State v. Pinkard

ANN WALSH BRADLEY, J.

¶ 64. (dissenting). The question in this case is not whether officers could have entered Pinkard's residence without a warrant if they believed that medical assistance was needed. Of course they could have.

¶ 65. Rather, the question is whether the evidence they seized during this warrantless entry can be used in court to secure a criminal conviction. This evidence can be used in court if the officers were engaged in "a bona fide community caretaker function" that was "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Kramer, 2009 WI 14, ¶ 23, 315 Wis. 2d 414, 750 N.W.2d 941.

*379¶ 66. The majority acknowledges that this case presents a close call. Nevertheless, it transforms a warrantless home search executed by five armed members of a drug unit acting on a tip about drugs into a community caretaker function. I fear that today's close call will become tomorrow's norm.

¶ 67. Given that the exceptions to the warrant requirement are to be carefully delineated, I cannot endorse the broad application of the community care-taking exception employed by the majority. Instead, I conclude that the five drug unit officers were not engaged in a bona fide community caretaker function that was totally divorced from an investigation of a criminal offense, and further that the officers' execution of the warrantless home search was unreasonable because of the substantial degree of invasion. Accordingly, I respectfully dissent.

I

¶ 68. The facts are briefly set forth below. Additional facts appear later in the discussion.

¶ 69. An individual who wished to remain anonymous called the police station and reported that the tenants of the rear apartment at 2439 South 7th Street were sleeping, the back door of the apartment was open, and the tipster observed cocaine, money, and a scale. The informant advised that he had just been at the apartment. After receiving this tip, Officer Lopez called Officer Osowski, a member of the drug unit, on his personal cell phone. Officer Osowski arrived at the residence with four other armed members of the drug unit. They found that the rear door to the apartment was about three-quarters open.

¶ 70. From their vantage point at the door, the officers could not see into the bedroom, and there was *380no incriminating evidence in plain view. The officers knocked on the door, announced their presence, and waited for 30 to 45 seconds. After hearing no response, they entered the apartment. They first went into the living room. To the left of the living room was a bedroom. They entered through the doorway of the bedroom and found Pinkard and his girlfriend sleeping in bed. They also found cocaine, marijuana, and currency. Officers roused Pinkard and arrested him. Officer Osowski then searched the bedroom area, lifted the mattress, and seized a revolver that was underneath it.

¶ 71. Upon reviewing the facts, the majority concludes that "officers responded to Pinkard's house because they were concerned about the 'health and safety' of the occupants." Majority op., ¶ 32. It brushes aside Officer Osowski's testimony that he was responding to a tip about a house that "sounded like a drug house to me." It explains: "Simply because Osowski could have had subjective law enforcement concerns, it does not necessarily follow that he could not have also been engaging in a bona fide community caretaker function as he entered Pinkard's residence." Id., ¶ 40. Although the testimony does not reveal that the officers were concerned about the possibility of an overdose, the majority hypothetically concludes that "an officer could reasonably be concerned that Pinkard and his companion may have overdosed on drugs." Id., ¶ 35.

¶ 72. The majority advances a second hypothetical when it cautions that "a too-narrow view" of the community caretaker function is undesirable. Id., ¶ 33. It explains that if the exception is interpreted narrowly, officers will be "less willing to discharge community caretaking functions" and will instead inform distressed *381citizens: "Sorry. We can't help you." Id., ¶ 33 (quoting State v. Horngren, 2000 WI App 177, ¶ 18, 238 Wis. 2d 347, 617 N.W.2d 508).

¶ 73. Undoubtedly, officers who are genuinely concerned about the safety and wellbeing of occupants of a home can and should enter to provide needed assistance — even when they have no warrant. If the officers' concerns are realized and they succeed in preventing harm, they have performed an invaluable service. Yet, the majority presumes that officers will refuse to act in a caretaking role if the evidence that they uncover while caretaking cannot be used to secure a criminal conviction. See majority op., ¶ 33.

¶ 74. I do not agree with the majority's presumption. Every day, law enforcement officers across this state perform vital community caretaker functions. I believe these dedicated officers will continue to act as caretakers when their assistance is needed — even if they happen upon evidence that later cannot be used to secure a conviction.

¶ 75. I likewise cannot agree with the majority's broad application of the community caretaking exception. A broad application raises the specter that the exception will be misused as a pretext to engage in unconstitutional searches that are executed with the purpose of acquiring evidence of a crime. If courts are not cautious in applying this exception, the presumptive unreasonableness of warrantless home searches will be undermined.

