¶ 1. Dyllon A. Maddix appeals a judgment of conviction for manufacturing tetrahydrocannabinols (THC) in violation of Wis. Stat. § 961.41(l)(h)l. (2011-12),
BACKGROUND
¶ 2. The following facts are undisputed. At approximately 1:55 a.m., City of Wausau Police Officers Eric Lemirand and Jacob Albee responded to a call reporting a domestic disturbance in the upper unit of a two-flat house in Wausau. Having been advised that the door providing access to the upstairs unit was located at the back of the house, the officers proceeded to the back of the house upon their arrival. While walking around the house, Albee heard "a female yelling in the upper portion of the building." A downstairs neighbor
¶ 3. Officer Lemirand knocked on the back door of the house, but there was no response. The officers heard "some female screams as if somebody had been in trouble." Believing somebody might be in danger, the officers radioed a supervisor for permission to forcibly enter, but were unable to speak with the supervisor. The officers heard "some screams again coming from upstairs so [they] forced entry based on the safety of the person screaming."
¶ 4. The officers forced open the locked back door of the house and climbed a set of stairs. Officer Albee knocked on the second-floor interior door, which Maddix opened. The door opened directly into an apartment. Maddix began to back away from the officers but Albee grabbed Maddix's arm and informed Maddix that he needed to "stay right there." Upon entry to the apartment, the officers noted the presence of an adult female, but no one else was immediately apparent. The officers separated Maddix and the female for separate interviews, conducted in different areas of the apartment.
¶ 5. Officer Albee interviewed Maddix near the entry door, in the hallway of the apartment.
¶ 6. Meanwhile, Officer Lemirand interviewed the female in the bathroom of the apartment. She stated that she and Maddix had been having an argument. Lemirand asked if she had been screaming and she said yes. Lemirand asked why and she said "because she was scared but she didn't know what she was scared of." Lemirand's conversation with the female lasted about fifteen to twenty minutes.
¶ 7. The officers then conferred for no more than ten minutes. According to Lemirand, the female's "explanation of the screaming did not make sense." Lemir- and was concerned that another victim or aggressor was present in the apartment. Lemirand testified that he and Albee performed a "protective sweep" of the residence to "make sure that there [were] no other people in the apartment, nobody that could either launch an attack against [the officers] or another possible victim in the apartment." Lemirand "checked the living area and the kitchen... by sight [and] the bathroom and the bedroom that [he] was speaking to the female in."
¶ 8. About two to five minutes after the "sweep," Lemirand asked Albee if Albee had "checked the door on the other side of the hall from the bedroom for people." Albee stated that he had not. The officers realized that "at the end of the hallway
¶ 9. In the course of the subsequent criminal proceedings, Maddix moved to suppress the evidence obtained pursuant to the officers' warrantless entry to the apartment and allegedly unlawful search of rooms in the apartment. At the motion hearing, the circuit court ruled that the officers' warrantless entry into Maddix's apartment (by forcing entry in the back door of the house) was justified by the community caretaker exception, given the screams reported to and heard by the officers. Maddix does not challenge this ruling on appeal. The circuit court further ruled that the search of the rooms of the apartment was justifiable as a "protective sweep" and requested further briefing on the legality of the search of the overlooked bedroom.
¶ 10. During its oral ruling after briefing, the circuit court determined that the search of the overlooked bedroom in which the marijuana plants were found was justifiable under the community caretaker function. The circuit court found that both officers "sincerely believed" that a third person was involved and "had they not searched and had they left at that point and it turned out that someone had been injured or hurt or killed in that room, that would have been a dereliction of their duty." Maddix pleaded guilty pursuant to a plea agreement, and the circuit court entered a judgment of conviction. Maddix now appeals.
DISCUSSION
¶ 11. On appeal, Maddix argues that the officers' warrantless search of the overlooked bedroom in which the marijuana plants were discovered violated his right against unreasonable searches under the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. Maddix asserts that the community caretaker exception, including protective sweeps pursuant to that exception, did not justify the search of rooms within the apartment generally or the search of the overlooked bedroom.
¶ 12. When reviewing the denial of a motion to suppress evidence, we uphold the circuit court's findings of fact unless clearly erroneous. State v. Pinkard,
A. Community Caretaker Exception to a Warrantless Search
¶ 13. The " 'Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures.'" State v. Horngren,
¶ 14. When acting as a community caretaker, an officer may conduct a search or seizure without probable cause or reasonable suspicion, as long as the search or seizure satisfies the reasonableness requirement of the Fourth Amendment. State v. Kelsey C.R.,
Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.
Cady v. Dombrowski,
¶ 15. The Wisconsin Supreme Court has since noted that Cady does not limit the community caretaker function to incidents involving vehicle accidents. Pinkard,
¶ 16. Wisconsin courts use a three-part test to determine whether an officer's conduct properly falls within the scope of the community caretaker exception. Pinkard,
(1) whether a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, whether the police were exercising a bona fide community caretaker function; and (3) if so, whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised within the context of a home.
