State v. Gracia

DAVID T. PROSSER, J.

¶ 47. (dissenting). The primary issue presented in this case is whether police entry into the defendant's bedroom without a warrant was lawful under the Fourth Amendment.1 The majority concludes that the entry, resulting in a search and an arrest, was permitted by the community caretaker exception to the warrant requirement. I disagree and respectfully dissent.

I

¶ 48. 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 *517searches 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.

U.S. Const, amend. IV

¶ 49. Although the Fourth Amendment protects a variety of privacy interests in a variety of settings, the chief evil identified in the text is the unauthorized physical entry of a person's home. United States v. United States Dist. Court, 407 U.S. 297, 313 (1972).

¶ 50. Warrantless searches are deemed per se unreasonable, "subject only to a few specifically established and well-delineated exceptions."2 Thus, police may not enter a person's home without a warrant unless they are operating under one of the well-delineated exceptions. This is true even when a person in the home would be subject to arrest without a warrant if the person stepped outside.

¶ 51. The most obvious exceptions to the warrant requirement for the search of a home are consent3 and exigent circumstances,4 including hot pursuit. The war*518rantless search of a probationer's home by a probation officer also is an established exception.5 None of these exceptions apply to the search of the defendant's bedroom in this case.

¶ 52. Thus, the police rely on another exception: community caretaker. The community caretaker exception allows law enforcement officers, under certain circumstances, to use evidence they acquire while they are conducting "preventative patrol," "assisting] those who cannot care for themselves," "creating] and maintaining] a feeling of security in the community," and "providing] other services on an emergency basis."6 3 Wayne R. LaFave, Search and Seizure, § 6.6, at 595 (5th ed. 2012) (citing 1 ABA Standards for Criminal Justice § 1-2.2 (2d ed. 1980)). The evolution of this exception in Wisconsin case law is instructive.

¶ 53. The seminal case for the community caretaker principle is Cady v. Dombrowski, 413 U.S. 433 (1973). In Cady, a case with Wisconsin origins, police officers arrested the defendant for drunk driving after a one-car accident. Id. at 435-36. The defendant informed the officers that he was a Chicago police officer, and the local officers began to act on the belief that "Chicago police officers were required by regulation to carry their service revolvers at all times." Id. at 436. The officers' initial check of the passenger compartment of the vehicle and of the defendant's person did not produce a revolver. Id. Shortly thereafter, police had the defendant's car towed from the accident scene to a *519privately owned garage. Id. Later, an officer returned to the car to continue looking for the service revolver.7 Id. at 436-37. While examining the passenger compartment, the officer spotted an object with blood on it, and then found more evidence of a possible crime in the car's trunk. Id. at 437.

¶ 54. At his first-degree murder trial, the defendant argued that certain evidence found in the passenger compartment and trunk when the local officer searched for the service revolver was unconstitutionally seized. See id. at 434. The Supreme Court ultimately disagreed, holding that law enforcement's actions in towing the vehicle and attempting to locate the service revolver did not require a warrant under the Fourth Amendment. The Court said:

Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

Id. at 441 (emphasis added).

*520¶ 55. Cady stressed the "distinction between motor vehicles and dwelling places." Id. at 447. This distinction was repeated in South Dakota v. Opperman, 428 U.S. 364, 367 (1976), where the Court observed that it had "traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment." Thus, "warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not." Id. (citations omitted). As a result, numerous courts have ruled that the community caretaker exception applies only to motor vehicle searches. LaFave, § 6.6, at 595 n.4 (citing Ray v. Twp. of Warren, 626 F.3d 170 (3d Cir. 2010); United States v. Bute, 43 F.3d 531 (10th Cir. 1994); United States v. Erickson, 991 F.2d 529 (9th Cir. 1993); United States v. Pichany, 687 F.2d 204 (7th Cir. 1982)). However, when this court recognized the community caretaker exception for the first time in Bies v. State, 76 Wis. 2d 457, 471, 251 N.W.2d 461 (1977), it applied the exception to a much different set of facts than those in Cady.

