State v. Shannon G. Potocnik

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.
April 14, 2020
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. 2019AP523-CR Cir. Ct. No. 2017CT33

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SHANNON G. POTOCNIK,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Taylor County:
ANN KNOX-BAUER, Judge. Affirmed.

¶1 SEIDL, J.1 Shannon Potocnik, pro se, appeals a judgment
convicting him of operating a motor vehicle with a prohibited alcohol
concentration (PAC) as a second offense. The conviction was entered on

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP523-CR

Potocnik’s no-contest plea following the circuit court’s denial of his motion to
suppress. That motion sought to suppress the result of a warrantless chemical
blood test obtained at a hospital after a law enforcement officer had entered
Potocnik’s house without a warrant. Potocnik argues the circuit court erred in
concluding that: (1) the community caretaker exception to the Fourth
Amendment’s warrant requirement applied to permit the warrantless search of his
house; and (2) Potocnik’s warrantless blood draw did not violate the Fourth
Amendment due to exigent circumstances. We affirm.

BACKGROUND

¶2 The State charged Potocnik with operating a motor vehicle while
intoxicated (OWI) and PAC for having been the suspected driver of a vehicle
involved in a crash on May 15, 2017. Potocnik filed a motion to suppress the
result of a chemical test of his blood, alleging that the warrantless entry by a law
enforcement officer into his home and subsequent warrantless blood draw at a
hospital violated his Fourth Amendment rights. The circuit court held an
evidentiary hearing on the motion, at which Taylor County Sheriff’s Department
sergeant Anthony Schuett testified to the following facts.

¶3 At 1:25 a.m., a passerby called the sheriff’s department’s dispatch
and reported a one-vehicle accident where the driver was absent from the scene.
Schuett arrived at the scene shortly thereafter. Schuett observed skid marks on the
roadway leading to a truck in a ditch laying on its driver’s side. The truck had
apparently hit a large pine tree, which was sheared off six to eight feet from the
ground and was leaning into the adjacent woods. A large debris field surrounded
the scene.

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¶4 The truck was severely damaged. Both of its driver’s side doors had
been sheared off. The passenger’s side door and window were intact, but that door
was too damaged to open. The windshield was cracked but otherwise remained
intact. The rear window was broken out, but due to the small size of the opening
and damage, Schuett did not believe anybody would have been able to exit the
truck through that window. Based on his training, experience, and the nature of
the severe damage he observed, Schuett concluded that the truck’s driver must
have been ejected from the truck during the crash. However, Schuett could not
immediately locate the driver or any other vehicle occupants.

¶5 Schuett and other law enforcement officers spent approximately one
hour searching the area for the truck’s occupants. Finding no person or a body,
even after using thermal imaging, they concluded the truck’s occupant or
occupants were no longer in the area. Dispatch eventually informed Schuett that
Potocnik was the truck’s registered owner.

¶6 After learning Potocnik’s registered address, Schuett then drove
approximately eight miles to Potocnik’s residence. Upon Schuett’s arrival at
about 2:33 a.m., Schuett observed a light on in the living room. The entry door to
the home was located through the garage, and the garage’s entry door was
unlocked. Schuett entered the garage, knocked on the entry door to the house
numerous times, opened that door, and announced himself. He heard no response.

¶7 Schuett exited the garage and climbed onto a railing located on a
porch alongside the house and looked through a second story window. He
observed a man lying in bed.

¶8 Schuett returned to his squad car to make phone calls, but as he was
doing so, he saw through a living room window a naked man walking around the

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first story of the house. Schuett recognized that man as Potocnik due to Schuett’s
prior contacts with him. Schuett returned to the house entry door and knocked
again, but Potocnik “disappeared” and did not respond to Schuett. When Schuett
opened the house door to announce himself again, this time he “heard someone
moaning as if in pain.” Schuett then entered the home because he believed
someone was injured inside the house.

¶9 Schuett found Potocnik lying on a bed and could smell the odor of
intoxicants. Potocnik told Schuett that he had been in an accident. Potocnik also
admitted to having consumed “one or two” alcoholic beverages. When Schuett
asked Potocnik if he needed an ambulance, Potocnik replied, “Sure, whatever
man.” Potocnik additionally had been “making noises … like he was in pain” and
told Schuett that he was in pain.

