2016 WI 7

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2014AP108-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Charles V. Matalonis,
                                 Defendant-Appellant.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                         (Reported at 359 Wis. 2d 675, 859 N.W.2d 628)
                                  (Ct. App. 2015 – Unpublished)

OPINION FILED:         February 10, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 18, 2015

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Kenosha
   JUDGE:              Wilber W. Warren, III

JUSTICES:
   CONCURRED:
   DISSENTED:          ABRAHAMSON, J., dissents. (Opinion Filed)
                       PROSSER, ABRAHAMSON, A.W. BRADLEY, J.J.J.,
                       dissent. (Opinion Filed)
  NOT PARTICIPATING:


ATTORNEYS:
       For      the    plaintiff-respondent-petitioner,   the   case   was
argued by Donald V. Latorraca, assistant attorney general, with
whom on the briefs was Brad D. Schimel, attorney general.




       For the defendant-appellant, there was a brief by Mark D.
Richards, Brian P. Dimmer and Mark D. Richards, S.C., Racine,
and oral arguments by Mark D. Richards.
                                                                                2016 WI 7
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.        2014AP108-CR
(L.C. No.        2012CF81)

STATE OF WISCONSIN                                  :            IN SUPREME COURT

State of Wisconsin,

                 Plaintiff-Respondent-Petitioner,                          FILED
       v.                                                             FEB 10, 2016
Charles V. Matalonis,                                                    Diane M. Fremgen
                                                                      Clerk of Supreme Court
                 Defendant-Appellant.




       REVIEW of a decision of the Court of Appeals.                       Reversed and

cause remanded.



       ¶1        ANNETTE KINGSLAND ZIEGLER, J.             This is a review of an

unpublished          decision     of     the   court     of     appeals,       State      v.
Matalonis, No. 2014AP108-CR, unpublished slip op. (Wis. Ct. App.

Dec.       23,    2014),     which     reversed   the    Kenosha      County      circuit

court's1         judgment    of   conviction      and   order     denying      defendant

Charles V. Matalonis's ("Matalonis") motion to suppress evidence

of marijuana production in Matalonis's home.                          Police obtained



       1
           The Honorable Wilbur W. Warren III presided.
                                                                          No.        2014AP108-CR



this    evidence         while     investigating          the     source        of     injuries

sustained by Matalonis's brother, Antony.

       ¶2        We are asked to determine whether a warrantless search

by police of Matalonis's home, including, importantly, of a room

secured by a locked, blood-spattered door, was reasonable under

the    Fourth         Amendment    of   the     United        States   Constitution           and

Article I, § 11 of the Wisconsin Constitution.                           The State argues

that the police officers in this case acted reasonably on the

night       in    question        because     (1)       the     police     officers          were

reasonably exercising a bona fide "community caretaker" function

in ensuring the absence of injured persons in the home; and (2)

the police officers reasonably believed that a protective sweep

of the home was necessary to guarantee their own safety.

       ¶3        We conclude that the officers in this case reasonably

exercised a bona fide community caretaker function when they

searched         Matalonis's      home.       The   officers       therefore          were    not

required to obtain a warrant prior to conducting the search in

question, and the evidence of marijuana production they obtained
should not be suppressed.                  Because the search was lawful under

the community caretaker doctrine, we need not determine whether

the search was also justified as a protective sweep. We reverse

the decision of the court of appeals and remand the case to the

circuit      court       for     further    proceedings         consistent           with    this

opinion.

                                   I. FACTUAL BACKGROUND

       ¶4        On    January    15,   2012,      at   about     2:45    a.m.,        Officers
Brian Ruha ("Officer Ruha") and David Yandel ("Officer Yandel")
                                               2
                                                               No.   2014AP108-CR



of the Kenosha Police Department were dispatched for a medical

call to the upper unit of an address on 45th Street in Kenosha.2

When Officer Ruha arrived at the address, he observed "what

appeared to be blood all over the door." He knocked on the door,

entered,    and   there   met    Antony       Matalonis   ("Antony").      Antony

looked as though "he may have been battered[;] . . . his whole

right side of his body was covered in blood." Additionally,

Antony   seemed    "highly      intoxicated."         Antony   initially    told

Officer Ruha that he had been beaten up by four different groups

of people outside of a bar, but some time later said that he was

beaten up by four people outside of a bar.                 The resident at the

address told Officer Ruha that Antony lived down the street with

his brother. Antony was loaded into an ambulance and taken to a

hospital.



    2
       The facts in this section are taken from testimony
provided by Officer Ruha, Officer Yandel, and Matalonis at the
April 4, 2013 suppression hearing, as well as from portions of
the officers' police reports that were read at the suppression
hearing.   The circuit court stated at the conclusion of the
hearing:

    I don't think the material facts are in dispute at
    all.    The only fact that might be in dispute is
    whether initial consent was given to enter the home or
    not.   But if that issue is of concern, the [c]ourt
    certainly would find that the officer[s] did have
    consent to enter the home.

On appeal before          this court, Matalonis concedes that he
"consented to the         [officers'] entering his home to discuss
Antony's injuries."        Certain disputed facts not material to the
outcome of this case      will be noted as they arise.


                                          3
                                                              No.   2014AP108-CR



     ¶5     Officer Yandel arrived at the address as Antony was

being placed in the ambulance.             Officer Yandel "could tell that

[Antony] had a bloody face. [Antony] had blood on his shirt.                 He

seemed pretty beat up."        Officer Yandel went to the back door

leading to the upper unit of the residence, and "noticed a large

amount of blood that led up the stairwell to that apartment."

     ¶6     After the ambulance departed, Officer Ruha and Officer

Yandel "checked the surrounding area to determine where [the]

blood had originated from" in order to "find out where [Antony]

came from . . . and if anyone else was even involved," because

the resident of the upper apartment had explained that Antony

had arrived at the residence already injured.             There was snow on

the ground, and the officers found a single "blood trail" in the

snow, which they followed.

     ¶7     The blood led to the side door of a residence on Fifth

Avenue.     "There was blood on a screen door and then on the

inside of the screen door.       And there was another wooden door,

and there was blood on that door as well."               The officers heard
two loud bangs coming from inside the residence that sounded to

Officer    Yandel   like   "[t]hings       being   shuffled   around   in   the

house."3

     ¶8     The officers then called for backup because, according

to Officer Ruha, "we had no idea what was going on inside the


     3
       During the suppression hearing, Officer Yandel admitted
that information regarding the noises did not appear in his
police report. Officer Ruha's police report mentions the noises.


                                       4
                                                                        No.   2014AP108-CR



residence,"      and       according     to    Officer    Yandel,      because     "[i]t's

protocol in case we had to enter that residence to check the

welfare of anybody if we couldn't make contact.                         It was a pretty

significant amount of blood, and we were concerned that maybe

somebody was injured inside."

    ¶9         The officers went to the front door of the residence

and knocked on the door.               Matalonis "answered the door without a

shirt    on.         He    didn't     appear   to    be   injured      at   all,   but   he

appeared to be out of breath."                        He was not intoxicated but

"seemed pretty upset about something."                     Officer Yandel "noticed

there was blood in the foyer on the floor" as well as "blood to

the right which led up to a stairwell."                          Matalonis testified

that he had been cleaning up blood when the officers arrived.

    ¶10        The        officers     asked       Matalonis     who    lived      at    the

residence and Matalonis responded that he lived alone.                                   The

officers told Matalonis about the injured individual they had

met and the blood trail leading to the side door of Matalonis's

house.    Matalonis explained that he had been in a fight with his
brother Antony, but that his brother had left.                              According to

Officer    Yandel's          police    report,       Matalonis    stated,     "Yeah,     my

brother left already.                It was just me and my brother fighting.

I just had to do what I had to do to defend myself but he's gone

now."     The officers told Matalonis "that because there was blood

in the house, [they] just wanted to make sure that no one else

was injured."         Matalonis let the officers into the house.4
    4
         See supra note 2.


                                               5
                                                             No.     2014AP108-CR



       ¶11     Once the officers were inside the house, they directed

Matalonis to sit on the couch in his living room.5                 The officers

did not place Matalonis in handcuffs or tell him that he was

under arrest.        Officer Yandel did not frisk Matalonis.6           Officer

Ruha then conducted a search of the residence "to make sure that

no one else was inside the house or even injured in the house

that       needed   medical   attention"   while   Officer    Yandel     stayed

behind with Matalonis.          At no time did Officer Yandel point a

weapon at Matalonis.

       ¶12     Officer Ruha began his search on the lower level of

the house, where the officers and Matalonis were located.                     He



       5
       Matalonis testified that the officers "told" him to sit on
the couch.   Officer Yandel initially testified that he "asked"
Matalonis to sit on the couch, but on cross-examination agreed
that he had "directed" Matalonis to sit on the couch and that
the direction was "a direct order."       Officer Ruha testified
simply that Matalonis sat on the couch and that he "may have
been" directed to sit on the couch.
       6
       Officer Ruha could not recall whether he had frisked
Matalonis.    Officer Yandel did not see Officer Ruha frisk
Matalonis, and Matalonis did not provide testimony regarding
whether Officer Ruha had frisked him.   Counsel for Matalonis
asked Officer Yandel about the fact that Matalonis was
apparently not frisked:

            Q:   So you're not worried for officer                  safety
       enough to even frisk Mr. Matalonis, correct?

               A:    We did have officer safety concerns, yes.

            Q:   But you didn't think enough to even frisk
       Mr. Matalonis, correct?

               A:    Correct.


                                       6
                                                               No.      2014AP108-CR



found "a couple drops of blood" in the living room,7 and then

moved into the kitchen where he found "another couple drops of

blood."      A bucket of water and a mop were in the kitchen.

Officer Ruha went to the basement area but "didn't locate any

blood down there."8      Officer Ruha returned to the lower level and

proceeded up the stairs to the second floor.                 On the stairs to

the second floor "there [were] what appeared to be droplets of

blood on the carpet and blood smeared all along the wall leading

upstairs."

     ¶13    Upstairs, "[t]here appeared to be blood all over the

handrail.       There was a mirror that was down that was broken.

There [were] shards laying all over the floor."                      Officer Ruha

moved    into   a   "little   living   area"    to   his   left,     but   "didn’t

locate anyone in there."           He did, however, observe "various

pipes and other smoking utensils used for smoking marijuana."


     7
       Matalonis testified, "There             was   no    blood   in    the   main
living room that I know of."
     8
       It is unclear from the record whether Officer Ruha in fact
entered the basement.      On direct examination Officer Ruha
stated, "I actually went down to the basement."        On cross-
examination Officer Ruha was asked, "[Y]ou don't go into the
basement because there's no blood going down there, correct?"
Officer Ruha responded, "Correct." When rendering judgment the
circuit court stated, "The officers only searched where there
was blood. They didn't go in the basement."

