Appeals courts reel in community caretaker function, clarify law for vehicle searches 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Jan. 5, 2011 – The District IV Wisconsin appeals court distinguished a recent Wisconsin Supreme Court case to conclude that police could not use the community caretaker exception to circumvent the defendant’s Fourth Amendment right against unlawful searches and seizures.

In State v. Ultsch, 2010AP895-CR (Dec. 23, 2010), the appeals court ruled that police did not have an “objectively reasonable basis” to conclude that the defendant, charged with operating while intoxicated (OWI), fifth offense, was in need of assistance when they entered her boyfriend’s home through an unlocked door without a warrant and arrested her.

In State v. Smiter, 2010AP599-CR (Dec. 28, 2010), the District I Wisconsin appeals court upheld the circuit court’s denial of a motion to suppress evidence of cocaine despite new case law that restricts police authority to search vehicles unless they have a reasonable belief the vehicle contains evidence related to the arrest.

State v. Ultsch 

In the early morning hours on Jan. 1, 2008, Marquette County police responded to a call that a Dodge Durango collided with a brick building, causing substantial damage, then left the scene of the accident. Marquette County police officers found the vehicle three miles away.

The vehicle was parked at private residence on the edge of a one-quarter mile long driveway, which was covered in deep snow. While police stationed at the edge of the driveway, defendant Kathleen Ultsch’s boyfriend, the homeowner, drove out. He said that his girlfriend drove the damaged vehicle and was at the house “possibly in bed or asleep,” then left.

Police drove up the driveway to the house, and knocked and announced themselves without an answer. They entered the house through an unlocked door, walked to the bedroom in the rear of the house, and found Ultsch in bed asleep. They subsequently arrested her, and obtained chemical testing evidence that proved she was drunk.

Ultsch moved to suppress all evidence obtained as a result of an illegal entry, but the circuit court denied the motion based on the community caretaker exception to unlawful searches and seizures under the Fourth Amendment. She later pled no contest to the fifth offense OWI.

The community caretaker exception allows police to make a warrantless entry into a home if there is an objectively reasonable basis to believe a member of the public needs assistance.

The exception only applies if there is an actual search and seizure under the Fourth Amendment, police exercised a bona fide community caretaker function, and the public interest outweighs the police intrusion upon privacy rights.

On appeal, the appeals court distinguished the recent Wisconsin Supreme Court case of State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592, to determine that police did not have an objectively reasonable basis to conclude that Ultsch needed assistance.

In Pinkard, police seized cocaine and other evidence from Juiquin Pinkard’s residence after police entered his home without a warrant and found him unresponsive with drugs nearby.

The appeals court – in an opinion written by Judge Gary Sherman – explained that in Pinkard, “the vulnerability of the occupants of the residents was arguably more obvious” because “the occupants could easily have been victims of a crime or suffering from an overdose.”

Here, the appeals court explained, “police had less reason to be concerned” because the damage to the vehicle was limited to the left front fender, police did not observe blood or other evidence of injury, and did not receive information that Ultsch may be injured or vulnerable.

Thus, the appeals court concluded that police did not have an objectively reasonable basis to believe Ultsch was in need of assistance.

Even if police exercised a bona fide community caretaker function, the appeals court noted, the entry would not fall within the exception because the “public’s interest in the intrusion was minimal, at best, and did not outweigh the substantial intrusion on Ultsch’s privacy.”

State v. Smiter  

Defendant Tracy Smiter pled guilty to possession of cocaine with intent to deliver after the circuit court denied a motion to suppress evidence seized from his vehicle in 2008.

Milwaukee police officers pulled Smiter over after observing him turn his vehicle without a turn signal. Police then observed Smiter throw an object out the passenger window. Police retrieved the object, which turned out be a marijuana joint.

Upon a search of Smiter’s car, police found 53 individually wrapped baggies of cocaine. Before trial, Smiter filed a motion to suppress pursuant to the then-recently decided U.S. Supreme Court case of Arizona v. Gant, 129 S. Ct. 1710 (2009).

In Gant, the court held that police are authorized to search a vehicle, incident to arrest, only when the arrestee is “unsecured and within reaching distance of the passenger compartment at the time of the search” or it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”

Because Smiter was arrested for possession of marijuana, and was not within reaching distance of the passenger compartment, the appeals court examined whether the arresting police officers reasonably believed Smiter’s car contained “evidence relevant to the crime of arrest.”

The appeals court – in an opinion written by Judge Kitty Brennan – ruled that it was not necessary for police to smell marijuana in order to form a reasonable belief that more marijuana evidence was in the car, or stop the search once some evidence was seized.

“Because Smiter was arrested for a drug offense, and because the police officers had additional reasons to believe relevant evidence of the drug offense may be located in the Buick – including Smiter’s furtive movements and the damp marijuana blunt – we conclude that the search of the Buick was authorized by Gant,” Judge Brennan wrote.