Dec. 2, 2009 – A case before the Wisconsin Supreme Court may test how far police may claim the “community caretaker” exception to seize evidence during a warrantless search of a defendant’s home.

The U.S. Supreme Court recognized law enforcement’s community caretaker function as it applied to a warrantless search of a vehicle in Cady v. Dombrowski, 413 U.S. 433 (1973). The “community caretaker” refers to non-investigatory activities that advance public safety such as removing a vehicle from the road because it was a hazard.

In State v. Pinkard, 2008AP1204, the state supreme court will consider whether the exception applies when an anonymous tipster directs police to a home in which the prosecution claims people were at risk of harm, but the police harbored suspicions that it was a drug house.

Anonymous tip

City of Milwaukee Police Officer Michael Lopez received a phone call from an anonymous tipster who reported having “just” been at the rear apartment at 2439 S. Seventh St. where the tenants, “‘Big Boy’ and his girlfriend ‘Amalia,’ appeared to be sleeping,” that “the back door to the residence was open,” and that the tipster “observed cocaine, money and a scale next to the subjects.”

Lopez expressed concern that the door was wide open, but he did not identify any medical emergency. Lopez asked Officer Jon Osowski, a member of the Milwaukee police department’s Gang Crimes Unit, to investigate. Osowski remarked that the caller’s description “sounded like a drug house to me.”

At approximately 9 a.m., Osowski and four other officers arrived at the apartment and found the door roughly three-quarters open, providing access to the entire first floor of the dwelling. Osowski knocked on the door and announced the police presence. After waiting 30 to 45 seconds without receiving a response, Osowski testified that the police entered to check whether the occupants were the victims of a crime or otherwise injured and to safeguard any property in the residence.

Once inside, Osowski said he could see through the bedroom door to observe two people lying in bed. He said the police again loudly announced themselves, but no one woke up. The police entered the bedroom and Osowski saw in plain view cocaine, marijuana, money, and digital scales. After rousing Juiquin Pinkard, Osowski arrested him for illegal drug possession.

Pinkard moved to suppress the drugs, money, and scales, but the trial court found that "entering the bedroom to arouse" the defendant was within the community caretaking role and the evidence was in plain view. The court did suppress a gun that the police found under Pinkard's mattress, holding that the caretaker function did not allow a search for evidence.

In his postconviction motion, Pinkard challenged the assertion that the entry into his home was motivated by safety concerns. With no basis to be in his home, the seized evidence should be suppressed as fruit of an illegal search, Pinkard argued. The Wisconsin Court of Appeals denied the motion.

Earlier case

During the pendency of Pinkard's appeal, the Wisconsin Supreme Court explored the scope of the community caretaker function in State v. Kramer, 2009 WI 14. The justices used a three-part test to evaluate assertions of the caretaker function:

• A seizure must have occurred within the meaning of the Fourth Amendment.

• Police conduct must constitute a bona fide caretaker activity, which need not be completely separated from the law enforcement aspect of the officer’s job. Rather, a reviewing court should apply a totality of the circumstances test to find whether an objectively reasonable basis existed for an officer to believe a caretaking need existed. The officer’s subjective intent behind the action is only one factor to consider.

• A four-factor balancing test determines if the public interest outweighed the intrusion on the individual’s privacy. Those factors include: What was the degree of the public interest and the exigency of the situation? What were the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority, and force displayed? Was an automobile involved? What was the availability, feasibility, and effectiveness of alternatives to the intrusion?

In this case, the parties’ dispute focuses on the second and third parts of the Kramer test.

'Totally divorced'

In Cady, the U.S. Supreme Court spoke of the community caretaking function as one “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”

Pinkard argues that within the second part of the Kramer test, police must show the conduct in question was “totally divorced” from law enforcement activity when the officer cannot articulate an objectively reasonable basis for the caretaker function under the totality of circumstances. For example, a police officer in Kramer approached a car parked on the side of the road late at night to offer assistance before determining that the driver was intoxicated. In this case, the police never possessed more than a motive to enforce the drug laws, Pinkard said.

“The totality of circumstances indicate the anonymous caller expressed no concern for the safety or welfare of the subjects whatsoever, said they appeared to be sleeping (not hurt), and that they were next to drugs and drug paraphernalia,” Pinkard wrote. “Surely, it is relevant to the totality of circumstances that the involved officers saw this as a 'complaint' not as a rescue, and that Officer Lopez did not call for paramedics but instead called for a member of the Criminal Intelligence Division Gang Squad to investigate this ‘complaint.’”

