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Emergency Exception to Warrant Requirement — Officer’s Subjective Intent

State v. David M. Larsen, 2007 WI App 147, PFR filed 5/31/07
For Larsen: Jefren E. Olsen, SPD, Madison Appellate


¶18 The parties express some confusion over whether an officer’s subjective motivations are relevant in determining whether his or her actions violate the Fourth Amendment in emergency doctrine matters. Recent cases from our supreme court and the United States Supreme Court clarify that whether a warrantless home entry is justified based on the need to render assistance or prevent harm is judged by an objective test. State v. Leutenegger, 2004 WI App 127, ¶19, 275 Wis. 2d 512, 685 N.W.2d 536; Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 1948 (2006).

¶19 In Leutenegger, an “exigent circumstances” case, we formulated the test as “‘[w]hether a police officer under the circumstances known to the officer at the time [of entry] reasonably believes that delay in procuring a warrant would gravely endanger life ….” Leutenegger, 275 Wis. 2d 512, ¶19(citations omitted). Although we also suggested that an officer’s subjective beliefs still may play a role in determining objective reasonableness, id., the United States Supreme Court recently flatly rejected the argument that an officer’s subjective motivations are in any way relevant to the inquiry.Brigham City, 126 S.Ct. at 1948. The objective test alone controls. See id.

All the more reason to recall that in the state court proceedings of Brigham City v. Stuart, 2005 Utah 13, the state court noted with obvious regret the litigant’s failure to raise a state constitutional claim:

 ¶14 The debate over the proper relationship between the Bill of Rights and Declaration of Rights has lain dormant for almost a decade. This lull does not signal resolution of the matter. The mere passage of time and the accumulation of decisions issued by this court on appeals brought solely on Fourth Amendment grounds may, however, ultimately overpower the merits of an independent analysis of search and seizure law under our Declaration of Rights. It would be unfortunate, indeed, if such a de facto abdication of our responsibility as guardians of the individual liberty of our citizens were to occur. Because we are resolute in our refusal to take up constitutional issues which have not been properly preserved, framed and briefed, State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346; State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994), we are once again foreclosed from undertaking a principled exploration of the interplay between federal and state protections of individual rights without the collaboration of the parties to an appeal. This collaborative effort should be renewed.


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