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Defense win! COA says no community caretaker search where no good reason to think anybody was hurt

State v. Troy K. Kettlewell, 2018AP926, 9/18/2019, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

This is a very fact-intensive OWI case and the court is to be commended for really critically examining what all these facts add up to: not much. As in, not much reason to think Kettlewell was in any danger, so no good reason to go into his house without a warrant.

As formulated by Wisconsin courts, the community-caretaker exception requires a three-step inquiry:

(1) did a search within the Fourth Amendment occur?; (2) if so, were the police exercising a bona fide community caretaker function?; and (3) if so, does “the public interest outweigh[] the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised within the context of a home?”

(¶16) (citing State v. Pinkard, 2010 WI 81, ¶13, 327 Wis. 2d 346, 785 N.W.2d 592). Here, the court holds the state failed steps 2 and 3 (though it also notes they didn’t really even try, ¶36 n.4).

Here’s step two:

This was a one-car accident with no apparent damage or resulting injury. Some, but not all, of the air bags deployed—not surprising for a car driven into a ditch. Although air bag deployment and the slurred speech could indicate harm, the citizen witness reported that Kettlewell walked away and did not report any apparent injury. When Huth spoke with Kettlewell, he advised that Tracy had been driving, mumbled something and then hung up, which does not necessarily point to physical injury.

At the scene, it was clear that Tracy had come to the scene of the accident and as such, it was reasonable to infer that she was there because Kettlewell had contacted her. Had Huth asked Tracy about Kettlewell’s wellbeing, he presumably could have learned that Tracy had picked Kettlewell up and taken him to their home, and sought information on how he was doing.

At Kettlewell’s home, Schuh walked around the house and peered through windows, seeing Kettlewell’s fourteen-year-old daughter inside. He proceeded to the back patio, looking in every window, waking Kettlewell, and yelling to him several times to go to the front door so that they could talk to him. Schuh did not ask about his welfare nor did Kettlewell state he needed help. Although Schuh hurried to the front door, Kettlewell had already let Olig in, who was questioning him. Schuh admitted that Kettlewell was first asked about his driving and his drinking before questions were asked about his health

What is most striking is that, in addition to the citizen witness, Kettlewell had contact with three separate people who could and likely would have noted if he were injured and not simply intoxicated: his girlfriend, his fourteen-year-old daughter, and to a lesser extent his cousin. While the officers indicated concern for Kettlewell’s well-being, they did not ask any of these people about Kettlewell’s well-being or to assist in determining if he needed immediate help. Their questions were largely focused on his drinking and driving. In other words, while they testified to a subjective concern for Kettlewell’s well-being, their questions are the objective behavior we evaluate in considering the totality of circumstances and, specifically, whether there was a manifestation of a serious injury.


As the court notes, the facts of this case look a lot like those of State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505, another case involving an intoxicated driver who walked from the scene of a minor accident to her home, who left no sign of injury, and about whose well being police passed up the chance to inquire, choosing instead to simply barge in.

For good measure, the court also explains how the state falls short on step three, which involves a multi-part sub-test considering:

(1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the [search], including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.

(¶¶30-36). Many of the same facts come into play; together, in the court’s view, they paint a picture of a warrantless invasion of the home in pursuit of evidence, with the officers’ professed concern for safety merely a post-hoc excuse.

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