Wisconsin Lawyer
Vol. 83, No. 10, October 2010

The following cases represent some of the most significant Wisconsin Supreme Court decisions from the 2009-2010 term, a term in which the court issued approximately 60 case decisions.¹ Several of the decisions hinged on perceptions of whether certain evidence is in the record, and several cases involved legislative attempts to respond to the state’s fiscal crisis by moving or reducing statutory compensation funds.

Civil Cases

Duty to Defend

In Johnson Controls Inc. v. London Market,² the court of appeals certified the question of whether London Market, provider of an excess umbrella policy, had a duty to defend, and if so, when that duty was triggered. The Wisconsin Supreme Court held that even though the policy itself lacked a duty-to-defend provision, it did contain a “follow-form” provision, which incorporated the duty to defend found in the underlying (excess umbrella) policies. Writing for the majority, Justice Bradley also determined that the other-insurance provision of the London Market policy triggered that duty once the underlying carrier denied primary liability under its policy. Exhaustion of the underlying policies was not required.

This case is part of a generation-long series of litigation arising from environmental remediation claims against Johnson Controls. After several earlier decisions, Johnson Controls settled with some of its insurers, including Travelers, the issuer of the policy immediately underlying the 1973-76 London Market policy. Following the settlement, London Market then sought a declaration that because its policy was an indemnity-only excess umbrella policy, it owed no duty of defense. If there was a duty, London Market argued, the duty did not arise until the limits of the underlying policies were exhausted. The circuit court disagreed.

On certification, the supreme court reiterated that the duty to defend is broader than the duty to indemnify. The nature of the claim asserted triggers the duty to defend, and whether a duty exists depends on the contract language. Although the London Market policy was silent as to duty to defend, it was written as a short follow-form policy that incorporated many provisions of the underlying excess umbrella policies issued by Travelers. One of those provisions stated “the company shall have the right and duty to defend any suit against the insured seeking damages on account of such injury or damage.” While the London Market policy did not expressly disclaim the Travelers duty-to-defend provision, London Market argued that its policy distinction – “except as otherwise provided herein” – meant it had no defense obligation, but London Market could point to no other provision precluding a defense. Although London Market might not have intended to supply a defense through its upper-layer excess umbrella policy, insurer intent has no place in the policy analysis, except for intent as expressed by policy language. Thus, the supreme court did not find persuasive the intent-related arguments about the low premium rate charged by London Market or the fact that its later policies expressly excluded a defense.

The second question presented was the following: when does the duty to defend arise? London Market argued that Travelers’ limits had to be exhausted first. Again, the absence of specific language in London’s follow-form policy meant the Travelers language applied by default. The Travelers policy provided “if the insurer affording other insurance to the named insured denies primary liability under its policy, [Travelers] will respond under this policy as though such other insurance were not available.” Another provision in the Travelers policy stated that “liability shall attach to the Underwriters only after the Underlying Umbrella Insurers have been held liable to pay the full amount of their respective net loss liability.” But after consideration of the use of the undefined term liability throughout the London Market policy, and its ambiguous use in the Travelers policy, the court concluded that liability refers to indemnification only and not to a responsibility to defend. Thus, exhaustion of the Travelers limits was not unambiguously required before London had a duty to provide a defense.

The dissent, authored by Justice Ziegler, expressed concern that the decision will have the effect of increasing nonperformance by primary insurers or underlying insurers because the decision shifts costs to excess insurance providers. Follow-form policies are likely to get a bit longer.

Procedure for Constitutional Amendment

Every decade or two in Wisconsin, a constitutional amendment is challenged as having been improperly obtained. In McConkey v. Van Hollen,³ the supreme court analyzed whether a proposed amendment to the state constitution was incorrectly fashioned as two amendments presented as one. The court also considered whether the particular plaintiff taxpayer had standing to challenge the amendment.

The amendment, ratified in November 2006, reads as follows: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

Addressing standing first, the court noted that in Wisconsin, standing is construed liberally. Because the question of whether an amendment was effectually adopted weighs heavily in favor of addressing the merits of the challenge, the court, led by Justice Gableman, granted McConkey standing.

Next, the court emphasized that the question of whether the marriage amendment represented good policy or bad policy was not part of its review. Instead, the court simply analyzed whether the process of adoption comported with article XII of the Wisconsin Constitution, the separate-amendment rule. The separate-amendment rule is implicated only when the substance of the amendment cannot be said to constitute a single amendment. Case law principles instruct that as long as there is one general purpose and the different clauses are connected with that purpose, the legislature has great drafting latitude.

