City of Menasha v. Gracia
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Defendant pleaded no contest to operating a motor vehicle with a prohibited alcohol content, fourth offense. Defendant appealed, challenging the circuit court's denial of his suppression motion and collaterally attacking a prior conviction as the result of an invalid waiver to the right to counsel. The Supreme Court affirmed, holding (1) the circuit court properly denied Defendant's motion to suppress, as the law enforcement officers' warrantless search of Defendant's bedroom was reasonable under the Fourth Amendment; and (2) despite a technically deficient plea colloquy, Defendant knowingly, intelligently, and voluntarily waived his right to counsel before he pleaded not contest to his second operating a motor vehicle under the influence offense in 1998, and thus the circuit court properly denied the collateral attack of his earlier conviction and thus properly considered the 1998 conviction in determining that Defendant had three prior relevant convictions.
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2013 WI 15 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2011AP813-CR & 2011AP814 State of Wisconsin, Plaintiff-Respondent, v. Juan G. Gracia, Defendant-Appellant-Petitioner. ____________________________________________________ In the matter of the refusal of Juan G. Gracia: City of Menasha, Plaintiff-Respondent, v. Juan G. Gracia, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 338 Wis. 2d 486, 808 N.W.2d 743 (Ct. App. 2011 - Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: January 31, 2013 October 23, 2012 Circuit Winnebago Barbara H. Key Abrahamson, C.J., dissents. (Opinion filed) Bradley and Prosser, JJ., join dissent. Prosser, J. dissents (Opinion filed.)Abrahamson, C.J., and Bradley, J. join dissent. NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner, there were briefs filed by John Holevoet and Holevoet Law Office, LLC, Madison, and oral argument by John Holevoet. For the plaintiff-respondent, the cause was argued by David H. Perlman, assistant attorney general, with whom on the brief was J.B. Van Hollen. 2 2013 WI 15 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2011AP813-CR & 2011AP814 (L.C. No. 2010CT424 & 2010TR4428) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent, FILED v. JAN 31 2013 Juan G. Gracia, Defendant-Appellant-Petitioner. Diane M. Fremgen Clerk of Supreme Court In the matter of the refusal of Juan G. Gracia: City of Menasha, Plaintiff-Respondent, v. Juan G. Gracia, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. Affirmed. No. ¶1 N. PATRICK CROOKS, J. This 2011AP813-CR & 2011AP814 is a review of an unpublished decision of the court of appeals1 that affirmed the circuit court. This case involves two distinct issues. The first issue is whether a warrantless search of Gracia's bedroom2 was a valid exercise of the community caretaker exception to the warrant requirement under the federal and state constitutions.3 The second issue is factually unrelated and involves whether Gracia can successfully collaterally attack his second operating a motor vehicle under the influence (OWI)4 from 1998 on the grounds that he did not validly waive his right to counsel. ¶2 Gracia moved to suppress evidence obtained during and resulting from the search on the grounds that the police had illegally entered his bedroom despite his objection and without a warrant. The circuit court for Winnebago County, the 1 State v. Gracia, No. 2011AP813-CR, City of Menasha v. Gracia, No. 2011AP814, unpublished slip op. (Wis. Ct. App. Dec. 28, 2011). 2 The parties do not dispute that a search occurred for purposes of the Fourth Amendment when the officers entered Gracia's bedroom and talked to him, which led to their discovery that Gracia was intoxicated. 3 The circuit court also found that Gracia unreasonably refused to submit to a test for intoxication. The refusal and the appeal from the judgment of conviction for fourth-offense OWI have been consolidated. 4 Wis. Stat. § 346.63, entitled "Operating under influence of intoxicant or other drug," prohibits drivers from both operating a motor vehicle under the influence and operating a motor vehicle with a prohibited alcohol content. See Wis. Stat. § 346.63 (2009-10). To avoid unnecessary confusion, this opinion will usually refer to violations of Wis. Stat. § 346.63 as "OWI" unless specifically noted. 2 No. 2011AP813-CR & 2011AP814 Honorable Barbara H. Key presiding, denied Gracia's motion to suppress, holding that the police officers were exercising their community caretaker function when they entered Gracia's bedroom after tracking him from a single-car accident, and their actions were constitutionally permitted. Gracia also challenged a prior conviction, claiming that he had not validly waived his right to counsel in that case. The circuit court found that Gracia validly waived his right to counsel during his 1998 no contest plea hearing. Gracia subsequently pleaded no contest to operating with a prohibited alcohol content, fourth offense, in violation of Wis. Stat. § 346.63(1)(b)5 with enhancer under § 346.65(2)(g)1. an alcohol fine The court of appeals affirmed on both issues. ¶3 Gracia's We hold motion to that the circuit suppress. The court test properly for the denied community caretaker exception was recently laid out by this court in State v. Pinkard and looks at whether a search or seizure took place, whether the police exercised a bona fide community caretaker function, and whether the intrusion was reasonable based on the attendant circumstances. State v. Pinkard, 2010 WI 81, ¶29, 327 Wis. 2d 346, 785 N.W.2d 592. Here, the police were following up on a major single-vehicle accident which left the front end of the car driven by Gracia extensively damaged and a traffic pole completely knocked down. They 5 validly entered the home on All references to the Wisconsin Statutes are to the 200910 version unless otherwise noted. 3 No. 2011AP813-CR & 2011AP814 consent of Gracia's brother and after his brother broke open Gracia's bedroom reasonably door, exercised without their any community prompting caretaker by the function they crossed the threshold into Gracia's bedroom. acted on their concern that Gracia might significant injury in the auto accident. police, have when The police sustained a Given these facts, the warrantless search was reasonable under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Wisconsin Constitution. ¶4 We further hold that despite a technically deficient plea colloquy, Gracia knowingly, intelligently, and voluntarily waived his right to counsel before he pleaded no contest to his second OWI in 1998, a violation of Wis. Stat. § 346.63(1)(b) (1997-98), operating with a prohibited alcohol concentration.6 He understood the representation. difficulties and disadvantages of self- He had familiarity with the role of lawyers, and he made a cost-benefit decision not to hire an attorney because he was guilty and the district attorney offered him the minimum penalty. The circuit court properly denied the collateral attack of his earlier conviction and thus considered the 1998 conviction in determining that Gracia had three prior relevant convictions. 6 Wisconsin has a progressive penalty system for OWIs in which prior convictions are used to determine the appropriate penalties. See Wis. Stat. § 346.65. The penalty structure for these convictions changes depending on the number of prior similar convictions the driver has. Wisconsin Stat. § 343.307 enumerates relevant prior conduct for penalties under Wis. Stat. § 346.65. 4 No. I. ¶5 2011AP813-CR & 2011AP814 BACKGROUND This case presents two distinct issues for this court to decide. Each issue has unrelated facts. The first issue is related to a warrantless search, and the second is a collateral attack of a prior conviction. The facts of each will be presented in turn. ¶6 The City of Menasha Police Department received report of a traffic signal down that was impeding traffic. a The signal, located on a median, had been completely ripped from the ground, and was lying half in the median and half in the road. It appeared from the scene that a vehicle had struck the signal and then left. At the scene, the police found a mangled license plate lying next to the damaged traffic signal; the license plate number 228JJD was listed as belonging to a 1999 Buick Regal LS. ¶7 After some investigation,7 the police arrived at a trailer home where Juan G. Gracia ("Gracia") lived, and they found the Buick Regal in the driveway. been in an accident. Its front The Buick had clearly license plate was missing. There was significant front-end damage with pieces of the front 7 The license plate found at the scene was registered to Jesus Gracia-Valenzuela. The officers went to the address connected to the license plate and did not find the vehicle. They also checked another address for the car's registered owner on Jefferson Street. The police then learned from the people at that address that the Gracias no longer lived there. The police checked another address. Then a family member of the Gracias told police that Juan Gracia usually drove that vehicle and gave the police his address on Wendy Way. 5 No. bumper missing. door panel. 