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Concern about building owner intending to enter apartment justified warrantless entry by police

State v. Jodi J. Lux, 2018AP338-CR, District 2, 8/29/18 (one-judge decision; ineligible for publication); case activity (including briefs)

A police officer’s warrantless entry into the apartment Lux was in was justified by his concerns about the safety of the apartment building owner, who told the officer she was going to enter the apartment to figure out what was going on.

The officer was looking for a car that left the scene of an accident. He found the car in at a nearby two-unit residence and knocked on the door of the lower unit. An elderly woman appeared from the upper unit and, after talking to the officer, she concluded the car’s driver was probably with her grandson, who lived in the lower unit. She told the officer she was going to “confront” her grandson to find out what was going on. The officer, “concerned with this elderly female going inside by herself,” asked if she wanted him to go in with her; she said “come on in,” opened the lower unit door without knocking, and entered. The officer found Lux inside and arrested her for OWI. (¶¶2-5).

A warrantless entry is permissible under the community caretaker exception if the officer was exercising a bona fide community caretaker function, which requires an objectively reasonable basis to believe a member of the public is in need of assistance, and if the public interest outweighs the intrusion upon privacy such that the community caretaker function was reasonably exercised. State v. Gracia, 2013 WI 15, ¶¶17-18, 345 Wis. 2d 488, 826 N.W.2d 87;  State v. Pinkard, 2010 WI 81, ¶¶18, 29, 40, 327 Wis. 2d 346, 785 N.W.2d 592. These standards were met here.

First, the entry involved the exercise of a bona fide community caretaker function:

¶15     [Officer] Johnson testified that he entered the lower unit for the protection of the elderly woman. She was about eighty. Despite being the owner of the building and the occupants’ mother and grandmother, she did not recognize the damaged car parked out in front. She was determined—to the point of anger—to “confront” the situation, even “walk[ing] away from [Johnson] like she was mad and was going … in there and figure out what was going on.” Tellingly, when Johnson asked her if she wanted him to go in with her, she readily agreed and “waved” him in. Although unaware of who the driver was, Johnson at least knew it was someone who just drove a car into a residence with such force that the “front steps were ripped completely off,” and yet drove on without reporting it, and plowed over a small fence while parking the vehicle, which still had wood from the steps embedded in the grille. He also knew that the woman did not know the person who drove the car or what he or she was doing in the apartment. The totality of the circumstances constituted a reasonably objective basis to be concerned that the elderly woman, upon entering the lower unit to investigate the entry of an apparent stranger, could face a situation that was volatile, unpredictable, and unsafe.

Lux challenges the claim the officer was engaged in community caretaking because the elderly woman’s safety was not the sole motivating factor for Johnson’s entry, as he was not investigating a crime of violence and had no “specific” grounds to believe the woman would be attacked. (¶16). The court disagrees: “That protecting the elderly woman may have entailed a modest degree of investigation does not negate Johnson’s function as a community caretaker,… Further, it would be unreasonable to require an officer, before invoking the community caretaker exception, to know of the specific probability of an attack.” (¶17). While the officer may not need to know a specific probability, some probability sure would be nice, given this is a warrantless entry to a dwelling, and nothing the officer knew here gave him even that de minimis amount.

Having determined the officer entered the apartment as a community caretaker, the next question is whether he exercised his community caretaker function reasonably. This requires balancing the public interest or need against the nature and degree of the intrusion on the defendant’s constitutionally protected privacy using four factors: 1) the degree of the public interest and the exigency of the situation; 2) the circumstances of the search, including time, location, the degree of overt authority and force displayed; 3) whether an automobile is involved; and 4) the alternatives to the intrusion involved. Pinkard, 327 Wis. 2d 346, ¶¶29, 40. You won’t be surprised to learn this “balancing” comes out in favor of the entry in this case:

  • The first factor (degree of public interest and exigency) is just a rehash of (and thus redundant to) the reasons the court used to find the officer was acting as a community caretaker. (¶19).
  • As to the second factor, the display of overt authority and force was practically nonexistent, and Johnson asked the elderly woman for permission to enter, and she granted it. (¶20).
  • The third factor weighs against finding the exception, as the entry was to a home not a car, though the record is unclear whether Lux was an occupant or a guest who would have lesser privacy expectations. (¶21).
  • Finally, the court sees no alternatives to the entry. The woman was determined to go into the unit, so if Johnson was going to protect her he had to do so immediately. “It is true, as Lux points out, he could have asked the woman not to enter the apartment, but Lux does not suggest that the woman was under any obligation to comply and, given her demeanor and her status as the owner of the building and mother and grandmother to the residents, it appears unlikely she would have held back.” And the officer had already tried to contact the individuals inside without success. (¶22).
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