State v. Larsen

• Decision Date: 02 May 2007
• Docket Number: No. 2006AP1396-CR.,2006AP1396-CR.
• Citation: 2007 WI App 147,736 N.W.2d 211
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. David M. LARSEN, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL>
• Court: Wisconsin Court of Appeals

736 N.W.2d 211

2007 WI App 147

STATE of Wisconsin, Plaintiff-Respondent, v. David M. LARSEN, Defendant-Appellant.^†

No. 2006AP1396-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 5, 2007.

Opinion Filed May 2, 2007.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jefren E. Olsen, Assistant State Public Defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Daniel J. O'Brien, Assistant Attorney General,

and Peggy A. Lautenschlager, Attorney General.

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

¶ 1 ANDERSON, J

David M. Larsen appeals a judgment of conviction for one count of attempted first-degree intentional homicide and two counts of interference with child custody. Larsen contends that the circuit court erred in concluding that the emergency doctrine justified the police search of his residence in a kidnapping investigation. He asserts that the officers did not possess a reasonable basis for concluding that entry was necessary in order to provide immediate aid or assistance to a person in danger. Larsen further maintains that the emergency doctrine does not permit a search for information on the kidnap victims' whereabouts.

¶ 2 We conclude that in kidnapping cases, the emergency doctrine permits a search not only for the kidnap victim, but also for evidence that might lead to the victim's location. The officers in this case reasonably believed the kidnap victims to be in imminent danger of physical harm and that their search of Larsen's residence would result in finding the victims or evidence that would lead them to the victims. We affirm.

FACTS

¶ 3 On January 31, 2004, at 10:57 a.m., the Racine County Sheriff's Department received a 911 call from an unidentified female stating that she was having difficulty breathing. The dispatcher determined that the female placed the call from an address on Oakridge Drive in Wind Lake. Mark Anderson and Thomas Sweet, two Racine County Sheriff's Department officers, were dispatched to the scene. Upon arrival, the officers and the responding rescue personnel attempted to make contact with someone inside the home. They rang the doorbell, knocked on the doors and windows and looked through the windows to the interior of the residence. The officers and emergency responders attempted to get a response from inside the house for fifteen to twenty minutes, but were not successful. Dispatch called the telephone number listed for the home, but the answering machine picked up. The officers then verified the address with the dispatcher, who informed them that the residence belonged to Larsen, and broke in through a door window and entered the home. The officers and responders conducted a search of the home looking for the 911 caller with the breathing problem. They announced their presence and looked in the bedrooms, the bathrooms, the living room, the kitchen, the basement, the accessible part of the garage and the closets. The officers and responders conducted a second search, but again did not find anyone or evidence to suggest the home was a crime scene.

¶ 4 Having determined that no one was in the home, the officers secured the door, cleaned up the broken glass and returned to the police department. While at the police department, Sweet took a call from David Nicolai who stated his concern about his wife, Teri Jendusa-Nicolai, and her two young children. Nicolai informed Sweet that Jendusa-Nicolai had gone to pick up her two children from her ex-husband's home on Oakridge Drive and she should have returned home with them already. Nicolai also told Sweet about his wife's "contentious" relationship with her ex-husband and that because of a previous assault she would not have entered the home. Nicolai stated that a neighbor had seen Jendusa-Nicolai's car outside the Oakridge Drive residence.

¶ 5 At some point during this conversation, Sweet realized that Nicolai was referring to the same residence that was the subject of the rescue call. Given the information Nicolai provided, Sweet determined that a crime may have been committed and he and Anderson returned to the Larsen residence. They arrived around 12:30 p.m. Anderson confirmed that the house was still secure and then both officers conducted a neighborhood canvass to determine if any of the neighbors had information about the location of Jendusa-Nicolai, the two children or her car.

¶ 6 During the fifteen- to twenty-minute canvass, the officers learned that earlier in the day, one of the neighbors had seen Larsen loading Jendusa-Nicolai's car onto a trailer. In addition, Sweet took another call from Nicolai who told him that he received a brief call from his wife and that she was in the back of her ex-husband's truck "in distress." Sweet also learned from dispatch that the Milwaukee County Sheriff's Office received a 911 call from Jendusa-Nicolai, who reported that she was bound and under a tarp in the back of a pickup truck driven by Larsen and that she did not know her location.