     At some point a tenant who lived in the basement came out
of his room——according to Officer Yandel, "came upstairs"——and
spoke with the officers, but the record is not entirely clear
regarding at what point during the search of the house this
happened.


                                       7
                                                                            No.     2014AP108-CR



This included "a small silver grinder that lay opened on the

coffee table containing a green leafy substance that [Officer

Ruha]       identified         as     marijuana      through        [his]     training        and

experience."            Then he continued right, and "saw that there was a

door       with    a    deadbolt      that   had     blood    splatters       on        the   door

itself."9          Officer Ruha tried unsuccessfully to open the door,

which was locked.                   He then moved past the door and into a

bathroom.              There   were    no    individuals       in    the     bathroom,        but

Officer       Ruha       saw   a     "ceramic       water    bong     used        for    smoking

marijuana."            Officer Ruha went back to the locked door, where he

"could not hear anyone inside, but . . . did smell a strong odor

of marijuana coming through [the] door and . . . heard a fan

running."              Officer Ruha testified that at that point he was


       9
       On cross-examination counsel for Matalonis, using a
photograph of the door, questioned Officer Ruha about the extent
of blood on the door.

            Q:   And the blood you're                        speaking       about       are
       these two little drops here?

                  A:     Drops here, drops all the way down here.

            Q:   And that is like the least amount of blood
       anywhere in that house, is that a fair statement,
       compared to, let's say, the stairway?

                  A:     That would be fair to say.

     In his brief before this court, Matalonis characterizes the
blood on the locked door as "two little drops of blood."     The
State argues that photographs of the door "show a number of
spatter marks running across the bottom of the door and on the
adjacent wall," and "three red drops forming a triangle between
the lock and door handle as well as additional red marks on the
adjacent door jamb."


                                                8
                                                                No.    2014AP108-CR



"interested in knowing that there's no one injured behind that

door."10    Since he "realized that [the locked room] was the only

place [he] could not get into to check," Officer Ruha went back

downstairs to ask Matalonis for the key to the room in order "to

ensure that no one is injured behind that door."

     ¶14     While Officer Ruha was searching the house, Officer

Yandel     asked   Matalonis   about   the   fight   he   had    had    with   his

brother Antony.      Matalonis described what had happened.               He also

mentioned that somebody lived in the basement of the house.                     At

some point in their conversation, Matalonis asked Officer Yandel

"if, while they were doing their sweep [of the house], [he]

could continue cleaning up the blood from the fight."                   According

to Matalonis, Officer Yandel did not allow him to do so, but

instead told Matalonis that he "had to stay right where [he was]

and to not get up."11



     10
          Officer Ruha was asked by counsel for Matalonis:

          Q:   Can you tell me what, objectively, would
     lead you to believe someone was behind that door?

          A:   There's droplets of blood around the door
     handle and it's locked from the inside.

          Q:   Well, it's not locked from the inside. It's
     locked from the deadbolt.

          A:   It's deadbolted. Either you lock it with a
     key or you lock it from the inside.
     11
       Officer Yandel did not remember Matalonis asking him if
he could continue cleaning the house, but agreed that he did not
allow Matalonis to get up from the couch.


                                       9
                                                                  No.     2014AP108-CR



    ¶15     Officer Ruha returned to the living room.                      According

to Matalonis, Officer Ruha's search took "10 to 15 minutes."

Testimony      regarding   the    conversation       that   followed        differed

slightly when recounted by Matalonis, Officer Ruha, and Officer

Yandel.     According to Matalonis, Officer Ruha asked Matalonis

what was in the locked room.             Matalonis responded that the room

was "a security room where I keep my valuables."12                      Officer Ruha

then "said he needed to get in the room, and he was going to

kick the door down unless [Matalonis] told him where the key

was."     At    some    point   during    the    conversation,      according         to

Matalonis, Officer Ruha asked whether there was anyone else in

the room or made clear that "[h]e wanted to go and look for

bodies in that room."

    ¶16     According to Officer Yandel, Officer Ruha "asked what

was in that room, said that he noticed that there was blood on

that door and said that he would have to check that room to make

sure no one was injured in there."               Officer Yandel then "noticed

[Matalonis's]     breathing      started       becoming   faster.         He    looked
nervous to me.         Officer Ruha told him he was going to kick the

door in unless he had a key."            At some unspecified point in the

conversation      Matalonis      told    the    officers    the     room       "was   a

security room and he had some security equipment in there," that

he kept the room locked, and that no one was in the room.

Additionally, at some point in the conversation Officer Ruha

    12
       Matalonis admitted at the suppression hearing that this
statement was "obviously" not true.


                                         10
                                                                  No.    2014AP108-CR



informed Officer Yandel that he had found drug paraphernalia and

marijuana upstairs.13

     ¶17    According      to   Officer    Ruha,     upon   his   return    to   the

living room, "I asked [Matalonis] where the key to the door was.

I gave him the options of [sic] I needed to ensure that no one

was injured inside [the locked] room.                   There's blood on the

door.     Either I need to know where the key's at or I'm going to

kick the door in."14        Matalonis said he would not consent to the

officers' entry into the room, and "said it was a security room

for his security cameras."

     ¶18     Matalonis testified that approximately 20 minutes had

elapsed    between   the    officers'      initial    entry   into      Matalonis's

home and the moment that Officer Ruha asked Matalonis for the

key to the locked room.           The officers obtained the key to the




     13
       When asked on cross-examination whether Officer Ruha also
told Officer Yandel at that time about the smell of marijuana
and sound of a fan coming from the inside of the locked room,
Officer Yandel stated, "I don't remember that conversation."
     14
       Both officers were asked by counsel for Matalonis why
they declined to kick down the door immediately without asking
Matalonis for a key, given their testimony that they were
concerned about possible injured persons inside the room. Both
responded to the effect that allowing Matalonis to produce the
key would avoid damage to the home.


                                          11
                                                    No.     2014AP108-CR



room15 after waiting for a certain amount of time.16      Officer Ruha

testified that the key was located next to an aquarium on the

second floor, and that there was a bag of marijuana next to the

key.        Matalonis testified that the key was not hidden and was

kept in a red cup on top of the aquarium, "probably five to six

feet" away from the locked door.17



       15
       The question of the circumstances under which the
officers obtained the key was sharply disputed by the parties at
the suppression hearing.     Officers Ruha and Yandel testified
that Matalonis assisted them in locating the key and told the
officers that he had marijuana plants growing in the locked
room.    Matalonis testified that he provided no assistance in
finding the key to the room, that he never consented to their
entry into the room, and that he intended to let the officers
kick down the door to the room.       Matalonis maintained that
Officer Ruha went upstairs and found the key to the room on his
own.    Matalonis also denied making the statement about the
presence of marijuana in the locked room.     The circuit court
concluded, "If I had to resolve that question of fact, I would
resolve it in the direction of there was assistance in obtaining
the key, especially in light of the fact that, unequivocally,
the officers had told [Matalonis] that they were going to kick
the door down."
       16
       Officer Ruha contended that Matalonis sat for "a matter
of seconds" before telling the officers the location of the key.
Officer Yandel wrote in his police report that Matalonis paused
"for several minutes" when he was asked for the key, but stated
at the suppression hearing, "[f]rom my recollection, it was a
pause for several seconds."      Officer Yandel testified that
Matalonis then told Officer Ruha where the key was.    Matalonis
testified that he "sat there for probably about five minutes"
before Officer Ruha left to look for the key.
       17
       At the suppression hearing Officer Ruha was presented
with a picture of the red cup but could not remember "exactly"
if the key had been located in the cup, though he stated "[i]t
may have been."


                                   12
                                                                    No.       2014AP108-CR



     ¶19    According    to    Officer       Ruha,   Officer    Ruha          went   back

upstairs,18 unlocked the locked room, announced "Kenosha Police,"

and entered the room.          "A large marijuana plant was being grown

as soon as you opened the door.               It was a pretty sophisticated

system."    No one was present in the room.

     ¶20    Officer Ruha returned downstairs.                Matalonis was still

sitting in the living room on the couch.                     Officer Ruha asked

Matalonis about the marijuana.               Matalonis "said the plants were

his and he didn't wish to talk any further about the plants."

Officer Ruha then spoke with him about the fight between him and

his brother.      Matalonis eventually asked to speak with a lawyer

and was arrested later that night.               At some point "[a]fter the

residence   was    secured     and    [the    officers]      found    no       one   else

injured or hurt inside [the] house," the officers attempted to

obtain a search warrant but were denied the warrant.                             Officer

Ruha testified that "[w]hatever [evidence] we found in plain

view, we took," and that after the search warrant was denied he

"didn't open any drawers or go any further into the house and
look for anything else."

                         II.    PROCEDURAL BACKGROUND

     ¶21    On    January     17,    2012,    the    State    filed       a     criminal

complaint   against     Matalonis,      charging     him     with    possession        of

drug paraphernalia, contrary to Wis. Stat. § 961.573(1) (2011-

     18
       Officer Ruha testified that he was accompanied by his
sergeant, who, according to Officer Ruha and Officer Yandel, had
arrived during the conversation with Matalonis and had been
briefed on the situation.


                                        13
                                                             No.    2014AP108-CR



12),19 possession of tetrahydrocannabinols ("THC"), contrary to

§ 961.41(3g)(e), and manufacture or delivery of THC in an amount

not   more     than    200   grams   or     four   plants,     contrary      to

§ 961.41(1)(h).       On November 28, 2012, Matalonis filed a motion

to suppress the evidence seized in the search of his residence

as unconstitutionally conducted without a warrant and without

consent.     On April 4, 2013, a hearing on Matalonis's suppression

motion was held in Kenosha County circuit court.                   The circuit

court denied Matalonis's motion.          The court concluded in part:

           The search there once inside the house was not
      directed at finding evidence but for protective search
      and   for   injured  parties. . . .   [The   officers]
      searched only in areas where there was blood found and
      they didn't search drawers or places where obviously
      people could not hide but only rooms and larger areas
      where bodies might be found.

             . . .

      [T]here was blood on the door. . . .       So it was
      reasonable for them to extend their search for injured
      parties to that area.     Again, with someone who is
      bleeding, someone who is taken away by ambulance, to
      have a locked door in a house with blood on that door
      and not search behind that door and to later find that
      there's a dead body or a bleeding body or a person in
      need of medical assistance behind that door I think




      19
       All subsequent references to the Wisconsin Statutes are
to the 2011-12 version unless otherwise indicated.


                                     14
                                                                           No.    2014AP108-CR


       would not only be improper, it would be a sign of poor
       police work.[20]
       ¶22        On May 15, 2013, Matalonis pleaded no contest to the

charge of manufacture or delivery of THC in an amount not more

than    200       grams    or    four    plants;    the     two    other     charges      were

dismissed and read in for purposes of sentencing.                                On June 28,

2013,       the    court       withheld    sentence       and     placed     Matalonis      on

probation for 18 months.                On January 14, 2014, Matalonis filed a

notice of appeal.

