State v. Troy K. Kettlewell

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 18, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP926-CR Cir. Ct. No. 2016CF703

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TROY K. KETTLEWELL,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Winnebago
County: DANIEL J. BISSETT, Judge. Reversed and cause remanded for further
proceedings.

¶1 NEUBAUER, C.J.1 Troy K. Kettlewell appeals from a judgment of
conviction for operating a motor vehicle while under the influence (OWI), fourth
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version.
No. 2018AP926-CR

offense. Kettlewell argues the circuit court erred in denying his motion to
suppress evidence obtained when police officers conducted a warrantless search of
his home. The State contends the warrantless entry was justified on the ground
that the police were functioning under the community caretaker exception to the
warrant requirement. We disagree. We reverse and remand for further
proceedings.

BACKGROUND

¶2 On December 24, 2016, at approximately 3:05 p.m., a witness
reported a man leaving a vehicle in a ditch near an intersection in Winnebago
County. The witness also reported that the man was slurring his speech and
“might possibly be intoxicated,” but did not appear to be injured. The witness did
not report that the subject had any problems walking.

¶3 Deputy Michael Huth responded to the accident call and, based on
information that Kettlewell was a registered owner of the vehicle, first went to a
nearby residence of a cousin of Kettlewell’s to see if Kettlewell was there. He was
not, but the cousin called Kettlewell to let him know that the police were looking
for him. Huth then had a brief conversation with Kettlewell, who “immediately”
stated that Tamara Tracy had been driving the vehicle. When Huth asked
Kettlewell where he was, Kettlewell allegedly “mumbled” something that Huth
could not understand and hung up.

¶4 Huth then went to the accident scene. Upon inspection of the
vehicle, he noted the following: no broken glass, no window or windshield
damage, no blood visible on or near the vehicle, and no other indications of
personal injury within the vehicle. Huth saw a half-full bottle of beer and a
prescription medicine container with Kettlewell’s name. Huth concluded the

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vehicle had been traveling east on the highway when it entered the ditch, went
over a side road, and continued in the ditch along the highway for a short distance
before becoming stuck in the snow. He noted the side air bags had deployed, but
not the front ones. No other vehicles were involved in the accident.

¶5 When Huth ran the plate number through dispatch, Tracy was also
identified to be an owner. Tracy, Kettlewell’s girlfriend, was at the scene when
Huth arrived. Huth noticed one set of distinct footprints in the snow leading away
from the vehicle which did not match Tracy’s footprints. Tracy admitted to Huth
that Kettlewell had been driving. Huth did not see any blood in the snow, nor did
he note anything problematic about the footprint trail leading away from the car.
Tracy did not state Kettlewell was injured, nor did Huth inquire as to Kettlewell’s
well-being. Kettlewell later told the officers that Tracy had driven out to pick him
up and take him home.

¶6 Deputies Marcus Schuh and Nathan Olig also responded to the
accident, reporting to the address associated with the vehicle’s registered owners.
Dispatch advised Schuh that the witness said that the driver might have been
intoxicated due to his slurred speech. Dispatch also relayed to Schuh that the air
bags had deployed.

¶7 Schuh and Olig first approached the front door and knocked loudly
for an unknown amount of time, possibly thirty seconds to a few minutes. Schuh
peered into the small windows of the garage and saw no vehicles. Although the
record indicates that dispatch had several phone numbers available to reach
Kettlewell, neither Olig nor Schuh attempted to call the numbers, nor did Olig
know whether dispatch or anyone else had attempted to do so.

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No. 2018AP926-CR

¶8 Receiving no response after knocking at the front door, Olig testified
Schuh “decided to walk around the house to see if he could see anybody inside the
residence.” Olig stated that he “informed Deputy Schuh that the reason that he
was able to walk around the house was because we were checking on the welfare
of an individual that was involved in an accident crash where air bags deployed.
We were concerned for his well-being.”

¶9 Schuh testified that he decided to walk around the “house to see if
there was some other place where [I] could make observations or anything.”
Schuh saw in one window a female in her “low teens.” The female was
Kettlewell’s fourteen-year-old daughter, Carrissa Kettlewell, who testified that she
had been taking a shower when she heard loud banging at the front door. Carrissa
got out of the shower, put on a robe, and when she got to the room near the front
door, she saw a strange man looking in at her through a window, prompting her to
run screaming from the room.

