State v. Earl J. Overton

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.
June 21, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2021AP42-CR Cir. Ct. No. 2018CF398

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EARL J. OVERTON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Kenosha County:
JASON A. ROSSELL, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP42-CR

¶1 PER CURIAM. Earl J. Overton appeals from a judgment entered
after he pled guilty to being a felon in possession of a firearm and maintaining a
drug trafficking place. Overton claims the police violated the Fourth Amendment1
when they entered his home without a warrant; therefore, he says, the circuit court
should have granted his suppression motion.2 The circuit court denied the motion
on the basis that the warrantless entry was justified under the community caretaker
exception. After the circuit court’s ruling, however, the United States Supreme
Court released its decision in Caniglia v. Strom, 141 S. Ct. 1596 (2021), wherein
the Court held that the community caretaker exception does not “justif[y]
warrantless searches and seizures in the home.” Id. at 1598-1600. The State
contends that the circuit court’s suppression decision should be affirmed because
another exception—the emergency aid exception—justified the warrantless entry
into Overton’s home.

¶2 Overton argues that the search of his home was not justified under
the community caretaker exception, that the State forfeited its right to assert that
the emergency aid exception justified the police search of his home, and that even
if we allow the State’s emergency aid argument, there was no emergency under
the facts of this case. The Supreme Court released Caniglia after Overton filed his
first brief with this court but before the State filed its Response brief. The State’s
brief shifted its argument from the community caretaker exception to the
emergency aid exception. We granted Overton’s request to double the length of
his Reply brief, so he could adequately respond to the State’s changed argument.

1
U.S. CONST. amend. IV.
2
The Honorable David M. Bastianelli handled the suppression motion and entered the
order denying suppression. The Honorable Jason A. Rossell entered the judgment of conviction.

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No. 2021AP42-CR

¶3 We conclude that the State has shown that the emergency aid
exception applies. Because the totality of the circumstances show that the police
had an objectively reasonable belief that the woman who placed the 911 call was
still inside Overton’s home and that her safety was endangered, the warrantless
entry was justified under the emergency aid doctrine. We affirm.3

I. BACKGROUND

¶4 Police received a 911 call that reported a potential domestic violence
incident. The female caller reported that her boyfriend, Russell Bowens, had
battered her and thrown her down the stairs.4 She gave police the address for
where Overton, Bowens, a third man, and Bowens’s young son were located. She
said that the people inside that address had multiple assault rifles. While on the
phone with dispatch, the woman said she was now in a car outside the residence.
But, police at the scene did not see a woman in a car. When the police had

3
An appellate court may affirm the circuit court’s decision “for a reason different than
that given by the circuit court.” State v. Ware, 2021 WI App 83, ¶2, 400 Wis. 2d 118, 968
N.W.2d 752, review denied (WI Mar. 16, 2022) (No. 2020AP1559-CR). We reject Overton’s
argument that the State forfeited its right to argue the emergency aid doctrine. “[T]he forfeiture
rule is one of judicial administration[.]” Townsend v. Massey, 2011 WI App 160, ¶23, 338
Wis. 2d 114, 808 N.W.2d 155. Thus, we generally allow a respondent to argue alternative
grounds for affirmance. See State v. Holt, 128 Wis. 2d 110, 124-25, 382 N.W.2d 679 (Ct. App.
1985), superseded by statute on other grounds, WIS. STAT. § 940.225(7). Although Overton
requests that we remand the matter back to the circuit court to afford it “the opportunity [to]
analyze the matter under the emergency aid doctrine[,]” we choose to address the emergency aid
exception. Both parties had the opportunity to brief it, this court is fully capable of analyzing the
issue, and a remand would further delay finality.
4
The officer who testified at the suppression hearing said “[d]ispatch advised us that a
female had called in stating that she was thrown down a flight of -- or seven flights of stairs, she
was battered and that the suspects or people inside had multiple assault rifles.” On
cross-examination, the officer confirmed the woman said “seven flights of stairs.” The circuit
court found that “[w]hether the person said several flights of stairs or flights of stairs” was not
“determinative[.]” We agree.

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No. 2021AP42-CR

dispatch convey this to the woman, she responded that a police officer had arrived
on the scene, and she was talking to him. The woman then ended the 911 call.
When police had dispatch repeatedly attempt to call the woman back, their calls
went straight to voicemail.

