State v. Overton

• Docket Number: 2021AP42-CR
• Decision Date: 21 June 2023
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Earl J. Overton, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

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State of Wisconsin, Plaintiff-Respondent, v. Earl J. Overton, Defendant-Appellant.

No. 2021AP42-CR

Court of Appeals of Wisconsin, District II

June 21, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL FROM A JUDGMENT OF THE CIRCUIT COURT FOR KENOSHA COUNTY NO 2018CF398 JASON A. ROSSELL, JUDGE.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM

¶1 Earl J. Overton appeals from a judgment entered after he pled guilty to being a felon in possession of a firearm and maintaining a drug trafficking place. Overton claims the police violated the Fourth Amendment^[1]when they entered his home without a warrant; therefore, he says, the circuit court should have granted his suppression motion.^[2] The circuit court denied the motion on the basis that the warrantless entry was justified under the community caretaker exception. After the circuit court's ruling, however, the United States Supreme Court released its decision in Caniglia v Strom, 141 S.Ct. 1596 (2021), wherein the Court held that the community caretaker exception does not "justif[y] warrantless searches and seizures in the home." Id. at 1598-1600. The State contends that the circuit court's suppression decision should be affirmed because another exception-the emergency aid exception-justified the warrantless entry into Overton's home.

¶2 Overton argues that the search of his home was not justified under the community caretaker exception, that the State forfeited its right to assert that the emergency aid exception justified the police search of his home, and that even if we allow the State's emergency aid argument there was no emergency under the facts of this case. The Supreme Court released Caniglia after Overton filed his first brief with this court but before the State filed its Response brief. The State's brief shifted its argument from the community caretaker exception to the emergency aid exception. We granted Overton's request to double the length of his Reply brief, so he could adequately respond to the State's changed argument.

¶3 We conclude that the State has shown that the emergency aid exception applies. Because the totality of the circumstances show that the police had an objectively reasonable belief that the woman who placed the 911 call was still inside Overton's home and that her safety was endangered, the warrantless entry was justified under the emergency aid doctrine. We affirm.^[3]

I. BACKGROUND

¶4 Police received a 911 call that reported a potential domestic violence incident. The female caller reported that her boyfriend, Russell Bowens, had battered her and thrown her down the stairs.^[4] She gave police the address for where Overton, Bowens, a third man, and Bowens's young son were located. She said that the people inside that address had multiple assault rifles. While on the phone with dispatch, the woman said she was now in a car outside the residence. But, police at the scene did not see a woman in a car. When the police had dispatch convey this to the woman, she responded that a police officer had arrived on the scene, and she was talking to him. The woman then ended the 911 call. When police had dispatch repeatedly attempt to call the woman back, their calls went straight to voicemail.

¶5 Given the officers' experience with domestic violence, they were suspicious that the batterer pressured the woman to lie to the police so that the police would stop any further investigation. They were concerned that the woman was inside the residence. The address given to police was a duplex. The downstairs unit was dark, and the upstairs unit had lights on, and the police could see several people inside. The door from the porch to the upper unit was wide open. Two of the responding officers went up to the second story unit and knocked on the door. At no time did the officers hear anyone call for help or hear a female's voice coming from the apartment. Without opening the door, a male voice from inside the unit asked, "What do you want?" The officers identified themselves and asked the occupant to open the door. There was silence for a few minutes until the officers knocked a second time and told the occupant to open the door. Overton then opened the door. Besides Overton, the officers saw a second man in the living room and asked if there was anyone else in the apartment. Overton told the officer "his friend [Bowens] was inside the apartment and his son, [Bowens's] son." Overton called for Bowens to come out, and a third man approached the living room. The officers asked the men to lift their shirts to check for weapons.