McConkey argued that the various propositions in an amendment must be interrelated and interdependent such that if the propositions had been submitted separately, the defeat of one would destroy the overall purpose of the multiproposition proposal. Attorney General Van Hollen contended that the “mutually dependent” argument conflicted with legislative discretion, and the court agreed. The provisions need only be connected to the same subject and tend to effect or carry out one general purpose. McConkey next argued that a determination of the amendment’s purpose can only encompass the “relating to” clause in the title of the joint resolution. But the court acknowledged that text and historical context should make the purpose of most amendments apparent, and McConkey’s proposed shorthand rule was not supported by case law and was impractical.

Applying the general purpose test to the instant amendment, the court concluded that the general subject was marriage. In light of existing Wis. Stat. section 765.001(2) (“marriage is a legal relationship between 2 equal persons, a husband and wife”), the court read the constitutional amendment to be an effort to preserve and strengthen the status quo but not to alter its character. Here, the second provision is essentially an enforcement clause for the first.

Retroactivity – Worker Compensation

According to the court, certain amendments to worker’s compensation statutes of limitation could not be applied retroactively and still comport with constitutional protections. Before the 2006 amendments were made, Wis. Stat. sections 102.17(4) and 102.66(1) required employers and insurers to pay certain injury benefits, with such liability expiring 12 years from the date of the last payment and the Work Injury Supplemental Benefit Fund (WISB Fund) then becoming responsible for the payments. The 2006 amendments shifted the burden of payment of an employee’s extended benefits or treatment expense for traumatic injuries from the WISB Fund to the insurer or employer. The legislature made the shift retroactive. Justice Roggensack, writing for the court in Society Insurance v. LIRC,⁴ concluded that this retroactive shift in payment responsibility violated Society’s right to due process under both the federal and the state constitutions and impaired Society’s contractual obligations, in violation of constitutional protections.

The employee was injured in 1982. Society, the employer’s insurer, paid the employee temporary and then permanent partial disability payments until 1990. In 2004, the employee applied again for benefits. Before the amendment, there was a 12-year statute of limitation, meaning that the employee here had until 2002, or 12 years after the last payment from Society in 1990, to apply for additional benefits. The Fund initially paid the benefits but began forwarding invoices to Society after the law changed. Society disputed its liability. Neither the administrative law judge nor LIRC felt empowered to address the constitutional challenges. The circuit court, however, undertook the analysis and held that the amendments required Society to pay substantial sums (several thousand dollars per year) to reimburse the employee, and that Society had no way to recoup those expenses for a past event through premiums. The circuit court concluded that such new expenses impaired Society’s contractual obligation, and that the retroactive application of the amendments denied it due process.

On certification, the supreme court first addressed the standard of review, declaring that no presumption of constitutionality attaches when the challenge is as-applied. Then, under the due process rubric, the court considered whether Society had a vested right to fixed liability. Next the court examined whether retroactive application of the statute has a rational legislative purpose. That inquiry involves weighing the public interest served by retroactively applying the statute against the private interests that retroactive application would (adversely) affect.

The private interest was that Society has a substantive property right in its statute of limitation defense, which vested in June 2002, when the statute of limitation expired. When the retroactive amendment took effect one day after enactment, Society’s right to fixed liability was unsettled suddenly and without individualized consideration. As to the public interest, nothing in the legislative drafting file showed a rational legislative purpose justifying retroactivity, nor even a purpose to keep the fund solvent, as LIRC had argued. Instead, the retroactive legislation undermined the Worker’s Compensation Act’s overall goal of keeping the expense of funding worker’s compensation predictable and manageable.

The court then considered whether the retroactive legislation unconstitutionally impaired a contractual obligation. The proscription against contract impairment is not absolute and must accommodate the state’s police power. The more substantial the impairment, however, the higher the level of scrutiny applied to the legislation. Whatever the degree of scrutiny, the court explained that the public purpose ought to be directed toward remedying a broad and general social or economic problem. Here, because Society’s unexpected new liability exposed it to potentially significant losses, and because there was no rational legislative purpose for the retroactive feature, Society’s contract obligation was impaired beyond a reasonable doubt.