2011AP813-CR & 2011AP814 There were yellow markings on the side of the The front end had been caved in, as if the car had struck a pole, and a pair of eyeglasses and a hat sat on the front passenger seat. According to the officers, the damage seemed fresh. ¶8 When the police officers arrived at the trailer home, the lights were off inside, and no one answered the door. As the police were about to leave, a pickup truck arrived driven by Jaime Gracia, who told police he was Gracia's brother and lived at that residence with Gracia. Jaime Gracia stated that his brother should be inside. The officers asked if they could come inside, they explaining that were worried about Gracia's potential injuries and that they needed to make sure he was okay. Jaime Gracia asked them to wait outside and went into the house by himself. After several minutes, he allowed the officers inside and told them that Gracia had locked himself in his bedroom. Jaime Gracia brought bedroom door. Inside his room, Gracia yelled in Spanish and English, telling them to "go away." Gracia tried the door handle. Lenss, testified that Jaime the officers to Gracia's Both the officers and Jaime One of the officers, Officer Gracia then "put through the door and opened the bedroom door." his shoulder Once the door was open, the officers entered the room and made contact with Gracia, who was lying on the bed. The officers observed Gracia's bloodshot eyes, slurred speech, and the strong odor of intoxicants emanating from Gracia. 6 Gracia eventually admitted No. to driving the Buick. 2011AP813-CR & 2011AP814 The officers then arrested Gracia for operating a motor vehicle while intoxicated. ¶9 Gracia moved to suppress the evidence of intoxication obtained after the police entered his bedroom. his At the suppression hearing, the State argued that the community caretaker exception to the warrant requirement applied. circuit court agreed and denied the suppression motion.8 pleaded no contest to operating a motor vehicle The Gracia with a prohibited alcohol content, fourth offense, in violation of Wis. Stat. § 346.63(1)(b) and then appealed. The court of appeals affirmed the circuit court's denial of the suppression motion. On appeal, Gracia also collaterally attacked a prior conviction as the result of an invalid waiver of the right to counsel. Additional relevant facts will be incorporated throughout the opinion. II. ¶10 STANDARD OF REVIEW This court reviews motions to suppress by examining the constitutional challenge to the search. conduct has unreasonable violated searches constitutional fact." the and constitutional seizures is "Whether police guarantees a against question of State v. St. Martin, 2011 WI 44, ¶16, 334 8 Gracia also refused to take a test for intoxication. The circuit court held a joint suppression and refusal hearing. The only grounds Gracia alleges for the refusal is the constitutionality of the search. The refusal will not be dealt with separately in this opinion because in this situation, it rises and falls with the community caretaker exception analysis. Because we find the entry a valid exercise of the community caretaker function, the refusal was unreasonable. 7 No. 2011AP813-CR & 2011AP814 Wis. 2d 290, 800 N.W.2d 858 (citations omitted). the circuit apply[ing] those standard." ¶11 court's findings of historical facts facts We defer to while "independently the constitutional to Id. We review de novo "[w]hether a defendant knowingly, intelligently, and voluntarily waived his Sixth Amendment right to counsel." 699 N.W.2d State v. Ernst, 2005 WI 107, ¶10, 283 Wis. 2d 300, 92. In that review, we principles to the facts of the case. apply constitutional State v. Klessig, 211 Wis. 2d 194, 204, 564 N.W.2d 716 (1997). III. ANALYSIS ¶12 First we determine if the police exercised a valid community caretaker function; if they did not, and no other exception applied, the warrantless search would violate both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Wisconsin Constitution. Second we look at whether Gracia can collaterally attack his 1998 conviction for second-offense OWI on the grounds that he did not knowingly, intelligently, and voluntarily waive his right to counsel because he was not aware of the difficulties and disadvantages of self-representation.9 A. Police Search and the Community Caretaker Function 9 If a collateral attack is successful, the prior conviction cannot be used to enhance the penalties for the current conviction. See State v. Peters, 2001 WI 74, ¶22, 244 Wis. 2d 470, 628 N.W.2d 797. 8 No. ¶13 2011AP813-CR & 2011AP814 There are two searches in this case the entry of the trailer and the entry of the bedroom. Because Jaime Gracia consented to the police entry to the trailer and Gracia does not object to that, we look only at the search of the bedroom.10 Gracia argues that the search of his bedroom was not a valid exercise of the police's community caretaker function. The State asks this court to affirm the circuit court's finding that the community caretaker function was validly exercised in this situation. ¶14 same The community caretaker exception is analyzed in the manner State v. under both the Kramer, 2009 WI state 14, and ¶18, federal 315 N.W.2d 598; Pinkard, 327 Wis. 2d 346, ¶14. Wis. constitutions. 2d 414, 759 This court looks at "the totality of the circumstances as they existed at the time of the police conduct." Kramer, 315 Wis. 2d 414, ¶30. 10 The consensual entry into the trailer home is more like Illinois v. Rodriguez, 497 U.S. 177 (1990), than Georgia v. Randolph, 547 U.S. 103 (2006), because when consent was being given to enter the home, no one objected. The United States Supreme Court has allowed warrantless entry when police obtain voluntary consent of an occupant who shares authority over the common area with a co-occupant even when later the co-occupant objects to the use of evidence obtained. See Illinois v. Rodriguez, 497 U.S. 177. In Georgia v. Randolph, 547 U.S. 103, the United States Supreme Court held that "a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him." Id. at 106. See also State v. St. Martin, 2011 WI 44, ¶6, 344 Wis. 2d 290, 800 N.W.2d 858 (holding that "the rule stated in Randolph does not apply . . . because we conclude that St. Martin was not physically present at what the United States Supreme Court called the 'threshold colloquy.'") 9 No. ¶15 This court recently 2011AP813-CR & 2011AP814 interpreted the community caretaker function of police in Pinkard, 327 Wis. 2d 346. That case laid out a three-step test, with four relevant factors in deciding the third step, placing the burden of proof on the State. Id., ¶29. The steps are as follows: (1) [W]hether a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, whether the police were exercising a bona fide community caretaker function; and (3) if so, whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised within the context of a home. Id., ¶29. interest In examining the third step, "we balance the public or need that is furthered by the officers' conduct against the degree and nature of the intrusion on the citizen's constitutional interest." Id., ¶41. The four factors considered in this balancing test are as follows: (1) [T]he 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, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished. Id., ¶42 (citations omitted). ¶16 The parties do not dispute that the entry into the bedroom constituted a search within the meaning of the Fourth Amendment. The parties disagree on the second and third steps of the community caretaker test. 10 No. ¶17 The second step requires 2011AP813-CR & 2011AP814 determining whether the officers had an objectively reasonable basis to believe Gracia was hurt and in need of assistance, so that they were exercising a bona fide community caretaker function. Pinkard, 327 Wis. 2d 346, ¶29. To make that determination, we look at the totality of the circumstances at the time of the conduct. ¶18 Gracia objectively that reasonable assistance. (1973), argues Gracia reviewing the basis cites a writ to Cady of police v. Id., ¶31. did not believe Gracia Dombrowski, habeas corpus have from 413 a an needed U.S. 433 conviction upheld in State v. Dombrowski, 44 Wis. 2d 486, 171 N.W.2d 349 (1969), for the proposition that for police conduct to be a bona fide community caretaker function it must be "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." U.S. at 441. Gracia acknowledges that in Cady, 