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Warrantless Entry: Community Caretaker Exception

State v. Kathleen A. Ultsch, 2011 WI App 17(recommended for publication); for Ultsch: Shelley Fite, SPD, Madison Appellate; case activity; Ultsch BiC; State Resp.; Reply

Warrantless entry into a home, supposedly to check on the well-being of a suspected drunk driver just involved in an accident, wasn’t justified under the community caretaker doctrine; State v. Pinkard, 2010 WI 81, distinguished. overarching principle: community caretaker “warrantless entry into a residence is subjected to stricter scrutiny” than exercise of such function outside home, ¶18. That said, Pinkard also involved entry of a home, so the different result here is based on a lesser showing of necessity. Damage to the driver’s car wasn’t such as to cause concern for her safety; “there was no blood or other indication of injury,” ¶19. Her boyfriend had just seen her and didn’t mention any need for assistance, ¶20. In short, “the officers had no indication whatsoever that Ultsch might need assistance,” ¶21.

The court goes a step farther, and holds that the entry also was unjustified under the separate, 3rd step of the test, namely that the public interest was outweighed by the intrusion on Utsch’s privacy. The door was closed, if unlocked, and police entry into the home and then into her bedroom to awaken her represented a “considerable” “degree of overt authority,” ¶¶23-29.

The court also suggests, by way of aside, that suppression isn’t a foregone conclusion, ¶30 n.6:

The parties did not brief and we do not address the precise consequences of reversing the circuit court’s suppression decision.  We note that when police illegally enter and illegally arrest a defendant in a home, the exclusionary rule does not necessarily bar evidence later obtained away from the home.  See New York v. Harris, 495 U.S. 14, 20-21 (1990).

Harris, it should be noted, dealt with suppression of a statement, not physical evidence. Its basic rationale is “that an arrest in a home without a warrant but with probable cause (doesn’t) render[] unlawful continued custody of the suspect once he is removed from the house.” In other words, when Harris gave his statement at the police station after being removed from his home, he was in lawful custody, hence taint analysis didn’t apply. A handful of Wisconsin cases discuss the problem, including State v. Peter R. Cash, 2004 WI App 63, ¶27 n. 10: “While we have already determined that his warrantless arrest was supported by probable cause, we note that Cash’s statements were made outside of his residence and therefore, even if the arrest were deemed illegal, his statements would not have been suppressed as the result of a constitutional violation. See New York v. Harris, 495 U.S. 14, 21 (1990) (the exclusionary rule does not bar statements made outside the home even though statement was taken after an arrest made in the home in violation of Payton v. New York, 445 U.S. 573 (1980)).” Also: State v. David J. Roberson, 2005 WI App 195, ¶17 (“Harris established the following per se rule: ‘[W]here the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.’”), affirmed on other grounds2006 WI 80.

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