¶10 An ambulance took Potocnik to a hospital, arriving at approximately
4:00 a.m.—two and one-half hours after Schuett arrived at the crash scene.
Hospital staff began taking X-rays and CT scans of Potocnik. Schuett believed
obtaining a search warrant for a blood draw would take at least one more hour.
From prior experience, Schuett knew that Potocnik might need to be transported
by helicopter to another facility for additional medical assistance. Due to his
training and experience, Schuett also knew that alcohol in an individual’s
bloodstream dissipates over time. Schuett therefore instructed hospital personnel
to draw Potocnik’s blood without first obtaining a search warrant.

¶11 In a written decision, the circuit court denied Potocnik’s suppression
motion following briefing. The court determined that Schuett’s warrantless entry
into Potocnik’s home was lawful under the community caretaker exception to the
Fourth Amendment’s warrant requirement. It concluded that, based on the totality

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of the circumstances, Schuett “took progressive, minimally intrusive steps in order
to respond to someone that he reasonably believed needed assistance.” The court
further concluded exigent circumstances existed for Potocnik’s blood to be drawn
without a warrant. Potocnik now appeals his second-offense PAC conviction,
challenging only the denial of his suppression motion.2

DISCUSSION

¶12 Potocnik argues the circuit court erred by denying his suppression
motion because his right to be free from unreasonable searches and seizures under
the Fourth Amendment of the United States Constitution and article I, section 11
of the Wisconsin Constitution was violated by Schuett’s warrantless entry into
Potocnik’s home and the warrantless draw of his blood.3 When reviewing the
denial of a motion to suppress evidence, we uphold the circuit court’s findings of
fact unless clearly erroneous. State v. Pinkard, 2010 WI 81, ¶12, 327 Wis. 2d
346, 785 N.W.2d 592. However, the application of constitutional principles to the
facts presents a question of law that we review de novo. Id.

I. Schuett’s warrantless entry into Potocnik’s garage and home

¶13 The Fourth Amendment protects against unreasonable searches and
seizures. Id., ¶¶12-13. Warrantless searches are considered per se unreasonable,

2
A circuit court’s order denying a motion to suppress evidence may be reviewed on
appeal from a judgment of conviction notwithstanding a defendant’s not-guilty plea. See WIS.
STAT. § 971.31(10).
3
Our supreme court has generally interpreted article I, section 11 to provide the same
constitutional guarantees as those the United States Supreme Court has accorded in interpreting
the Fourth Amendment. See State v. Kramer, 2009 WI 14, ¶18, 315 Wis. 2d 414, 759 N.W.2d
598.

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No. 2019AP523-CR

subject to a few well-delineated exceptions. Id., ¶13. One such exception, which
the State argues applied here to permit Schuett’s warrantless entry into Potocnik’s
home, involves a law enforcement officer acting as a “community caretaker.” See
id., ¶14. The State has the burden of establishing that a warrantless entry into a
home occurred pursuant to the community caretaker exception to the warrant
requirement. See id., ¶29.

¶14 A law enforcement officer exercises a community caretaker function
when that officer “discovers a member of the public who is in need of assistance.”
Id., ¶18. To determine whether an officer’s conduct properly falls within the
scope of the community caretaker exception, we must assess:

(1) whether a search or seizure within the meaning of the
Fourth Amendment has occurred; (2) if so, whether the
police were exercising a bona fide community caretaker
function; and (3) if so, whether the public interest
outweighs 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. Step 1 of the community caretaker test

¶15 The parties do not dispute that Schuett’s entry into Potocnik’s home
constituted a search within the meaning of the Fourth Amendment—they primarily
disagree on whether the requirements of the second and third steps of the
community caretaker test are met here. Potocnik, however, appears to argue that a
Fourth Amendment search occurred when Schuett entered Potocnik’s garage,
which is a point in time prior to when Schuett entered Potocnik’s home. Potocnik
begins his argument by asserting that “[a]n attached garage is protected curtilage
and peering into the windows of a residence is unconstitutional,” citing Florida v.

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No. 2019AP523-CR

Jardines, 569 U.S. 1 (2013), among other cases. Yet, other than this general
statement of the law, Potocnik argues that the totality of the circumstances does
not support Schuett’s entry into Potocnik’s home, as opposed to Potocnik’s
garage.

