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May the 4th be with you: Another warrantless home entry authorized under the community caretaker doctrine

State v. Sierra Ann Desing, 2017AP490-491, 10/11/17, District 2, (not recommended for publication); case activity (including briefs)

A citizen informant told 911 that he saw Desing pulled over on the side of the road hanging out her door. He asked if she was okay and was told “yes,” but he later saw her driving erratically on the highway. Deputies went to her house, knocked “loudly,” received no response, discovered her back door and patio door open on May 28 at 7:30 a.m., saw her dog running loose in the backyard, and, fearing that she might be choking on her own vomit, entered the house and searched until they found her asleep in the basement.The citizen informant had not told law enforcement that Desing was sick or vomiting. They inferred it. She admitted vomiting but thought it was from food poisoning. Turns out she had also been driving with prohibited alcohol concentration. When the State charged her with a first-offense OWI, she moved to suppress arguing that the warrantless entry into her home violated the 4th Amendment.

If you’re familiar with State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592, you can already know that the court of appeals upheld the home entry under the community caretaker doctrine. Pinkard involved an anonymous tip that a person was sleeping in his home next to drugs, and police found the back door part way open. They knocked on the door, waited seconds for a response, then entered on the theory that he might have overdosed, though they had no evidence that he was sick. SCOW held that entry was warranted under the 7-part community caretaker doctrine test. (What if he had overdosed? What if there were child in the house? What if the roof were collapse? What if the house combusted spontaneously? OMG!) That decision pretty much gutted 4th Amendment protection of the home in Wisconsin, so it’s not a huge surprise that the court of appeals upheld the entry here. You can read how the court applied the 7-part test at ¶¶14-18 and ¶¶23-27.  The salient parts are that the informant (who identified himself) actually saw Design in distress and later driving erratically. And while deputies saw no blood or vomit outside her home, the open back doors and dog running loose “heightened their concern” for her health and safety. Under Pinkard, she loses.

Desing argued that her case was closer to State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505, where police found a car with a damaged fender in a driveway. The homeowner told police that the driver was his girlfriend who was possibly asleep in his house. The officers saw no blood in the driver way yet when the woman didn’t respond when they knocked on her door. Since it was unlocked, they opened it, entered, and determined that she was intoxicated. Ultsch held that the police there were not exercising a community caretaker function. The difference, according to the court of appeals, is that the boyfriend in Ultsch expressed no worry; here the 911 caller expressed nothing but worry. Op. ¶22. If you’re wondering about whether the community caretaker doctrine even applies to home entries, SCOW’s recent decision in State v. Matalonis held that it does. SCOTUS denied the defendant’s cert petition. But there is still a split of authority over the issue. In the words of Andy Roddick: “Redemption does NOT hit the snooze button.” Keep filing and may the 4th be with you.

 

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