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Search & Seizure – Community Caretaker

State v. Ashley M. Toliver, 2010AP484-CR, District 2, 1/26/11

court of appeals decision (3-judge, not recommended for publication); for Toliver: Elizabeth Ewald-Herrick; case activity

Community caretaker doctrine supported, in the first instance, search of seemingly lost purse found in common area of apartment building; and, in the second, entry of apartment after co-inhabitant requested officer to lock it up, as he was being transported for medical care.

Purse. The intrusion – to look for the owner’s identification – was “small”; indeed, a non-police actor would be expected to do the same. And, no alternatives were available. “Therefore, when considering all of the factors, the public good of returning a purse to its rightful owner outweighs the limited intrusion involved in opening it up to look for identification,” ¶13.

Entry. Toliver lived in the apartment with her boyfriend, who had just attempted suicide and was being taken to the hospital. Before leaving, the boyfriend “asked the officer to lock up.” That wasn’t possible from the outside, and when the officer entered the apartment, he encountered dogs and heard voices. “Since he did not know how long the resident would be gone, he decided he needed to look around to make sure everything was secure and no people or pets were in need of assistance.  When he was doing that, he saw more possible evidence of drugs,” ¶14. (After his “walk-through,” the officer left and obtained from Toliver consent to search the apartment.) The entry was “a bona fide community caretaker activity.”

¶17      Once again, we must consider the balance of public good versus intrusion, using the four case law factors.  See Kramer, 315 Wis. 2d 414, ¶41.  First, the public interest and exigency in such a situation are both significant—this officer was doing a walk-through of an apartment to check on people and pets after one of its occupants was taken to the hospital for a medical emergency.  Second, because of the exigency of the situation and the safety concerns raised by the initial entry into the residence, the second factor—attendant circumstances—also weighs in the officer’s favor.  The third factor is irrelevant because no automobile was involved.  Fourth and finally, the type of intrusion was minimal under the circumstances, and no alternatives were available.  There is no indication that the officer did more than a cursory walk-through before obtaining Toliver’s consent.  The public good of walking through the apartment to check on possible safety concerns before locking up far outweighed any intrusion associated with doing so.

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