¶16 Although Potocnik’s argument is minimally developed, we generally
provide pro se litigants a degree of leeway. See Rutherford v. LIRC, 2008 WI
App 66, ¶27, 309 Wis. 2d 498, 752 N.W.2d 897. Accordingly, we conclude that
two Fourth Amendment searches occurred—when Schuett first entered Potocnik’s
garage and when Schuett entered Potocnik’s home from the garage.4 See
Jardines, 569 U.S. at 6-7.

B. Step 2 of the community caretaker test

¶17 The second step requires us to determine whether Schuett was
exercising a bona fide community caretaker function. See Pinkard, 327 Wis. 2d
346, ¶29. In other words, when he entered Potocnik’s attached garage and then
the residence, we must determine whether Schuett had an objectively reasonable
basis to believe Potocnik was injured and in need of assistance. See id.

¶18 To make that determination, we look at the totality of the
circumstances at the time the search occurred. See id., ¶31. In assessing the
totality of the circumstances, the subjective intent of the law enforcement officer,

4
While we grant Potocnik leeway on the development of his arguments regarding
whether a Fourth Amendment search occurred of his home and garage, Potocnik has not
sufficiently developed an argument that a Fourth Amendment search occurred when Schuett
peered into Potocnik’s first and second story windows. We therefore decline to further address
the propriety of Schuett’s actions in this regard. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992).

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No. 2019AP523-CR

while not dispositive, is relevant to our analysis. State v. Kramer, 2009 WI 14,
¶30, 315 Wis. 2d 414, 759 N.W.2d 598. Further, courts are cautioned against
“taking a too-narrow view” in determining whether an officer acted as a bona fide
community caretaker. Pinkard, 327 Wis. 2d 346, ¶31 (citation omitted).

¶19 As an initial matter, we note that Potocnik argues Schuett was not
acting as a community caretaker based upon facts and circumstances existing prior
to Schuett’s entry into Potocnik’s garage and, subsequently, his home. In fact,
Potocnik makes no meaningful argument that the totality of the circumstances
available to Schuett when he entered Potocnik’s garage are materially different
than those circumstances available to Schuett when he entered Potocnik’s home.
For the reasons discussed below, we conclude Schuett had been acting as a
community caretaker when he entered Potocnik’s garage and home. We further
note our analysis generally refers to Schuett’s entry into both Potocnik’s home and
garage due to the overlap in facts and Potocnik’s failure to argue a distinction in
the totality of the circumstances analysis between the two separate searches at
issue.

¶20 The totality of the circumstances known to Schuett before he entered
Potocnik’s garage, and subsequently Potocnik’s home, objectively demonstrated
that Schuett was acting as a bona fide community caretaker. Schuett observed a
vehicle involved in an accident that had sustained devastating damage—the truck
was lying on its side with two of its doors sheared completely off and the rear
window blown out. The truck hit a pine tree with such force that its top snapped
off over six feet above the ground. Based upon Schuett’s observation of the
wreckage, his training, and his experience, he believed that the driver must have
been ejected. Accordingly, although the truck’s driver was missing, Schuett could
reasonably infer that the driver likely required medical assistance given the truck’s

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No. 2019AP523-CR

state and the driver’s likely ejection from the vehicle during an apparent high force
impact with the pine tree.

¶21 Given the above information and having determined that Potocnik
was the vehicle’s registered owner, the record supports the circuit court finding
that it was reasonable for Schuett to travel to Potocnik’s home to check on his
well-being. As Schuett explained, he “felt it was [his] responsibility to make sure
that the driver was ok.” Schuett’s subjective intent of driving to Potocnik’s home
to check on his well-being—as opposed to investigating him for his involvement
in a possible crime—is relevant to our totality of the circumstances analysis. See
Pinkard, 327 Wis. 2d 346, ¶54. Schuett’s concern for Potocnik’s welfare favors a
determination that Schuett was acting as a bona fide community caretaker when he
entered both Potocnik’s garage and home. See id., ¶53.