¶10 Schuh then walked around the house in search of the back door,
peering into each window as he went. There was no walkway. Schuh came upon
a patio with stairs and sliding glass doors leading to the residence. Inside was a
bedroom with a man whom Schuh determined to be Kettlewell, apparently asleep
with his boots on. Schuh knocked on the glass doors to get Kettlewell’s attention,
and then told Kettlewell several times to go to the front door so that he and Olig
could speak with him. Kettlewell acknowledged and left the room. The record
does not reveal if Schuh asked Kettlewell if he was all right.

¶11 Schuh quickly returned to the front of the house. Olig was inside the
house speaking with Kettlewell. Both Schuh and Olig asked whether Kettlewell
had been driving the vehicle and how much he had to drink before asking any

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No. 2018AP926-CR

questions about his well-being. Ultimately, Kettlewell admitted to driving the
vehicle. The deputies then asked him to come outside so that standardized field
sobriety tests could be administered, after which Kettlewell was arrested for and
charged with OWI.

¶12 Kettlewell moved to suppress all evidence obtained as a result of the
officers’ encounter with him. After two hearings, the circuit court denied the
motion, concluding the search was justified as a valid exercise of the police’s
community caretaker function.

¶13 Kettlewell then pled no contest to one count of OWI as a fourth
offense. Kettlewell appeals.

DISCUSSION

Standard of Review and Applicable Fourth Amendment Law

¶14 A circuit court’s findings of historic fact will not be overturned
unless clearly erroneous. State v. Fonte, 2005 WI 77, ¶11, 281 Wis. 2d 654, 698
N.W.2d 594. Whether an officer performs as a community caretaker that satisfies
the demands of the federal and state constitutions is a question of constitutional
fact, which we review independently. State v. Kramer, 2009 WI 14, ¶16, 315
Wis. 2d 414, 759 N.W.2d 598.

¶15 The federal and state constitutions protect against all unreasonable
searches and seizures. State v. Pinkard, 2010 WI 81, ¶13, 327 Wis. 2d 346, 785
N.W.2d 592. “Subject to a few well-delineated exceptions, warrantless searches
are deemed per se unreasonable under the Fourth Amendment.” Id. (citation
omitted). In agreement with the United States Supreme Court, our state courts
have recognized that, in order to protect persons and property, police officers who

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No. 2018AP926-CR

are serving a community caretaker function may be allowed to conduct
warrantless searches and seizures. Id., ¶14.

¶16 To overcome the presumption that a search of a home without a
warrant is per se unreasonable under the caretaker exception, three steps must be
met: (1) did a search within the Fourth Amendment occur?; (2) if so, were the
police exercising a bona fide community caretaker function?; and (3) if so, does
“the public interest outweigh[] 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.

A Search Under the Fourth Amendment Occurred

¶17 The State concedes that Kettlewell’s curtilage is constitutionally
protected.2 Given Schuh’s entry into the back yard peering through every window
and Olig’s entry into the home, the State also concedes a search under the Fourth
Amendment occurred. See State v. Popp, 2014 WI App 100, ¶26, 357 Wis. 2d
696, 855 N.W.2d 471 (officers walking up back steps, onto the porch, and peering
into the window constituted a search subject to constitutional protections). The
first factor of the community caretaker exception is met. There was a search.

2
“Curtilage is the area immediately adjacent to the home to which a person extends the
intimate activities associated with the privacies of life” and is treated as functionally identical to
the interior of the home itself for constitutional purposes. State v. Wilson, 229 Wis. 2d 256, 264,
600 N.W.2d 14 (Ct. App. 1999).

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No. 2018AP926-CR

The Objective Facts Do Not Support a Bona Fide Community Caretaker Function

¶18 The second step requires us to determine whether the police were
exercising a bona fide community caretaker function at the time of the search.
The test is whether the police had an “objectively reasonable basis to believe [that]
there is a member of the public who is in need of assistance.” State v. Maddix,
2013 WI App 64, ¶20, 348 Wis. 2d 179, 831 N.W.2d 778 (alteration in original;
citations omitted). The State bears the burden of proving that the officers’ conduct
fell within the scope of a reasonable community caretaker function. State v.
Ziedonis, 2005 WI App 249, ¶15, 287 Wis. 2d 831, 707 N.W.2d 565.

