State v. Deneui

#24853-aff in pt, rev in pt & rem-JKK

2009 SD 99

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

BRIAN LEE DENEUI, Defendant and Appellant,

* * * *

APPEAL FROM THE CIRCUIT COURT

OF THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE GLEN A. SEVERSON

Judge

* * * *

MARTY J. JACKLEY

Attorney General

FRANK GEAGHAN

Assistant Attorney General Attorneys for plaintiff

Pierre, South Dakota and appellee.

MARK KADI

Minnehaha County Office of

the Public Advocate Attorneys for defendant

Sioux Falls, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS

ON FEBRUARY 17, 2009

OPINION FILED 11/10/09

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KONENKAMP, Justice

[¶1.] In a case of first impression, we are confronted with the question

whether the community caretaker doctrine, which we previously applied to an

automobile search, should also be applied to a home search. After smelling

ammonia fumes outside a home, police officers entered without a warrant to see if

anyone inside needed assistance. While in the home, they saw evidence of a

methamphetamine lab in plain view, which later formed the basis for obtaining a

search warrant. Defendant homeowner sought unsuccessfully to suppress the

evidence seized in his house. He was convicted and sentenced on multiple charges

related to the manufacture and possession of methamphetamine. On appeal, we

conclude that, under the particular circumstances of this case, the officers were

justified in their community caretaking function in entering the home to make sure

no one had succumbed to noxious fumes. In another issue of first impression, we

conclude that when a drug crime is committed at one location within two

overlapping drug free school zones, such constitutes a single offense, and the

constitutional prohibition against double jeopardy precludes dual convictions for

both defendant’s drug free school zone crimes. We affirm in part, reverse in part,

and remand.

Background

[¶2.] On April 27, 2007, Roger Pieper of MidAmerican Energy was sent to

investigate a potential gas leak at 510 East 31st Street, in Sioux Falls, South

Dakota. It was not the first time the company had received complaints in recent

days about gas fumes in the neighborhood. During his check of the residence,

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Pieper’s handheld gas detector registered the presence of a “heavier combustible”

gas lying low on the basement floor. Pieper later testified that no level of

combustible gas is safe because it may indicate that the source of the gas could be

“real strong” somewhere else. But because natural gas is lighter than air, he

believed that the fumes were not likely natural gas. He went outside to check

nearby houses, and noticed a “stronger” odor of fumes at the house next door, 508

East 31st Street, defendant’s residence. He smelled an ammonia odor. It was

similar to the odors he smelled in other areas on the block. Upon further

investigation at the 508 home, Pieper noticed that the MidAmerican padlock for the

gas meter was open and pliers were lying on the ground. Pieper initially thought a

MidAmerican employee was working on the meter. When he walked around the

house, however, he noticed another meter lying on the ground. He then believed

that he was dealing with a possible theft of gas. He contacted his supervisor at

MidAmerican, and his supervisor called the billing department to learn of the

status of service to 508 E. 31st Street. During the call, Pieper learned that service

at 508 had been shut off for nonpayment and that the meters had been switched

with one taken from a house on inactive status fifteen blocks away. MidAmerican

contacted the police.

[¶3.] While Pieper waited for a MidAmerican billing representative and law

enforcement officers to arrive, he checked homes on the western side of the block for

possible gas leaks. As he proceeded down the block, Pieper saw a person leave in a

car from the 508 house. He also saw another person leave in a pickup. When

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Pieper returned to the residence, he noticed that the meter had been re-locked and

shut off. He also noticed that the meter lying on the ground was gone.

[¶4.] Officer Peter Zimbelman of the Sioux Falls Police Department was the

first to respond to 508 E. 31st Street to investigate the possible theft of gas. He

activated his video camera to record the investigation, but the camera was in a fixed

position in the patrol car, and thus, there is only an audio recording of what

transpired. Pieper told Officer Zimbelman that he saw two people leave the

residence. Officer Zimbelman asked if Pieper thought anyone was still inside.

Pieper did not know. Officer Zimbelman saw that the glass storm door to the

residence was closed but unlocked, and the main wooden door was wide open.

“Because it was a wide open, unsecured house,” Officer Zimbelman believed

someone could still be inside. He testified that he detected a faint odor of ammonia

while standing outside the front door. He knocked on the door but no one answered.

A neighbor approached Officer Zimbelman and told him that the person living at

508 E. 31st Street was caught at Kmart buying Sudafed and was seen bringing a

propane tank into the house. The neighbor also mentioned the presence of strange

gas odors about the neighborhood and that MidAmerican had been called twice.

[¶5.] Officer Thaddeus Openhowski arrived on the scene. He did not take

part in the conversations between Officer Zimbelman and Pieper. Rather, he

walked the perimeter of the house. While in the backyard, he noticed a chest

freezer with a clear plastic tube sticking out of it. He opened the freezer because he

thought it looked unusual. The tube was connected outside the freezer to a garden

sprayer type device and inside the freezer was a clear plastic bucket. The officer

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also noted that the back door to the house was unlocked. After walking around the

exterior of the house, Officer Openhowski joined Officer Zimbelman by the front

door.

[¶6.] Officer Zimbelman opened the storm door and yelled inside, “Hello,

Police. Anybody in here?” According to Officer Zimbelman, the faint odor of

ammonia he previously smelled became stronger when he opened the door. They

decided to enter the residence “to check to make sure nobody was incapacitated

inside.” Both officers had personally experienced the adverse affects of ammonia

fumes years earlier when they were on the scene after a packing plant explosion.

Officer Openhowski was “hit with it pretty hard” and knew that ammonia could

“knock somebody out.”

[¶7.] Once inside the home, the officers saw in plain view a propane tank.

They also noticed that the house was in disarray. Within a minute after entry,

Officer Zimbelman can be heard on the audio commenting on the real strong

chemical odor. Finding no one upstairs, they went toward the staircase leading to

the basement. At the entry of the staircase, both officers testified that the chemical

odor became stronger. This caused Officer Zimbelman to believe that they might

have encountered a methamphetamine lab. Officer Zimbelman called metro

communications to contact Sergeant Jerry Mundt. Officers Zimbelman and

Openhowski attempted to search the basement for persons possibly overcome by the

fumes, but the fumes were overwhelming. They became light headed and had to

leave the residence. The fire department and an ambulance were called. Officer

Zimbelman received oxygen at the scene, and both officers later went to the

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emergency room, where they were put on oxygen for two to three hours. No one was

found in the house.

[¶8.] When Sgt. Mundt arrived, Officer Openhowski told him of the items he

saw in the chest freezer. Sgt. Mundt opened the freezer to examine the contents.

The officers also told Sgt. Mundt that during their entry to the basement they saw

evidence of a possible methamphetamine lab. Sgt. Mundt contacted Detective

Michael Walsh of the Minnehaha County Sheriff’s Office to have a warrant

prepared. Detective Walsh arrived at the scene but remained in his vehicle. Sgt.

Mundt informed Detective Walsh of the contents of the freezer, the existence of the

propane tank, that the tank had a blue discoloration consistent with the

manufacture of methamphetamine, and of the items seen by Officers Openhowski

and Zimbelman in the basement. Detective Walsh prepared an affidavit in support

of the search warrant. A search warrant was executed and the homeowner, Brian

Deneui (defendant), was later arrested. The search revealed a digital scale,

methamphetamine pipes, a spoon and coffee filter that tested positive for

methamphetamine, baggies, two wire strainers, one box of Sudafed PE, one baggie

of white powder that tested positive for Ephedrine, lithium batteries, a forty-pound

bag of Solar Salt, a snort tube, a propane tank, and a small baggie that tested

positive for methamphetamine.

[¶9.] After defendant was arrested he was interviewed by Detective Walsh.

Defendant admitted that he lived at 508 E. 31st Street. He also admitted to

manufacturing methamphetamine for himself and his friends. Defendant was

indicted on charges of (1) possession, distribution or manufacture of a controlled

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substance; (2) manufacturing a controlled substance within 1000 feet of Patrick

Henry Middle School; (3) manufacturing a controlled substance within 1000 feet of

St. Mary’s Catholic School; (4) possession of methamphetamine; and (5) maintaining

a residence where controlled substances are used.

[¶10.] Defendant moved to suppress the evidence seized on the ground that

his home was searched illegally. A hearing was held and the circuit court ruled that

the officers’ initial entry into the residence was lawful under the community

caretaker exception to the warrant requirement. In regard to the search of

defendant’s freezer in the backyard, the court held that it was unlawful. After

striking the information in the warrant affidavit related to the unlawful portion of

the search, the court concluded that the affidavit contained sufficient information to

support probable cause. Defendant was found guilty of all charges in a bench trial.

He was sentenced to six years on the manufacturing charge, six years on each

manufacturing charge within 1000 feet of a school, six years on the possession

charge, and five years on the maintaining charge. The manufacturing sentence and

one of the manufacturing within 1000 feet of a school sentences were to be served

consecutively, with the remaining sentences to be served concurrently.

[¶11.] Defendant appeals on the grounds that (1) the court erred when it held

that the officers’ warrantless entry into the residence was lawful; (2) the search

warrant lacked probable cause; (3) not all essential components in the

manufacturing process were proved; (4) double jeopardy precludes two drug-free

school zone convictions arising out of one manufacturing conviction from a single

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location; (5) the evidence was insufficient to sustain guilty verdicts for possession of

a controlled substance and maintaining a place where drugs are kept, sold, or used.

I.

Warrantless Entry into Home

[¶12.] Both the Fourth Amendment of the United States Constitution and

article VI, section 11 of the South Dakota Constitution protect citizens from

unreasonable searches and seizures. State v. Hess, 2004 SD 60, ¶11, 680 NW2d

314, 319. Because defendant has not asserted and we have not found a basis to

distinguish the protections afforded by the South Dakota Constitution from those

provided by the federal constitution under the circumstances of this case, our

analysis applies equally to both the state and federal constitutional provisions.

