State v. George Toland Ziedonis, 2005 WI App 249
For Ziedonis: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶14 One such exception is the community caretaker function, which arises when the actions of the police are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” State v. Anderson, 142 Wis. 2d 162, 166, 417 N.W.2d 411 (Ct. App. 1987), rev’d on other grounds, 155 Wis. 2d 77, 454 N.W.2d 763 (1990) (citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). To determine whether a particular activity qualifies under the community caretaker exception, the following three-step test must be used: (1) whether a search or seizure, within the meaning of the Fourth Amendment, has taken place; (2) if the Fourth Amendment is implicated, whether “the police conduct was bona fide community caretaker activity;” and (3) if the conduct was bona fide community caretaker activity, “whether the public need and interest outweigh the intrusion upon the privacy of the individual.” Id. at 169. In evaluating the third factor, the following four considerations should be taken into account: “(1) the degree of public interest and exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location and 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. at 169-70.
¶15 The State bears the burden of proving that the community caretaker exception applies. See Boggess, 115 Wis. 2d at 449. This court has cautioned against taking a too-narrow view in determining whether the community caretaker function is present ….
