State v. Pinkard, No. 2008AP1204-CR.

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: PATIENCE DRAKE ROGGENSACK
• Citation: 327 Wis.2d 346,785 N.W.2d 592,2010 WI 81
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Juiquin Anthony PINKARD, Defendant-Appellant-Petitioner.
• Docket Number: No. 2008AP1204-CR.
• Decision Date: 15 July 2010

327 Wis.2d 346
785 N.W.2d 592
2010 WI 81

STATE of Wisconsin, Plaintiff-Respondent,
v.
Juiquin Anthony PINKARD, Defendant-Appellant-Petitioner.

No. 2008AP1204-CR.

Supreme Court of Wisconsin.

Argued Jan. 7, 2010.
Decided July 15, 2010.

785 N.W.2d 594

For the defendant-appellant-petitioner there were briefs by Richard L. Zaffiro, Wauwatosa, and oral argument by Richard L. Zaffiro.

For the plaintiff-appellant the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

PATIENCE DRAKE ROGGENSACK, J.

327 Wis.2d 349

¶ 1 We review a decision of the court of appeals ¹ affirming the circuit court's ² amended judgment convicting Juiquin Anthony Pinkard (Pinkard) of possession of cocaine with intent to deliver. In upholding the judgment of conviction, the court of appeals affirmed the circuit

327 Wis.2d 350

court's denial of Pinkard's motion to suppress evidence seized from his bedroom subsequent to the officers' warrantless entry of his home based upon an anonymous tip that two individuals in Pinkard's house appeared to be sleeping next to drugs, money and drug paraphernalia and that the door to the residence was standing open. The dispositive issues in this case are whether the officers' warrantless entry into Pinkard's home came about during the exercise of a bona fide community caretaker function, and if so, whether that function was reasonably exercised, thereby permitting the subsequent seizure of evidence that was in plain view. We conclude that under the circumstances of this case, the officers' warrantless home entry to ensure the health and safety of the occupants was undertaken as a bona fide community caretaker function, which was reasonably exercised. Accordingly, the officers lawfully seized evidence of a crime that was in plain view.

I. BACKGROUND

¶ 2 On August 24, 2006 at 8:55 a.m., City of Milwaukee Police Officer Mike Lopez (Lopez), received an anonymous tip in which the caller stated that he had just left 2439 South 7th Street, Pinkard's residence,

785 N.W.2d 595

in Milwaukee. The caller stated that inside that residence two people, "Big Boy" and his girlfriend, "Amalia," appeared to be sleeping; that located next to them was cocaine, money and a digital scale; and that the rear door to the residence was standing open. Lopez called City of Milwaukee Police Officer John Osowski (Osowski), a member of the Intelligence Division Gang Crimes Unit, on his cell phone and relayed what he had learned from the anonymous caller. Lopez further stated that he was concerned about the occupants of the residence. Lopez could not investigate the complaint

327 Wis.2d 351

because of a prior engagement, so he asked Osowski if he would check on the occupants of the residence.

¶ 3 Osowski received Lopez's call at 9:00 a.m. and afterward responded to Pinkard's residence,³ which he admitted "sounded like a drug house," with four other police officers from the Gang Crimes Unit. Pinkard's residence is the rear unit of a three-family house. The officers went to the back entrance that Osowski explained is the "main door" to Pinkard's residence that leads exclusively to Pinkard's unit. This entrance had one heavy, aluminum door that was standing three-quarters open. Remaining outside Pinkard's residence, the officers knocked on the open door and announced their presence.

¶ 4 After waiting 30-45 seconds and receiving no response, the officers then entered Pinkard's residence to "check the welfare of the occupants." Specifically, Osowski testified that they entered "[t]o make sure that the occupants that the caller had referred us were not the victims of any type of crime; that they weren't injured; that they weren't the victims of like a home invasion, robbery; that they were okay, and to safeguard any life or property in the residence."

¶ 5 From the officers' position just inside the rear door, they could see a bedroom directly to their left. That bedroom door also was standing open. The officers could see two people inside the bedroom, Pinkard and a woman, who "appeared to be sleeping." The officers entered the bedroom "just to see if [they] could awake [the occupants]" and again loudly announced themselves as the police. Neither of the occupants in the bed

327 Wis.2d 352

responded. The officers had to physically shake Pinkard to wake him. In plain view inside the bedroom, the officers seized cocaine, crack cocaine, marijuana and a digital scale. The officers then arrested Pinkard and seized a gun from underneath the mattress on which Pinkard had been sleeping.

¶ 6 Pinkard was charged with possessing a firearm as a felon, possession of cocaine with intent to deliver as a second or subsequent offense and felony bail-jumping. Pinkard waived his preliminary hearing. He then filed a motion to suppress all of the evidence the officers seized from his residence arguing that the officers' warrantless entry into his residence violated his rights under the Fourth Amendment and Article I, Section 11 of the federal and state constitutions, respectively.