Justice Crooks wrote the dissent, in which he found that the absence in the record of any legislative purpose or of specific evidence about Society’s projected expenses should have prevented the court from conducting the balancing-of-interests test. The dissent also disagreed with the majority’s announcement that the presumption of constitutionality does not attach in as-applied challenges. The dissent would have remanded to LIRC for an evidentiary hearing on both the public purpose and Society’s actual projected loss.

Open Records – Emails

In a case that generated several opinions, a majority of the supreme court’s justices held that the contents of government employee personal emails are records but are not always subject to the public-records disclosure requirements of Wis. Stat. section 19.32(2). In Schill v. Wisconsin Rapids School District,⁵ an individual had submitted an open records request for the personal emails of several teachers, emails which were transmitted on school-owned computers using school district email accounts. The district allowed its employees occasional personal use of the email system as long as such use did not interfere with school responsibilities. Because the district was prepared to provide the requester with all the teachers’ emails, the teachers sought a declaration that their purely personal emails were not subject to disclosure under the public records law.

In the lead opinion, Chief Justice Abrahamson focused the task by stating that there was no issue as to whether the emails violated the district’s Internet use policy or whether their content related to any government function. Next, she addressed the meaning of the statutory term record. Using multiple avenues of interpretation, the lead opinion concluded that to be a record for section 19.32(2) purposes, the document’s content must have a connection to a government function. For example, if an email was used as evidence in a disciplinary investigation, the personal email would become a record under the statute, because of its connection to the government function of investigation. Because the lead opinion did not consider the personal emails to be records, it did not undertake a balancing of the public interest favoring disclosure against any other interests.

Justice Bradley concurred to identify the clear rule of the lead opinion, namely that a custodian should not release the content of an email that is purely personal and evinces no violation of law or policy. She differed with the lead opinion, by deeming personal emails to be records under the public records law.

Justice Gableman’s concurrence likewise concluded that personal emails are records and then proceeded to undertake a balancing-of-interests test. He reasoned that the public interest in nondisclosure outweighs the public interest in disclosure when the content of an email is purely personal: “The purpose of the open records law is to open a window into the affairs of government, not to open a window into the private lives of government employees.”

Justice Roggensack dissented. Accepting that a majority of the justices regarded the emails to be records, she applied the balancing test, and concluded that the teachers had not met their burden to show that the public’s interest in nondisclosure outweighs its interest in disclosure of the personal emails. The dissent also criticized the lead opinion’s statement that all parties agreed the subject emails were purely personal, particularly because the record itself did not contain those emails.

Constitutional Taking

As part of the 2007-09 state budget, the legislature transferred $200 million from the Injured Patients and Families Compensation Fund (the Fund) to the Medical Assistance Trust Fund (MATF). The legislature then reduced general-purpose-revenue funding for the MATF by $200 million. The Wisconsin Medical Society and a physician asserted a property interest in the Fund and claimed that the statute unconstitutionally repudiated a government contractual obligation. The court, led by Justice Prosser, concluded that the plaintiffs have protected property interests in the Fund as an irrevocable trust, including a right to the security and integrity of the entire fund, a right to realize investment earnings to lower their assessments, and a right to have excess judgments paid to proper claimants. As a consequence, the court held that the statute authorized an unconstitutional taking of private property without just compensation.

In Wisconsin Medical Society v. Morgan,⁶ the court first analyzed the history of the Fund. The Fund represented an effort to curb rising health-care costs by financing part of health-care provider liability for medical malpractice claims to ensure that proper claims are satisfied. Each provider affected must carry his or her own coverage with specified limits and also pay an annual assessment to the Fund. The Fund then pays any claims that exceed the participant’s own coverage limits. The enabling language establishing the Fund provided that its moneys may not be used for purposes “other than those of this chapter.” In 2003, the legislature provided that the net worth of the Fund was to be held in irrevocable trust for the sole benefit of participants and proper claimants: “Moneys in the fund may not be used for any other purpose of the state.”

Beth Ermatinger Hanan, U.W. 1996, is an appellate and trial attorney at Gass Weber Mullins LLC, Milwaukee.

While the court had never analyzed the nature of the property interest in the Fund, several decisions assessing the nature of property interests in the Wisconsin Retirement System (WRS) fund provided apt analogies. The most recent and most comprehensive review of WRS interests occurred in Wisconsin Professional Police Ass’n v. Lightbourn,⁷ another decision authored by Justice Prosser. A first principle is that property interests arise from a much broader set of factors than contract rights. These property interests derive from the statutory language and from the nature and purpose of the trust itself. Wisconsin treats trust funds differently than general revenue, giving the state less power to regulate (that is, alter) the use of trust funds. Here, the Fund meets all the elements of a trust, and the health-care provider participants, as named beneficiaries, have a property interest in their equitable title to the Fund.

