Krysta Sutterfield v. City of Milwaukee

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2272

KRYSTA SUTTERFIELD,

Plaintiff-Appellant,

v.

CITY OF MILWAUKEE, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 11-C-0486 — J. P. Stadtmueller, Judge.

ARGUED OCTOBER 25, 2012 — DECIDED MAY 9, 2014

Before FLAUM, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Krysta Sutterfield sued the City of

Milwaukee and several of its police officers after the officers

forcibly entered her home to effectuate an emergency detention

for purposes of a mental health evaluation, opened a locked

container, and seized for safekeeping the gun and concealed-

carry licenses they found inside. She contends that officers

violated her rights under the Second, Fourth, and Fourteenth

2 No. 12-2272

Amendments in doing so. We conclude that the warrantless

entry into Sutterfield’s home was justified under the exigent

circumstances exception to the Fourth Amendment’s warrant

requirement, as the defendant officers had a reasonable basis

to believe that Sutterfield posed an imminent danger of harm

to herself. We shall assume, as the district court did, that the

search of a closed container for a gun, and the ensuing seizure

of that gun, violated Sutterfield’s Fourth Amendment rights.

But we agree with the district court that even if the officers did

exceed constitutional boundaries, they are protected by

qualified immunity. See Sutterfield v. City of Milwaukee, 870

F. Supp. 2d 633 (E.D. Wis. 2012). We therefore affirm the

district court’s decision to grant summary judgment in favor of

the defendants.

I.

At around noon on March 22, 2011, Dr. Michelle Bentle, a

psychiatrist at Columbia/St. Mary’s Hospital in Milwaukee,

placed a 911 call to report that Sutterfield had just left an

outpatient appointment in her office after expressing suicidal

thoughts.1 Milwaukee police officers Clifton Stephens and

Timothy Powers were tasked to respond to the report. They

contacted Dr. Bentle, who advised them that Sutterfield, after

indicating that she had received some bad news, had re-

marked, “I guess I’ll go home and blow my brains out.” Dr.

Bentle indicated she was concerned for Sutterfield’s safety and

that police intervention was warranted. She also informed the

1

Sutterfield disputes the accuracy of the report, but accepts that this is

what the defendant officers were told.

No. 12-2272 3

officers that Sutterfield had worn an empty gun holster to her

appointment, from which she had surmised that Sutterfield

owned a gun.

Over the next few hours, Stephens and Powers were unable

to locate Sutterfield. They visited her home, knocked on the

front door, but received no response. A neighbor advised them

that Sutterfield had left her home that morning in her car and

had not returned. The officers checked her garage and the

street in front of Sutterfield’s residence but did not see the type

of car that her neighbor had described.

At 2:45 p.m., Dr. Bentle telephoned the officers to advise

them that Sutterfield had called her some minutes earlier

stating that she was not in need of assistance and that the

doctor should “call off” the police search for her. According to

the officers, Dr. Bentle did not indicate that Sutterfield no

longer posed a danger to herself.

With the end of their shift approaching, Stephens and

Powers prepared a Statement of Emergency Detention by Law

Enforcement Officer (“statement of detention”) pursuant to

Wisconsin Statutes section 51.15. In relevant part, section 51.15

provides that a law enforcement officer may take a person into

custody when he has cause to believe that the person is

mentally ill and evidences “[a] substantial probability of

physical harm to himself or herself as manifested by evidence

of recent threats of or attempts at suicide or serious bodily

harm.” § 51.15(1)(a)(1). The statute specifies a set of procedures

that must be followed in effectuating such a detention. In

Milwaukee County, the law enforcement officer must sign a

statement of detention which, inter alia, “shall provide detailed

4 No. 12-2272

specific information concerning the recent overt act, attempt,

or threat to act or omission on which the belief under sub[sec-

tio]n (1) [here, that the person poses a danger to himself] is

based and the names of the persons observing or reporting the

recent overt act, attempt, or threat to act or omission.”

§ 51.15(4)(a). Signing such a statement knowing the informa-

tion contained therein to be false is deemed a felony offense.

§ 51.15(12). Upon presenting the individual—along with the

statement of detention— to an appropriate treatment facility,

the treatment director of that facility (or his designee) must

determine within 24 hours whether the individual should be

detained for a period of up to 72 hours. § 51.15(4)(b). If the

facility determines that the person does not meet the criteria set

forth in section 51.20(1)(a) of the Wisconsin Statutes to detain

an individual for purposes of an in-patient mental health

evaluation (the first step in the involuntary commitment

process),2 the person must be released immediately. Id. If the

facility director decides to detain the individual, the director

may supplement in writing the statement of detention pre-

pared by the law enforcement officer and include other

pertinent information indicating that the individual meets the

criteria for commitment; the director also must designate

whether the individual is, inter alia, mentally ill. Id. The director

must promptly file the original statement, including any

2

In relevant part, section 52.20(1)(a) requires that a petition seeking such

an evaluation allege that the person is mentally ill, drug dependent, or

developmentally disabled, and that there is a substantial probability that he

may harm himself, as evidenced by recent threats of or attempts at suicide

or serious bodily harm.

No. 12-2272 5

supplement, along with a notice of detention, with the local

probate court. Id.

The statement of detention prepared by Stephens and

Powers documented the pertinent information that Dr. Bentle

had shared with them about Sutterfield and noted their

inability to locate her. Both officers signed the statement. At

4:00 p.m., Stephens and Powers went off duty.

Officer Jamie Hewitt of the Sensitive Crimes Division

subsequently was assigned to locate Sutterfield. After spending

several hours reviewing the paperwork, tracking down

information regarding Sutterfield’s automobile and having that

information issued to Milwaukee patrol officers, and checking

with local hospitals to see whether Sutterfield had been

admitted, Hewitt and several other officers returned to Sutter-

field’s residence. Hewitt’s intent was to execute the statement

of detention if and when she located Sutterfield.

Arriving on Sutterfield’s doorstep at approximately 8:30

p.m., Hewitt and the other officers found her at home. Sutter-

field answered Hewitt’s knock at the front door but would not

engage with her, except to state repeatedly that she had “called

off” the police and to keep shutting the door on Hewitt.

Sutterfield would not admit Hewitt to the residence, and

during the exchange kept the outer storm door closed and

locked. Unable to gain admittance to the house, Hewitt

concluded that the police would have to enter it forcibly.

Consistent with police department procedure, Hewitt re-

quested that a supervisory officer be dispatched to the house.

Sergeant Aaron Berken arrived at approximately 9:00 p.m.

After Hewitt brought him up to speed on the situation, Berken

6 No. 12-2272

knocked at the front door and identified himself as a police

officer. As she had with Hewitt, Sutterfield opened the inner

door of the house but not the locked storm door; she refused

to admit Berken or any other officer into the residence.

Sutterfield called 911 in an effort to have the officers leave; as

a result of that call, the ensuing events were recorded by the

emergency call center. Sutterfield can be heard on the record-

ing telling the officers that she was fine and that she did not

want anyone to enter her residence.

After informing Sutterfield of his intention to open the

storm door forcibly if she did not unlock it herself, Berken

yanked the door open and entered the house with the other

officers to take custody of Sutterfield pursuant to the statement

of detention. A brief struggle ensued. Sutterfield can be heard

on the 911 recording demanding both that the officers let go of

her and that they leave her home. (Sutterfield would later say

that the officers tackled her.) Sutterfield was handcuffed and

placed in the officers’ custody.

At that point the officers conducted a protective sweep of

the home. In the kitchen, officer James Floriani observed a

compact disc carrying case in plain view.3 He picked up the

soft-sided case, which was locked, and surmised from the feel

and weight of its contents that there might be a firearm inside.

He then forced the case open and discovered a semi-automatic

3

Sutterfield avers that the case was not actually in plain view but instead

was within an opaque bag. The district court determined that she had not

preserved a dispute of fact on this point in responding to the defendants’

statement of material facts below. 870 F. Supp. 2d at 636 n.1. Sutterfield

concedes the point for purposes of this appeal.

No. 12-2272 7

handgun inside; a yellow smiley-face sticker was affixed to the

barrel of the gun, covering the muzzle. Also inside the case

were concealed-carry firearm licenses from multiple jurisdic-

tions other than Wisconsin. Elsewhere in the kitchen the

officers discovered a BB gun made to realistically resemble a

Glock 29 handgun.

The contents of the case were seized along with the BB gun

and placed into police inventory for safekeeping. Berken

would later state that he authorized the seizure of the handgun

in order to keep them out of the hands of a juvenile, should a

juvenile enter the house unaccompanied by an adult while

Sutterfield remained in the hospital. (The police knew that

Sutterfield had a son, whom they believed to be a juvenile,

although his specific age was unknown.) Floriani would later

testify that he believed it appropriate to take both the handgun

and BB gun into custody so that Sutterfield, when released

from the hospital, would not be able to use the handgun to

commit suicide or the BB gun to provoke a police officer to

shoot her.

Floriani and another officer subsequently transported

Sutterfield to the Milwaukee County Mental Health Complex,

a psychiatric hospital which, among other things, provides

short-term in-patient and crisis management care for persons

in mental distress. What occurred there is not part of the record

and, in any event, is not relevant to the claims made in this

litigation.

Sutterfield filed suit pursuant to 42 U.S.C. § 1983 against the

city and the individual officers involved in the incident,

challenging the warrantless entry into her home, the seizure of

8 No. 12-2272

her person, the search of the case containing the gun, and the

seizure of the gun itself along with the concealed-carry

licenses. She contends that these acts violated her rights under

the Fourth Amendment (as made applicable to the States

through the Fourteenth Amendment), and that the seizure of

the revolver additionally violated her rights under the Second

Amendment.

The district court granted summary judgment to the

officers on these claims in a thoughtful opinion. 870 F. Supp. 2d

633. Believing that Sutterfield was not contesting the seizure of

her person, see id. at 643, the court focused its attention on the

warrantless entry into her home, the search of the locked case,

and the ensuing seizure of Sutterfield’s handgun. Id. at 637.

The court treated the entry into Sutterfield’s home as

presumptively invalid, as the police had no warrant. Id. at 637-

38. It proceeded to consider whether the entry was nonetheless

justified under either the community caretaking or exigent

circumstances exceptions to the Fourth Amendment warrant

requirement.

The court determined that the community caretaker

exception, on which the defendants primarily relied, did not

justify the entry. Id. at 640. The court reasoned that although

the Wisconsin courts had deemed that exception applicable in

a “broad swath of situations,” id., the Seventh Circuit had not

done so. Indeed, in United States v. Pichany, 687 F.2d 204, 208-09

(7th Cir. 1982), we had expressly rejected the government’s

effort to apply the exception beyond the automobile context.

870 F. Supp. 2d at 640.

No. 12-2272 9

The court thought that the exigent circumstances exception

might justify the warrantless entry into Sutterfield’s home,

although it ultimately abstained from a decision on that point.

The court noted at the outset that this exception required the

authorities to make “a fairly strong showing that the surround-

ing circumstances were so severe as to justify a departure from

the warrant requirement.” Id. at 638 (citing United States v.

Patino, 830 F.2d 1413, 1415 (7th Cir. 1987)). In Patino, this court

had cited a 30-minute wait for backup before effectuating a

warrantless entry into a residence as evidence that there was

no exigency, as the waiting officers could have sought a search

and/or arrest warrant during that time period. Id. at 1415-16. In

this case, more than nine hours had transpired after the police

were first notified of the suicide threat before the officers

entered Sutterfield’s home. 870 F. Supp. 2d at 638. On the other

hand, they were also executing a section 51.15 statement

authorizing Sutterfield’s detention for a mental health evalua-

tion, and the court understood that statement to function as a

quasi-arrest warrant. Id. at 639. Even if a statement of detention

cannot fulfill the role of a warrant given the lack of judicial

involvement, the court reasoned, the officers could have

thought that the statement authorized them to take such

actions as were necessary to detain Sutterfield, including

entering her home. Id. Moreover, the officers were acting to

protect life or to forestall serious injury, an interest that the

court recognized can justify police action which would

otherwise be illegal absent an exigency or emergency. Id.

(citing Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S. Ct.

1943, 1947 (2006)). The district court ultimately concluded that

it was unnecessary to decide whether the warrantless entry

10 No. 12-2272

into Sutterfield’s home was constitutionally permissible, given

its subsequent conclusion that the officers were entitled to

qualified immunity on the unlawful entry claim. Id. at 639-40.

Turning to the search of Sutterfield’s home, the court

reasoned that a cursory sweep of the premises, which brought

the compact disc case to the officers’ attention, was legally

permissible notwithstanding the lack of a search warrant. The

court relied on Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093

(1990), which authorizes officers making an in-home arrest to

conduct a protective sweep of the premises to determine

whether other persons are present. Here, the officers were

present in Sutterfield’s home as the result of her doctor’s 911

call. Sutterfield had not answered the officers when she was

asked whether anyone else was present in the home. (The

inquiry, and Sutterfield’s lack of response, can be heard on the

911 recording of the encounter.) Moreover, as a result of the

information provided by her physician, the officers believed

that she had a gun. And the overall encounter was, in the

court’s word, “tense.” 870 F. Supp. 2d at 640. Under these

circumstances, the court deemed it appropriate for the officers

to make a cursory inspection of the premises to determine if

someone else might be present. Id. at 640-41. That permissible

search led to the discovery of the compact disc case in the

kitchen, which was in plain sight. Id. at 641.

The search of that case, and the ensuing seizure of the gun

inside, was “[o]f much greater concern” to the court. Id. The

limited search authorized by Buie did not extend to the

contents of a locked case. Although Floriani indicated that

when he picked up the case, it felt as if it might contain a gun,

No. 12-2272 11

the court pointed out that the case could have held “practically

anything.” Id. As the search of the case was unauthorized, the

court acknowledged that both the opening of the case and the

seizure of the gun found inside likely constituted violations of

Sutterfield’s Fourth Amendment rights. Id.

The court rejected Sutterfield’s contention that the seizure

of the gun and concealed-carry licenses also constituted a

violation of her Second Amendment rights on the facts of this

case. In the court’s view, neither McDonald v. City of Chicago,

130 S. Ct. 3020 (2010), nor Dist. of Columbia v. Heller, 554 U.S.

570, 128 S. Ct. 2783 (2008), forecloses the possibility that an

individual’s firearm may be seized by the police for certain

purposes. 870 F. Supp. 2d at 642. Otherwise, the court rea-

soned, any seizure of a gun by the authorities—if taken as

evidence, for example—might constitute a Second Amendment

violation. Id.

