State v. Paterson

• Decision Date: 10 June 1998
• Docket Number: No. 97-2066,97-2066
• Citation: 220 Wis.2d 526,583 N.W.2d 190
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Jeffry D. PATERSON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 190

583 N.W.2d 190

220 Wis.2d 526

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Jeffry D. PATERSON, Defendant-Appellant.

No. 97-2066.

Court of Appeals of Wisconsin.

Submitted on Briefs April 24, 1998.

Opinion Released June 10, 1998.

Opinion Filed June 10, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs of John O. Olson, of Braden & Olson of Lake Geneva.

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

Before BROWN, NETTESHEIM and ANDERSON, JJ.

NETTESHEIM, Judge.

Jeffry D. Paterson appeals from judgments of conviction entered after he pled guilty to manufacturing tetrahydrocannabinols (THC) and possession of improvised explosives. Paterson contends that the trial court erroneously denied his motion to suppress evidence discovered by officers after a warrantless entry into his home. The circuit court held that the officers' actions were justified as community caretaker activity. We conclude that the officers' entry into Paterson's home was not justified under the community caretaker exception to the search warrant requirement. We therefore reverse the judgments and remand for further proceedings.

FACTS

On November 4, 1996, at approximately 5:25 p.m., Michael Mehring, the Chief of Police in the Town of Burlington in Racine County, and two other officers were dispatched to Paterson's residence at 6630 Yahnke Road.

The dispatcher informed the officers that the department had received a call from a neighbor who lived approximately seventy-five to eighty yards from Paterson's home. The neighbor called to report suspicious activity at the residence and a possible burglary in progress. Mehring testified that the neighbor reported "that there was lights going on and off in the upper level of the residence characteristic with somebody moving about from room to room within the upper level of that residence turning on lights momentarily, turning them off and proceeding to another room ...." The dispatcher additionally informed the officers that the neighbor had called over to the Paterson home and had received no response. The neighbor also reported that the garage doors were open.

When Mehring arrived at the home he observed that the overhead garage door was "standing fully open." There was a pickup truck parked in the garage. There were lights on in the lower level of the home and one light on in the upper level. Mehring remained near the garage of the home while another officer walked around the residence to see if there was any activity within the home. According to Mehring, there were no signs of forced entry into the residence. The officers requested the sheriff's department to telephone the residence in order to make contact with any occupants of the home. After learning that the attempt was unsuccessful, Mehring entered a foyer area attached to Mehring testified that the door allowing access to the basement of the residence was closed but unlocked. The officers opened the door and announced their arrival. After receiving no response, the officers stepped inside and announced themselves again. Still receiving no response, the officers proceeded to enter the residence to "see if there was something amiss." Mehring testified that they then systematically checked each room. In the fourth room they entered, Mehring noticed marijuana plants hanging from floor joists. Mehring instructed the officers to secure the area and notified the Racine County Metro Drug Unit. The officers did not proceed with a further search of the residence at that time.

the garage which led to the basement portion of the residence.

While waiting for members of the drug unit to arrive, Mehring heard footsteps coming from the upper level of the home. Mehring went to the stairs and announced his presence. After announcing a second time, a young girl appeared at the top of the stairs. She informed the officers that neither her mother nor her mother's boyfriend was home. After approximately fifteen minutes, the girl's mother, Angela Pischke, entered the lower level through the foyer door. Officer Patrick Ketterhagen of the Metro Drug Unit arrived shortly thereafter.

Ketterhagen testified that he examined and tested the plants for the presence of THC. Pischke refused to consent to a search of the residence so Ketterhagen used the results of the plant test as the basis for obtaining a search warrant. Pischke informed Ketterhagen that the residence was owned by Paterson who was hunting nearby. Eventually, the search warrant was issued and the Metro Drug Unit conducted a search of the residence at 11:55 p.m. Based on this search, two additional search warrants were issued and searches of Paterson's residence were conducted on November 5 and 6.

