Exigency — Emergency Doctrine — Warrantless Entry to Check on Welfare of Child

By Wisconsin State Public Defender
Feb 18, 2000

State v. Rick R. Rome, 2000 WI App 243, 239 Wis.2d 491, 620 N.W.2d 225

For Rome: William E. Schmaal, SPD, Madison Appellate

Issue/Holding: Police entry into a home and subsequent seizure of drugs in a closet was justified under the emergency doctrine:

¶12 In State v. Pires, 55 Wis. 2d 597, 201 N.W.2d 153 (1972), the Wisconsin Supreme Court approved the emergency rule as an exception to the warrant requirement, … based upon the idea that “the preservation of human life is paramount to the right of privacy protected by the fourth amendment.” Id.

¶13 The test for a valid warrantless search under the emergency doctrine necessitates a two-step analysis. See id. First, the searching officer must be actually motivated by a perceived need to render aid or assistance. See id. Second, even if the requisite motivation exists, it must be found that, under the circumstances, a reasonable person would have thought an emergency existed. See id. at 450-51. In other words, the search was valid if the officers subjectively observed a need to provide immediate assistance and intended to do so when they entered the home and the facts, viewed objectively, sustain the conclusion that the officers had probable cause to believe that there was an emergency and immediate action was necessary for the protection of life or property. SeeState v. Kraimer, 99 Wis. 2d 306, 316-17, 298 N.W.2d 568 (1980). Both the subjective and objective components of this test must be met for the warrantless search to be valid. See Boggess, 115 Wis. 2d at 451.

¶16 The objective component of the emergency rule requires that the officer “point to specific facts that, taken with the rational inferences from those facts, reasonably warranted the intrusion into an area in which a person has a reasonable expectation of privacy.” Boggess, 115 Wis. 2d at 451….

This test is met on the following facts: A woman, walking late at night with an infant, told the police she’d left her home after an argument with her husband, and she expressed concern about the 2 year-old she’d left behind with him. She asked the police to check on the child, but refused to give them permission to go in. The police went to the home and yelled inside for 10 minutes without response. They couldn’t call in, because the phone had been disconnected. They finally went in, and found Rome asleep in bed. They opened his closet door, thinking the child might be in there, and found a marijuana plant, leading to conviction for manufacturing marijuana. The belief that the 2 year-old might need help was both genuine and reasonable, ¶¶17-24. “(T)he officers’ concurrent suspicion of a domestic abuse incident … would not have neutralized the genuineness of their aid and assistance concerns regarding the two-year-old child,” ¶23.

For an alternative statement of the test , see U.S. v. Cervantes, 219 F.3d 882, 888-90 (9th Cir. 2000), adopting People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976) (1. reasonable grounds to believe emergency exists; 2. search not primarily motivated by intent to arrest / seize evidence; 3. reasonable basis, approximating probable cause, to associate emergency with area to be searched). Indeed, this very test was explicitly cited, with apparent approval, in State v. Shane M. Ferguson, 2001 WI App 102, ¶17. Of particular note is the reference to “probable cause,” often absent in Wisconsin caselaw discussion of the emergency doctrine, but a requirement the court ought to be reminded of when the issue of warrantless entry of a home is litigated — see also, e.g., State v. Jeffrey Stout, 2002 WI App 41, ¶15 (“For private residences and hotels, in the absence of a warrant, the police must have probable cause and exigent circumstances or consent to justify an entry.”).

U.S. v. Martins, 1st Cir No. 04-1474, 6/27/05 (emergency established where police encountered “young boy in an apartment filled with thick marijuana smoke”; relevant cases, pro and con, canvassed): “To rely upon the doctrine, the government must show a reasonable basis, approximating probable cause, both for the officers’ belief that an emergency exists and for linking the perceived emergency with the area or place into which they propose to intrude.” Riggs v. State, FL SCt No. SC05-133, 12/15/05 (4-year old child found wandering around apartment complex, naked and alone; police justified entering the one apartment with an ajar door, under medical emergency rationale).

Police, contrastingly, did not have grounds to believe a child was in need of immediate assistance: State v. Vanslyke, FL App No. 2D05-2380, 9/13/06 (no probable cause for warrantless entry, distinguishing Boggess: no showing of informant’s personal knowledge of matter reported); United States v. Gillespie, 332 F.Supp.2d 923, 929 (W.D.Va.2004) (notably, police actions were inconsistent with the idea that they themselves thought an emergency was genuinely presented; note, too: Gillespiecited by State v. Pinkard, 2010 WI 81, ¶20, as “cautious” support for warrantless entry of residence under community caretaker doctrine); Robbins v. State, Ark App CACR05-717, 3/8/06 (similar: no exigency found where officer claimed to be concerned with the welfare of a child in the home, but “he took no actions that were tantamount to a response to those exigent circumstances he thought existed”). See also U.S. v. McGough, 11th Cir. No. 04-12077, 6/15/05.