¶ 56. In Bies, a police officer patrolled an alley in the middle of the night in response to a noise complaint about a garage in the alley. Id. at 460-61. A light in a garage went out as the officer's car approached. Id. at 461. Because the main door of the garage was shut, the officer walked to the rear of the garage where he found an open doorway with a missing door. Id. After shining his flashlight into the garage, the officer saw 25 to 50 feet of three-inch telephone cable on the ground. Id. He went back to his car to inform police headquarters. Id. at 461-62. After another officer arrived, the officers went into the garage, took a piece of the cable, and left. Id. at 462. The officers realized that they had stumbled upon cable that only telephone companies could legally obtain. Id. at 475.

*521¶ 57. The Bies court stated that the community caretaker exception justified the first officer checking on the noise complaint and going from the alley to the rear of the garage — in the curtilage of the defendant's home — to further investigate the source of the reported noise. Id. at 471. "Checking noise complaints bears little in common with investigation of crime," the court said. Id. Thus, it was not unreasonable for the officer to walk to the rear of the garage, where he discovered the rear door missing, rather than stop at the closed overhead automobile door. Id. at 472. At that point, the officer was justified in going into the open garage under the plain view exception to the warrant requirement, not the community caretaker exception. Id. at 471-72. In other words, the community caretaker exception brought the officer in Bies to the threshold of the garage door in the curtilage of the home, but it was the plain view exception that allowed officers to cross the threshold into the garage.

¶ 58. The court of appeals examined the community caretaker function ten years later in State v. Anderson, 142 Wis. 2d 162, 417 N.W.2d 411 (1987). Two police officers noticed Anderson's vehicle approaching their car while they were on patrol. Id. at 164. One of the officers had previously received complaints about Anderson parking his car in private parking spots, so that the officer wanted to talk to him about this issue. Id. at 164-65. When Anderson turned away down an alley, the officers followed and pulled him over. Id. at 165. After Anderson stopped, the officers noticed that he was trying to conceal something, and they saw a leather object protruding from under the seat. Id. The officers ordered Anderson out of the car and found a loaded gun and several knives after a search of the car. Id. Like Bies, the Anderson facts involved routine police *522conduct, not focused examination of criminal activity, that led inadvertently to the discovery of criminal evidence.

¶ 59. The court of appeals in Anderson set out a three-step test for evaluating claims of community caretaker functions:

[W]hen a community caretaker function is asserted as justification for the seizure of a person, the trial court must determine: (1) that a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual.
As to the last factor- — weighing the public need and interest against the intrusion — -relevant considerations include: (1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.

Anderson, 142 Wis. 2d at 169-70 (footnotes omitted).

¶ 60. In State v. Kelsey C.R., 2001 WI 54, 243 Wis. 2d 422, 626 N.W.2d 777, this court applied the community caretaker exception, leading to the warrantless search or pat-down of a juvenile. Two police officers found Kelsey alone in the dark in a high-crime area of Milwaukee and they were concerned that she was a runaway. Id., ¶ 1. She had her hood up and was huddled in front of a closed store. Id., ¶ 4. The officers asked Kelsey some questions and thought that her answers were evasive. Id., ¶ 5. They told her to stay where she was, but she fled. Id. The officers caught up *523to Kelsey, and later called a female officer to conduct a pat-down search, before giving the juvenile a ride home in a squad car. Id., ¶¶ 6-7. To the officers' surprise, the pat-down search revealed a loaded handgun. Id., ¶ 7. Kelsey moved the circuit court to suppress the results of the search. Id., ¶ 8. The court held that the initial encounter with Kelsey was not a seizure but that if it was, it was permissible under the community caretaker exception. Id., ¶ 51.

