State v. Dull

• Decision Date: 07 May 1997
• Docket Number: No. 96-1744-CR,96-1744-CR
• Citation: 565 N.W.2d 575,211 Wis.2d 652
• Parties: , 65 USLW 2831 STATE of Wisconsin, Plaintiff-Respondent, v. Gregory J. DULL, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 575

565 N.W.2d 575

211 Wis.2d 652, 65 USLW 2831

STATE of Wisconsin, Plaintiff-Respondent, v. Gregory J. DULL, Defendant-Appellant.

No. 96-1744-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 21, 1997.

Opinion Released May 7, 1997.

Opinion Filed May 7, 1997.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Scott R. Letteney of Hudec Law Offices, S.C., of Lake Geneva.

On behalf of the plaintiff--respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Marguerite M. Moeller, Assistant Attorney General.

Before SNYDER, P.J., and BROWN and ANDERSON, JJ.

BROWN, Judge.

Without a warrant, and without consent, a sheriff's deputy opened Gregory J. Dull's closed bedroom door and went inside. The deputy had taken custody of Gregory's younger brother, Matthew, for underage drinking and testified that he wanted to leave him with Gregory. The trial court accepted the deputy's explanation and determined that the deputy acted reasonably when he entered Gregory's home and bedroom for this reason. We disagree that the deputy's conduct was reasonable and direct the trial court to suppress the deputy's testimony about how he found Gregory in bed with a fourteen-year-old girl.

As a result of what the deputy observed, the State charged Gregory with sexual assault of a child, see § 948.02, STATS., and with causing a child to expose his or her genitals. See § 948.10, STATS. After the trial court denied Gregory's suppression motion, Gregory pled no contest to the sexual assault charge. The other charge was dismissed and read in for sentencing.

This appeal only concerns the trial court's decision to deny the motion to suppress "all evidence" gathered as a result of the deputy's entry into Gregory's bedroom and the "testimony which would flow therefrom." The essence of the trial court's reasoning is captured in the following finding: "[T]he [deputy] was well within his rights to make a determination as to whether there was an adult on the premises in order to determine if Matthew was indeed releasable and did not have to be removed from what was clearly his home." Gregory contends that the trial court erred in this analysis.

We apply a two-part standard to a ruling on a suppression motion. We show great deference to the trial court's factual findings and will not reverse unless they are clearly erroneous. See State v. Guzy, 139 Wis.2d 663, 671, 407 N.W.2d 548, 552 (1987). Nonetheless, the legal determination of whether those facts warrant suppression of the evidence is a matter which we review independently of the trial court. See id.

We accordingly begin with the trial court's factual findings. The deputy and his partner were dispatched to the Dull residence at about 4:00 a.m. to answer a noise complaint. When they arrived, the deputy saw Matthew in front of the house talking with a teenage girl. The deputy identified them and confirmed that they were juveniles. Matthew was fifteen and the girl was fourteen or fifteen.

While the deputy was talking with Matthew, he noticed that Matthew smelled like he had been consuming alcohol. The deputy therefore administered a preliminary breath test. Matthew's test yielded a result of 0.06%.

Meanwhile, the deputy's partner questioned the girl who was in the front yard with Matthew. She also tested positive for alcohol and was placed in custody. The partner put her in the squad car because he planned to take her to the juvenile center until her parents could be contacted.

The deputy likewise placed Matthew in custody. The deputy asked Matthew if there was an adult in the house whom the deputy could leave Matthew with. Matthew told him that his father was at the Milwaukee Huber facility and that his mother was not at home. Nonetheless, Matthew volunteered that his older brother Gregory (who was twenty-one) was inside.

However, Matthew told the deputy that Gregory was sleeping and offered to have the deputy wait outside while he went in to retrieve Gregory. But the deputy had concerns with this plan. On other occasions when he had previously let juveniles go inside their homes for similar reasons, the deputy had been left "outside looking in" with no one willing to "re-answer the door."

While Matthew still argued to the deputy that "he couldn't enter because he didn't have a warrant," once the deputy explained to Matthew that he was in custody and would remain in his custody until he made personal contact with Gregory, Matthew permitted the deputy to go inside the house. Once they were inside, Matthew continued to hesitate, explaining to the deputy that "he didn't think he should allow [him] to proceed any further." Nonetheless, Matthew eventually led the deputy downstairs to Gregory's bedroom, but the door was shut.