¶5 Given the officers’ experience with domestic violence, they were
suspicious that the batterer pressured the woman to lie to the police so that the
police would stop any further investigation. They were concerned that the woman
was inside the residence. The address given to police was a duplex. The
downstairs unit was dark, and the upstairs unit had lights on, and the police could
see several people inside. The door from the porch to the upper unit was wide
open. Two of the responding officers went up to the second story unit and
knocked on the door. At no time did the officers hear anyone call for help or hear
a female’s voice coming from the apartment. Without opening the door, a male
voice from inside the unit asked, “What do you want?” The officers identified
themselves and asked the occupant to open the door. There was silence for a few
minutes until the officers knocked a second time and told the occupant to open the
door. Overton then opened the door. Besides Overton, the officers saw a second
man in the living room and asked if there was anyone else in the apartment.
Overton told the officer “his friend [Bowens] was inside the apartment and his
son, [Bowens’s] son.” Overton called for Bowens to come out, and a third man
approached the living room. The officers asked the men to lift their shirts to check
for weapons.

¶6 Police wanted “to ensure that this female [the 911 caller] and nobody
else was inside this residence[,]” so they called for additional officers “to clear the
residence from -- make sure this female wasn’t in [there] and needed assistance.”
The police then checked the residence for any other people. The police found a

4
No. 2021AP42-CR

child sleeping in one of the bedrooms, but the 911 caller was not there. When the
officers conducted the protective sweep, they saw, in plain view, a gun, a bullet or
shell casing, and drug paraphernalia.

¶7 The police then obtained a search warrant, and Overton was
ultimately charged with being a felon in possession of a firearm, possession of
THC and drug paraphernalia, maintaining a drug trafficking place, and child
neglect.

¶8 Overton filed a suppression motion claiming that the warrantless
entry into his residence violated the Fourth Amendment. After the suppression
hearing, the circuit court denied the motion on the ground that the entry was
lawful under the community caretaker exception to the Fourth Amendment.
Though the circuit court’s ruling was based on an exception that Caniglia held is
no longer available, the court made findings and conclusions that are still
applicable for our review. The circuit court said: (1) “the officer articulated an
objectively reasonable basis under the totality of the circumstances” to enter
Overton’s residence; (2) “[t]he residence upstairs has activity and lights, the one
downstairs doesn’t”; and (3) “[t]here’s no question that it’s objectively reasonable
that the person who made the call of the battery could still be in that residence
with all likelihood.”5

5
The circuit court also referred to “the subjective intent of the officer” in regard to
finding that the entry and sweep of Overton’s apartment “was not related to law enforcement
activities in and of itself.” The officer’s subjective intent is a factor the court may consider
specific to the community caretaker exception. Because the community caretaker exception is
not the basis for our decision, we will not look at subjective intent but will consider the totality of
the circumstances solely under an objective lens.

5
No. 2021AP42-CR

¶9 After the circuit court denied his suppression motion, Overton
accepted a plea bargain, pled guilty, and was sentenced to five years’ initial
confinement and five years’ extended supervision on the firearm possession count
and one and one-half years’ initial confinement and two years’ extended
supervision on the drug place count, consecutive. The sentencing court imposed
and stayed the sentence and placed Overton on four years’ probation. Overton
appeals.

II. DISCUSSION

¶10 “[A]n order granting or denying a motion to suppress evidence
[presents] a question of constitutional fact, which requires a two-step analysis” on
appellate review. State v. Asboth, 2017 WI 76, ¶10, 376 Wis. 2d 644, 898 N.W.2d
541. “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.” State v.
Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463 (citations
omitted).

¶11 The Fourth Amendment to the United States Constitution provides
that “[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated” and that
“no Warrants shall issue, but upon probable cause[.]” U.S. CONST. amend. IV.
Article I, section 11 of the Wisconsin Constitution likewise provides that “[t]he
right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated” and that “no warrant
shall issue but upon probable cause[.]” WIS. CONST. art. I, § 11.

6
No. 2021AP42-CR

¶12 “A [search or] seizure conducted without a valid warrant is
presumptively unreasonable.” State v. Brereton, 2013 WI 17, ¶24, 345 Wis. 2d
563, 826 N.W.2d 369. The “ultimate touchstone of the Fourth Amendment is
‘reasonableness[.]’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Whether
a search is exempt from the warrant requirement involves balancing “the degree to
which it intrudes upon an individual’s privacy and … the degree to which it is
needed for the promotion of legitimate governmental interests.” Wyoming v.
Houghton, 526 U.S. 295, 300 (1999).