¶ 61. The lead opinion in Kelsey C.R. applied the three-step process laid out by the court of appeals in Anderson. Id., ¶¶ 36-37. The lead opinion assumed for the purposes of analysis that a seizure of the juvenile occurred within the meaning of the Fourth Amendment, satisfying step one of the three-step test. Id., ¶ 36. In considering step two, the juvenile apparently conceded "that the police were, at least at some point, performing a bona fide community caretaker activity by checking to see if Kelsey was a runaway." Id. Finally, in considering the four factors within the third step of the test, the Kelsey C.R. court concluded that the public need and interest outweighed the privacy of Kelsey. Id., ¶ 37. Specifically, the court pointed to the strong public interest in locating runaway children, the discovery of a juvenile alone in a dangerous neighborhood after dark, the lack of alternatives to the officers asking the juvenile direct questions about her situation, and her disobedience of their order to "stay put." Id. Thus, the lead opinion determined there was a valid exercise of the community caretaker exception to a warrantless seizure of an individual.

¶ 62. Eight years later, in State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598, this court once again applied the community caretaker exception in the context of an automobile parked on the side of a county *524road. The hazard lights were flashing on Kramer's vehicle, which was legally parked on the side of the highway after dark. Id,., ¶ 4. A sheriffs deputy activated his police car's emergency lights and stopped behind Kramer's vehicle so that he could check to make sure Kramer was all right. Id., ¶ 5. The deputy walked up to Kramer's vehicle and asked if Kramer needed help. Id., ¶ 7. Kramer's response suggested that he was intoxicated, so the deputy arrested him. Id. Kramer moved to suppress evidence of his intoxication on the ground that the deputy had seized him without probable cause or reasonable suspicion. Id., ¶ 8.

¶ 63. In Kramer, we concluded that the "totally divorced" language in Cady did not require that the attending officer must rule out any possibility of criminal activity before the community caretaking action is bona fide — the second step of the Anderson test. Id., ¶¶ 21, 30. Rather, we held "that 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." Id., ¶ 30. "To conclude otherwise would ignore the multifaceted nature of police work and force police officers to let down their guard and unnecessarily expose themselves to dangerous conditions." Id., ¶ 33 (citation omitted). Furthermore, the Kramer court, noting that Kelsey C.R. used the Anderson test in its community caretaker analysis, specifically adopted the three-part test. Id., ¶ 21 n.8.

¶ 64. After considering all three steps of the test, the Kramer court concluded that the sheriffs deputy had an objectively reasonable basis for stopping his car behind the defendant's car parked on the side of a road. *525Id,., ¶¶ 36-37. Furthermore, the deputy's first contact with the defendant was an offer of help. Id., ¶ 37.

¶ 65. In State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592, this court revisited the community caretaker exception. In that case, Milwaukee police received an anonymous tip about a house where two people were reported to be sleeping next to cocaine, money, and a digital scale, while the rear door was standing open. Id., ¶ 2. Five officers from the Gang Crimes Unit of the Milwaukee Police Department responded to the tip and investigated, although one of the responding officers admitted that the residence "sounded like a drug house." Id., ¶ 3. The officers knocked on the open rear door, announced their presence, and waited 30-45 seconds. Id., ¶¶ 3-4. Receiving no response, the officers entered the residence, saw the sleeping individuals, and again loudly announced police presence. Id., ¶ 5. Again, there was no response. Id. When the officers entered the bedroom, they saw cocaine, money, and a scale, just as the anonymous tipster had described. Id. The officers arrested one of the sleeping individuals, Pinkard, and seized evidence in plain view and a gun under the mattress. Id.

¶ 66. The circuit court denied Pinkard's motion to suppress a majority of the seized evidence because the officers' entry into the residence was a lawful community caretaker function; the court found the officer's testimony at the suppression hearing to be credible in that the officers were " 'inquir[ing] as to the health and safety of the individuals that were sleeping.'" Id., ¶ 7.

