State v. Ziedonis, 2004AP2888-CR.

• Citation: 707 N.W.2d 565,2005 WI App 249
• Decision Date: 04 October 2005
• Docket Number: No. 2004AP2888-CR.,2004AP2888-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. George Toland ZIEDONIS, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL>
• Court: United States State Supreme Court of Wisconsin

707 N.W.2d 565

2005 WI App 249

STATE of Wisconsin, Plaintiff-Respondent, v. George Toland ZIEDONIS, Defendant-Appellant.^†

No. 2004AP2888-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs August 30, 2005.

Opinion Filed October 4, 2005.

COPYRIGHT MATERIAL OMITTED

On behalf of the defendant-appellant, the cause was submitted on the briefs of Ellen Henak, Assistant State Public Defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and William C. Wolford, Assistant Attorney General.

Before WEDEMEYER, P.J., CURLEY and KESSLER, JJ.

¶ 1 CURLEY, J

George T. Ziedonis appeals from the judgment of conviction entered after he pled guilty to one count of possession of a firearm by a felon, contrary to WIS. STAT. § 941.29(2),¹ and one count of manufacture of a controlled substance, tetrahydrocannabinols (marijuana), contrary to WIS. STAT. §§ 961.14(4)(t) and 961.41(1)(h)2. Ziedonis contends that in denying his motion to suppress evidence that police discovered after a warrantless entry into his home, the trial court incorrectly concluded that the officers' warrantless entry was lawful under the community caretaker exception. Because we conclude that the entry was proper under the community caretaker exception, we affirm.

I. BACKGROUND.

¶ 2 On December 23, 2003, at approximately 2:00 a.m., Officers Brian Matte and Hector Sosa of the Milwaukee Police Department were dispatched to 2621 South 6th Street in the City of Milwaukee to back up another squad on a loose animal complaint. When the officers arrived at the scene, they observed two aggravated Rottweiler dogs that were running loose and chasing people around.

¶ 3 At least six officers tried, unsuccessfully, to corral the dogs using dog snares, for about an hour-and-a-half. Officer Matte testified that the dogs were "pretty vicious," and that although they did consider shooting them, they opted not to because "they appeared to be someone's pet[s]." A representative from the Milwaukee Area Domestic Animal Control Commission (Animal Control) testified that the organization handles stray and lost animals in Milwaukee County, takes calls from the Milwaukee Police Department on a daily basis, and would have been available to corral the two dogs on the night in question. When asked by the defense why the officers did not attempt to contact Animal Control, Officer Matte stated that he did not believe the service operated after midnight, and that in his four years at the Milwaukee Police Department, out of more than seventy-five animal complaints to which he has responded, he has never succeeded in getting Animal Control to come to his and his colleagues' aid.

¶ 4 Officer Matte spoke with Brenda Sanders, the caller who had alerted police, who informed him that the dogs belonged to the person who lived in the back portion of the house at 2621 South 6th Street. While still trying to corral the dogs, Officer Matte and the other officers set out to find the dogs' owner. The officers believed someone was inside 2621 South 6th Street because all the lights were on, and because one of the officers had been informed that a man, believed to be the lawful occupant, was there. Having learned that someone was expected to be inside, the officers made numerous attempts to contact the occupant. These attempts included having the sirens and air horns on, and using a loud speaker to identify themselves as Milwaukee police and to request the occupant's help with the dogs. The loud speaker was so loud that it attracted the attention of neighbors, but the officers nonetheless did not receive a response from the occupant.² The officers were unable to knock on the door or ring the doorbell because, had they approached the house, the dogs would have attacked.

¶ 5 The back portion of 2621 South 6th Street had a back door that could be seen from the alley behind the house. The back door consisted of a see-through glass storm door and an interior door. The interior door was open into the residence approximately four inches. Officer Matte told the court that when he saw the door ajar he thought "there was possibly something wrong with the person inside...." Between an hour and an hour-and-a-half after he arrived at the scene, Officer Matte eventually made his way to the back door without the dogs noticing. He testified that at this point, before entering the house, the specific facts that the lights were on, that there was an open door, that the residence was in a high-crime area, and that there had been no response despite numerous attempts, even though it looked like someone was living there, made him "fear[] for the[] safety" of the occupant. Officer Matte then opened the unlocked storm door, entered, and closed the storm door behind him to prevent the dogs from getting in. Standing by the interior door, for over two minutes, yelling as loud as he could, Officer Matte announced himself as the police, asked anyone inside to come to the door, and asked for help with the dogs. The entire time he was knocking on the door frame with his metal baton.

