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COURT OF
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 95-2702-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CORY
D. WOOD,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Winnebago County: ROBERT A. HAWLEY, Judge. Affirmed.
Before
Brown, Nettesheim and Snyder, JJ.
NETTESHEIM,
J. Cory D. Wood appeals from a judgment of
conviction for disorderly conduct, resisting an officer, possession of a
controlled substance with intent to deliver and possession of a short-barrelled
shotgun. On appeal, Wood challenges the
warrantless search of his apartment.
Because we conclude that the search was legal under the emergency
doctrine, we reject Wood's argument and affirm the judgment of conviction and
the order denying postconviction relief.
Facts
On
January 27, 1995, Kurt Schoeni, a police officer for the city of Oshkosh,
responded to a call reporting a disturbance in Wood's apartment and arrived
shortly after an Officer Hill. When
Schoeni arrived at the apartment complex, he immediately heard loud music and
arguing emanating from one of the apartments.
He ascended the stairs and saw a person at the top of the stairs. When this person spotted Schoeni, he ran
into the apartment. At the top of the
stairs, Schoeni noticed two small towels with burn marks draped over the
railing in the hallway outside of the apartment.
Hill
joined Schoeni at the door of the apartment, and they both stood and listened
to the argument. The officers “heard a
lot of swearing and yelling” and “items ¼ being thrown against the walls in the apartment.” They also heard glass breaking during what
they characterized as a “[p]hysical altercation.” When the officers knocked on the door, a person from inside
responded to ask who it was. Schoeni
identified himself as a police officer for the city of Oshkosh. The person uttered some obscenities and told
the officers to leave.
Schoeni
knocked on the door again several times and informed the people inside that
neighbors were complaining about the loud noise and that the officers needed to
determine the nature of the disturbance before they could leave. At that time, Hill stayed outside the
apartment door, while Schoeni went to the unit of the individual who initially
reported the disturbance. The woman who
reported the disturbance said that the ruckus had been occurring off and on for
several days and that it was of such a magnitude that items were falling off of
the adjoining wall.
When
Schoeni returned to speak with Hill, he heard what sounded like the click of a
“shotgun being racked.” Schoeni passed
that information on to Hill, and the two again tried to make contact with
someone inside. Schoeni left to ask the
neighbor how to contact the manager of the apartment building. The officers called the apartment manager,
who arrived shortly thereafter. The
officers informed the manager of the circumstances and asked the manager to
ascertain whether he thought damage was being done to the property. While standing outside of the apartment,
they heard several objects being moved around and the sound of “glass items
being stepped on and broken.” Schoeni
estimated that they waited outside trying to contact someone for approximately
fifteen or twenty minutes. The officers
decided to enter because it had now become very silent in the apartment.
The
officers enlisted the assistance of the apartment manager in order to enter the
apartment. When no one responded after
the manager identified himself, he used the pass key to open the door. Upon entering the unit, the officers noticed
the living room in “total disarray” with furniture turned upside down and “what
appeared to be blood splattered on the wall” and more blood on a roll of toilet
paper on a coffee table. Schoeni then
identified himself as a police officer and asked anyone in the apartment to
come out of the rear rooms. When no one
responded, Schoeni notified his supervisor of the situation, who advised that
the officers “were to continue to check on the welfare of [the] individuals” in
the apartment.
The
officers spotted shotgun shells on the floor outside a bedroom. Hill and a third officer had their weapons
drawn and stayed in the hallway while Schoeni opened a bedroom door. Inside, they saw shotgun shells and an
individual, later identified as Wood, wrapped in a blanket in the middle of a
bed. When Wood moved, the officers
ordered him to show his hands before they approached him. Once Schoeni made physical contact with
Wood, a struggle began, and Schoeni maneuvered him to the floor, where he handcuffed
him. During this time, Hill had
handcuffed another individual discovered in the apartment. The officers removed both suspects to the
living room.
The
officers then returned to the bedroom to retrieve a shotgun with its end
sticking out from between the mattress and the bed frame about a foot from
where Wood had been lying. The officers
also removed ten to twelve shotgun shells that they found between the mattress
and frame. As they were removing the
shells, they saw a blue baggie on the mattress with suspected marijuana in
it.
The
State charged Wood with one count each of disorderly conduct, resisting an
officer, possession of tetrahydrocannabinol with intent to deliver and
possession of a short-barrelled shotgun in violation of §§ 947.01, 946.41(1),
161.41(1)(h)1 and 941.28(2), Stats. After the trial court's denial of his motion
to suppress the evidence based on a warrantless search of his apartment, Wood
entered a no contest plea to the charged offenses on March 13, 1995. The trial court sentenced Wood to concurrent
two and one-half year prison terms on counts three and four, and to consecutive
probation for a concurrent period of two years on counts one and two. Wood subsequently filed a postconviction
motion for relief from the judgment, which the court denied on September 21,
1995. Wood appeals, challenging the
trial court's suppression ruling.
