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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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)