413 Kramer, 315 Wis. 2d 414, we interpreted the "totally divorced" language in Cady as requiring only an objectively reasonable basis, but Gracia argues that the subjective intent of police that included a desire to, in part, investigate the reason for the crash, cuts against the reasonableness of the officers' belief that Gracia was hurt. ¶19 context, See Id., ¶31. As we explained in Kramer, "in a community caretaker when under the totality objectively reasonable function shown, that determination officer's is subjective law basis of for enforcement 11 the the is circumstances community not caretaker negated concerns." an by Id., the ¶30. No. 2011AP813-CR & 2011AP814 Kramer described the nature of police work as "multifaceted" and explained that "the officer may have law enforcement concerns, even when the officer has an objectively reasonable basis for performing a Furthermore, community Kramer caretaker underscored the function." perverse Id., nature ¶32. of not allowing police to have any investigatory purpose while carrying out their community caretaker function: [T]o interpret the "totally divorced" language in Cady to mean that an officer could not engage in a community caretaker function if he or she had any law enforcement concerns would, for practical purposes, preclude police officers from engaging in any community caretaker functions at all. This result is neither sensible nor desirable. Id., ¶34. In light of "the multifaceted nature of police work," in the totality of the circumstances, the officers' subjective intent does not invalidate an otherwise reasonable exercise of the community caretaker function.11 ¶20 Gracia argues that the officers did not objectively reasonable basis to believe he was hurt. have an He thinks that this case is more like State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505, than State v. Pinkard because the only evidence the officers used to determine Gracia might have been hurt was a damaged car. In Ultsch, the police investigated a traffic accident where a driver had smashed into a brick wall 11 The subjective intent cuts both ways here. As explained above, the officers continually showed their concern for Gracia by explaining to Gracia's brother that Gracia might be hurt. This continued concern could reasonably be viewed as demonstrating the subjective belief of the police that Gracia was hurt and needing assistance. 12 No. and fled the scene in the vehicle. 2011AP813-CR & 2011AP814 331 Wis. 2d 242, ¶2. The police found the damaged car at the end of a long driveway. Id., ¶2. When the police saw someone leaving the house who turned out to be Ultsch's boyfriend, they did not express any concern about the driver's safety. See id., ¶3. The police eventually went to the house, entered the unlocked front door, and found sleeping. their way Id., to ¶4. the They driver's bedroom transported her where to the she was sheriff's department where they performed both field sobriety and chemical breath tests, after which they arrested her. circuit court denied her motion to suppress Id., ¶5. evidence The on the grounds that the police were exercising a bona fide community caretaker function. Id., ¶¶6-7. The court of appeals disagreed, holding that it did not believe that the police had "an objectively reasonable basis to believe Ultsch was in need of assistance." ¶21 Id., ¶¶21, 30 (citations omitted). Although some of the facts here appear similar to those in Ultsch, the officers in this case had an objectively reasonable basis to believe Gracia needed assistance. First, there was more damage to Gracia's vehicle than there was to Ultsch's. In Ultsch, the damage was confined to the left front fender and was described by the court of appeals as "limited damage." Id., ¶¶19, 28. Here, not only was a traffic signal completely knocked down, but the front end of the vehicle was essentially caved in, pieces of the bumper were left at the scene, and the front license plate was entirely ripped off. Second, the police consistently stated their concern for Gracia 13 No. 2011AP813-CR & 2011AP814 in this case, whereas in Ultsch, the police did not even tell Ultsch's boyfriend about their suspicion that Ultsch might be injured and in need of assistance. Although it is only one factor to be taken into consideration in judging the objective beliefs of police, the subjective relevant. In this situation, intent the of the police officers immediately is told Gracia's brother about their concern for Gracia's safety. ¶22 There were other facts supporting reasonable view that Gracia was hurt. an objectively As discussed above, the damage at the scene of the accident and to the car observed at Gracia's house was extensive. In addition, Gracia's brother appeared concerned about Gracia's safety. After going into the house without police, he returned to the front door and allowed the police inside the house, and he subsequently broke open the door to Gracia's bedroom. The brother's actions provide further support that there was a genuine belief that Gracia might be in need of assistance. For all of these reasons, the police were exercising a bona fide community caretaker function. ¶23 step of Even if the police have a bona fide purpose, the third the analysis requires that the community function be reasonably exercised by the officers. Wis. 2d 346, ¶29. public interest caretaker Pinkard, 327 This determination is made by "balancing a or need that is furthered by the officer's conduct against the degree of and nature of the restriction upon the liberty interest of the citizen," Kramer, 315 Wis. 2d 414, ¶40, and the four factors discussed 14 earlier guide the No. determination. 2011AP813-CR & 2011AP814 None of the factors is, by itself, dispositive. See generally, id. ¶24 In Pinkard the community caretaker function was reasonably exercised by the officers because the public interest in the search outweighed Pinkard's privacy interests. In Pinkard, the police got an anonymous tip that there were two people sleeping near what appeared to be illegal drugs. Pinkard, 327 Wis. 2d 346, ¶2. confirmed its The police went to investigate the tip and accuracy. Id., ¶3. After announcing their presence with no reaction from the occupants, who appeared to be sleeping, the police entered the house. Id., ¶4. Once inside, police found a digital scale and drugs, along with a firearm. Id., ¶5. Pinkard moved to suppress the evidence because there was no warrant. Id., ¶6. The circuit court found that the police conduct was a valid exercise of the community caretaker function, and we agreed. Id., ¶¶7, 11. We will now examine the four factors in regard to Gracia's situation. ¶25 The first factor in the balancing test is the degree of the public interest and the exigency of the situation. Id., ¶42. The public has a substantial interest in ensuring the safety of drivers in serious traffic accidents. See State v. Ziedonis, 2005 WI App 249, ¶29, 287 Wis. 2d 831, 707 N.W.2d 565 (finding a significant public interest in a situation where "the officers did not know the physical condition of the person and reasonably concluded that the situation was an emergency.") There was also some exigency in this situation. The police promptly began investigating the accident and were at Gracia's 15 No. 2011AP813-CR & 2011AP814 home within about 45 minutes of the accident being reported. If Gracia had been seriously injured in the accident, quick medical assistance would have been necessary. ¶26 The surrounding second the factor search, looks including at the the "time, circumstances location, degree of overt authority and force displayed." Wis. 2d 346, ¶42. the Pinkard, 327 This factor also weighs in favor of the reasonable exercise of the community caretaker function in this case. Although the search took place in a private place, the privacy interests infringed upon were minimized by the facts of this situation. The police displayed significantly less overt authority here than in Ultsch. The police entered Gracia's home on the consent of his brother, Jaime Gracia, and did not enter Gracia's bedroom to check on him until his brother broke open Gracia's door.12 The police were escorted by a seemingly concerned co-tenant the entire time they were in Gracia's home. In contrast, the police in Ultsch entered the house without permission and then walked around unattended until they found Ultsch sleeping in bed. 331 Wis. 2d 242, ¶4. the use officers interaction. did not any force Furthermore, here throughout the entire Both the brother and the police tried the handle 12 There is nothing to indicate that the police did anything to encourage Jaime Gracia to break open the door. In fact, officer Matthew Lenss testified at a hearing that he did not ask Jaime to break open the door, stating, "I actually remember looking at Officer Swenson in disbelief thinking to myself, wow, he just