That protected property interest first implies a right to the security and integrity of the Fund, as a necessary corollary of the trustee’s fiduciary duty. This is true even though the participants do not have individual accounts within the Fund, unlike WRS participants, who do have individual accounts in the WRS fund, or even if the soundness of the Fund was not jeopardized by the transfer. What the participants collectively have is an interest in the entire net worth of the Fund.

The participants also have a right to realize the investment earnings through decreased assessments. This right is more than a mere expectancy, because the physician assessment rates are determined based on the Fund’s past and prospective loss and expense experience. “The right to faithful administration of the law is infringed when the diversion of Fund money for other state purposes forces the board to allow the Fund to operate at a deficit, potentially requiring future assessment increases.” Third, the participants have a right to have judgments in excess of their required insurance paid on their behalf. The court actually saw this as a two-pronged right, because proper claimants also have a property interest in the Fund’s ability to pay excess judgments.

Chief Justice Abrahamson wrote for the dissent, disputing that the participants had a vested property interest in the $200 million that the legislature transferred. In her view, the private-trust analysis was strained and failed the stringent “beyond a reasonable doubt” standard for a legislative challenge.

Criminal Cases

Basis for Expert Witness Opinions

More so in criminal cases than in civil, litigants occasionally attempt to argue that Wisconsin should adhere to the Daubert⁸ standard, under which the trial judge has a significant role in determining reliability of evidence on which an expert relies. Wisconsin, in contrast, employs the “limited gatekeeper” approach, in which reliability of evidence is a matter for the factfinder. In State v. Fischer,⁹ an operating-while-intoxicated (OWI) case centered on admissibility of an expert opinion based on preliminary breath test (PBT) results, the court declined to reconsider the limited-gatekeeper approach. Wis. Stat. section 343.303 normally prohibits the admission of PBT results in OWI cases, so the question became whether the test results remained available (and reliable enough) for expert consideration. The court held that exclusion of the expert’s report comported with Wis. Stat. section 343.303 and did not violate the defendant’s constitutional right to present a defense. 

An officer pulled over the defendant (Fischer) on suspicion of drunk driving. Fischer performed poorly on field sobriety tests and was given a PBT. The test measured a breath alcohol content of 0.11 percent. Fischer was arrested, and within an hour his blood was tested and showed a blood alcohol concentration (BAC) of .147 percent. He was charged with OWI and operating with a prohibited alcohol concentration (PAC).

Fischer retained an expert, who reviewed both tests and issued a report concluding that Fischer was “in the absorptive phase” when he was pulled over, and that the data was most consistent with the view that Fischer was below the 0.08 percent threshold when he was stopped. The state moved to exclude the report, and the expert filed a second report omitting the PBT but opining that the single determination of BAC was insufficient to show what Fischer’s BAC was when he was stopped. A third report was part of the defendant’s offer of proof on the exclusion motion, and contrasted the analysis possible using both tests with the analysis possible excluding the PBT results. The court granted the motion to exclude the expert’s report. At trial, Fischer argued that he was “going up on the absorption curve” when stopped and that his BAC had not reached the .08 percent threshold.

On appeal, the court of appeals disagreed that Wis. Stat. sections 907.03 and 907.02 together allow an expert to base an opinion on inadmissible PBT results. It determined that there was no constitutional deprivation of the right to present a defense, because the evidence would not have assisted the trier of fact. The court also determined that Fischer’s interest in presenting the evidence did not outweigh the state’s compelling interest in excluding it. The supreme court, led by Justice Crooks, employed a slightly different analysis. In deference to the clear legislative intent of section 343.303 and its express prohibition, the court chose to curb the scope of section 907.03 to make an exception for PBT evidence. Harmonizing the three statutes preserves the section 343.303 prohibition; to do otherwise would essentially nullify it.

Moving to the constitutional challenge, the court weighed the defendant’s rights against the state’s interest in excluding the evidence. The state’s interest in excluding the evidence is based on its need to obtain PBT results in the first place. Giving officers the opportunity to conduct PBT tests in the field promotes roadway safety and driver cooperation. The court was quite concerned about forfeiting the investigative space between reasonable suspicion to justify a stop and probable cause to make an arrest, contrary to the apparent legislative intent of section 343.303. Reliability of the evidence is not a factor in this balancing of interests; reliability and weight remain the province of the trier of fact.