¶ 6 After he still did not receive a response, Officer Matte proceeded into the residence to look for signs of a struggle. He found himself in a kitchen area and observed a handgun on the kitchen table. With his service weapon unholstered, Officer Matte proceeded through the rest of the first floor to look for someone in need of help, or a body. Continuing to announce his presence as loud as he could, he started to walk upstairs, but before making it to the second floor he noticed an assault rifle and a pile of ammunition on a couch. Upon seeing the rifle, Officer Matte returned outside, and soon reentered more heavily armed and accompanied by two other officers.

¶ 7 Announcing their presence, the officers walked up to the second floor, into what appeared to be a living room area, and noticed drug paraphernalia in the form of glass pipes. The officers entered a bedroom and found numerous marijuana plants, as well as grow lights hanging from the ceiling and drug paraphernalia, including a scale and timers. Lastly, the officers entered another bedroom and saw a bed and what "looked like a body wrapped up in a blanket laying on the bed motionless." Announcing his presence, Officer Matte kicked the bed, hoping to get a reaction, but received none. He then pulled the blanket off the person and saw Ziedonis staring at him, conscious and fully awake. The room also contained a number of prescription drugs, as well as a marijuana pipe, all in plain view.

¶ 8 Having realized that Ziedonis was conscious, Officer Matte asked him about the dogs, and Ziedonis replied that they were downstairs. The officers stood Ziedonis up, walked him to the back of the house and asked him to help corral the dogs. He did and placed the dogs in a bathroom. Ziedonis was then arrested.

¶ 9 On December 27, 2003, Ziedonis was charged with one count of possession of a firearm by a felon, contrary to WIS. STAT. § 941.29(2),³ and one count of manufacture of a controlled substance, tetrahydrocannabinols (marijuana), more than four but not more than twenty plants, contrary to WIS. STAT. §§ 961.14(4)(t) and 961.41(1)(h)2.⁴

¶ 10 Later, Ziedonis filed a motion to suppress the admission into evidence of "any and all testimony concerning the guns and drugs, the discovery of the guns and drugs, and the discovery of anything within the defendant's residence[,]" on grounds that such evidence was the result of an unlawful invasion, search and seizure in violation of both the United States and the Wisconsin Constitutions. The trial court denied the motion and instead found that the officers lawfully entered the premises because their actions were in accordance with the community caretaker exception to the warrant requirement, and that all the drugs and evidence were in plain view, and thus properly subject to seizure.

¶ 11 On May 11, 2004, Ziedonis pled guilty to both counts. On the felony possession of firearm count, he was sentenced to sixty-three months' imprisonment, comprised of twenty-seven months of initial confinement, followed by thirty-six months of extended supervision. On the manufacture of controlled substance count, he was sentenced to forty-two months' imprisonment, comprised of eighteen months of initial confinement, followed by twenty-four months of extended supervision. The court ordered the two sentences to be served concurrently.⁵ This appeal follows.

II. ANALYSIS.

¶ 12 In reviewing the denial of a motion to suppress, this court will uphold the trial court's findings of fact unless they are clearly erroneous. See State v. Richardson, 156 Wis.2d 128, 137, 456 N.W.2d 830 (1990). The application of constitutional principles to the facts is a question of law, and we decide it de novo without deference to the trial court's decision. See State v. Guzman, 166 Wis.2d 577, 586, 480 N.W.2d 446 (1992).

¶ 13 The Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution both protect against unreasonable searches and seizures. See U.S. CONST. amend. IV;⁶ WIS. CONST. art. I, § 11.⁷ However, even though "warrantless searches are per se unreasonable under the fourth amendment," they are "subject to a few carefully delineated exceptions" that are "`jealously and carefully drawn.'" State v. Boggess, 115 Wis.2d 443, 449, 340 N.W.2d 516 (1983) (citation omitted).

¶ 14 One such exception is the community caretaker function, which arises when the actions of the police are "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Anderson, 142 Wis.2d 162, 166, 417 N.W.2d 411 (Ct.App.1987), rev'd on other grounds, 155 Wis.2d 77, 454 N.W.2d 763 (1990) (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)). To determine whether a particular activity...