¶22 Other information Schuett acquired outside Potocnik’s garage and
home further supports the circuit court’s finding that Schuett reasonably believed
Potocnik required medical assistance. The home’s lights were on and the doors to
both the home and garage were unlocked—facts suggesting a person was present
at the home. Moreover, Potocnik was not hiding his presence inside the home
from Schuett because he observed Potocnik walking past windows. Based on
these facts, and the severe damage to the truck, Schuett could reasonably surmise
that Potocnik was the truck’s driver and could be traumatized or suffering from
injuries sustained in the crash.

¶23 The evidence also supports the circuit court’s finding that Schuett
“took progressive, minimally intrusive steps in order to respond to someone that
he reasonably believed needed assistance.” Schuett reasonably believed that
Potocnik was at home and ultimately saw him through its windows. Potocnik,

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No. 2019AP523-CR

however, did not respond to Schuett’s many knocks and announcements. Lacking
a response from Potocnik, Schuett opened the house door, but he did not enter the
home until he heard someone moaning in pain from inside, suggesting an
immediate need to respond to an ongoing emergency.

¶24 Potocnik argues that we should not consider that Schuett heard
Potocnik moaning under the totality of the circumstances. Potocnik asserts “any
attempt by the State to create a ‘moaning’ argument for entry to the home is
mistaken” because it was “[o]nly after Schuett opened Mr. Potocnik’s door did he
hear moaning or yelling.” Potocnik’s argument, however, makes no material
difference in our analysis. Schuett had been acting as a bona fide community
caretaker before he entered the home, when he entered Potocnik’s garage. Thus,
even without considering that Schuett heard Potocnik moaning in our totality of
the circumstances analysis, Potocnik’s argument is a nonstarter.

¶25 Potocnik alleges that Schuett unreasonably believed Potocnik was
injured and in need of assistance because Schuett saw Potocnik through the
window walking in his own home without any visible injuries. In Potocnik’s
view, because Schuett saw Potocnik naked, Schuett could visibly confirm that
Potocnik was uninjured, and, consequently, there was no need for further contact.
We disagree.

¶26 We acknowledge that Potocnik’s lack of any visible injuries is a fact
that, when viewed in isolation, militates against concluding that Schuett was
acting as a bona fide community caretaker. However, contrary to Potocnik’s
assertion, Schuett’s belief that Potocnik required medical attention was reasonable
notwithstanding Schuett’s observation that Potocnik had no visible injuries. After
all, a person can be injured without having visible signs of the injury. We must

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No. 2019AP523-CR

analyze the circumstances in their totality, as opposed to viewing one fact in
isolation. See Pinkard, 327 Wis. 2d 346, ¶31 (citation omitted). In the same vein,
we are counseled not to take a too-narrow view in determining whether Schuett
had been acting as a bona fide community caretaker. See id., ¶33.

¶27 For the foregoing reasons, we conclude Schuett was acting as a bona
fide community caretaker when he entered Potocnik’s garage and home. Schuett
reasonably believed that Potocnik likely had been involved in a severe motor
vehicle accident, that he had been ejected from his vehicle, and that he needed
medical attention.

C. Step 3 of the community caretaker test

¶28 The third step of the community caretaker analysis requires us to
balance “whether the public interest outweighs 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. We answer this question by
applying a four-part test balancing the public interest or need that is furthered by
the officer’s conduct against the degree and nature of the intrusion on the citizen’s
constitutional interest. Id., ¶41. 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.[5]

5
The third consideration is irrelevant in this case because Schuett entered a home and
not an automobile. See State v. Gracia, 2013 WI 15, ¶27, 345 Wis. 2d 488, 826 N.W.2d 87.
Both parties appropriately do not discuss it.

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No. 2019AP523-CR

Id., ¶¶41-42 (citations and footnote omitted).

i. The degree of the public interest and the exigency of the situation

¶29 Potocnik asserts the exigency of the situation did not demand that
Schuett enter the home. Potocnik argues “the State speculates that, based on how
the truck was damaged, [he] must have been injured.” For support, he contends
that there was “no blood at the scene or any other physical evidence of bodily
injury.” Focusing on parts of his truck that remained intact and its undeployed
airbags, Potocnik argues that “it is more logical to assume the operator was not
injured.”