State v. Schwartz, 2004 SD 123, ¶31, 689 NW2d 430, 437-38 (Konenkamp, J.,

concurring in result).

[¶13.] The Fourth Amendment does not protect against all searches and

seizures, but only against unreasonable searches and seizures. United States v.

Sharpe, 470 US 675, 682, 105 SCt 1568, 1573, 84 LEd2d 605 (1985). In deciding

whether a search or seizure was reasonable, “[t]he touchstone of our analysis under

the Fourth Amendment is always ‘the reasonableness in all the circumstances of the

particular governmental invasion of a citizen’s personal security.’” Pennsylvania v.

Mimms, 434 US 106, 108-09, 98 SCt 330, 332, 54 LEd2d 331 (1977) (quoting Terry

v. Ohio, 392 US 1, 19, 88 SCt 1868, 1878-79, 20 LEd2d 889 (1968)). Reasonableness

“depends on a balance between the public interest and the individual’s right to

personal security free from arbitrary interference by law officers.” United States v.

Brignoni-Ponce, 422 US 873, 878, 95 SCt 2574, 2579, 45 LEd2d 607 (1975) (citations

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omitted). On the other hand, “it is well established that ‘searches and seizures

inside a home without a warrant are presumptively unreasonable.’” Hess, 2004 SD

60, ¶22, 680 NW2d at 324 (citing Payton v. New York, 445 US 573, 586, 100 SCt

1371, 1380, 63 LEd2d 639, 651 (1980)). “‘[P]hysical entry of the home is the chief

evil against which the wording of the Fourth Amendment is directed[.]’” Id.

(quoting United States v. United States Dist. Court, 407 US 297, 313, 92 SCt 2125,

2134, 32 LEd2d 752 (1972)).

[¶14.] Generally, “every law enforcement entry into a home for the purpose of

search and seizure must be made with a warrant.” Id. (citing Katz v. United States,

389 US 347, 357, 88 SCt 507, 514, 19 LEd2d 576 (1967); State v. Lamont, 2001 SD

92, ¶50, 631 NW2d 603, 617). A warrantless search and seizure is permissible only

if it satisfies a specific exception to the warrant requirement. Id. The State bears

the burden of establishing, by a preponderance of the evidence, that the warrantless

search satisfied a specific exception. Id. ¶23; State v. Labine, 2007 SD 48, ¶14, 733

NW2d 265, 269. Constitutional challenges to a warrantless law enforcement search

require a two-step inquiry: first, factual questions on what the officers knew or

believed at the time of the search and what action they took in response; second,

legal questions on whether those actions were reasonable under the circumstances.

Hess, 2004 SD 60, ¶23, 680 NW2d at 324-25; Lamont, 2001 SD 92, ¶50, 631 NW2d

at 617 (Amundson, J., dissenting) (citing State v. Meyer, 1998 SD 122, ¶23, 587

NW2d 719, 724 (citing State v. Heumiller, 317 NW2d 126, 129 (SD 1982)).

Although we defer to the circuit court’s fact findings, it is our duty to make our own

legal assessment of the evidence to decide under the Fourth Amendment whether

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the officers’ actions were “objectively reasonable.” State v. Nguyen, 2007 SD 4, ¶12,

726 NW2d 871, 875; Lamont, 2001 SD 92, ¶21, 631 NW2d at 610. The legality of a

search will not depend on the motivations of the police officers involved in the

search. Lamont, 2001 SD 92, ¶21, 631 NW2d at 610. Indeed, any asserted

inconsistencies in an officer’s actions, supposedly evincing subjective intentions or

beliefs about the situation, are irrelevant to the objective assessment of whether the

actions were reasonable. State v. Simmons, 714 NW2d 264, 274 (IA 2006).

1. Exigent Circumstances Exception

[¶15.] We first examine the exigent circumstances exception to the warrant

requirement because that is the exception the State contends applies in this case.

The exigent circumstances exception is widely recognized and has been consistently

applied by this Court. Probable cause and exigent circumstances analysis pertains

only when law enforcement officers are investigating criminal activity. United

States v. Quezada, 448 F3d 1005, 1007 (8thCir 2006); People v. Davis, 497 NW2d

910, 920 (Mich 1993). For this exception to apply, law enforcement officers must

possess probable cause that the premises to be searched contains the sought-after

evidence or suspects. Quezada, 448 F3d at 1007; Davis, 497 NW2d at 920.

[¶16.] This Court’s test for whether exigent circumstances exist asks

“whether police officers, under the facts as they knew them at the time, would

reasonably have believed that delay in procuring a search warrant would gravely

endanger life, risk destruction of evidence, or greatly enhance the likelihood of a

suspect’s escape.” Hess, 2004 SD 60, ¶25, 680 NW2d at 325 (citation omitted). “If

the officer is not executing a valid search warrant, a warrantless search and seizure

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is unreasonable absent probable cause and exigent circumstances.” Swedlund v.

Foster, 2003 SD 8, ¶42, 657 NW2d 39, 56 (citations omitted).

[¶17.] Before we consider whether exigent circumstances existed, we must

first decide whether the officers were acting in their crime investigation capacity

when they entered defendant’s home. See Quezada, 448 F3d at 1007; Davis, 497

NW2d at 920. Both officers testified that they did not enter the home because they

believed that methamphetamine was being manufactured there. Rather, they

entered because they smelled ammonia fumes and wanted to make sure no one was

endangered inside. Officers Zimbelman and Openhowski were found credible by the

circuit court. Officer Openhowski maintained that before entering he had no clue

that the house could contain a methamphetamine lab and was not intending to

investigate a possible methamphetamine lab despite the fact that he saw the freezer

with tubing while outside the back of the house. Officer Zimbelman similarly

insisted that although the neighbor told him that defendant had been caught

buying Sudafed, Zimbelman did not suspect a methamphetamine lab until after he

was inside the residence. Both officers testified that they had not worked in

narcotics during their careers and they had had little training in drug investigation.

[¶18.] Unlike Hess, where we held that exigent circumstances warranted the

intrusion when the officers were at a house to execute an arrest warrant and

observed, through a window, two persons consuming what appeared to be a

controlled substance, here the circuit court found that the officers entered the house

in their non-investigatory capacity to make sure no one inside was overcome by

ammonia fumes. See 2004 SD 60, ¶2, 680 NW2d at 317. The officers neither

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observed nor suspected that a crime was being committed inside the home and

there were no claims by the officers, or findings adopted by the court, that support

an entry based on the presence of a possible active methamphetamine lab. See

United States v. Walsh, 299 F3d 729 (8thCir 2002) (intrusion warranted because of

active methamphetamine lab). We also find distinguishable the “plain smell” cases

the State cites to argue that the smell of an odor alone is sufficient to provide

probable cause. Here, the officers did not believe that the smell of ammonia meant

that a possible crime was being committed, i.e. the presence of an active

methamphetamine lab. Because the officers did not enter the house in furtherance

of a criminal investigation, the sole fact that the officers smelled ammonia cannot

give rise to the application of the exigent circumstances exception.

2. Aiding Persons in Need of Assistance Exceptions

[¶19.] The exigent circumstances exception to the warrant requirement

encompasses police entry for the purpose of arresting persons thought to be within

or for the purpose of finding the fruits, instrumentalities, or evidence of a past

crime. That exception, as we have concluded, does not apply in this case. Courts

also recognize, however, several exceptions to the warrant requirement where police

entry is not for the purpose of investigating crime but for the purpose of preserving

life or property.

[¶20.] Here, the circuit court held that the officers’ initial entry into

defendant’s home was lawful under the community caretaker exception to the

warrant requirement. This Court adopted the exception in State v. Rinehart, a case

where an officer stopped a vehicle after becoming concerned that the driver might

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be experiencing a medical emergency. 2000 SD 135, ¶¶7-10, 617 NW2d 842, 843-44.

Because here the officers smelled a chemical odor while standing outside

defendant’s residence, the court found that the “overwhelming purpose of the

officers in entering the house was to search for possible victims of the fumes.”

Defendant claims that the initial warrantless entry was unlawful because the

officers used a well-being check as a pretext for gathering evidence of a crime and

there was no emergency justifying the warrantless entry.

[¶21.] The United States Supreme Court and multiple other courts have

upheld a police officer’s authority to enter a residence without a warrant when there

is a reasonable belief that someone is in need of immediate aid. Mincey v. Arizona,

437 US 385, 392, 98 SCt 2408, 2413, 57 LEd2d 290 (1978). What has not been

consistent, however, is which exception to the warrant requirement will permit an

officer’s warrantless entry into a residence under these circumstances. A review of

the caselaw reveals a breadth of decisions discussing and applying various

exceptions including the emergency doctrine, the emergency aid doctrine, and the

community caretaker doctrine.

[¶22.] Some of the avowed distinctions between these three doctrines can be

frail, bordering on the meaningless. Neither have they been consistently applied,

thus creating contradictory and sometimes conflicting doctrines. Some courts treat

these exceptions interchangeably. Others declare that the community caretaker

exception applies, but then use law applicable to one of the other exceptions, such as

the emergency doctrine. Several courts have also held that the emergency aid

doctrine is a subcategory of the community caretaker exception, while the

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emergency doctrine is a subcategory of the exigent circumstances exception. We

will examine each exception and then determine whether, under the facts of this

case, the warrantless entry into defendant’s home was justified under any of the

exceptions. We are not bound by the circuit court’s legal conclusion about which

exception, if any, applies. See Hess, 2004 SD 60, ¶9, 680 NW2d at 319; State v.