       ¶23        On December 23, 2014, the court of appeals reversed

the circuit court's judgment of conviction and order denying

Matalonis's motion to suppress, and remanded the case to the

circuit       court       to    suppress    the    evidence        resulting       from    the

warrantless search.               See State v. Matalonis, No. 2014AP108-CR,

unpublished slip op., ¶37 (Wis. Ct. App. Dec. 23, 2014).                                   The

court of appeals concluded that the officers were not exercising

a bona fide community caretaker function.                       See id., ¶¶25, 31.

       ¶24        The   court    of     appeals    stated       that   the       police   were

required to possess, under the totality of the circumstances,
"an 'objectively reasonable basis' to believe there [was] 'a

member of the public who [was] in need of assistance.'"                                   Id.,

¶15     (quoting        State     v.    Ultsch,     2011     WI    App     17,     ¶15,    331

       20
       The   court  based  its  ruling  on   multiple  grounds,
including, apparently, the hot pursuit and emergency aid
doctrines. Both before the court of appeals and in its petition
for review to this court, the State argued the search at issue
should be upheld under the community caretaker and protective
sweep doctrines. We do not address any other grounds for
upholding the search.


                                             15
                                                                      No.       2014AP108-CR



Wis. 2d 242, 793 N.W.2d 505).              The court analyzed two cases in

which officers were found to be exercising a bona fide community

caretaker    function,       State     v.        Gracia,       2013     WI       15,    345

Wis. 2d 488, 826 N.W.2d 87, and State v. Pinkard, 2010 WI 81,

327 Wis. 2d 346, 785 N.W.2d 592.             It also examined two cases in

which   officers    were    found    not    to    be    exercising          a   bona    fide

community caretaker function, State v. Maddix, 2013 WI App 64,

348 Wis. 2d 179, 831 N.W.2d 778, and State v. Ultsch, 2011 WI

App 17, 331 Wis. 2d 242, 793 N.W.2d 505.                 The court concluded:

           In Pinkard and Gracia, the officers had specific
      concerns about the welfare of people known to be
      present in the homes when the officers entered the
      homes.   However, the present case is more similar to
      Maddix in that the officers in this case did not have
      before them any evidence pointing "concretely to the
      possibility that a member of the public was in need of
      assistance" inside Matalonis's home.
Matalonis, unpublished slip op., ¶24 (quoting State v. Maddix,

2013 WI App 64, ¶27, 348 Wis. 2d 179,831 N.W.2d 778).                            The court

of appeals recognized that there were "conflicting versions of

how Matalonis's brother sustained his injuries" but added that

"in no version is there reference to any other person being

injured."      Id.         Ultimately,      the        court    decided,          "A    mere

possibility that another person may be injured without any other

evidence that concretely points to the possibility that a member

of   the   public    required    assistance         does       not    meet       the    more

demanding    objective      reasonable       basis       standard."              Id.,    ¶25

(citing Ultsch, 331 Wis. 2d 242, ¶15).




                                       16
                                                                       No.     2014AP108-CR



      ¶25       The   court    further      held    that,    assuming       the    officers

were acting as community caretakers, id., ¶31, their exercise of

that function was not reasonable because "the public's interest

in   the    intrusion      was      minimal    and . . . did      not       outweigh    the

substantial intrusion upon Matalonis's privacy interest in his

home."      Id., ¶36.          In particular, any exigency that existed

"diminished       significantly        once    the    officers       were    informed    by

Matalonis that he had been involved in a fight with his brother

and that his brother had left," and "by the time the officers

reached the locked door, which at best revealed only very minor

streaks of blood on the door's surface and on the doorknob, a

reasonable officer would have suspected that Matalonis was the

only person in the residence."                     Id., ¶32.     Additionally, "the

degree of authority and force displayed by the officers in this

case was considerable."              Id., ¶33.

      ¶26       Finally,      the    court    determined       that     the       officers'

search did not constitute a lawful protective sweep because "the

evidence     before     the      officers     did    not    provide    an     objectively
reasonable basis for the officers to believe their safety was at

risk."     Id., ¶¶29-30.21

      ¶27       On January 22, 2015, the State filed a petition for

review     in    this   court.         On    April    17,    2015,    we     granted    the

petition.

      21
       Judge Blanchard dissented and would have upheld the
search on community caretaker grounds. See State v. Matalonis,
No. 2014AP108-CR, unpublished slip op., ¶38 (Wis. Ct. App.
Dec. 23, 2014) (Blanchard, P.J., dissenting).


                                              17
                                                                         No.       2014AP108-CR



                                III. STANDARD OF REVIEW

       ¶28    When we review an order granting or denying a motion

to    suppress      evidence,      we    are    presented        with    a     question     of

constitutional           fact     requiring        application          of     a     two-step

analysis.         State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302,

786   N.W.2d 463         (citations      omitted).         "First,       we     review     the

circuit court's findings of historical fact under a deferential

standard,     upholding         them    unless     they    are    clearly          erroneous.

Second,      we    independently        apply      constitutional            principles     to

those facts."        Id. (citations omitted).

                                        IV.    ANALYSIS

       ¶29    The Fourth Amendment to the United States Constitution

and   Article       I,   § 11     of    the    Wisconsin    Constitution             prohibit

"unreasonable searches and seizures."                      U.S. Const. amend. IV;

Wis. Const. art. 1, § 11. "[W]arrantless searches of homes are

presumptively        unreasonable."            Robinson,     327    Wis. 2d 302,           ¶24

(citation omitted).             As we have noted, however, "the nature of a

police officer's work is multifaceted."                     State v. Kramer, 2009
WI 14, ¶32, 315 Wis. 2d 414, 759 N.W.2d 598.                      Put differently,

            Police   officers   wear   many   hats:   criminal
       investigator, first aid provider, social worker,
       crisis intervener, family counselor, youth mentor and
       peacemaker, to name a few. They are charged with the
       duty to protect people, not just from criminals, but
       also from accidents, natural perils and even self-
       inflicted injuries.     We ask them to protect our
       property   from   all  types  of   losses——even   those
       occasioned by our own negligence.     They counsel our
       youth.   They quell disputes between husband and wife,
       parent and child, landlord and tenant, merchant and
       patron and quarreling neighbors. Although they search
       for clues to solve crime, they also search for missing

                                              18
                                                                  No.    2014AP108-CR


    children, parents, dementia patients, and occasionally
    even an escaped zoo animal.       They are society's
    problem solvers when no other solution is apparent or
    available.
Ortiz v. State, 24 So. 3d 596, 607 n.5 (Fla. Dist. Ct. App.

2009) (Torpy, J., concurring and concurring specially).

    ¶30     We have acknowledged that "a police officer serving as

a community caretaker to protect persons and property may be

constitutionally permitted to perform warrantless searches and

seizures."     State v. Pinkard, 2010 WI 81, ¶14, 327 Wis. 2d 346,

785 N.W.2d 592.         An officer's community caretaker function is

"totally     divorced     from      the        detection,   investigation,         or

acquisition of evidence relating to the violation of a criminal

statute." Kramer, 315 Wis. 2d 414, ¶¶19, 23 (quoting Cady v.

Dombrowski, 413 U.S. 433, 441 (1973)).22 That is, an officer's

community caretaker function is distinct from the officer's law

enforcement function.          See Pinkard, 327 Wis. 2d 346, ¶¶18, 31

(citation     omitted).        In     sum,      we   need   not     invalidate     a

warrantless search of a residence if the search was conducted

pursuant to a police officer's reasonable exercise of a bona

fide community caretaker function.               See id., ¶¶28-29.

    ¶31     Our    community     caretaker       analysis   is    the    same   under

both the United States and Wisconsin Constitutions.                        State v.

Gracia,     2013   WI    15,   ¶14,       345    Wis. 2d 488,      826    N.W.2d 87


    22
       As we will explain shortly, however, see infra ¶32, an
officer engaged in a bona fide community caretaker function
might also possess subjective law enforcement concerns.     State
v. Pinkard, 2010 WI 81, ¶31, 327 Wis. 2d 346, 785 N.W.2d 592.


                                          19
                                                         No.     2014AP108-CR



(citation omitted).      As always, "[t]he ultimate standard set

forth in the Fourth Amendment is reasonableness."              Pinkard, 327

Wis. 2d 346, ¶13 (citing Cady, 413 U.S. at 439).               However, we

analyze the reasonableness of a residential search alleged to be

justified under the community caretaker doctrine using a three-

step test:

    (1) whether 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 (footnote omitted) (citation omitted).          The State bears

the burden of proving that these factors have been met.                  Id.

(citation omitted).

    ¶32   With regard to the second step,

         When evaluating whether a community caretaker
    function is bona fide, we examine the totality of the
    circumstances as they existed at the time of the
    police conduct.      In so doing . . . the "totally
    divorced" language from Cady does not mean that if the
    police officer has any subjective law enforcement
    concerns, he cannot be engaging in a valid community
    caretaker function.      Rather, . . . in a community
    caretaker context, when 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.

Kramer, 315 Wis. 2d 414, ¶30 (citations omitted).
    ¶33   The   third   step   requires   us   to   "balance    the   public

interest or need that is furthered by the officers' conduct
against the degree and nature of the intrusion on the citizen's

                                   20
                                                                      No.       2014AP108-CR



constitutional        interest."          Pinkard,       327     Wis. 2d 346,           ¶41

(citation       omitted).       Four     considerations         are        of    immediate

relevance to this question:

       (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.

Gracia, 345 Wis. 2d 488, ¶15 (citation omitted).
       ¶34     The State does not contest that the officers conducted

a search of Matalonis's residence, including of the locked room

containing the marijuana plants.               Therefore, we need only decide

whether      the   officers    were     exercising      a    bona     fide       community

caretaker function and doing so in a constitutionally reasonable

manner.        Because we conclude that the officers in this case

reasonably exercised a bona fide community caretaker function

when    they    searched    Matalonis's        home,    we     need    not       determine

whether the search was justified as a protective sweep.

                   A. Whether the Officers Were Exercising a
                      Bona Fide Community Caretaker Function
       ¶35     It is obvious to all, in hindsight, that Matalonis's

home did not in fact contain a "member of the public . . . in

need of assistance."          Kramer, 315 Wis. 2d 414, ¶32.                 But that is

not    the   question    before    us    today.        Instead,       we    must    decide

whether, "under the circumstances as they existed at the time of

the police conduct, [the officers were] engaged in a bona fide
community caretaker function."                 Pinkard, 327 Wis. 2d 346, ¶31

                                          21
                                                                       No.    2014AP108-CR



(emphasis       added)     (citation      omitted).               Therefore,       we    are

concerned with the extent of the officers' knowledge at the time

they conducted the search, not after.

