State v. Jesse N. Schwartz, 2013AP1868-CR, District 2, 7/30/14 (not recommended for publication); case activity
The community caretaker exception to the Fourth Amendment’s warrant requirement didn’t justify the search of Schwartz’s home because police did not have a reasonable basis to believe another individual was in the home at the time of the search.
Police suspected that a vehicle owned by Schwartz was involved in a hit-and-run accident with a parked car. (¶2). They found the vehicle outside Schwartz’s home and noticed it had a damaged front bumper and cracked windshield. (¶2). Police approached the home and, through a window, saw a man matching Schwartz’s description lying on a couch and two empty gun magazines and a rifle round on a table near the couch. (¶2). After knocks on the front door and windows and calls to Schwartz’s cell phone yielded no response, police forced their way into the house. (¶¶2-3). The man on the couch “immediately jumped up” and was handcuffed, while other officers searched the rest of the home. During that search police found marijuana plants. (¶3).
The state argued the search was reasonable because police were concerned for their own safety and the safety of a second possible person and thus were performing a protective sweep as part of their community caretaker function. State v. Maddix, 2013 WI App 64, ¶15, 348 Wis. 2d 179, 831 N.W.2d 778 (when police enter a residence under the community caretaker exception, they may do a protective sweep if that’s necessary to assure the safety of officer and others). This argument fails because there’s no objectively reasonable basis for the police to believe that there was anyone else in the home:
¶9 The State acknowledges that police “had no affirmative knowledge that such a person existed,” but argues “there was also no evidence to preclude the existence of such a person.” The absence of contrary evidence alone, however, does not provide an “objectively reasonable basis” nor is it a “specific and articulable” fact warranting police to believe such a person is present on the scene—let alone that such a person is dangerous or in danger. Furthermore, the fact that police searched the entire residence without first asking Schwartz whether anyone else might be there is relevant to the overall question of whether the search was reasonable. See Maddix, 348 Wis. 2d 179, ¶36. The State bears the burden of proving that police actions fall within an exception to the warrant requirement. State v. Kruse, 175 Wis. 2d 89, 97, 499 N.W.2d 185 (Ct. App. 1993). The State does not meet this burden for the community caretaker or protective sweep exceptions by showing only the possibility that another person may be present without any facts supporting such an inference. Cf. State v. Lee, 2009 WI App 96, ¶14, 320 Wis. 2d 536, 771 N.W.2d 373.
Part of the mix here is that a neighbor told police Schwartz lived alone and, while a girlfriend would occasionally stay with him, she didn’t appear to be there because her car wasn’t there. (¶2).