¶ 67. The Pinkard majority affirmed the circuit court and court of appeals, determining that there was a valid exercise of the community caretaker function. Id., ¶¶ 10-11. Applying Anderson's three-step test, the majority first concluded that a search within the mean*526ing of the Fourth Amendment occurred. Id., ¶ 30. Second, although "this is a close case," the court also concluded that there had been a bona fide community caretaker function because police received a reliable anonymous tip, the police were concerned about the welfare of the occupants, the information contained in the tip was true, and no one responded to the officers announcing their presence. Id., ¶¶ 32-33. On the facts of the case, the majority contended, an officer would be reasonably concerned about the possibility of a drug overdose. Id., ¶ 35. Finally, the Pinkard majority determined that the exercise of the community caretaker function was reasonable. Id., ¶ 60. Essentially, the officers were faced with the possible exigencies of a drug overdose and individuals unable to look after themselves, no overt force was used, and no feasible alternatives existed. Id., ¶¶ 46-60.

¶ 68. However, three members of the court were unwilling to go along with this expansion of the community caretaker exception. Pinkard, 327 Wis. 2d 346, ¶ 98 (Bradley, J., dissenting). The Pinkard dissenters noted that, for the first time, this court expanded the community caretaker exception to a warrantless entry and search of a home. Id.

¶ 69. The Pinkard dissent contended that the officers' alleged concern about the safety of the occupants was really following up a complaint about criminal activity. Id., ¶ 83. Thus, the officers entered the Pinkard residence to conduct an investigation, not to perform a community caretaker function. Finally, the dissent argued that the execution of any community caretaker function in Pinkard's case was unreasonable: the entry was invasive and "consistent with a drug bust rather than a rescue." Id., ¶¶ 95-96. Additionally, the *527dissent observed that the officers did not seem to consider any alternatives to a warrantless entry. Id., ¶ 96.

¶ 70. This historical review shows that the community caretaker exception was first recognized in the unsuspecting search of a towed vehicle. Until our decision in Pinkard, this court had never justified an unwarranted, unrequested police entry of a home on a community caretaker basis. What appeared to some members of the Pinkard court as a significant departure from the core principles of the exception is now being stretched and extended even more.

II

¶ 71. In this case, a Menasha police officer, Matthew Lenss, was dispatched to investigate a yellow traffic light pole that was down at an important intersection. He found a dislodged license plate at the site of the smashed pole. A computer check showed that the plate belonged to a Buick Regal owned by Jesus GraciaValenzuela. Police went to three different addresses attempting to find the owner. At the third address, they were told that the vehicle they were searching for was usually driven by Juan Gracia (Juan) who lived at an address on Wendy Way.

¶ 72. At that address officers found the vehicle with extensive front-end damage, streaks of yellow paint, and a missing license plate. The officer looked inside the vehicle but saw no blood. The windshield was intact. The airbags had not been deployed.

¶ 73. The officer later testified that at this point, based on his experience, the possibility that an accident had been caused by an intoxicated driver "would be in the back of [his] mind." Thus, the police had evidence of *528a driver who hit and damaged public property but fled the scene without reporting an accident, and they suspected that the driver had been drinking.

¶ 74. At the residence the police attempted to make contact with someone inside, but there were no lights on and no one answered the door. Just as police were getting ready to leave, Jaime Gracia (Jaime) drove up to the residence. Jaime informed the police that he lived at the residence with his brother Juan, that Juan normally drove the Buick Regal, and that he believed Juan was inside the residence.

¶ 75. Police asked Jaime if they could go inside the residence to make sure Juan was okay "based on the damage to the vehicle." Jaime told the officers to wait outside while he went inside the residence. Shortly thereafter, Jaime came back out and gave police permission to enter the residence. It was approximately 9:20 p.m. when police entered — nearly 40 minutes after police were dispatched to investigate the downed traffic light pole.