Discussion
The
Fourth Amendment to the United States Constitution and Art. I, sec. 11 of the
Wisconsin Constitution guarantee citizens the right to be free from
unreasonable searches and seizures. State
v. Kiper, 193 Wis.2d 69, 80, 532 N.W.2d 698, 704 (1995). In reviewing an order denying a motion to
suppress evidence obtained as a result of an unlawful search, we will uphold a
trial court's findings of fact unless they are against the great weight and
clear preponderance of the evidence. See
id. at 79, 532 N.W.2d at 703.
Whether a search and seizure satisfies constitutional demands is a
question of law subject to our independent review. See id. at 79-80, 532 N.W.2d at 703.
A
warrantless entry by police is lawful if exigent circumstances exist. See id. at 89, 532
N.W.2d at 707. The test to determine
whether exigent circumstances exist objectively inquires “[w]hether a police
officer under the circumstances known to the officer at the time reasonably
believes that delay in procuring a warrant would gravely endanger life or risk
destruction of evidence or greatly enhance the likelihood of the suspect's
escape.” Id. at 89-90,
532 N.W.2d at 707-08.
The
supreme court has identified four factors which constitute the exigent
circumstances required for a warrantless entry. Id. at 90, 532 N.W.2d at 708. They are:
(1) an arrest made in hot pursuit, (2) a threat to safety of a suspect
or others, (3) a risk that evidence will be destroyed, and (4) a likelihood
that the suspect will flee. Id. Wood contends that “nothing that even
arguably constituted exigent circumstances was alleged to have existed” until
after the police entered his apartment. We reject his argument.
Law
enforcement officials may enter private property pursuant to the emergency
doctrine without an arrest or a search warrant:
to preserve life or property, to render first aid and
assistance, or to conduct a general inquiry into an unsolved crime, provided
they have reasonable grounds to believe that there is an urgent need for such
assistance and protective action ¼ and provided, further, that they do not enter with an
accompanying intent to either arrest or search.
State v. Kraimer, 99 Wis.2d 306, 314, 298 N.W.2d 568, 572 (1980), cert.
denied, 451 U.S. 973 (1981).
Whether a warrantless search is proper under the emergency doctrine
involves a two-step inquiry. State
v. Prober, 98 Wis.2d 345, 365, 297 N.W.2d 1, 12 (1980), overruled on
other grounds by State v. Weide, 155 Wis.2d 537, 455 N.W.2d
899 (1990). First, the searching
officer must have subjectively been motivated by a perceived need to render aid
or assistance. Id. Second, a reasonable person would
objectively conclude that an emergency existed under the circumstances. Id.
We
conclude that both prongs of this test were satisfied in this case. When Schoeni and Hill arrived at the
apartment complex, they heard shouting, fighting and breaking glass incident to
what sounded like a struggle coming from Wood's apartment. Schoeni also testified that he heard the
sound of a shotgun being racked followed by silence. These observations provided the officers with a subjective belief
that someone in the apartment might be at risk or in need of assistance. Objectively, this was a reasonable
conclusion which a person could make under these circumstances. Cf. Kiper, 193 Wis.2d
at 89-90, 532 N.W.2d at 707-08.
Wood
contends, however, that even if the initial entry was legal, the officers'
continued search after he and the other individual were handcuffed and in
custody was illegal. We disagree
because the emergency situation had not dissipated. The officers did not know how many persons were in the apartment. The blood-spattered wall and the disarray in
the apartment reasonably suggested that someone in need of assistance might
still be in the apartment. The officers
were entitled to pursue their mission and, in the course of so doing,
legitimately discovered the items in plain view.
In
addition, given that: (1) Wood had
physically attacked Schoeni, (2) other persons might still be on the premises,
and (3) a weapon might be on the premises, the officers were also entitled to
conduct a “protective sweep” of the apartment incident to the arrest of the two
individuals already in custody. See
Maryland v. Buie, 494 U.S. 325 (1990). Such a search is permitted as a precautionary measure against
attack even though probable cause or reasonable suspicion does not support the
search. Id. at 334-35; see
also State v. Murdock, 155 Wis.2d 217, 222, 455 N.W.2d 618,
620 (1990).[1]
On
these various grounds, we uphold the officers' search of the apartment. We uphold the trial court's denyal of Wood's
motion to suppress.
By
the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.