Loud music was coming from inside and Matthew and the deputy knocked on the door several times. When there was no response, the deputy opened the door and he and Matthew went inside to awake Gregory.

When the deputy entered, Gregory awoke and started to get up from the bed. The deputy approached him and pulled back the covers. The deputy saw that Gregory was in bed with a juvenile girl and that both were naked.

Before we turn to our legal analysis, we note the State's contention that the trial court never resolved whether the deputy or Matthew opened the bedroom door and initiated entry. The State refers us to the portions of the testimony which show that the testimony about this fact was disputed; the deputy and Matthew each claimed that the other actually opened the door. The State further contends that the trial court's oral findings are ambiguous in regard to how it resolved this conflict.

We reject the State's claim that the findings are ambiguous. The court described the events that took place outside Gregory's door in this way:

They could hear loud music. It was quite clear from the testimony that Matthew was convinced that his brother was in there. The only way under those circumstances [it] certainly was appropriate for the officer to open the door to make inquiry. [Emphasis added.]

Although the trial court made a legal determination that it was "appropriate" for the deputy to open the door, the court plainly made the factual finding that the deputy opened it, not Matthew.

Having set out the historical facts, we now turn to the legal question of whether the deputy's warrantless entry into the house and eventually into Gregory's bedroom violated the Fourth Amendment. The State offers two explanations of why it did not.

First, the State refines the argument it successfully presented to the trial court and argues that the deputy was acting as a "community caretaker" who was only interested in Matthew's safety. See generally Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973). The State describes how the Juvenile Justice Code authorized the deputy to take custody of Matthew in these circumstances and further mandated that the deputy attempt to find a responsible adult with whom he could leave Matthew. See § 938.19(1)(d)8, S TATS.; see also § 938.20(2)(b), STATS.

This court set out an analysis for evaluating "community caretaker" claims in State v. Anderson, 142 Wis.2d 162, 169, 417 N.W.2d 411, 414 (Ct.App.1987), rev'd on other grounds, 155 Wis.2d 77, 454 N.W.2d 763 (1990). There we explained that after a Fourth Amendment entry has occurred, a court must make two more inquiries before applying this principle as a justification for that conduct. First, the court must determine whether the law enforcement officer was engaged in a "bona fide community caretaker activity." See id. Next, the court must weigh and balance the public good arising from the alleged caretaking activity against the intrusion into individual privacy that resulted and make a determination about the overall "reasonableness" of the conduct. See id. at 169-70, 417 N.W.2d at 414. The trial court's determinations about the nature of the conduct and the reasonableness of the conduct, like other legal issues arising in suppression matters, are subject to our independent review. See Guzy, 139 Wis.2d at 671, 407 N.W.2d at 552.

With regard to the first phase of the inquiry, in Anderson we defined the community caretaking function as being " 'totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.' " See Anderson, 142 Wis.2d at 166, 417 N.W.2d at 413 (quoting Cady, 413 U.S. at 441, 93 S.Ct. at 2528). In addition, we noted our approval of the analysis conducted by the Washington Court of Appeals in State v. Chisholm, 39 Wash.App. 864, 696 P.2d 41, 43 (1985), which identified community caretaking functions as those beyond "traditional enforcement of penal and regulatory laws." See Anderson, 142 Wis.2d at 169 n. 3, 417 N.W.2d at 414.

When we apply these definitions to what the deputy did here, we reject the State's assertion that he was acting as a community caretaker. The deputy first approached the residence to investigate a noise complaint and thus was initially acting in that capacity. See Bies v. State, 76 Wis.2d 457, 471, 251 N.W.2d 461, 468 (1977) ("Checking noise complaints bears little in common with investigation of crime."). But his role as a community caretaker ended when he determined that Matthew was intoxicated and took him into custody pursuant to the Juvenile Justice Code. See § 938.19(1)(d)8, STATS. At this point, the deputy returned to his traditional role; he was enforcing this state's beverage control laws. See § 125.07(4)(b), STATS. (prohibiting alcohol possession and consumption by minors).

We recognize that the trial court found as a matter of fact that the deputy's decision to enter the house was intended solely to find Gregory so that Gregory could take custody of Matthew, not because he suspected that criminal activity was taking place inside the house. ¹ Nonetheless, this finding...