¶30 We reject Potocnik’s argument. Schuett was not speculating that
Potocnik was injured. Rather, as discussed above, Schuett could reasonably infer
from the facts with which he was confronted that Potocnik required immediate
medical attention. A reasonable inference is “a conclusion reached on the basis of
evidence and reasoning.” Water Well Sols. Serv. Grp. Inc. v. Consolidated Ins.
Co., 2016 WI 54, ¶38, 369 Wis. 2d 607, 881 N.W.2d 285. When officers are
confronted with facts that could have an innocent explanation, they are not
required to infer innocence as long as the inference that they do draw is supported
by evidence and reasoning. See State v. Waldner, 206 Wis. 2d 51, 59-60, 556
N.W.2d 681 (1996) (analyzing whether the reasonable inferences a law
enforcement officer drew amounted to reasonable suspicion under the Fourth
Amendment). Moreover, the public “has a significant interest” in law
enforcement officers ensuring the safety of a home’s occupants, particularly when
they cannot readily ascertain the occupants’ physical condition and “reasonably
conclude” that medical assistance is needed. State v. Matalonis, 2016 WI 7, ¶59,
366 Wis. 2d 443, 875 N.W.2d 567; see also State v. Gracia, 2013 WI 15, ¶25, 345

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No. 2019AP523-CR

Wis. 2d 488, 826 N.W.2d 87 (“The public has a substantial interest in ensuring the
safety of drivers in serious traffic accidents.”).

¶31 The Fourth Amendment does not require officers to ascertain with
one hundred percent certainty an occupant’s condition, as Potocnik suggests,
before entering a home without a warrant to render emergency assistance. See
Matalonis, 366 Wis. 2d 443, ¶59; Pinkard, 327 Wis. 2d 346, ¶¶46-48. Instead,
the Fourth Amendment requires a reasonable certainty, which is what Schuett
acted upon here.

¶32 Schuett reasonably inferred that Potocnik drove the truck involved in
the accident and that he had been ejected from that vehicle. Schuett heard
Potocnik moaning as if in pain and observed that Potocnik failed to respond to
Schuett’s repeated knocking and announcements. Schuett could reasonably infer
that Potocnik was suffering from a traumatic head injury (such as a concussion) or
other injury that would not necessarily have produced blood at the scene or on his
body. Common sense dictates that time is of the essence to acquire medical
attention for individuals who may have sustained a head or other injury. These
facts, taken together, raise more than mere speculation; they raise a reasonable
inference that Potocnik was injured and needed immediate medical assistance.
Thus, although we agree with Potocnik that some of the facts presented to Schuett
could have permitted an inference that Potocnik did not need medical attention, we
conclude, when viewing the situation’s entirety, that Schuett reasonably
determined that the situation was exigent.

ii. The attendant circumstances surrounding the search

¶33 Moving to the second consideration of the four-part balancing test,
Potocnik argues that the attendant circumstances of “time” and “location”

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No. 2019AP523-CR

surrounding the search weigh in his favor. Potocnik first asserts that the situation
lacked exigency because “we must speculate about the time” that his truck struck
the tree. Specifically, he argues any exigency became “stale or mute” because
there is no evidence as to “how much time passed from the accident occurring to
the accident being noticed.

¶34 We disagree with Potocnik and conclude that the “time” factor here
favors a determination that Schuett’s actions were appropriate under the
circumstances. Potocnik largely misinterprets the context in which “time” is
analyzed within the four-part balancing test. Our supreme court explained in
Pinkard that courts should analyze whether law enforcement officers had
“control” of the time of day or location at which the home entry occurred and “the
amount of time that passed” prior to the home’s entry. See Pinkard, 327 Wis. 2d
346, ¶49 (collecting cases that found officers acted reasonably when they waited
thirty and ninety minutes, respectively, before entering a home after arriving on its
premises).

¶35 Here, Schuett lacked control over the time of day when his entry into
Potocnik’s home occurred because he had been dispatched to investigate the crash
in response to a tip from a passerby. Additionally, Schuett did not immediately
enter Potocnik’s home when he arrived on the premises, but rather waited to
investigate and determine whether the facts known to him required his warrantless
entry. While the facts are unclear on exactly how long Schuett waited, the circuit
court found that he arrived on the premises at approximately 2:30 a.m. and arrived
at the hospital with Potocnik at approximately 4:00 a.m. During that one and one-
half hour window, the court found that Schuett took a number of progressive,
minimally intrusive steps before entering Potocnik’s home. Schuett did not rush
to enter the home, nor did he unreasonably wait to do so. We therefore conclude

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No. 2019AP523-CR

the “time” factor favors a determination that Schuett’s actions were appropriate
under these circumstances.

