State v. Leutenegger6/24/2004
On July 2, 2001, a citizen telephoned police to report what he believed to be an intoxicated driver. The citizen, using a cell phone, called from a tavern parking lot and gave specific information indicating that a man, later identified as Leutenegger, was very intoxicated and was driving a car away from the tavern. Using information supplied by the citizen, a police officer located Leutenegger sitting in his car in an attached garage to Leutenegger's home. After viewing the situation for a short time, the officer approached Leutenegger's open garage door and proceeded into the garage, making contact with Leutenegger, who was still in his car. After entering the garage, the officer made observations supporting the inference that Leutenegger was intoxicated. Leutenegger was arrested, and police subsequently obtained a breath test result showing that Leutenegger's blood alcohol content was .28%.
. Leutenegger moved to suppress all evidence obtained after the police officer entered his garage. The circuit court concluded that the attached garage was part of the curtilage of the Leutenegger residence and, therefore, the officer's warrantless entry into the garage was presumptively unconstitutional. However, the court also concluded that the entry was justified by exigent circumstances, and denied the motion. Leutenegger then pled no contest to the charge of operating a motor vehicle while intoxicated, fourth offense. He now challenges the circuit court's suppression ruling. More detailed facts are set forth later in this opinion.
Discussion
Consideration of an Officer's Subjective Beliefs
When the Asserted Justification for a Warrantless Entry of a Home is the Possible Need to Render Assistance or Prevent Harm
. The question in this case is whether the officer's warrantless entry into Leutenegger's attached garage was lawful because of a possible need to render assistance or prevent harm. Leutenegger, relying on State v. Boggess, 115 Wis. 2d 443, 340 N.W.2d 516 (1983), argues that the officer's action must have been subjectively motivated by a perceived safety concern, that is, that the particular officer must have subjectively believed that Leutenegger likely needed assistance or still posed a danger to others. Further, Leutenegger contends that the record in this case does not support a finding that the officer was actually motivated by her concern for the safety of Leutenegger or others.
. We disagree with Leutenegger that the objective/subjective test used in Boggess is the correct test to apply here. More recently, the supreme court employed an objective test in State v. Richter, 2000 WI 58, , 235 Wis. 2d 524, 612 N.W.2d 29, and we conclude we must follow this more recent decision. See Jones v. Dane County, 195 Wis. 2d 892, 918 n.8, 537 N.W.2d 74 (Ct. App. 1995) ("[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court.").
. In Boggess, the supreme court used the term "emergency rule" when faced with the State's argument that a warrantless home entry was legal because of a report that children had been battered, were in need of medical attention, and lived with a man named Boggess who had a "bad temper." Boggess, 115 Wis. 2d at 445, 446, 457-58. The Boggess court relied on State v. Pires, 55 Wis. 2d 597, 604, 201 N.W.2d 153 (1972), which equates the "emergency doctrine" with the "exigent-circumstance rule." Boggess, 115 Wis. 2d at 450. The two-pronged objective/subjective test used in Boggess does not come from Pires, however, but instead from State v. Prober, 98 Wis. 2d 345, 297 N.W.2d 1 (1980), overruled on other grounds, State v. Weide, 155 Wis. 2d 537, 455 N.W.2d 899 (1990). Under the two-pronged o
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