Herrmann, 2002 SD 119, ¶9, 652 NW2d 725, 728.

a. Emergency Doctrine

[¶23.] The emergency doctrine, allowing warrantless entry into a home, has

been specifically adopted and applied by the United States Supreme Court. Mincey,

437 US at 392-93, 98 SCt at 2414, 57 LEd2d 290. In Mincey, the Court noted that

“[n]umerous state and federal cases have recognized that the Fourth Amendment

does not bar police officers from making warrantless entries and searches when

they reasonably believe that a person within is in need of immediate aid.” Id. More

specifically, the Court stated that “[t]he need to protect or preserve life or avoid

serious injury is justification for what would be otherwise illegal absent an exigency

or emergency.” Id. (citation omitted). Relying on Mincey, a majority of courts have

similarly adopted the emergency doctrine exception. 1

1. See United States v. York, 895 F2d 1026, 1029 (5thCir 1990); United States v.

Stafford, 416 F3d 1068, 1073-74 (9thCir 2005); Quezada, 448 F3d at 1007;

Hotrum v. State, 130 P3d 965, 968 (AlaskaCtApp 2006); State v. Fisher, 686

P2d 750, 760-61 (Ariz 1984); State v. Fausel, 953 A2d 891, 896 (ConnCtApp

2008); People v. Meddows, 427 NE2d 219, 222 (IllCtApp 1981);

Commonwealth v. Snell, 705 NE2d 236, 242-43 (Mass 1999); People v. Davis,

497 NW2d 910, 920 (Mich 1993); State v. Lemieux, 726 NW2d 783, 787 (Minn

2007); State v. Ryon, 108 P3d 1032, 1039-40 (NM 2005); Duquette v. Godbout,

471 A2d 1359, 1362 (RI 1984); Kyer v. Commonwealth, 601 SE2d 6, 12

(VaCtApp 2004).

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[¶24.] One of the most common tests applied for this exception by both state

and federal courts was developed by the New York Court of Appeals in People v.

Mitchell, 347 NE2d 607, 609 (NY 1976). 2 The three-part Mitchell test requires:

(1) The police must have reasonable grounds to believe that

there is an emergency at hand and an immediate need for their

assistance for the protection of life or property.

(2) The search must not be primarily motivated by intent to

arrest and seize evidence.

(3) There must be some reasonable basis, approximating

probable cause, to associate the emergency with the area or

place to be searched.

Id. This test has been subject to much criticism and has been abrogated in part by

the Supreme Court in Brigham City v. Stuart, 547 US 398, 402, 126 SCt 1943, 1947,

164 LEd2d 650 (2006). The criticism arose because the second prong delves into the

officer’s subjective motivations. In recent years, the United States Supreme Court

has consistently held that only objective reasonableness is required to support a

warrantless entry. In Brigham, it made this requirement clear: an officer’s

subjective motivation will not invalidate an otherwise reasonable search. Id. at 404,

126 SCt at 1947, 164 LEd2d 650. Therefore, some courts have modified the Mitchell

2. See York, 895 F2d at 1029; Stafford, 416 F3d at 1073-74; Guererri v. State,

922 A2d 403, 406 (DelSupCt 2007); State v. Blair, 62 P3d 661, 665

(KanCtApp 2002); State v. Resler, 306 NW2d 918 (Neb 1981) (adopting the

Mitchell test, but concluding that exigent circumstances apply); People v.

Smith, 609 NE2d 750, 755 (IllCtApp 1992); Lemieux, 726 NW2d at 787;

Smith v. State, 419 So2d 563 (Miss 1982), overruled on other grounds Willie

v. State, 585 So2d 660 (Miss 1991); Ryon, 108 P3d at 1039-40; State v. Gill,

755 NW2d 454, 460 (ND 2008); State v. Mountford, 769 A2d 639, 643-44 (Vt

2000), abrogated in part by Brigham City v. Stuart, 547 US 398, 402, 126 SCt

1943, 1947, 164 LEd2d 650 (2006); see also 3 Wayne R. LaFave, Search &

Seizure: A Treatise on the Fourth Amendment 6.6 (3ded 1996).

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test to require only an objective analysis. 3 See State v. Gill, 755 NW2d 454, 460

(ND 2008).

[¶25.] Massachusetts applies its own test for the emergency doctrine. It only

requires that “there were reasonable grounds for the . . . police to believe (an

objective standard) that an emergency existed.” Snell, 705 NE2d at 243 (citation

omitted). No subjective considerations are reviewed. While Rhode Island similarly

does not consider an officer’s subjective intentions, it imposes a more demanding

test. Duquette, 471 A2d at 1362. Rhode Island requires that, first, “the responding

officer [must] have a reasonable belief that his assistance is required to avert a

crisis;” second, “there must be a legitimate need for the performance of the search;”

third, “the search must be ‘carefully tailored’ to render only the perceived need for

help and should not extend any further;” fourth, in determining whether an

‘emergency’ existed, consideration must be given to “whether the purpose of the

3. Other courts, however, still consider an officer’s subjective motivations,

whether using the Mitchell test or through the use of a different test. For

example, a New Mexico court analyzed the subjective/objective dichotomy and

concluded that the “ultimate issue is whether officers had a reasonable

concern that an individual’s health would be endangered by a delay, and in

fact were motivated by a need to address that concern.” Ryon, 108 P3d at

1046. The subjective element was adopted, according to the court, “because,

in the absence of a warrant, a neutral magistrate has not provided a

preliminary review,” the exception “is a narrow one, [and] courts must closely

scrutinize the actions and motives of the police in order to determine whether

the exception applies.” Id. Wisconsin also reviews the officer’s subjective

motivation, although with a different test. State v. Kraimer, 298 NW2d 568,

573 (Wis 1980) (citing State v. Prober, 297 NW2d 1 (Wis 1980)). Wisconsin

employs a two-step analysis: “First, the search is invalid unless the

searching officer is actually motivated by a perceived need to render aid or

assistance. Second, even though the requisite motivation is found to exist,

until it can be found that a reasonable person under the circumstances would

(continued . . .)

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search would have been frustrated if the officers had been required to obtain a

warrant;” and fifth, “the intrusion [must] not be a pretext to make an arrest or

search to seize evidence.” Id. (citations omitted).

[¶26.] The emergency doctrine appears to be the exception most consistently

applied. This doctrine, as applied to a warrantless search of a home, has support of

the United States Supreme Court, unlike the community caretaker exception.

While the Supreme Court has not declared precisely what standard or test should

be used to gauge the reasonableness of a warrantless intrusion under the

emergency doctrine, it is clear that the Court will not inquire into an officer’s

subjective intentions.

[¶27.] To adhere to Fourth Amendment principles while allowing officers to

protect the public in emergencies, we adopt the following test for the emergency

doctrine exception to the warrant requirement: (1) there must be grounds to believe

that some kind of emergency exists that would lead a reasonable officer to act; and

(2) the officer must be able to point to specific and articulable facts, which if taken

together with rational inferences, reasonably warrant the intrusion.

b. Emergency Aid Doctrine

[¶28.] There are considerable similarities between the emergency aid

doctrine and the emergency doctrine, and perhaps the distinctions are too fine to

merit separate treatment. Nonetheless, several courts have adopted and applied

__________________

(. . . continued)

have thought an emergency existed, the search is invalid.” Id. Therefore,

“[b]oth the subjective and objective test must be met.” Id.

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this exception to the warrant requirement, distinct from the community caretaker

exception. Other courts treat the emergency aid doctrine interchangeably with the

emergency doctrine. Hotrum v. State, 130 P3d 965 (AlaskaCtApp 2006) (declaring

the emergency aid doctrine to be “well-recognized,” yet applying the test for the

emergency doctrine); State v. Fisher, 686 P2d 750 (Ariz 1984) (terming the

exception as the emergency aid doctrine, yet applying the emergency doctrine test);

Ryon, 108 P3d at 1039-40 (arguably applying the emergency doctrine, although

termed the emergency assistance doctrine).

[¶29.] Utah emphasizes that the emergency aid doctrine should be “strictly

circumscribed” because the exception takes a “significant departure” from “Fourth

Amendment jurisprudence by requiring neither a warrant nor probable cause as a

prerequisite to a search.” State v. Comer, 51 P3d 55, 62 (UtahCtApp 2002). Utah

adopted a three-part test for the emergency aid doctrine. 4 New Hampshire

similarly adopted a three-part test, which does not differ considerably from the test

4. Utah’s test requires:

(1) Police have an objectively reasonable basis to believe that an

emergency exists and believe there is an immediate need for

their assistance for the protection of life.

(2) The search is not primarily motivated by intent to arrest and

seize evidence.

(3) There is some reasonable basis to associate the emergency

with the area or place to be searched. That is, there must be

a connection with the area to be searched and the

emergency.

Salt Lake City v. Davidson, 994 P2d 1283, 1287 (UtahCtApp 2000).

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for the emergency doctrine, but is nevertheless a distinct test. 5 State v. Macelman,

834 A2d 322, 326 (NH 2003) (quoting Mitchell, 347 NE2d at 609).

[¶30.] The Colorado Supreme Court also adopted an independent test for the

emergency aid doctrine, which requires a “‘colorable claim of an emergency

threatening the life or safety of another.’” People v. Pate, 71 P3d 1005, 1011 (Colo

2003) (citation omitted). The court requires “the prosecution to prove the existence

of ‘an immediate crisis and the probability that [police] assistance will be helpful.’”

Id. The test under the emergency aid doctrine, according to the Colorado court, is

one of reasonableness requiring facts or circumstances showing that someone’s life

or safety is seriously threatened. Id.

[¶31.] In Michigan, “when the police are investigating a situation in which

they reasonably believe someone is in need of immediate aid, their actions should be

governed by the emergency aid doctrine, regardless of whether these actions can

also be classified as community caretaking activities.” Davis, 497 NW2d at 921.

Michigan’s version of the emergency aid doctrine allows police to “enter a dwelling

without a warrant when they reasonably believe that a person within is in need of

immediate aid.” Id. However, the officers “must possess specific and articulable

5. New Hampshire’s test asks whether:

(1) the police have objectively ‘reasonable grounds to believe that there

is an emergency at hand and an immediate need for their assistance

for the protection of life or property’; (2) there is an objectively

‘reasonable basis, approximating probable cause, to associate the

emergency with the area or place to be searched’; and (3) the search is

not ‘primarily motivated by intent to arrest and seize evidence.’

