PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
April 3,
2001
Cornelia G. Clark
Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If published, the official version will
appear in the bound volume of the Official Reports.
A party may file with
the Supreme Court a petition to review an adverse decision by the Court of Appeals.
See
Wis. Stat. §808.10
and Rule 809.62.
No. 00-0038-CR
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
I
State of Wisconsin,
Plaintiff-Respondent,
v.
Shane M.
Ferguson,
Defendant-Appellant.
APPEAL from a judgment of the circuit court for Milwaukee
County: DENNIS P. MORONEY, Judge. Affirmed.
Before Fine, Schudson and Curley, JJ.
¶1. CURLEY, J.Shane Ferguson appeals from a judgment convicting him of
manufacturing a controlled substance, marijuana, contrary to Wis. Stat.
§§961.14(4)(t) and 961.41(1)(h)2.1 Ferguson argues that the trial court erred in
denying his suppression motion. He contends that the police were not engaged in a
community caretaker function when they jimmied the lock on his bedroom door, entered, and
looked in a closet where they found marijuana plants growing. Under the unique facts
presented here, we are satisfied that the police were serving in their role as community
caretakers when they conducted the search. Thus, we affirm.
I.Background.
¶2. Although many of the events leading to Ferguson's arrest were disputed, the
facts found by the trial court at the motion to suppress are as follows. On January 29, 1999,
the West Allis Police Department received a 911 call regarding a fight at an apartment
building on West Mitchell Street. At approximately 10:15p.m., members of the West Allis
Police Department answered the call. Before entering the building, the police encountered
Deidre Foster, who, it was learned later, was eighteen years old. She was irate, angry and
intoxicated.
¶3. Since the call initiated from Apartment3, several officers went to that
apartment to investigate the complaint. They knocked on the apartment door several times,
but no one answered. While they were standing outside the door, Foster appeared, unlocked
the door and stated something to the effect, "if I'm going to get arrested then everyone
is." Foster then entered the apartment and yelled that the police were there and that
everyone should come out.
¶4. The police followed Foster into her apartment. Upon entering the
apartment, the police saw two teenagers in the living room. The police observed that the
two teenagers appeared to have been consuming alcoholic beverages, but the police did not
believe they were highly intoxicated. The police confirmed that the two teenagers were
underage. The police also noticed numerous open beer bottles and several empty gallon
bottles of hard liquor strewn around the apartment. The officers surmised that a lot of
alcohol had recently been consumed in the apartment. One of the police officers asked
Foster if they could take a look around and she agreed. This search led the officer to the
bathroom, where he found a highly intoxicated young man lying on the floor. He was sick
and had been vomiting. This individual, too, was underage. The young man was so
unsteady on his feet as a result of his alcohol consumption that the police had to physically
assist him in walking.
¶5. A further search of the apartment revealed a locked bedroom door. It had a
push-button type lock which is engaged by pushing a button from inside the room. As a
result, the police strongly suspected that someone was in the room. Foster told the officers
that the room belonged to Ferguson and that he was at work, but when the police called
Ferguson's place of employment, they learned that he had not been to work for several days.
The police then became concerned that Ferguson might be in the room, highly intoxicated,
like the teenager found in the bathroom, and that he might need assistance. While the police
were contemplating what to do, one of the two teenagers found in the living room
volunteered that three people were in the bedroom. Fearing that additional underage persons
were in the bedroom, either ill or passed out from consuming intoxicants, the police began
knocking on the door and yelling for whoever was in the room to come out. Despite
numerous knocks on the door and loud yelling, no one responded. After about thirty
minutes, the police finally jimmied the door open. Upon entering, the police observed that
the room was very messy, with piles of clothing on the floor, and that there were people,
including Ferguson, in the bed. Thinking that someone could have been hidden in the closet
and passed out, one of the officers opened the closet door and discovered the marijuana
plants.
¶6. Ferguson was charged with the manufacture of marijuana. He waived his
preliminary hearing and filed a motion to suppress. After hearing the testimony of several
witnesses, the trial court found that the police properly entered the bedroom and that the
search of the closet was also reasonable. The trial court held that, although the police
searched the bedroom and closet without a warrant, they did so in their capacity as
community caretakers. Ferguson then pled guilty and was sentenced to a stayed sentence of
one year and was placed on two years' probation.
II.Analysis.
