State v. Kraimer

• Decision Date: 27 July 1979
• Docket Number: No. 78-833-CR,78-833-CR
• Citation: 91 Wis.2d 418,283 N.W.2d 438
• Parties: STATE of Wisconsin, Respondent, v. Lawrence KRAIMER, Appellant. *
• Court: Wisconsin Court of Appeals

Page 438

283 N.W.2d 438

91 Wis.2d 418

STATE of Wisconsin, Respondent, v. Lawrence KRAIMER, Appellant. ^*

No. 78-833-CR.

Court of Appeals of Wisconsin.

Argued May 24, 1979.

Opinion Released July 27, 1979.

Opinion Filed July 27, 1979.

Richard L. Cates, State Public Defender and William J. Tyroler (argued), and Richard J. Johnson, Asst. State Public Defenders, on brief, for defendant-appellant.

Bronson C. La Follette, Atty. Gen. and David J. Becker (argued), Asst. Atty. Gen., on brief, for plaintiff-respondent.

Before VOSS, P. J., BROWN and BODE, JJ.

BROWN, Judge.

This is an appeal from a manslaughter conviction wherein defendant asserts that the evidence used to convict him was obtained by an unconstitutional search and was therefore tainted.

On May 15, 1978 at 8:25 a. m., Racine police Lieutenant Daniel Elmer received a telephone call from an "emotionally upset" individual who said he had a problem and would call back shortly. Although received at the Racine police department, the call came through the "Helpline," which allows citizens to report crimes while remaining anonymous, if desired.

The same caller telephoned Elmer again at 9 a. m. and once more at 9:20 a. m. Elmer tape recorded both calls. Elmer did not identify himself as a police officer until the third and last call.

During these conversations, the caller stated that he had shot and killed his wife four days earlier. The wife's body was "upstairs" and the defendant wanted to talk to somebody. From the telephone calls, Elmer was able to learn that the caller had four children, and they were home with him. The oldest child, a male, was twelve and the youngest was two. The caller did not mention any names nor did he mention any specific address. The caller advised Elmer that he wanted to get the situation resolved and that he could not live in a house with his wife lying dead upstairs. A meeting was then arranged whereby Elmer and the caller were to meet at a local restaurant in ten minutes. The caller did not show up at the restaurant at the designated time.

Detective Elmer thought the calls might possibly have been a hoax, but he was impressed with the sincerity of the caller because of the caller's emotional state. Therefore, he decided to investigate the matter further.

Detective Elmer's only real lead was the fact that four children, at least one of whom was school age, were at home. Yet, school was in session. The investigation consisted of calling twelve area schools. Police informed the schools that they were interested in learning the names of all twelve-year-old male juveniles who were absent from school and who had three siblings. Two of the siblings might also be school age.

Three possible leads surfaced as a result of discussions with the twelve schools. One of these leads was the family of Larry Kraimer. Detective Gerald Frievault was assigned to check out any possible connection between the phone caller and the Kraimer children not being in school. Frievault arrived at the home and knocked on the front door of Kraimer's home. There was no answer. Detective Frievault then proceeded to the two neighbors' houses on either side, where he found no one home. He then went to the back door of Kraimer's home, where he observed that one pane of glass was missing in the door. He shouted into the opening that he was a police officer and asked if anyone was home. He received no response. He then drove to a call box to request assistance and returned to the defendant's home. While waiting for assistance, he saw that a neighbor across the street was home. He asked the neighbor if they had seen the Kraimer children and whether anything was unusual at the Kraimer home. The neighbor said that he saw nothing unusual, and he had seen the children playing outside. Sergeant Bob Holton then came to Frievault's assistance, and two officers entered the Kraimer home.

Entry was gained by reaching through the missing pane to turn the doorknob. Frievault observed a partially eaten pizza on the table, children's shoes scattered on the floor and a television set which was on. He announced his presence again once inside the house, but once more received no response.

