Community Caretaker – Warrantless Entry

State v. Juiquin A. Pinkard, 2010 WI 81, affirming unpublished decision; for Pinkard: Richard L. Zaffiro; BiC; Resp.; Reply

The community caretaker function, which allows the police “to protect persons and property,” supports warrantless entry of a home. Exercising this function, the police justifiably entered Pinkard’s home in response to an anonymous phone report that “two individuals … appeared to be sleeping next to drugs, money and drug paraphernalia and that the door to the residence was standing open.”

You wouldn’t necessarily know it from the majority opinion, but applying the community caretaker doctrine, originally limited to automobile searches, to warrantless entry of a home is the subject of a deep, on-going national split. Couple of recent examples on opposite sides of the divide: State v. Deneui, 2009 SD, ¶41, 99, 775 NW 2d 221 (“From our review of the caselaw and scholarship on the community caretaker exception, we conclude that the constitutional difference between homes and automobiles counsels a cautious approach when the exception is invoked to justify law enforcement intrusion into a home.”); State v. Gill, 2008 ND 152, ¶18, 755 N.W.2d 454, 460 (“We now hold that a law enforcement officer’s entry into a dwelling place cannot be justified alone on the basis that the officer is acting in a community caretaking capacity. We decline to extend the scope of the community caretaking doctrine to include officers’ entry into private residences.”). A deep and abiding split may spell “cert-worthy.” We’ll see. In the meantime, you’re stuck with the doctrine, so let’s see how it works in action.

¶29 We apply a three-step test to determine whether an officer’s conduct properly falls within the scope of the community caretaker exception to the Fourth Amendment’s warrant requirement. Kramer, 315 Wis. 2d 414, ¶21. When a community caretaker function is asserted as the basis for a home entry, the circuit court must determine: (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.[10] See id. The State bears the burden of proof. Id., ¶17.

Notice anything missing? If you said, “probable cause,” pat yourself on the back. The constable doesn’t require probable cause before blundering into your house to check on your sleeping habits. Surely, though, given the sanctity of the home, some significant showing if less than probable cause must be made of a genuine need for “protection.” Let’s see.

This started with an “anonymous” phone tip, reporting that the caller had just left Pinkard’s residence, where two people appeared to be sleeping next to drugs, etc., and that the rear door was open. The officer who received the call had better things to do than investigate this pressing emergency so he passed the “information” along to … the person most qualified to handle possible medical emergencies: a cop from the Intelligence Division Gang Crimes Unit. Sounded to him pretty much like what is was, a report of a “drug house,” so he rounded up 4 other members of his unit. They went to the back of Pinkard’s residence. The door was indeed open. They knocked, announced, got no answer and, consumed by apprehension for the well-being of the occupants, went in. After that, it was plain view, etc. ¶¶2-5.

Now, apply these facts to the 3-part test. (1) Search is self-evident. (2) This was bona fide community caretaker activity: the police wanted to make sure no one inside had become a crime victim, also to investigate the occupants’ “health and safety.” Why, they might have OD’ed. ¶¶32-35. (3) Public interest in health and safety outweighed whatever paltry interest a mere citizen might have in the privacy of his home. “If Pinkard and his companion had been suffering from a cocaine overdose, a reasonable inference based on these facts, the officers were presented with a significant exigency, for every passing minute could have been the difference between life and death,” ¶47. Absolutely. That’s why 5 Gang Unit officers showed up, to make sure that someone could quickly pass the word to EMTs. If necessary.

And that really gets back to the lack of probable cause, doesn’t it. Remember that this was an anonymous call, and though the court labors to term it “reliable,” the call had no indicia of reliability. But put that aside. If the informant indeed had this inside knowledge and if the cop taking the call really was concerned with the health and safety of the occupants, why on earth didn’t the cop ask the caller if the occupants had OD’ed. Or, more remarkably still, whether they had even ingested drugs. Whether they were sleeping or might be passed out. Well, as far as the opinion reflects there was no such follow-up. Was it because this sounded like a drug-house tip for a Gang Unit entry and not a medical problem? What do you think? True, the court found the open rear door both corroborative of the anonymous tip and alarming in its own right. ¶¶36-37, 52. Maybe. But consider: the rear of a house isn’t generally thought of as a public access point, door or not. The public, that is, has an “implied invitation” to approach the front, or wherever the main entranceway is placed. Do you have a back yard? Maybe one with a patio? Is that where you expect your mail carrier to come along? Milkman? Jehovah’s Witnesses? You get the point. If the implied invitation doctrine did not beckon the Gang Unit to come calling on Pinkard’s back yard, then they were trespassing when they “corroborated” the tip. Which would mean in practical terms, it wasn’t corroborated. The magic of Google Map’s street view let’s you see for yourself, without leaving your desk. Appears that an alley runs past the back of the residence, which is situated mid-block. Not exactly a natural entry point, though you’d like to know more before reaching any conclusions. The State has the burden of proving reasonableness of a warrantless search, and if you care about such things should have had the burden of showing that the public is expected to enter this residence off an alley. You can’t exclude the possibility that this is the expectation without more evidence. Even so, we are still left with a warrantless entry on the flimsiest, not to say transparently pretextual, of reasons.

(Point of clarification: the police did say the back entrance was the “main door” to Pinkard’s residence, ¶3. If that is truly so, then they weren’t trespassing in the back. But they also said they went inside the house out of concern for Pinkard’s well-being. We are more than a little skeptical about the latter, so we might be forgiven our desire for corroboration of the former.)