Just last week we had Kettlewell, where the court of appeals rejected the state’s claim that the officers who entered a suspected drunk driver’s home were performing a legitimate community-caretaker search because he might have been injured. Here, we have the police going into a home whose occupant they’ve already arrested outside; the court rejects as merely speculative the state’s argument that someone else might have needed assistance inside, or that firearms in the home might have posed a danger. We also get this gem: “The court did not explain why the fact that Jennerjohn was holding a piece of venison when he came out of his residence supported an objectively reasonable basis for the officers to believe it was necessary to search his residence in order to protect themselves or others.” (¶40).
Jennerjohn got kicked out of a bar. He had been cursing at employees, trying to start fights, and throwing things, and when he left, he made some vague threats to the bartenders. Police were dispatched to his house, where they found him outside; he ran inside when they approached. The police stayed outside, knocking on his door; Jennerjohn stayed inside, visibly walking around and at one point filming the police outside. A neighbor told the police he lived alone, and Jennerjohn also spoke to a friend on the phone during this period, telling her he was alone in the house, had hurt his foot, and wanted to go to sleep. Police noted a rifle case in Jennerjohn’s car.
After half an hour to an hour, Jennerjohn came out holding an object, the aforementioned venison, in his hand. He began walking toward the officers, ignoring their commands to stop and asking them to shoot him. The officers tased him and handcuffed him more than ten meters from his home. He also told the police nobody else was inside.
Police went to his door and opened it; they yelled for anyone inside to announce themselves. Nobody did. Neverthelesss, they deciced to do what they called a “protective sweep” of the house; they found quite a bit of marijuana (but no people). Jennerjohn moved to suppress the fruits of the search, lost, and appealed.
There are a lot of little wrinkles to the parties’ arguments and the court’s decision here:
- The court notes that there were really two searches here–because opening Jennerjohn’s door was itself a search (it revealed photos of children on the wall that the police also cited as a justification for the belief that people might be inside). (¶23 n.1). Nevertheless, it follows the parties’ lead and addresses only the second one (the “protective sweep”).
- The state (as the court says, “wisely”) abandoned the argument that the search was justified by the protective sweep doctrine–that only permits a quick look around the area of a person’s arrest; Jennerjohn was arrested some distance from the house. (¶23 n.2 (citing Maryland v. Buie, 494 U.S. 325, 334 (1990))).
- As with Kettlewell, the court holds the state fails both the second “bona fide community caretaker” prong and the third “balancing of interests” prong of the community caretaker inquiry. The discussion is, as you’d expect, fact-heavy, but the essential points are that police had no real reason to think anyone else was inside (and many reasons to think the opposite) and no reason to think any firearms in the house were an immediate threat, given that Jennerjohn was in custody and was likely to remain so for some time. The court analogizes to State v. Maddix, 2013 WI App 64, 348 Wis. 2d 179, 831 N.W.2d 778, and distinguishes State v. Matalonis, 2016 WI 7, 366 Wis. 2d 443, 875 N.W.2d 567, on these points.
Especially worth noting: the state also argued that even if the search here violated the Fourth Amendment, suppression isn’t the remedy. (¶¶49-51). Of course, many decisions hold that suppression’s function is to deter misconduct, and so it doesn’t apply where it won’t efficiently achieve that end. But those cases exempt particular categories of violations from the exclusionary rule–for example, searches carried out in good faith reliance on a warrant, confessions given during lawful custody after an unlawful arrest, etc.–they don’t call for an ad hoc balancing of the facts of each case.
What the state’s suggesting here is quite different: it says, basically, that this wasn’t an especially egregious violation, so no suppression. Thankfully, the court of appeals has no trouble rejecting the state’s novel hey-could-have-been-worse doctrine.