       ¶36     We have no difficulty concluding that the officers in

this    case    were     engaged   in    a    bona     fide       community       caretaker

function at the time they searched the house and the locked

room.     The events that unfolded before the officers——when viewed

without      the    benefit   of   hindsight——are           alarming,        to    say   the

least.

       ¶37     The officers, responding to a medical call at almost

three in the morning, are confronted with a beaten, bloody, and

"highly intoxicated" man, injured to an extent sufficient to

justify an ambulance ride to the hospital.                     The man provides the

officers      with   inconsistent        accounts      of     how    many     people     had

injured      him,    but   both    accounts         feature       multiple        potential

assailants.         The officers find blood on a door and a stairway

and a "trail" of blood in the snow.                  At the end of the trail the

officers find a residence bearing more blood-stained doors, and
hear loud bangs inside the residence.                      The officers, noting the

"pretty      significant      amount     of       blood"    and     fearing       potential

injured      persons     inside    the    residence,         call    for     backup      and

proceed to knock on the front door of the home.

       ¶38     Answering the front door is a breathless, shirtless,

and "pretty upset" man, Matalonis, who informs the officers that

he lives alone and that he had fought with his brother Antony,

who has since left.           This statement was contrary to information
the officers already possessed in three respects.                        First, Antony
                                             22
                                                                  No.    2014AP108-CR



had told the officers that he was beaten up by multiple people.

Second, Antony had told the officers he sustained his injuries

outside of a bar. Third, the officers had been told at the

previous residence that Antony lived with his brother.                      Officer

Yandel notices blood on the floor and the stairs.

       ¶39   At this point, according to the court of appeals, "the

exigent      nature    of     the    situation,"      if    any,        "diminished

significantly."        Matalonis, unpublished slip op., ¶32.                    We do

not agree with this contention.               Instead, the officers now had

to make a decision after observing: (1) lots of blood, including

some blood in the house before them; (2) an injured person; and

(3) inconsistent stories regarding the number of participants in

the fight, whether Matalonis lived alone, and exactly what had

transpired.      The    officers     requested    and     obtained      entry    into

Matalonis's house.          The officers maintained "that because there

was blood in the house, [they] just wanted to make sure that no

one else was injured."

                            1. The Inception of the Search
       ¶40   After the officers' entry into the home, the search in

question began.        We ignore, for the time being, the officers'

conduct toward Matalonis; this will become relevant at the next

step of our analysis.            Instead, we ask whether, based on the

circumstances at the time, the officers were engaged in a bona

fide   community      caretaker     function     at   the   inception       of    the

search.

       ¶41   We conclude that they were.                As the circuit court
found——and     the     circuit      court's     finding     was     not     clearly
                                       23
                                                                             No.    2014AP108-CR



erroneous——the officers were not searching for evidence, but for

injured parties.               See State v. Popke, 2009 WI 37, ¶20, 317

Wis. 2d 118, 765 N.W.2d 569 (under clearly erroneous standard,

"we    are       bound   not    to    upset       the    trial      court's        findings   of

historical or evidentiary fact unless they are contrary to the

great weight and clear preponderance of the evidence" (citation

omitted)).         This is the quintessence of the community caretaker

function.         See, e.g., Pinkard, 327 Wis. 2d 346, ¶¶14, 34.

       ¶42       The State has shown "an objectively reasonable basis

for the community caretaker function."                        Kramer, 315 Wis. 2d 414,

¶30.    Although         the   court       of    appeals      stated        that    "[a]   mere

possibility that another person may be injured without any other

evidence that concretely points to the possibility that a member

of    the    public      required         assistance         does    not     meet    the   more

demanding         objective      reasonable           basis      standard,"         Matalonis,

unpublished slip op., ¶25 (citation omitted), there was "other

evidence" in this case:               blood inside the house, the loud bangs

heard       by    the    officers         while       they    were     outside,       Antony's
statement        that    multiple      other      individuals         were    involved,       and

Matalonis's        assertions        to    the    contrary,         which    were    therefore

suspect (as was Antony's account).23                         The officers did not know

who to believe or what had happened.                          At Matalonis's door, the

officers were basically told, "Yes, I just beat a drunken man

       23
       Matalonis's   statements were  also  suspect   because,
although the resident at the original address had told the
officers that Antony lived with Matalonis, Matalonis told the
officers that he lived alone.


                                                 24
                                                                           No.     2014AP108-CR



senseless, but there's nothing to see here; all this blood is

his."       The officers need not have had their concerns assuaged by

Matalonis's explanation.24

       ¶43        The court of appeals apparently relied to some extent

on the fact that, in some of our other cases upholding searches

under       the     community        caretaker       doctrine,      namely       Pinkard    and

Gracia, "officers had specific concerns about the welfare of

people      known        to   be    present    in     the   homes    when    the     officers

entered       the       homes."        Matalonis,       unpublished        slip     op.,    ¶24

(emphasis added).              Here, it is true, the officers did not know

that there was an injured individual in any of the home's rooms.

But    the     Fourth         Amendment       does    not    inflexibly      require       that

officers       be       concerned     about    specific,         "known"   individuals       in

order to be acting as community caretakers.

       ¶44        For     instance,      the     case       in    which     the     community

caretaker doctrine "has its origins," Cady v. Dombrowski, 413

U.S.     433       (1973),         involved    Wisconsin         police    taking     actions

directed toward the welfare of unknown individuals.                                  Pinkard,
327    Wis. 2d 346,           ¶15.       In    Cady     a   Wisconsin      police     officer

searched the trunk of a vacant car that had been towed to a


       24
       We recognize that it is possible, and even likely, that
the officers in this case were also motivated by the desire to
investigate a potential battery.     However, "when 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."   State v. Gracia, 2013 WI 15, ¶19, 345
Wis. 2d 488, 826 N.W.2d 87.


                                                25
                                                                             No.   2014AP108-CR



privately-owned garage.              Cady v. Dombrowski, 413 U.S. 433, 436-

37 (1973).         The car belonged to a man who had become drunk,

crashed the car, and later identified himself to police as a

Chicago police officer.                  Id. at 435-37.           The Wisconsin police

officer      searched       the    car     "to       protect     the    public       from    the

possibility that [the Chicago police officer's service] revolver

would fall into untrained or perhaps malicious hands."                                  Id. at

437, 443.      The police did not find a revolver in the car.                                 Id.

at 436.      The Supreme Court upheld the search.                           See id. at 446.

Cady thus involved (1) a search based on the potential existence

of a dangerous object, (2) to protect against the potential that

some unknown person might be harmed by the object.                                 See id. at

447.

       ¶45    In     Bies    v.    State,        76    Wis. 2d 457,          251   N.W.2d 461

(1977),      which    constituted         "our       very    first     discussion       of   the

community      caretaker          exception       to     the     warrant       requirement,"

Pinkard,      327      Wis. 2d 346,         ¶21,        an     officer        responded       to

information         provided        by     an        anonymous       telephone        caller——
information        "therefore . . . not                possessed       of     even     minimal

'indicia      of    reliability,'"——that               "someone"       was    "making       noise

shortly after midnight" in an unspecified garage in an alley.

Bies v. State, 76 Wis. 2d 457, 461, 470, 251 N.W.2d 461 (1977).

We stated,

       Checking noise complaints bears little in common with
       investigation of crime.    As a general matter it is
       probably more a part of the "community caretaker"
       function of the police. . . . The officer was clearly
       justified in proceeding to the alley in question and
       conducting a general surveillance of the area to

                                                26
                                                                        No.       2014AP108-CR


       determine whether some noise or other disturbance was
       present.
Id. at 471.        Bies thus involved an investigation that was only

marginally directed at the welfare of an identifiable person,

the anonymous caller.

       ¶46   In a more recent case, Kramer, there was no dispute

between the parties that, but for the possibility of certain

subjective    concerns,         an    officer      was    acting       in     a    community

caretaker     capacity         when   he    activated         his     police       cruiser's

emergency    overhead      lights      while     pulling       up    behind       a   vehicle

which was legally parked on the side of the road and which had

activated its hazard lights.                 Kramer, 315 Wis. 2d 414, ¶¶4-5,

22, 24, 37.       The officer in that case "testified that his reason

for    stopping    was    to    'check      to   see     if   there    actually         was    a

driver, [and to] offer any assistance.'"                            Id., ¶5 (emphasis

added).      We later acknowledged that the officer did not know

"what was going on inside the vehicle, or whether there was a

driver present," id., ¶38 (emphasis added), and did so again

when    we   explained         that   "it    was       [the    officer's]          community
caretaker function of offering assistance to what could have

been a motorist stranded in a stalled vehicle after dark that

led to the officer's contact with Kramer."                          Id., ¶39 (emphasis

added).

       ¶47   Although the parties in that case were litigating the

constitutional implications of the officer's subjective concerns

rather than whether the officer's actions constituted community
caretaking    in    the    first      place,      see     id.,      ¶24,    the       case    is


                                            27
                                                                  No.       2014AP108-CR



illustrative for our purposes.              Requiring an officer such as the

one in Kramer to have concern for specific, "known" individuals

in order to be acting as a community caretaker might well mean

that    an    officer       would   have   to    have   some    kind    of    evidence

pointing to the presence of specific individuals in a stalled,

abandoned, or overturned vehicle on the side of the road before

he     or    she    could     investigate       the   vehicle    as     a    community

caretaker.

       ¶48    Kramer suggests, like Cady and Bies, that whether the

police are acting in their capacity as community caretakers does

not depend upon whether the police are acting to protect persons

that have been specifically identified.                    The reverse is also

true: just because the police are acting to protect a person

that has been specifically identified does not mean that the

police are acting in their capacity as community caretakers.

See, e.g., Ultsch, 331 Wis. 2d 242, ¶¶1, 3-4 (police not engaged

in community caretaker function when they entered home to locate

driver of damaged vehicle after driver's boyfriend informed the
officers the driver was "up at the house 'possibly in bed or

asleep'").         We cannot lose sight of the fact that the question

of the lawfulness of the officers' conduct is ultimately one of




                                           28
                                                             No.     2014AP108-CR



reasonableness.          Pinkard,      327    Wis. 2d 346,    ¶13     (citation

omitted).25

      ¶49    The blood in this case——on the stairwell of the first

apartment, in the snow, on the side doors of Matalonis's house,

on the floor of the foyer of Matalonis's house, and leading up

to   the    stairwell   in   Matalonis's      house——came    from    somewhere,

obviously, and Antony indicated that multiple individuals were

involved     in   the   fight   that    led   to   his   injuries.       Antony

initially told Officer Ruha that he had been beaten up by four

different groups of people outside of a bar, but later said that

he was beaten up by four people outside of a bar.              Matalonis, in

contrast, told the officers that he and Antony alone had fought.