Frievault and Holton then proceeded up the stairs to the second floor. They announced their presence again while going up the stairs. This time there was a response. Frievault and Holton heard the sound of footsteps coming from the first floor, so they turned around and came back down the stairs. They then saw Kraimer. The first words were spoken by Kraimer. They were directed toward Sgt. Bob Holton. He said, "Hi Bob, thank God you're here. I'm glad it's over." Frievault then asked Kraimer if he was the one who had made the telephone calls. Kraimer said he was. Frievault then asked, "Where is your wife?" Kramer said, "She's upstairs in the bedroom." Frievault proceeded upstairs to the bedroom and found Mrs. Kraimer's body. When Frievault came back downstairs, he noticed the Kraimer children were present. Kraimer again was the first person to speak. He said, "I suppose you're going to need the gun." Frievault replied in the affirmative. Kraimer said, "It's in the basement. I'll take you down there." Prior to Mr. Kraimer's going down to the basement, Detective Frievault advised Kraimer that he was under arrest and read him the Miranda rights from a card. Kraimer listened and then continued downstairs. Once in the basement, he pointed to a ceiling area and stated, "The gun is up there." Kraimer then led Frievault upstairs and handed him some small envelopes containing letters to other individuals. He told Frievault that, "This will explain everything." Subsequently, the Kraimer home was explored by a police technician. Kraimer later gave a written confession.

Mr. Kraimer was tried for first-degree murder. The jury convicted him of manslaughter. Prior to trial, he had moved to suppress the body, the gun, the letters, the statements and the confession on the ground that they were all products of an illegal, warrantless entry. The motion was denied. Kraimer is now appealing the judgment of conviction on the ground that the court erred in denying his motion to suppress.

The State contends that the warrantless entry into the defendant's home was justified by the exigent circumstances confronting the police at the time of entry. Even if the entry was not justified, the State submits that the particular evidence seized was not related to the entry because it was not obtained through the "exploitation" of the illegal conduct. Rather, all the evidence was freely given to the police by the defendant and was not fruit of the poisonous tree.

WAS THE WARRANTLESS ENTRY JUSTIFIED BY THE EXIGENT CIRCUMSTANCES?

The fourth amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978) quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception is the "exigent circumstances" or "emergency" situation. The State is arguing that the entry and search in this case comes within this exception.

The nend to protect or preserve life or avoid d serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Wayne v. United States, 115 U.S.App.D.C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.) Cert. denied, 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963) quoted with approval in Mincey v. Arizona, 437 U.S. at 392-93, 98 S.Ct. 2408. Thus, the fourth amendment does not bar police officers from making warrantless entries and searches when they reasonably believe a person within is in need of immediate aid. Mincey v. Arizona, 437 U.S. at 392, 98 S.Ct. 2408. Once inside, the police may seize any evidence in plain view during the course of their legitimate emergency activities. Mincey v. Arizona, 437 U.S. at 393, 98 S.Ct. 2408; Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

But a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation." Mincey v. Arizona, supra, quoting Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The trial court found, and we agree, that the entry and search in this case was not justified by any emergency threatening life or limb.

Before the emergency doctrine can be used to justify a warrantless entry and search, the officers must have a reasonable belief that someone inside the home to be entered is in need of immediate aid. In this case, the officers did not have a reasonable belief that anything had occurred at the Kraimer home. The investigation consisted of calling twelve schools and getting the names of three families that had a twelve-year-old male with three siblings who was not in school. There were, however, forty schools, sixth grade and up, in the district. ¹ Twelve was just a fraction of that number. After getting the names of the three families, the police checked out two of the families and found nothing suspicious. Kraimer's family remained. However, before entering the Kraimer home, no attempt was made to contact Kraimer by phone or in any other way determine why his children were not in school. The police had asked neighbors of the Kraimers whether anything unusual was happening at the Kraimer home. The neighbors stated they had seen the Kraimer children outside playing but noticed nothing unusual. Based on these facts, prior to the entry into the Kraimer home, the police had no basis whatsoever to believe that Kraimer had called them or that Kraimer had killed his...