State v. Leutenegger

• Decision Date: 24 June 2004
• Docket Number: No. 03-0133-CR.,03-0133-CR.
• Citation: 275 Wis.2d 512,685 N.W.2d 536,2004 WI App 127
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Walter LEUTENEGGER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

275 Wis.2d 512

2004 WI App 127

685 N.W.2d 536

STATE of Wisconsin, Plaintiff-Respondent, v. Walter LEUTENEGGER, Defendant-Appellant.

No. 03-0133-CR.

Court of Appeals of Wisconsin.

Submitted on briefs September 8, 2003.

Decided June 24, 2004.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Bill Ginsberg of Mandell & Ginsberg, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jonathon G. Kaiser, assistant district attorney for Dane County.

Before Vergeront, Lundsten and Higginbotham, JJ.¹

¶ 1. LUNDSTEN, J.

This case involves the exigent circumstances exception to the general requirement that an officer have a warrant before making a nonconsensual entry into a home. A police officer entered Walter Leutenegger's garage without a warrant after receiving information indicating that Leutenegger was highly intoxicated and locating him in his car in his garage. Leutenegger was subsequently arrested, prosecuted, and convicted of driving while intoxicated. Leutenegger appeals, arguing that the circuit court should have suppressed evidence obtained after the officer entered his garage because that entry was illegal. We disagree and affirm the circuit court.

Background

¶ 2. On July 2, 2001, a citizen telephoned police to report what he believed to be an intoxicated driver. The citizen, using a cell phone, called from a tavern parking lot and gave specific information indicating that a man, later identified as Leutenegger, was very intoxicated and was driving a car away from the tavern. Using information supplied by the citizen, a police officer located Leutenegger sitting in his car in an attached garage to Leutenegger's home. After viewing the situation for a short time, the officer approached Leutenegger's open garage door and proceeded into the garage, making contact with Leutenegger, who was still in his car. After entering the garage, the officer made observations supporting the inference that Leutenegger was intoxicated. Leutenegger was arrested, and police subsequently obtained a breath test result showing that Leutenegger's blood alcohol content was .28%.

¶ 3. Leutenegger moved to suppress all evidence obtained after the police officer entered his garage. The circuit court concluded that the attached garage was part of the curtilage of the Leutenegger residence and, therefore, the officer's warrantless entry into the garage was presumptively unconstitutional. However, the court also concluded that the entry was justified by exigent circumstances, and denied the motion. Leutenegger then pled no contest to the charge of operating a motor vehicle while intoxicated, fourth offense. He now challenges the circuit court's suppression ruling. More detailed facts are set forth later in this opinion.

Discussion

Consideration of an Officer's Subjective Beliefs When the Asserted Justification for a Warrantless Entry of a Home is the Possible Need to Render Assistance or Prevent Harm

¶ 4. The question in this case is whether the officer's warrantless entry into Leutenegger's attached garage was lawful because of a possible need to render assistance or prevent harm. Leutenegger, relying on State v. Boggess, 115 Wis. 2d 443, 340 N.W.2d 516 (1983), argues that the officer's action must have been subjectively motivated by a perceived safety concern, that is, that the particular officer must have subjectively believed that Leutenegger likely needed assistance or still posed a danger to others. Further, Leutenegger contends that the record in this case does not support a finding that the officer was actually motivated by her concern for the safety of Leutenegger or others.

¶ 5. We disagree with Leutenegger that the objective/subjective test used in Boggess is the correct test to apply here. More recently, the supreme court employed an objective test in State v. Richter, 2000 WI 58, ¶ 30, 235 Wis. 2d 524, 612 N.W.2d 29, and we conclude we must follow this more recent decision. See Jones v. Dane County, 195 Wis. 2d 892, 918 n.8, 537 N.W.2d 74 (Ct. App. 1995)

("[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court.").