Justice Ziegler wrote for the concurring justices, who would have found that PBT results are neither reliable nor admissible for confirming or dispelling a defendant’s specific alcohol concentration in an OWI or PAC trial.

Failure to Investigate

Ineffective-assistance-of-counsel claims often involve strategic decisions made by lawyers. In State v. Carter,¹⁰ the defendant asserted that his counsel should have introduced evidence that the 5-year-old victim in this first-degree sexual-assault case had been sexually assaulted previously.

At the start of trial, defense counsel alerted the court to his strategic decision not to present evidence that the child may have been previously assaulted by someone other than the defendant. Counsel reasoned that the prosecutor would object, and that the evidence was not relevant and would build sympathy for the victim. After the defendant (Carter) was convicted, he alleged that his counsel was ineffective because the unoffered evidence could have provided a reasonable alternative basis for the child’s detailed sexual knowledge. Counsel had sent an investigator to interview the child and her mother, but the mother declined. The record was unclear as to whether police had ever been contacted about the prior incident. Only after his conviction did the defendant offer specifics on the prior incident, and even then the evidence was incomplete.

Defense counsel acknowledged that he had never researched whether the evidence of the prior sexual assault would have been admissible and had not read State v. Pulizzano,¹¹ which created a narrow exception to the general inadmissibility of a victim’s sexual history. Although the circuit court deemed reasonable counsel’s decision not to present the evidence, and held that the defendant failed to establish prejudice, the court of appeals disagreed. In particular, the court of appeals considered counsel’s assistance defective because the attorney failed to investigate the prior incident further and was unfamiliar with Pulizzano. A determination of prejudice would have to await further proceedings.

Writing for the supreme court, Justice Ziegler concluded that counsel’s performance was not deficient, and that his strategic decision did not prejudice his client. Defense attorneys enjoy a strong presumption that their conduct falls within the wide range of reasonable professional assistance; the constitutionally adequate threshold is not high. The court regarded the decision not to present evidence of the previous sexual assault to be objectively reasonable considering all the circumstances. Counsel had decided to focus on the angry relationship between the child’s mother and the defendant, instead of trying to attack the child based on prior sexual experience. Counsel’s failure to further investigate the prior assault was not deficient as a matter of law, and the supreme court declined to override the circuit court’s findings of fact and assessment of witness credibility and the difficulty of presenting evidence under Pulizzano. Notwithstanding these conclusions, the supreme court cautioned that the better practice is for counsel to always research and be familiar with pertinent legal authority.

Addressing prejudice, the court concluded that evidence of the previous sexual assault would have been inadmissible. The evidence fell squarely under the proscription of the rape shield law, and the quality of the evidence, at least as suggested by the record, did not come within the Pulizzano exceptions. Pulizzano requires evidence that the prior assault “clearly occurred” and that it “closely resembles” the present claim. The latter requirement is strictly applied, and in this case, the resemblance was not close enough. The prior incident concerned the child claiming to have touched a cousin’s genitalia; the present offense was that the defendant had forced the child to perform oral sex.

Justice Bradley concurred to voice her disagreement with the court’s “imprimatur” on defense counsel’s strategic decision, which was made without knowledge of relevant law. According to the concurrence, the court should have decided the case solely on a determination of no prejudice.

Warrantless Entry; Knock and Talks

The supreme court issued three decisions, on the same day, all stemming from warrantless entries in which Milwaukee police officers had some suspicion of drug activity. Chief Justice Abrahamson and Justice Bradley dissented in all three, concerned that the court’s conclusions tend to create a rule that when officers have a generalized suspicion that drug activity is occurring in a home, they need not obtain a warrant but simply may execute a “knock and talk.” In each case, the court conducted an in-depth review of the totality of the circumstances and analogized extensively to federal and state Fourth Amendment cases. The exceptions to the warrant requirement include consent, the community-caretaking exception, and exigent circumstances.

• Curtilage; Consent to Entry. In State v. Artic,¹² the defendant alleged that his defense lawyer should have preserved the argument that the police manufactured exigent circumstances to enter his house without a warrant. The supreme court concluded that Artic voluntarily gave consent for the search, and that the search was sufficiently attenuated from the entry so as to purge the taint of the illegal entry.