II

¶ 76. When I examine the facts of this warrantless home search, I conclude that the community caretaking exception does not apply. The five members of the drug *382unit were not engaged in a bona fide community caretaker function that was totally divorced from their law enforcement function, but rather were conducting a warrantless home search pursuant to a criminal investigation. Further, even if the officers had been engaged in a bona fide community caretaker function, their execution of this function was not reasonable because of the substantial degree of intrusion. I address these conclusions in turn.

A

¶ 77. Our cases have held that "in order for police conduct to be upheld" under the community caretaker exception, "the officer must be engaged in a bona fide community caretaker function." Kramer, 315 Wis. 2d 414, ¶ 23. "Bona fide" means authentic, genuine, true, or sincere. A community caretaker function is "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute."Id.1

¶ 78. The requirement that the exercise of the community caretaker function be bona fide means that the officers must be able to articulate an objectively *383reasonable belief that entry into the home is necessary to prevent harm. An officer's subjective motivations may be considered within the totality of circumstances. Id., ¶ 27.

¶ 79. As we indicated in Kramer, an officer's subjective conclusions are not dispositive of the inquiry. However, the pretextual, subjective motivations of an officer are factors that "warrant consideration" when police conduct takes place in the absence of probable cause. Kramer, ¶ 27 (citing Wayne R. LaFave et al., Criminal Procedure § 3.1(d) (3d ed. 2007)).

¶ 80. The circumstances in Kramer provide a useful illustration as to the kinds of situations in which the community caretaker exception should apply. In that case, a patrolling officer stopped to check on a truck that was pulled to the side of the road after dark with its hazard lights turned on. Id., ¶ 4. The officer explained that he stopped to "check to see if there actually was a driver, and to offer any assistance." Id., ¶ 5. He explained, "when a car is on the shoulder on the side of the road with its hazards on, there are typically vehicle problems." Id. As it turned out, Kramer had pulled over and turned on his hazards to make a call on his cell phone — and he was intoxicated.

¶ 81. On cross-examination, the officer was asked why, if he was acting in his community caretaker function, he shined his flashlight through the window of the truck and put his hand on his holstered gun as he approached. The officer explained, "I always do that for safety considerations. I don't know who is in the vehicle or what the situation dictates. I am just at the ready." Id., ¶ 6. When asked if he thought that a crime might be taking place, the officer responded: "It was in my mind. I'm not sure any time I come upon a vehicle what the situation is, so, yes." Id.

*384¶ 82. It is one thing to recognize, as we did in Kramer, that officers who are performing bona fide community caretaker functions are wise to avoid "let[ting] down their guard and unnecessarily exposing] themselves to dangerous conditions" when approaching an unknown situation. Id., ¶ 33. It is quite another thing to label a warrantless search by five officers of the drug unit a bona fide community caretaker function solely because one officer testified that he entered what "sounded like a drug house" to "check the welfare of the occupants."2

¶ 83. Here, in contrast with the situation in Kramer, the officers' actions do not evince that the warrantless home search was conducted as a bona fide exercise of the community caretaker function out of a concern for the safety of the occupants of the house. Instead, the officers' actions indicate that they consid*385ered the anonymous tip provided to be a "complaint" about criminal activity and their subsequent home entry an "investigation" rather than a rescue.

¶ 84. The majority seizes upon a snippet in Officer Osowski's testimony during the suppression hearing to conclude that "the officers responded to Pinkard's home because they were concerned about the health and safety of the occupants." Officer Osowski testified that over the phone, Officer Lopez stated he was "concerned" about the occupants. However, there is nothing in the record indicating that Officer Lopez articulated anything about how or why he was concerned.

¶ 85. Officer Osowski's mention of this purported concern was brief and ambiguous:

Prosecutor: What was the nature of that investigation?
Osowski: I had received a phone call from Officer Lopez from District 6 that stated an anonymous caller had called him and stated that there were two individuals who appeared to be sleeping at that residence, and there was cocaine, money, and scales present there.
Prosecutor: Did Officer Lopez tell you anything else about the condition of the residence... or people there?
Osowski: He did.
Prosecutor: What else did he tell you?
Osowski: He said the door was wide open, and he was concerned about them.

¶ 86. Officer Osowski and Officer Lopez each wrote an investigation report shortly after the incident. It is telling that Officer Lopez's purported "concern" for the occupants was not mentioned by either officer in his *386investigation report.3 Rather, both investigation reports state that Officer Osowski went to the home to "investigate this complaint."

¶ 87. After Officer Lopez received the tip, he did not call for an ambulance or paramedics. Further, he did not send a transmission over the police scanner asking any officer in the area to drop by the apartment to make sure everything was okay. Rather, he called Officer Osowski, a member of the drug unit, on his personal cell phone and asked him to "investigate this complaint."