¶7. Ferguson contends that the trial court erred in denying his motion to
suppress. He claims that the State failed to establish, by a clear preponderance of the
evidence, that the search was a justifiable governmental action. Ferguson argues that he had
exercised his right to privacy by closing and locking the door, and that the search was illegal
because the police lacked a warrant to search either his bedroom or his closet.2 In support of his position, Ferguson notes that,
despite the presence of the police in the apartment for at least thirty minutes, the police failed
to make any attempt to obtain a search warrant for his bedroom or the closet. Ferguson also
disputes the trial court's finding that the officers' warrantless entry into Ferguson's bedroom
and closet was justified under the community caretaker exception. He states that the police
were conducting an investigation of underage drinkers, which was essentially a criminal
investigation, and thus, the police were not acting in a community caretaker capacity.
Further, he notes that the police never called for paramedics, nor did they personally render
medical assistance to anyone, thus negating any claim of acting in a community caretaker
role. Ferguson equates his situation with that in State v. Dull, 211 Wis.
2d 652, 565 N.W.2d 575 (Ct. App. 1997), where this court concluded that the circumstances
did not permit the warrantless entry into the defendant's home or bedroom. We are not
persuaded by Ferguson's arguments.
¶8. A determination of whether a search and seizure is constitutional is a
question of law which this court reviews denovo. State v.
Guzman, 166 Wis.2d 577, 586, 480 N.W.2d 446, cert. denied, 504
U.S. 978 (1992). However, the trial court's findings of fact will be upheld unless they are
contrary to the great weight and clear preponderance of the evidence. State v.
Richardson, 156 Wis.2d 128, 137, 456 N.W.2d 830 (1990). After reviewing
the record, we conclude that the trial court's findings are not contrary to the great weight and
clear preponderance of the evidence.
¶9. A warrantless search of a house is presumptively unreasonable as both the
Fourth Amendment to the United States Constitution and Article1, §11 of the
Wisconsin Constitution prohibit unreasonable searches and seizures. Some exceptions to this
rule do exist, however.
"Our laws recognize that, under special circumstances, it
would be unrealistic and contrary to public policy to bar law enforcement officials at the
doorstep." Therefore, a handful of exceptions have been "jealously and carefully
drawn" to balance the interests of the individual with those of the State.
State v. Paterson, 220 Wis. 2d 526,
532-33, 583 N.W.2d 190 (Ct. App. 1998) (citations omitted).
¶10. It is undisputed that the seizure of the contraband was a seizure
"within the meaning of the fourth amendment," but the State contended, and the
trial court agreed, that the officers' actions fell under the community caretaker exception.
The community caretaker exception originated in Cady v. Dombrowski,
413 U.S. 433, 447 (1973). There, the Supreme Court approved the warrantless search of a
vehicle because the police were engaged 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.
¶11. Our supreme court first recognized the "community caretaker"
exception in Bies v. State, 76 Wis.2d 457, 251 N.W.2d 461 (1977).
Later, a test for applying the community caretaking exception to the Fourth Amendment was
announced in State v. Anderson, 142 Wis.2d 162, 417 N.W.2d 411 (Ct.
App. 1987), rev'd on other grounds, 155 Wis.2d 77, 454 N.W.2d 763 (1990).
¶12. After applying the Anderson test, we are satisfied that
the police actions here qualified as "community caretaker." A search, to qualify
as a community caretaker exception, requires an examination of three factors:
We conclude that when a community caretaker function is
asserted ... 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.
Anderson, 142 Wis. 2d at 169, 417
N.W.2d at 414.
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.
Id. at 169-70.
¶13. It is conceded that a seizure occurred within the meaning of the Fourth
Amendment. Therefore, we address the last two Anderson factors. First,
we conclude that the police were engaged in a "bonafide community caretaker
activity" when they found the marijuana. The police were called to a fight when they
went to Apartment3. Someone in Apartment3 made the complaint about the alleged fight in
Apartment2. Thus, the police were unaware of any wrongdoing in Apartment3 when they
arrived. Further, the police were not investigating a crime after encountering several
underage drinkers in the apartment. This is so because underage drinking is not a crime.
See Wis. Stat. §939.12 ("conduct punishable only by a forfeiture is
not a crime"). While underage drinkers are subject to arrest, an underage drinker is
only subject to a forfeiture action. See Wis. Stat. §§125.07(4)(b)
and 938.344. Thus, the police decision to investigate whether additional underage drinkers
were in the apartment was not perse a "criminal" investigation.