¶13 In balancing these interests, courts have concluded that warrantless
searches may comport with the Fourth Amendment if a search falls within a
recognized exception. See, e.g., Kentucky v. King, 563 U.S. 452, 459 (2011). The
exception involved in this appeal is the emergency aid exception, which has been
recognized by both the United States Supreme Court, see Caniglia, 141 S. Ct. at
1599, and the Wisconsin Supreme Court, see State v. Boggess, 115 Wis. 2d 443,
449-50, 340 N.W.2d 516 (1983). “This exception states that the Fourth
Amendment does not bar a government official from making a warrantless
intrusion ‘when the official reasonably believes that a person is in need of
immediate aid or assistance.’” State v. Ware, 2021 WI App 83, ¶20, 400 Wis. 2d
118, 968 N.W.2d 752 (citations omitted), review denied (WI Mar. 16, 2022)
(No. 2020AP1559-CR); see also Lange v. California, 141 S. Ct. 2011, 2017
(2021) (recognizing the exigency associated with an officer’s need to “‘enter a
home without a warrant to render emergency assistance to an injured occupant[,]
to protect an occupant from imminent injury,’ or to ensure his own safety”
(alteration in original; citation omitted)).

¶14 To determine whether the emergency aid exception justified entry,
we apply a two-part objective test, viewed under the totality of the circumstances.

7
No. 2021AP42-CR

First, we review whether a reasonable person would have believed that “there was
an immediate need to provide aid or assistance to a person due to actual or
threatened physical injury[.]” Ware, 400 Wis. 2d 118, ¶22 (citations omitted).
Second, we determine whether a reasonable person would have believed “that
immediate entry into an area” subject to the Fourth Amendment “was necessary in
order to provide that aid or assistance.” Id. (citations omitted). The burden is on
the State to demonstrate that this exception applies. Id., ¶19.

¶15 Here, we conclude that the State met its burden to show that under
the totality of the circumstances, both parts of the emergency aid test were
satisfied. Again, the first part asks whether a reasonable person would see “an
immediate need to provide aid or assistance to a person due to actual or threatened
physical injury[.]” Id., ¶22. To assess whether objective reasonableness exists,
we require an officer “to point to specific facts that, taken with the rational
inferences from those facts, reasonably warranted the intrusion into an area in
which a person has a reasonable expectation of privacy.” Boggess, 115 Wis. 2d at
451. The test turns on “the circumstances then confronting the officer, including
the need for a prompt assessment of sometimes ambiguous information concerning
potentially serious consequences.” Id. (citations omitted).

¶16 The 911 caller reported that she was battered by her boyfriend and
thrown down the stairs. She asked for help, gave an address, and told dispatch the
people in the residence had multiple assault rifles. This information is more than
sufficient to satisfy the first part of the emergency aid test. Particularly in a
domestic violence incident, this information gave officers an objectively
reasonable belief that the 911 caller needed immediate aid or assistance.

8
No. 2021AP42-CR

¶17 The second part of the emergency aid test requires that a reasonable
person would have believed “that immediate entry into an area,” protected by the
Fourth Amendment was necessary to render the emergency aid or assistance.
Certainly, Overton’s residence is an area protected by the Fourth Amendment.
Ware, 400 Wis. 2d 118, ¶22 (citations omitted). The question is whether, based
on the facts here, a reasonable person would believe the officers needed to
immediately enter Overton’s apartment. Based on the facts the officers had at the
time, we conclude that a reasonable person would have believed that the officers
needed to immediately enter the apartment to render aid to the 911 caller.

¶18 The officer here pointed to a number of facts from which it was
objectively reasonable to believe the woman was in Overton’s residence. The
woman called 911, reported being battered by her boyfriend, and gave the address
of a residence that had an upper and lower unit. When police arrived, they got
information about where the woman was that did not match what they saw on the
ground. The woman said she was in a car outside the residence, but the police saw
no car. When dispatch told the woman police were there but did not see her, the
woman assured dispatch that she was talking to a police officer at the residence.
When police tried to get more information from the woman, she hung up and
would not answer her phone despite repeated attempts to call her back. In
domestic violence calls, it is not uncommon to have a victim call for help and then
when police respond, claim that everything is fine. At the suppression hearing, the
officer testified that the fact that what the caller was saying about her location did
not pan out raised his suspicions that she might be trapped inside since there was
no other sensible explanation for why she would lie that she was outside or talking
to police. Based on all of this information and the reasonable inferences derived
therefrom, it was objectively reasonable for police to believe the woman was

9
No. 2021AP42-CR

inside Overton’s residence, that her safety was threatened, and that “delay in
procuring a warrant would gravely endanger” her life. See State v. Richter, 2000
WI 58, ¶30, 235 Wis. 2d 524, 612 N.W.2d 29 (citation omitted). It was
objectively reasonable for the officers to believe her batterer may have discovered
she called 911 and was threatening her with a gun to force her to convince the
police to go away. It was reasonable to believe that immediate entry was needed
to provide aid or assistance.