¶ 88. Although Officer Osowski stated that he "made the determination to enter and check the welfare of the occupants," he acknowledged that there was no indication that the occupants of the house needed medical attention. Further, he had no knowledge that the occupants of the house were in danger:

Defense: [Officer Lopez] didn't tell you at least, or at least you had no knowledge, that these people were in some medical — needed some medical attention; did they?
Osowski: Not at that time.
*387Defense: He didn't say that they were in fear of something happening inside the residence that in fact would jeopardize the safety of those people inside?
Osowski: No, he didn't relay that to me on the phone, just the information that I told you.
Defense: He actually indicated to you that it was basically a drug investigation. These people are sound asleep, and there's drugs and scales and guns in there; right?
Osowski: He did not say that, no.
Defense: Well, your report indicates that in fact that's why you went there is because there appeared to be cocaine, money and scales there?
Osowski: That's correct. It appeared to he — sounded like a drug house to me.
Defense: Officer Lopez did not indicate to you that there was some emergency with regard to the people at the residence themselves that needed some type of medical attention or were in some need of the Police Department rescuing them; did he?
Osowski: No.

¶ 89. After receiving the phone call, Officer Osowski went to "investigate the complaint" of a house that, he testified, "sounded like a drug house to me." He took four additional members of the drug unit with him. After arriving at the residence, noticing the open door, and knocking and waiting for 30 to 45 seconds, Officer Osowski and the other officers decided to enter the residence.

¶ 90. Perhaps the majority tacitly acknowledges that the facts, as articulated by the officers, do not add up to a bona fide exercise of community caretaking. The *388majority assembles a hypothetical rationale to justify application of the exception. It concludes that "an officer could reasonably be concerned that Pinkard and his companion may have overdosed on drugs." Majority op., ¶ 35.

¶ 91. This rationale is troubling for two reasons. First, the officers never articulated any concern about the possibility of an overdose. As mentioned above, courts should consider an officer's subjective intent in evaluating whether the officer has articulated an objectively reasonable basis under the totality of the circumstances for the community caretaker function. Kramer, 315 Wis. 2d 414, ¶ 36.

¶ 92. Second, an unarticulated concern about the possibility of an overdose can always be later invoked by a court when officers arrive at what they think is a "drug house" and the inhabitants fail to respond to the officers' knock. If that unarticulated concern now permits officers to enter the home without a warrant and without probable cause, then it is unclear what constraints remain on warrantless home searches when there is a suspicion of drug activity.

¶ 93. The United States Supreme Court has cautioned against blanket rules applied to categories of offenders. "Those suspected of drug offenses are no less entitled to that protection [provided by the Fourth Amendment] than those suspected of nondrug offenses." United States v. Karo, 468 U.S. 705, 717 (1984). The majority's assertions should not be read as permitting warrantless entry of a home whenever there is a suspicion of drug use and the residents do not answer.

¶ 94. Under the totality of circumstances, I conclude that the five drug unit officers were not exercising a "bona fide community caretaker function" when they entered Pinkard's home without a warrant. Rather, it *389appears that they entered for the law enforcement purpose of "detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Kramer, 315 Wis. 2d 414, ¶ 11 (quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973)).

B

¶ 95. Even if the officers' community caretaking had been bona fide, the exercise of the caretaker function was not reasonable. In evaluating the reasonableness, courts must determine whether "a public interest or need that is furthered by the officer's conduct" outweighs "the degree of and nature of the restriction upon the liberty interest of the citizen." Kramer, 315 Wis. 2d 414, ¶ 40. Despite the majority's conclusion, the balancing test is not satisfied here.

¶ 96. The facts reveal that the officers' entry was invasive, consistent with a drug bust rather than a rescue. Five armed officers, all members of the drug unit, waited outside for less than a minute before making a warrantless entry into Pinkard's home. Nothing in the record suggests that the officers paused to consider less invasive alternatives.4 Little in the record would support a public interest or need.

*390¶ 97. An important consideration in the balance is that this case is unlike the majority of cases addressing the community caretaking exception: this search involves the warrantless entry of a home. In my estimation, the fact that this search involved a home weighs heavily against concluding that the officers' highly invasive search was reasonable.

¶ 98. It is noteworthy that the United States Supreme Court has never extended the community caretaker exception to justify a warrantless entry of a home. Rather, all three cases addressing the exception are in the context of inventory searches of vehicles. See Colorado v. Bertine, 479 U.S. 367 (1987); South Dakota v. Opperman, 428 U.S. 364 (1976); Cady v. Dombrowski, 413 U.S. 433 (1973). Further, like the Supreme Court, this court has never extended the exception to justify warrantless entry of a home.5 Never, until now.

