WI: Domestic disturbance call with no signs of violence didn’t justify protective sweep

Officers were called to a domestic disturbance that involved only yelling and nobody hurt. In the time they were there, they got around to conducting a “protective sweep” of the entire apartment. The last place to look was a closet, and inside were six marijuana plants under a growlight. The sweep was unreasonable. State v. Maddix, 2013 WI App 64, 348 Wis. 2d 179, 831 N.W.2d 778 (2013):

P24 The Gracia court determined that the officers exercised a bona fide community caretaker function, concluding that the officers had an objectively reasonable basis to believe Gracia needed assistance and was hurt. Id., ¶¶21-22. First, the court cited the significant damage to Gracia’s vehicle and the fact that a traffic signal was “completely knocked down.” Id., ¶21. Second, noting that “the subjective intent of the officers is relevant,” the court relied on the officers’ stated concerns for Gracia’s well-being. Id. Finally, the court noted that Gracia’s brother’s apparent concern about Gracia’s safety and unrequested decision to force open the bedroom door supported an objectively reasonable basis to believe that Gracia was hurt and needed assistance. Id., ¶22.

P25 Comparing the facts in Pinkard and Gracia, where the supreme court held that the officers had an objectively reasonable basis to believe someone may be in need of assistance, and even those in Ultsch, where the officers’ conduct fell outside the scope of the community caretaker function, to the facts in this case establishes the clear absence of an objectively reasonable basis to search Maddix’s apartment.

P26 Here, the officers went to Maddix’s apartment due to a call reporting a domestic disturbance and heard screams upon their arrival. Upon entering the apartment, the officers encountered Maddix and the female, who appeared to be the only people in the apartment. After interviewing Maddix and the female separately, the officers were “not satisfied” with the female’s explanation as to why she screamed — “she was scared but she didn’t know what she was scared of” — and believed that another person who “either was causing the screaming earlier or perhaps was a victim” was in the apartment. Thus, the primary basis for conducting the search of the rooms in the apartment, after conducting the initial interviews, was the female’s failure to identify the source of the fear that caused her to scream.

P27 Unlike in Pinkard, Ultsch, and Gracia, where the officers had evidence pointing concretely to the possibility that a member of the public was in need of assistance (a damaged vehicle or drug use coupled with an open doorway), here no evidence directly corroborated the officers’ theory that another person was present in the apartment, who was either a crime victim or a perpetrator. …

P37 … However, we are satisfied that our conclusion in this case that the officers did not exercise a bona fide community caretaker function is not a narrow reading of that exception. Under the facts of this case, after the officers validly exercised the community caretaker function by entering the apartment, addressing the apparent domestic situation, and making a reasonable assessment of the need for any further assistance or protection, there was simply no objectively reasonable basis to conclude that searching the apartment was justified under the community caretaker function. To conclude otherwise, in our view, could allow this exception to justify virtually any residential “sweep” as part of a police response to an alleged domestic disturbance.

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