A confidential informant had alerted the Milwaukee Police Department to a pending cocaine sale. Police officers positioned themselves to observe the home where the sale was to take place. A man the informant identified as the buyer entered the home and exited five minutes later with a substantial amount of cocaine. After arresting him, the officers decided to do a “knock and talk.” While two officers knocked on the front door and identified themselves, a detective walked into the fenced-in backyard, looked through a window, and saw a light go off. The detective also heard the sound of people going up and down the stairs and a phone ringing intermittently. The detective relayed these observations to the officers at the front door, who then forced entry by breaking a window. They found the first floor to be in the middle of renovations, although one person was sleeping in a back bedroom.

An officer followed a separate hallway to the back stairs, at the top of which was a closed door. The officer knocked and announced himself. A man (Artic) opened the door and gave consent for the officer to enter. The record is not clear as to when the officer drew his gun. After a female guest joined Artic in the kitchen, the officer began speaking to the couple. Artic said he owned the duplex, and he gave oral consent to search the residence. He declined to give written consent. In the search, the officers recovered a plastic baggie containing white residue and drug paraphernalia. There were white powdery fingerprints on Artic’s sweater, which later tested positive for cocaine.

On review, the supreme court assumed that the entry into the house was unconstitutional. The officers’ belief that evidence was being destroyed (phone ringing, running up and down stairs, lights going off) was based on impermissible observations from within the curtilage in the back of Artic’s house. Nonetheless, the physical evidence ultimately obtained was lawful because Artic’s consent to search was voluntary, and the search itself was attenuated enough from the illegal entry so as to purge the taint of the illegal entry. The officers disclosed to Artic almost all the information they had to support their interest in his home; they acknowledged they had no warrant and did not misrepresent their purpose in being there. The court also found that officers did not intimidate or punish Artic. Although the officer’s weapon was drawn when Artic opened the upper flat door, the officer holstered it after he received permission to enter. Even if another officer had said he would tell Artic’s supervised release officer about the incident, it was not a baseless threat because Artic had volunteered the information that he was under supervision.

Last, the court concluded that the conditions were nonthreatening. The officers were forthright in stating their purpose, waited for Artic to answer their knock, and did not begin discussions until both Artic and the woman were seated at the table.

The dissent viewed the lapse of time between the unconstitutional entry and the entry into the upper quarters as not sufficiently attenuated; regarded the house as one living space, not two; and believed that Artic was under some degree of duress when he consented to the officers’ entry into the second-floor rooms.

• Community-caretaker Exception. Acting on an anonymous tip that people in a house appeared to be sleeping next to drugs, money, and drug paraphernalia and that the door was open, police officers entered the home without a warrant and arrested an individual. When the defendant later moved to suppress the evidence, the state cited the officers’ community-caretaker function, which allowed them to enter the residence and then seize evidence in plain view. In State v. Pinkard,¹³ the supreme court, in a decision authored by Justice Roggensack, upheld admission of the evidence.

An anonymous phone caller told police he had just left a home where two people appeared to be sleeping next to drugs and money. The officer who took the call was concerned about whether the occupants of the residence might have overdosed or been victims of a crime. He called a member of the gang-crimes unit to check on the people in the home. Five officers met at the residence, the rear unit of a three-family house. The main door was three-quarters open, and while remaining outside, the officers knocked and announced their presence. When no one responded after 30 to 45 seconds, the officers entered. Just inside, they could see into an open bedroom door, and they observed two adults who appeared to be sleeping. They entered the bedroom and again loudly announced themselves as police officers. Neither person responded, and the officers had to shake awake Pinkard. The officers seized the cocaine, crack cocaine, marijuana, and digital scale they found. They also seized a gun found under Pinkard’s mattress, but the circuit court suppressed that evidence as going beyond a reasonable exercise of the community-caretaker function.

Under case law, police officers serving as community caretakers to protect persons and property (in contrast to serving in their law enforcement function) may be constitutionally permitted to perform warrantless searches and seizures. An officer performs a community-caretaker function when he or she discovers a member of the public in need of assistance. Pinkard argued that the exception is limited to automobile searches and urged that the heightened expectation of privacy accorded to people in their homes dictated suppression of the evidence.

