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Warrantless search of bedroom justified by emergency exception

State v. Sandra D. Noren, 2015AP1969-CR, District 2, 8/17/16 (not recommended for publication); case activity (including briefs)

A police officer responding to a 911 call conducted a warrantless search of Noren’s bedroom and found drugs and paraphernalia. The court of appeals holds the search was justified under the emergency exception to the warrant requirement. 

A police officer responded to a 911 call of a possible drug overdose at Noren’s residence. The officer found Noren unconscious on the kitchen floor and provided “first responder” treatment until EMTs arrived, after which he searched Noren’s bedroom for the cause of her overdose in order to assist in her emergency care. In a wardrobe the officer found heroin, pills, and drug paraphernalia and promptly told the EMTs what he’d found. Noren moved to suppress the evidence found during the search, arguing that the officer’s search of the wardrobe in her bedroom exceeded the scope of what was permitted under the emergency exception. (¶¶2-4).

As originally developed in Wisconsin, the emergency exception requires the state to satisfy a two-part test. The first part is subjective and requires that the searching officer is “actually motivated by a perceived need to render aid or assistance.” The second part is objective and requires that “a reasonable person under the circumstances would have thought an emergency existed….” State v. Prober, 98 Wis. 2d 345, 365, 297 N.W.2d 1 (1980), overruled on other grounds, State v. Weide, 155 Wis. 2d 537, 455 N.W.2d 899 (1990). The objective part of the test was restated and amplified in State v. Boggess, 115 Wis. 2d 449, 452, 340 N.W.2d 516 (1983), which held that objective prong is satisfied when, under the totality of circumstances, a reasonable person would have believed: 1) there was an immediate need to provide aid or assistance to a person due to actual or threatened physical injury; and 2) that immediate entry into an area in which a person has a reasonable expectation of privacy was necessary in order to provide that aid or assistance. (¶¶5-9).

Noren doesn’t dispute that the officer’s search in this case satisfies the subjective part of the test, so the issue is whether the objective part is satisfied. The court of appeals holds that it is:

¶15     In this case, [Officer] Nettesheim arrived on the scene to find Noren “laying in the kitchen, not responsive, turning blue in color.” Nettesheim did not have medical training to determine if Noren was suffering from a heroin overdose, and he testified that his motivation was “[t]o find out why she was overdosing, to relay it to EMS, so she could get better.” Although EMS was on the scene at the time Nettesheim searched Noren’s bedroom, the presence of medical personnel did not immediately alleviate the emergency nature or alter the fact that Noren was in imminent danger. Nettesheim explained that in the past, telling medical staff about drugs that he has found at the scene has been helpful to them in treating an overdose victim. Further, the scope of the search was directly related to the emergency as Nettesheim searched an area were it was reasonable to believe that Noren would have kept drugs—her bedroom. Under the circumstances, a reasonable person would have believed that it was necessary for Nettesheim to search Noren’s bedroom and purse as an area where information that could aid in her emergency care would be located.

¶16     Noren further argues that “the officers did not need to search the bedroom because they were aware of the cause of Ms. Noren’s condition and were able to relay the information to the EMS immediately” and “a search would not have provided officers with more information [than] they already had.” We disagree. Nettesheim testified that he had been called to Noren’s residence approximately one week prior when Noren overdosed from taking pills. During Noren’s previous overdose, the pills were still on the floor, which the officers used to identify and help treat her. During this overdose, Nettesheim was told by Noren’s nephew that Noren may have used heroin, but there was no clear evidence, such as heroin, pills, or drug paraphernalia, in the immediate vicinity to substantiate the nephew’s statements. Nettesheim testified that he could not “be absolutely sure that [Noren] was suffering a heroin overdose.” Under the circumstances, it was reasonable and helpful to Noren’s well-being for Nettesheim to search for the cause of her overdose in order to aid in her emergency care, especially considering his knowledge that her prior overdose was the result of pills, not heroin.

Two doctrinal notes: First, whether the emergency doctrine should still have a subjective part is open to question in light of Brigham City v. Stuart, 547 U.S. 398, 404 (2006), which applied the emergency exception but rejected a subjective approach, saying that “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’” Cf. State v. Leutenegger, 2004 WI App 127, ¶¶5-7, 275 Wis. 2d 512, 685 N.W.2d 536 (questioning the application of a subjective component in light of State v. Richter, 2000 WI 58, ¶30, 235 Wis. 2d 524, 612 N.W.2d 29, which applied a purely objective test). The court doesn’t need to resolve the question here, however, because Noren concedes the subjective test, if applicable, is satisfied. (¶¶10-11 & n.4).

Second, the state argued the search was justified under the community caretaker doctrine. But that involves a different test, State v. Pinkard, 2010 WI 81, ¶26 n.8, 327 Wis. 2d 346, 785 N.W.2d 592 (the exceptions are not one and the same, as “[t]he community caretaker exception does not require the circumstances to rise to the level of an emergency to qualify as an exception to the Fourth Amendment’s warrant requirement.”). The court declines to apply the community caretaker doctrine because it can decide the case under the emergency doctrine. (¶1 n.1).

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