Although the court had found it “likely” that Sutterfield’s

Fourth Amendment rights had been violated, the court

discerned no basis to hold Milwaukee liable for the violation.

Id. at 642-43. Sutterfield had identified no municipal policy,

custom, or practice as necessary to support a claim against the

city under Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 98

S. Ct. 2018 (1978). The court theorized that Sutterfield perhaps

could argue that it was an unconstitutional practice for the city

to follow section 51.15 by requiring that the subject of a section

51.15 statement be taken into custody no matter the circum-

12 No. 12-2272

stances,4 but Sutterfield had not made such an argument. 870

F. Supp. 2d at 643. Consequently, only the individual officers

had any prospective liability. (Sutterfield has not challenged

this aspect of the district court’s decision.)

The court concluded that the officers, assuming they had

violated Sutterfield’s Fourth Amendment rights, were entitled

to qualified immunity. Id. at 643-44. The only aspect of the

encounter over which they may have lacked discretion was the

decision to detain Sutterfield, which the court believed she had

not contested. Id. at 643. The court noted that the circumstances

of the encounter, if they did not qualify as exigent, were nearly

so; and the boundaries separating exigent from non-exigent

circumstances were not so clear as to have placed the officers

on notice that their conduct exceeded the bounds of the exigent

circumstances exception. Id. at 644. At the same time, given the

breadth that the Wisconsin courts had attributed to the

community caretaker exception, the officers could have

thought that this exception allowed them to enter Sutterfield’s

home, to perform a warrantless search of the premises,

including the compact disc case, and to seize the gun they

found inside of that case. Id.

While the Seventh Circuit has refused to read the

Community Care[taker] exemption nearly as expan-

sively as Wisconsin, and would thus seem to bind this

4

Both Hewitt and Berken indicated in their depositions that they

understood department policy to essentially require them to execute the

51.15 statement by taking Sutterfield into custody regardless of what

transpired at her home, suggesting that the decision to seize her person was

not a discretionary call on their part.

No. 12-2272 13

Court to find that such an exemption clearly does not

apply, the Court cannot expect that police officers are

schooled in the nuances of the law as it differs by

jurisdiction. The police must be able to act decisively to

prevent injury to citizens, especially when they are

acting upon information from a third party whom it

seems reasonable to believe is telling the truth, such as

Dr. Bentle in this case. By entering Ms. Sutterfield’s

home, searching it, and seizing the items that they

believed to pose a danger to both Ms. Sutterfield and

members of the community who may (though it was

unlikely) happen upon those items, the officers acted in

that decisive, though discretionary way; and, under the

laws of Wisconsin, doing so was not clearly unlawful.

Id. (internal quotation marks and citations omitted).

II.

Sutterfield challenges each aspect of the district court’s

summary judgment decision, save for the court’s determina-

tion that the record lacked evidence sufficient to hold Milwau-

kee liable under Monell for any of the constitutional violations

asserted in this case. So only the liability of the individual

oficers is at issue. Sutterfield contends, in sum, that the police

officers’ warrantless entry into her home, the seizure of her

person, the search of the locked compact disc case, and the

seizure of the revolver and the concealed carry licenses

discovered therein all violated her rights under the Fourth and

Fourteenth Amendments, and that the seizure of the gun and

licenses also violated her rights under the Second Amendment.

She further contends that because these rights were clearly

14 No. 12-2272

established (in her view), the officers do not enjoy qualified

immunity from suit. Before we turn to the merits of Sutter-

field’s claims, we feel compelled to say a few words about the

importance of the competing interests at stake in this case.

The intrusions upon Sutterfield’s privacy were profound.

At the core of the privacy protected by the Fourth Amendment

is the right to be let alone in one’s home. See, e.g., Kyllo v. United

States, 533 U.S. 27, 31, 121 S. Ct. 2038, 2041-42 (2001) (citing

Silverman v. United States , 365 U.S. 505, 511, 81 S. Ct. 679, 683

(1961)); Payton v. N.Y., 445 U.S. 573, 589-90, 100 S. Ct. 1371,

1381-82 (1980). In this case, police entered Sutterfield’s home

forcibly and without a warrant, against her express wishes.

Once inside of her home, they seized her person, again

employing force because she resisted. They then searched the

premises of the house, discovered the locked compact disc

case, broke it open, and seized her gun and concealed carry

licenses, all without a search warrant. Finally, pursuant to

section 51.15, they took Sutterfield to the Milwaukee Mental

Health Complex for an (involuntary) evaluation. Although the

officers took each of these actions for benevolent reasons, from

Sutterfield’s perspective—and from the perspective of anyone

in a similar situation who did not wish assistance—these were

serious intrusions upon the sanctity of her home and her

person.

On the other hand, courts from the United States Supreme

Court on down have long recognized the important role that

police play in safeguarding individuals from dangers posed to

themselves and others—a role that will, in appropriate

circumstances, permit searches and seizures made without the

judicial sanction of a warrant. See, e.g., Brigham City, Utah v.

No. 12-2272 15

Stuart, supra, 547 U.S. at 403-04, 126 S. Ct. at 1947 (collecting

cases); Mincey v. Ariz., 437 U.S. 385, 392 & nn.6-7, 98 S. Ct. 2408,

2413 & nn.6-7 (1978) (same). Here, the Milwaukee police had

been contacted by Sutterfield’s physician with a concern that

Sutterfield might harm herself. Wisconsin law sets forth an

emergency detention procedure to deal with precisely this sort

of situation. Pursuant to section 51.15, a statement authorizing

Sutterfield’s emergency detention was prepared, and police

executed that statement when they entered Sutterfield’s home

and took her into their custody. They looked for, discovered,

and seized her firearm out of concern for Sutterfield’s safety

and that of any minor who might enter her home in her

absence. There is no suggestion that they acted for any reason

other than to protect Sutterfield from harm.

This case therefore requires us to balance Sutterfield’s

privacy interests, as protected by the Fourth Amendment,

against a community interest—and frankly Sutterfield’s own

interest—in protecting her from harm, including self-inflicted

harm. Aside from the importance of these competing interests,

several circumstances make our job more difficult. First, the

parties have given us virtually no information as to the

alternatives other than emergency detention pursuant to

section 51.15 that were available to the Milwaukee police in

this situation. Sutterfield, for example, frequently speaks about

the lack of a warrant but has not addressed what type of

warrant, if any, would have been appropriate and available in

the circumstances confronting the police. Her briefs seem to

view the case through the lens of criminal law enforcement

when the case plainly does not fit that model. Moreover, as we

shall discuss, there also persists a lack of clarity in Fourth

16 No. 12-2272

Amendment case law as to the appropriate legal framework

that should be applied to warrantless intrusions motivated by

purposes other than law enforcement and evidence-gathering.

It will no doubt be frustrating to Sutterfield and to the

reader that we do not reach firm conclusions as to the merits of

all of the claims she has asserted and instead, like the district

court, resolve the case in part based on the doctrine of qualified

immunity. We recognize the significant role that resolving the

merits of each claim plays in the development of precedent and

clarifying the boundaries of constitutional rights. See Pearson v.

Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818 (2009). But given

the importance of the interests at stake, the lack of clarity in the

case law, and the shallowness of the briefing as to the alterna-

tives available to the police on the facts presented here, we

believe that the tentative nature of some of our analysis is

appropriate.

We now turn to the merits of Sutterfield’s claims.

A. Detention of Sutterfield

Our discussion of the first claim may be brief. Although

Sutterfield insists that, contrary to the district court’s belief, she

has challenged the defendants’ seizure of her person as being

contrary to the Fourth Amendment, she has not adequately

developed any such argument. She does not contest that her

physician reported that she had threatened to do herself harm.

Further, there is no dispute that, in light of the doctor’s report,

there was a valid basis to pursue an emergency detention of

Sutterfield under section 51.15, that the police complied with

the requirements of that statute, or that the statute (and the

statement completed by officers Stephens and Powers)

No. 12-2272 17

authorized the seizure of Sutterfield. Sutterfield suggests that

the statute is unconstitutional to the extent that it permits the

seizure of a person without the authorization of a judicial

officer. But she fails to support her contention with any citation

of authority or legal analysis.

We note that Sutterfield’s position presumes that prior

judicial approval is required when a person is detained not

because she is suspected of a crime but rather because she is

believed to pose a danger to herself. In that respect, she makes

no distinction between the law enforcement and community

caretaking functions of the police. Her argument, moreover,

calls into question the constitutionality not only of Wisconsin’s

section 51.15, but a host of comparable provisions found in

other state codes. Many if not most states have provisions

authorizing the emergency detention of individuals based on

information indicating that they pose a danger to themselves

or others. See Treatment Advocacy Center, Emergency Hospital-

ization for Evaluation—Assisted Psychiatric Treatment Standards

by State (June 2011), available at http://treatmentadvocacy

center.org/storage/documents/Emergency_Hospitalization_

for_Evaluation.pdf (last visited May 9, 2014). Although the

specifics of such statutes vary, they commonly do not require

prior judicial approval of the emergency detention. See, e.g.,

405 Ill. Comp. Stat. 5/3-601 - 5/3-603 (authorizing involuntary

admission of person to mental health facility when adult

presents petition to facility indicating admission is necessary to

protect self or others from harm, detailing signs or symptoms

of mental illness, and describing relevant acts, threats, behav-

ior, and so forth; petition must be accompanied by statement

of qualified expert and if none immediately available, person

18 No. 12-2272

may be detained for purposes of examination by such expert);

Indiana Code § 12-26-5-1 (authorizing detention of person for

no more than 72 hours on written application of individual

setting forth belief admitted person is mentally ill or dangerous

and in need of immediate restraint, together with statement of

at least one physician indicating person may be mentally ill or

dangerous).

Our point is not to suggest that the sort of emergency

detention authorized by section 51.15 and similar statutes in

other states necessarily is constitutional. Our point, instead, is

that given the ubiquity of such statutes, and the legitimacy of

the interests in both personal and public safety underlying

such statutes, a contention that an emergency detention is per

se unconstitutional without prior judicial authorization

demands much more than a conclusory argument to that effect.

Sutterfield has waived any claim that her detention was

unlawful absent the prior approval of a judge. See, e.g., Fluker

v. Cnty. of Kankakee, 741 F.3d 787, 795 (7th Cir. 2013) (perfunc-

tory and undeveloped arguments waived). See also In re

Commitment of Louise M., 555 N.W.2d 807, 810 (Wis. 1996)

(finding that procedures for involuntary detention set forth in

section 51.15 satisfy the requirements of due process).

B. Entry into Sutterfield’s Home

The district court, as noted, found that the warrantless

entry into Sutterfield’s home might be justified on the basis of

the exigent circumstances doctrine. Sutterfield focuses the bulk

of her argument on this possibility, contending that in view of

the passage of nine hours between her physician’s initial phone

call to the police and the point at which police sought entry

No. 12-2272 19

into her home, the circumstances cannot be desribed as exigent,

as there was ample opportunity for the police to obtain a

warrant. She adds that her own conduct in refusing to open the

door to her home and admit the police cannot be said to have

created an exigency where none otherwise existed.

There are three doctrines or exceptions to the warrant

requirement that have been raised at one point or another in

this case as possible justifications for the warrantless entry into

Sutterfield’s home: the community caretaking doctrine, the

emergency aid doctrine, and the exigent circumstances

doctrine. For the reasons that follow, we believe that the entry

into Sutterfield’s home was justified by the emergency aid

doctrine, which the Supreme Court has deemed a subset of the

exigent circumstances doctrine. But as there is some degree of

overlap between the doctrines, the distinctions between them

are not always clear, and all three doctrines are, to some

degree, implicated in this case, we begin with a short discus-

sion of each.5

5

Scholars have frequently remarked on the lack of clarity in judicial

articulation and application of the three doctrines. See, e.g., Megan Pauline

Marinos, Comment, Breaking and Entering or Community Caretaking? A

Solution to the Overbroad Expansion of the Inventory Search, 22 GEO. MASON U.

CIVIL RIGHTS L. J. 249, 261 (2012) (“Over the years, state and federal courts

have muddled the distinction between the emergency aid exception to the

warrant requirement and the community caretaking exception to the

probable cause and warrant requirements.”); Michael R. Dimino, Sr., Police

Paternalism: Community Caretaking, Assistance Searches, and Fourth Amend-

ment Reasonableness, 66 WASH. & LEE L. REV. 1485, 1494 (2009) (“The

vagueness surrounding the definition of the community-caretaking

category and the different standards governing the constitutionality of

(continued...)

20 No. 12-2272

The community caretaking doctrine recognizes that police

sometimes take actions not for any criminal law enforcement

purpose but rather to protect members of the public; searches

(including home entries) conducted for the latter purpose are

deemed exempt from the Fourth Amendment warrant require-

ment. The doctrine was first recognized by the United States

Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct.

2523 (1973), which sustained the warrantless search of an

automobile in police custody that was conducted as a matter of

routine for a purpose “totally divorced from the detection,

investigation, or acquisition of evidence relating to the viola-

tion of a criminal statute,” id. at 441, 93 S. Ct. at 2528. As we

shall see, state and federal courts have divided over the scope

of the community caretaking doctrine recognized in Cady. This

court, taking the narrow view, has confined the doctrine to

automobile searches. United State v. Pichany, supra, 687 F.2d at

207-09. Pichany rules out the community caretaker doctrine as

a basis which might justify the warrantless entry into

5

(...continued)

different types of community-caretaking searches indicate that more

precision is needed. There is not a single community-caretaking doctrine.

Rather, there are several different community-caretaking doctrines, but

courts have not clarified the constitutional interests affected by those

different kinds of searches.”); Deborah Tuerkheimer, Exigency, 49 ARIZ. L.

REV. 801, 812 n. 60 (2007) (“the state of the case law in this area is remark-

ably confused”); Mary Elizabeth Naumann, Note, The Community Caretaker

Doctrine: Yet Another Fourth Amendment Exception, 26 AM. J. CRIM. L. 325, 365

(1999) (“A review of both federal and state case law reveals a lack of

consistency in the definition and boundaries of the community caretaker

doctrine that control the judgment exercised by the officers in these

situations.”).