¶14. Ferguson suggests that the police action was a typical criminal
investigation. We disagree. It was only after the police could not eliminate the possibility
that Ferguson was in the bedroom, and after they unsuccessfully attempted to have the
occupants come out voluntarily to confirm their well-being, that the police entered the
bedroom. Further, it was established that the only purpose in opening the closet door was to
confirm that no highly intoxicated person was hiding there.
¶15. Further, the trial court's finding that the motivation for the police to enter
Ferguson's bedroom closet was to assist him, not to arrest, is not clearly erroneous. As
noted, before entering Ferguson's bedroom, the police knew that: (1)Foster was intoxicated,
another severely intoxicated teenager was found in the bathroom, and two other teenagers
had been drinking; (2)evidence of large amounts of alcohol consumption was seen in the
apartment; and (3)someone was in the bedroom who failed to respond or come out of the
room. In light of the circumstances, it was reasonable for the police to be concerned about
the bedroom occupants' physical conditions, particularly since the police received no
response to their knocking and yelling, strongly suggesting that the additional persons in the
bedroom were incapacitated.
¶16. Finally, in examining the last factor in the Anderson
test, the public need versus Ferguson's interest against the intrusion, again we are satisfied
that the search undertaken by the police was appropriate and outweighed any intrusion into
Ferguson's privacy. The police, sent to investigate a complaint of a fight, were suddenly
confronted with four intoxicated teenagers, two of whom were highly intoxicated. Contrary
to Ferguson's contention that the police rendered no aid, the record reveals that the police
quieted down Foster and assisted the other teenager in walking to the bathroom on several
occasions. Thus, in applying the balancing test, we determine, under the exigent
circumstances presented here, that the officers' reasons for entry outweighed Ferguson's
privacy rights. Thus, under the Anderson test, we are satisfied that the
officers were engaged in a community caretaker function when the search was conducted.
¶17. Recently, the Ninth Circuit United States Court of Appeals, in United
States v. Cervantes, 219 F.3d 882 (9th Cir. 2000), adopted a three-part test for
determining whether a warrantless entry into a home pursuant to the "emergency
doctrine" is a Fourth Amendment violation. This test is similar to the community
caretaker test found in Anderson, and provides:
"(1) The police must have reasonable grounds to believe
that there is an emergency at hand and an immediate need for their assistance for the
protection of life or property. (2)The search must not be primarily motivated by intent to
arrest and seize evidence. (3) There must be some reasonable basis, approximating probable
cause, to associate the emergency with the area or place to be searched."
Cervantes, 219 F.3d at 888
(quoting People v. Mitchell, 347 N.E.2d 607, 609 (N.Y. 1976)).
¶18. An application of this test supports our conclusion that the police were
engaged in a community caretaker role when they entered the bedroom and searched the
closet.
¶19. Under the Cervantes test, the police must have
reasonable grounds to believe there was an "emergency at hand." Here, such
grounds existed. The police found four intoxicated youths. One was so severely intoxicated
that he could not stand unassisted. Signs of consumption of large amounts of alcohol were
also seen in the apartment. Further, the police had been told that three people were in the
bedroom, but no one responded to knocking and yelling. Coupling these facts together, we
conclude the police reasonably believed that there was an "immediate need for their
assistance for the protection of life."
¶20. The next factor examines the police motivation for the search. Here, the
motivation for the police action was not a desire to arrest or seize evidence. Rather, the
police wanted to prevent serious harm or to render aid to any highly intoxicated persons
found in either the bedroom or the closet. Finally, the third factor requires the police to
have "probable cause" that the area to be searched is connected to the emergency.
There was good reason here for the police to associate the emergency with Ferguson's
bedroom and closet. The police strongly suspected that someone was in the room because
the lock on the door suggested it and because they were told three people were in the room
who were not responding. Thus, the bedroom was intrinsically linked to the emergency. In
applying the Cervantes three-part test to the facts of this case, we are
satisfied that the police actions under the emergency doctrine, as well as the
"community caretaker" exception, did not violate the Fourth Amendment.
¶21. Ferguson cites Dull as being on point. However, the
police actions and circumstances here differ in several respects from those found in
Dull. Unlike the facts in Dull, where the police
entered the house almost immediately after discovering an underage drinker in the driveway
of his house and found Dull engaged in a sex act with a minor, here the police utilized
alternative methods of confirming whether anyone was in the room before entering. They
took the trouble to call Ferguson's employer to locate him, and then they yelled and knocked
for approximately thirty minutes. In Dull, the police made no attempts at
contacting the underage drinker's mother, nor did they attempt to phone the house.