Additionally, the resident at the address to which the officers

had first responded told the officers that Antony lived with his

      25
       The court of appeals below relied upon a formulation of
the "objectively reasonable basis" test it had earlier set forth
in its Ultsch opinion, namely that "there must have been 'an
"objectively reasonable basis" to believe there [was] "a member
of the public who [was] in need of assistance."'"      Matalonis,
unpublished slip op., ¶15 (quoting State v. Ultsch, 2011 WI App
17, ¶15, 331 Wis. 2d 242, 793 N.W.2d 505).         This slightly
misleading phrasing was created by splicing together two
distinct quotations from Kramer.    See Ultsch, 331 Wis. 2d 242,
¶15 (quoting State v. Kramer, 2009 WI 14, ¶¶30, 32, 315
Wis. 2d 414, 759 N.W.2d 598). Our original formulation of that
test was that there must be "an objectively reasonable basis for
the community caretaker function." Kramer, 315 Wis. 2d 414, ¶30
(emphasis added).    We also stated in Kramer that an officer
"serves as a necessary community caretaker when the officer
discovers a member of the public who is in need of assistance."
Id., ¶32.     This statement should not be read to require
certainty as to whether a dangerous situation involves the
presence of individuals.    As we have explained, Kramer itself
arguably implied that that kind of certainty is not required.


                                        29
                                                               No.     2014AP108-CR



brother, but Matalonis told the officers that he lived alone.

Officers Ruha and Yandel were apparently concerned that perhaps

Matalonis was not telling the truth.                They had also heard loud

noises coming from inside Matalonis's residence.                     The evidence

in   this   case   sufficiently    provides        an   objectively    reasonable

basis for the police to believe an injured individual needed

their help.        We conclude that the officers in this case were

engaged     in   the   exercise   of   a    bona   fide   community     caretaker

function when they searched Matalonis's home.26

      26
       The court of appeals thought that this case was similar
to State v. Maddix "in that the officers in this case did not
have before them any evidence pointing 'concretely to the
possibility that a member of the public was in need of
assistance'   inside  Matalonis's  home,"  but   that  case  is
distinguishable. See Matalonis, unpublished slip op., ¶24. In
Maddix evidence pointing to an individual in need of protection
included: (1) a call reporting a domestic disturbance, and (2)
hearing screams from inside the residence upon the officers'
arrival. State v. Maddix, 2013 WI App 64, ¶26, 348 Wis. 2d 179,
831 N.W.2d 778. Once inside the residence, the officers met and
separately interviewed two individuals.      Id.    One of the
individuals explained that she had screamed because "she was
scared but she didn't know what she was scared of."    Id.  The
Maddix court determined that a subsequent search of the
residence did not fall within the scope of the community
caretaker function. Id., ¶25.

     The Maddix court noted that the "female's failure to
identify the source of the fear that caused her to scream" had
been the "primary basis" for the officers' subsequent search of
the apartment. Id., ¶26. Both individuals "gave the same basic
account" of what had happened.   Id., ¶29.   The court explained
that "no evidence directly corroborated the officers' theory
that another person was present in the apartment" and that there
was no "corroboration that someone was in need of assistance."
Id., ¶¶26-28.   During the 25 to 30 minutes that the officers
were in the apartment prior to the inception of the search, the
officers were presented with "virtually no" relevant evidence
                                                     (continued)
                                       30
                                                                         No.    2014AP108-CR



               2. The Search of the House and of the Locked Room

       ¶50   Given      our    conclusion         that    the    officers'      search    of

Matalonis's      home    was    an    exercise       of    the    community      caretaker

function, we examine whether the officers were presented with

evidence     during     their       search   that        rendered     that     function   no

longer necessary or otherwise negated it.                             If the officer in

Bies had discovered a person loudly playing music in the alley

in    question,    for    example,         the    officer       might    not    have   been

justified in continuing his search after asking that the music

be turned off.          See Maddix, 348 Wis. 2d 179, ¶¶29-30 (officers

who    entered    apartment          and     interviewed          occupants      "properly

exercised their community caretaker function and achieved the

purpose for which they were dispatched" and were not justified

in    also   searching        the   apartment).            As    we   have     made   clear,

"such as noises, nervous behavior by Maddix or the female, or
statements by either of them that implied the presence of
another person." Id., ¶28.

     In this case, in contrast, the blood trail and significant
amounts of blood that the officers discovered supported the
officers' theory that an individual in Matalonis's residence was
in need of assistance.      This theory was "corroborated" by
Antony's statement that multiple individuals were involved. In
contrast to Maddix, moreover, the parties involved in this case
did not "[give] the same basic account." Id., ¶29 Finally, the
officers perceived suspicious noises coming from within the
residence   and  were   confronted  by   Matalonis's  suspicious
behavior: he answered the door breathless and "pretty upset" and
offered a version of events that did not match the information
the officers had gained earlier.   While the Maddix court found
"no . . . facts," id., ¶30 (emphasis added), suggesting someone
else was present, here there was sufficient evidence supporting
the officers' concern that someone was in need of their
assistance.


                                             31
                                                                       No.    2014AP108-CR



Matalonis's      explanation           was    not    sufficient     for    this   purpose

because,      among       other   things,      the     officers     already    possessed

contrary information.

       ¶51    The     officers'        community       caretaking     logically     would

have been fulfilled only after they had checked the areas of the

home where persons might be located.                       The circuit court found

that "[the officers] searched only in areas where there was

blood    found      and    they   didn't       search     drawers    or    places   where

obviously people could not hide but only rooms and larger areas

where bodies might be found."                   This conclusion is not clearly

erroneous.

       ¶52    During his search, Officer Ruha located numerous signs

of drug use.           This does not invalidate the search.                       "[W]hen

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."           Gracia,     345     Wis. 2d 488,      ¶19.

Police officers do not operate in a vacuum and may be confronted
with evidence of criminal activity as they seek to execute tasks

that    are   not     related     to    law    enforcement.         See    Pinkard,   327

Wis. 2d 346, ¶¶18, 40.            The fact that there was evidence of drug

use in the house was not Officer Ruha's fault, and we find no

reason to disturb the circuit court's conclusion that the reason

for the search was to check the house for injured parties.

       ¶53    Similarly, we are convinced that Officer Ruha had the

welfare of potentially injured parties in mind when he obtained
access to the locked room in question.                      Upstairs, Officer Ruha
                                               32
                                                                     No.     2014AP108-CR



had found "blood all over the handrail.                   There was a mirror that

was down that was broken.             There [were] shards laying all over

the   floor."         These   were    further        signs   of     an     altercation.

Officer Ruha then observed (1) a locked door, (2) with blood on

it.     If Matalonis had been lying about the presence of injured

parties,     the   room       was    obviously       a     likely    candidate       for

concealment of those parties.                 When Matalonis was questioned

about the door, Officer Yandel "noticed [Matalonis's] breathing

started becoming faster.            [Matalonis] looked nervous to" Officer

Yandel.     At that time the officers clearly had not yet completed

their    legitimate     community     caretaking         function.         The    circuit

court put it well:

      [W]ith someone who is bleeding, someone who is taken
      away by ambulance, to have a locked door in a house
      with blood on that door and not search behind that
      door and to later find that there's a dead body or a
      bleeding body or a person in need of medical
      assistance behind that door I think would not only be
      improper, it would be a sign of poor police work.
      ¶54   Again, we recognize that the officers may have had

other subjective, enforcement-related interests at this time.

In particular, Officer Ruha testified that he heard a running

fan behind the locked door and smelled marijuana.                          If these two

facts    were   the    only    relevant       ones       before   Officer        Ruha,   a

warrantless entry might not have been justified.                         But in light

of all the facts that Officer Ruha had to consider——the blood

(outside the house, inside the house, and on the door itself),

the fact that the door was locked, the conflicting stories, and
the noises the officers had heard——Officer Ruha's testimony that


                                         33
                                                              No.   2014AP108-CR



he heard a fan inside the locked room and smelled marijuana does

not    negate     the     officers'   bona     fide   community     caretaking

function.       See Gracia, 345 Wis. 2d 488, ¶19.           The potential for

the presence of marijuana in the locked room did not render it

impossible that there were also injured parties in that room.27

       ¶55   It is easy, after the fact, to say that there was not

an    injured    person    behind   the    locked   door.    But    the   police

officers in this case had to rely solely on the facts they

possessed at the time.          Had there been a bludgeoned, bleeding

person suffering inside that locked room and had law enforcement

not investigated, we would be wondering why not, considering the

facts before them.         Simply stated, we expect law enforcement to

respond to exigent situations, and that is just what they did in

this case.




       27
       Counsel for Matalonis found significant the fact that
Officer Ruha asked Matalonis "what" was in the locked room, as
opposed to "who" was in the locked room. We do not ascribe the
same significance to Officer Ruha's choice of words. First, we
do not think it prudent to imbue a single word with so much
consequence, especially given that events on the night in
question unfolded rapidly.     Second, had there actually been
injured persons in the locked room, Matalonis would have been
actively concealing those persons from the police, and would
therefore not necessarily be expected to freely admit to doing
so in response to a question about the contents of the room.
For all we know, Officer Ruha framed the question the way he did
in order to gauge Matalonis's reaction, or to appear less
concerned than he actually was so as to keep Matalonis's guard
down.   There is not enough evidence in the record to ascertain
the reason for Officer Ruha's particular phrasing of the
question.


                                          34
                                                                           No.     2014AP108-CR



       ¶56     We conclude that the officers were exercising a bona

fide community caretaker function when they searched Matalonis's

home   for     injured      parties.         This    function        continued       for     the

duration of Officer Ruha's search of the home, including of the

locked room.

                     B. Whether the Officers Exercised their
                      Community Caretaker Function Reasonably
       ¶57     All   that     has     been       determined         thus    far,      from     a

constitutional        perspective,          is    that    a    search      of     Matalonis's
house occurred, and that the officers conducted that search in

good faith as community caretakers in order to locate injured

parties.

       ¶58     The   State     still    retains          the    burden,          however,     of

showing that the officers exercised their community caretaker

function reasonably.            We must "balance the public interest or

need that is furthered by the officers' conduct against the

degree       and     nature     of     the        intrusion         on     the      citizen's

constitutional         interest,"           Pinkard,          327    Wis. 2d 346,            ¶41

(citation omitted), and consider:

       (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.
Gracia, 345 Wis. 2d 488, ¶15 (citation omitted).                                 We conclude

that     the    officers      in     this    case        exercised        their     community
caretaker      function       reasonably.           Although        the    nature     of     the

                                             35
                                                              No.     2014AP108-CR



officers' intrusion was substantial, the public interest to be

served by the intrusion was also substantial, and the nature of

the intrusion was strictly limited to the requirements of the

situation.