On November 7, 1996, Paterson was charged as a party to the crime of manufacturing THC, tax stamp violations, possession with intent to deliver THC and possession of an electric weapon.

On December 19, 1996, the State filed a seventeen-count information. In addition to the original charges, Paterson was charged with possession of a short-barreled shotgun and eleven counts of possessing an improvised explosive device.

On January 9, 1997, Paterson filed a motion to suppress evidence. Paterson argued that "all searches of [his] residence on November 4, 5, and 6, 1996, with or without a search warrant were prohibited because each was based directly upon or were the fruit of an initial unlawful search of the defendant's residence." The court held a hearing on the motion on March 27, 1997. The court denied the motion finding that the officers' entry into the house was justified as community caretaker activity.

On April 15, 1997, Paterson pled guilty to one count of manufacturing THC (party to the crime) contrary to §§ 961.41(1)(h)2 and 939.05, STATS.; and to three counts of possessing an improvised explosive device contrary to § 941.31(2)(b), STATS. The remaining charges were dismissed. However, eight counts of possessing improvised explosives were read in for purposes of sentencing, as was the charge of possessing an electric weapon.

Paterson was sentenced to two years in prison on the charge of manufacturing THC, one consecutive year in prison on the possession of an improvised explosive device and one year consecutive for the second charge of possessing an improvised explosive device. Finally, the trial court imposed three years' probation, concurrent to the prison sentence, for the remaining explosives charge. Paterson now appeals.

DISCUSSION

When reviewing a trial court's denial of a motion to suppress, this court "will uphold a trial court's findings of fact unless they are against the great weight and clear preponderance of the evidence." State v. Richardson, 156 Wis.2d 128, 137, 456 N.W.2d 830, 833 (1990). However, whether a search or seizure passes statutory and constitutional muster presents a question of law which we review de novo. See id. at 137-38, 456 N.W.2d at 833.

Both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures. The warrantless search of a house is presumptively unreasonable. See Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097-98, 80 L.Ed.2d 732 (1984). However, "our laws recognize that, under special circumstances, it would be unrealistic and contrary to public policy to bar law enforcement officials at the doorstep." State v. Smith, 131 Wis.2d 220, 228, 388 N.W.2d 601, 605 (1986). Therefore, a handful of exceptions have been "jealously and carefully drawn" to balance the interests of the individual with those of the State. See State v. Monosso, 103 Wis.2d 368, 372, 308 N.W.2d 891, 893 (Ct.App.1981) (quoted source omitted).

The State argues that the officers' warrantless entry into Paterson's home was justified under the community caretaking exception. This exception was first recognized by our supreme court in Bies v. State, 76 Wis.2d 457, 251 N.W.2d 461 (1977). There, the court stated that "the 'community caretaker' function of the police which, while perhaps lacking in some respects the urgency of criminal investigation, is nevertheless an important and essential part of the police role." Id. at 471, 251 N.W.2d at 468.

The standard for evaluating whether police action was justified as "community caretaker" activity was set forth 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 concluded that the court must inquire as to whether, at the time of the conduct in question, the officer was engaged in "bona fide community caretaker activity." See id. The court must also weigh the public good arising from such activity against the intrusion into individual privacy. See id. The court must determine whether the ultimate standard under the Fourth Amendment of "reasonableness" has been met in light of the facts and circumstances of the case. See id. at 168, 169-70, 417 N.W.2d at 413, 414. To assist in this inquiry, Anderson set out four relevant considerations: (1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the search, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability and effectiveness of alternatives to the type of intrusion actually accomplished. See id. at 169-70, 417 N.W.2d at 414.

We now consider the facts of this case under the Anderson factors. ¹ We will discuss two of the factors--the attendant circumstances surrounding the search, and the degree of public interest and the exigency of the situation--in a single discussion. First, we consider the information provided by the neighbor who reported the incident. The neighbor reported that...