¶6 Police wanted "to ensure that this female [the 911 caller] and nobody else was inside this residence[,]" so they called for additional officers "to clear the residence from -- make sure this female wasn't in [there] and needed assistance." The police then checked the residence for any other people. The police found a child sleeping in one of the bedrooms, but the 911 caller was not there. When the officers conducted the protective sweep, they saw, in plain view, a gun, a bullet or shell casing, and drug paraphernalia.

¶7 The police then obtained a search warrant, and Overton was ultimatelycharged with being a felon in possession of a firearm, possession of THC and drug paraphernalia, maintaining a drug trafficking place, and child neglect.

¶8 Overton filed a suppression motion claiming that the warrantless entry into his residence violated the Fourth Amendment. After the suppression hearing, the circuit court denied the motion on the ground that the entry was lawful under the community caretaker exception to the Fourth Amendment. Though the circuit court's ruling was based on an exception that Caniglia held is no longer available, the court made findings and conclusions that are still applicable for our review. The circuit court said: (1) "the officer articulated an objectively reasonable basis under the totality of the circumstances" to enter Overton's residence; (2) "[t]he residence upstairs has activity and lights, the one downstairs doesn't"; and (3) "[t]here's no question that it's objectively reasonable that the person who made the call of the battery could still be in that residence with all likelihood."^[5] ¶9 After the circuit court denied his suppression motion, Overton accepted a plea bargain, pled guilty, and was sentenced to five years' initial confinement and five years' extended supervision on the firearm possession count and one and one-half years' initial confinement and two years' extended supervision on the drug place count, consecutive. The sentencing court imposed and stayed the sentence and placed Overton on four years' probation. Overton appeals.

II. DISCUSSION

¶10 "[A]n order granting or denying a motion to suppress evidence [presents] a question of constitutional fact, which requires a two-step analysis" on appellate review. State v. Asboth, 2017 WI 76, ¶10, 376 Wis.2d 644, 898 N.W.2d 541. "First, we review the circuit court's findings of historical fact under a deferential standard, upholding them unless they are clearly erroneous. Second, we independently apply constitutional principles to those facts." State v. Robinson, 2010 WI 80, ¶22, 327 Wis.2d 302, 786 N.W.2d 463 (citations omitted).

¶11 The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" and that "no Warrants shall issue, but upon probable cause[.]" U.S. Const. amend. IV. Article I, section 11 of the Wisconsin Constitution likewise provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated" and that "no warrant shall issue but upon probable cause[.]" Wis. Const. art. I, § 11. ¶12 "A [search or] seizure conducted without a valid warrant is presumptively unreasonable." State v. Brereton, 2013 WI 17, ¶24, 345 Wis.2d 563, 826 N.W.2d 369. The "ultimate touchstone of the Fourth Amendment is 'reasonableness[.]'" Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Whether a search is exempt from the warrant requirement involves balancing "the degree to which it intrudes upon an individual's privacy and … the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U.S. 295, 300 (1999).

¶13 In balancing these interests, courts have concluded that warrantless searches may comport with the Fourth Amendment if a search falls within a recognized exception. See e.g., Kentucky v. King, 563 U.S. 452, 459 (2011). The exception involved in this appeal is the emergency aid exception, which has been recognized by both the United States Supreme Court, see Caniglia, 141 S.Ct. at 1599, and the Wisconsin Supreme Court, see State v. Boggess, 115 Wis.2d 443, 449-50, 340 N.W.2d 516 (1983). "This exception states that the Fourth Amendment does not bar a government official from making a warrantless intrusion 'when the official reasonably believes that a person is in need of immediate aid or assistance.'" State v. Ware, 2021 WI.App. 83, ¶20, 400 Wis.2d 118, 968 N.W.2d 752 (citations omitted), review denied (WI Mar. 16, 2022) (No. 2020AP1559-CR); see also Lange v. California, 141 S.Ct. 2011, 2017 (2021) (recognizing the exigency associated with an officer's need to "'enter a home without a warrant to render emergency assistance to an injured occupant[,] to protect an occupant from imminent injury,' or to ensure his own safety" (...