      ¶59   The public has a significant interest in ensuring the

safety of a home's occupants when officers cannot ascertain the

occupants'      physical   condition    and   reasonably      conclude        that

assistance is needed.       Pinkard, 327 Wis. 2d 346, ¶¶45-48 (citing

State v. Ziedonis, 2005 WI App 249, ¶29, 287 Wis. 2d 831, 707

N.W.2d 565).      Here, Officer Ruha and Officer Yandel reasonably

concluded    based    on   the   evidence     before    them         that   their

assistance was needed to verify that the blood in Matalonis's

house did not belong to an injured person other than Antony.

The situation was exigent in nature.             The officers were not

responding to a mere noise complaint, such as occurred in Bies,

but   instead    investigating   the    possibility    that    a     person   lay

injured, perhaps critically, in Matalonis's home.                   If the blood

in the house belonged to someone besides Antony who "had been
seriously injured[,] . . . quick medical assistance would have

been necessary."      Gracia, 345 Wis. 2d 488, ¶25 (applying first




                                       36
                                                                     No.    2014AP108-CR



factor of balancing test to situation involving individual who

potentially had been injured in a car accident).28

     ¶60   The    attendant        circumstances        surrounding        the    search

demonstrate      the     reasonableness        of      the    search,       given     the

circumstances.         Before we analyze this factor, we emphasize the

fact that we are not here presented with a police officer's

warrantless,     nonconsensual        entry     into    a    home.         Instead,   we

examine    whether      the    officers    in       this     case,    while      already

lawfully in Matalonis's home, acted reasonably in searching the

rooms of the home without consent.                     Nevertheless, the police

undeniably    intruded        on   Matalonis's      significant       constitutional

right "to retreat into his own home and there be free from

unreasonable     governmental        intrusion."             Silverman      v.    United




     28
       Matalonis argues that if the police had actually believed
the situation was urgent, they would have immediately kicked
down the door to the locked room without going to the trouble of
obtaining the key from Matalonis. We are not convinced by this
argument.   The decisive issue before us is whether the conduct
of the police while at Matalonis's residence was reasonable,
see Pinkard, 327 Wis. 2d 346, ¶13, and the police must similarly
ensure that they are acting reasonably as situations before them
progress.   If the police had immediately broken down the door
without asking for a key, Matalonis would likely be arguing that
"the degree of overt authority and force displayed" was
unreasonable.   Gracia, 345 Wis. 2d 488, ¶15 (citation omitted).
Because our analysis of whether the officers exercised the
community caretaking function reasonably is a balancing test, we
are concerned with the officers' conduct as a whole.     A quick
detour to attempt to obtain a key to the locked room (as well as
to ask Matalonis about the room) in order to avoid having to
kick down a door in Matalonis's house does not prove that the
situation was something less than exigent.


                                          37
                                                                    No.    2014AP108-CR



States, 365 U.S. 505, 511 (1961) (citation omitted); see Payton

v. New York, 445 U.S. 573, 586-87, 589-90 (1980).

    ¶61       The officers did not choose the time or location of

the search because they were initially responding to a medical

call and reacting to evidence discovered upon their arrival.

See Pinkard, 327 Wis. 2d 346, ¶49 (officers did not control time

of day or location because they were responding to an anonymous

tip).     As for the search itself, as we have noted, the circuit

court found "[the officers] searched only in areas where there

was blood found and they didn't search drawers or places where

obviously people could not hide but only rooms and larger areas

where bodies might be found. "

    ¶62       We agree with the court of appeals that the degree of

authority and force the officers displayed was "considerable":

"Officer     Ruha       conducted     a   warrantless      search   of    Matalonis's

residence      without         Matalonis's        consent, . . .     Matalonis     was

detained in his living room with Officer Yandel, and Officer

Ruha threatened to break down the locked door on the second
floor   if    a     key   to    the   door    was    not   provided."      Matalonis,

unpublished slip op., ¶33.                   However, the authority and force

displayed         was     appropriate        for     the    legitimate      community

caretaking objective the officers were pursuing.                          In order to

ensure that there were no injured parties in Matalonis's house,

Officer      Ruha    needed      to   check    the    rooms   of    the   house,   and

quickly.       Obtaining a warrant was not practicable given the

exigency of the situation.                Further, and for the same reason,
the officers needed to obtain immediate access to the locked
                                             38
                                                                        No.     2014AP108-CR



room.     In asking Matalonis for a key to the room rather than

abruptly breaking it down, Officer Ruha was attempting to use

less authority and force than might have been justified under

the     circumstances.           See   Pinkard,       327    Wis. 2d 346,            ¶¶50-51

(citing     State      v.    Horngren,      2000      WI     App       177,        ¶17,   238

Wis. 2d 347,     617       N.W.2d 508)     (exigency        of    situation         rendered

officers' actions reasonable).                  Matalonis was detained on the

living room couch in his own home while Officer Ruha checked the

rooms of the home.           However, Matalonis was not handcuffed.                         He

was not placed under arrest.             There is no evidence in the record

that Matalonis was frisked.              There is no evidence in the record

that a weapon was ever pointed at Matalonis.                           All in all, the

force     and    authority         displayed         in     this        situation         was

"considerable" but appropriately tailored to the needs of the

situation.      See id., ¶55 ("The officers' search was limited to

minimize the intrusion into Pinkard's home.").

      ¶63   No automobile was involved in this case.                          "This is not

a   relevant    factor      here   except       to   recognize         that    one    has    a
heightened privacy interest in preventing intrusions into one's

home."    Pinkard, 327 Wis. 2d 346, ¶56.

      ¶64   Finally,        we   consider    the     "availability,            feasibility

and   effectiveness         of   alternatives        to    the    type    of       intrusion

actually accomplished."            Gracia, 345 Wis. 2d 488, ¶15 (citation

omitted).       As    we    have   said,    a    warrant         was   not     a    feasible

alternative.         The court of appeals below thought the officers

could have "ask[ed] Matalonis whether there was anyone injured
(or uninjured) in his home."                Matalonis, unpublished slip op.,
                                           39
                                                                  No.    2014AP108-CR



¶35.     We note that the officers asked Matalonis who lived at his

residence and Matalonis told the officers that he lived alone.29

Officer Ruha also asked Matalonis about the contents of the

locked room (and was lied to).                 Given their time constraints,

and the fact that the officers "would not have been required to

accept      at    face    value"   Matalonis's     responses,      id.    (citation

omitted),        further    questioning    was    not   clearly     an    effective

alternative to the route actually taken by the officers.                      It is

difficult to second-guess credibility determinations invariably

made by the officers on the night in question.

       ¶65       The one additional step not taken by Officer Ruha that

he could have taken was to knock on the locked door and call out

to potential parties on the other side of the door.                        However,

had there been no answer, the officers would have had the same

cause for concern.           An injured party on the other side of the

door    could      be    unconscious,   incapacitated,     or     dead.      Though

available and feasible, the alternative would not, ultimately,

have been effective; Officer Ruha's failure to knock on the
locked door only marginally reduces the reasonableness of his

actions, if at all.30

       29
       As has been explained, this statement by Matalonis was
inconsistent with information the officers had received at the
first address to which they had responded.
       30
       Counsel for Matalonis found Officer Ruha's failure to
knock on the door to the locked room probative.     But Officer
Ruha's failure to knock on the door is not enough, standing
alone, to disturb the circuit court's finding that the officers
were in fact searching for injured parties.   We do not possess
sufficient information regarding Officer Ruha's thought process
                                                    (continued)
                                          40
                                                                     No.     2014AP108-CR



     ¶66       Taken    together,     our     balancing     test     shows:      (1)     a

significant       public   interest     and      an   exigent   situation;        (2)   a

significant intrusion on Matalonis's constitutional rights, but

one tailored to the needs of the situation; and (3) few or no

available, feasible, and effective alternatives.                           We conclude

that,     on    balance,     the   officers'      exercise      of    the     community

caretaker function was reasonable "because the public interest

in   the       search   outweighed      [Matalonis's]       privacy         interests."

Gracia, 345 Wis. 2d 488, ¶30.

                                      V. CONCLUSION

     ¶67       We conclude that the officers in this case reasonably

exercised a bona fide community caretaker function when they

searched       Matalonis's    home.      The     officers    therefore        were     not

required to obtain a warrant prior to conducting the search in

question, and the evidence of marijuana production they obtained

should not be suppressed.31            Because the search was lawful under


in the face of a developing situation to decide that asking
Matalonis for access to the locked room rather than pounding on
the door demonstrates that Officer Ruha was unconcerned about
injured parties. And on the other side of the ledger, although
Officer Ruha did not knock on the door to the locked room, he
testified that he announced "Kenosha Police" as he entered the
locked room. This would tend to show that Officer Ruha believed
there might have been individuals in the room.
     31
       The State contends, and we agree, that if the officers'
search was justified as a reasonable exercise of a bona fide
community caretaker function, the officers "acted within the
scope of the plain view doctrine when they seized contraband
from the residence, including the locked room."      See Pinkard,
327 Wis. 2d 346, ¶62; Gracia, 345 Wis. 2d 488, ¶29 n.14
(explaining plain view exception to the warrant requirement).


                                            41
                                                            No.   2014AP108-CR



the community caretaker doctrine, we need not determine whether

the search was also justified as a protective sweep.              We reverse

the decision of the court of appeals and remand the case to the

circuit    court   for   further   proceedings      consistent    with   this

opinion.



    By     the   Court.—The   decision   of   the   court   of    appeals   is

reversed, and the cause is remanded to the circuit court for

further proceedings consistent with this opinion.




                                    42
                                                                          No.    2014AP108-CR.ssa




       ¶68    SHIRLEY         S.    ABRAHAMSON,        J.     (dissenting).             I    agree

with   Justice       David         T.   Prosser      that     the    community        caretaker

exception is important but cannot be interpreted so broadly as

to swallow the Fourth Amendment.                       See, e.g., State v. Gracia,

2013 WI 15, ¶¶42-46, 345 Wis. 2d 488, 826 N.W.2d 87 (Abrahamson,

C.J., dissenting, joined by Ann Walsh Bradley, J. & Prosser,

J.); Gracia, 345 Wis. 2d 488, ¶¶47-90 (Prosser, J., dissenting,

joined by Abrahamson, C.J. & Ann Walsh Bradley, J.); State v.

Pinkard, 2010 WI 81, ¶¶64-101, 327 Wis. 2d 346, 785 N.W.2d 592

(Ann Walsh Bradley, J., dissenting, joined by Abrahamson, C.J. &

Prosser, J.).           Accordingly, I join Justice Prosser's dissent.

