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Emergency Exception to Warrant Requirement — Officer’s Subjective Intent

State v. Walter Leutenegger2004 WI App 127
For Leutenegger: Bill Ginsberg


¶12. A warrantless home entry is presumptively unreasonable under the Fourth Amendment. Richter, 235 Wis. 2d 524, ¶28. The government bears the burden of establishing that a warrantless entry into a home occurred pursuant to a recognized exception to the warrant requirement. See State v. Hughes, 2000 WI 24, ¶17, 233 Wis. 2d 280, 607 N.W.2d 621; State v. Milashoski, 159 Wis. 2d 99, 110-11, 464 N.W.2d 21 (Ct. App. 1990). “[W]e weigh the urgency of the officer’s need to enter against the time needed to obtain a warrant.” Richter, 235 Wis. 2d 524, ¶28.

¶13. Whether a warrantless entry into a home is justified by the exigent circumstances exception is a mixed question of fact and law. Id., ¶26. A circuit court’s findings of evidentiary or historical fact will not be overturned unless they are clearly erroneous. Id.This court independently determines whether facts establish exigent circumstances sufficient to justify a warrantless entry. Id.

¶14. If we stopped our legal discussion here, a reader might erroneously conclude that an officer’s subjective belief regarding exigency is irrelevant. However, our supreme court recently held, in the Fourth Amendment context, that evidence of an officer’s subjective belief is admissible because such evidence may assist a court in analyzing whether facts known to an officer meet the objective standard. State v. Kyles, 2004 WI 15, ¶39, 269 Wis. 2d 1, 675 N.W.2d 449. We perceive no reason why this rule should not apply to a court’s determination of whether exigent circumstances justify a warrantless entry.

¶19. To summarize, whether a warrantless home entry is justified based on the need to render assistance or prevent harm is judged by an objective test. “The test is ‘[w] hether a police officer under the circumstances known to the officer at the time [of entry] reasonably believes that delay in procuring a warrant would gravely endanger life ….'”Richter, 235 Wis. 2d 524, ¶30 (quoting Smith, 131 Wis. 2d at 230). In addition to the circumstances known to police at the time of entry, a court may consider the subjective beliefs of police officers involved, but only insofar as such evidence assists the court in determining objective reasonableness. See Kyles, 269 Wis. 2d 1, ¶¶23, 37, 39.

Similar, detailed discussion in Brigham City v. Stuart, 2005 Utah 13 —

¶29 The primary rationale for permitting police officers greater latitude in justifying an exigent circumstances intrusion than an emergency aid intrusion flows from the different role assumed by officers acting in the face of exigent circumstances. Officers who act in the face of exigent circumstances are pursuing a law enforcement mission, not acting as caretakers.

¶31 … The degree of potential harm to an officer that is necessary to create an exigent circumstance is minimal, reflecting the high value we place on the security of peace officers.

¶33 … Consequently, the difference between the quantum of harm necessary to invoke the emergency aid and exigent circumstances doctrines is greatest when probable cause is present and a law enforcement officer is exposed to risk, but is of lesser magnitude when the threat of harm is to the inhabitant of the dwelling.

— but the subsequent reversal in Brigham City v. Stuart, USSC No. 05-502, 5/22/06, eviscerates the distinction:

Our cases have repeatedly rejected this approach. An action is “reasonable” under the Fourth Amendment, regardless of the individual officer’s state of mind …. The officer’s subjective motivation is irrelevant. … It therefore does not matter here—even if their subjective motives could be so neatly unraveled—whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence.

Also see, e.g., U.S. v. Snipe, 9th Cir No. 06-30215, 1/28/08.

Note, however, that Stuart failed to raise a state constitutional claim, an omission which the Utah supreme court noted with regret (¶14). The issue having now been definitively resolved under the fourth amendment, the following discussion relates to a potential state constitutional argument.