No. 12-2272 21

Sutterfield’s home, as the district court recognized. But because

the Wisconsin courts—which, like the court, possess the

authority and indeed the obligation to interpret and apply the

Fourth Amendment, see Burgess v. Lowery, 201 F.3d 942, 945-46

(7th Cir. 2000)—have accorded a much broader sweep to the

community caretaker doctrine, and this would have given the

defendants reason to believe that the entry was justified, a

more detailed discussion of Cady and its progeny is called for.

In Cady, Wisconsin police officers searched the trunk of a

rented automobile that had been disabled in a one-car accident.

The obviously intoxicated driver of the car, Dombrowski, had

informed the officers that he was a Chicago policeman.

Believing that Chicago police officers were required to carry

their service revolvers with them at all times, the Wisconsin

police looked for a gun on Dombrowski’s person and in the

glove compartment and front seat of the car, but they did not

find one. The car was towed to a local (private) garage and

Dombrowski was taken into custody for drunken driving.

Later that night, an officer visited the garage to search the car

again for Dombrowski’s revolver; the search was described as

a matter of routine practice within the local police department.

When the officer opened the locked trunk of the car, he

discovered clothing and other items with blood on them. When

Dombrowski was confronted with those items, he directed

police to a body on his brother’s farm. Dombrowski was

ultimately charged with murder, and the items discovered in

the trunk of the car were admitted at trial as evidence.

Dombrowski was convicted. On habeas review, this court

agreed with Dombrowski that the search of the car trunk

violated his Fourth Amendment rights, as there was no

22 No. 12-2272

exigency that might have justified a warrantless search.

Dombrowski v. Cady, 471 F.2d 280, 283-84 (7th Cir. 1972) (2-1

decision). The Supreme Court reversed.

The Court in Cady sustained the search of car trunk as a

legitimate exercise of the police force’s community caretaking

function. After first noting that the touchstone of the Fourth

Amendment is “reasonableness,” id. at 439, 93 S. Ct. at 2527,

the Court pointed out that it had long distinguished automo-

bile searches from searches of the home, both because cars are

inherently mobile, lending greater justification to warrantless

searches, and because the highly-regulated status of motor

vehicles brings the police into frequent contact with automo-

biles—and any contents, including contraband, which are in

plain view—for reasons unrelated to the investigation of crime.

Id. at 440-42, 93 S. Ct. at 2527-28. In this case, the police had

been compelled to assume custody of Dombrowski’s rental car

because Dombrowski himself was unable to drive and because

the wrecked vehicle otherwise presented a nuisance upon the

roadway. Id. at 442-43, 93 S. Ct. at 2529. After they took

custody of the car, police had followed what the lower courts

had determined to be standard operating procedure in

searching the car for Dombrowski’s service revolver. That

search was conducted not for evidence-gathering purposes but

rather for safety reasons: the car had been towed to a garage lot

which was not secured, leaving any gun inside accessible to

vandals. Id. at 443, 448, 93 S. Ct. at 2529, 2531. Thus, the search,

although unsupported by a warrant, constituted a legitimate

exercise of the police force’s community caretaking function.

Id. at 447-48, 93 S. Ct. at 2531.

No. 12-2272 23

Cady’s holding has since evolved into a rule authorizing a

routine, warrantless inventory search of an automobile

lawfully impounded by the police. In South Dakota v. Opperman,

428 U.S. 364, 96 S. Ct. 3092 (1976), for example, the Court

sustained the search of a car which had been impounded by

police after it was left parked illegally in a restricted zone; the

search had unearthed marijuana in the vehicle’s glove com-

partment. After reiterating Cady’s rationale and adding that the

individual has a lesser expectation of privacy in the automobile

than in the home, id. at 367-69, 96 S. Ct. at 3096, the Court

noted that a routine inventory search of an impounded vehicle

serves multiple needs: protection of the owner’s property,

protection of the police against allegations of lost or stolen

property, and protection of the police from potential danger,

id. at 369, 96 S. Ct. at 3097. The search, conducted for legitimate

caretaking reasons and not as a pretext for evidence-gathering,

therefore met the Fourth Amendment’s reasonableness

standard. Id. at 375-76, 96 S. Ct. at 3100; see also, e.g., United

States v. Jackson, 189 F.3d 502, 508-09 (7th Cir. 1999). Opperman,

as it turned out, marked the last time that the Supreme Court

relied to any meaningful degree on the community caretaking

function of the police in evaluating the reasonableness of

searching automobiles and other items impounded by the

police; subsequent cases have rested on Opperman’s description

of the search as a routine “inventory” search. See, e.g., Colorado

v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741 (1987) (“inven-

tory searches are now a well-defined exception to the warrant

requirement of the Fourth Amendment”); see also Marinos,

supra n.5, 22 GEO. MASON U. CIVIL RTS. L. J. at 251 n.11, 259.

24 No. 12-2272

This court, as we have mentioned, has limited the commu-

nity caretaker doctrine to automobile searches. Pichany, 687

F.2d at 207-09. Our decision in Pichany addressed the warrant-

less search of a commercial warehouse. Police officers had

arrived early for a meeting at an industrial park with a

business owner who had reported a burglary of his warehouse.

While looking for the owner, the officers wandered into the

defendant’s nearby warehouse, which was both unlocked and

unmarked—but which was not the warehouse reported

burglarized. There they discovered several stolen tractors,

which resulted in the defendant being charged with theft. After

the district court suppressed the evidence discovered in the

warehouse, the government appealed, seeking to justify the

warrantless entry into the defendant’s warehouse on the basis

of the community caretaker doctrine. The government argued

that when the officers entered the defendant’s warehouse, they

were not investigating the defendant’s possible involvement in

a crime but simply looking for the individual who had re-

ported a burglary. We rejected the invitation to extend Cady’s

community caretaking rationale beyond the automobile

context. “None of the factors which the Court found character-

ized the community caretaking function are present here.” 687

F.2d at 207. We pointed out that, in contrast to the situation in

Cady, the police had not exercised control or dominion over the

defendant’s warehouse, nor was there any threat of damage or

theft that might have triggered a duty on the part of the

officers to secure his warehouse. Id. at 207-08. More fundamen-

tally, the Court in Cady, by stressing the circumstances that

differentiated cars from houses and other things that might be

searched, had indicated that its holding “extended only to

No. 12-2272 25

automobiles temporarily in police custody.” id. at 208. “Conse-

quently, the plain import from the language of the Cady

decision is that the Supreme Court did not intend to create a

broad exception to the Fourth Amendment warrant require-

ment to apply whenever the police are acting in an ‘investiga-

tive,’ [i.e., community caretaking] rather than a ‘criminal’

function.” Id. at 208-09 (quoting Cady, 413 U.S. at 453, 93 S. Ct.

at 2534) (Brennan, J., dissenting)).

The other circuits are divided on the question of whether

the community caretaker exception applies outside of the

automobile context, and in particular to warrantless searches

of the home. In addition to this circuit, the Third, Ninth, and

Tenth circuits have confined the community caretaking

exception to the automobile context. See Ray v. Tp. of Warren,

626 F.3d 170, 177 (3d Cir. 2010); United States v. Bute, 43 F.3d

531, 535 (10th Cir. 1994) (2-1 decision); United States v. Erickson,

991 F.2d 529, 531-33 (9th Cir. 1993).6 In contrast, the Fifth, Sixth,

and Eighth circuits have relied on the community caretaking

exception to justify warrantless searches of the home. See

United States v. Quezada, 448 F.3d 1005, 1007-08 (8th Cir. 2006);

United States v. Rohrig, 98 F.3d 1506, 1521-25 (6th Cir. 1996) (2-1

decision); United States v. York, 895 F.2d 1026, 1029-30 (5th Cir.

6

More recently, the Ninth Circuit found that a warrantless entry into a

home was justified when police entered the home in a community

caretaking role while responding to a perceived emergency; the court

emphasized that the circumstances must present a genuine emergency in

order for such an entry to be justified. See United States v. Stafford, 416 F.3d

1068, 1073-75 (9th Cir. 2005). Despite the references to community

caretaking, the decision is probably best characterized as relying on the

emergency aid doctrine rather than the community caretaking doctrine.

26 No. 12-2272

1990) (framed as an exigent circumstances decision, but

stressing community caretaking role of police in abating noise

disturbance). However, the Sixth Circuit more recently has

expressed doubt that the community caretaking doctrine

would generally authorize the warrantless entry into a home,

see United States v. Williams, 354 F.3d 497, 508 (6th Cir. 2003),

although its decision in that case ultimately rested on the fact

that police were motivated by a suspicion of criminal wrong-

doing in addition to community caretaking purposes, id.

Finally, the Fourth Circuit has indicated that the community

caretaking exception may justify a warrantless residential

search when, as in Cady, the search is conducted pursuant to

routine procedure and not for purposes of criminal evidence-

gathering. Hunsberger v. Wood, 570 F.3d 546, 554 (4th Cir. 2009)

(Wilkinson, J.). See also MacDonald v. Town of Eastham, 2014 WL

944707, at *4-*6 (1st Cir. Mar. 12, 2014) (noting disarray in cases

and leaving question open); United States v. McGough, 412 F.3d

1232, 1238-39 (11th Cir. 2005) (noting that “we have never

explicitly held that the community caretaking functions of a

police officer permit the warrantless entry into a home”; court

goes on to find that in any event facts did not warrant applica-

tion of the exception in that case). A similar division exists at

the state level. See Gregory T. Helding, Comment, Stop Ham-

mering Fourth Amendment Rights: Reshaping the Community

Caretaking Exception With the Physicial Intrusion Standard, 97

MARQUETTE L. REV. 123, 143-48 (2013) (collecting cases extend-

ing community caretaking exception beyond the automobile

context); Naumann, supra n.5, 26 AM. J. CRIM. L. at 352-57

(surveying different approaches employed by state courts).

No. 12-2272 27

As the district court noted, the Wisconsin courts in particu-

lar have extended the community caretaking doctrine to

searches of homes. We reserve our discussion of the Wisconsin

precedents for our qualified immunity analysis below. For

now, it is sufficient to express our agreement with the district

court that, given our decision in Pichany, the warrantless entry

into Sutterfield’s home cannot be sustained on the basis of the

community caretaker doctrine.

The exigent circumstances exception to the warrant

requirement constitutes a second ground on which the

warrantless entry into Sutterfield’s home potentially could be

justified. Pursuant to this exception, a warrantless entry into a

dwelling may be lawful when there is a pressing need for the

police to enter but no time for them to secure a warrant.

Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 1949 (1978);

see also, e.g., Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir.

2013). Recognized exigencies include situations in which the

occupant of a residence is injured or is in danger of imminent

injury, Michigan v. Fisher, 558 U.S. 45, 47-48, 130 S. Ct. 546, 548-

49 (2009); Brigham City, Utah v. Stuart, supra, 547 U.S. at 403-04,

126 S. Ct. at 1947; see, e.g., Fitzgerald, 707 F.3d at 731-32) (danger

of suicide); when there is a danger posed to others by the

occupant of a dwelling, as when the occupant is armed and

might shoot at the police or other persons, e.g., United States v.

Kempf, 400 F.3d 501, 503 (7th Cir. 2005); when police are in “hot

pursuit” of a fleeing suspect, United States v. Santana, 427 U.S.

38, 42-43, 96 S. Ct. 2406, 2409-10 (1976) (citing Warden v.

Hayden, 387 U.S. 294, 87 S. Ct. 1642 (1967)), or there is a risk

that the suspect may escape, see Minnesota v. Olson, 495 U.S. 91,

100, 110 S. Ct. 1684, 1690 (1990); and to prevent the imminent

28 No. 12-2272

destruction of evidence, Kentucky v. King, 131 S. Ct. 1849, 1856-

57 (2011). Whether the exigent circumstances exception justifies

warrantless action is judged by an objective standard: we ask

whether it was reasonable for the police officers on the scene to

believe, in light of the circumstances they faced, that there was

a compelling need to act and no time to obtain a warrant. See

Tyler, 436 U.S. at 509, 98 S. Ct. at 1949; e.g., Fitzgerald, 707 F.3d

at 730. There must be a genuine need to forego the warrant

process; and in assessing that need, we must focus not only on

the moment that police made the decision to make the warrant-

less entry, but rather “appraise the agents' conduct during the

entire period after they had a right to obtain a warrant and not

merely from the moment when they knocked at the front

door.” United States v. Patino, supra, 830 F.2d at 1416 (quoting

United States v. Rosselli, 506 F.2d 627, 630 (7th Cir.1974) (foot-

note omitted) (Stevens, J.)).

Related to both of the foregoing exceptions to the warrant

requirement is the emergency or emergency aid doctrine,

which recognizes that a warrantless entry into the home may

be appropriate when police enter for an urgent purpose other

than to arrest a suspect or to look for evidence of a crime. See

Mincey v. Ariz., supra, 437 U.S. at 392-93, 98 S. Ct. at 2413;

Hanson v. Dane Cnty., Wis., 608 F.3d 335, 337-38 (7th Cir. 2010);

United States v. Richardson, 208 F.3d 626, 630 (7th Cir. 2000);

United States v. Salava, 978 F.2d 320, 324-25 (7th Cir. 1992). Like

the community caretaker exception to the warrant require-

ment, this doctrine recognizes that police play a service and

protective role in addition to a law enforcement role. See Sheik-

Abdi v. McClellan, 37 F.3d 1240, 1244 (7th Cir. 1994) (citing

United States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992)). In the

No. 12-2272 29

former capacities, police officers may sometimes need to enter

a dwelling in order to render aid to an occupant whom they

believe to be in distress and in immediate need of their

assistance. Id. The test for this exception is also objective: the

question is whether the police, given the facts confronting

them, reasonably believed that it was necessary to enter a

home in order to “render assistance or prevent harm to

persons or property within.” Id. (quoting Moss, 963 F.2d at

678); see also United States v. Jenkins, 329 F.3d 579, 581-82 (7th

Cir. 2003).

Although we had understood the emergency aid doctrine

to be separate from (albeit related to) the exigent circumstances

exception, see Sheik-Abdi, 37 F.3d at 1244, see also Hopkins v.

Bonvicino, 573 F.3d 752, 763 (9th Cir. 2009); John F. Decker,

Emergency Circumstances, Police Responses, and Fourth Amend-

ment Restrictions, 89 J. CRIM. L. & CRIMINOLOGY 433, 441-45

(1999), the Supreme Court in Brigham City effectively made the

former a subset of the latter. 547 U.S. at 403-4, 126 S. Ct. at

1947; see Tuerkheimer, supra n.5, 49 ARIZ. L. REV. at 812-13 &

n.60.