Id. We examine and apply each of these factors in turn, although the parties do not dispute the first factor.
B. Application of the Community Caretaker Three-Part Test
¶ 17. We first explain how we will characterize the challenged search activity. At
¶ 18. As a matter of law, we view the overlooked bedroom search as a continuation of the apartment search. While two to five minutes passed between the "checking" of all but one of the rooms in the apartment and of the overlooked bedroom, the same reason prompted both stages of the "sweep" of the apartment as a whole - the female's failure to explain the reason for screams that she reported having made. No additional motivation for searching the overlooked bedroom surfaced during the two- to five-minute pause in the search; it is uncontested that the overlooked bedroom would have been included in the apartment search had it not been overlooked. The short lapse in the search is no different than the lapse that would result from an officer pausing to take a phone call or to communicate with witnesses, suspects, or other officers. Therefore, we characterize the officers' conduct as one search and apply the three-part test to that search.
1. Existence of Search
¶ 19. The parties do not dispute that the officers conducted a warrantless search within the meaning of the Fourth Amendment. Therefore, the first element of the community caretaker exception's three-part test is met and we continue to the second step of the test.
2. Bona Fide Community Caretaker Function
¶ 20. As stated above, the second requirement is that police be engaged in a bona fide community caretaker function. This requires us to determine whether there is "an 'objectively reasonable basis' to believe [that] there is 'a member of the public who is in need of assistance.'" Ultsch,
¶ 21. In Pinkard, police received an anonymous tip that: the caller had just left a residence; inside that residence two people "appeared to be sleeping"; cocaine, money, and a digital scale were located next to them; and the rear door to the residence was standing open.
¶ 22. In Ultsch, we distinguished facts involving a car crash from those in Pinkard, because the officers had fewer reasons to be concerned that a member of the public was in need of assistance. Ultsch,
¶ 23. The Wisconsin Supreme Court again examined whether officers exercised a bona fide community caretaker function in Gracia,
¶ 24. The Gracia court determined that the officers exercised a bona fide community caretaker function, concluding that the officers had an objectively reasonable basis to believe Gracia needed assistance and was hurt. Id., ¶¶ 21-22. First, the court cited the significant damage to Gracia's vehicle and the fact that a traffic signal was "completely knocked down." Id., ¶ 21. Second, noting that "the subjective intent of the officers is relevant," the court relied on the officers' stated concerns for Gracia's well-being. Id. Finally, the court noted that Gracia's brother's apparent concern about Gracia's safety and unrequested decision to force open the bedroom door supported an objectively reasonable basis to believe that Gracia was hurt and needed assistance. Id., ¶ 22.
¶ 25. Comparing the facts in Pinkard and Gracia, where the supreme court held that the officers had an objectively reasonable basis to believe someone may be in need of assistance, and even those in Ultsch, where the officers' conduct fell outside the scope of the community caretaker function, to the facts in this case establishes the clear absence of an objectively reasonable basis to search Maddix's apartment.
¶ 26. Here, the officers went to Maddix's apartment due to a call reporting a domestic disturbance and heard screams upon their arrival. Upon entering the apartment, the officers encountered Maddix and the female, who appeared to be the only people in the apartment. After interviewing Maddix and the female separately, the officers were "not satisfied" with the female's explanation as to why she screamed - "she was scared but she didn't know what she was scared of' - and believed that another person who "either was causing the screaming earlier or perhaps was a victim" was in the apartment. Thus, the primary basis for conducting the search of the rooms in the apartment, after conducting the initial interviews, was the female's failure to identify the source of the fear that caused her to scream.
¶ 27. Unlike in Pinkard, Ultsch, and Gracia, where the officers had evidence pointing concretely to the possibility that a member of the public was in need of assistance (a damaged vehicle or drug use coupled with an open doorway), here no evidence directly corroborated the officers' theory that another person was present in the apartment, who was either a crime victim or a perpetrator. Nor, unlike in Pinkard and Gracia, where another person indicated concern for the well-being of one or more persons (an anonymous tip and a brother's direction), was there any corroboration that someone was in need of assistance here. Rather, to the contrary, Maddix told Officer Albee during the individual interview that he and the female were the only ones in the apartment. Maddix explained that the two were in an argument because the female suspected that Maddix was "cheating on her." Similarly, during her individual interview, the female told Officer Lemirand that the two were having an argument. The female also told the officer that she was the source of the screams. While it was certainly a physical possibility that one or more persons were in the apartment, there
¶ 28. Moreover, based on the testimony, the officers were present in the apartment for twenty-five to thirty minutes prior to initiating the search of the rooms in the apartment. During that time, the record lacks any evidence supporting the theory that anyone else was present, such as noises, nervous behavior by Maddix or the female, or statements by either of them that implied the presence of another person. We need not speculate on what additional evidence might have been enough, because here there was virtually no such evidence. Applying an objective standard, we conclude that the female's failure to offer an explanation for her fear, together with all other evidence that the record reflects that the officers knew, did not provide " 'an objectively reasonable basis'" for the officers to believe " 'a member of the public [was] in need of assistance'" or that the officers' or others' safety was at risk. Ultsch,
¶ 29. The facts demonstrate that the officers responded to an apparent domestic disturbance involving only Maddix and the female. Based on the circumstances with which they were presented, the officers, in lawfully entering the apartment and separately interviewing the two persons who appeared to be the only persons in the apartment, properly exercised their community caretaker function and achieved the purpose for which they were dispatched. Both persons gave the same basic account and the female acknowledged screaming. The female's failure to explain why she was afraid did not provide a basis to objectively conclude, based on the totality of the facts known to the officers at the time, that anyone else was in the apartment so as to require the officers to engage in their community caretaker function.
