It may be time to consider tightening the interpretation of "community caretaking," a generously interpreted exception to the Fourth Amendment's prohibition against unreasonable searches and seizures, three state Supreme Court justices agreed this week.
"It's possible some of the more expansive understandings of community caretaking in Wisconsin and elsewhere may need to be circumscribed," Justice Brian Hagedorn wrote in a concurrence to his own opinion in State v Michael Gene Wiskowski. "This is especially true where the need for the search or seizure is less urgent or could be accomplished through other means."
Justices Rebecca Grassl Bradley and Janet Protasiewicz agreed with that portion of Hagedorn's analysis. Grassl Bradley signed on to the entirety of Hagedorn's writing on the topic; Protasiewicz joined just three paragraphs, including the language above.
Courts have defined as "reasonable" warrantless searches and seizures "when officers act 'as a community caretaker to protect persons and property,'" Hagedorn wrote.
Wisconsin courts have followed U.S. Supreme Court precedent in interpreting the community caretaker exception, he said.
"Just a few terms ago, however, the Supreme Court held that the Fourth Amendment does not grant officers a broad community caretaking license to search homes," he wrote, citing 2021's Caniglia v. Strom. "The Court further cast at least some doubt about whether the community caretaker doctrine is a standalone category through which police conduct should be analyzed."
"If that's true, the doctrines our cases use to address this kind of law enforcement action may be due for a reassessment," he said.
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The U.S. Supreme Court, in a series of cases, recognized "that officers routinely engage in many noncriminal, community caretaking functions such as assisting disabled vehicles or responding to accidents," Hagedorn wrote.
And soon enough, in most courts around the country ... (the) ... identification of the community caretaking functions of police evolved into a doctrine that justified searches and seizures of all kinds," he said.
In Wisconsin, the state Supreme Court cited the community caretaker function back in 1977 when it said it was fine for police to look into the window of a garage when investigating a noise complaint.
The doctrine grew after that, until it included things like alleged concerns about injuries at an apartment where underage drinking occurred and an anonymous caller's expressed concerns about the home's occupants. Both of those warrantless entries were upheld by Wisconsin courts.
"Our cases — and those in other states — paint a clear picture," Hagedorn wrote. "After four decades, the community caretaker functions of police ... expanded from its original application to automobile inventory searches into a broad doctrine. Courts utilized this framework to permit all kinds of noncriminal searches and seizures, both on the road and in the home. These doctrinal developments marched forward in the lower courts with little to no direction from the United States Supreme Court."
That is, he said, until Caniglia, a decision overturning a gun seizure that resulted from a warrantless entry into a home. A couple living there had a fight. The husband produced a gun and told his wife to shoot him. When police arrived, the man was on his porch. He agreed to go to the hospital. After he did, police searched his home and found and seized two guns.
The U.S. Supreme Court ruled the search was unjustified. The situation was unlike an earlier case, where the court upheld a warrantless search of an impounded vehicle for an unsecured firearm, Justice Clarence Thomas wrote.
"In reaching this conclusion, the Court observed that police officers who patrol the 'public highways' are often called to discharge noncriminal 'community caretaking functions,' such as responding to disabled vehicles or investigating accidents," Thomas said. "The question today is whether ... acknowledgment of these 'caretaking' duties creates a standalone doctrine that justifies warrantless searches and seizures in the home. It does not."
The Caniglia decision, Hagedorn wrote, "appears to mean that Wisconsin cases permitting home entries under community caretaking are no longer good law — at least insofar as they rely on community caretaking to justify the intrusion. It remains to be seen whether other doctrines might lead to the same outcome."
"More generally, Caniglia also suggests that the Supreme Court is uncomfortable with community caretaking as a broad category authorizing warrantless searches and seizures, he said. "However, it seems equally clear that the Court is not abandoning the proposition that some searches and seizures by law enforcement conducted to aid citizens, protect property, and ensure safety are permissible under the Fourth Amendment."
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