Macelman, 834 A2d at 326 (quoting Mitchell, 347 NE2d at 609); see also

Mountford, 769 A2d at 644.

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facts that lead them to this conclusion. In addition, the entry must be limited to the

justification therefor, and the officer may not do more than is reasonably necessary

to determine whether a person is in need of assistance, and to provide that

assistance.” Id.

[¶32.] From our review of these cases, it appears that the emergency aid

doctrine differs from the community caretaker exception in part on the fact that the

title, emergency aid doctrine, presumes an existing emergency to warrant the

intrusion. Otherwise, this doctrine, like the community caretaker exception,

requires reasonableness on the part of the officers and circumstances warranting

the intrusion. We agree with those courts holding that no useful distinction can be

made between the emergency doctrine and the emergency aid doctrine. Both

require, at their essence, an emergency.

c. Community Caretaker Doctrine

[¶33.] The community caretaker exception has been recognized only in the

context of automobiles by the United States Supreme Court. Cady v. Dombroski,

413 US 433, 441, 93 SCt 2523, 2528, 37 LEd2d 706 (1973). In Cady, the defendant’s

car was disabled as a result of a car accident and was later impounded. The

defendant told law enforcement officers that he was a Chicago police officer.

Because the officers knew defendant was required to carry his service revolver at all

times, they subjected the car to an inventory search while it was impounded. The

search revealed several bloody items, which later led the officers to the location of a

dead body.

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#24853

[¶34.] In considering whether the defendant’s Fourth Amendment rights

were violated when his vehicle was impounded, the Supreme Court emphasized the

constitutional difference between homes and cars. Id. at 439-40, 93 SCt at 2527, 37

LEd2d 706 (quoting Chambers v. Maroney, 399 US 42, 52, 90 SCt 1975, 1981, 26

LEd2d 419 (1970)). The Court also reiterated that “[t]he ultimate standard set

forth in the Fourth Amendment is reasonableness.” Id. at 439, 93 SCt at 2527, 37

LEd2d 706. With the reasonableness standard and constitutional difference in

mind, the Court held that the police legally impounded the vehicle. The basis for

allowing the warrantless seizure was that police officers “for want of a better term,”

can investigate an accident without a warrant in what “may be described as

community caretaking functions, totally divorced from the detection, investigation,

or acquisition of evidence relating to the violation of a criminal statute.” Id. at 441,

93 SCt at 2528, 37 LEd2d 706.

[¶35.] Following the Supreme Court’s lead, many jurisdictions have adopted

the community caretaker exception when police impound a vehicle, conduct an

inventory search of an impounded vehicle, or, as in South Dakota, stop a vehicle for

a well-being check when there is a “demonstrable reason to believe that a driver

may be unfit to drive for medical or other reasons[.]” 6 See Rinehart, 2000 SD 135,

6. See also United States v. Griffin, 729 F2d 475, 480-81 (7thCir 1984)

(impoundment); Marsh v. State, 838 P2d 819, 820 (AlaskaCtApp 1992) (car

appeared to be stalled); People v. Luedemann, 857 NE2d 187, 208 (Ill 2006)

(no seizure for well-being check of person in vehicle); Kozak v. Comm’r of

Public Safety, 359 NW2d 625, 628 (MinnCtApp 1984) (duty of police officer to

determine if person is in need of assistance); State v. Washington, 687 A2d

343, 344 (NJSuperCt 1997); State v. Marcello, 599 A2d 357, 358 (Vt 1991);

State v. Johnson, 546 NW2d 580 (WisCtApp 1996) (unpublished).

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¶¶7-10, 617 NW2d at 843-44. With Rinehart, an automobile case, being our only

previous community caretaker decision, the present case poses a significant

expansion of the community caretaker doctrine. In several other jurisdictions, this

exception has not easily evolved into an exception applicable to homes. In fact, the

Seventh, Tenth, and Eleventh Circuits, as well as North Dakota, have declined to

extend the community caretaker exception to residential entries because the Cady

decision stressed the distinction between vehicles and dwellings. 7 These courts

wish to maintain the constitutional distinction between “cars and homes” in

applying this exception. See Cady, 413 US at 439-40, 93 SCt at 2527, 37 LEd2d

706.

[¶36.] Since, under the Fourth Amendment, the highest measure of

protection is in the home, we must determine whether the warrantless entry into

defendant’s home under the facts of this case is an appropriate expansion of the

community caretaker doctrine. Many courts have extended the community

caretaker exception to the entry of a home. 8 But these decisions reveal how

7. United States v. Pichany, 687 F2d 204, 209 (7thCir 1980); United States v.

Bute, 43 F3d 531, 535 (10thCir 1994); United States v. McGough, 412 F3d

1232 (11thCir 2005); Gill, 755 NW2d at 459.

8. See United States v. Nord, 586 F2d 1288, 1289 (8thCir 1978) (emergency

features existed because of drunk person); York, 895 F2d at 1030 (applied

emergency doctrine, but noted that the officers were exercising their

community caretaking function); United States v. Rohrig, 98 F3d 1506

(6thCir 1996) (warrantless entry into home under community caretaker

exception to abate a nuisance); People v. Ray, 981 P2d 928, 937 (Cal 1999);

State v. Hoth, 718 A2d 28, 34-35 (ConnCtApp 1998) (applied emergency

exception, but recognized that such was rooted in the community caretaking

function of law enforcement); State v. Crawford, 659 NW2d 537 (Iowa 2003)

(although the case involved a vehicle, court recognized search of home as part

(continued . . .)

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inconsistently the exception has been applied. 9 No single test has been adopted by

a majority of courts. For example, in California the exception arises when “[g]iven

the known facts . . . a prudent and reasonable officer [would] have perceived a need

to act in the proper discharge of his or her community caretaking functions.” People

v. Ray, 981 P2d 928, 937 (Cal 1999), cert. denied Ray v. California, 528 US 1187,

120 SCt 1240, 146 LEd2d 99 (2000). Wisconsin developed a three-part test, with a

four-part subtest, that asks whether there was a seizure, whether the police action

was a bona fide community caretaking activity, and whether the public’s need and

interest outweigh the intrusion upon the individual’s privacy. State v. Ziedonis, 707

__________________

(. . . continued)

of an officer’s community caretaking duty under the emergency aid doctrine);

State v. Blair, 62 P3d 661 (KanCtApp 2002) (applied emergency doctrine, but

explicitly stated that the doctrine applies when officers are acting in the

community caretaking function); State v. Alexander, 721 A2d 275, 285

(MdCtApp 1998) (applying a reasonableness standard in assessing whether

the police were acting in their community caretaking function); Davis, 497

NW2d at 920 (recognizing the community caretaker exception); Lemieux, 726

NW2d at 787 (recognized that as part of their community caretaking function

police may enter a home without a warrant to render emergency assistance);

State v. Garbin, 739 A2d 1016, 1018-19 (NJSuperCt 1999) (warrantless

entrance into a garage permitted under community caretaker exception);

State v. Christenson, 45 P3d 511 (OrCtApp 2002) (statute specifically

recognizes the community caretaker exception, although the facts did not

warrant its application); Laney v. State, 76 SW3d 524 (TexCtApp 2002)

(applying community caretaker exception); State v. Ziedonis, 707 NW2d 565,

570 (WisCtApp 2005).

9. The dissent suggests that the cases cited do not stand for the propositions

asserted. As we stated, courts often mix use of language applicable to the

emergency doctrine, emergency aid doctrine, and community caretaker

exception. Despite the mix of use, the cases cited recognize that the officers

were acting as part of their community caretaking function, permitting the

warrantless entry.

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NW2d 565, 570 (WiscCtApp 2005) (quoting State v. Anderson, 417 NW2d 411, 414

(WisCtApp 1987) (automobile case)).

[¶37.] Texas does not require specific, objective, and articulable facts

supporting the intrusion, but instead asks “(1) whether immediate government

action was required; (2) whether the government interest was sufficiently

compelling to justify a warrantless intrusion; and (3) whether the citizen’s

expectation of privacy was diminished in some way.” Laney v. State, 76 SW3d 524,

529 (TexCtApp 2002) (citing Rohrig, 98 F3d at 1523). Texas adopted its test after

examining two non-community caretaking doctrine cases from the Fifth and Sixth

Circuits.

[¶38.] Although the above courts have adopted specific tests for this

exception, there are courts applying the community caretaker exception but using a

test applicable to the emergency doctrine or the emergency aid doctrine. 10 In

10. See Stafford, 416 F3d at 1073-74 (alternatively termed the community

caretaking function or emergency exception, but application of the emergency

doctrine test); Hoth, 718 A2d at 34 (emergency doctrine, according to the

court, is rooted in the community caretaking function of police); Blair, 62 P3d

at 665 (used test for emergency doctrine); Alexander, 721 A2d at 283-84

(emergency aid used interchangeably with community caretaking); Lemieux,

726 NW2d at 787 (recognized that in pursuing their community caretaking

functions law enforcement can enter a home to render emergency assistance,

but applied the emergency doctrine test); Garbin, 739 A2d at 1018-19

(acknowledged community caretaking function exception, but quote law for

the emergency doctrine); State v. Christenson, 45 P3d 511 (OrCtApp 2002)

(statutory community caretaking function exception is circumscribed by the

parameters of the emergency aid doctrine); see also York, 895 F2d at 1029-30

(intrusion was reasonably foreseeable and officers were acting in their

peacekeeping capacity). The emergency aid doctrine is most comparable to

the community caretaker exception. In fact, one commentator has asserted

that the emergency aid doctrine is a subcategory of the community caretaker

exception. See Mary E. Naumann, The Community Caretaker Doctrine: Yet

(continued . . .)

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particular, the Washington Supreme Court declared that the community caretaker

exception in an automobile search case arises when an “‘encounter made for

noncriminal, noninvestigatory purposes is reasonable[.]’” State v. Kinzy, 5 P3d 668,

676 (Wash 2000) (citation omitted). Relying on this case, the Washington Court of

Appeals extended the community caretaker exception to a home search. State v.

