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Exigency — Community Caretaker — Underage Drinking

State v. Shane M. Ferguson, 2001 WI App 102
For Ferguson: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether the warrantless, forced police entry of a locked closet was justified under the community caretaker doctrine.


¶12 After applying the Anderson test, we are satisfied that the police actions here qualified as ‘community caretaker.’ A search, to qualify as a community caretaker exception, requires an examination of three factors: ‘We conclude that when a community caretaker function is asserted … the trial court must determine: (1) that a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual.’ “Anderson, 142 Wis. 2d at 169, 417 N.W.2d at 414. ‘As to the last factor-weighing the public need and interest against the intrusion-relevant considerations include: (1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the seizure, 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.’ “Id. at 169-70.

¶13 It is conceded that a seizure occurred within the meaning of the Fourth Amendment. Therefore, we address the last two Anderson factors. First, we conclude that the police were engaged in a ‘bona fide community caretaker activity’ when they found the marijuana. The police were called to a fight when they went to Apartment 3. Someone in Apartment 3 made the complaint about the alleged fight in Apartment 2. Thus, the police were unaware of any wrongdoing in Apartment 3 when they arrived. Further, the police were not investigating a crime after encountering several underage drinkers in the apartment.

¶14 … Further, it was established that the only purpose in opening the closet door was to confirm that no highly intoxicated person was hiding there.

¶16 Finally, in examining the last factor in the Anderson test, the public need versus Ferguson’s interest against the intrusion, again we are satisfied that the search undertaken by the police was appropriate and outweighed any intrusion into Ferguson’s privacy. The police, sent to investigate a complaint of a fight, were suddenly confronted with four intoxicated teenagers, two of whom were highly intoxicated. Contrary to Ferguson’s contention that the police rendered no aid, the record reveals that the police quieted down Foster and assisted the other teenager in walking to the bathroom on several occasions. Thus, in applying the balancing test, we determine, under the exigent circumstances presented here, that the officers’ reasons for entry outweighed Ferguson’s privacy rights. Thus, under the Anderson test, we are satisfied that the officers were engaged in a community caretaker function when the search was conducted.

Similar result, somewhat different rationale, see Radloff v. City of Oelwein, 8th Cir. No. 03-3493, 8/17/04 (warrant exception where probable cause and exigent circumstances, which may exist “when there is a compelling need for official action and there is no time to secure a warrant”):

…Exigent circumstances existed both because of the loud noise created by the party and because of the threat to public safety if the juveniles left the house in cars while under the influence of alcohol. Michigan, 436 U.S. at 509. It would have been unreasonable to subject the neighbors to the loud noise or to require the officers to quarantine the juveniles’ cars during the period of time it would have taken to obtain a warrant….

Similar result: Commonwealth v. Robinsonon rehearing en banc, VA App No. 2474-03-2, 1/31/06 (reasonable belief “that multiple  underage individuals had gathered at a party in the country and consumed significant quantities of alcohol” constituted exigency).

But, for authority to effect that underage drinking on private premises, coupled with sounds of individual vomiting in bathroom, did not give police sufficient basis under community caretaker doctrine to enter bathroom on belief that person vomiting was in need of immediate assistance, see State v. Smith, 2004 MT 234, 8/31/04. And: State v. Ealum, 2007 Ga. App. LEXIS 190 (no entry-justifying exigency where officers merely observed underage drinking but not involving anyone apparently under 18, court suggesting that safety of child would present different question; similar results from number of courts string-cited, fn. 5).


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