¶19 The fact that we know after the fact that the 911 caller was not in
Overton’s apartment does not erase the objectively reasonable belief that existed at
the time. When an officer is faced with two competing reasonable inferences—
one reasonable inference that justifies a warrantless search and the other that does
not—the officer is entitled to rely on the reasonable inference that justifies the
warrantless emergency search. See State v. Mielke, 2002 WI App 251, ¶8, 257
Wis. 2d 876, 653 N.W.2d 316. We conclude the second part of the emergency aid
test was satisfied. Accordingly, the State has proven the police entry into
Overton’s residence was justified based on the emergency aid doctrine, and
therefore, there was no Fourth Amendment violation.

¶20 Overton argues that applying the emergency aid exception under the
facts here will “swallow[] the rule.” He says the facts did not warrant application
of the emergency aid exception. He cites three cases he alleges involved true
emergencies: State v. Kraimer, 99 Wis. 2d 306, 298 N.W.2d 568 (1980),
Boggess, 115 Wis. 2d 443, and State v. Pires, 55 Wis. 2d 597, 201 N.W.2d 153
(1972). Kraimer involved anonymous calls to the police from a man who said he
had killed his wife days before and was in his home with his four young children.
Kraimer, 99 Wis. 2d at 308. Boggess involved an anonymous tip that children
living in Boggess’s home “may have been battered and were in need of medical

10
No. 2021AP42-CR

attention.” Boggess, 115 Wis. 2d at 446. Pires involved a call to police after a
man came home from work and reported “his baby was dead and his wife was
having a nervous breakdown.” Pires, 55 Wis. 2d at 600.

¶21 Although reviewing the facts of other cases that have applied the
emergency aid exception can be helpful, it is not dispositive because emergency
aid cases are decided on a case-by-case basis. See Lange, 141 S. Ct. at 2018. We
disagree with Overton’s contention that upholding the police entry into his
residence under the emergency aid exception will “swallow[]” the Fourth
Amendment. We have examined the facts and determined that both parts of the
emergency aid objective test were met. The police had information to believe that
a woman’s life was in danger, and it was reasonable to believe that she was in
Overton’s apartment. “[T]he preservation of human life is paramount to the right
of privacy protected by the fourth amendment.” Ware, 400 Wis. 2d 118, ¶20
(citation omitted).6

III. CONCLUSION

¶22 This case presented an unusual scenario where the lawful exception
that the circuit court based its decision on became unlawful during the appeal.

6
The State alternatively asserts that this case could be affirmed on the basis that the
police acted in good faith reliance on the community caretaker law that existed at the time this
incident occurred, and therefore the exclusionary rule should not be applied. See State v. Burch,
2021 WI 68, ¶¶16-17, 398 Wis. 2d 1, 961 N.W.2d 314 (explaining the exclusionary rule will not
be applied when “police act with an objectively reasonable good-faith belief that their conduct is
lawful” as the rule’s “sole purpose” “is to deter future Fourth Amendment violations” (citations
omitted)). Overton disagrees because he believes “the community caretaker exception never
justified the search and entry.” Because we have decided this appeal on the emergency aid
exception, it is not necessary for us to address this additional argument. See State v. Blalock, 150
Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should be decided on the narrowest
possible ground[.]”).

11
No. 2021AP42-CR

The United States Supreme Court decided that the community caretaker exception
to the Fourth Amendment does not “permit warrantless entry into the home.”
Caniglia, 141 S. Ct. at 1600 (citation omitted). However, both the State and
Overton had the opportunity to submit briefs post-Caniglia, and as a result, we
were able to address their arguments, despite the change in the law.

¶23 It is a longstanding principle that this court may affirm the circuit
court on different grounds. See Vanstone v. Town of Delafield, 191 Wis. 2d 586,
595, 530 N.W.2d 16 (Ct. App. 1995). We have done so here. We conclude that
the circuit court’s decision to deny Overton’s suppression motion was ultimately
correct, although it cannot be sustained based upon the community caretaker
exception. Instead, we hold that the suppression motion was properly denied
because entry into Overton’s residence was justified under the emergency aid
doctrine. Accordingly, we affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

12