¶ 6. In Boggess, the supreme court used the term "emergency rule" when faced with the State's argument that a warrantless home entry was legal because of a report that children had been battered, were in need of medical attention, and lived with a man named Boggess who had a "bad temper." Boggess, 115 Wis. 2d at 445, 446, 457-58. The Boggess court relied on State v. Pires, 55 Wis. 2d 597, 604, 201 N.W.2d 153 (1972), which equates the "emergency doctrine" with the "exigent-circumstance rule." Boggess, 115 Wis. 2d at 450. The two-pronged objective/subjective test used in Boggess does not come from Pires, however, but instead from State v. Prober, 98 Wis. 2d 345, 297 N.W.2d 1 (1980), overruled on other grounds, State v. Weide, 155 Wis. 2d 537, 455 N.W.2d 899 (1990)

. Under the two-pronged objective/subjective test used in Boggess, a warrantless entry based on a safety concern is illegal unless the entering officer subjectively believes that entry is necessary to render assistance or prevent harm. See Boggess, 115 Wis. 2d at 449-51; see also State v. Rome, 2000 WI App 243, 239 Wis. 2d 491, 620 N.W.2d 225 (two-pronged objective/subjective test used where police entered a home without a warrant based on information that a man was a threat to a young girl in the home with him).

¶ 7. If we applied the objective/subjective test used in Boggess, we would need to address Leutenegger's argument that the record does not support the circuit court's factual finding that the officer here was motivated in part by a belief that Leutenegger might need assistance and that Leutenegger still posed a danger to others. However, when our supreme court most recently dealt with a proffered safety justification for a warrantless entry under circumstances similar to those before us — that is, in Richter — it applied a purely objective test.² ¶ 8. One issue in Richter was whether an officer's warrantless entry into a mobile home was justified by a possible need to render assistance to the occupants. In that case, an officer was dispatched to a mobile home park because of a report of a burglary in progress. Richter, 235 Wis. 2d 524, ¶¶ 3-7. When the officer arrived, he was flagged down by a person who told the officer that someone had broken into her mobile home and that she had seen the intruder flee her home and enter another mobile home across the street. Id., ¶ 3. The officer went to that mobile home and observed signs of a forced entry. The officer entered the mobile home and that entry led to incriminating evidence against the defendant who, as it turned out, was the owner of that mobile home. Id., ¶¶ 4-9.

¶ 9. The Richter court framed the question this way: "whether [the officer's] warrantless entry into [the defendant's] trailer was justified by the exigent circumstances exception to the warrant requirement and therefore valid under the Fourth Amendment and its Wisconsin constitution counterpart." Id., ¶ 26. "Exigent circumstances" is a term that encompasses several more specific exceptions. The Richter court explained:

There are four well-recognized categories of exigent circumstances that have been held to authorize a law enforcement officer's warrantless entry into a home: 1) hot pursuit of a suspect, 2) a threat to the safety of a suspect or others, 3) a risk that evidence will be destroyed, and 4) a likelihood that the suspect will flee.

Id., ¶ 29. The State argued the "hot pursuit" exception, but separately argued that the warrantless entry was justified because of "a threat to the safety of the suspect or others." Id., ¶¶ 31, 37. The Richter court agreed with this alternative "threat to safety" argument:

Focusing on what was known and could reasonably be inferred by the officer at the time of the entry, we conclude that [the officer] reasonably believed that the intruder he was pursuing posed a threat to the safety of the occupants of Richter's trailer. It was the middle of the night. A stranger had just broken into the Champions' trailer, but was discovered and therefore abandoned whatever crime he intended to commit inside, fleeing into Richter's trailer across the street. There were obvious signs of forced entry at Richter's trailer — an open window (in 40-degree weather), and the knocked out screen lying on the ground. It was reasonable to infer from this that the suspect did not belong there but in fact had broken in, just as he did at the Champions'. There were people sleeping inside Richter's trailer at the time the intruder entered, creating a situation fraught with potential for physical harm if something was not immediately done to apprehend the suspect.

Id., ¶ 41.

¶ 10. Thus, in Richter a stand-alone justification for the warrantless entry was the prevention of possible harm to the occupants of the mobile home. The State makes essentially the same argument here that it made in Richter: that exigent circumstances justified the warrantless entry because there was reason to believe Leutenegger was in need of assistance or still posed a threat to others. We discern no reason why the test should be different when the person suspected of being in danger or of posing a danger is a suspect, rather than some other party. In these situations, it is the urgent need to enter because of the possible need to render immediate assistance or prevent harm that justifies the warrantless entry.³ Therefore, we apply Richter because it is the most recent supreme court decision on the topic. See Jones, 195 Wis. 2d at 918 n.8

("[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court.").

¶ 11. Having concluded that Richter applies here, we turn to a description of the test used in that case. The test is objective:

As in other Fourth Amendment cases, the determination of

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