Oct. 1, 2009 – A police officer without specific facts suggesting an emergency to justify a warrantless search cannot cite the community caretaker function as a basis to preserve uncovered evidence of a crime, the Wisconsin Court of Appeals held yesterday in an unpublished decision.

In State v. Kuczor, 2009AP1077, the court explained that the community caretaker function is an exception to the warrant requirement that arises when the police act in a manner totally divorced from the detection, investigation, or acquisition of evidence related to a criminal violation.

Without reason to believe a search will resolve an emergency, a warrantless search premised on the caretaker function becomes impermissible "fishing," the court said.

A one-car collision

A sheriff’s deputy found Durinda Kuczor “not acting normally” following the accident in which she drove her car into a cement barrier, rolling her vehicle. The officer noticed a “pretty good sized duffel bag” had been unzipped when he first saw it, but it was subsequently zipped shut.

The officer testified that he was concerned as to whether Kuczor required medical attention. Asked if she was on medications, Kuczor said that she was, but they had not contributed to the accident. The officer then asked if she had any other medical conditions, such as diabetes, that could have related to the accident. Kuczor denied any.

Unconvinced, the officer testified that he considered calling an ambulance “because her conditions and signs, to me, were that she was not acting normal.”

As the tow truck was going to transport Kuczor away from the accident scene, Kuczor left the tow truck to retrieve her duffel bag – but the deputy searched it first. The deputy explained, “I really felt there was some other circumstances as to why she was acting the way she was and, [to] be quite honest with you, felt that there was more of a medical condition than anything else and was suspecting that I would get that confirmed by the duffel bag.”

The officer found some medications in the duffel bag, but also two opened bottles of vodka. After conducting sobriety tests, the police arrested Kuczor for operating while intoxicated. Kuczor lost a suppression motion and pled no contest before appealing.

No hint of intoxication

In an opinion authored by Chief Judge Richard Brown, the court of appeals noted that the deputy believed alcohol was a factor after searching the duffel bag. But before that, Kuczor displayed none of the usual markers of intoxication such as slurred speech, staggering, or the smell of alcohol.

“The deputy even admitted that, up until the search, there was no suspicion that intoxication was involved,” the court wrote.

Kuczor argued that without probable cause to believe she was committing a crime, or that she was even suspected of having done so, the search was unconstitutional. The state responded that the community caretaker function justified the warrantless search.

Police often investigate vehicle accidents in which there is no claim of criminal liability and engage in a community caretaking function unrelated to their law enforcement duties, the court of appeals noted. In this case, the deputy was worried about Kuczor’s medical condition because of her “strange behavior” following a one-car collision. The court concluded the deputy was legitimately performing his caretaker function.

“But then it all falls apart when we ask whether opening the zipped duffel bag was part of the reasonable exercise of the deputy’s bona fide community caretaker function. We can arrive at only one answer,” the court said. “There are simply no facts that would justify a reasonable police officer in the position of this deputy to open the zipped bag based only on Kuczor’s strange behavior, which was strange even for a person who had been involved in the kind of accident which occurred.

“In sum, we have trouble with the idea that a law enforcement officer’s concern about whether a driver might have a serious medical condition justifies that officer to zero in on a zipped duffel bag when the officer has expressed no idea of what he is looking for,” the court concluded.

Limits of caretaking

The state argued that the officer acted prudently to see if the bag contained medication or evidence of a pre-existing condition.

“Had the defendant suddenly gone into a seizure or rapidly deteriorated in some other way, the officer would have been faulted for not further investigating the cause of the strange condition of this person who had just been in a serious accident but had only superficial outward injuries,” the state asserted.

But the court of appeals sided with Kuczor who noted that the community caretaker doctrine has never authorized forcing medical care onto a person.

  “We agree with Kuczor,” the court of appeals wrote. “Getting into that bag may have satisfied the deputy’s curiosity about whether there was any information of a medical nature in the bag, but to what purpose? To what end result? Law enforcement cannot, willy-nilly, invade the privacy interests of citizens. And when a citizen zips a bag, there is a privacy interest.

“If there is some emergency present that justifies the invasion without a warrant, the law enforcement officer must know some facts about that particular privacy zone meriting invasion so as to end the emergency,” the court continued. “Here, the deputy had no particular facts about that zipped bag which would warrant intrusion. He was just fishing for information. And the community caretaker function, no matter how altruistic, cannot be used as a justification to fish.”

A previously unzipped bag

In a footnote, the court of appeals observed that the circuit court had found Kuczor was in a serious accident and seemed not to be mentally alert or responsive to questions about her driver’s license. Because the duffel bag had been zipped when it previously was not, the circuit court concluded that there was “something afoot here” justifying the search.

“The problem with this reasoning is that there was no evidence, up to this point, that she had committed a crime,” the court of appeals remarked. “So, there was no probable cause to search the bag, nor was there justification to suspect that she had committed a crime. Such reasoning fails. We note that the State did not attempt to defend the trial court’s rationale, but relied solely on the community caretaker theory.”