       ¶69    I write separately not only to reaffirm my assessment

that this court has taken too broad a view of the community

caretaker      exception,          but    also    to    memorialize         once      again    the

approach being taken in the instant case and in other cases

argued     and    tentatively           decided      before    a    new     justice's        (here

Justice Rebecca G. Bradley's) appointment to the court, and to
compare the practice at this time with past practice in this

court and in the United States Supreme Court.

       ¶70    As I have written previously, these cases "pose[] the

question of how a case should be treated by the court when the

case was heard and decided before a new justice became a member

of   the     court      and    the      new   member    joins       the    court      before    an

opinion      is    released."             New    Richmond      News       v.     City   of     New

Richmond,        2015    WI    106,      ¶7,     365   Wis. 2d 610,             ___   N.W.2d ___
(Abrahamson, J., concurring).

                                                 1
                                                             No.   2014AP108-CR.ssa


     ¶71    Let me briefly set forth the facts and circumstances

of the change in membership of the court, the status of cases

heard in September and October, and the issues raised by a new

justice's joining the court at this time.1

     ¶72    Justice N. Patrick Crooks passed away on September 21,

2015.     Justice Rebecca G. Bradley joined the court on October 9,

2015.

     ¶73    Prior   to   September   21,       2015,   the   court    heard   oral

argument in the instant case and eight other cases.                   Justice N.

Patrick Crooks participated in these nine cases.                   No opinion was

released    in   these   nine    cases       prior   to   Justice     Rebecca   G.

Bradley's joining the court.         These nine cases are set forth in

the attached oral argument schedule (Attachment A) released by

the Clerk of the Supreme Court.

     ¶74    In addition, after Justice N. Patrick Crooks passed

away on September 21, 2015, and prior to Justice Rebecca G.

Bradley's appointment, the court heard oral argument in seven

cases on September 22, October 5, and October 6, 2015.                          No
opinion    was   released   in   these       seven   cases   prior    to   Justice

Rebecca G. Bradley's appointment to the court.                       These seven

cases are set forth in the attached oral argument schedules




     1
       I am not writing about the Office of Lawyer Regulation
lawyer discipline cases and petitions for review or bypass and
certifications by the court of appeals.   These matters are too
numerous and involve a large variety of factual patterns. They
do, however, present issues similar to those presented by the
oral argument cases.


                                         2
                                                                               No.    2014AP108-CR.ssa


(Attachments            A    and   B)     released        by    the    Clerk     of    the     Supreme

Court.

       ¶75       Opinions have been released in five cases heard and

decided         before       Justice       Rebecca       G.    Bradley        joined     the   court.

Justice Rebecca G. Bradley did not participate in these five

cases:          State v. Dumstrey, 2016 WI 3, ¶52, ___ Wis. 2d ___, ___

N.W.2d ___; Winnebago Cnty. v. Christopher S., 2016 WI 1, ¶58,

___ Wis. 2d ___, ___ N.W.2d ___; Wis. DOJ v. Wis. DWD, 2015 WI

114, ¶60, 365 Wis. 2d 694, ___ N.W.2d ___; New Richmond News,

2015       WI    106,       ¶4,    365    Wis. 2d 610,          ___     N.W.2d ___;        State    v.

Iverson, 2015 WI 101, ¶62, 365 Wis. 2d 302, 871 N.W.2d 661.

       ¶76       The per curiam opinion in New Richmond News explained

Justice Rebecca G. Bradley's non-participation thusly:                                       "Justice

Rebecca G. Bradley was appointed to the court after the court's

decision, and therefore did not participate."2                                  No other opinion

has explained Justice Rebecca G. Bradley's non-participation.

       ¶77       The same situation as described in New Richmond News

appears         to    exist       in     the   instant         case.         Justice     Rebecca   G.
Bradley was appointed to the court after the court heard oral

argument and tentatively decided the instant case on September

18, 2015.            Yet unlike New Richmond News and the four other cases

from September and October in which opinions have been issued

(in    which         Justice       Rebecca      G.       Bradley       did    not     participate),

Justice Rebecca G. Bradley participates in the instant case.




       2
           New Richmond News, 365 Wis. 2d 610, ¶1.


                                                     3
                                                                   No.     2014AP108-CR.ssa


     ¶78       Although       the   majority     opinion     looks    regular     in    its

form,    the    opinion         differs   from    other      opinions       released     in

September and October cases.              The vote in the instant case is 4-

3, with Justice Rebecca G. Bradley as part of the majority of

four.      Without Justice Rebecca G. Bradley's vote, this case

would result in a tie vote.                     The decision of the court of

appeals would be affirmed.                With Justice Rebecca G. Bradley's

vote, the decision of the court of appeals is reversed.

     ¶79       In sum, Justice Rebecca G. Bradley's participation in

the instant case appears inconsistent with her non-participation

in New Richmond News and other cases argued in September and

October.

     ¶80       Although this court has not had much experience with a

new justice joining the court after a case has been heard but

before   an     opinion        is   released,     we    have   had       some.     In    my

concurring opinion in               New Richmond News,         I wrote at length,

reviewing this court's past experiences and the past experiences

and practice of the United States Supreme Court.3
     ¶81       I concluded that the process when a new justice joins

the court after a case has been heard but before an opinion is

released       is    as       follows:          The    justices       who     originally

participated        in    the    case,    without      the   new     justice's     input,

decide   whether         to   reargue     the    case.       The     new    justice     may




     3
       See   New  Richmond    News,                   365    Wis. 2d 610,         ¶¶17-25
(Abrahamson, J., concurring).


                                            4
                                                                     No.       2014AP108-CR.ssa


participate       in     reargument        and    subsequent        proceedings.4             No

precedent appears to exist in the United States Supreme Court or

in this court for a new justice who did not participate in oral

argument to participate in the case without reargument.

    ¶82      In the instant case, which predates Justice Rebecca G.

Bradley's appointment to the court, Justice Rebecca G. Bradley

participates without a reargument.                  Justice Rebecca G. Bradley's

participation           in   some     (but    not    all)      cases       predating         her

appointment       to     the    court,      and   participation          in     those      cases

without a reargument appear to be internally inconsistent and

inconsistent with the court's prior practice and the practices

in the United States Supreme Court.

    ¶83      As     I    stated      previously,       to   aid     the    court      in     the

future, I write once again to memorialize the approach being

taken   by    the       court   in   the     instant    case       and    to    compare      the

present      practice        with    this     court's       past    practice         and     the

practices of the United States Supreme Court.

    ¶84      For the reasons set forth, I join Justice David T.
Prosser's dissent and write separately.




    4
       Thus, "under past precedent of this court and the United
States Supreme Court, it appears that if a new justice is
available to break a tie vote, then the court, without the new
justice's input, decides whether to reargue the case.        In
reargument, the new justice participates."     See New Richmond
News, 365 Wis. 2d 610, ¶¶21-26 (Abrahamson, J., concurring)
(citing Buse v. Smith, 74 Wis. 2d 550, 247 N.W.2d 141 (1976);
Stephen M. Shapiro et al., Supreme Court Practice, ch. 15.6 at
838-39 (10th ed. 2013)).


                                              5
               No.   2014AP108-CR.ssa


ATTACHMENT A




     1
               No.   2014AP108-CR.ssa



ATTACHMENT B




     2
                                                                         No.    2014AP108-CR.dtp



      ¶85    DAVID        T.   PROSSER,          J.        (dissenting).           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.
      ¶86    There are exceptions to the Fourth Amendment's warrant

requirement,        but    these      exceptions           are    "few     in       number   and

carefully delineated."               United States v. U.S. Dist. Court, 407

U.S. 297, 318 (1972).           In cases in which the police have seized

evidence     that    a    defendant      seeks        to     suppress,         a    court    must

determine whether the police conducted a search and, if so,

whether they were required to obtain a judicial warrant before

the search.     No warrant is required when the police are acting

pursuant to a recognized exception to the warrant requirement.

      ¶87    Whether an exception to the warrant requirement exists

in a particular case is often a close question.                                    When a court
consistently        resolves         these     close         questions             against    the

necessity     for     a    warrant,      the      court          tends     to       expand    the

exceptions and reduce the protections of the Fourth Amendment.

Because I believe the scope of the community caretaker exception

is   being    substantially          expanded         in    this    case,          without    any

compelling justification, I respectfully dissent.

                                             I

      ¶88    The facts in this case are carefully set out by the
majority     opinion.          See    majority         op.,      ¶¶4-20.            Summarizing

                                             1
                                                                            No.    2014AP108-CR.dtp


briefly, Kenosha police were called to assist a man who was

bleeding profusely.                 The man, Antony Matalonis (Antony), told

inconsistent stories about how he was beaten before he was taken

to    a    hospital.        Advised         that       Antony    lived      with    his   brother

nearby, the police were able to follow a trail of blood to the

home of the brother, Charles Matalonis (Charles), a relatively

short distance away.

          ¶89    There was blood on the door of Charles's house.                            After

calling for backup, the police knocked on his door and were

quickly admitted.             There were splotches of blood throughout the

first and second floors.                     Charles admitted he had been in a

fight with his brother.                     He admitted he had been cleaning up

blood.          He permitted officers to go through the house to assure

their own safety and explore the possibility of other injured

persons in the house.               They found no injured persons.

          ¶90    On the second floor, in plain view, a police officer

did see marijuana and a variety of drug paraphernalia——pipes and

other smoking utensils, a small silver grinder, and a ceramic
water bong.            The officer also encountered a locked door with a

few       droplets     of   blood      scattered         on     the   door.         The   officer

smelled a strong odor of marijuana coming through the door and

heard a fan running behind the door.

          ¶91    The date was January 15; the time was after 3:00 a.m.

A    reasonable        person       could    infer       that    a    fan    is    not    normally

operating         at   such     a    date     and       time    merely      for     purposes    of

comfortable climate control.



                                                   2
                                                                   No.    2014AP108-CR.dtp


      ¶92   In my view, the officer's observations on the second

floor, followed by Charles's refusal to give consent to open the

locked door, provided ample probable cause for a search warrant

for   the   locked    room     to    search      for    drugs.       Conversely,        the

officers would have been hard pressed to make a case for a

search warrant to find a body in some condition behind the door.

Officers had already accounted for other known occupants of the

house, including a basement tenant.

                                            II

      ¶93   If one acknowledges that there was no probable cause

to search for a person——living or dead——behind the door, the

government had to have an exception to the warrant requirement

that did not require probable cause.

      ¶94   Consent     to     search      is    an    exception     to    the     warrant

requirement, but everyone understands that threats and duress

are inconsistent with voluntary consent.                     There is no claim in

this case that Charles Matalonis freely consented to the search

of the locked room.
      ¶95   The      exigent         circumstances           exception           also    is

inappropriate        because        the    exigent       circumstances           exception

requires probable cause.

      ¶96   Thus,     the    State        and    the    majority     rely        upon   the

community caretaker exception.                  This exception does not require

probable    cause    because        investigation       of   a   crime      is    not   the

predominant motivation for police action.

