By Joe Forward, Legal Writer, State Bar of Wisconsin
Aug. 18, 2010 – The police, acting as bona fide community caretakers, did not violate the Fourth Amendment when they entered the defendant’s home without a warrant and seized drugs in plain view, the Wisconsin Supreme Court recently held.
In State v. Pinkard, 2010 WI 81 (July 15, 2010), the court ruled 4-3 to affirm the denial of Juiquin Pinkard’s motion to suppress evidence of cocaine and marijuana because the officers did not enter his home seeking drugs, they entered to ensure the safety of the occupants.
In line with two other recent Fourth Amendment exception cases – State v. Robinson, 2010 WI 80, and State v. Artic, 2010 WI 83 – Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissented. Justice David Prosser joined the dissent in Pinkard.
While the majority held that the officers entered the home to ensure the safety of the occupants and applied the community caretaker function, the dissent argued the majority “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.”
In 2006, Milwaukee police received an anonymous tip from someone who had just left Pinkard’s residence. The tipster stated that two people were in the residence sleeping with cocaine, money, and a digital scale located nearby, and the residence door was open.
Five members of the Milwaukee Police’s Gangs Crimes Unit responded, admitting that the residence “sounded like a drug house.” Pinkard’s main door was standing three-quarters open. Police knocked and announced their presence with no response. After 30-45 seconds, the officers entered Pinkard’s residence to “check the welfare of the occupants.”
Pinkard and a woman were sleeping in the bedroom. Again, police loudly announced themselves as police, but the occupants did not respond. The officers had to “physically shake” the male occupant, which turned out to be Pinkard. In plain view, officers seized cocaine, crack cocaine, marijuana, and a digital scale. Under the mattress police found and seized a gun.
The state charged Pinkard with possession of a firearm as a felon, possession of cocaine with intent to deliver and felony bail jumping. Pinkard filed a motion to suppress evidence seized as a violation of his rights under the Fourth Amendment to the U.S. and Wisconsin constitutions.
The circuit court denied the motion to suppress evidence seized in plain view, but granted the motion with regard to the gun, concluding that police went beyond their authority as community caretakers in searching beneath the mattress. The appeals court affirmed.
In affirming the appeals court, the supreme court majority recognized that federal and state constitutions protect individuals from unreasonable searches and seizures, but held that the community caretaker exception applied.
Community caretaker exception
Pinkard argued that a community caretaker exception does not apply to searches of one’s home, because one has a heightened expectation of privacy in one’s home.
The majority – in an opinion written by Justice Patience D. Roggensack – noted that previous case law does not exclude the community caretaker exception as applied to warrantless searches of a residence, but not every intrusion falls within the community caretaker exception.
Whether the exception applies, the court explained, “depends on whether the community caretaker function was reasonably exercised under the totality of the circumstances.” That is, the community caretaker function must be bona fide.
Under State v. Kramer, 315 Wis. 2d 414, 759 N.W.2d 598, the court explained, community caretaker functions must be “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute,” but if the “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.”
Here, the court concluded, the community caretaker function was bona fide because police received an anonymous tip that occupants were sleeping near drugs and the door was open, officers responded based on the health and safety of the occupants, the officers corroborated that the door was open, and the officers repeatedly announced themselves with no response.
“To preclude an officer from exercising his community caretaker function anytime a situation involves an illegal drug, i.e., cocaine, would prevent officers from rescuing those who have ingested an excessive amount of drugs and are in need of medical assistance,” Justice Roggensack wrote.
Further, the court explained, police exercise of the bona fide community caretaker function was reasonable because the public interest outweighed the intrusion on privacy. In balancing the public interest, the court focused on three factors.
First, the public has a substantial interest in police ensuring the safety of its citizens, and the police reasonably concluded that intervention was necessary to ensure the occupants’ safety.
Second, it was reasonable for police to wait only 30-45 seconds before entering, because they believed the occupants’ health was in danger, and they did not receive responses to repeated announcements before entering the residence and bedroom.
Third, although alternatives to a warrantless entry existed to ensure safety, the court concluded that none were feasible in light of the circumstances.
In dissent, Justice Bradley stated that the officers “were not 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.’”
The five officers were conducting a criminal investigation, Bradley argued, and even if the investigation was a bona fide community caretaker function, “their execution of this function was not reasonable because of the substantial degree of intrusion.”
The dissent argued that courts should consider the subjective intent of the officer involved to determine whether the officer articulates an objectively reasonable basis to act under the community caretaker function.
Here, the dissent explained, the officers did not articulate a concern of overdose other than providing testimony at the suppression hearing that they were concerned.
“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,” Bradley wrote.
In addition, the dissent argued that even if the police function was bona fide as community caretaking, it was not reasonable because the entry more closely resembled a drug bust rather than a rescue.
Richard Zaffiro of Wauwatosa represented Juiquin Pinkard. Assistant Attorney General James Freimuth represented the state.