¶36 As to “location” under the four-part balancing test’s second
consideration, Potocnik argues that the further a person is located from the scene
of an accident, the less likely it is that person sustained a serious injury. In this
case, Potocnik lived approximately eight miles from the scene of his vehicle’s
crash. Citing only to State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793
N.W.2d 505 (2010), Potocnik argues that in “the cases where the courts have
found it constitutionally permissible for the police to enter a home under the
community caretaker exception … there is a damaged vehicle parked in the
general location of the home which is subsequently searched.” We are not
persuaded by this argument, for a few reasons.

¶37 To begin, Ultsch is inapposite. There, police officers investigated an
early-morning traffic accident in which a driver, later identified as Ultsch, had
smashed into a brick wall and fled the scene in the vehicle. Id., ¶2. The officers
found the damaged vehicle—a “large, heavy SUV”—at the end of a private
residence’s long driveway two to three miles away. Id., ¶¶2, 21. The SUV had
sustained damage only to its left front fender. Id., ¶21. When the officers saw
someone leaving the house, who turned out to be Ultsch’s boyfriend, the officers
did not express any concern about the Ultsch’s safety to Ultsch’s boyfriend. Id.,
¶3. Similarly, Ultsch’s boyfriend expressed no concern to the officers about
Ultsch’s condition. Id., ¶25. The officers eventually went to the house, entered
the unlocked front door, and found their way to Ultsch’s bedroom where she was
sleeping. Id., ¶4. They transported her to the sheriff’s department where they
performed both field sobriety and chemical breath tests, after which they arrested
her. Id., ¶5. We concluded the officers did not have an objectively reasonable

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No. 2019AP523-CR

basis to believe Ultsch was in need of assistance at the time they entered the
residence. Id., ¶¶21, 30.

¶38 In this case, the facts Schuett confronted indicated a greater exigency
than the facts presented to the officers in Ultsch. Schuett had no confirmation
from an occupant in Potocnik’s home that he was safe. Furthermore, Potocnik’s
truck sustained far more damage than Ultsch’s vehicle. Schuett’s inability to
contact anyone inside Potocnik’s home—in part due to Potocnik’s own
unresponsiveness—and the severity of the damage Potocnik’s truck sustained,
make Ultsch an unpersuasive comparison.

¶39 The location of Potocnik relative to his vehicle is not dispositive
when we consider the other attendant circumstances of Schuett’s entry. Namely,
“the low degree of overt authority and force” Schuett displayed suggests that he
acted reasonably under the circumstances. See Pinkard, 327 Wis. 2d 346, ¶54.
Law enforcement officers demonstrate a low degree of overt authority and force
when they show concern about the health and safety of a home’s occupants and
when the officers go directly to the room where they expect to find those
occupants. See id., ¶¶54-55. In this case, Schuett entered Potocnik’s home
because he was concerned about Potocnik’s welfare. There is no indication that
Schuett employed any force or drew his weapon, and he went immediately to a
bedroom where he expected to find Potocnik. We therefore conclude the low
degree of overt authority and force here weighs in favor of finding that Schuett
exercised his community caretaker responsibilities reasonably. In all, the second
part of the balancing test weighs in favor of concluding that Schuett’s exercise of
the community caretaker function was reasonable.

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No. 2019AP523-CR

iii. Alternatives to the type of intrusion actually accomplished

¶40 The fourth part of the balancing test requires us to consider the
availability, feasibility and effectiveness of alternatives to the type of intrusion
actually accomplished. Id., ¶42. Potocnik makes no developed argument that this
consideration weighs in his favor. Instead, he makes only passing assertions that
Schuett had other means to contact him—namely, by telephone—but did not do
so. We determine the fourth consideration favors concluding that Schuett
exercised his community caretaker duty reasonably, notwithstanding Potocnik’s
undeveloped argument.

¶41 First, Schuett had no feasible alternatives other than to enter
Potocnik’s home without a warrant. See id., ¶57. Schuett could have reasonably
determined that telephoning the home would have been fruitless, given Potocnik’s
unresponsiveness to Schuett’s numerous loud knocks and announcements.