Objectively reasonable basis?

But the attorney general argued that the police actions did serve a bona fide community caretaker purpose apparent under the circumstances. Specifically, the police acted “to ensure that no occupant was in distress from a drug overdose or had been victimized by a crime, and that no new or additional harm would accrue from the prospect of a third party entering the residence - either to the occupants or to the third party, such as a curious child.”

The attorney general acknowledged “doubt whether the anonymous tip in the present case satisfies probable cause of illegal drug dealing - even though officers corroborated the ‘open door’ aspect of the tip.” However, the attorney general said that the community caretaker exception does not require police to have probable cause of criminal activity.

This tip was sufficient to demonstrate an objectively reasonable basis to believe Pinkard was in need of assistance, the attorney general argued. The attorney general noted that the tipster detailed who the occupants were, what they appeared to be doing at a certain time, and where they could be found. The attorney general further cited the apartment's open door as evidence of the tip's predictive power.

Beyond the tip, the attorney general said that the police had even greater reason to worry when they received no response after their knock-and-announce. “Given this context, the tipster's report that the two occupants 'appeared to be sleeping' does not convincingly eliminate the prospect that the occupants might actually be unconscious due to a drug overdose or as crime victims,” the attorney general wrote.

The attorney general noted that the police suspected Pinkard's residence to be a drug house, but dismissed the importance of that. Quoting from Kramer, the attorney general remarked that "the nature of a police officer's work is multifaceted" so that an officer “may have law enforcement concerns, even when the officer has an objectively reasonable basis for performing a community caretaker function.”

Pinkard discounted the attorney general's proffered rationales for the entry as mere “post-textual justifications.” “The ‘unscrupulous third party or ‘curious child’ examples cited ... [in] the State's brief came from the attorney general and not from the police officers or tipster actually involved in this search,” Pinkard remarked. “In any event, such threats or worries could have been eliminated by simply closing the door when no one answered, instead of having five police officers march into [Pinkard's] home and bedroom.”

“[A]ssisting someone in need was never part of the equation here,” Pinkard wrote.

Balancing test

Applying Kramer's balancing test, Pinkard argues the public has a strong interest in freedom from warrantless intrusions into the home that lack exigent circumstances. Further, he noted that the search took place at 9 a.m. when it is not uncommon for people to be asleep. There were no automobiles involved and the police could have phoned the house or checked with neighbors to determine whether there was an emergency rather than violate the Fourth Amendment, he said.
Even if the court were to find a bona fide community caretaker function, it was not reasonable, Pinkard argued.

The attorney general responded that the officers had the safety and well-being of the reported occupants foremost in mind. In the face of uncertainty, the police twice knocked and announced their presence, demonstrating a reasonableness that “bespeaks the absence of any ruse by the officers to do an ‘end run’ around the warrant requirement,” the attorney general said

Alternatives to a warrantless entry were limited, the attorney general said. “Arguable, the officers could have checked to see if the residence had a phone by which they might attempt to reach the occupants and inform them of the open back door,” the attorney general wrote. “Nevertheless, going immediately to the residence enabled the officers to confirm the report of an open back door, and a knock-and-announce at the door presumably would be just as effective as a phone call in alerting the reported occupants to the open back door.”

Entry of the home

Pinkard observed that when the U.S. Supreme Court first addressed the community caretaker doctrine in Cady, it specifically narrowed its scope to automobiles. The Seventh Circuit Court of Appeals and four other circuits have also considered – and rejected – extensions of the caretaking function to warrantless searches of residential and commercial properties, Pinkard said.

The attorney general listed a series of cases in which the caretaking function was extended beyond automobiles. Pinkard responded that many of the cases in which caretaking has been said to extend beyond automobiles have actually relied on other exceptions to the warrant requirement, such as exigent circumstances.

In this case, the attorney general argued, “the privacy interest in one’s residence pales in comparison to the sanctity of human life” and that “an investigating officer reasonably errs on the side of ensuring the well-being of the occupants.” The attorney general bolstered this argument with reference to statistics showing the widespread use of cocaine and overdoses.

But Pinkard warned the attorney general’s argument lacked a limiting principle.
“Since there can be no doubt that scheduled narcotics are dangerous, in fact every anonymous tip about a drug house is a call to a community caretaker search under this reasoning, causing the 4th Amendment to evaporate into thin air,” Pinkard wrote.

Oral arguments in this case are scheduled for Jan. 7.