Moreover, in Dull, the juvenile advised the officer against entering his
home and only acquiesced when the officer would not permit the juvenile to get his brother.
¶22. However, the biggest distinction between the cases lies with the fact that
the police in Dull were not faced with an emergency such as occurred
here. Unlike the facts in Dull, the police here never stepped out of their
caretaking role. Although consuming alcoholic beverages by a minor occurred in both cases,
the police in this case did not know the number of people present in the apartment or their
physical condition. Thus, the situation here was fluid where the situation in
Dull was concluded with the detention of the juvenile. Further, once
inside the bedroom, given the facts known to the officers and the disarray they observed, it
was reasonable for the police to open the closet door to see if anyone was hiding there.
Thus, we determine, as did the trial court, that the police were conducting a bona fide
community caretaker activity when they searched Ferguson's bedroom and closet.
¶23. Consequently, the search of the bedroom and the closet was permissible.
Accordingly, we affirm the judgment of the trial court.
By the Court.-Judgment affirmed.
Recommended for publication in the official reports.
¶24. FINE, J. (concurring). I fully join in the majority decision, but write
separately to note that if the police did what the dissent says that under the law they were
required to do-namely, without trying to see if Ferguson was all right and that there was no
one in the closet who was ill, perhaps life-threateningly ill, we might not be deciding
Ferguson's appeal but, rather, an appeal in a civil lawsuit claiming that the police ignored
their community-caretaking function and thus left a juvenile to die in his or her own
alcohol-induced vomit. In my view, the distinctions between Dull and this
case are clear, as the majority opinion so carefully explains. The police here should be
commended for their thoroughness and concern.
¶25. SCHUDSON, J. (dissenting). Although the police conduct in
this case seems reasonable, it does not qualify under the community caretaking function as
interpreted and applied in State v. Dull, 211 Wis. 2d 652, 565 N.W.2d
575 (Ct. App. 1997).
¶26. In Dull, we acknowledged that "the deputy may
have properly monitored [the juvenile] as [he] proceeded into the house, downstairs and to
[Dull's] closed bedroom." Dull, 211 Wis. 2d at 663. We
recognized that that was "as far as [Washington v.]Chrisman
[455 U.S. 1 (1982)] took the deputy." Id.
Consequently, we held that "Chrisman does not justify
what the deputy did in this case"-opening the bedroom door. See
id. at 662 (emphasis added).
¶27. In Dull, as in Chrisman, a law
enforcement officer was monitoring the movements of a person in custody. Despite
that fact, this court concluded that "the deputy's separate decision to open [the
juvenile's older brother's] bedroom door" was within neither the proper scope of such
monitoring nor the proper scope of the community caretaker function.
Dull, 211 Wis. 2d at 662-63. In the instant case, the circumstances do
not even include the monitoring of a person in custody. Thus, if anything, Ferguson's
arguments are stronger than those offered by the appellant in Dull.
¶28. The majority has struggled, unsuccessfully I think, to distinguish
Dull in order to support the police conduct in this case. Although I
appreciate the majority's effort, I am hopeful that the supreme court, should it have the
opportunity to examine the instant case, will take a different approach and, in doing so, will
consider the serious problems Dull brings to the real world of policing.
¶29. This case is a difficult one and, as the majority has explained, the police
conduct seems so prudent for so many reasons. Indeed, I am quite uncomfortable with
Dull's implication that the community caretaking function can be so
certainly segmented-from hallway to room or, in this case, from room to closet. Lives
depend on police "erring," if at all, on the side of safety for those desperately
needing help, lying behind closed doors.3
¶30. Still, until the supreme court says otherwise, Dull must
be followed carefully. Because, under Dull, the police search-of the
closet, at the very least-was improper, I reluctantly and respectfully dissent.
1 All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise
noted.
2 In the trial court, Ferguson also argued that the police did not have permission to enter the
apartment. That issue has since been abandoned.
3 Thus, I share the concurring opinion's concern that had the police failed to act as they did,
a life might have been lost. Therefore, only delicately disagreeing with the majority, I voice
added concern about what I view as the dangers flowing from State v.
Dull, 211 Wis. 2d 652, 565 N.W.2d 575 (Ct. App. 1997).
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