¶19 At one time, there was a question as to whether the community
caretaker function had to be “totally divorced from the detection, investigation, or
acquisition of evidence” relating to a crime and whether the officer’s subjective
intent played a role. See Kramer, 315 Wis. 2d 414, ¶¶23-24, 30 (citation omitted).
Our supreme court decided that simply because an officer may be contemplating
law enforcement factors at the time, as long as, under the totality of the
circumstances, it is established that there is an objectively reasonable basis for the
community caretaker function, the subjective intent does not negate the caretaker
function. Id., ¶30.

¶20 We conclude that, during the time Schuh passed through the
curtilage of the home and peered through windows, and Olig entered the home
after Schuh directed Kettlewell to the front door, there was not an objectively
reasonable basis to believe that Kettlewell was in need of assistance. The police
were not conducting a bona fide community caretaker function and therefore a
warrant was required.

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No. 2018AP926-CR

¶21 This was a one-car accident with no apparent damage or resulting
injury. Some, but not all, of the air bags deployed—not surprising for a car driven
into a ditch. Although air bag deployment and the slurred speech could indicate
harm, the citizen witness reported that Kettlewell walked away and did not report
any apparent injury. When Huth spoke with Kettlewell, he advised that Tracy had
been driving, mumbled something and then hung up, which does not necessarily
point to physical injury.

¶22 At the scene, it was clear that Tracy had come to the scene of the
accident and as such, it was reasonable to infer that she was there because
Kettlewell had contacted her. Had Huth asked Tracy about Kettlewell’s well-
being, he presumably could have learned that Tracy had picked Kettlewell up and
taken him to their home, and sought information on how he was doing.

¶23 At Kettlewell’s home, Schuh walked around the house and peered
through windows, seeing Kettlewell’s fourteen-year-old daughter inside. He
proceeded to the back patio, looking in every window, waking Kettlewell, and
yelling to him several times to go to the front door so that they could talk to him.
Schuh did not ask about his welfare nor did Kettlewell state he needed help.
Although Schuh hurried to the front door, Kettlewell had already let Olig in, who
was questioning him. Schuh admitted that Kettlewell was first asked about his
driving and his drinking before questions were asked about his health.

¶24 What is most striking is that, in addition to the citizen witness,
Kettlewell had contact with three separate people who could and likely would
have noted if he were injured and not simply intoxicated: his girlfriend, his
fourteen-year-old daughter, and to a lesser extent his cousin. While the officers
indicated concern for Kettlewell’s well-being, they did not ask any of these people

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No. 2018AP926-CR

about Kettlewell’s well-being or to assist in determining if he needed immediate
help. Their questions were largely focused on his drinking and driving. In other
words, while they testified to a subjective concern for Kettlewell’s well-being,
their questions are the objective behavior we evaluate in considering the totality of
circumstances and, specifically, whether there was a manifestation of a serious
injury.

¶25 State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d
505, guides our determination. Ultsch’s vehicle was damaged significantly, but
the damage was limited to the left front fender, and “[t]he airbags had not
deployed, the windshield was intact, there was no damage to the passenger
compartment or to the driver’s side door, and there was no blood or other
indication of injury.” Id., ¶19. The crash caved in a portion of a brick building,
potentially compromising the building’s structural integrity. Id., ¶2.

¶26 The driver had left the scene and the vehicle was found about two to
three miles away at the beginning of a snow-covered and long driveway. Id., ¶¶2-
3. The driver had obviously traversed the long, snowy driveway and made it into
the house. Id., ¶3. The officers had no information to suggest that Ultsch was hurt
and, in fact, her boyfriend drove down the driveway and told the officers she was
inside her residence and possibly asleep. Id. The boyfriend said nothing of
needing assistance, nor did the police ask. Id., ¶20. Going up the long driveway,
the police saw no blood or sign of injury. Id., ¶21. The police entered the
residence, gave Ultsch field sobriety tests, and arrested her. Id., ¶¶4-5.

¶27 We determined that these facts did not give rise to an objectively
reasonable belief that Ultsch was in need of assistance, and therefore the search
was not part of a bona fide exercise of the community caretaker function. Id.,

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No. 2018AP926-CR

¶¶15, 22. We recognized that stricter scrutiny is applied to an encounter in the
home, as opposed to an encounter in a vehicle. Id., ¶18. There was “good reason
to believe that [Ultsch] was intoxicated and almost no reason to think that she was
in distress[,]” and “there [was] very little indication of any danger to Ultsch.” Id.,
¶25.

¶28 Although there are differences between the cases, there are
significant similarities. Both cases involved car accidents that might have caused
personal injury, but there were no facts indicating injury, e.g., no blood, no broken
windshield, or damage to the driver’s compartment. Indeed, in Ultsch, the damage
to the car and building was significant, and here there was none.