put his shoulder through the door. I never asked him to do that." 16 No. 2011AP813-CR & 2011AP814 of the bedroom door, but when the door did not open, the police made no further attempts to gain entry. any force in this situation was The only person to use Gracia's brother, but since there was no evidence that the police encouraged that behavior, his actions should not be imputed to the police. No one argues that the officers brandished their weapons or threatened anyone involved. Essentially, the officers found themselves in front of an open door and walked across the threshold to check on someone they thought was injured from a serious car accident, which was not unreasonable. ¶27 The third factor is irrelevant because the search was not of an automobile, so we look next at the fourth factor: the possible alternatives intrusion by police. one possible and the actual See Pinkard, 327 Wis. 2d 346, ¶42. Here, alternative their would effectiveness have been brother evaluate and monitor his safety. sensible, the questionable in effectiveness this of situation. such to to have Gracia's While this appears an Gracia's alternative brother was is very excited by this situation so excited that he forcibly broke open Gracia's bedroom door. It is unclear that he would have been able to safely administer care to an injured person or to get the help needed. Additionally, police officers are trained to deal with situations like this, they were already there, and they believed that Gracia might be injured; therefore, although an alternative existed, it did not itself make this unreasonable exercise of the community caretaker doctrine. 17 an No. ¶28 Gracia bedroom, he away." Gracia emphasizes yelled for the the believes fact this that while outside persons that 2011AP813-CR & 2011AP814 the shows that inside door the to his "go officers' community caretaker purpose was not bona fide, and also that it made what the police did unreasonable. second and third steps of the analysis are not satisfied. police to go away does Therefore, he says, the community caretaker exception While the fact that Gracia told the make this case distinguishable from Pinkard (where the occupants of the house were unresponsive to the police yelling), conclusion that the caretaker function it does not police could under such responsiveness is not dispositive. necessarily not exercise lead a circumstances. to the community Gracia's In Pinkard, the only reason the police had for thinking that the people needed assistance was the fact that they were sleeping next to drugs. See id., ¶39. Here, as noted earlier, there was a serious car accident that the police were looking into. Pinkard stressed the importance of the occupants' unresponsiveness because in that case, if the people were alert, there would have been no reason at all to think they would need any assistance. could still have been seriously hurt even Here, Gracia though he wanted police to go away.13 13 In a footnote in his brief, Gracia states, "[e]ven if he had been injured, Mr. Gracia would have a constitutional right to decline unwanted medical assistance," citing Cruzan by Cruzan v. Dir. Mo. Dep't of Health, 497 U.S. 261, 278 (1990) and Lenz v. L.E. Phillips Career Dev. Ctr., 167 Wis. 2d 53, 63, 482 N.W.2d 60 (1992). Petitioner's Brief at 17 n.1. This argument is undeveloped, and we do not usually address undeveloped 18 No. ¶29 2011AP813-CR & 2011AP814 The facts of this case, when balanced in light of the totality of the circumstances, lead us to the conclusion that this was a function. reasonable The exercise police were in legitimate concern for Gracia. of the the community home by caretaker consent with Although Gracia yelled through the door for them to "go away," Gracia's brother broke open the bedroom door. The police crossed the threshold and immediately noticed Gracia's intoxication. This is somewhat akin to a plain view situation: the person the police were concerned about was right in front of them, and they talked to him.14 very different situation than if the police This was a themselves had broken open the bedroom door to check on someone they thought was injured. arguments. See Saddle Ridge Corp. v. Board of Review for Town of Pacific, 2010 WI 47, ¶46 n.23, 325 Wis. 2d 29, 784 N.W.2d 527. Further, this assertion does not change our analysis of whether the police were exercising a bona fide community caretaker function and whether they reasonably exercised that function. 14 The plain view requires four things: exception to the warrant requirement The police must have a prior justification for the intrusion which placed them in the position to observe the evidence in plain view, the evidence must be in plain view, the discovery must be inadvertent, and the item seized, in itself or in itself with facts known to the officer at the time of the seizure, provides probable cause to believe there is a connection between the evidence and criminal activity. State v. McGovern, 77 Wis. 2d 203, 210, 252 N.W.2d 365 (1977). The situation the police found themselves in after Jaime Gracia broke open the door has many of the same characteristics of a plain view discovery. 19 No. ¶30 2011AP813-CR & 2011AP814 Under the totality of the circumstances, the community caretaker exception to the warrant requirement resulted in permissible police conduct. The community caretaker function was the reasonably public interest exercised in the by search police officers outweighed because Gracia's the privacy interests. B. Collateral Attack of 1998 Conviction ¶31 Due to the fact that the charge was fourth-offense OWI, Gracia also collaterally attacks his 1998 no contest plea on the grounds that he did not knowingly, intelligently, and voluntarily waive his right to counsel. ¶32 At the July 6, 1998, plea hearing in the circuit court for Outagamie County, the Honorable Michael W. Gage presiding, Gracia pleaded no contest to second-offense operating with a prohibited alcohol content. At the plea hearing, the ordinary question-answer colloquy found in Wis JI Criminal SM-30 was not used. Instead, the judge asked questions of Gracia and learned the following facts: Gracia was 23 years old at the time, had graduated from high school, had attended some college, had been working the same job for three years, and was earning $11.50 per hour. The judge also talked to Gracia about explaining that Gracia had a right to an attorney. his rights, He asked if Gracia had decided to proceed pro se, explaining that Gracia may earn enough money to hire an attorney. He further explained that Gracia may qualify for appointment of an attorney, and if he did not qualify, Gracia could still get an appointed lawyer but would need to reimburse the court for the costs of the 20 No. appointed attorney. 2011AP813-CR & 2011AP814 The judge also confirmed that Gracia had not looked into obtaining counsel. ¶33 On August collateral-attack 3, hearing 2010, to the circuit determine if court Gracia held a knowingly, intelligently, and voluntarily waived his Sixth Amendment right to counsel before he pleaded no contest to his second OWI in 1998. Both Gracia and the State agree that Gracia made a prima facie showing that the 1998 waiver was invalid because the judge accepting the waiver of counsel did not use a colloquy which included an explanation of the ways that an attorney might be helpful to him. explanation In other words, there was not a significant of the representation. difficulties and disadvantages of self- At the collateral attack hearing, Gracia stated that he did not hire an attorney in 1998 because he was guilty and the State had recommended the minimum. Gracia also asserted that he did not know during the 1998 hearing that a lawyer could look into defenses other than innocence. Gracia admitted that in 1998 he understood that a lawyer could "go to court" for him and that he television. ¶34 had some familiarity with lawyers through He was also aware of the O.J. Simpson trial. At the hearing, the circuit court found that Gracia's testimony was "forthright to an extent . . . [a]lthough somewhat self-serving when indicating attorney could do." high school and did that he had no idea what an The court noted that Gracia had finished not have circuit court stated: 21 education deficiencies. The No. 2011AP813-CR & 2011AP814 I'm going to find in this case that he made the conscious decision. He knew basically that a lawyer would be able to possibly help him out but he decided not to because he just didn't think that in the end result it was more of a cost benefit analysis and that's why he didn't consider talking to the lawyer. Because of these findings, the circuit court held that Gracia knowingly, intelligently, and voluntarily waived his right to an attorney in his 1998 plea hearing; therefore, his collateral attack to his second OWI conviction failed, making the charge that he faced a fourth offense. Gracia appealed. The court of appeals affirmed. ¶35 This court reviews de novo whether a defendant validly waived his or her right to counsel although we benefit from the analysis of the circuit court and the court of appeals. 