¶ 7 Sweet was concerned that there was an ongoing crime and decided to request assistance in the investigation. Around 12:48 p.m., he notified the detective bureau about the situation. At 1:14 p.m., Sweet updated an earlier "attempt to locate" bulletin so that it listed Jendusa-Nicolai as "missing [and] endangered" and Larsen as wanted for false imprisonment. Sweet instructed dispatch to issue a formal Amber Alert at 1:45 p.m.

¶ 8 After Sweet notified the detective's bureau, Racine County Sheriff's Department investigators, John Hanrahan and Eileen Reilly, began trying to collect information. At approximately 1:20 p.m., the investigators arrived at Larsen's father's home to see if Larsen had gone there, but the neighbors had not seen Larsen's father for a couple of days. They then drove to Nicolai's home in Wind Lake, arriving around 2:09 p.m. Reilly and Hanrahan spoke with Nicolai, Sweet and Anderson, who advised them that children were involved in the situation and that Jendusa-Nicolai had placed a second call indicating she was being abducted or kidnapped. The investigators also questioned friends of Larsen, who informed them that the relationship between Larsen and Jendusa-Nicolai had been tenuous since the divorce and that Larsen was an air traffic controller at a Chicago area airport, owned a gun and had property in Milwaukee and in rural Racine county. The investigators then headed for Larsen's home, arriving at around 3:18 p.m.

¶ 9 In the meantime, Hanrahan had briefed Keith Dobesh, also an investigator, on the situation and asked for his assistance. The two discussed the possibility of contacting the district attorney's office to find out if the exigent circumstances exception to the warrant requirement allowed them to reenter the home. Dobesh contacted the district attorney and relayed to him the information he received from Hanrahan concerning the situation. The district attorney told Dobesh to enter the home and look for the children or anything else that might assist in finding them. Dobesh called Hanrahan, apprised him of the district attorney's advice and proceeded to Larsen's home to assist with the entry and search.

¶ 10 When Hanrahan and Reilly arrived at the scene, they met up with Anderson who was securing the scene. Anderson advised the investigators that he had been in the home already with a rescue squad looking for Jendusa-Nicolai, but was unsuccessful. Hanrahan, Reilly and Anderson entered the home at 3:28 p.m Sometime shortly thereafter, Dobesh and Christopher Schmaling, also an investigator, arrived and entered the residence.

¶ 11 The investigators searched the home for Jendusa-Nicolai, her two children and any information about their whereabouts. The investigators saw in plain view a large, two feet-in-diameter bloodstain on the carpet near a dinette table, an overturned chair next to the table and a baseball bat resting against the wall near the table. In the kitchen, the investigators found a garbage pail that contained duct taped and bloodstained clothing. However, the investigators concluded in the beginning stages of the search that the victims were not inside of the home.

¶ 12 The investigators also looked for items such as ransom notes, maps or suicide notes that might suggest the location of the alleged victims. The investigators sought the addresses of the properties Larsen owned, thinking he may have taken the three alleged victims to one of those properties. The investigators searched through drawers, piles of documents, boxes and other containers. Early in the search, the investigators discovered divorce documents listing the addresses of Larsen's three Milwaukee properties and places in Wheeling, Illinois, Skokie, Illinois, and Elmwood Park, Illinois. The relevant authorities were contacted so that these addresses could be checked out. The investigators also found an empty gun box in Larsen's bedroom closet and relayed this information over the air at 4:15 p.m. The search of Larsen's home for information about the whereabouts of Jendusa-Nicolai and her two children continued until around 9:30 p.m. By that time, Larsen had been apprehended and was in custody at the police department in Wheeling, Illinois and the two children had been found alive at the Elmwood Park, Illinois residence. The following day the Wheeling police found Jendusa-Nicolai alive in a plastic garbage can in a self-storage unit that Larsen rented.

¶ 13 The State filed a multiple-count information against Larsen, which included charges of attempted first-degree intentional homicide and kidnapping, both by use of a dangerous weapon, and intentional interference with child custody. Larsen filed a motion to suppress the evidence seized as a result of the second of the two entries into his home. After a series of evidentiary hearings, the circuit court denied the motion. The circuit court determined that the search was justified...