¶ 76. Jaime led police to a closed bedroom door. On the other side of the door, Juan was yelling in Spanish and English that he wanted everyone to "go away." Officer Lenss testified that both he and Jaime tried to open the bedroom door, but it was locked.8 Officer Lenss then testified that Jaime, without prompting from the police, put his shoulder to the bedroom door and forced it open. Almost immediately, police crossed the threshold of the door into the bedroom and discovered Juan lying on the bed.

¶ 77. Officer Lenss testified that it was difficult to understand what Juan was saying, but that he could *529tell Juan "was highly intoxicated." Juan's breath smelled of intoxicants, his eyes were bloodshot, and his speech was slurred. Juan admitted to the police that he drove the white Buick Regal. Officer Lenss administered several tests both inside and outside of the residence to determine Juan's level of intoxication. After failing several of these tests, Juan was placed under arrest for operating a motor vehicle while intoxicated.

¶ 78. Several major points are evident from these facts.

¶ 79. First, this case involves the entry of a private bedroom, not the search of a motor vehicle. Warrantless entry of a residence is more suspect and subject to stricter scrutiny than entry and search of a motor vehicle. State v. Ultsch, 2011 WI App 17, ¶ 18, 331 Wis. 2d 242, 793 N.W.2d 505 (citing Pinkard, 327 Wis. 2d 346, ¶ 20).

¶ 80. Second, police did not enter the bedroom with consent. On the contrary, Juan loudly told the officers to go away. This fact distinguishes Juan's case from Pinkard, where the inhabitants of the house did not respond at all to the loud announcement of police presence.

¶ 81. Third, Juan never opened a door. He did not answer the door when the police came to his residence, and he locked the door to his bedroom. This distinguishes this case from Pinkard, where the door to the house was open and the door to the bedroom was open.

¶ 82. Fourth, although the door to Juan's bedroom was open when the police entered, it was open only because Jaime forced it open. Jaime had authority to invite the officers into the house,9 but he did not have *530authority to invite police to enter Juan's bedroom.10 A person who lacks authority to consent to an entry does not gain authority by forcing in a door.

¶ 83. Fifth, the officers were investigating one offense and suspected the commission of another— drunk driving. They pursued the driver of the hit-and-run vehicle to four different addresses. No argument can be made that their actions were "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady, 413 U.S. at 441.

¶ 84. Sixth, although the officers repeatedly professed concern about the driver's medical condition, their expressions of concern always facilitated the investigation of the accident. Their expressions of concern helped them learn the identity of the driver and obtain his home address. They helped induce the cooperation of Jaime. There is no evidence, however, that the officers ever contacted local hospitals to see if a patient named Juan Gracia had come to the emergency room.11 When they entered the residence with consent, they knew that Jaime was there to help his brother if his brother needed help. They never asked Juan personally if he needed medical assistance and did not see anything in the bedroom that impelled them to enter the room to provide medical assistance. In short, a crime-investigating, crime-solving purpose dominated *531any other purpose in the officers' conduct, thereby disqualifying the police from using the community caretaker exception.

¶ 85. In terms of the traditional Anderson test:

¶ 1. A search and seizure within the meaning of the Fourth Amendment occurred when the police entered a private bedroom without a warrant and without consent to obtain evidence of a crime and obtained evidence that would justify the arrest of the defendant.

¶ 2. Even if a portion of police conduct could be described as "bona fide community caretaker activity," that portion was completely overshadowed by the law enforcement objectives of finding and arresting the person responsible for the traffic light pole accident. At some point before police entered Juan's bedroom, any "objective reasonable basis" to believe that Juan needed medical assistance disappeared.

¶ 3. The public need and interest did not outweigh the intrusion into the privacy of the defendant in his bedroom.

A. The police had Juan cold on a hit-and-run. They could have asked him to come out of his bedroom to discuss the accident. If he refused, they could have attempted to get a warrant while they stayed in the house. They had a witness in Jaime, who could have testified as to his brother's sobriety. There was simply no exigency that justified bursting into the bedroom.