White, 168 P3d 459, 466 (WashCtApp 2007). In White, however, the court applied

the Washington Supreme Court’s rule for the emergency aid doctrine. See id. (using

Kinzy’s three-part test for the emergency aid doctrine and not reasonableness test

for the community caretaker exception). Maryland’s test is also arguably the test

for the emergency aid doctrine. 11 Alexander, 721 A2d at 285.

[¶39.] The Eighth Circuit applies the community caretaker exception. See

United States v. Nord, 586 F2d 1288, 1289 (8thCir 1978); Quezada, 448 F3d at

1007. And the Eighth Circuit has made clear that an officer’s subjective motivation

is irrelevant to a determination whether the warrantless entry was justified. Some

courts, on the other hand, specifically consider the subjective intentions of the

officers conducting the search. See Ziedonis, 707 NW2d at 570; White, 168 P3d at

__________________

(. . . continued)

Another Fourth Amendment Exception, 26 AmJCrimL 325, 330-41 (1999); see

also Ray, 981 P2d at 934; Macelman, 834 A2d at 325-26.

11. In Maryland, an officer acts in his community caretaking capacity when

“there were ‘reasonable grounds to believe that some kind of an emergency

existed,’ that is, whether there is ‘evidence which would lead a prudent and

reasonable official to see a need to act.’” Alexander, 721 A2d at 285(emphasis

removed) (this is also arguably the test for the emergency aid doctrine).

However, “[t]he officer must ‘be able to point to specific and articulable facts

which, taken with rational inferences from those facts, reasonably warrant

that intrusion.’” Id.

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467. Several courts, recognizing the inconsistent application of the warrant

requirement exceptions, have advocated new approaches by extinguishing some

exceptions. For example, after a thorough analysis of the community caretaker,

emergency aid, and exigent circumstances exceptions, a Michigan court held “that

when the police are investigating a situation in which they reasonably believe

someone is in need of immediate aid, their actions should be governed by the

emergency aid doctrine, regardless of whether these actions can also be classified as

community caretaking activities.” Davis, 497 NW2d at 921 (emphasis added). The

Virginia Court of Appeals, after recognizing the differences between the community

caretaker exception and the emergency doctrine, similarly declared that “any

distinction between the two exceptions has been effectively eradicated in the

Commonwealth.” Kyer, 601 SE2d at 12.

[¶40.] The Eighth Circuit case of Quezada provides a useful study. There,

while serving papers and finding that no one answered the door, a deputy knocked

on the door and though it was closed the latch was not engaged and the door swung

open slightly. Through the gap in the door he saw lights on and heard a TV

playing. He concluded that someone might be inside and that he or she was unable

to respond. Once inside, the deputy found evidence of a crime. The court noted the

“difference between the standards that apply when an officer makes a warrantless

entry when acting as a so-called community caretaker and when he or she makes a

warrantless entry to investigate a crime.” 448 F3d at 1007. An officer acting “in

ways totally divorced from the detection, investigation, or acquisition of evidence

relating to the violation of criminal law . . . may enter a residence without a

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warrant [upon] a reasonable belief that an emergency exists requiring his or her

attention.” Id. (citations omitted). It is noteworthy, however, that the court

concluded that the deputy entered the apartment “to investigate a possible

emergency situation.” 448 F3d at 1008 (emphasis added).

[¶41.] From our review of the caselaw and scholarship on the community

caretaker exception, we conclude that the constitutional difference between homes

and automobiles counsels a cautious approach when the exception is invoked to

justify law enforcement intrusion into a home. 12 Merely invoking a community

caretaking purpose should not legitimize a search in a criminal investigation.

Nonetheless, homes cannot be arbitrarily isolated from the community caretaking

equation. The need to protect and preserve life or avoid serious injury cannot be

limited to automobiles. And, indeed, as indicated above, in the totality of

circumstances several courts have so held. See, e.g., Quezada, 448 F3d at 1007.

Taking the best insights from the diverse authorities dealing with this exception,

several points bear consideration: the purpose of community caretaking must be

the objectively reasonable independent and substantial justification for the

intrusion; the police action must be apart from the detection, investigation, or

acquisition of criminal evidence; and the officer should be able to articulate specific

facts that, taken with rational inferences, reasonably warrant the intrusion.

Another point gleaned from the caselaw is that the community caretaking function

12. See Wayne R. LaFave, A Treatise on the Fourth Amendment, 3 Search &

Seizure § 6.6 (4thed 2008); Debra Livingston, Police, Community Caretaking,

and The Fourth Amendment, 1998 UChiLegalF 261; Matthew Bell, Fourth

(continued . . .)

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is more akin to a health and safety check. This is an important distinction because

the emergency doctrine and the emergency aid doctrine implicate, as their titles

denote, actual emergencies.

d. Application of Exceptions

[¶42.] Applying the three exceptions dealing with aiding persons in need of

assistance to this case, we must decide whether the State met its burden of

establishing, by a preponderance of the evidence, that the warrantless entry

satisfied the emergency doctrine, the emergency aid doctrine, or the community

caretaker doctrine. Concededly, this is a close question. On the one hand, there

were few facts to lead the officers to believe that someone was inside defendant’s

home — no shouts from inside, no claims from neighbors that children, family, or

roommates might be inside, and no observations of the officers of someone inside. If

the warrant requirement is to retain its viability, a merely officious concern that

someone might conceivably need assistance to avert some undefined peril should

not justify police intrusion into a private dwelling. On the other hand, there are

times when lives may be in jeopardy if officers hesitate to act in potentially

hazardous situations, and the key question here is whether there were sufficient

reasons to act. Or, as one court alternatively phrased it, the question is whether

“the officers would have been derelict in their duty had they acted otherwise.” See

__________________

(. . . continued)

Amendment Reasonableness: Why Courts Should Embrace the Community

Caretaking Exception to the Warrant Requirement, 10 BoaltJCrimL 3 (2005).

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State v. Hetzko, 283 So2d 49, 52 (FlaCtApp 1973). And “[i]t must be emphasized

that the fact that, as it turned out, no one was injured is of no moment.” State v.

Hedley, 593 A2d 576, 582 (DelSuperCt 1990).

[¶43.] We find helpful the decision in United States v. Cervantes, 219 F3d 882

(9thCir 2000), overruled on other grounds by the United States Supreme Court’s

decision in Brigham City, 547 US 398, 126 SCt 1943, 164 LEd2d 650. There, a

police officer was called to an apartment building to investigate a complaint by

neighbors of a strong chemical odor. On arrival, the officer recognized the odor as

coming from a chemical which, the officer knew, was sometimes used in the making

of methamphetamine. Determining that the odor originated from a certain

apartment, the officer looked through the window and saw three men inside a room

with very little furniture. Knowing the risk of explosion, the officer pounded on the

door and eventually caused the defendant to open the apartment door, at which

point the chemical odor became much stronger. The officer entered the apartment

and the three men fled. After the defendant was apprehended, the officer notified

the apartment manager and assisted him in evacuating the other residents and

turning off open flames. Then he entered the apartment and found a drug lab.

Cervantes, 219 F3d at 890-91.

[¶44.] The Ninth Circuit in Cervantes held that the search could be justified

under the emergency doctrine, by which police are permitted to respond to

emergencies as part of their community caretaking functions. Id. at 889. The

analysis used in Cervantes, was later modified per Brigham City, to generate a two-

prong test that asks whether (1) considering the totality of the circumstances, law

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enforcement officers had an objectively reasonable basis for concluding that there

was an immediate need to protect others or themselves from serious harm; and (2)

the scope and manner of the search were reasonable to meet the need. Id. at 889.

See United States v. Snipe, 515 F3d 947, 953 (9thCir 2008).

[¶45.] Although we cannot definitively proclaim that the situation here

matched the type of emergency in Cervantes — and for that reason the emergency

doctrine and the emergency aid doctrine should not apply here — the odor of a

noxious gas nonetheless merits further inquiry if police are to fulfill their roles as

community caretakers. That leads us to another instructive opinion. In Ray, a

plurality of the California Supreme Court ruled that the Fourth Amendment does

not require a warrant or exigency to allow the admission of evidence discovered by

police officers engaged in a community caretaking function. 981 P2d at 935. In that

case, officers received a call reporting that the door at a certain address had been

open all day and that the place was in shambles. They went to the residence and

repeatedly knocked and announced their presence. No one answered. Concerned

that someone inside might be injured, disabled, or unable to obtain help, the police

entered the residence, conducted a seven-to eight-minute security check in which no

interior doors or containers were opened, and observed in plain view drugs and

money. Based on these observations they obtained a search warrant and seized

evidence that led to defendant’s prosecution for possessing controlled substances.

Defendant, who owned the residence, moved to suppress.

[¶46.] In examining the exceptions to the warrant requirement, the plurality

in Ray ruled that because there were no facts to lead a reasonable officer to believe

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that immediate entry was necessary to aid life or limb, the entry was not justified

under the emergency aid doctrine. Id. at 934. Nonetheless, the entry was

permissible under the community caretaker exception, as the officers were

justifiably concerned that an injured person was inside the residence, rendering

lawful the sighting of contraband in plain view. Id. at 938-39. Under the

community caretaker exception, “circumstances short of a perceived emergency may

justify a warrantless entry” to preserve life or protect property. Id. at 934. The

appropriate standard is one of reasonableness: “Given the known facts, would a

prudent and reasonable officer have perceived a need to act in the proper discharge

of his or her community caretaking functions?” Id. at 937. The Ray court balanced

the considerations regarding an officer’s investigatory and non-investigatory

capacities: in responding to a possible burglary, the function was, of course,

“investigatory.” With respect to the presumably innocent victims of possible crimes,

where persons or property may be in danger, the police intervention was “non-

investigatory.” Id. at 937 n4.