      ¶97   In State v. Gracia, 2013 WI 15, 345 Wis. 2d 488, 826
N.W.2d 87, I traced the history and evolution of the community

                                            3
                                                                          No.    2014AP108-CR.dtp


caretaker exception in Wisconsin.                           My dissent did not discuss

the court of appeals' decision in State v. Ziedonis, 2005 WI App

249, 287 Wis. 2d 831, 707 N.W.2d 565, which is a very persuasive

analysis of the community caretaker exception.

      ¶98    There is no need here to restate the analysis in all

past cases.           It is enough to note that community caretaking has

moved    beyond        fact       situations       involving         automobiles         to     fact

situations inside people's houses and even situations involving

locked      rooms      inside        people's         homes.           Moreover,        community

caretaking has moved from fact situations in which the actions

of   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) (quoting Cady

v.   Dombrowski,            413    U.S.    433,       441     (1973)),         rev'd    on     other

grounds, 155 Wis. 2d 77, 454 N.W.2d 763 (1990), and, more than

three decades later, fact situations in which a police officer's

subjective        law        enforcement           concerns          do    not         negate    an
"objectively          reasonable          basis"       for     the     officer's        community

caretaker function, State v. Kramer, 2009 WI 14, ¶¶29-32, 315

Wis. 2d 414, 759 N.W.2d 598, to situations in which a community

caretaking       theory       supported       by      corroborating            facts     does    not

require      a    warrant          even    where       traditional         law       enforcement

concerns predominate.

                                               III

      ¶99    As the majority properly states, majority op., ¶31,
this court uses a three-part test when evaluating whether a law

                                                  4
                                                                   No.      2014AP108-CR.dtp


enforcement     officer's         performance        of     a   community        caretaker

function provides an exception to the warrant requirement:

    When a community caretaker function is asserted as the
    basis for a home entry, the circuit court must
    determine: (1) whether 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.
State   v.    Pinkard,       2010    WI    81,   ¶29,     327     Wis.      2d   346,    785

N.W.2d 592 (citing Kramer, 315 Wis. 2d 414, ¶21).

    ¶100 This dissent focuses on the second and third prongs

stated above.

                                            A

    ¶101 The         majority        concludes       that       Officer       Brian     Ruha

exercised a bona fide community caretaker function because he

had an objectively reasonable basis to enter the locked room

based on his observations.                 Majority op., ¶42.               However, the

majority     opinion    is    unclear      on    what     degree       of   certainty     an
officer      must    possess        to    initiate      the     community        caretaker

function and then to maintain it as circumstances change.

    ¶102 In         State    v.   Ferguson,      2001     WI     App     102,    ¶22,   244

Wis. 2d 17, 629 N.W.2d 788, Judge Curley, joined by Judge Fine,

used a felicitous phrase: "Unlike the facts in [State v.] Dull[,

211 Wis. 2d 652, 565 N.W.2d 575 (Ct. App. 1997)], the police

here never stepped out of their caretaking role."                                (Emphasis

added.)      How do we determine when a police officer steps out of



                                            5
                                                       No.   2014AP108-CR.dtp


his "caretaking role" to focus on the investigation of criminal

activity?

    ¶103 Cady v. Dombrowski and Bies v. State, 76 Wis. 2d 457,

251 N.W.2d 461 (1977), were cases in which officers were not

seeking evidence of specific crimes.          They were pursuing the

non-criminal facet of police work and were surprised at the

evidence of criminal activity that they encountered.               Both cases

are distinguishable from Matalonis's situation.

    ¶104 From the outset in this case, after seeing Antony, the

police thought that a crime might have been committed.                  If a

crime had been committed, there might have been other victims.

However, this "theory" was pursued to extreme lengths when an

officer postulated that a deceased or injured person might be

found behind a locked door, knowing that marijuana would almost

certainly be found beyond the locked door.

    ¶105 The majority declares: "In this case, . . . the blood

trail   and   significant    amounts   of   blood    that    the     officers

discovered supported the officers' theory that an individual in
Matalonis's residence was in need of assistance. . . .                 [H]ere

there was sufficient evidence supporting the officers' concern

that someone was in need of their assistance."               Majority op.,

¶49 n.26.

    ¶106 This    expansive     conception   of      community      caretaking

transforms community caretaking from a narrow exception into a

powerful investigatory tool.      No longer limited to the purpose

of allowing the State to rely upon evidence obtained by law
enforcement officers incidental to their provision of valuable

                                   6
                                                                   No.   2014AP108-CR.dtp


services to the public, community caretaking becomes an end in

itself.       Officers can now easily conduct a warrantless search in

the name of "community caretaking"; they must merely articulate

a hypothetical community need——here, checking to see whether an

injured person was trapped in the closet——based on circumstances

that   they     observe.       Conveniently,          they   may    then    retain     any

evidence of criminal activity that comes into their plain view

as they conduct their community caretaking search.

                                            B

       ¶107 A broad statement of a bona fide community caretaker

function becomes more concerning when considered in conjunction

with the public interest that the majority articulates in this

case: "The public has a significant interest in ensuring the

safety of a home's occupants when officers cannot ascertain the

occupants'      physical      condition         and   reasonably         conclude     that

assistance is needed."             Majority op., ¶59.

       ¶108 For this proposition, the majority cites Pinkard and

Ziedonis.       The Pinkard court characterized Ziedonis as involving
"a significant public interest in ensuring the safety of the

occupants       because      the    officers      could      not    ascertain        their

physical condition and 'reasonably concluded' that assistance

was needed."         Pinkard, 327 Wis. 2d 346, ¶45 (quoting Ziedonis,

287 Wis. 2d 831, ¶29).              Like Pinkard, Ziedonis involved police

officers entering a residence for the purpose of checking the

welfare of a resident.             Pinkard, 327 Wis. 2d 346, ¶4; Ziedonis,

287    Wis.    2d     831,   ¶5.       In   both      cases,       officers    received
information         indicating      that    a    person      was    present     in     the

                                            7
                                                                       No.    2014AP108-CR.dtp


residence, found a door ajar allowing access to the interior of

the   residence,         announced         themselves           before       searching      the

residence,       and    ultimately         encountered          the    resident       inside.

Pinkard, 327 Wis. 2d 346, ¶¶2-5; Ziedonis, 287 Wis. 2d 831, ¶¶2-

8.

      ¶109 Unlike        the      residents         in      Pinkard          and    Ziedonis,

Matalonis responded immediately when law enforcement officers

knocked on his door.           Matalonis told the officers that he lived

alone,    and    they    confirmed         the    safety        of    Matalonis's      tenant

without    accessing        the     locked         room.1            Consequently,          with

Matalonis, his brother, and his tenant accounted for, Officer

Ruha searched the house not for a particular person suspected of

needing    care    but    to     determine        whether       any    other       person   was

present.

      ¶110 An     open-ended       search         for    occupants         illustrates      the

danger    that    results      when     the       majority's         description      of    the

community caretaker function combines with its statement of the

public    interest       present      in    this        case.         As   occurred      here,
officers     could       point     to      facts        and——without          demonstrating


      1
       The record is unclear as to the exact timing of the
officers' interaction with the tenant living in Matalonis's
basement. At the beginning of his testimony at the suppression
hearing, Officer Ruha indicated that he did not go into the
basement during his search because no blood led into the
basement.   Rather than enter the tenant's room, the officers
"waited till he came out to talk" to them.        Later in his
testimony, Officer Ruha indicated that he spoke with the tenant
at approximately the same time he decided not to search the
basement, saying, "I believe I talked to him right then and
there in the basement."


                                              8
                                                                      No.   2014AP108-CR.dtp


probable cause or even reasonable suspicion——use those facts to

set    forth      a   theory     that    a    person        in   a    building          requires

immediate police assistance.                 Given that the public would then

have       an   interest   in    the    officers       assisting        the       theoretical

person inside the building, officers could enter the building

and search it to determine whether there is in fact a person in

need of assistance.            Once officers enter the building, the plain

view       doctrine    allows     them       to     seize    evidence        of     unrelated

criminal        activity   that     they          encounter——even       if        the     search

ultimately reveals that the person to whom they attempted to

provide care remains purely theoretical.                         Furthermore, officers

may conduct their search for the theoretical person who might

need care regardless of whether other law enforcement objectives

affect their desire to enter the building2——such as probable

cause or reasonable suspicion that they will encounter evidence

of    unrelated       criminal    activity         inside——so        long   as     a     factual

basis supports their community caretaking theory.

                                              IV
       ¶111 The       community        caretaker       exception        recognizes           the

crucial role that law enforcement officers play in our society.

The exception allows the State to rely on evidence that officers


       2
       See Whren v. United States, 517 U.S. 806, 813 (1996)
("Subjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis."); State v. Kramer, 2009 WI 14, ¶29,
315 Wis. 2d 414, 759 N.W.2d 598 ("The reasoning of Whren is not
inconsistent with the analysis in a community caretaker context,
since police conduct is not based on probable cause or
reasonable suspicion when a community caretaker function is
ongoing.").


                                              9
                                                                       No.   2014AP108-CR.dtp


obtain     when    providing        valuable        services         to    the        community.

Officers frequently engage fellow citizens with no intention of

investigating criminal activity, but sometimes they encounter

evidence     of    criminal        conduct         during    the       course          of    those

interactions.           An     officer       engaged    in       a     genuine         community

caretaking function will not and should not hesitate to assist

members of the public when time is of the essence.                                Cf. Brigham

City v. Stuart, 547 U.S. 398, 400 (2006) ("[P]olice may enter a

home without a warrant when they have an objectively reasonable

basis for believing that an occupant is seriously injured or

imminently threatened with such injury.").

       ¶112 But the majority's embrace of a broad, ever-expanding

version    of     the    exception       risks       transforming            a    shield      for

evidence encountered incidental to community caretaking into an

investigatory      sword.          Wisconsin        already          applies      a     generous

interpretation of the exception.                    See 3 Wayne R. LaFave, Search

and    Seizure     § 6.6       n.4,     at    595     (5th       ed.      2012)        ("Because

[Cady] stressed         'the      distinction        between         motor       vehicles      and
dwelling    places,'         it    is    commonly      responded          that         the    Cady

doctrine is limited to vehicles.").                     Allowing law enforcement

officers to conduct warrantless searches based on a mere theory

of    community    need——and        without        making    a   showing          of    probable

cause or even reasonable suspicion——completely undermines the

Fourth Amendment's warrant requirement.

       ¶113 Because I believe the majority opinion unnecessarily

expands this valuable exception, I respectfully dissent.



                                              10
                                                     No.   2014AP108-CR.dtp


    ¶114 I   am   authorized   to   state   that   Justice   SHIRLEY    S.

ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.




                                    11
    No.   2014AP108-CR.dtp




1