B. In addition, the search and seizure occurred in a private residence. The police knew they could not enter the house without permission and did not. They tried the bedroom door but knew they could not themselves break it in. When Jaime acted, they abandoned their caution and barged in.

C. No automobile was involved in the search of the bedroom.

*532D. Alternatives were available, starting with a simple request to come out and talk. If Juan did not comply, again, the officers could have obtained a warrant for entry into the bedroom.

¶ 86. As noted above, warrantless searches are per se unreasonable subject only to a few specifically established and well-delineated exceptions. The Supreme Court has declared that these exceptions "have been jealously and carefully drawn." Jones v. United States, 357 U.S. 493, 499 (1958). They must be "confined in scope," Terry v. Ohio, 392 U.S. 1, 29 (1968), and "strictly circumscribed." La Fournier v. State, 91 Wis. 2d 61, 68, 280 N.W.2d 746 (1979) (quoting Terry, 392 U.S. at 25-26).

¶ 87. The dogged determination of the Menasha officers to find and arrest the person responsible for the light pole accident is expected and completely commendable. However, this laudable objective is necessarily governed by traditional Fourth Amendment principles. A legitimate end did not justify the means employed with respect to warrantless entry of the bedroom.

¶ 88. The community caretaker exception to the warrant requirement is sound constitutional doctrine and will be vigorously defended so long as it is applied within reasonable limits. These limits protect individual liberty and preserve the interests of law enforcement. When the community caretaker exception is applied without these limits, both liberty and the interests of law enforcement are bound to suffer.

¶ 89. For the foregoing reasons, I respectfully dissent.

¶ 90. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.

This court has ordinarily interpreted the protections of the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution as coextensive. State v. Artic, 2010 WI 83, ¶ 28, 327 Wis. 2d 392, 786 N.W.2d 430, cert. denied, 131 S. Ct. 671 (2010) (citing State v. Johnson, 2007 WI 32, ¶ 20, 299 Wis. 2d 675, 729 N.W.2d 182). Hence, the analysis in this dissent also applies to Article I, Section 11 of the Wisconsin Constitution.

Katz v. United, States, 389 U.S. 347, 357 (footnotes omitted); see also Artic, 327 Wis. 2d 392, ¶ 29 (citing State v. Faust, 2004 WI 99, ¶ 11, 274 Wis. 2d 183, 682 N.W.2d 371).

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). When relying upon consent to justify a lawful search, the government "has the burden of proving that the consent was, in fact, freely and voluntarily given." Id. at 222 (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). This court has adopted the Schneckloth standard for voluntariness. Artic, 327 Wis. 2d 392, ¶ 32 (citing State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998)).

Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (citing McDonald v. United States, 335 U.S. 451, 456 (1948); Johnson v. United States, 333 U.S. 10, 14-15 (1948)); Warden v. Hayden, 387 U.S. 294, 298-300 (1967).

Griffin v. Wisconsin, 483 U.S. 868, 880 (1987).

See also State v. Anderson, 142 Wis. 2d 162, 169 n.3, 417 N.W.2d 411 (1987) (citing State v. Chisholm, 696 P.2d 41, 43 (Wash. App. 1985)) (describing community caretaking functions as law enforcement performing services in addition to traditional enforcement activities).

Police officers attempted to retrieve the revolver "to protect the public from the possibility that a revolver would fall into untrained or perhaps malicious hands." Cady v. Dombrowski, 413 U.S. 433, 443 (1973).

While Jaime gave police permission to come into the common areas of the house, neither Jaime nor Juan gave police permission to open the bedroom door.

United States v. Matlock, 415 U.S. 164, 171 (1974).

See State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998) (father-in-law lacked authority to consent to search of loft area above garage that was under exclusive control of defendant and wife); State v. Amrine, 157 Wis. 2d 778, 783, 460 N.W.2d 826 (Ct. App. 1990) (police invited into home are presumed limited to the room they are brought into).

The distance between the accident site and Juan's home —about two miles — is the same distance to the nearest hospital.