For an interesting discussion of the emergency and exigency doctrines, see Kyer v. Commonwealth, Va App No. 2200-03-2, 8/17/04:

In fact, the only true distinction between these two doctrines is whether the search at issue related to a criminal investigation. … When applied as a “complement” to investigatory functions of the police, the emergency exception becomes subsumed within the doctrine of exigencies and must therefore, satisfy the requirements of warrantless entry under those circumstances. …However, when applied independently of police investigatory functions (in the “non-exigent” context), the emergency exception becomes the functional equivalent of that portion of the community caretaker doctrine recognizing that, independent from their duties of investigating crimes, “police owe ‘duties to the public, such as rendering aid to individuals in danger of physical harm, reducing the commission of crimes through patrol and other preventive measures, and providing services on an emergency basis.’” …

For that reason, this Court has consistently required that any warrantless search, pursuant to either the community caretaker exception or the “non-exigent” form of the emergency exception, be factually unrelated to an intent to search for evidence of illegal activity….

For additional foreign authority distinguishing “exigent circumstances” from “emergency,” see State v. Horn, KS SCt No. 90,066, 6/18/04:

As the Jones court further observed: “It is important to keep in mind that reasonable grounds under the emergency doctrine differs from the probable cause required under the more familiar crime-related exigent circumstances exception.” 24 Kan. App. 2d at 414. It quoted from State v. Fisher, 141 Ariz. 227, 240-41, 686 P.2d 750, cert. denied 469 U.S. 1066 (1984), regarding this crucial difference:”‘The exigent circumstances exception is triggered when the police, with probable cause but no warrant, enter a dwelling in the reasonable belief that the delay necessary to obtain a warrant threatens the destruction of evidence, [citations omitted], or when they have a reasonable belief that a crime is in progress or has just been committed in a dwelling and the delay attendant to obtaining a warrant endangers the safety or life of a person therein. [Citations omitted.] . . . .

“‘Conversely, the emergency aid doctrine is triggered when the police enter a dwelling in the reasonable, good-faith belief that there is someone within in need of immediate aid or assistance. In cases in which this doctrine applies there is no probable cause which would justify issuance of a search warrant, . . . and the police are not entering to arrest, search, or gather evidence.'” (Emphasis added.) 24 Kan. App. 2d at 414.

Exigency distinguished from emergency, in that former relates to need to seize contraband or evidence of crime, and latter to immediate need to protect life or property: U.S. v. Martinez, 9th Cir No. 04-30098, 5/16/05. Lengthy discussion, distinguishing “community caretaker,” “emergency,” and “exigent circumstances” doctrines, in State v. Ryon, 2005-NMCA-005, ¶¶ 21, et seq.; and, State v. Gill, 2008 ND 152 (warrantless entry of home may not be supported by community caretaker rationale but may be under distinct test of emergency doctrine). The distinctions, of course, may be arbitrary in any given case, and would certainly seem so in Leutenegger’s instance. Did the police enter the garage to prevent harm from Leutenegger? Or to render aid to him? Indeed, the court itself combines the inquiries: “¶4. The question in this case is whether the officer’s warrantless entry into Leutenegger’s attached garage was lawful because of a possible need to render assistance or prevent harm.” It may be that Wisconsin doesn’t recognize a distinction between the exigent circumstances and emergency doctrines; but it might be wise to keep it in mind, in terms of developing a state constitutional argument. In any event, Horn requires that under the emergency doctrine the police “must not be primarily motivated by intent to arrest and seize evidence,” — Kyer is to like effect; Ryon, ¶27, says an emergency may coexist with a criminal investigation, but “the motivation … must be a strong sense of emergency.”