283 Wis. 2d 300, ¶10. Ernst, This court illustrated the requirements for a valid waiver of counsel in Klessig, 211 Wis. 2d 194. To prove such a valid waiver of counsel, the circuit court must conduct a colloquy designed to ensure that the defendant: (1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charge or charges against him, and (4) was aware of the general range of penalties that could have been imposed on him. Id. at 206. A defendant makes a prima facie showing by showing a violation of these colloquy requirements and can then attempt to collaterally attack that prior conviction. 2d 300, ¶25. Ernst, 283 Wis. After the prima facie case is made, the State must then prove by clear and convincing evidence that the plea was made knowingly, intelligently, and voluntarily. 22 Id., ¶27. No. ¶36 made a waiver 2011AP813-CR & 2011AP814 As noted above, the State and Gracia agree that he prima did facie not showing because sufficiently cover the the judge accepting requirements in his the colloquy. Gracia specifically challenges whether he was made aware "the of difficulties and disadvantages of self- representation," and therefore did not knowingly, intelligently, and voluntarily waive his right to counsel in 1998. Gracia cites Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980), for the proposition that to satisfy that requirement he must "have an awareness of the technical rules governing proceedings and an attorney's role during them." Reply Brief at 9. the Petitioner's Pickens states only that the defendant must have "an awareness that there are technical rules . . . and that presenting a defense is not a simple matter of telling one's story." Id. at 563 (emphasis added). We are persuaded by the court of appeals' recent interpretation of Pickens that the law requires that the defendant "understand the role counsel could play in the proceeding," not that the defendant must understand every possible defense. State v. Schwandt, No. 2011AP2301-CR, unpublished slip op., ¶14 (Wis. Ct. App. May 16, 2012). ¶37 The 1998 and 2010 hearings demonstrate that Gracia knowingly, intelligently, and voluntarily waived his right to counsel in 1998. At the 2010 hearing, Gracia explained that he did not hire an attorney in 1998 because he was guilty and the recommendation was for the minimum. This demonstrates a calculated decision on Gracia's part not to spend the money to hire an attorney in such a situation. 23 The judge in 2010 found No. that Gracia's indicating 2011AP813-CR & 2011AP814 testimony was "somewhat he idea what that had no an self-serving attorney when could do," pointing to the fact that Gracia had no educational deficiencies and he had completed high school and attended college briefly. Gracia testified 12 years after he initially waived his right to counsel, he had additional convictions in the intervening years, and at that point he faced an enhanced penalty for his 1998 conviction. We agree with the circuit court's determination that when he waived his right to counsel Gracia made a costbenefit decision and knew what he was giving up. ¶38 Gracia also briefly raises the point that the court in 1998 did not make a finding of competency to proceed pro se. As the court of appeals noted, he does not argue that he was not competent to proceed pro se. There is nothing in the record that would support such a determination. Gracia graduated from high school and attended college for a brief period of time studying engineering. He does not appear to have any problems that to would cause him lack competence to proceed pro se. Klessig, 211 Wis. 2d at 212. ¶39 Because he knowingly, intelligently, and voluntarily waived his right to counsel, his waiver was valid, and the prior conviction stands. IV. ¶40 Gracia's caretaker We hold motion to exception that the CONCLUSION circuit suppress. was The recently court test laid out properly denied for the community by this court in Pinkard and looks at whether a search or seizure took place, 24 No. 2011AP813-CR & 2011AP814 whether the police exercised a bona fide community caretaker function, and whether the intrusion was reasonable based on the attendant circumstances. Pinkard, 327 Wis. 2d 346, ¶29. Here, the police were following up on a major single-vehicle accident which left the front end of the car driven by Gracia extensively damaged and a traffic validly entered the pole home completely on consent of knocked down. Gracia's They brother and after his brother broke open Gracia's bedroom door, without any prompting by the police, reasonably exercised their community caretaker function when they crossed the threshold into Gracia's bedroom. The police acted on their concern that Gracia might have sustained a significant injury in the auto accident. Given these facts, the warrantless search was reasonable under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Wisconsin Constitution. ¶41 We further hold that despite a technically deficient plea colloquy, Gracia knowingly, intelligently, and voluntarily waived his right to counsel before he pleaded no contest to his second OWI in 1998, a violation of Wis. Stat. § 346.63(1)(b) (1997-98), operating He understood the representation. with a prohibited difficulties and alcohol concentration. disadvantages of self- He had familiarity with the role of lawyers, and he made a cost-benefit decision not to hire an attorney because he was guilty and the district attorney offered him the minimum penalty. The circuit court properly denied the collateral attack of his earlier conviction and thus considered 25 No. 2011AP813-CR & 2011AP814 the 1998 conviction in determining that Gracia had three prior relevant convictions. By the Court. The decision of the court of appeals is affirmed. 26 No. ¶42 SHIRLEY S. ABRAHAMSON, Justice Prosser's dissent. 2011AP813-CR & 2011AP814.ssa C.J. (dissenting). I join I write separately to discuss the interplay of the consent doctrine and the community caretaker function. two I recognize that consent and community caretaker are distinct exceptions to the Fourth Amendment's warrant requirement. ¶43 An unaddressed issue in the present case is how the defendant's bedroom unequivocal affects the refusal to community permit the caretaker search of analysis. his More specifically, I ask whether the community caretaker exception can justify a warrantless search when there is an explicit and unequivocal refusal by the defendant to permit entry so that he may be taken care of thus thwarting the justification for the community caretaker exception. ¶44 The defendant officers to "go away." permit entry Supreme at Court the clearly and explicitly told police This is the same unequivocal refusal to threshold rendered a for which warrantless the search United States unreasonable in Georgia v. Randolph, 547 U.S. 103 (2006). ¶45 Notwithstanding the unaddressed issue of the effect of refusal on the analysis of the present case, we have neither caretaker consent nor function, a valid in the community caretaker exception. ¶46 I am authorized to state that Justices BRADLEY and DAVID T. PROSSER join this opinion. 1 ANN WALSH No. ¶47 DAVID T. PROSSER, J. 2011AP813-CR & 2011AP814.dtp (dissenting). The primary issue presented in this case is whether police entry into the defendant's Fourth bedroom without Amendment.1 resulting in a The search a warrant majority and an was lawful concludes arrest, was that under the permitted the entry, by community caretaker exception to the warrant requirement. the I disagree and respectfully dissent. I ¶48 The Fourth Amendment to the United States Constitution reads as follows: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. ¶49 privacy Although the Fourth Amendment protects a variety of interests in a variety of settings, the chief evil identified in the text is the unauthorized physical entry of a person's home. United States v. United States Dist. Court, 407 U.S. 297, 313 (1972). 1 This court has ordinarily interpreted the protections of the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution as coextensive. State v. Artic, 2010 WI 83, ¶28, 327 Wis. 2d 392, 786 N.W.2d 430, cert. denied, 131 S. Ct. 671 (2010) (citing State v. Johnson, 2007 WI 32, ¶20, 299 Wis. 2d 675, 729 N.W.2d 182). Hence, the analysis in this dissent also applies to Article I, Section 11 of the Wisconsin Constitution. 