[¶47.] Here, the circuit court found that the officers’ initial entry into

defendant’s home was justified, not as part of a criminal investigation, but in

pursuance of their community caretaking function. 13 The court’s findings of fact

13. In its findings the court noted:

It is true that Officer Zimbelman had some limited information

that suggested the [D]efendant’s involvement in drug activity,

based upon the neighbor’s report of an arrest for buying Sudafed

at the Kmart. However, the court is satisfied, based upon all of

the evidence presented, and based upon the credibility of the

officers, beyond a reasonable doubt, that the overwhelming

purpose of the officers in entering the house was to search for

(continued . . .)

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are supported by the record. Neighbors had complained about strange gas odors on

the block. The gas company had been called twice, and a company employee went

to the area looking for a gas leak. The employee detected the presence of a

“stronger” chemical odor in the vicinity of defendant’s home. The police were

summoned when it was discovered that the gas meter had been illegally switched at

the defendant’s house. The company employee told the officers of his discovery and

of seeing two people leave the house. Both officers also smelled chemical fumes,

which they identified as ammonia. One officer knocked on the front door of the

house, but received no answer. In the meantime, the other officer walked around

defendant’s home and noticed a freezer with tubing extended from it. This

appeared odd to the officer, so he opened the freezer, whereupon he saw another

container inside. He also discovered that the back door was unlocked. Finding

nothing else remarkable, he joined his fellow officer at the front of the house. A

neighbor arrived at the scene and told one officer that defendant had been caught at

Kmart buying Sudafed and was also seen bringing a propane tank into the house.

The neighbor said that there had been strange gas odors in the neighborhood and

the gas company had been called before.

[¶48.] Shortly after gathering all this information, the officers knocked on

defendant’s front door again. They testified that when they were standing in front

__________________

(. . . continued)

possible victims of the fumes. These two police officers are

experienced police officers, yet inexperienced with

methamphetamine labs and their contents.

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of the house they could smell the odor of ammonia. 14 They decided “to check to

make sure nobody was incapacitated inside.” The gas company employee did not

know if there was anyone still in the home. Based on the officers’ detection of

ammonia, a gas the officers knew from their personal experience was toxic, the

citizen complaints about strange gas fumes in the area, the fact that the house was

“wide open [and] unsecured,” with the back door left unlocked and the front door left

open, and only the storm door shut but unlocked, the officers decided to enter

defendant’s home.

[¶49.] These circumstances presented a crucial moment of judgment for the

officers. Should they act to ensure no lives are in danger? As many courts have

acknowledged, “police officers are not only permitted, but expected, to exercise what

the Supreme Court has termed ‘community caretaking functions.’” Winters v.

Adams, 254 F3d 758, 763 (8thCir 2001) (quoting United States v. King, 990 F2d

1552, 1560 (10thCir 1993)). Professor LaFave observed, “[d]oubtless there are an

infinite variety of situations in which entry for the purpose of rendering aid is

reasonable.” 3 Wayne R. LaFave, A Treatise on the Fourth Amendment, 3 Search &

Seizure § 6.6, p. 396-400 (3ded 1996). Modern society has come to see the role of

police officers as more than basic functionaries enforcing the law. From first

responders to the sick and injured, to interveners in domestic disputes, and myriad

14. Officer Openhowski testified that Officer Zimbelman “said there was a strong

odor.” However, Officer Zimbelman specifically testified at the suppression

hearing that “when [he] came around the front and got towards the main

door, the front door, [he] could smell a faint odor of ammonia or what

appeared to be ammonia to [him].” (Emphasis added.) When he opened the

(continued . . .)

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instances too numerous to list, police officers fulfill a vital role where no other

government official can. Lives often depend upon their quick exercise of pragmatic

wisdom. “Constitutional guarantees of privacy and sanctions against their

transgression do not exist in a vacuum but must yield to paramount concerns for

human life and the legitimate need of society to protect and preserve life.” Mitchell,

347 NE2d at 611.

[¶50.] Indeed, these officers may have been justly criticized later had they

failed to check for people inside and had an injured or dead person later been

discovered. As Justice (then Judge) Warren Burger once wrote, “People could well

die in emergencies if police tried to act with the calm deliberation associated with

the judicial process.” Wayne v. United States, 318 F2d 205, 212 (DCCir 1963).

Although we cannot term the circumstances here an indisputable emergency, given

the known facts, prudent and reasonable police officers would have reasonably

perceived a need to act in the proper discharge of their community caretaking

functions. “The touchstone of [] analysis under the Fourth Amendment is always

‘the reasonableness in all the circumstances of the particular governmental invasion

of a citizen’s personal security.’” Terry, 392 US at 19, 88 SCt at 1878-79, 20 LEd2d

889; Florida v. Jimeno, 500 US 248, 250, 111 SCt 1801, 1803, 114 LEd2d 297 (1991).

We think it was objectively reasonable under the particular circumstances of this

case for the officers to be concerned about the possible dangers of ammonia fumes

__________________

(. . . continued)

door to yell inside, he testified that “the odor we had smelled outside that was

faint became very strong at that point.”

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sufficient to permit them to enter the residence solely “to check to make sure nobody

was incapacitated inside.”

[¶51.] It is noteworthy, though not necessarily persuasive, that police entries

into residences for non-investigatory purposes have been upheld in arguably less

serious circumstances. Under the community caretaker exception, courts have

upheld police entry into apartments without a warrant after receiving complaints

that water was leaking into the apartments below. See United States v. Boyd, 407

FSupp 693, 694 (SDNY 1976); State v. Dube, 655 A2d 338, 339 (Me 1995). In

Rohrig, police responded to early morning complaints about excessive noise at the

defendant’s home. 98 F3d at 1519. As the police approached, they could hear loud

music from a block away. After arriving at the house, the officers banged on the

front door and tapped on the windows to no avail. Unable to rouse anyone inside

after repeated pounding on doors and shouting to get someone’s attention, two

officers opened an unlocked screen door and went in. They found the stereo and

turned down the volume. In the same room, they found Rohrig asleep. While in the

home the officers also came upon “wall-to-wall” marijuana plants.

[¶52.] Although characterizing the facts as fitting within the exigent

circumstances exception, the Sixth Circuit reasoned that “[h]aving found that an

important ‘community caretaking’ interest [abating a nuisance] motivated the

officers’ entry in this case," it concluded “that their failure to obtain a warrant does

not render that entry unlawful.” Id. at 1523. The court noted that the officers were

not acting predominantly to enforce the law. Rather, they were acting for the

purpose of abating a nuisance and restoring the neighbors’ “peaceful enjoyment of

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their homes and neighborhood.” Id. at 1521. Using a reasonableness standard, the

court determined that the Fourth Amendment’s concerns in a criminal context are

not implicated when police officers act to perform their community caretaking

functions. 15

[¶53.] Rohrig himself, the court ruled, compromised his expectation of privacy

by “projecting loud noises into the neighborhood in the wee hours of the morning”

and then failing to respond to the officers. Id. at 1521-22. The officers in Rohrig

faced a common community caretaking function: resolving a neighborhood

dispute. 16 In our case, there had been complaints of strange gas odors in the

15. Contrary to the dissent’s assertion that Rohrig is applicable only to a

nuisance abatement, Rohrig stands for the proposition that inquiry of

whether a warrantless entry is reasonable is fact specific. Here, too, our

holding is limited to its facts. The reasonableness of any intrusion depends

on an examination of the totality of the circumstances. Rohrig involved a

nuisance, but the rationale supporting officers’ actions in a community

caretaking capacity is not limited only to nuisance abatement. As the Rohrig

court wrote:

We do not lightly abrogate the constitutional presumption that police

officers must secure a warrant before entering a private residence. In

the end, however, we would find it extremely difficult to adjudge the

conduct of the Canton police officers as “unreasonable” without

pointing to something those officers should have done differently.

Quite simply, we find nothing in the Fourth Amendment that leads us

to disapprove of the officers’ chosen course of action. Accordingly, we

find that the officers acted reasonably under the totality of the

circumstances they faced, and we therefore hold that their warrantless

entry into Defendant’s home did not violate the Fourth Amendment.

Id. at 1524-25.

16. The dissent claims that Rohrig was limited by United States v. Washington,

573 F3d 279, 287-88 (6thCir 2009). While the court in Washington

distinguished Rohrig, it did so because in Washington there was no threat of

harm, creating a “true immediacy.” See id. Here, however, the threat of

(continued . . .)

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neighborhood. When the gas company responded, it was determined that the gas

meter at defendant’s home had been tampered with. Although the officers arrived

initially in response to a possible theft, as the circuit court later found, the matter

evolved into a legitimate community caretaking function that predominated over

any criminal investigation: concern that someone inside the home may be in

jeopardy from ammonia fumes. The probable source of the fumes was defendant’s

house, where both the officers and the gas company employee smelled ammonia

fumes.

[¶54.] In pursuing their community caretaking purpose, the officers’ initial

intrusion was minimal. They cracked open the unlocked storm door to call inside,

only then to discover that the smell of ammonia fumes became much stronger, thus

warranting further inquiry. In the totality of circumstances, under the standard of

objective reasonableness, we conclude that the circuit court did not err in ruling

that the responding officers acted justifiably for the welfare of possible persons

inside the residence. The officers adequately articulated their concerns, and their

search in the house, lasting a matter of minutes, was limited to looking for people

inside. 17 Therefore, under these particular facts, we conclude that the circuit

__________________

(. . . continued)

harm was obvious — ammonia fumes are deadly and it was unknown

whether persons were inside who may have succumbed to the fumes.

17. The Rohrig court made another observation that might well apply to our

case:

Even if we were to conclude that the officers’ warrantless entry

violated the Fourth Amendment, it could be argued that the

suppression of evidence would not be warranted under the facts of this

(continued . . .)

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court’s ruling should stand: the community caretaker exception applies to the

warrantless entry into this home. 18

II.

