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Defense win: Neither exigent circumstances nor community caretaker role justified home entry

State v. Michael A. Durham, 2015AP1978-CR, 4/12/2016, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Police were dispatched in response to a 6:30 p.m. phone call from a neighbor about unintelligible yelling and “banging” that shook the walls of Durham’s residence. (¶2). After knocking and ringing the doorbell and receiving no response, police simply entered the house, guns drawn, and proceeded toward the stairs, where they encountered Durham. (¶¶3-5). The officers ordered Durham to show his hands, he didn’t, and they tasered him. (¶6). He was charged with resisting an officer, unsuccessfully moved to suppress evidence obtained via the warrantless search of his home, and was convicted at trial. (¶1). The court of appeals here reverses the conviction because the suppression motion should have been granted.

The court declines to address Durham’s claims that the jury was improperly instructed and that there was insufficient evidence to convict him, instead concluding the police lacked constitutional justification to enter the home without a warrant. (¶1). The state argued that both the community caretaker and exigent circumstances doctrines permitted the entry.

The community caretaker exception to the warrant requirement has three elements:

(1) whether a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, whether the police were exercising a bona fide community caretaker function; and (3) if so, whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised within the context of a home. (¶12).

The first element is undisputed, but the court of appeals holds that the state falls short on both of the final two. As to the “bona fide community caretaker function” the court sees no reasonable basis to believe that a member of the public needed assistance:

Here, the only information Schultz and Neely had when they arrived at Durham’s residence was: (1) that a neighbor had reported hearing yelling and banging and observing a shaking wall; and (2) that dispatch characterized the situation as a “possible domestic incident.” When the officers arrived at the residence, they did not observe any additional evidence indicating anyone inside was in need of assistance, nor did they observe anything that corroborated the neighbor’s report. They did not attempt to contact the neighbor for further information or call the residence to determine whether anyone was inside. Instead, Schultz immediately entered the home’s curtilage by proceeding into the attached garage. After knocking on the interior door and receiving no response, Schultz entered the residence. Once inside, he did not call out to ask if everyone was okay or if anyone needed help. Rather, he immediately went to the front door to let Neely inside. Although it was dark in the lower floor of the residence, neither Schultz nor Neely turned on any lights. Neither officer observed anything suggesting there had been a fight or disturbance. Nevertheless, they proceeded farther into the home, with their weapons drawn.

On these facts, the officers lacked an objectively reasonable basis to conclude anyone inside Durham’s residence needed assistance. An uncorroborated report of yelling, banging, and a shaking wall, without more, is insufficient to allow a reasonable officer to conclude a member of the public requires aid….

(¶¶14-15). The court goes on to distinguish two cases: State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592 (anonymous, partially corroborated tip of two apparently sleeping individuals in a room with cocaine and paraphernalia in residence with open door), and the recent state supreme court decision in State v. Matalonis, 2016 WI 7, 366 Wis. 2d 443, 875 N.W.2d 567 (loud bangs coming inside a home combined with blood spatters justified entry into locked room).

The court also finds the third element unmet, for many of the same reasons as the second. (¶¶20-25).

Turning to exigent circumstances, again for many of the same reasons already discussed, the court concludes that “under the facts known to Schultz and Neely at the time they entered Durham’s residence, a reasonable officer could not conclude anyone inside the residence was in grave danger or that delay in procuring a warrant would cause such danger.” (¶28).

Curiously, as the court notes, the state did not argue (and the trial court did not find) the police had probable cause to believe they would find evidence of a crime in the residence, a necessary showing for the exigent circumstances exception. (¶45 n.6).

Editor’s note: The post above was based on a court of appeals decision issued April 12, 2016. On May 4th, the court of appeals withdrew its opinion, and today, June 1st, it issued a new opinion. The difference? The original decision did not address Dunham’s argument that there was insufficient evidence to support his conviction for resisting an officer, contrary to §946.41, and the reissued opinion does. See State v. Ivy, 119 Wis. 2d 591, 610, 350 N.W.2d 622 (1984)(appellate court must decide sufficiency-of-evidence issue even though there may be other grounds for reversing conviction that would not preclude retrial). The crime of resisting an officer requires proof that: (1) the defendant resisted an officer; (2) the officer was acting in an official capacity; (3) the officer was acting with lawful authority; and (4) the defendant knew the officer was acting in an official capacity and with lawful authority and that his conduct would resist the officer. Wis. JI-Criminal 1765 (2012). The trial here came down to Dunham’s word versus the word of 2 officers. Per the tough standard of review for this type of claim, the court of appeals essentially concluded that jury was free to believe the officers’ version of events. And, on points to which only Dunham testified, the jury was free to reject his testimony. (¶¶19-26).

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