1 No. ¶50 "subject 2011AP813-CR & 2011AP814.dtp Warrantless searches are deemed per se unreasonable, only to a few delineated exceptions."2 specifically established and well- Thus, police may not enter a person's home without a warrant unless they are operating under one of the well-delineated exceptions. This is true even when a person in the home would be subject to arrest without a warrant if the person stepped outside. ¶51 The most obvious exceptions to the warrant requirement for the search of a home are consent3 and exigent circumstances,4 including hot pursuit. The warrantless search of a probationer's home by a probation officer also is an established exception.5 None of these exceptions apply to the search of the defendant's bedroom in this case. ¶52 Thus, the police rely on another exception: community caretaker. enforcement The community officers, under caretaker certain exception allows circumstances, to law use 2 Katz v. United States, 389 U.S. 347, 357 (footnotes omitted); see also Artic, 327 Wis. 2d 392, ¶29 (citing State v. Faust, 2004 WI 99, ¶11, 274 Wis. 2d 183, 682 N.W.2d 371). 3 Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). When relying upon consent to justify a lawful search, the government "has the burden of proving that the consent was, in fact, freely and voluntarily given." Id. at 222 (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). This court has adopted the Schneckloth standard for voluntariness. Artic, 327 Wis. 2d 392, ¶32 (citing State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998)). 4 Mincey v. Arizona, 437 U.S. 385, 393 94 (1978) (citing McDonald v. United States, 335 U.S. 451, 456 (1948); Johnson v. United States, 333 U.S. 10, 14 15 (1948)); Warden v. Hayden, 387 U.S. 294, 298 300 (1967). 5 Griffin v. Wisconsin, 483 U.S. 868, 880 (1987). 2 No. 2011AP813-CR & 2011AP814.dtp evidence they acquire while they are conducting "preventative patrol," "assist[ing] those who "creat[ing] and maintain[ing] community," and "provid[ing] basis."6 a cannot care feeling other of services for themselves," security on an in the emergency 3 Wayne R. LaFave, Search and Seizure, § 6.6, at 595 (5th ed. 2012) (citing 1 ABA Standards for Criminal Justice § 1 2.2 (2d ed. 1980)). The evolution of this exception in Wisconsin case law is instructive. ¶53 The seminal case for the community caretaker principle is Cady v. Dombrowski, 413 U.S. 433 (1973). In Cady, a case with Wisconsin origins, police officers arrested the defendant for drunk driving after a one-car accident. Id. at 435 36. The defendant informed the officers that he was a Chicago police officer, and the local officers began to act on the belief that "Chicago police officers were required by regulation to carry their service officers' vehicle revolver. revolvers initial and of Id. check the at all times." Id. of the passenger compartment defendant's person did at not 436. of produce The the a Shortly thereafter, police had the defendant's car towed from the accident scene to a privately owned garage. Id. Later, an officer returned to the car to continue looking 6 See also State v. Anderson, 142 Wis. 2d 162, 169 n.3, 417 N.W.2d 411 (1987) (citing State v. Chisholm, 696 P.2d 41, 43 (Wash. App. 1985)) (describing community caretaking functions as law enforcement performing services in addition to traditional enforcement activities). 3 No. for the service revolver.7 2011AP813-CR & 2011AP814.dtp Id. at 436 37. While examining the passenger compartment, the officer spotted an object with blood on it, and then found more evidence of a possible crime in the car's trunk. ¶54 Id. at 437. At his first-degree murder trial, the defendant argued that certain evidence found in the passenger compartment and trunk when the local officer searched for the service revolver was unconstitutionally seized. Court ultimately actions in service revolver Amendment. disagreed, towing the See id. at 434. holding vehicle did not and require a that law attempting warrant The Supreme enforcement's to under locate the the Fourth The Court said: Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Id. at 441 (emphasis added). 7 Police officers attempted to retrieve the revolver "to protect the public from the possibility that a revolver would fall into untrained or perhaps malicious hands." Cady v. Dombrowski, 413 U.S. 433, 443 (1973). 4 No. ¶55 and 2011AP813-CR & 2011AP814.dtp Cady stressed the "distinction between motor vehicles dwelling places." Id. at 447. This distinction was repeated in South Dakota v. Opperman, 428 U.S. 364, 367 (1976), where the Court observed that it had "traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment." Thus, "warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not." Id. (citations omitted). As a result, numerous courts have ruled that the community caretaker exception applies only to motor vehicle searches. LaFave, § 6.6, at 595 n.4 (citing Ray v. Twp. of Warren, 626 F.3d 170 (3d Cir. 2010); United States v. Bute, 43 F.3d 531 (10th Cir. 1994); United States v. Erickson, 991 F.2d 529 (9th Cir. 1993); United States However, when v. Pichany, this court 687 F.2d recognized 204 the (7th Cir. community 1982)). caretaker exception for the first time in Bies v. State, 76 Wis. 2d 457, 471, 251 N.W.2d 461 (1977), it applied the exception to a much different set of facts than those in Cady. ¶56 In Bies, a police officer patrolled an alley in the middle of the night in response to a noise complaint about a garage in the alley. Id. at 460 61. out as the officer's car approached. A light in a garage went Id. at 461. Because the main door of the garage was shut, the officer walked to the rear of the garage where he found an open doorway with a missing door. Id. After shining his flashlight into the garage, the officer saw 25 to 50 feet of three-inch telephone cable on the ground. Id. He went back to 5 his car to inform police No. headquarters. Id. at 461 62. 2011AP813-CR & 2011AP814.dtp After another officer arrived, the officers went into the garage, took a piece of the cable, and left. Id. at 462. The officers realized that they had stumbled upon cable that only telephone companies could legally obtain. Id. at 475. ¶57 exception The Bies court justified the stated first that officer the community checking on caretaker the noise complaint and going from the alley to the rear of the garage in the curtilage of the defendant's home to further investigate the source of the reported noise. Id. at 471. "Checking noise complaints bears little in common with investigation of crime," the court said. Id. Thus, it was not unreasonable for the officer to walk to the rear of the garage, where he discovered the rear door missing, rather than stop at the closed overhead automobile door. Id. at 472. At that point, the officer was justified in going into the open garage under the plain view exception caretaker to the warrant exception. Id. requirement, at 471 72. not In the other community words, the community caretaker exception brought the officer in Bies to the threshold of the garage door in the curtilage of the home, but it was the plain view exception that allowed officers to cross the threshold into the garage. ¶58 The court of appeals examined the community caretaker function ten years later in State v. Anderson, 142 Wis. 2d 162, 417 N.W.2d 411 (1987). Two police officers noticed Anderson's vehicle approaching their car while they were on patrol. 164. Id. at One of the officers had previously received complaints 6 No. 2011AP813-CR & 2011AP814.dtp about Anderson parking his car in private parking spots, so that the officer wanted to talk to him about this issue. 65. When Anderson turned away down followed and pulled him over. stopped, the officers noticed an alley, Id. at 165. that he was Id. at 164 the officers After Anderson trying to conceal something, and they saw a leather object protruding from under the seat. Id. The officers ordered Anderson out of the car and found a loaded gun and several knives after a search of the car. Id. Like Bies, the Anderson facts involved routine police conduct, not focused examination of criminal activity, that led inadvertently to the discovery of criminal evidence. ¶59 The court of appeals in Anderson set out a three-step test for evaluating claims of community caretaker functions: [W]hen a community caretaker function is asserted as justification for the seizure of a person, the trial court must determine: (1) that a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual. As to the last factor weighing the public need and interest against the intrusion relevant considerations include: (1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished. Anderson, 142 Wis. 2d at 169 70 (footnotes omitted). ¶60 626 In State v. Kelsey C.R., 2001 WI 54, 243 Wis. 2d 422, N.W.2d 777, this court applied 7 the community caretaker No. 2011AP813-CR & 2011AP814.dtp exception, leading to the warrantless search or pat-down of a juvenile. Two police officers found Kelsey alone in the dark in a high-crime area of Milwaukee and they were concerned that she was a runaway. Id., ¶1. She had her hood up and was huddled in