State v. Walter Horngren, 2000 WI App 177, 238 Wis.2d 347, 617 N.W.2d 508
For Horngren: James M. Weber
¶10 Horngren contends that the police entry, in response to a suicide threat, was made pursuant to WIS. STAT. § 51.15, “Emergency detention.” Therefore, he argues that the entry occurred while the officers were “engaging in traditional law enforcement duties,” not community caretaker duties. We disagree.
¶12 Here, the police were dispatched to a home after a report that an individual there was threatening to commit suicide. The police were advised that two previous suicide attempts had occurred and that there were several guns in the home. Truly, the motivation in investigating the complaint was to render aid, not to investigate any criminal activity. As evidenced during the suppression hearing testimony, the officers’ actual motivation was to render immediate assistance, not to obtain evidence for a possible prosecution.
¶14 … After applying the four factors that offer us guidance, we are satisfied the entry was justified. These four factors include: (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 and effectiveness of alternatives to the type of intrusion actually accomplished. See Paterson, 220 Wis. 2d at 533-34 (citation omitted).
¶19 Horngren contends that, even if the entry was permitted pursuant to the community caretaker function, the initial cursory search of the other rooms, which resulted in Detective Bruno’s discovery of the marijuana, was unconstitutional. He claims that the “protective sweep” doctrine does not apply here because it authorizes a brief search, incident to an arrest, of the areas immediately adjoining the place of arrest. See State v. Kruse, 175 Wis. 2d 89, 95, 499 N.W.2d 185 (Ct. App. 1993). He points out that there was no arrest and, therefore, no justification to conduct a protective sweep. We disagree.
¶20 “A protective sweep is a brief search of the premises, ordinarily occurring during an arrest, to ensure the safety of those on the scene.” Guseman v. Martinez, 1 F. Supp. 2d 1240, 1254 (D. Kan. 1998) (emphasis added). An arrest, however, does not define the sole context in which a protective sweep can constitutionally occur. Rather, within the purview of a bona fide community caretaker activity, the reasonableness of an officer’s actions, evaluated under the totality of the circumstances, determines the constitutionality of the officer’s conduct. See Dull, 211 Wis. 2d at 658. Thus, the question is whether the “sweep” that occurred here was reasonable under the circumstances. We conclude that it was.
There is considerable doubt as to whether the “protective sweep” doctrine applies to a non-arrest situation (such as Horngren’s); even so, courts which have extended the doctrine do so “only under the second prong of Buie, which requires a showing of a reasonable suspicion of dangerous individuals in the house. [Cites],” U.S. v. Waldner, 8th Cir No. 04-3415, 10/10/05 (refusing to permit sweep, in absence of reasonable suspicion of dangerous individuals in house, in non-arrest situation involving service of domestic violence protective order). Horngren, then, might not necessarily be the final word, and in any event too much shouldn’t be read into allowing community caretaker to serve as the basis for warrantless entry. First, the opinion does at least seem to require something in the nature of reasonable suspicion that someone else in the residence poses a danger (see ¶21). And on a more theoretical level, the community caretaker function must be totally divorced from any effort to investigate crime, see, e.g., U.S. v. Gillespie, 2004 U.S. Dist. Lexis (W.D. Va. 8/12/04), no non-commerical link, citing Cady v. Dombrowski, 413 U.S. 433 (1973) — why, then, wouldn’t an actual intent to investigate crime defeat a community caretaker rationale? Indeed, “the few cases where courts have applied this rationale to justify the warrantless earch of home … have emphasized that the entry was unrelated to the investigation of criminal activity.” Gillespie. That may certainly be an apt characterization of Horngren, which may readily be seen as an emergency doctrine case and which indicates if nothing else that in many instances the attempt at precise pigeon-holing is futile — see, e.g., Kyer v. Commonwealth, Va App No. 2200-03-2, 8/17/04, to the effect that there is no distinction between emeregency and community caretaker rationales in relation to warrantless entry. And contrast, Wood v. Commonwealth, 27 Va. App. 21, 497 S.E.2d 484 (1998) (rejecting argument that following warrantless entry officers went upstairs to look for missing teenager to fulfill community caretaker function, on basis that officers’ activities were part of criminal investigation).