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Exigency — Warrantless Entry to Investigate Suspected Burglary

State v. Dennis Lee Londo State v. Richard John Vernon, 2002 WI App 89, PFR filed 4/2/02
For Londo: Michael B. Plaisted
For Vernon: Dennis P. Coffey, Seth P. Hartigan

Issue: Whether the police were justified in warrantless entry and search of a residence, during which they seized contraband, in order to investigate a reported burglary.

Holding: The police had probable cause, under the following facts, to search the house without a warrant, ¶9:

  • A citizen witness, whose reliability the defendants do not challenge, told the officers that she heard the breaking of glass and saw a man near the back door of a house from which the sound came;
  • The officers went to the house and saw a broken pane in the back door
  • The officers saw broken glass near the back door;
  • The back door was locked;
  • After they searched the neighborhood, they returned to the house where they saw that a window that had been closed five minutes earlier was open by approximately three feet; and
  • No one answered an officer’s knock on the door.

And, based on the same facts and reasonable inferences, exigent circumstances were present, namely “the possible grave danger to the occupants of the house [which] outweighed the intrusive aspects of the officers’ warrantless entry.” ¶10. Finally, the police “looked only in places where someone could hide, and were not searching for contraband,” and therefore didn’t exceed the permissible scope of their search. ¶11. The court’s justification is largely policy driven (“Household burglaries present real and grave risks.” The police would have shirked their duty to protect the public if they hadn’t gone in.) This sounds an awful lot like a community caretaker rationale, but the court says only that an exigency was presented. Nothing necessarily wrong with that, but definitional pigeon-holing certainly drives search & seizure analysis and with that in mind …. The court relies heavily on Richter, an exigent circumstances case, more latterly construed to mean:

¶ 10 Thus, in Richter a stand-alone justification for the warrantless entry was the prevention of possible harm to the occupants of the mobile home. … In these situations, it is the urgent need to enter because of the possible need to render immediate assistance or prevent harm that justifies the warrantless entry.3

3 We stress that we do not address the community caretaker doctrine and, therefore, do not address whether the distinctions among the situations discussed in the text matter for purposes of that doctrine.

State v. Walter Leutenegger, 2004 WI App 127.

The doctrine that dare not speak its name: this diffidence would puzzle, except that Leutenegger holds that the subjective beliefs of the police are irrelevant in this context except “insofar as such evidence assists the court in determining objective reasonableness,” ¶19. Thus, the State need not show that the officer genuinely intended to prevent harm rather than merely investigate criminal activity. Indeed, Leutenegger seemingly overrules a long line of cases holding that “a warrantless entry based on a safety concern is illegal unless the entering officer subjectively believes that entry is necessary to render assistance or prevent harm,” ¶6. But by definition community caretaker functions are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433 (1973). (And, indeed, the principle of irrelevance of police state of mind has received a powerful boost from Brigham City v. Stuart, USSC No. 05-502, 5/22/06 (“The officer’s subjective motivation is irrelevant”), at least in the exigent-circumstances context.) At some point, identifying the correct rationale does matter.

For a more refined discussion of the community caretaker rationale as authority to investigate a potential burglary, along with the nature and distinctiveness of the emergency and exigency doctrines (although it must be said that the basis for this belief on the given facts is quite thin), see Kyer v. Commonwealth, Va App No. 2200-03-2, 8/17/04 (“when applied independently of police investigatory functions [in the ‘non-exigent’ context], the emergency exception becomes the functional equivalent of” at least a “portion” of the community caretaker doctrine) — despite expressly eradicating any distinction between community caretaker and emergency rationales related to warrantless entry, that court significantly required proof that “it was reasonable for the officer to believe that his or her actions were necessary,” and not a pretext for conducting a criminal investigation; U.S. v. Johnson, 4th Cir No. 04-4376, 6/8/05 (“If [officer’s] stated reasons for the search were pretextual, the community-caretaking exception would not apply.”); State v. Ryon, 2005-NMCA-005, ¶36; Gonzales v. State, Tex App 3rd Dist No. 03-04-00005-CR, 10/28/04 (emergency doctrine is aspect of community caretaking function and when asserted as justification for entry must be “totally divorced” from investigation of crime; court goes on to rule against police entry after responding to 911 call and finding bleeding and agitated resident who attempted to bar entry before transport to hospital).For other, fact-specific authority see also U.S. v. Jenkins, 329 F.3d 579 (7th Cir. 2003): “Police received a 911 emergency call of an assault, possibly in progress. Such calls, by themselves, ‘can be enough to support warrantless searches under the exigent circumstances exception, particularly where . . . the caller identified himself.’ Richardson, 208 F.3d at 630.” And, for a contrasting situation, where the 911 call was too ambiguous, see U.S. v. Deemer, 9th Cir. No. 03-30034, 1/20/04.


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