front of a closed store. Id., ¶4. The officers asked Kelsey some questions and thought that her answers were evasive. ¶5. They told her to stay where she was, but she fled. Id., Id. The officers caught up to Kelsey, and later called a female officer to conduct a pat-down search, before giving the juvenile a ride home in a squad car. Id., ¶¶6 7. To the officers' surprise, the pat-down search revealed a loaded handgun. ¶7. Id., Kelsey moved the circuit court to suppress the results of the search. Id., ¶8. The court held that the initial encounter with was a Kelsey not seizure but that if it was, permissible under the community caretaker exception. ¶61 it Id., ¶51. The lead opinion in Kelsey C.R. applied the three-step process laid out by the court of appeals in Anderson. ¶¶36 37. was Id., The lead opinion assumed for the purposes of analysis that a seizure of the juvenile occurred within the meaning of the Fourth test. Amendment, Id., ¶36. satisfying In step considering apparently conceded "that the one step police of the three-step two, the at least were, juvenile at some point, performing a bona fide community caretaker activity by checking to see if Kelsey was a runaway." Id. Finally, in considering the four factors within the third step of the test, the Kelsey interest C.R. court outweighed concluded the privacy 8 that of the public Kelsey. need Id., and ¶37. No. 2011AP813-CR & 2011AP814.dtp Specifically, the court pointed to the strong public interest in locating runaway children, the discovery of a juvenile alone in a dangerous neighborhood after dark, the lack of alternatives to the officers asking the juvenile direct questions about her situation, and her disobedience of their order to "stay put." Id. Thus, the lead opinion determined there was a valid exercise of the community caretaker exception to a warrantless seizure of an individual. ¶62 Eight years later, in State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598, this court once again applied the community caretaker exception in the context of an automobile parked on the side of a county road. The hazard lights were flashing on Kramer's vehicle, which was legally parked on the side of the highway after dark. Id., ¶4. A sheriff's deputy activated his police car s emergency lights and stopped behind Kramer s vehicle so that he could check to make sure Kramer was all right. Id., ¶5. The deputy walked up to Kramer's vehicle and asked if Kramer needed help. Id., ¶7. Kramer's response suggested that he was intoxicated, so the deputy arrested him. Id. Kramer moved to suppress evidence of his intoxication on the ground that the deputy had seized him without probable cause or reasonable suspicion. ¶63 Id., ¶8. In Kramer, we concluded that the "totally divorced" language in Cady did not require that the attending officer must rule out any possibility of criminal activity before the community caretaking action is bona fide the second step of the Anderson test. Id., ¶¶21, 30. 9 Rather, we held "that in a No. community caretaker context, when 2011AP813-CR & 2011AP814.dtp under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer's subjective law enforcement concerns." ¶30. "To conclude otherwise would ignore the Id., multifaceted nature of police work and force police officers to let down their guard and conditions." unnecessarily expose themselves Id., ¶33 (citation omitted). to dangerous Furthermore, the Kramer court, noting that Kelsey C.R. used the Anderson test in its community caretaker three-part test. ¶64 Kramer analysis, specifically adopted the Id., ¶21 n.8. After considering all three steps of the test, the court concluded that the sheriff's deputy had an objectively reasonable basis for stopping his car behind the defendant's car parked on the side of a road. Id., ¶¶36 37. Furthermore, the deputy's first contact with the defendant was an offer of help. ¶65 In State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592, exception. Id., ¶37. this court revisited the community caretaker In that case, Milwaukee police received an anonymous tip about a house where two people were reported to be sleeping next to cocaine, money, and a digital scale, while the rear door was standing open. Id., ¶2. Five officers from the Gang Crimes Unit of the Milwaukee Police Department responded to the tip and investigated, although one of the responding officers admitted that the residence "sounded like a drug house." officers knocked on the open 10 rear door, Id., ¶3. announced The their No. presence, and waited 30 45 seconds. 2011AP813-CR & 2011AP814.dtp Id., ¶¶3 4. Receiving no response, the officers entered the residence, saw the sleeping individuals, and again loudly announced police presence. ¶5. Again, there was no response. Id. Id., When the officers entered the bedroom, they saw cocaine, money, and a scale, just as the anonymous tipster had described. Id. The officers arrested one of the sleeping individuals, Pinkard, and seized evidence in plain view and a gun under the mattress. ¶66 Id. The circuit court denied Pinkard's motion to suppress a majority of the seized evidence because the officers' entry into the residence was a lawful community caretaker function; the court found the officer's testimony at the suppression hearing to be credible in that the officers were "'inquir[ing] as to the sleeping.'" ¶67 health and safety of the individuals that were Id., ¶7. The Pinkard majority affirmed the circuit court and court of appeals, determining that there was a valid exercise of the community caretaker function. Id., ¶¶10-11. Applying Anderson's three-step test, the majority first concluded that a search within Id., ¶30. also the meaning of the Fourth Amendment occurred. Second, although "this is a close case," the court concluded that there had been a bona fide community caretaker function because police received a reliable anonymous tip, the police were concerned about the welfare of the occupants, the information contained in the tip was true, and no one responded to the officers announcing their presence. ¶¶32 33. Id., On the facts of the case, the majority contended, an 11 No. 2011AP813-CR & 2011AP814.dtp officer would be reasonably concerned about the possibility of a drug overdose. Id., ¶35. Finally, the Pinkard majority determined that the exercise of the community caretaker function was reasonable. Id., ¶60. Essentially, the officers were faced with the possible exigencies of a drug overdose and individuals unable to look after themselves, no overt force was used, and no feasible alternatives existed. ¶68 go along Id., ¶¶46 60. However, three members of the court were unwilling to with this expansion 327 of the Wis. 2d 346, community ¶98 caretaker exception. Pinkard, (Bradley, J., dissenting). The Pinkard dissenters noted that, for the first time, this court expanded the community caretaker exception to a warrantless entry and search of a home. ¶69 The Pinkard dissent Id. contended that the officers' alleged concern about the safety of the occupants was really following up a complaint about criminal activity. Id., ¶83. Thus, the officers entered the Pinkard residence to conduct an investigation, not to perform a community caretaker function. Finally, the dissent argued that the execution of any community caretaker function in Pinkard's case was unreasonable: the entry was invasive and "consistent with a drug bust rather than a rescue." Id., ¶¶95 96. Additionally, the dissent observed that the officers did not seem to consider any alternatives to a warrantless entry. ¶70 caretaker This Id., ¶96. historical exception was review first search of a towed vehicle. shows recognized that in the the community unsuspecting Until our decision in Pinkard, this 12 No. court had never justified an 2011AP813-CR & 2011AP814.dtp unwarranted, unrequested entry of a home on a community caretaker basis. police What appeared to some members of the Pinkard court as a significant departure from the core principles of the exception is now being stretched and extended even more. II ¶71 In this case, a Menasha police officer, Matthew Lenss, was dispatched to investigate a yellow traffic light pole that was down at an important intersection. He found a dislodged license plate at the site of the smashed pole. A computer check showed that the plate belonged to a Buick Regal owned by Jesus Gracia-Valenzuela. Police went attempting to find the owner. to three different addresses At the third address, they were told that the vehicle they were searching for was usually driven by Juan Gracia (Juan) who lived at an address on Wendy Way. ¶72 At extensive that front-end address damage, missing license plate. but saw no blood. officers streaks found of the yellow vehicle paint, with and a The officer looked inside the vehicle The windshield was intact. The airbags had not been deployed. ¶73 The officer later testified that at this point, based on his experience, the possibility that an accident had been caused by an intoxicated driver "would be in the back of [his] mind." Thus, the police had evidence of a driver who hit and damaged public property but fled the scene without reporting an accident, and they suspected that the driver had been drinking. 