¶42 Next, we must consider whether the “citizens of the community”
would have viewed Schuett’s actions as poor police work had he not entered
Potocnik’s home and instead taken another course, “perhaps by leaving the scene
to obtain a warrant or waiting for an ambulance to arrive.” See id., ¶59. We
believe the public would consider Schuett to have been derelict in his duty had he
not checked on Potocnik’s welfare given the circumstances The fourth
consideration therefore favors concluding that Schuett reasonably exercised his
community caretaker function.

¶43 Because the majority of the four considerations favor concluding
that Schuett reasonably performed his community caretaker function, the third step
of the community caretaker analysis has been satisfied. Schuett’s warrantless

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No. 2019AP523-CR

entry into Potocnik’s garage and home was therefore reasonable under the Fourth
Amendment.

II. The warrantless draw of Potocnik’s blood

¶44 A blood draw is a search under the Fourth Amendment. See
Missouri v. McNeely, 569 U.S. 141, 148 (2013). A warrantless search of a person
is presumptively unreasonable unless an exception to the warrant requirement
applies. State v. Dalton, 2018 WI 85, ¶38, 383 Wis. 2d 147, 914 N.W.2d 120.

¶45 “Exigent circumstances” are a recognized exception to the warrant
requirement. Id., ¶39. An exigent circumstance is one in which “the exigencies of
the situation make the needs of law enforcement so compelling that a warrantless
search is objectively reasonable under the Fourth Amendment.” McNeely, 569
U.S. at 148-49 (citation omitted). One well-recognized exigent circumstance is
“the threat that evidence will be lost or destroyed if time is taken to obtain a
warrant.” State v. Parisi, 2016 WI 10, ¶32, 367 Wis. 2d 1, 875 N.W.2d 619
(citation omitted).

¶46 The natural dissipation of alcohol in a person’s blood stream “may
present a risk” that evidence will be destroyed, thus supporting a finding of
exigency in a specific case. Dalton, 383 Wis. 2d 147, ¶40. But the dissipation of
alcohol in the blood does not per se create an exigency. Id., ¶42. Rather, whether
a warrantless blood draw was reasonable must be determined case-by-case based
upon the totality of the circumstances. Id.

¶47 A delay in a law enforcement officer’s ability to procure a warrant in
the regular course of his or her duties may give rise to exigent circumstances and,
therefore, is particularly relevant to the totality of the circumstances analysis in

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No. 2019AP523-CR

OWI cases. See id., ¶40. This is so because blood test results decrease in
accuracy as more time passes from the time when the alleged offense occurred.
Id., ¶41.

¶48 Our rules of evidence reflect this notion. Id. WISCONSIN STAT.
§ 885.235(1g) provides that the results of a blood test are automatically admissible
to prove intoxication or demonstrate a prohibited alcohol concentration “if the
sample was taken within 3 hours after the event to be proved.” After that
three-hour window, the evidence is admissible “only if expert testimony
establishes its probative value and may be given prima facie effect only if the
effect is established by expert testimony.” Sec. 885.235(3). Thus, law
enforcement officers investigating an OWI or a PAC violation have a legitimate
interest in administering a blood test within the three-hour window for automatic
admissibility of blood test results because those results decrease in accuracy as
more time passes. See Dalton, 383 Wis. 2d 147, ¶41.

¶49 The ultimate question is whether Schuett, under the circumstances
known to him at the time, reasonably believed that a delay in procuring a warrant
would risk an adverse effect upon the evidence—namely, the dissipation of
alcohol and the inability to obtain automatic admissibility of the evidence of
alcohol concentration in Potocnik’s blood. See id., ¶43. We conclude Schuett’s
belief was reasonable under the totality of the circumstances.

¶50 A passerby notified law enforcement of the accident at 1:25 a.m.
Potocnik and Schuett arrived at a hospital at approximately 4:00 a.m., and Schuett
believed obtaining a search warrant for a blood draw would take at least one more
hour. Schuett testified he was aware that alcohol dissipates rapidly in the
bloodstream. The dissipation of alcohol in Potocnik’s blood during the rapidly

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No. 2019AP523-CR

closing three-hour window to accomplish a presumptively admissible and accurate
blood draw presented Schuett with exigent circumstances because circumstances
outside of his control and the regular course of his law enforcement duties
prevented him from timely applying for and obtaining a warrant.