Search Warrant

[¶55.] The affidavit in support of the warrant was prepared by Detective

Walsh. Detective Walsh did not enter defendant’s home and did not see the

evidence listed in the warrant. Rather, he was informed of the circumstances by

Sgt. Mundt, who was not on the scene until after Officers Zimbelman and

Openhowski exited the home. Sgt. Mundt relayed to Detective Walsh the

information Officers Zimbelman and Openhowski gave him. Sgt. Mundt further

__________________

(. . . continued)

case. Having determined that the officers acted reasonably, we do not

believe that any legitimate deterrent function would be served by

applying the exclusionary rule here. Cf. United States v. Leon, 468 US

897, 918-19, 104 SCt 3405, 3418, 82 LEd2d 677 (1984) (“[E]ven

assuming that the [exclusionary] rule effectively deters some police

misconduct and provides incentives for the law enforcement profession

as a whole to conduct itself in accord with the Fourth Amendment, it

cannot be expected, and should not be applied, to deter objectively

reasonable law enforcement activity.”).

98 F3d at 1524 n10. See also Herring v. United States, __ US __, 129 SCt

695, 172 LEd2d 496 (2009) (exclusionary rule inapplicable to police mistakes

leading to unlawful search not the result of systemic error or reckless

disregard of constitutional requirements).

18. The flaw in the dissent’s argument is that it fails to recognize the context

under which the officers entered the home. This is evident in the dissent’s

claim that “there was no reason why the officers could not have secured the

home and sought a search warrant.” Of course they could have obtained a

search warrant, but that entirely ignores the reason they entered the home

without a warrant: to ensure that no one was in imminent danger from toxic

fumes. Had there been anyone still inside, securing the home and waiting for

a search warrant may have been too late for the occupants.

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told Detective Walsh of his personal observations: a gas generator in the backyard

and a propane tank in the house with what appeared to be blue discoloration. 19 It

turned out the tank had no blue discoloration.

[¶56.] Defendant argued at the suppression hearing that the blue

discoloration statement was recklessly included in the affidavit and if excluded the

affidavit would not have supported a finding of probable cause. The State averred

that the statement, although incorrect, was not knowingly false or made in reckless

disregard of the truth. The court agreed with the State and concluded that the

statement about the blue discoloration was not deliberately false on the part of

Detective Walsh. The court further found that the blue discoloration statement was

not made on personal knowledge of the affiant, Detective Walsh. Therefore, the

court held that “no suppression should result from this merely negligent

observation, made under more stressful conditions.”

[¶57.] “We review the sufficiency of a search warrant ‘by looking at the

totality of the circumstances to decide if there was at least a “substantial basis” for

the issuing judge’s finding of probable cause.’” State v. Raveydts, 2004 SD 134, ¶7,

691 NW2d 290, 293 (citations omitted). We review the issuing judge’s probable

cause determination “independently of the conclusion reached by the suppression

19. When Sgt. Mundt arrived on the scene, Officer Openhowski showed him the

freezer he found in the backyard. Sgt. Mundt recognized the apparatus as a

gas generator used in the making of methamphetamine. This information

was included in the warrant, but after the suppression hearing the circuit

court struck the statement about the gas generator. The court found that

opening and viewing the freezer in defendant’s backyard, without a warrant,

was illegal. The State does not challenge this ruling.

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hearing court.” Id. (quoting State v. Boll, 2002 SD 114, ¶44, 651 NW2d 710, 721

(Konenkamp, J., concurring)). We also afford great deference to the issuing judge’s

probable cause determination, “‘to further the Fourth Amendment’s strong

preference for searches conducted pursuant to a warrant.’” Id. ¶8 (citations

omitted). “‘[W]e will draw every reasonable inference possible in support of the

issuing court’s determination of probable cause to support the warrant.’” State v.

Helland, 2005 SD 121, ¶17, 707 NW2d 262, 269 (citation omitted).

[¶58.] Normally, we only examine the four corners of an affidavit to review

whether an affidavit in support of a search warrant shows probable cause for

issuance of the warrant. Id. ¶17 (citations omitted). But when an affidavit is

claimed to contain recklessly or intentionally false information, the affidavit is

reviewed under the two-part test of Franks v. Delaware, 438 US 154, 98 SCt 2674,

57 LEd2d 667 (1978). State v. Dubois, 2008 SD 15, ¶13, 746 NW2d 197, 203. That

test requires the defendant to “show by a preponderance of the evidence that a false

statement knowingly and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit. Second, the allegedly false

statement must be necessary to the finding of probable cause.” State v. Brings

Plenty, 459 NW2d 390, 401 (SD 1990) (citation omitted).

[¶59.] Here, defendant has failed to establish that Sgt. Mundt’s statement to

Detective Walsh, which in turn Detective Walsh included in the affidavit, was made

knowingly and falsely, or with reckless disregard for the truth. Sgt. Mundt testified

that he walked around the exterior of the home with Officer Openhowski, at which

time he peered through the window of the home and Officer Openhowski either

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showed him the blue discoloration on the tank or Sgt. Mundt personally observed

the blue discoloration. While there was no blue discoloration, Sgt. Mundt’s

testimony reveals a mere negligent or mistaken statement of that fact to Detective

Walsh. 20 Therefore, we do not believe the court erred when it failed to excise the

blue discoloration statement from the affidavit. In any event, the affidavit still

supported a finding of probable cause, even without the blue discoloration

statement.

III.

Manufacturing Conviction

[¶60.] Defendant was found guilty of manufacturing, distribution or

dispensing of certain controlled substances as well as possession with the intent to

manufacture or dispense in violation of SDCL 22-42-2. Defendant now claims that

because not all the necessary components for the manufacture of methamphetamine

20. We find particularly problematic the court’s reliance on Rugendorf v. United

States, 376 US 528, 532, 84 SCt 825, 828, 11 LEd2d 887 (1964). In

Rugendorf, the United States Supreme Court declined to find a Fourth

Amendment violation when misstatements in an affidavit were of only

peripheral relevancy and not within personal knowledge of the affiant. Id.

Here, the court found compelling the fact that the blue discoloration was not

within the personal knowledge of Detective Walsh. The State also

emphasized that there was no deliberate falsehood on the part of Detective

Walsh. We agree that the misstatement was not within Detective Walsh’s

personal knowledge; it came from Sgt. Mundt, who either obtained it

personally or from one of the other officers. Nonetheless, Sgt. Mundt is not a

nongovernmental informant. Detective Walsh must be imputed with personal

knowledge of the facts obtained from Sgt. Mundt. Otherwise, the integrity of

every affidavit could be shielded whenever an officer, without personal

knowledge, obtains false information from an officer with personal

knowledge. Rugendorf is inapplicable to this case, on the ground that the

blue discoloration was more than peripherally relevant and was within

personal knowledge of the affiant, by imputation from Sgt. Mundt and

Officers Openhowski and Zimbelman.

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were found or presented at trial, a conviction for manufacturing cannot be

sustained. The State, on the other hand, argues that not every component of the

manufacturing process needs to exist when the presence of multiple precursors and

actual methamphetamine support the conviction.

[¶61.] We review a sufficiency of the evidence claim de novo. State v. Tofani,

2006 SD 63, ¶35, 719 NW2d 391, 400 (citation omitted). We will not reverse “the

guilt determination of the trier of fact if we conclude that ‘the State presented

sufficient evidence on which the [court] could reasonably find the defendant guilty

of the crime charged.’” Id. (citation omitted). Defendant was convicted after a trial

to the court. The court issued findings of fact to support its guilt determination. In

finding the defendant guilty under SDCL 22-42-2, the court listed the multiple

items from defendant’s residence that were seized and tested. The court further

found Sgt. Mundt and the other officers credible. Sgt. Mundt testified that the

items seized from defendant’s home were used in the process of manufacturing

methamphetamine. Moreover, although ammonia was not found, the court found

credible the statements from Officers Openhowski and Zimbelman that they

detected an odor of ammonia at the house and Sgt. Mundt’s explanation that

ammonia dissipates at a rapid rate. The court held that “it is clear that

methamphetamine was manufactured by the defendant on or about the 25th day of

April 2007 at 508 East 31st Street[.]” Defendant also admitted to manufacturing

methamphetamine at his residence because he was addicted to it.

[¶62.] SDCL 22-42-1(6) defines “Manufacture,” as “the production,

preparation, propagation, compounding, or processing of a controlled drug or

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substance, either directly or indirectly by extraction from substances of natural

origin, or independently by means of chemical synthesis or by a combination of

extraction and chemical synthesis.” Based on defendant’s confession that he

manufactured methamphetamine, the presence of methamphetamine and multiple

components of the manufacturing process, we believe the State presented sufficient

evidence to support the court’s finding of guilt under SDCL 22-42-2. 21 See Smith v.

State, 3 SW3d 712, 715 (ArkCtApp 1999); State v. Brown, 820 P2d 878, 884

(OrCtApp 1991); contra State v. Avery, 2000 WL 1027287 n2 (IowaCtApp)

(unpublished) (necessary ingredients missing, items possessed were legal, no

finished product found, no evidence defendant knew how or had ever

manufactured). We recognize that two components necessary to the manufacturing

process were not entered into evidence: a gas generator and ammonia. The fact

that these two components were missing, however, will not negate a finding of guilt.

Rather, their absence is a circumstance to be considered and weighed with all the

other evidence.

IV.

Double Jeopardy Prohibition

[¶63.] Defendant was convicted of two violations of manufacturing a

controlled substance, “[i]n, on, or within one thousand feet of real property

comprising a public or private elementary or secondary school or a playground[.]”

21. Defendant also claims that because there is no evidence linking him to

manufacturing at a particular time, a conviction for manufacturing on or

about April 25, 2007 cannot be sustained. Time is not a material element of

the manufacturing charge, and therefore, the fact the crime may have been

(continued . . .)