This point of potential definitional dispute should not distract from the principle — not necessarily raised by Leutenegger — that the State can’t avoid the dictates of Terry simply by labelling the police activity as “community caretaking.” This point is exemplified under facts somewhat similar to this case (police checking on someone in parked car, apparently unconscious), State v. Boblick, 2004-NMCA-078, ¶11, New Mexico App. No. 23,160, 5/10/04:

More important, regardless of whether the community caretaker doctrine justified the officers’ actions beyond the initial contact with Defendant, an officer who acts in the community caretaker capacity is still subject to state and federal constitutional constraints with respect to a weapons frisk because it is distinct from a welfare check. See id. ¶ 10 (drawing the distinction between a community caretaker encounter and an investigatory stop, which is a type of seizure); see also Nemeth, 2001-NMCA-029, ¶ 27 (“[I]t is clear that many community caretaker actions can and do implicate the Fourth Amendment.”). In order to subject a citizen to a protective frisk for weapons, the officer “must have a sufficient degree of articulable suspicion that the person being frisked is both armed and presently dangerous.” State v. Vandenberg, 2003-NMSC-030, ¶ 22, 134 N.M. 566, 81 P.3d 19 (emphasis added).

Or, for that matter, avoid other requirements simply by refusing to assign the community caretaker label (Leutenegger, ¶10 n.3: “We stress that we do not address the community caretaker doctrine and, therefore, do not address whether the distinctions among the situations discussed in the text matter for purposes of that doctrine”).

Leutenegger goes on to uphold warrantless police entry into a home (more precisely: the attached garage, where the hapless Leutenegger lounged in his car, possibly too drunk to get out and insensible to the officer waiting to pounce; or perhaps afraid to get out because a strange figure was lurking menacingly in the shadows. Who knows?). As with all S & S cases, this one’s fact-specific, and these facts seem to be the most vital:

¶28. … The facts would have led a reasonable officer to conclude that Leutenegger was in his seventies or eighties and highly intoxicated. As the circuit court explained, this age, combined with a high degree of intoxication, would lead a reasonable officer to be concerned about Leutenegger’s health.

¶29. The officer also observed that Leutenegger delayed leaving his car for no apparent reason. The officer knew that the citizen had followed Leutenegger to Leutenegger’s home and returned a short distance to a main street where the citizen made contact with the officer. After driving a short distance to Leutenegger’s house, the officer stood in the street for about a minute. Combining these time periods, it is apparent that, after driving into his garage, Leutenegger sat in his car for at least two to three minutes before the officer entered the garage. This might seem like a short time, unless one looks at a clock, watches two or three minutes go by, and considers the normal time it takes to get out of a car after parking.

¶30. The circuit court credited the officer’s testimony that she was subjectively motivated, in part, by a concern for Leutenegger’s safety. Part of this testimony provides some assistance. The officer said she was concerned because “[m]ost people when they pull their car into the garage they exit their vehicle and go into their house.” The obvious inference is that the officer thought Leutenegger might be experiencing a physical problem related to his intoxication that was preventing him from taking the normal action of exiting his car and entering his home. We agree with the officer that most people exit their cars shortly after parking at their homes. We also assume, as we infer the circuit court assumed, that it appeared to the officer that Leutenegger was simply sitting in the driver’s seat, as opposed to moving about gathering items or engaging in some other activity.7 To this extent, the officer’s testimony reflects that her subjective belief was based on a common-sense assumption regarding normal human activity. We agree with the circuit court that this circumstance, combined with other information, suggested a current intoxication-related health problem.

The elephant in the garage seems to be Welsh v. Wisconsin, 466 U.S. 740 (1984) (warrantless entry of residence to investigate minor offense unjustifiable). But to be fair, it is distinguishable: Welsh had left his car and gone home on foot, so he couldn’t have posed a threat to anyone by the time the police entered his home. Leutenegger by contrast remained a potential imminent threat [at least if you credit the court’s determination [judicial notice?] that an elderly, inscrutable driver who tarries in his car poses an emergency]. If you limit Leutenegger to its facts it might not be so bad, let alone a broad exception to Welsh.

Also see People v. Thompson, Cal. App. 2nd Dist No. B176808, 11/17/04, for suggestion that evidence the suspect is “likely to flee and again drive while intoxicated” supports entry under Welsh,reversed on other grounds, People v. Thompson, Cal No. S130174, 6/1/06. Certainly, Leutenegger’s remaining in the car could suggest a flee-and-drive-again justification for warrantless emergency (or is it exigent circumstances?) entry.

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