehicles."). Allowing law enforcement

officers to conduct warrantless searches based on a mere theory

of community need——and without making a showing of probable

cause or even reasonable suspicion——completely undermines the

Fourth Amendment's warrant requirement.

¶113 Because I believe the majority opinion unnecessarily

expands this valuable exception, I respectfully dissent.

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 No. 2014AP108-CR.dtp

¶114 I am authorized to state that Justice SHIRLEY S.

ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.

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 No. 2014AP108-CR.dtp

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