Acknowledging Pinkard as a close case for whether the community-caretaker function was present, the court analogized to a 1977 case, State v. Bies.¹⁴ In Bies, the court deemed reasonable an officer’s search of an open garage and seizure of apparently stolen cables in response to a noise complaint. Although the Bies court did not explicitly invoke a bona fide community-caretaker function to support the warrantless home entry, the court’s intent seemed clear. More recent Wisconsin decisions addressing the community-caretaker function have carefully examined the particular concern expressed by the investigating officer, focusing on three questions: 1) has a Fourth Amendment search or seizure occurred; 2) were the police exercising a bona fide community-caretaker function; and, if so, 3) does the public interest outweigh the intrusion on privacy such that the caretaker function was reasonably exercised within the home.

The second question seems to be pivotal. Courts may consider an officer’s subjective intent, but if he or she has articulated an objectively reasonable basis under the totality of the circumstances, the officer has met the standard of acting as a bona fide community caretaker, a function totally divorced from law enforcement functions. To hold otherwise would reduce the community assistance function of police officers. According to the Pinkard court, there was a legitimate concern that the two sleeping individuals had overdosed on drugs. Much of the information relayed by the anonymous tipster was confirmed and thus reasonably reliable. The individuals did not awaken after the police knocked and announced outside the home or when the police knocked and announced themselves at the open bedroom doorway. Balancing the public interest in protection of people and property versus the degree and nature of the intrusion, the court concluded the police officers reasonably exercised the community-caretaker function.

Justice Bradley’s dissent, which Chief Justice Abrahamson and Justice Prosser joined, characterized the entry as a drug bust by a drug team and not a reasonable exercise of the caretaker function. The dissent considered the 30-to-45-second wait before entry to be inconsistent with consideration of less-invasive alternatives and noted that thus far, the U.S. Supreme Court has not extended the caretaker exception to justify a warrantless entry of a home.

• Exigent Circumstances. Acting on an anonymous tip and what officers thought was an outstanding felony arrest warrant, officers entered and searched the defendant’s apartment. The officers had corroborated three of four details relayed by the informant, knocked and announced their presence, and immediately heard the sound of footsteps running from the door. The court, in State v. Robinson,¹⁵ concluded that the entry was reasonable because it was supported by probable cause and justified by exigent circumstances.

An individual walked into a police station to report that drugs were being sold out of a particular house in Milwaukee. The informant provided not only the address but also the name and cell phone number of the suspected seller. Police conducted a warrant check on two databases and found what appeared to be two open warrants for the alleged seller. Police officers went to the home and knocked on the door. At first there was no answer, but there was the sound of movement inside the apartment. One officer dialed the cell phone number, and a phone rang just inside the door. The officers knocked again, and a man answered, responding to the name the informant had provided. After the officers identified themselves, they immediately heard footsteps running from the door. Allegedly fearing that evidence was about to be destroyed, the officers kicked open the door and entered. They saw loose marijuana and several bags in an open cooler, and they smelled a strong odor of burned marijuana.

The defendant (Robinson) denied he ran from the door and testified that when the police said, “open up,” he responded, “no thank you.” He denied smoking marijuana but said his girlfriend had been smoking it. At the suppression hearing, it was determined that what the officer thought was an open warrant was actually a commitment order for unpaid fines stemming from an earlier conviction for manufacturing or delivering THC. The court of appeals held that the evidence derived from the warrantless entry and search was admissible under the good-faith exception to the exclusionary rule or, in the alternative, its admission was justified by the exigent-circumstances exception.

On review, the supreme court held that the narrower probable-cause and exigent-circumstances exception applied. It was reasonable for the officers to believe they would find evidence of illegal drug activity in the apartment, because they had confirmed three of the four details supplied by the informant. In testing for exigent circumstances, the officers reasonably believed a delay in procuring a warrant would risk the destruction of evidence. The majority opinion, written by Justice Ziegler, noted that drugs like marijuana are easily and quickly destroyed. Robinson argued that the “running footsteps” was an exigent circumstance manufactured by the officers and should be disallowed. But the court declined to adopt a rule that would effectively preclude a knock and announce. Robinson’s choice to run from the door created the exigent circumstance. In sum, two facts – the easy disposability of marijuana plus the sound of running footsteps – created sufficient exigent circumstances to deny the motion to suppress.

In dissent, Justice Bradley and Chief Justice Abrahamson expressed their concern that the court’s acceptance of such exigent circumstances would become a “knock and enter” rule subject to constitutional misuse and viewed the corroborated three details to be too insignificant to justify entry.

Endnotes

Wisconsin Lawyer