The police in Brigham City had responded to a 3:00 a.m. call

complaining of a loud party at a residence. On arrival at the

residence, the officers heard shouting from inside of the house,

walked down the driveway, saw two juveniles drinking beer

in the backyard, and from there noticed an altercation taking

place in the kitchen of the home. Through a screen door, they

saw four adults attempting to restrain a juvenile, who was able

to break free and strike one of the adults, drawing blood. As

the struggle continued, one of the officers opened the door to

30 No. 12-2272

the kitchen, announced himself, and then entered. At that

point, the altercation ceased. The police ultimately arrested the

adults for, inter alia, contributing to the delinquency of a minor

and disorderly conduct. At issue before the Supreme Court

was the lawfulness of the police officers’ entry into the resi-

dence.

The Court determined that the interest in preventing injury

to an occupant of the home justified a warrantless entry by the

police. The Court recognized that the need to assist a person

who is seriously injured or who is threatened with such an

injury is one type of exigency that obviates the need to obtain

a warrant: “The need to protect or preserve life or avoid

serious injury is justification for what would be otherwise

illegal absent an exigency or emergency.” 547 U.S. at 403, 126

S. Ct. at 1947 (internal quotation marks and citations omitted).

“Accordingly, law enforcement officers may enter a home

without a warrant to render emergency assistance to an injured

occupant or to protect an occupant from imminent injury.” Ibid.

The officers’ subjective motive for the entry—be it to quell

violence or to make an arrest, for example—is irrelevant; what

matters is whether the facts, viewed objectively, justified the

action taken by the police. Id. at 404-05, 126 S. Ct. at 1948. In

this case, the officers witnessed a fracas ongoing within the

home that had already resulted in injury to one of the occu-

pants. The officers consequently had reason to believe both

that the person who had been struck might need help and that

the fight might continue without intervention. The entry into

the home was therefore reasonable. Id. at 406, 126 S. Ct. at 1949.

We relied on Brigham City’s exigency rationale in Fitzgerald,

707 F.3d 725, to sustain a warrantless entry into a home where

No. 12-2272 31

police had reason to believe that the occupant might harm

herself. The police in Fitzgerald were summoned to the plain-

tiff’s home after she had a telephone conversation with a police

officer that caused that officer to be concerned that she might

be suicidal. At the conclusion of a stressful, aggravating day,

the plaintiff, who had been drinking, attempted to contact a

local help line but instead found herself speaking to the desk

sergeant at a local police station. Although she denied enter-

taining suicidal thoughts, the sergeant, while remaining on the

line with her, dispatched officers to her home, reporting that

she was highly depressed, intoxicated, and possibly suicidal.

As the officers were approaching the plaintiff’s condominium,

they learned that the plaintiff had just abruptly hung up on the

desk sergeant. At that point, the officers made a forced,

warrantless entry into the plaintiff’s home. After speaking with

her for a period of 30 minutes, the officers ultimately took the

plaintiff into custody against her will for evaluation at a

hospital. She later filed suit, contending among other things

that the warrantless intrusion into her home violated the

Fourth Amendment.

We concluded that the entry was justified based on the

exigent circumstances exception. Given the information

available to the officers, it was objectively reasonable for them

to believe at the time they entered the home that the occupant

was in need of immediate assistance. See id. at 731(quoting

United States v. Arch, 7 F.3d 1300, 1304 (7th Cir. 1993)). The fact

that the officers who arrived on the plaintiff’s doorstep had not

personally observed any suicidal behavior was not dispositive.

They were reasonably relying on information provided to them

by the desk sergeant, who had conveyed to them that the

32 No. 12-2272

plaintiff had called the police station, that she sounded both

intoxicated and suicidal, and had abruptly hung up as officers

approached her home.

This case fits snugly within our precedents holding

that police officers and other emergency personnel

must be “able to assist persons in danger or other-

wise in need of assistance.” Richardson, 208 F.3d at

630. “[W]hen police are acting in a swiftly develop-

ing situation … a court must not indulge in unrealis-

tic second-guessing.” Leaf v. Shelnutt, 400 F.3d 1070,

1092 (7th Cir. 2005) (internal quotation marks omit-

ted). We apply that maxim again today.

707 F.3d at 732.

Fitzgerald, we believe, guides us to a particular result in this

case; but before we turn back to the particular facts before us,

several points deserve making as to the three doctrines we

have just discussed. All three doctrines, to the extent they

authorize the police to make a warrantless entry into a dwell-

ing in order to render aid to a member of the

public—sometimes described as an “assistance search,” see

Dimino, supra n.5, 66 WASH. & LEE L. REV. at 1488—are speak-

ing to the community caretaking function of police officers, see

id. at 1494. There are, nonetheless, important differences in

both the doctrines and how courts apply them that present

challenges in deciding which of them governs a particular set

of facts.

Exigency, for example, is defined by a time-urgent need to

act that makes resort to the warrant process impractical. See id.

at 1508; see also, e.g., Tyler, 439 U.S. at 509, 98 S. Ct. at 1949;

No. 12-2272 33

United States v. Foxworth, 8 F.3d 540, 544-45 (7th Cir. 1993). If,

on the other hand, there is time for the police to seek a warrant,

then one must be sought: see, for example, our decision in

Patino, 830 F.2d at 1416-17, which the district court discussed.

870 F. Supp. 2d at 638; see also, e.g., United States v. Talkington,

843 F.2d 1041, 1046 (7th Cir. 1988) (remanding for determina-

tion of whether agents had time to procure warrant). But the

focus on the standard warrant process presumes that there is

reason to believe that something criminal is afoot. Exigency

cases thus typically speak either of there being probable cause

to believe a crime is being or has been committed or of the

need to act in order to fulfill the probable cause requirement,

as by preventing a suspect from fleeing or preserving evidence

that might otherwise be destroyed. See Marinos, 22 GEO.

MASON U. CIVIL RTS. L. J. at 262; Debra Livingston, Police,

Community Caretaking, and the Fourth Amendment, 1998 U. CHI.

LEGAL FORUM 261, 274-77 (1998); Brigham City, 547 U.S. at 402,

126 S. Ct. at 1946 (discussing and quoting from decision of

court below, Brigham City v. Stuart, 122 P.3d 506, 5014 (Utah

2005)); Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211,

1221 (9th Cir. 2014); Hogan v. Cunningham, 722 F.3d 725, 731-32

(5th Cir. 2013); Feliciano v. City of Miami Beach, 707 F.3d 1244,

1251 (11th Cir. 2013); Storey v. Taylor, 696 F.3d 987, 992 (10th

Cir. 2012); United States v. Watson, 489 F. App’x 922, 925 (6th

Cir. 2012) (unpublished); Cisneros v. Gutierrez, 598 F.3d 997,

1004 (8th Cir. 2010); United States v. Coles, 437 F.3d 361, 365-66

(3d Cir. 2006); United States v. Cephas, 254 F.3d 488, 494-95 (4th

Cir. 2001); United States v. Tibolt, 72 F.3d 965, 969 (1st Cir. 1995);

United States v. Dawkins, 17 F.3d 399, 403 (D.C. Cir. 1994). In

this respect, the exigent circumstances doctrine, as it has

34 No. 12-2272

traditionally been understood, is ill-suited to assistance

searches like the one in this case, where there was no reason to

suspect anyone of committing a crime. See Dimino, 66 WASH.

& LEE L. REV. at 1512 (“All community-caretaking cases are

incompatible with Fourth Amendment requirements of

warrants and probable cause.”); see also id. at 1494, 1508-09,

1512-13; Livingston, 1998 U. CHI. LEGAL FORUM at 277 (“For

community caretaking intrusions, … the exigency concept is

considerably less straightforward.”); Sheik-Abdi, 37 F.3d at 1244

(citing Moss, 963 F.2d at 678) (noting that whether warrantless

entry effectuated for law enforcement purpose or

service/protective purpose may distinguish exigent circum-

stances doctrine from emergency aid doctrine).

The emergency aid doctrine logically is a better fit in this

regard, its defining characteristic being urgency, see Dimino, 66

WASH. & LEE L. REV. at 1505-06, and there being no logical need

to additionally consider probable cause and the availability of

a standard criminal warrant. See Decker, 89 J. CRIM. L. &

CRIMINALITY at 439, 455; Livingston, 1998 U. CHI. LEGAL FORUM

at 277. And that appears to be true notwithstanding the

Supreme Court’s decision in Brigham City to place the emer-

gency aid doctrine within the exigent circumstances frame-

work. See United States v. Gordon, 741 F.3d 64, 70 (10th Cir.

2014) (“Officers do not need probable cause if they face exigent

circumstances in an emergency.”) (internal quotation marks

and citation omitted); United States v. Timmann, 741 F.3d 1170,

1178 & n.4 (11th Cir. 2013); Hunsberger v. Wood, supra, 570 F.3d

at 555; United States v. Huffman, 461 F.3d 777, 783 (6th Cir.

2006); United States v. Stafford, supra n.6, 416 F.3d at 1075. But,

as we discuss below, the real difficulty with applying the

No. 12-2272 35

emergency aid doctrine to a case like this one may be the

passage of a substantial amount of time between the point at

which the police are on notice that someone requires their aid

and the point at which they make a warrantless entry into that

person’s home. The doctrine may not require that action be

taken immediately in order for it to be characterized as

“emergency” aid, see Dimino, 66 WASH. & LEE L. REV. at 1507

(delays may be tolerable if they are explained) (citing Decker,

89 J. CRIM. L. & CRIMINOLOGY at 508), but at some point, the

passage of time will undermine the notion that emergency aid

was required, id. at 1506-07.

The community caretaking doctrine has a more expansive

temporal reach, in that its primary focus is on the purpose of

police action rather than on its urgency. See Livingston, 1998 U.

CHI. LEGAL FORUM at 277 (“the relevance of time as a limiting

principle in the exigency equation seems less apparent in these

community caretaking intrusions—since police could not have

obtained a traditional warrant in any event”); see also Marinos,

22 GEO. MASON U. CIVIL RTS. L. J. at 280; Dimino, 66 WASH. &

LEE L. REV. at 1506. Moreover, as we have already mentioned

and as we shall discuss further, because this doctrine presumes

that the police are not acting for any law enforcement purpose,

whether or not there is time to seek a traditional criminal

warrant is immaterial (although, as we also discuss, a different

type of warrant could be envisioned).

As a matter of doctrine, then, the community caretaking

doctrine would potentially be the best fit for this case, in that

it captures the beneficent purpose for which police entered

Sutterfield’s home and leaves more room for the delay that

preceded it than the emergency aid doctrine otherwise might.

36 No. 12-2272

And because there is no suggestion that police had any law

enforcement motive in entering the home, there would be a

ready basis on which to distinguish criminal cases like Patino,

which demand a search warrant when there is, in fact, time in

which to seek one.

Yet, our decision in Pichany obviously forecloses reliance on

the community caretaking doctrine here. Although the

defendants invoked the community caretaking doctrine below,

they have not pursued it on appeal, let alone asked us to

reconsider Pichany. And the division among the federal circuits

as to the appropriate scope of the community caretaking

doctrine makes clear that there is no obvious answer as to

whether it is appropriate to extend that doctrine beyond the

automobile setting that the Supreme Court dealt with in Cady.

The defendants have chosen instead to rely on the exigent

circumstances exception to the warrant requirement and, in

particular, the emergency aid exception that Brigham City

places within the exigency framework, as the justification for

their entry into their home. And ultimately, given the Court’s

decision in Brigham City and our own decision in Fitzgerald, we

believe they are right on that score.

As in Fitzgerald, the officers in this case had objectively

reasonable grounds on which to believe that Sutterfield might

harm herself. The police had been advised by Sutterfield’s

physician that she had threatened to take her own life. Based

on that report, they had completed a statement of emergency

detention that authorized officers to take Suttefield into

custody for a mental health evaluation. When officers arrived

at Sutterfield’s home that evening and tried to talk to her, she

No. 12-2272 37

would not allow them into her home. Sutterfield contends that

she was not acting “erratically,” as the district court put it, but

simply wished to be left alone. Perhaps so. But the relevant

point, for our purposes, is that nothing transpired at the front

door of her home that might have put the police on notice that

the emergency that had been reported by Sutterfield’s physi-

cian, and which was the basis for the section 51.15 statement of

emergency detention, had dissipated. It was objectively

reasonable for police on the scene to believe that the danger to

Sutterfield’s well-being was ongoing and that, in the absence

of Sutterfield’s cooperation, they needed to enter the home

forcibly, as they did.

To say, as Sutterfield does, that given the passage of time

and her own assurances to the officers that she was fine, that

there was no longer any emergency, and that the officers

should have heeded her demands that they leave, is to engage

in the very sort of second-guessing that we eschewed in

Fitzgerald. How were the officers to know that Sutterfield was

competent to assess the state of her own mental health or that,

regardless of what she herself said, there was no longer any

risk that she might harm herself? Only a medical professional

could make that judgment, and the officers had prepared and

were executing a section 51.15 statement for the very purpose

of having her evaluated by such a professional.

There are, as we have acknowledged, outstanding ques-

tions about the extent to which the exigent circumstances

exception to the warrant requirement, and the emergency aid

subset of exigency precedent, apply to a situation like this one.

The district court itself had doubts about whether the warrant-

less entry into Sutterfield’s home could be justified on the basis

38 No. 12-2272

of exigency; and the overlapping and uncertain boundaries of

the three doctrines we have been discussing certainly leave

room for Sutterfield’s contention that neither the exigent

circumstances doctrine nor any other justifies the entry into her

home given the facts presented.

Clearly, one concern is the nine hours that passed between

the initial report from Sutterfield’s physician and the entry into

Sutterfield’s home. Again, the exigency doctrine generally, and

the emergency aid doctrine in particular, presume that there is

an emergency that requires expeditious, if not immediate,

action on the part of the police. See Fitzgerald, 707 F.3d at 731

(quoting Arch, 7 F.3d at 1304); cf. Hunsberger v. Wood, 570 F.3d

at 554 (whereas “[t]he community caretaking doctrine requires

a court to look at the function performed by a police officer, …

the emergency exception requires an analysis of the circum-

stances to determine whether an emergency requiring immedi-

ate action existed”) (emphasis in original). Sutterfield suggests

that, by the time police chose to force open her storm door, the

facts known to the officers dispelled any notion that there was

an urgent need for them to enter her home: she had told her

physician to call off the police, many hours had passed since

the doctor’s initial communication with the police, and when

the police arrived on her doorstep they could see that she was

alive, coherent, and did not want their assistance. We should

note that on the current record, we see no indication that the

police acted in anything but a conscientious and expeditious

manner; they simply had trouble locating Sutterfield. Still, it is

a reasonable and important question how long the police may

claim that a putative emergency justifies warrantless action.