¶51 Further, when a defendant’s actions delay a law enforcement officer
from timely applying for and obtaining a search warrant, that delay makes the
officer’s decision to order a warrantless blood draw more reasonable. See State v.
Tullberg, 2014 WI 134, ¶43, 359 Wis. 2d 421, 857 N.W.2d 120. A defendant that
leaves an accident scene on his or her own accord is an example of such a delay.
See id., ¶46. Here, Potocnik left the crash scene, substantially delaying Schuett’s
ability to determine whether he had probable cause to believe Potocnik had
operated a motor vehicle while intoxicated. Consequently, Potocnik’s actions, not
Schuett’s, hindered Schuett’s ability to secure a search warrant for a blood sample
within the three-hour window to ensure its accuracy and admissibility, thereby
adding to the situation’s exigency.

¶52 Next, Schuett’s investigation of the crash scene necessarily delayed
his ability to obtain a search warrant. When confronted with an accident scene, a
law enforcement officer “should first attend to the emergency circumstances at
hand.” Dalton, 383 Wis. 2d 147, ¶45. Here, Schuett spent approximately one
hour searching the crash scene and nearby area for the truck’s driver, whom
Schuett reasonably believed had been ejected from the truck. His decision to
thoroughly investigate the area around the crash for the driver before attempting to
contact Potocnik at his home was reasonable, especially in light of the crash’s
severity.

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No. 2019AP523-CR

¶53 Finally, Schuett faced uncertainty at the hospital regarding whether
Potocnik would even be available for a blood draw if Schuett obtained a search
warrant. From prior experience, Schuett knew that Potocnik might need to be
transported by helicopter to another facility for medical treatment. A defendant’s
potential unavailability due to impending medical procedures is a fact that adds to
a situation’s exigency. See Tullberg, 359 Wis. 2d 421, ¶48. Schuett and Potocnik
arrived at the hospital approximately two and one-half hours after Schuett had
arrived at the crash scene. Again, Schuett reasonably believed obtaining a search
warrant would take at least one more hour—further risking the accuracy and
admissibility of Potocnik’s blood test result. Under these circumstances, Schuett
could not have “reasonably obtained a warrant without significantly undermining
the efficacy of the search.” See id. (citation omitted).

¶54 Potocnik argues that “[a]ny ‘exigency’ is speculation” because
“there is no known time of operation of the vehicle in question.” He claims that
without “a starting point for any exigency,” Schuett could not reasonably believe
that circumstances justified the warrantless draw of Potocnik’s blood. We are
unpersuaded. He does not cite any legal authority supporting the proposition that
the exigent circumstances exception cannot be applied in an OWI case in which
the exact time of a crash cannot be ascertained. Further, Schuett knew that every
minute that passed further reduced the accuracy and admissibility of the blood
draw and increased the likelihood Potocnik might be moved to another hospital.

¶55 Moreover, Schuett could reasonably conclude that Potocnik had
crashed his vehicle recently. Potocnik was unresponsive and moaning in pain
before Schuett entered the home. Potocnik then acknowledged that “he had been
in an accident” and replied “sure, whatever man” when Schuett asked if Potocnik
wanted an ambulance. Potocnik had also been “making noises … like he was in

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No. 2019AP523-CR

pain” and told Schuett that he was in pain. Thus, even if Schuett did not know
exactly when Potocnik crashed his vehicle, Schuett could reasonably determine
based on Potocnik’s conduct that it had happened recently such that he was
justified in ordering a draw of Potocnik’s blood due to exigent circumstances.

¶56 Viewing the totality of these facts and circumstances, Schuett
reasonably responded to the crash scene, investigated the matter at two different
locations, and ultimately was left with a very narrow time frame within which
Potocnik’s blood could be drawn to produce reliable evidence of intoxication.
“This sort of ‘now or never’ moment is the epitome of an exigent circumstance.”
Id., ¶50. Schuett acted reasonably under these circumstances. We therefore
conclude that exigent circumstances justified the warrantless draw of Potocnik’s
blood.

By the Court.—Judgment affirmed.

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

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