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Making sure fido had a bone was a bona fide community caretaking function

State v. Charles Ray Stewart, 2014AP276-CR, District 1, 12/22/15 (not recommended for publication); case activity (including briefs)

The warrantless search for and seizure of evidence from Stewart’s apartment was lawful because, after Stewart allowed police to enter the apartment and was arrested, the community caretaker doctrine allowed police to remain in the apartment to assure Stewart’s dog was cared for, and the office could seize evidence discovered in plain view.

Police went to Stewart’s home to arrest him on a child sexual assault allegation. Stewart was outside, but then asked the officers if they could go inside so the neighbors wouldn’t know what was happening and so he could secure his dog in his bedroom. Stewart was then taken to the police station and  police called animal control to take custody of his dog. A detective investigating the allegations remained behind to wait for animal control; after animal control retrieved the dog from Stewart’s bedroom, the officer looked into Stewart’s and the victim’s bedrooms, saw bedding that the victim described, and seized the bedding, which contained inculpatory evidence. (¶¶2-7).

The court of appeals holds that the detective’s continued presence in the apartment was lawful under the community caretaker exception to the warrant requirement. That exception has three requirements: 1) that a seizure or search within the meaning of the Fourth Amendment has occurred; (2) if so, that the police conduct was bona fide community caretaker activity; and (3) if so, the public need and interest outweigh the intrusion upon the privacy of the individual. (¶12). There’s no dispute the first requirement is satisfied, and the court finds the second and third are, too:

¶13     …. Both Tramel-McClain and [Officer] Keller testified that when suspects are arrested on charges of sexual assault, it is unknown how long the suspects will remain in custody. Thus, it was unknown how long Stewart’s dog would remain without a caretaker. Tramel-McClain testified that she was unsure how long the dog would survive alone in a closed bedroom and decided to call Animal Control because, based on her previous experiences with Animal Control, she knew officers would pick up the dog and care for it. Given these facts, Tramel-McClain’s initial intentions for coming to Stewart’s apartment (i.e., to collect bedding) are irrelevant. “[I]n a community caretaker context, when under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer’s subjective law enforcement concerns.” State v. Kramer, 2009 WI 14, ¶30, 315 Wis. 2d 414, 759 N.W.2d 598. Accordingly, Tramel-McClain was acting as a bona fide community caretaker when she called Animal Control and waited for officers to come and pick up the dog.

¶14     We turn to the third factor. Stewart himself confirmed the exigency of the situation by inviting officers into his home so that his arrest could be private and so that he could secure his dog. Stewart told the officers that he was unaware of anyone who could come and care for his dog while he was in custody. He chose to secure the dog in a closed bedroom. Tramel-McClain could not see whether there was food or water in the bedroom and was concerned for the dog’s well-being. Accordingly, Tramel-McClain reasonably felt it necessary to call Animal Control. Tramel-McClain reasonably waited for Animal Control officers to arrive so that she could explain the situation and ensure the dog was taken into protective care. Tramel-McClain’s presence at Stewart’s apartment was with his consent; following his arrest, her presence qualifies under the community caretaker exception to the warrant requirement.

Because the detective was lawfully inside the apartment and did not open doors to the bedrooms (animal control officers opened the door to Stewart’s bedroom; the door to the victim’s room was already open) or otherwise engage in any active searching for the bedding, which was on the beds; and because the incriminating of the bedding was immediately apparent, the seizure of the bedding was justified under the plain view doctrine. State v. Wheeler, 2013 WI App 53, ¶27, 347 Wis. 2d 426, 830 N.W.2d 278. (¶¶16-20).

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