13 No. ¶74 2011AP813-CR & 2011AP814.dtp At the residence the police attempted to make contact with someone inside, but there were no lights on and no one answered the door. Just as police were getting ready to leave, Jaime Gracia (Jaime) drove up to the residence. Jaime informed the police that he lived at the residence with his brother Juan, that Juan normally drove the Buick Regal, and that he believed Juan was inside the residence. ¶75 Police asked Jaime if they could go inside the residence to make sure Juan was okay "based on the damage to the vehicle." Jaime told the officers to wait outside while he went inside the residence. and gave police Shortly thereafter, Jaime came back out permission to enter the residence. It was approximately 9:20 p.m. when police entered nearly 40 minutes after police were dispatched to investigate the downed traffic light pole. ¶76 Jaime led police to a closed bedroom door. On the other side of the door, Juan was yelling in Spanish and English that he wanted everyone to "go away." Officer Lenss testified that both he and Jaime tried to open the bedroom door, but it was locked.8 Officer Lenss then testified that Jaime, without prompting from the police, put his shoulder to the bedroom door and forced it open. Almost immediately, police crossed the threshold of the door into the bedroom and discovered Juan lying on the bed. 8 While Jaime gave police permission to come into the common areas of the house, neither Jaime nor Juan gave police permission to open the bedroom door. 14 No. ¶77 Officer Lenss testified 2011AP813-CR & 2011AP814.dtp that it was difficult to understand what Juan was saying, but that he could tell Juan "was highly intoxicated." Juan's breath smelled of intoxicants, his and eyes were bloodshot, his speech was slurred. Juan admitted to the police that he drove the white Buick Regal. Officer Lenss administered several tests both inside and outside of the residence to determine After failing several of these Juan's level of intoxication. Juan was placed under tests, arrest for operating a motor vehicle while intoxicated. ¶78 Several major points are evident from these facts. ¶79 First, this case involves the entry bedroom, not the search of a motor vehicle. of a private Warrantless entry of a residence is more suspect and subject to stricter scrutiny than entry and search of a motor vehicle. State v. Ultsch, 2011 WI App 17, ¶18, 331 Wis. 2d 242, 793 N.W.2d 505 (citing Pinkard, 327 Wis. 2d 346, ¶20). ¶80 Second, police did not enter the bedroom with consent. On the contrary, Juan loudly told the officers to go away. fact distinguishes Juan's case from Pinkard, where This the inhabitants of the house did not respond at all to the loud announcement of police presence. ¶81 Third, Juan never opened a door. He did not answer the door when the police came to his residence, and he locked the door to his bedroom. This distinguishes this case from Pinkard, where the door to the house was open and the door to the bedroom was open. 15 No. ¶82 2011AP813-CR & 2011AP814.dtp Fourth, although the door to Juan's bedroom was open when the police entered, it was open only because Jaime forced it open. Jaime had authority to invite the officers into the house,9 but he did not have authority to invite police to enter Juan's bedroom.10 A person who lacks authority to consent to an entry does not gain authority by forcing in a door. ¶83 Fifth, the officers were investigating one offense and suspected the commission of another drunk driving. They pursued the driver of the hit-and-run vehicle to four different addresses. "totally No argument can be made that their actions were divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." ¶84 Cady, 413 U.S. at 441. Sixth, although the officers repeatedly professed concern about the driver's medical condition, their expressions of concern always facilitated the investigation of the accident. Their expressions of concern helped them learn the identity of the driver and obtain his home address. cooperation of Jaime. officers ever They helped induce the There is no evidence, however, that the contacted local hospitals to see if named Juan Gracia had come to the emergency room.11 9 a patient When they United States v. Matlock, 415 U.S. 164, 171 (1974). 10 See State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998) (father-in-law lacked authority to consent to search of loft area above garage that was under exclusive control of defendant and wife); State v. Amrine, 157 Wis. 2d 778, 783, 460 N.W.2d 826 (Ct. App. 1990) (police invited into home are presumed limited to the room they are brought into). 11 The distance between the accident site and Juan's home about two miles is the same distance to the nearest hospital. 16 No. 2011AP813-CR & 2011AP814.dtp entered the residence with consent, they knew that Jaime was there to help his brother if his brother needed help. They never asked Juan personally if he needed medical assistance and did not see anything in the bedroom that impelled them to enter the room to provide medical assistance. In short, a crime- investigating, crime-solving purpose dominated any other purpose in the officers' conduct, thereby disqualifying the police from using the community caretaker exception. ¶85 In terms of the traditional Anderson test: 1. A search and seizure within the meaning of the Fourth Amendment occurred when the police entered a private bedroom without a warrant and without consent to obtain evidence of a crime and obtained evidence that would justify the arrest of the defendant. 2. Even if a portion of police conduct could be described as "bona fide community caretaker activity," that portion was completely overshadowed by the law enforcement objectives of finding and arresting the person responsible for the traffic light pole accident. At some point before police entered Juan's bedroom, any "objective reasonable basis" to believe that Juan needed medical assistance disappeared. 3. The public need and interest did not outweigh the intrusion into the privacy of the defendant in his bedroom. A. The police had Juan cold on a hit-and-run. They could have asked him to come out of his bedroom to discuss the accident. If he refused, they could have attempted to get a warrant while they stayed in the house. 17 They had a witness in No. 2011AP813-CR & 2011AP814.dtp Jaime, who could have testified as to his brother's sobriety. There was simply no exigency that justified bursting into the bedroom. B. In addition, the search and seizure occurred in a private residence. The police knew they could not enter the house without permission and did not. They tried the bedroom door but knew they could not themselves break it in. When Jaime acted, they abandoned their caution and barged in. C. No automobile was involved in the search of the D. Alternatives bedroom. were available, simple request to come out and talk. starting with a If Juan did not comply, again, the officers could have obtained a warrant for entry into the bedroom. ¶86 As noted above, warrantless searches are per se unreasonable subject only to a few specifically established and well-delineated exceptions. these exceptions "have The Supreme Court has declared that been jealously and carefully Jones v. United States, 357 U.S. 493, 499 (1958). drawn." They must be "confined in scope," Terry v. Ohio, 392 U.S. 1, 29 (1968), and "strictly circumscribed." La Fournier v. State, 91 Wis. 2d 61, 68, 280 N.W.2d 746 (1979) (quoting Terry, 392 U.S. at 25 26). ¶87 find and The dogged determination of the Menasha officers to arrest the person responsible for the accident is expected and completely commendable. light pole However, this laudable objective is necessarily governed by traditional Fourth 18 No. Amendment principles. A legitimate 2011AP813-CR & 2011AP814.dtp end did not justify the means employed with respect to warrantless entry of the bedroom. ¶88 The requirement community is sound caretaker exception constitutional to doctrine the and warrant will be vigorously defended so long as it is applied within reasonable limits. These limits protect individual liberty and preserve the interests of law enforcement. When the community caretaker exception is applied without these limits, both liberty and the interests of law enforcement are bound to suffer. ¶89 For the foregoing reasons, I respectfully dissent. ¶90 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent. 19 No. 1 2011AP813-CR & 2011AP814.dtp
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