*391¶ 99. A reasonable warrantless search of a vehicle may be unreasonable in the context of a search of a home. See Cardwell v. Lewis, 417 U.S. 583, 590-91 (1974). It is particularly troubling that the majority uses a case it deems a "close call" to break new ground and circumscribe constitutional rights. The majority should heed the United States Supreme Court's warning from over a century ago: "illegitimate and unconstitutional practices get their first footing... by silent approaches and slight deviations from legal modes of procedure." Boyd v. United States, 116 U.S. 616, 635 (1886).

¶ 100. For the reasons set forth above, I respectfully dissent.

¶ 101. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice DAVID T. PROSSER join this dissent.

In Kramer, this court explained how an officer meets the standard "of acting as a bona fide community caretaker, whose community caretaker function is totally divorced from law enforcement functions." State v. Kramer, 2009 WI 14, ¶ 36, 315 Wis. 2d 414, 759 N.W.2d 598. It explained: "[A] court may consider an officer's subjective intent in evaluating whether the officer was acting as a bona fide community caretaker; however, if the court concludes that the officer has articulated an objectively reasonable basis under the totality of the circumstances for the community caretaker function, he has met the standard of acting as a bona fide community caretaker, whose community caretaker function is totally divorced from law enforcement functions." Id.

The majority takes this dissent to task for failing to acknowledge the circuit court's findings of historical fact. Majority op., ¶ 34, n.12. It asserts that the circuit court found "that the officers arrived at Pinkard's residence to inquire as to the health and safety of the individuals that were sleeping." Id., ¶ 34. Although the transcript does reflect that the circuit court made specific findings of fact, this is not one of them.

Rather, the court made this comment when explaining its reasons for suppressing the gun that officers found under Pinkard's mattress. It appeared to conclude that the officers' search for the gun was incompatible with their stated reasons for entering Pinkard's home: "Mr. Pinkard was then under arrest, in custody, in cuffs, and therefore, the search of [Pinkard's] lunge area, as a search incident to arrest, I find is inappropriate under the community caretaker function.... I understand that there were many gray areas within this, but the purpose that the police were there was, in essence, to inquire as to the health and safety of the individuals that were sleeping. And so the Court is suppressing the gun[.]"

In full, Officer Lopez's report provides:

On Thursday, August 24, 2006, at approximately 8:55 a.m., I sqd 246A received a phone call at District Six from a citizen who wished to remain anonymous. The citizen reported to me that it was just at the location of 2439 South 7th Street, in the rear apartment. The citizen stated that the tenants of the residence, "Big Boy" and his girlfriend "Amalia" appeared to be sleeping and the back door to the residence was open. The citizen further stated that it observed cocaine, money and a scale next to the subjects. I was unable to investigate this complaint because of a prior engagement, I subsequently notified Officer John OSOWSKI of the Criminal Intelligence Division, Gang Squad. Officer OSOWSKI stated that he would investigate the complaint.

It is helpful to compare the facts of this case to the facts in State v. Ziedonis, which also involved a warrantless search of a home. 2005 WI App 249, 287 Wis. 2d 831, 707 N.W.2d 565. There, the police spent an hour and a half trying to corral six vicious dogs before they entered the defendants' home. Id., ¶ 6. The court of appeals concluded that the officers "did everything they could to avoid entering the house" — they made numerous attempts to contact the occupant of the house, including using sirens, air horns, and a loud speaker. Immediately prior to entering, they yelled loudly and banged on the door frame with a metal baton for over two minutes. Id., ¶ 27.

The majority asserts that State v. Bies, 76 Wis. 2d 457, 251 N.W.2d 461 (1977), "necessarily implies" that the community caretaker function may support a warrantless home entry. Majority op., ¶ 22. It assumes that because the community caretaker function may permit entry onto the curtilage, it would also permit entry into a home. This assumption is directly undermined by the language of Bies.

In Bies, an officer walked behind the defendant's garage to investigate a noise complaint. Bies, 76 Wis. 2d at 461. The court held that the community caretaker function justified the officer's presence behind the garage on the defendant's curtilage. Id. at 471. Once he was lawfully behind the garage, the officer looked through an empty doorframe and saw a stolen cable. Id. at 472. The language in Bies makes clear that although the community caretaker function justified the officer's presence behind the garage, it would not have permitted the officer to enter the open garage door: "The officer could see [the stolen wire] from his position outside the empty doorframe .... The cable was in plain view." Id. at 473. In Bies, *391it was the plain view doctrine, not the community caretaker exception, that supported warrantless home entry.