Section 51.15 itself specifies no limit on the time that police

No. 12-2272 39

have to execute a statement of emergency detention. At oral

argument, the defendants’ attorney suggested that 24 hours

might in practice be the outer limit in a case such as this one.

But although we agree with Sutterfield that emergencies do not

last forever, it would be folly for us to try to declare ex ante

some arbitrary cut-off that would apply to all emergency aid

cases. Even in this case, it is not at all clear to us, nor would it

have been to the police, that the mere passage of time without

apparent incident was sufficient to alleviate any concern that

Sutterfield might yet harm herself. Cf. United States v. Salava,

supra, 978 F.2d at 324-25 (period of 90 minutes that police took

to identify lessee of mobile home and to take various precau-

tionary measures before entering home to check for presence

of murder victim did not vitiate emergency). And the parties

have given us no information about how long a threat of

suicide could be thought to impose an imminent danger of

harm to the person who made it; certainly nothing in this

record suggests that such a threat necessarily diminishes with

the passage of a few hours or with the suicidal individual’s

assurances that she is fine.

A related concern involves the opportunity to seek a

warrant. As we have said, the exigent circumstances exception

traditionally has been understood to excuse the lack of a

warrant when, although a warrant is available, the need for

immediate action deprives law enforcement of adequate time

to seek one. E.g., Michigan v. Tyler, supra, 436 U.S. at 509, 98 S.

Ct. at 1949-50; United States v. Schmidt, 700 F.3d 934, 937 (7th

Cir. 2012); Livingston, 1998 U. CHI. LEGAL FORUM at 274-77.

Proceeding from the premise that a warrant theoretically was

available to the police officers involved in this case, Sutterfield

40 No. 12-2272

has argued that there was ample time for them to seek a

warrant. The district court, having our decision in Patino in

mind, saw some merit in that argument. Pointing out that even

if one confines the analysis to the roughly 30-minute period

between the initial arrival of police at Sutterfield’s doorstep

and the entry into her home, the district court noted that Patino

had deemed that amount of time sufficient for the police to try

and obtain a warrant. 870 F. Supp. 2d at 638 (citing Patino, 830

F.2d at 1415-16). Moreover, as Sutterfield suggests, it might not

be appropriate for us to confine our consideration to that 30-

minute period. After all, it took nine hours to track Sutterfield

down after her physician first raised the alarm. There was

more than sufficient time during that longer period to consult

a judge. And even if we view the completion of the section

51.15 statement as the event that started the clock running,

there still were between four and five hours in which to seek a

warrant. Assuming that there was some type of warrant

available to the police in this situation, there was, as the district

court pointed out, ample time in which to seek one.

But a more fundamental question raised by this case is the

relevance of the warrant requirement. Certainly it is logical to

consider the availability of a warrant when the police have

reason to suspect that criminal activity may be afoot, but what

about cases in which the police are not acting in a law enforce-

ment capacity? Some emergency aid cases repeat the custom-

ary language about the lack of time to seek a warrant, e.g.,

Fitzgerald, 707 F.3d at 730, but one wonders whether, in the

emergency aid context, it is more accurate to say that a warrant

is unavailable, period. See Livingston, 1998 U. CHI. LEGAL

FORUM at 277, 281. The typical warrant, after all, requires

No. 12-2272 41

probable cause to believe that someone is engaged in criminal

mischief and/or that evidence of a crime will be found in a

particular place, see Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868,

1879 (1968); Wong Sun v. United States, 371 U.S. 471, 479, 83 S.

Ct. 407, 413 (1963); Brinegar v. United States, 338 U.S. 160, 175-

76, 69 S. Ct. 1302, 1310-11 (1949), and given that the point of the

exigent circumstances doctrine is to excuse the lack of a

warrant, it comes as no surprise that our exigency cases (and

those of other courts, see supra at 36) frequently reference

probable cause, e.g., United States v. Venters, 539 F.3d 801, 806-

07 (7th Cir. 2008); Leaf v. Shelnutt, 400 F.3d 1070, 1081-82 & n.10

(7th Cir. 2005); United States v. Rivera, 248 F.3d 677, 680-81 (7th

Cir. 2001); Cannaday v. Sandoval, 458 F. App’x 563, 567 (7th Cir.

2012) (per curiam) (nonprecedential decision). But in emer-

gency aid cases, where the police are acting to protect someone

from imminent harm, there frequently is no suspicion of

wrongdoing at the moment that the police take action. Even in

a case like Brigham City, for example, where there actually were

signs of criminal activity (juveniles drinking beer in the

backyard, and people fighting inside of the house), and the

occupants of the house ultimately were arrested and charged

with criminal offenses, the relevant point vis-à-vis the warrant-

less entry was that immediate action was required in order to

protect someone from harm. Brigham City thus articulated the

justification for the entry not in terms of reason to believe that

any crime was taking place, or that evidence was about to be

destroyed, but rather as reason to believe that an occupant of

the home needed their assistance. 547 U.S. at 403, 406, 126 S. Ct.

at 1947, 1949. It may be, then, that probable cause in the

emergency aid context is not reason to believe a crime is

42 No. 12-2272

occurring or has been committed, but reason to believe that

someone is in need of aid and there is a compelling need to act.

See Hanson v. Dane Cnty., Wis., supra, 608 F.3d at 338 (“probable

cause just means a good reason to act”); United States v. Jenkins,

329 F.3d 579, 581-82 (7th Cir. 2003) (reason to believe that

occupant of home, who did not respond to 911 call-back, was

ill, injured, or under threat of violence); see also United States v.

Timmann, supra, 741 F.3d at 1178 n.4; United States v. Wolfe, 452

F. App’x 180, 183 (3d Cir. 2011) (nonprecedential decision);

United States v. Martins, 413 F.3d 139, 147 (1st Cir. 2005);

Livingston, 1998 U. CHI. LEGAL FORUM at 275. This framing of

the inquiry suggests that whether there was time to seek a

warrant loses its relevance in the emergency aid subset of

exigency cases. The passage of time may remain relevant as a

measure of whether there was a true emergency justifying the

intrusion into someone’s home, but not in terms of whether a

warrant could have been sought.

Reinforcing that point in this case is the unanswered

question as to what type of warrant would have been available

to the police, given that Sutterfield was not suspected of any

crime.7 We posed that question at oral argument and neither

7

We set aside the possibility, not discussed by the parties, that attempted

suicide might constitute a crime and that the police would have had reason

to take warrantless action in order to prevent Sutterfield from committing

that crime. Consistent with most states, Wisconsin prohibits assisting

another person to take her own life, see Wis. Stat. § 940.12, but does not

appear to make attempted suicide itself a crime. See generally 2 Wayne R.

LaFave, SUBSTANTIVE CRIM. L. § 15.6 (aiding and attempting suicide) (2d ed.

updated through October 2013) (“In some states attempted suicide, which

(continued...)

No. 12-2272 43

counsel could identify such an alternative. Sutterfield’s counsel

suggested that perhaps the police could have sought a writ of

capias8 or bench warrant authorizing Sutterfield’s detention,

but the legal basis for such a course of action in Wisconsin

remains unclear. Sutterfield’s counsel may be correct in

arguing that the lack of an available warrant procedure does

not foreclose her Fourth Amendment challenge to the warrant-

less entry; the judiciary could, in theory, require the creation of

an appropriate procedure. That is essentially what the Su-

preme Court did in Camara v. Muni. Ct. of City & Cnty. of San

Francisco, 387 U.S. 523, 87 S. Ct. 1727 (1967). In Camara, the

Court dealt with an inspection scheme pursuant to which city

housing inspectors had the right to enter any building at a

reasonable time simply upon presentation of their credentials.

The plaintiff had been charged with a misdemeanor offense

after he had repeatedly refused to allow an inspection of his

apartment pursuant to this scheme. He contended that such a

warrantless inspection violated his rights under the Fourth and

Fourteenth Amendments. The Supreme Court agreed. In the

absence of the resident’s consent, the Court held, authorities

7

(...continued)

was a common law misdemeanor, was at one time a crime, but the

prevailing view has long been otherwise.”) (footnotes omitted); see also State

v. Genova, 252 N.W.2d 380, 383 (Wis. 1977) (“Common law crimes were

abolished in Wisconsin in the 1955 Criminal Code.”) (citing Wis. Stat.

§ 939.10).

8

A writ of capias is essentially a writ commanding an officer to take a

named individual into custody, typically when he has failed to appear or

failed to comply with a judgment. See BLACK’S LAW DICTIONARY 236 (9th ed.

2009).

44 No. 12-2272

were required to obtain an administrative warrant for an

inspection supported by probable cause to believe that the

building for which the warrant is sought qualifies for inspec-

tion pursuant to reasonable legislative or administrative

standards (based on such factors as the type of building, the

condition of the surrounding area, and the passage of time) for

conducting an inspection. Id. at 538, 87 S. Ct. at 1735-36. Camara

at least takes us out of the crime-detecting context, but obvi-

ously it is not a close fit with this case, which does not involve

anything like a uniform inspection scheme.

What Sutterfield would envision, presumably, is something

more like a standard criminal warrant-application process in

the sense that it is individualized, but pursuant to which a

neutral decisionmaker determines whether there is reason to

believe that the occupant of a dwelling is in danger such that

entry into (and search of) the dwelling is necessary to address

that danger. At least one writer has argued in favor of a

community-caretaking warrant as a means of guarding against

unnecessary intrusions into the sanctity of the home and

against police abuses. Marinos, Comment, 22 GEO. MASON U.

CIVIL RTS. L. J. at 284-89; see also Dimino, 66 WASH. & LEE L.

REV. at 1520-21. But the parties have cited no existing process

by which such a warrant could be obtained, whether in

Wisconsin or any other jurisdiction. And we have found no

Wisconsin case citing section 51.15 which identifies an alterna-

tive procedure that was available to the police in the situation

confronting them.

To be clear then, what Sutterfield is arguing for is the

creation of a particular type of warrant that does not currently

exist. In making that argument, however, she does not discuss

No. 12-2272 45

who would issue a community caretaking warrant, what the

criteria for issuance of such a warrant would be, what type of

evidence would be required to meet those criteria (in a case like

this one, for example, would the statement of a physician or

other qualified mental health professional be necessary?), or

how such a warrant might interact with an emergency commit-

ment scheme like that established by section 51.15. Much like

Sutterfield’s cursory contention that section 51.15 is unconstitu-

tional, her suggestion that a warrant is required in a situation

like this one amounts to no more than a premise that is stated

without any elaboration or substance. We would also point out

that the advisability of, and precedential support for, a warrant

requirement for assistance searches are open to debate.

Compare Marinos, 22 GEO. MASON U. CIVIL RTS. L. J. at 285, 288

(“By requiring a community caretaking warrant, a neutral third

party would determine [in advance] whether the circumstances

rise to the level that requires entry into a home by balancing

the need to search against the resident’s Fourth Amendment

rights. … Relying solely on an ex post reasonableness determi-

nation has contributed to a muddling of the exigent circum-

stances exception and [the community caretaking doctrine] in

various courts that have extended the [community caretaking

doctrine] to the home.”), with Dimino, 66 WASH. & LEE L. REV.

at 1521 (“Requiring administrative warrants for nonemergency

community-caretaking searches as a matter of Fourth Amend-

ment doctrine carries substantial disadvantages … . [It] would

be a substantial shift from the Supreme Court’s practice in the

community-caretaking area, which has shown no inclination

whatever to require any kind of warrant, and it would be

contrary to the trend of the Court’s other Fourth Amendment

46 No. 12-2272

cases, which have tended of late to stress the Reasonableness

Clause much more than the Warrant Clause. … Additionally,

community-caretaking situations arise on the spur of the

moment, and it is difficult to imagine officers being able to

expend the time necessary to obtain a warrant while their

crime-detection and crime-prevention duties go neglected.”).

A decision akin to Camara requiring such a warrant, whatever

its merits might be, would require a much more developed

argument than this.

Returning to first principles: What the Fourth Amendment

requires in all cases is reasonableness, Kentucky v. King, supra,

131 S. Ct. at 1856; Brigham City, 547 U.S. at 403, 126 S. Ct. at

1947, and without knowing what, if any, alternative process

was available to the police, we are not prepared to say that the

warrantless entry into Sutterfield’s home was unlawful under

the circumstances presented to them. The police acted out of

legitimate concern for Sutterfield’s safety and well-being (in

other words, there is no hint that they were using the emer-

gency as a pretext to look for evidence of a crime), they acted

consistently with section 51.15, and the circumstances generally

meet the criteria for a warrantless entry articulated in Brigham

City and applied in Fitzgerald, in that it was objectively reason-

able for the officers to believe that their intervention was

required in order to prevent Sutterfield from harming herself,

notwithstanding her own protestations to the contrary. Her

own physician, a psychiatrist, had expressed concern for

Sutterfield’s well-being and declared a need for intervention on

her behalf, and despite the passage of time between the

physician’s initial telephone call to the police and the forced

entry into Sutterfield’s home, the record contains no evidence,

No. 12-2272 47

other than Sutterfield’s own protestations at the time, that the

crisis had passed and that she no longer presented a threat to

herself. We are not in any position, in fact, to second-guess the

police, who were following the procedure prescribed by

Wisconsin law (the constitutionality of which has not been

preserved as an issue in this appeal). The forced entry into

Sutterfield’s home was reasonable under the circumstances.

C. Protective Sweep of Sutterfield’s Home

Sutterfield has conceded that if the police officers’ entry

into her home was legal, a protective sweep of the premises of

the type authorized by Buie was also appropriate. Sutterfield

Br. 17. Given our conclusion that the forced entry was reason-

able, the sweep that resulted in the discovery of the locked

compact disc case containing Sutterfield’s gun and various

concealed-carry licenses was also reasonable, and we need not

discuss the sweep further.

D. Search of the Locked Case

Opening the locked compact disc case was a significant step

beyond the search authorized by Buie. The case was obviously

too small to be hiding a person, the case itself was innocuous,

and although Floriani averred that he thought the weight and

feel of the case was consistent with a gun being inside, that was

at most a very good guess—as the district court pointed out,

the case could have contained almost anything.9

9

Even if the gun had been in plain view, there would be a separate

question whether the Fourth Amendment permitted the seizure of the gun,

which Sutterfield lawfully possessed. But we address the legitimacy of the

(continued...)

