Jan. 7, 2010 – During oral arguments today, the Wisconsin Supreme Court considered what would limit warrantless entry by police of a home reportedly occupied by people asleep and surrounded by drugs.
In State v. Pinkard, 2008AP1204, police acted on an anonymous tip that Juiquin Pinkard and his girlfriend appeared to be asleep next to cocaine, money, and a scale in their apartment with an open back door. The tip was passed to an officer in the Milwaukee Gang Crimes Unit who remarked that the caller’s description “sounded like a drug house to me.”
Five police officers knocked and announced their presence at the apartment, entering without a warrant when they did not receive a response. The circuit court and court of appeals held the police properly exercised their community caretaker role, a noninvestigatory function that advances public safety such as removing a disabled vehicle from the road. Accordingly, the drug evidence was admitted under the plain view exception to the Fourth Amendment.
Justice Ann Walsh Bradley questioned Assistant Attorney General James Freimuth about the state’s assertion that police reasonably inferred that a sleeping Pinkard was in distress given the documented harmfulness of cocaine and the possibility of an overdose.
“I am of the belief that cocaine use is harmful to your health and sometimes exceedingly harmful to your health,” Bradley said. “My concern is that this case opens the door to community caretaker anytime that there is a drug call.”
Freimuth agreed that the community caretaker function should not be triggered merely because police receive a call that someone is in a residence, sleeping with drugs in the open. “Here, the open door is the critical factor to this scenario,” Freimuth said.
But Chief Justice Shirley Abrahamson asked why the open door was such a critical factor to distinguish this case from any other tip of a drug house. Abrahamson rejected the state’s hypothetical that a child could have wandered through the open door and ingested drugs because no such concern was ever mentioned in the officers’ testimony at the suppression hearing.
Freimuth responded that it was not just the open door but also the report of the sleeping occupants next to cocaine and their failure to respond to the police knock on their door. He said that if any one of these particular facts were absent, there would be no basis for the community caretaker function, thus limiting the precedential value of this case for other warrantless entries.
Scope of community caretaker
Attorney Richard Zaffiro, representing Pinkard, argued that the community caretaker function should not extend beyond warrantless entries into automobiles as it was first recognized by the U.S. Supreme Court in Cady v. Dombrowski, 413 U.S. 433 (1973).
But Justice N. Patrick Crooks noted that in State v. Kramer, 2009 WI 14, the court recently created a test for determining application of the community caretaker exception that presumes its application is not necessarily limited to vehicles. Zaffiro said that the court might have to overrule Kramer and suggested this litigation could go to the federal courts before the question is settled.
Justice David Prosser asked what the police should have done if the tip led them to believe the sleeping occupants were in trouble, but they could not act within the community caretaker function. Zaffiro argued the police could have called Pinkard or they could have contacted Pinkard’s neighbors, but he disputed that this tip actually conveyed any real concern for Pinkard’s safety. On its face, the tip suggested no greater concern for Pinkard’s wellbeing than it did for the drugs inside and the police took it as a complaint about a drug house, Zaffiro said.
“If you truly believe this is someone who is injured or ill, what do you do? Do you call the paramedics, or do you call the Intelligence Division’s Gang Squad and bring five uniformed armed officers in to the building?” Zaffiro asked.
Zaffiro told the court that officers should have sought a warrant when they believed the tip was actually about a drug house. If they did not have enough evidence to support probable cause of a drug house, Zaffiro said they should have conducted surveillance, a controlled buy, or other investigation to gather the necessary information.
Justice Annette Ziegler asked what police should do if the tip specified that the occupants were bleeding or otherwise injured. Zaffiro said that when there is an immediate need for aid, police can rely on the emergency aid exception to the warrant requirement.