¶ 7 At the suppression hearing, the circuit court implicitly found Osowski's testimony was credible because it found, as Osowski testified, that the officers arrived at Pinkard's residence "to inquire as to the health and safety of the individuals that were sleeping." The circuit court denied Pinkard's motion to suppress the evidence seized from in plain view, concluding that the officers' warrantless entry into Pinkard's

785 N.W.2d 596

residence was not unlawful because they were operating reasonably within their community caretaker function. However, the circuit court granted Pinkard's motion to suppress the gun seized from underneath his mattress because the court concluded the search went beyond the reasonable exercise of the officers' community caretaker function.

¶ 8 Pursuant to a plea agreement that encompassed three other pending cases against Pinkard, he pled guilty in the present case to the possession of

327 Wis.2d 353

cocaine with the intent to deliver and to felony bail-jumping. The charge of possession of a firearm as a felon was dismissed.

¶ 9 Pinkard moved for reconsideration of the circuit court's denial of his motion to suppress the evidence of drug possession seized from in plain view. In support of his motion, Pinkard attached two supplemental police reports, which he claimed demonstrated that the officers entered his residence "to commence a drug investigation, not because they were concerned about the occupants as community caretakers." The court denied Pinkard's motion, reiterating that the officers entered the residence as community caretakers.

¶ 10 Pinkard appealed the circuit court's "orders denying his suppression and related reconsideration motions." State v. Pinkard, No.2008AP1204-CR, 2009 WL 1048515, unpublished slip op., ¶ 4 (Wis.Ct.App. Apr. 21, 2009). The court of appeals affirmed. Id., ¶ 1. Following our recent decision in State v. Kramer, 2009 WI 14, 315 Wis.2d 414, 759 N.W.2d 598, the court of appeals concluded that the officers' actions based on the anonymous tip were "sufficient pursuant to Kramer to satisfy an articulation of an objectively reasonable basis to engage in a community caretaker function even if there [also] was a potential to exercise law enforcement functions during that investigation." Pinkard, No.2008AP1204-CR, 2009 WL 1048515, unpublished slip op., ¶ 10 (Wis.Ct.App. Apr. 21, 2009).

¶ 11 We granted review and now affirm.

II. DISCUSSION

A. Standard of Review

¶ 12 In reviewing the denial of a motion to suppress evidence, we will uphold a circuit court's findings

327 Wis.2d 354

of historical fact unless they are clearly erroneous. See State v. Fonte, 2005 WI 77, ¶ 11, 281 Wis.2d 654, 698 N.W.2d 594. However, we independently review the circuit court's application of constitutional principles to those facts. State v. Arias, 2008 WI 84, ¶ 11, 311 Wis.2d 358, 752 N.W.2d 748. "Accordingly, we independently review whether an officer's community caretaker function satisfies the requirements of the Fourth Amendment and Article I, Section 11 of the federal and state Constitutions." Kramer, 315 Wis.2d 414, ¶ 16, 759 N.W.2d 598 (citing State v. Kelsey C.R., 2001 WI 54, ¶ 34, 243 Wis.2d 422, 626 N.W.2d 777).

B. Community Caretaker Function Exercised in a Residence

¶ 13 The federal and state constitutions do not protect against all searches and seizures, but only "unreasonable searches and seizures." Arias, 311 Wis.2d 358, ¶ 25, 752 N.W.2d 748 (citing U.S. Const. amend. IV; ⁴ Wis. Const. art. I, § 11).⁵ "The ultimate standard set forth

785 N.W.2d 597

in the Fourth Amendment is reasonableness." Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). "Subject to a few well-delineated exceptions, warrantless searches are deemed per se unreasonable under the Fourth Amendment." State v. Faust, 2004 WI 99, ¶ 11, 274 Wis.2d 183, 682 N.W.2d 371;

327 Wis.2d 355

Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ("It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.") (internal quotations omitted).

¶ 14 The United States Supreme Court and courts of this state have recognized that a police officer serving as a community caretaker to protect persons and property may be constitutionally permitted to perform warrantless searches and seizures. See Cady, 413 U.S. at 448, 93 S.Ct. 2523; State v. Ziedonis, 2005 WI App 249, ¶ 14, 287 Wis.2d 831, 707 N.W.2d 565. Because we "interpret the provisions of the Fourth Amendment and Article I, Section 11 as equivalent in regard to community caretaker analyses," we look to the United States Supreme Court's interpretation of the community caretaker exception to the Fourth Amendment's warrant requirement. Kramer, 315 Wis.2d 414, ¶ 18, 759 N.W.2d 598.

¶ 15 The community caretaker exception has its origins in Cady. In Cady, Dombrowski's car was...