¶29 Both cases involved third parties who had observed the driver after
the accident and did not report any need for assistance. Indeed, the officers could
have fairly presumed that the boyfriend in Ultsch and the citizen witness, Tracy or
the daughter would have noted if medical help were called for. While the accident
itself and the alleged slurred speech in this case led the witness to report a possibly
intoxicated driver, there was no objectively reasonable basis to conclude that the
driver was in need of immediate medical assistance. Ultsch supports our
determination. Compare State v. Gracia, 2013 WI 15, ¶¶21-22, 345 Wis. 2d 488,
826 N.W.2d 87 (traffic pole knocked down, extensive car damage, and a brother
concerned enough to break down a bedroom door to allow police to check on
him).

The Objective Facts Do Not Support a Reasonable Exercise of Any Community
Caretaker Function

¶30 Even if we assume the police were engaged in a bona fide
community caretaker function, the State also fails to carry its burden to show any

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No. 2018AP926-CR

such function was reasonably exercised. In balancing the public’s interest against
the degree and nature of the intrusion on the individual’s privacy under the third
part of the test, we consider:

(1) the 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.

Pinkard, 327 Wis. 2d 346, ¶42 (alteration in original; citation omitted).

¶31 On the first factor, the degree of public interest and exigency of the
situation, we agree with the circuit court that there is a substantial public interest
in ensuring that seriously injured individuals receive immediate medical treatment.
However, as discussed above, there was very little indication of any danger to
Kettlewell.

¶32 The second factor, the time and location of the search, and the
degree of overt authority and force displayed, also weighs against a valid exercise
of any caretaker function. The officers entered Kettlewell’s curtilage and peered
in every window even after seeing Kettlewell’s daughter. Without inquiring
whether he needed help, Schuh repeatedly directed Kettlewell to get out of bed
and go to the front door to speak to the officers, and Olig had already entered the
residence before Schuh returned to the front door, clearly constituting a substantial
overt display of authority.3

3
As noted above, Olig entered the residence and was already questioning Kettlewell
before Schuh quickly returned to the front door. There is no indication in the record and no
argument by the parties that the entry was consensual.

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No. 2018AP926-CR

¶33 As to the third factor, although Kettlewell’s vehicle was at issue, his
residence was subject to police conduct. As noted above, “one has a heightened
privacy interest in preventing intrusions into one’s home.” Id., ¶56.

¶34 Regarding the fourth factor, the officers had viable alternatives to
searching Kettlewell’s home without a warrant. Most importantly, they could
have asked Tracy if he needed help or sought her assistance to ensure that he was
not injured. She was his live-in girlfriend, a co-owner of the car, at the accident
scene, and had just taken him home. There is no indication that the officers
inquired about, much less sought Tracy’s engagement to verify, whether or not
Kettlewell had been seriously injured.

¶35 The officers also could have attempted to reach the residents in the
home with phone numbers dispatch had available. After the daughter was seen,
the officers could have recommenced knocking on the door to ask her whether
Kettlewell needed help. They could have asked Kettlewell when he was located
through the patio doors whether he needed help. See Popp, 357 Wis. 2d 696, ¶22
(at the “very core” of the Fourth Amendment is the right to retreat into one’s
home, and “the right to retreat would be significantly diminished if the police
could enter a [person’s] property to observe his [or her] repose from just outside
the front window”) (quoting from Florida v. Jardines, 569 U.S. 1, 6 (2013)).
Balancing all of the above factors, we conclude the public’s interest in the
intrusion was minimal, and as such, any discernable community caretaker function
was unreasonably exercised.

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No. 2018AP926-CR

¶36 Accordingly, we conclude that the circuit court erred by determining
the officers’ conduct was permissible under the community caretaker exception to
the warrant requirement.4

By the Court.—Judgment reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

4
We cannot avoid noting the poor briefing effort by the State. The brief is barely three
pages long, accepts Kettlewell’s recitation of the facts and iterates applicable community
caretaker law. The only argument addressing the facts of this case is a one-sentence statement
that when a car in a ditch has its air bags deployed, it is serious enough for the police to perform
the caretaker function by knocking on the driver’s curtilage windows. This undeveloped
argument, failing to apply controlling case law to the facts of this case, all but concedes the
arguments set forth by Kettlewell. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct.
App. 1992) (the court of appeals does not develop arguments for a litigant).

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