48 No. 12-2272

The defendants’ brief is conspicuously devoid of citation to

any authority that justified the search of the locked case.10 Even

9

(...continued)

seizure separately below. At this juncture, we are concerned solely with the

decision to search the compact disc case, which was both closed and locked.

10

The defendants cite State v. Gocken, 857 P.2d 1074 (Wash. Ct. App. 1993),

as authority supporting a community-caretaking search of the compact disc

case. Defendants’ Br. 23. As Gocken does not address the search of a closed

bag or container, the defendants probably mean to cite State v. Gray, No.

38406–6-1, 1997 WL 537861, at *3 (Wash. Ct. App. Sep. 2, 1997) (unpub-

lished, nonprecedential decision), a case in which the court sustained the

search of the defendant’s tote bag (where both drugs and money were

discovered) as a legitimate exercise of the community caretaking function.

The police encounter with Gray had begun as a safety and welfare check

triggered by her erratic behavior. She held the officers at bay for 30 minutes,

holding a knife to her throat and threatening to kill herself; she also made

a number of delusional statements. When informed that she was being

taken to the hospital, Gray asked if she could take her tote bag with her. At

that point an officer informed her that he would have to search the bag first.

The court concluded that the search was justified on safety grounds, to

ensure that there was no weapon or other item in the bag that Gray might

use to harm herself. Gray is quite similar in that respect to State v. Tilley, No.

00-2540-CR, 2001 WL 942608, at *3-*4 (Wis. Ct. App. Aug. 21, 2001)

(unpublished, nonprecedential decision), which upheld a search of the

defendant’s purse and bag (in which marijuana and drug paraphernalia

were found). A police officer had taken an intoxicated and despondent

Tilley to the hospital, where she began to say that she was thinking about

killing herself and had attempted to do so in the past. Those remarks led the

officer to take Tilley into protective custody pursuant to section 51.15 for an

emergency mental health evaluation and to search her bags for anything she

might use to harm herself or others. The court held that the community

caretaker exception justified the search. Both cases are distinct from this

case in the sense that they involved an acute need to ensure that the

(continued...)

No. 12-2272 49

the Wisconsin cases that extend the community caretaking

doctrine to dwellings do not go so far as to endorse full

searches of those dwellings and their contents. As our discus-

sion below will reveal, those cases authorize safety-related

sweeps akin to that here, and the seizure of contraband that is

in plain view, but no more. It may be possible to construct an

argument that when police lawfully enter a home to address

the possibility that the occupant may harm herself—and

particularly where, as here, they have reason to believe the

person in question owns a firearm (as the gun holster Sutter-

field’s physician noticed suggested she did)—the police have

the authority to search the premises, including closed contain-

ers, for firearms. Cf. Cady v. Dombrowski, supra, 413 U.S. 433, 93

S. Ct. 2523 (sustaining warrantless inventory search of locked

automobile trunk for defendant’s service revolver for safety

reasons); Stricker v. Tp. of Cambridge, 710 F.3d 350, 362 (6th Cir.

2013) (in case of reported drug overdose, sustaining warrant-

less search of house, including closed drawers and cabinets, for

clues as to what drug(s) occupant may have ingested); Mora v.

City of Gaithersburg, Md., 519 F.3d 216, 225-26 (4th Cir. 2008)

(Wilkinson, J.) (in case of reported comments by plaintiff to

hotline operator that he was suicidal, that he could understand

shooting people at work, that he had weapons in his apart-

10

(...continued)

detained individual did not have access to a weapon or other implement of

harm in her belongings. By contrast, Sutterfield never asked to take the

compact disc case with her to the hospital, so there was no immediate need

to search the case in order to protect both her and the individuals who

would be transporting and then examining her during the period of her

emergency detention.

50 No. 12-2272

ment, and that he “might as well die at work,” sustaining

warrantless search of plaintiff’s luggage, van, and apart-

ment—including locked rooms, gun safes, and filing cabi-

nets—even after plaintiff had been seized and handcuffed, in

order to determine scope of threat potentially posed by

plaintiff). It bears noting, however, that this would be an

argument for license to conduct virtually a top-to-bottom

search of the home, as almost any closet, drawer, or container

theoretically could contain a handgun (or other potential

implements of self-harm). In any case, the defendants have not

developed such an argument here.

We therefore proceed on the assumption that the search of

the locked compact disc case was unlawful. Sutterfield had a

privacy interest in the contents of the case regardless of

whether the police were searching the case for a law enforce-

ment purpose or solely for purposes of protecting Sutterfield

from harm. See Camara, 387 U.S. at 530, 87 S. Ct. at 1732 (“It is

surely anomalous to say that the individual and his private

property are fully protected by the Fourth Amendment only

when the individual is suspected of criminal behavior.”); Dubbs

v. Head Start, Inc., 336 F.3d 1194, 1206 (10th Cir. 2003)

(McConnell, J.) (“The focus of the Amendment is … on the

security of the person, not the identity of the searcher or the

purpose of the search.”); Doe v. Heck, 327 F.3d 492, 509 (7th Cir.

2003) (Fourth Amendment applies to intrusions during civil as

well as criminal investigations). Even if the police had a

legitimate interest in securing any weapons that were in plain

view or that were in a place obviously meant for gun storage,

such as a gun safe (a point we address below), nothing more

than a hunch supported the notion that a gun might be inside

No. 12-2272 51

the compact disc case. Moreover, Sutterfield was already in

police custody at the time the case was opened and was about

to be transported from her home for evaluation by a mental

health profession. At that point in time, she posed no immedi-

ate danger to herself. Still, for the reasons we discuss below in

the qualified immunity portion of our analysis, even if the

search of the case was unlawful, we believe that the police

officers had ample reason to believe that it was permissible as

a legitimate safety measure under the circumstances confront-

ing them.

E. Seizure of the Gun and Concealed-Carry Licenses

1. Fourth Amendment

Our assumption that the search of the locked case contain-

ing the gun violated the Fourth Amendment requires a similar

assumption as to the seizure of the gun. Cf. Wong Sun v. United

States, supra, 371 U.S. at 484-86, 83 S. Ct. at 416 (evidence seized

as a result of an unlawful search is fruit of the poisonous tree);

United States v. Jeffers, 342 U.S. 48, 52, 72 S. Ct. 93, 95 (1951)

(“The search and seizure are … incapable of being untied.”),

overruled on other grounds by Rakas v. Illinois, 439 U.S. 128, 98

S. Ct. 421 (1978). Nonetheless, because the reasons for the

seizure have a bearing on our qualified immunity analysis, it

is worth spending a few moments discussing the competing

interests implicated by the seizure.

Officer Floriani’s instinct to seize the gun in order to

remove from the house a weapon that Sutterfield might use to

harm herself was natural and understandable. (Sutterfield’s

empty gun holster and her remark to her doctor, after all,

suggested that if she did do herself harm, she would do so with

52 No. 12-2272

a gun.) Nonetheless, Sutterfield had a legal right to possess the

gun. And, again, once she was in police custody, there was no

possibility that she was going to harm herself with the gun

either at that moment or during her ensuing commitment for

a mental health evaluation. Moreover, Floriani’s concern as to

what might happen if doctors decided to release Sutterfield

after evaluating her poses a conundrum: Certainly there was

a possibility that Sutterfield might again (or still) harbor

suicidal thoughts; yet, she presumably would be released only

if medical experts decided that she did not pose an immediate

danger to herself. So although removing the gun from the

house seems like a logical step to take to protect Sutterfield

from self-harm, the possibility of her release tends to negate

the notion that she needed such protection. Moreover, if the

prospect of Sutterfield’s commitment for a mental health

evaluation justified the seizure of a gun, would it also have

justified the removal of other items that Sutterfield might use

to harm herself, such as knives and potentially lethal medica-

tions? These are not easy questions to answer.

The Fourth Circuit, when confronted with somewhat

similar circumstances, cautioned against “slic[ing] the situation

too finely and employ[ing] hindsight too readily to actions

aimed … at heading off a human tragedy that, once visited,

could not be redeemed or taken back.” Mora v. City of Gaithers-

burg, Md., supra, 519 F.3d at 228. Recall that the plaintiff in Mora

was seized on an emergency basis after he indicated to a

healthcare hotline operator that he was suicidal and made

remarks suggesting that he might kill himself at work and take

the lives of his co-workers in the process. After he was dis-

patched to a hospital for an emergency mental health evalua-

No. 12-2272 53

tion, the police, without a warrant, seized the many (lawfully-

possessed) guns they had found in his home for safekeeping.

The plaintiff argued that this step was logically unjustified,

given that the state’s involuntary commitment statute did not

authorize his release if, as was feared, he posed a danger to

himself or others. The Fourth Circuit rejected this contention:

This argument implies that once police transferred

Mora to a psychiatrist, the responsibility for ensuring

public safety passed to the psychiatrist as well; the

officers could wash their hands of the situation, their job

done. But protecting public safety is why police exist,

and nothing in Maryland’s involuntary admission

statute supports the remarkable suggestion that, by

handing Mora over to doctors, the officers relinquished

authority over the thing for which they are under law

chiefly responsible. A psychological evaluation would

not change what the officers already knew: that Mora

was unstable and heavily armed, and a risk to himself

and others. …

Id. For similar reasons the court rejected the notion that once

Mora was on his way to the hospital, the police should have

sought a warrant before seizing his guns, as there was no

longer an emergency justifying warrantless action.

[W]e are unwilling to say the emergency that brought

on the seizure disappeared as quickly as Mora would

have us think. The officers were entitled to take into

account the nature of the threat that led to their pres-

ence at the scene, and the corroborating fact of a verita-

54 No. 12-2272

ble fortress of weapons and ammunition they found

when they arrived. Moreover, in the rapidly unfolding

series of events, the officers could not be sure of exactly

what it was they confronted. They had no way of

knowing whether confederates might possess access to

Mora’s considerable store of firearms, or whether Mora

himself might return to the apartment more quickly

than expected and carry out some desperate plan. …

Id.

To be sure, there are significant differences between the

facts presented in Mora and those presented here: Sutterfield

never threatened anyone’s life but her own, and so far as the

record reveals, she possessed just one (real) gun rather than the

“veritable fortress of weapons and ammunition” that the police

discovered in Mora. But the essential point that the Fourth

Circuit made in Mora is nonetheless relevant here: The police

officers who took Sutterfield into custody had a legitimate

public safety interest in her health, and although they knew

that she would be evaluated by mental health professionals

pursuant to section 51.15, they could not be sure what would

happen next. It was natural, logical, and prudent for them to

believe that her firearm should be seized for safekeeping until

such time as she was evaluated and it was clear that she no

longer posed a danger to herself.11

11

In the event professionals determined that Sutterfield indeed did pose a

danger to herself (or others), one consequence of that finding might have

been a judicial order prohibiting her from possessing a firearm and directing

the seizure of any firearm owned by her. See Wis. Stat. § 51.20(13)(cv)(1).

No. 12-2272 55

An equally persuasive justification for the seizure of the

gun is the one articulated by Sergeant Berken, that the gun

might otherwise be accessible to Sutterfield’s son during her

absence from the house. The police knew that Sutterfield had

a son, but they did not know where he was or whether he

might have unsupervised access to Sutterfield’s home in her

absence. Neither did they know, nor could they have known,

how long Sutterfield might be detained nor who might have

access to the house during that time. It was arguably prudent

to remove the gun from the home as a prophylactic measure

during Sutterfield’s absence. Cf. United States v. Harris, 2014

WL 1356822, at *3 & n.4 (8th Cir. Apr. 4, 2014) (community

caretaking doctrine justified temporary seizure of gun seen

falling out of pocket of man sleeping in bus terminal, given

danger exposed and unguarded firearm posed to public,

including risk that a child or devious adult might take the

gun). There may have been alternatives, but removing and

securing the firearm was an obvious and reasonable measure.

One need only imagine the public outcry that would have

taken place had the police left the gun where it was and had

Sutterfield returned home and then used the gun to take her

own life, or had her son taken the gun in her absence and used

it to harm himself or others, to see the wisdom in what the

police did.

Milwaukee does have in place a procedure, which Sutter-

field ultimately used, to regain possession of the gun. No issue

is raised here as to the adequacy of that procedure. So we are

presented solely with a dispute as to the seizure of the gun at

the time Sutterfield was taken into custody and transported for

evaluation, rather than questions as to the timeliness and

56 No. 12-2272

efficacy of the process that Sutterfield ultimately employed to

obtain the return of her gun.

Finally, Sutterfield has argued that even if the seizure of the

gun was lawful, the seizure of her concealed-carry licenses was

not. But on the facts presented to us, the seizure of the licenses

does not present a separate issue. We can imagine that Sutter-

field might have been able to obtain another firearm while she

was awaiting the return of the seized gun; she may even have

owned other guns not seized by the police. The seizure of the

licenses did not preclude her from possessing those guns,

however. They simply prevented her from carrying those

weapons in a concealed fashion in various states other than

Wisconsin. Sutterfield has not developed any argument as to

the ways in which her temporary inability to carry a concealed

weapon in other states, as distinct from the seizure of her

firearm, harmed her. On this record, any injury inflicted by the

seizure of the licenses was de minimis, and we need not

explore this issue further.

We began this discussion with an assumption that, if the

search of the case containing the gun was conducted in

violation the Fourth Amendment, the seizure of the gun itself

was also contrary to the Fourth Amendment. But there are, as

we have gone on to note, powerful arguments in favor of the

temporary seizure of the gun as a prudential measure; these

arguments figure prominently in our qualified immunity

analysis below. For now it bears emphasis that our assump-

tions that the search for and seizure of the gun were inconsis-

tent with the Fourth Amendment are just that—assumptions.

We reserve a firm ruling on the merits of these issues for a case

in which the arguments are better developed and supported.

No. 12-2272 57

2. Second Amendment

Sutterfield has separately argued that the seizure of her

firearm violated her Second Amendment rights. She reasons

that apart from her property interest in the gun, the Supreme

Court’s decisions in District of Columbia v. Heller, supra, 554 U.S.