¶ 30. We recognize that the circuit court found the officers credible in their belief that a third person, either a victim or an aggressor, might be in the apartment. We further recognize that an officer's subjective intent may be relevant. See Gracia,
3. Balancing Test
¶ 31. Even if we determined that the officers' search constituted an exercise of a bona fide community caretaker function, the search would still fall outside the community caretaker exception under the third step. The final inquiry calls for a determination whether the officers' conduct was reasonable and to "balance the
(1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the [search], including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.
Id., ¶ 42 (quoting Kramer,
¶ 32. First, examining the extent of the public's interest and the exigency of the situation, this case is distinguishable from Pinkard and Gracia. While the officers here were responding to an apparent domestic disturbance and heard screaming, upon their arrival the parties admitted to being in an argument and the female acknowledged that she had screamed. Maddix and the female cooperated with the officers, at least insofar as they submitted to interviews.
¶ 33. And, while we must be careful not to substitute our hindsight judgment for the difficult, on-the-scene choices faced by police, the objective fact that the officers waited twenty-five to thirty minutes before performing the search in itself suggests that the circumstances did not call out for an immediate search. Unlike in Gracia, where the officers observed significant damage to a vehicle, and in Pinkard, where the door was open and the occupants were apparently vulnerable, the facts in this case do not point to the likelihood of hidden injury or danger.
¶ 34. Turning to the second factor, we consider this a factor that does not weigh strongly in either direction. The officers did not control the time or location, because they were responding to a call reporting a domestic disturbance. See, e.g., Horngren,
¶ 35. The third factor asks whether an automobile is involved. This case concerns a search of a residence, not a motor vehicle, and thus "[t]his is not a relevant factor here except to recognize that one has a heightened privacy interest in preventing intrusions into one's home." Pinkard,
¶ 36. Under the fourth and final factor of the balancing test, we examine the possible alternatives, including their effectiveness, to the actual police intrusion that occurred. The officers could have asked both Maddix and the female whether anyone else was present in the apartment (Maddix told the officers upon their arrival that only he and his girlfriend were present in the apartment). Of course, the officers would not have been required to accept at face value any statement made by either person, particularly since the officers had reason to believe that both were at best telling only part of the truth about what had occurred that night. However, the officers could have attempted to probe each on the topic. It is relevant to the overall question of reasonableness that the officers looked for people in every room of the apartment, without consent, apparently without first asking one person present whether anyone else might be there and after Maddix already stated that only he and his girlfriend were present. Thus, even had we concluded that the officers engaged in a bona fide community caretaker function, this factor favors concluding that the officers unreasonably exercised that function.
¶ 37. We are mindful of the Wisconsin Supreme Court's caution against "taking a too-narrow view" when determining whether the community caretaker function is present:
An officer "less willing" to discharge community care-taking functions implicates seriously undesirable consequences for society at large: In that event, we might reasonably anticipate "the assistance role of law enforcement ... in this society will go downhill.... The police cannot obtain a warrant for .. . entry. [W]ithout a warrant, the police are powerless. In the future police will tell such concerned citizens, 'Sorry. We can't help you. We need a warrant and can't get one.'"
Horngren,
CONCLUSION
¶ 38. We conclude that the officers' search in this case did not fall within the community caretaker exception to a warrantless search and therefore we reverse the circuit court's judgment of conviction and order denying the motion to suppress, and remand for the circuit court to suppress evidence resulting from the warrantless search.
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Notes
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
A hand-drawn map depicting the layout of the apartment (Exhibit 1 at the suppression motion hearing) is appended to this opinion.
During his testimony at the suppression hearing, Officer Lemirand characterized an area near the bathroom as a bedroom. The parties characterize this area as a storage space. On the appended diagram of the apartment, this storage space is the unmarked area located across from the bathroom.
We interpret the provisions of the Fourth Amendment and Article I, Section 11 as equivalent when analyzing the community caretaker exception. See Kramer,