128 S. Ct. 2783, and McDonald v. City of Chicago, Ill., supra, 130

S. Ct. 3020, recognize her right to possess a gun in the home for

purposes of self-defense. See also Moore v. Madigan, 702 F.3d 933

(7th Cir. 2012) (2-1 decision) (holding that Second Amendment

right to bear arms for self-defense extends beyond home), reh’g

en banc denied over dissent, 708 F.3d 901 (7th Cir. 2013). The

seizure deprived her of that right in addition to her Fourth

Amendment right not to have the gun taken from her without

probable cause, she reasons.

Whether and to what extent the Second Amendment

protects an individual’s right to possess a particular gun (and

limits the power of the police to seize it absent probable cause

to believe it was involved in a crime) is an issue that is just

beginning to receive judicial attention. Heller itself recognizes

that the right to possess a firearm secured by the Second

Amendment “is not unlimited.” 554 U.S. at 626, 128 S. Ct. at

2816. The Eighth Circuit, having concluded that the plaintiff’s

Fourteenth Amendment right to due process was violated by

the authorities’ refusal to return his gun once the legal basis for

seizing it had evaporated, found no independent violation of

the plaintiff’s Second Amendment right to possess the gun.

Walters v. Wolf, 660 F.3d 307, 317-18 (8th Cir. 2011). Although

the court confined its ruling to the facts and did not rule out

the possibility that, under different circumstances, the seizure

58 No. 12-2272

of a gun might constitute a Second Amendment violation, id.

at 318, it reasoned that where the plaintiff had been able to

vindicate his interest in “a meaningful procedural mechanism

for return of his lawfully seized firearm,” by way of the due

process clause, id. at 317, the seizure of one particular firearm

did not otherwise interfere with his Second Amendment

interests: “The defendants’ policy and action affected one of

Walter’s firearms, which was lawfully seized. The defendants

did not prohibit Walters from retaining or acquiring other

firearms.” Id. at 318 (emphasis in original). Cf. Houston v. City

of New Orleans, 682 F.3d 361, 363-64 (5th Cir. 2012) (per curiam)

(remanding to district court for determination whether state

law permitted state officials to retain plaintiff’s handgun

following entry of nolle prosequi on charges against him, as

determination that state law compelled return of gun would

render it unnecessary to decide whether defendants violated

plaintiff’s Second Amendment rights by refusing to return gun

to him); see generally John L. Schwab & Thomas G. Sprankling,

Houston, We Have a Problem: Does the Second Amendment Create

a Property Right to a Specific Firearm?, 112 COLUM. L. REV.

SIDEBAR 158 (2012) (agreeing that Second Amendment does not

encompass right to possess a specific firearm, criticizing lack of

analytic rigor in judicial decisions to date on this subject, and

proposing cautious, minimalist approach to determining scope

of Second Amendment).

This is not an issue that we have addressed and it is not one

that we will address here. Beyond a bare-boned contention that

the seizure violated her Second Amendment rights, Sutterfield

has not developed a cogent argument as to the reach and

application of the Second Amendment in the law enforcement

No. 12-2272 59

and community caretaking context. The issue is a sensitive one,

as it implicates not only the individual’s right to possess a

firearm, but the ability of the police to take appropriate action

when they are confronted with a firearm that may or may not

be lawfully possessed, and which, irrespective of the owner’s

right to possess the firearm, may pose a danger to the owner or

others.

We do reiterate that Milwaukee has a procedure by which

a citizen whose lawfully-possessed gun has been seized may

seek its return. Sutterfield availed herself of that procedure and

has not contested its adequacy in this appeal. This too counsels

against addressing the merits of Sutterfield’s Second Amend-

ment claim. Cf. Houston, 682 F.3d at 364.

F. Qualified Immunity

Qualified immunity shields a government official from suit

when the official is performing a discretionary function and his

conduct does not violate clearly established rights of which a

reasonable person would have known. Harlow v. Fitzgerald, 457

U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982); see also, e.g., Volkman

v. Ryker, 736 F.3d 1084, 1089-90 (7th Cir. 2013).

Sutterfield concedes that all but one of the police actions at

issue in this case were discretionary acts that are potentially

subject to qualified immunity. The one action she asserts was

not discretionary was the seizure of her person pursuant to

section 51.15. This assertion is based largely on Hewitt’s and

Berken’s testimony that they were going to execute the

statement of emergency detention by taking Sutterfield into

custody regardless of what transpired when they located her

and gained access to her home. Sutterfield reads this testimony

60 No. 12-2272

as proof that the decision to seize her was not discretionary.

She contradicts herself on this point, however, when she

argues that the police officers who seized her should have

realized that section 51.15 itself is flawed—the implication

being that they could and should have declined to implement

the statement of emergency detention. No matter. As we

discussed earlier, Sutterfield has not preserved a challenge to

the legality of her seizure. Whether or not that act was poten-

tially subject to a qualified immunity defense is therefore a

question we need not address.

The defense clearly does apply to the other acts to which

Sutterfield has preserved a challenge—the warrantless entry

into her home, the search of the locked compact disc case, and

the seizure of the gun and licenses. For the reasons that follow,

given the broad sweep that Wisconsin courts have given to the

community caretaking doctrine, we agree with the district

court that the police could have thought each of these actions

was permissible in order to protect Sutterfield’s well-being.

One point as to the relevance of Wisconsin cases must be

disposed of at the start. Sutterfield contends that because

Wisconsin precedent would not bind this court on the merits

of her claims, and because in particular we, in contrast to the

Wisconsin courts, have refused to extend the community

caretaking doctrine to anything but automobile searches, the

Wisconsin cases are irrelevant in terms of whether the defen-

dants have qualified immunity. Not so. Although it is true that

in this court, the Wisconsin cases have persuasive value only

on the merits of Sutterfield’s federal claims, they remain

relevant as to what the defendants might have thought the law,

including the federal constitution, permitted them to do in

No. 12-2272 61

executing the emergency statement of detention. Federal courts

do not possess exclusive authority to decide Fourth Amend-

ment issues; state courts resolve such issues every day. See

Pompey v. Broward Cnty., 95 F.3d 1543, 1550 (11th Cir. 1996)

(“The state courts are courts of equal dignity with all of the

federal ‘inferior courts’—to use the Framers’ phrase—and state

courts have the same duty to interpret and apply the United

States Constitution as we do.”). In the absence of a controlling

decision by the United States Supreme Court, the Wisconsin

cases are thus as relevant as our own precedents in evaluating

what a Milwaukee police officer might have thought the law

permitted in responding to a report that the occupant of a

private dwelling was in danger of harming herself. See Burgess

v. Lowery, supra, 201 F.3d at 945-46; see also Stanton v. Sims, 134

S. Ct. 3, 5, 7 (2013) (per curiam) (considering decisions of both

federal and state courts in concluding it was not clearly

established that warrantless entry into home in hot pursuit of

person believed to have committed misdemeanor offense was

contrary to Fourth Amendment); Barnes v. Zaccari, 669 F.3d

1295, 1307 (11th Cir. 2012); Starlight Sugar, Inc. v. Soto, 253 F.3d

137, 144-45 (1st Cir. 2001); Edwards v. City of Goldsboro, 178 F.3d

231, 251 (4th Cir. 1999).12

12

It is worth noting that even if we were reviewing the Wisconsin

decisions we are about to discuss—both of which are criminal

cases—pursuant to petitions for a writ of habeas corpus, see 28 U.S.C.

§ 2254, the conflict between those decisions and our own decision in Pichany

as to the appropriate scope of the community caretaker exception would

not by itself support habeas relief. Pursuant to the Antiterrorism and

Effective Death Penalty Act of 1996, the state decisions would have to be

(continued...)

62 No. 12-2272

Although our decision in Pichany refused to extend the

community caretaking exception recognized by the Supreme

Court in Cady beyond the automobile context, Wisconsin

courts have given the exception a much broader reach. They

have relied on the community caretaking doctrine to justify

warrantless entries into the home when the police have reason

to believe that the occupant may be injured or otherwise in

danger of harm.

The appellate court’s decision in State v. Horngren, 617

N.W.2d 508 (Wis. Ct. App. 2000), applied the doctrine in the

context of a reported suicide threat to hold that a warrantless

entry into and search of a home under circumstances much like

those presented here was lawful. The police in that case had

received a call reporting that Horngren had threatened to kill

himself. While en route to Horngren’s apartment, the respond-

ing officers were further advised he had a history of prior

suicide threats (and had once been committed to a mental

health facility for such a threat), and that he had (lawfully)

possessed multiple firearms. When they arrived at the apart-

ment, the officers knocked on his door and discovered it was

unlocked. When one of the officers leaned on the door, causing

it to open slightly, a naked Horngren rushed to the door and

tried to push it shut without success. The officers forced the

12

(...continued)

“contrary to, or involve[ ] an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Court of the United States,”

in order to support the issuance of a writ. § 2254(d)(1) (emphasis ours). See

Marshall v. Rodgers, 133 S. Ct. 1446, 1450-51 (2013) (per curiam); Williams v.

Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523 (2000); Morales v. Boat-

wright, 580 F.3d 653, 662-63 (7th Cir. 2009).

No. 12-2272 63

door open, placed Horngren in handcuffs, and then conducted

a sweep of the apartment in order to determine whether there

was someone else present, as Horngren told them there was.

During that sweep, they came across marijuana that was in

plain view. That discovery (along with drug paraphernalia

found pursuant to a subsequent consensual search of the

premises) led to criminal charges against Horngren. He sought

to suppress the marijuana and drug paraphernalia on the

ground that the warrantless entry into and sweep of his home,

which resulted in the discovery of the marijuana, violated the

Fourth Amendment. The Wisconsin appellate court, however,

held that the entry and sweep were consistent with both the

Fourth Amendment and the corresponding provision of

Wisconsin’s constitution, as the police were not engaged in

traditional law enforcement when they entered Horngren’s

home but rather community caretaking. Id. at 511. The court

applied a two-part test to determine whether the community

caretaker exception to the warrant requirement applied, first

confirming that the police were engaged in bona fide commu-

nity caretaking activity, that is, activity “totally divorced from

the detection, investigation, or acquisition of evidence relating

to the violation of a criminal statute,” id. (internal quotation

marks and citations omitted), and second, weighing the public

good served by the actions of the police against the level of

intrusion on the individual’s privacy, and determining in light

of that balance whether the police action was reasonable on the

facts and circumstances of the individual case, id.

Citing section 51.15, the court observed that the police had

a legitimate interest in Horngren’s well-being, given the

reported suicide threat, that permitted them to enter the home

64 No. 12-2272

against Horngren’s consent. “Truly, the motivation in investi-

gating the complaint was to render aid, not to investigate any

criminal activity.” Id. at 511. Given the potential danger to

Horngren’s well-being, the public interest also supported the

degree of intrusion upon Horngren’s privacy. Id. at 512.

Preventing an individual from taking his own life was of the

“utmost public concern.” Id. The circumstances were also

genuinely exigent: the police were acting in response to an

emergency call and to the circumstances presented to them;

and no less intrusive means of responding to the exigency were

feasible under the circumstances.

The sweep of the premises was likewise permissible: the

court noted that a protective sweep is authorized to ensure the

safety of the police and others present on the premises. Id. at

513. Horngren had indicated to the officers that a girl was

present but she had not shown herself despite the officers’

struggle with him; it would have been unreasonable, in the

court’s view, for the police not to check on her status. And

because they discovered the marijuana in plain view during

the check for the girl, the court concluded that the marijuana

should not be suppressed. Id. at 513-14.

In State v. Pinkard, 785 N.W.2d 592 (Wis. 2010), the Wiscon-

sin Supreme Court—applying both the Fourth Amendment

and its Wisconsin counterpart—likewise sustained the

warrantless entry into, and sweep of, a dwelling, this time in

response to a report suggesting that the occupants were

unconscious, possibly as the result of drug abuse. There, a

police officer had received a tip that two people were seen

sleeping in a residence next to cocaine, money, and a digital

No. 12-2272 65

scale; the back door to the residence was reportedly standing

open. Police responded to the tip, saw that the back door (the

main entrance to the residence) was indeed standing three-

quarters of the way ajar, knocked and announced themselves

to no response, and entered the dwelling. Upon looking

around, they saw an open bedroom door and two people

sleeping inside of that bedroom. They announced themselves

loudly a second time to the occupants, and after again receiv-

ing no response, entered the bedroom. There, in plain view,

they observed both powder and crack cocaine, marijuana, and

a digital scale. Ultimately, they had to physically shake one of

the occupants—Pinkard, the defendant—awake, after which

they arrested him for possession of the drugs.13

The court held that the warrantless entry into the defen-

dant’s home constituted a legitimate exercise of the community

caretaking function of the police. Consequently, the drugs and

drug paraphernalia discovered in the home were admissible

against Pinkard at trial.

At the outset, the court expressly rejected Pinkard’s

contention that the community caretaking exception first

recognized by the United States Supreme Court in Cady was

limited to searches of automobiles. The court instead declared

that the community caretaking function may also justify the

warrantless entry into a home, depending on the totality of the

13

They subsequently found a gun underneath the mattress. However, the

trial court granted the defendant’s motion to suppress the gun, finding that

searching beneath the mattress exceeded the bounds of the police officers’

community caretaking function. That ruling was not appealed by the State.

785 N.W.2d at 596.

66 No. 12-2272

circumstances confronting the police. Id. at 598-601. Whether

the police were serving a bona fide community caretaking

function when they entered Pinkard’s home presented a

“close” question, in the sense that the information reported to

the police not only raised a legitimate concern for the occu-

pants’ safety but also implicated the occupants in criminal

activity. Id. at 603. But the court declined to take a narrow view

of the community caretaking exception and limit the exception

only to cases in which the sole motivation for police action is

the safety and well-being of a dwelling’s occupant; community

caretaking and law enforcement objectives are not mutually

exclusive, the court reasoned. Id. at 604-05.14

With that point settled, the court considered whether the

community caretaker exception justified the warrantless entry

into and sweep of Pinkard’s home. After ascertaining that a

Fourth Amendment search or seizure had occurred, id. at 602,

the court engaged in the same two-part inquiry that the

appellate court had in Horngren: (1) were the police exercising

14

By contrast, some scholars have advocated for a rule conditioning

application of the community caretaking doctrine on evidence that the

police were animated primarily or solely by a community caretaking

purpose, as opposed to a criminal law enforcement purpose, when they

took warrantless action. See Dimino, 66 WASH. & LEE L. REV. at 1528-40;

Decker, 89 J. CRIM. LAW & CRIMINOLOGY at 510-12; cf. People v. Mitchell, 347

N.E.2d 607, 609 (N.Y. 1976) (finding warrantless entry into defendant’s

hotel room to be justified under emergency aid doctrine, in part because

police had no motive to apprehend and arrest defendant or to seize

evidence), abrogated by Brigham City, 547 U.S. at 404-05, 126 S. Ct. at 1948 (in

emergency aid situation, “[t]he officer’s subjective motivation is irrele-

vant.”).

No. 12-2272 67

a bona fide community caretaking function, and, if so, (2)

whether the public interest outweighed the intrusion upon the

privacy of the individual, such that the officers’ exercise of

their community caretaking function was reasonable. See id. at

601.

The court answered these questions in the affirmative. In

this case, the police had a legitimate concern for the well-being

of the unconscious, unresponsive occupants of the house. Id. at

603-04. Balancing the public interest served by police action

against the intrusion on Pinkard’s privacy interests, id. at 605,

the court concluded that the former outweighed the latter: it

was possible that the occupants may have overdosed on drugs

and thus required urgent medical assistance, and the fact that

the door to the residence was left ajar suggested that the

occupants were unable to look out for their own interests, id.

at 606-08. In short, given the totality of the circumstances, the

entry into the house and then the open bedroom constituted a

reasonable exercise of the police officers’ community caretak-

ing function. Id. at 608. And as the drugs were observed in

plain view in the bedroom, they were admissible against the

defendant at trial. Id.15

15

See also, e.g., State v. Ziedonis, 707 N.W.2d 565 (Wis. Ct. App. 2005)

(sustaining warrantless entry into defendant’s home—wherein both

unlawfully possessed firearms and marijuana were observed in plain

view—on basis of community caretaker doctrine, where police, in attempt

to solicit defendant’s help in corralling his dogs, which were running loose

outside his residence and causing a disturbance in the middle of the night,

saw that back door of defendant’s home was open by several inches, and

defendant did not respond to repeated and prolonged efforts to announce

(continued...)

68 No. 12-2272

Based on these decisions, the officers who forcibly entered

Sutterfield’s home could have believed that their entry was

justified by the community caretaking doctrine as understood

and applied by the Wisconsin courts. They had a section 51.15

statement of emergency detention to execute based on the

suicidal remark Sutterfield had made to her physician earlier

that day. Sutterfield would not voluntarily admit the officers

to her home; and her behavior, if not erratic, did nothing to

allay the concerns raised by the physician’s report to the police.

The entry was made in a bona fide effort to assure Sutterfield’s

well-being; there has never been any suggestion that the police

were acting for a law enforcement motive. In relevant respects,

the circumstances of this case, as we have noted, were substan-

tially similar to the circumstances that the appellate court in

Horngren found sufficient to justify a forcible entry. Based on

both that precedent and Pinkard, the police reasonably could

have thought that the public interest in safeguarding Sutter-

field’s life outweighed the intrusion into the privacy of her

home.

15

(...continued)

their presence and have him come to door); State v. Ferguson, 629 N.W.2d

788 (Wis. Ct. App. 2001) (sustaining warrantless entry into defendant’s

bedroom and closet—wherein marijuana plants were discovered—as

legitimate exercise of community caretaker function, where occupants of

bedroom did not respond to officers’ repeated knocks and yells, there were

multiple indicia elsewhere in the apartment that juveniles had been

drinking substantial amounts of alcohol, and defendant had not been seen

at work in several days; officers were justified in both entering bedroom

and checking closet to make sure there was no one inside who needed

assistance).

No. 12-2272 69

The decision to forcibly open and search the locked

compact disc case discovered in the course of the protective

sweep presents a closer question in terms of the officers’

qualified immunity, just as it does on the merits of Sutterfield’s

Fourth Amendment claim. No Wisconsin case that has been

cited to us or that we have found has relied on the community

caretaking doctrine to justify any search of the premises more

intrusive than the sort of limited, protective sweep envisioned

by Buie—that is, a search of places within the home that

another person might be found. 494 U.S. at 335-36, 110 S. Ct. at

1099. The gun, having been secured within a locked, opaque

case, obviously was not in plain view, in contrast to the drugs

found in both Horngren and Pinkard. Opening the case was a

substantial step beyond the standard protective sweep, and

constituted a more substantial intrusion on Sutterfield’s

privacy interests in her personal effects.16

Even so, a police officer might have thought the search of

the case justified by the circumstances presented to him and

the broader articulation of the community caretaking doctrine

16

Compare State v. Toliver, No. 2010AP484-CR, 2011 WL 228889 (Wis. Ct.

App. Jan. 26, 2011) (nonprecedential decision) (community caretaker

doctrine justified officer’s decision to open purse and look for identifica-

tion, where officer was responding to report of possible suicide attempt and

arrived to discover purse left unattended in common area outside of

duplex), with State v. Kuczor, No. 2009AP1077-CR, 2009 WL 3103749 (Wis.

Ct. App. Sep. 30, 2009) (nonprecedential decision) (community caretaker

doctrine did not justify warrantless search of defendant’s duffel bag by

deputy who responded to defendant’s one-car accident, notwithstanding

both accident and defendant’s strange behavior, where there were no

particular facts that warranted intrusion into bag and deputy was simply

on a fishing expedition.

70 No. 12-2272

by the Wisconsin Supreme Court in Pinkard. The two-part

inquiry set forth in Pinkard asks first whether the police acted

for a community-caretaking purpose and second whether, on

the totality of the circumstances, the public interest served by

the police action outweigh the intrusion upon the individual’s

privacy. Although we have not found any Wisconsin case that

invoked the community caretaking doctrine to sustain a search

akin to that here, neither have we found anything that would

preclude this result when the search is conducted for purposes

of protecting someone’s safety or well-being. We can imagine,

for example, that in the case of a reported suicide attempt by

drug overdose, a Wisconsin court might sustain the search of

someone’s medicine cabinet, nightstand, or purse in an effort

to locate drugs that the individual has taken or might take. See

Stricker v. Tp. of Cambridge, supra, 710 F.3d at 362 (sustaining the

warrantless search of home, including drawers and cabinets,

where drug overdose of occupant had been reported and such

search might yield clues as to what occupant had ingested).

Indeed, the U.S. Supreme Court’s analysis in Brigham City

theoretically might recognize such a situation as an emergency

that justifies a warrantless search of this kind.17

17

See State v. Hooper, No. 2009AP575-CR, 2009 WL 4806889 (Wis. Ct. App.

Dec. 10, 2009) (nonprecedential decision) (finding search of defendant’s

dresser justified by community caretaker exception, where defendant had

summoned emergency assistance with report that she had taken cocaine and

was having difficulty breathing, emergency medical personnel arrivedto find

her incoherent and unresponsive, medical personnel instructed police to look

around defendant’s apartment for any harmful substance defendant might

have ingested, officer saw a mirror on top of dresser with powdery residue

on it, and officer looked in dresser drawer and discovered cocaine).

No. 12-2272 71

Here, there is no question that the police searched the

compact disc case not for law enforcement purposes but rather

out of a safety concern. And the police might reasonably have

concluded that although forcing open the case was a significant

intrusion upon Sutterfield’s privacy, it was amply justified by

the public interest in protecting both her safety and well-being

as well as that of anyone else who either lived with her or had

access to her home, including in particular a minor. Given the

nature of Sutterfield’s threat to harm herself and her physi-

cian’s report that she likely possessed a gun, police had reason

to look for any firearm that Sutterfield might use to harm

herself. And although there was nothing but Floriani’s hunch

that suggested there might be a gun inside of the case, the

locked case was a logical place to look for a gun.

For essentially the same reasons, we believe that a reason-

able police officer might have thought, upon discovery of the

gun, that he was authorized by his community caretaking

function to seize the gun for safekeeping. Given the breadth

that the Wisconsin courts have given to the community

caretaking doctrine, and the fact-specific balancing of public

versus private interests in which they engage when the police

take action as they did here to safeguard an individual’s well-

being, a police officer might think he would be authorized to

seize an obvious implement of harm from an individual who

has threatened to kill herself and is being taken into custody

pursuant to section 51.15 for an emergency mental health

evaluation. Regardless of Sutterfield’s legal right to possess the

gun, there is an obvious and powerful logic and prudence

supporting the decision to take the gun into police custody. See

72 No. 12-2272

Florida v. J. L., 529 U.S. 266, 272, 120 S. Ct. 1375, 1379 (2000)

(“Firearms are dangerous, and extraordinary dangers some-

times justify unusual precautions.”).18 The police knew that

Sutterfield had threatened to harm herself and was potentially

in a volatile state of mind, that her psychiatrist believed she

was in need of an intervention, and that, pursuant to section

51.15, Sutterfield was facing a short-term commitment for

evaluation and potentially a longer term commitment if

professionals confirmed she indeed posed a danger to herself.

They had no idea whether she would be released within a day,

a week, or a month. And they had no idea who, in the

meantime—including her son—might have access to her home

and to the unattended gun. Seizing the gun might not have

been the only step they could have taken to prevent the gun

from being misused or falling into the wrong hands, but it was

a rational and defensible step. See Mora v. City of Gaithersburg,

supra, 519 F.3d at 227-28 (sustaining seizure of individual’s

guns and ammunition for public safety, after individual had

been seized for involuntary mental health admission for

making remarks indicating he might kill himself and possibly

his co-workers); United States v. Harris, supra, 2014 WL 1356822,

18

See also State v. Kucik, No. 2009AP933-CR, 2010 WL 4633082, at *11 (Wis.

Ct. App. Nov. 16, 2010) (nonprecedential decision) (Fine, J., concurring)

(where defendant had been detained pursuant to section 51.15 after

assaulting cousin and threatening life of both cousin and aunt—including

threat to put a bullet in aunt’s head—and guns were seen in plain view in

glass-fronted gun cabinet, it was reasonable for officers to take custody of

defendant’s guns as safety measure in exercise of their community

caretaking function, given that they did not know how long defendant

would otherwise be separated from his guns).

No. 12-2272 73

at * 3 & n.4 (sustaining temporary seizure of gun falling out of

sleeping man’s pocket).

For all of these reasons, the defendants are entitled to

qualified immunity for the warrantless entry into Sutterfield’s

home, the search of the locked compact disc case, and the

temporary seizure of the gun found inside of the case. The

police were faced with a difficult situation in which they had

reason to believe, based on her physician’s report, that Sutter-

field might pose a danger to herself, they were implementing

an emergency detention of her person for evaluation pursuant

to section 51.15, and they were logically attempting to find the

firearm they had reason to believe Sutterfield possessed and to

secure that firearm while Sutterfield was undergoing a mental

health evaluation. Notwithstanding the uncertainty as to which

legal framework best applies to the warrantless actions of the

police in these circumstances, the police could have believed

that Wisconsin precedents, if not the federal cases, authorized

them to take these actions in order to protect Sutterfield’s well-

being as well as the well-being of anyone else, including her

son, who might have access to her home in her absence.

III.

Based on the Supreme Court’s decision in Brigham City and

this court’s decision in Fitzgerald, we conclude that the warrant-

less entry into Sutterfield’s home was justified. Under the

circumstances confronting the defendant police officers, they

had an objectively reasonable basis for believing that Sutter-

field posed an imminent danger of harm to herself; the

circumstances thus constituted an emergency which dispensed

with the need for a warrant under the exigent circumstances

74 No. 12-2272

exception to the Fourth Amendment’s warrant requirement.

Alternatively, even if the entry into Sutterfield’s home was

inconsistent with the Fourth Amendment, a reasonable person

would not have known that the entry violated Sutterfield’s

clearly established rights; the officers would therefore be

entitled to qualified immunity on the unlawful entry claim.

Similarly, although we have assumed arguendo that both the

search of the compact disc case in Sutterfield’s home and the

seizure of the (lawfully-possessed) gun found inside of that

case were contrary to the Fourth Amendment, we conclude

that the defendant officers are entitled to qualified immunity

on the unlawful search and seizure claims. We do not address

Sutterfield’s summary contention that the officers’ seizure of

her person for purposes of an emergency mental health

evaluation pursuant to Wisconsin Statutes section 51.15 was

contrary to the Fourth Amendment, as she has not adequately

preserved that argument. Neither do we address Sutterfield’s

contention that the seizure of her lawfully-possessed handgun

violated her Second Amendment right to possess a firearm for

the purpose of self-defense, as Sutterfield has not adequately

developed and supported that contention, nor has she shown

any defect in the available means of regaining possession of her

gun from the authorities.

The judgment of the district court is AFFIRMED.

No. 12-2272 75

MANION, Circuit Judge, concurring.

I am pleased to join the court’s thorough and scholarly

opinion. After examining many of the problems, the court

reaches the correct conclusion that the actions of the police

officers were well within the shelter of qualified immunity

provided by state and federal judicial opinions interpreting

and applying the Fourth Amendment. I write separately only

with the hope of encouraging legislatures to provide for a

judicially-issued civil warrant process that would authorize

law enforcement to enter someone’s home when there is

probable cause to believe that she poses a risk to herself or

others because of mental illness.

In this case we are able to determine that exigent circum-

stances justified the police forcing their way into a private

dwelling in order to protect the owner. But there was no other

legal authority to enter her home against her will.

I recognize that allegations of mental health risks can have

dramatic implications on privacy, liberty, and property rights.

After receiving some due process, those determined to be

mentally ill may lose certain fundamental rights, the same as

a criminal. See 18 U.S.C. § 922(d); Jana R. McCreary, “Mentally

Defective" Language in the Gun Control Act,” 45 CONN. L. REV.

813 (2013). What we do not seem to have is a law that strikes a

balance that protects those rights at least as much as it does the

rights of the criminally accused, while still allowing for swift

and effective responses by the police. Here, exigent

circumstances enabled the police to bypass some legal barriers.

But in very limited circumstances, as here, when the police are

positioned to enter a private home against the owner’s will, it

76 No. 12-2272

would be very helpful, for example, if the state legislature of

Wisconsin were to amend Wis. Stat. § 51.15 to allow the option

of having what in this case is called the “Statement of Emer-

gency Detention” approved by a judge. Then, the document

could be a sort of civil warrant on par with an arrest warrant.

It would allow the police to rely on the document to enter the

home when the owner-occupant is believed to pose a risk to

herself or others. By providing the police with the ability to

obtain a civil warrant prior to entering the home of such a

person, they will have a more clearly established method that

is safely within the confines of the law and which protects

personal property and privacy.

Because the court resolved the issues before it consistent

with controlling precedent, I fully concur.