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SDCL 22-42-19(1); SDCL 22-42-2. Defendant was convicted twice because within

1000 feet of his residence were two schools and the State indicted defendant for two

separate charges under SDCL 22-42-19(1). During closing arguments, defendant’s

counsel said that he did not believe that defendant could be convicted of both

charges. Nonetheless, defendant was found guilty on both counts. During

sentencing, however, counsel for the State and defendant discussed the two

convictions. The prosecutor said that the State was not asking for consecutive time,

and the court sentenced defendant concurrently on those charges.

[¶64.] Defendant argues that he was punished twice for the same offense in

violation of the double jeopardy clause. He contends that the Legislature did not

intend to impose multiple punishments under the statute. According to defendant,

because the evidence established one act of manufacturing at one location on a

single date, he cannot suffer two convictions and two sentences arising from this

one act of manufacturing. The State, on the other hand, asserts that the intent of

the statute was to impose multiple punishments, as the statute is designed to

protect youth from illegal drug use. Moreover, according to the State, defendant’s

multiple convictions under SDCL 22-42-19(1) required proof of some fact or element

not required by the other: one school in one charge, and a different school in the

second charge.

__________________

(. . . continued)

committed on a different date is not fatal to the charge. See SDCL 23A-6-9;

State v. Swan, 2008 SD 58, ¶12, 753 NW2d 418, 421.

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[¶65.] The Double Jeopardy Clause in the United States Constitution, Fifth

Amendment, and the corresponding clause in the South Dakota Constitution, art

VI, sec. 9, “shield criminal defendants from both multiple prosecutions and multiple

punishments for the same criminal offense if the Legislature did not intend to

authorize multiple punishments in the same prosecution.” State v. Dillon, 2001 SD

97, ¶13, 632 NW2d 37, 43. “Established double jeopardy jurisprudence confirms

that the Legislature may impose multiple punishments for the same conduct

without violating the Double Jeopardy Clause if it clearly expresses its intent to do

so.” Id. ¶14. To assist in determining statutory intent, we apply the Blockburger

test, which asks “whether each provision requires proof of an additional fact which

the other does not.” Id. (citing Blockburger v. United States, 284 US 299, 304, 52

SCt 180, 182, 76 LEd 306 (1932)).

[¶66.] A person violates SDCL 22-42-19(1) if that person “commits a violation

of § 22-42-2 . . . [and] if such activity has taken place: (1) In, on, or within one

thousand feet of real property comprising a public or private elementary or

secondary school or a playground[.]” The statute, therefore, requires the State to

prove a violation of a certain drug offense and that such violation took place within

a certain distance of a school. The statute does not declare an intent to impose

multiple punishments when multiple schools are involved, but only multiple

punishments when multiple qualifying crimes are involved. Based on the plain

reading of the statute, we conclude that the Legislature intended to impose one

punishment for each violation under SDCL 22-42-2 that occurred within 1000 feet

of a school.

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[¶67.] Here, defendant was only convicted of one violation of SDCL 22-42-2,

and therefore, could only be convicted of one violation of SDCL 22-42-19(1). It is

immaterial that the court sentenced defendant to concurrent sentences for violating

SDCL 22-42-19(1). Defendant suffered two convictions under SDCL 22-42-19(1) for

the same conduct, a single act of manufacturing a controlled substance, in violation

of the double jeopardy clause. We remand for entry of an order striking one of the

convictions and its accompanying sentence.

V.

Maintaining and Possession Convictions

[¶68.] Defendant claims that the evidence was insufficient to sustain his

conviction for maintaining “a place which was resorted to by persons using

controlled substances for the purpose of using such substances, or which is used for

the keeping and selling of such substances” in violation of SDCL 22-42-10 and that

on or about April 25, 2007, he did knowingly possess a controlled substance in

violation of SDCL 22-42-5. In regard to the possession charge, defendant maintains

that because he was not in the residence when the methamphetamine was found,

the State could not prove that he had dominion or control over the

methamphetamine sufficient for possession. The State responds that because it

proved that the utilities at the residence were in defendant’s name, defendant lived

at the residence alone, and the methamphetamine found inside the residence was

subject to the dominion or control of defendant, the evidence was sufficient to prove

the methamphetamine found was possessed by defendant.

[¶69.] A conviction under SDCL 22-42-5 requires proof that the defendant

knowingly possessed a controlled substance. Here, defendant does not claim that he

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did not know methamphetamine was in his home. In fact, he confessed that he

manufactured methamphetamine for his and his friends’ use. The fact that the

methamphetamine was not on defendant’s person when found by the police does not

negate a finding of possession. See State v. Goodroad, 442 NW2d 246, 251 (SD

1989) (control over the premises where narcotics are found is sufficient); see also

State v. Barry, 2004 SD 67, ¶9, 681 NW2d 89, 92-93. The methamphetamine was in

defendant’s home, a home he confessed he used to manufacture methamphetamine,

and a home for which defendant exercises all dominion and control. There is

sufficient evidence to sustain the conviction.

[¶70.] There is also sufficient evidence to sustain defendant’s conviction

under SDCL 22-42-10, maintaining a place where drugs are used or stored.

Defendant argues that the evidence is insufficient because the State did not prove

that there were any sales of methamphetamine from defendant’s residence and

when, if ever, others may have used methamphetamine at the residence. The State,

however, contends that the totality of the evidence shows that methamphetamine

was used, stored, and sold in the home on an ongoing basis.

[¶71.] We recognize that a conviction under SDCL 22-42-10 cannot be

sustained when the possession is a mere isolated, personal use of the controlled

substance. See State v. LaPlante, 2002 SD 95, ¶23, 650 NW2d 305, 311. Here,

however, the totality of the circumstances supports the defendant’s conviction.

During the search of defendant’s home, officers found several wire/metal strainers,

coffee filters, zip-lock bags, a roll of sandwich bags, and numerous spoons that

tested positive for methamphetamine. The officers found a digital scale, on which

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there was a white residue that tested positive for methamphetamine. Also tested

positive for methamphetamine were several snort tubes and pipes, and a white

powder found in defendant’s basement, which tested positive for Ephedrine, an

ingredient for the manufacture of methamphetamine. Finally, the officers found a

small baggie with a white powder that tested positive for methamphetamine. Based

on this evidence and defendant’s confession that he manufactured

methamphetamine for himself and his friends, defendant’s conviction under SDCL

22-42-10 is affirmed.

[¶72.] Affirmed in part, reversed in part, and remanded.

[¶73.] GILBERTSON, Chief Justice and ZINTER, Justice, concur.

[¶74.] MEIERHENRY, Justice and SABERS, Retired Justice, dissent.

MEIERHENRY, Justice (dissenting).

[¶75.] I respectfully dissent on issue one. We should not expand the Fourth

Amendment community caretaker exception to homes for the following reasons:

first, there is a lack of persuasive precedent from state and federal courts; second,

the majority opinion’s proposed standard does not give clear direction to law

enforcement; third, the recognized police community caretaker function as it relates

to automobiles is distinguishable; and, fourth, there is no reason to do so in light of

the emergency and exigent circumstances exceptions already recognized.

Constitutional Protection Against Search of a Home Without a Warrant

[¶76.] The Fourth Amendment to the United States Constitution and Article

VI, § 11 of the South Dakota Constitution provide:

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The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrant(s) shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons

or things to be seized.

In Hess, Justice Konenkamp reiterated that, except for “specifically limited

exceptions, every law enforcement entry into a home for the purpose of search and

seizure must be made with a warrant.” 2004 SD 60, ¶22, 680 NW2d at 324-25. The

warrant requirement was explained as follows:

We earlier noted that the Fourth Amendment guarantees the

right to be free from unreasonable searches and seizures. As the

United States Supreme Court explained, ‘physical entry of the

home is the chief evil against which the wording of the Fourth

Amendment is directed[.]’ Accordingly, it is well established

that ‘searches and seizures inside a home without a warrant are

presumptively unreasonable.’ Generally, this means that, with

some specifically delineated exceptions, every law enforcement

entry into a home for the purpose of search and seizure must be

made with a warrant.

The State has the burden of proving that a specific search falls

into a delineated and limited exception. Legal analysis is

limited to ‘the facts perceived by the police at the time of the

entry, not as subsequently uncovered.’

Id. ¶¶22-23 (internal citations omitted).

[¶77.] The emergency and exigent circumstances exceptions are two of the

“delineated and limited exceptions” permitting warrantless entry into a home. Id.

¶24. The United States Supreme Court and this Court have recognized and applied

the emergency and exigent circumstances exceptions. Mincey, 437 US at 392, 98

SCt at 2413; Hess, 2004 SD 60, ¶24, 680 NW2d at 325 (citing Payton, 445 US at

590, 100 SCt at 1382; Warden v. Hayden, 387 US 294, 87 SCt 1642, 18 LE2d 782

(1967); Heumiller, 317 NW2d at 129 (citations omitted)).

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Most Courts Do Not Apply the Community Caretaker Exception to Homes

[¶78.] Initially, it is important to note that the United States Supreme Court

has only applied the community caretaker exception to warrantless automobile

searches. Cady, 413 US 433, 93 SCt 2523. The Court has not recognized or applied

the community caretaker exception to a warrantless search of a home. In fact, most

jurisdictions have not expanded the community caretaker exception to a

warrantless search of the home. See McGough, 412 F3d at 1238 (“Were we to apply

the community caretaking exception . . . in this case, we would undermine the

[Fourth] Amendment’s most fundamental premise: searches inside the home,

without a warrant, are presumptively unreasonable.”); United States v. Erickson,

991 F2d 529 (9thCir 1993) (rejecting the application of the community caretaker

exception to the warrantless entry into a home); Pichany, 687 F2d 204 (stating the

court would not permit the extension of the community caretaker function to permit

the warrantless search of a warehouse); Gill, 755 NW2d 454 (“We now hold that a

law enforcement officer’s entry into a dwelling place cannot be justified alone on the

basis that the officer is acting in a community caretaking capacity.”).

[¶79.] The majority cites to several cases that have applied the exception to

entry into a home. The main case relied upon in the majority opinion, Rohrig, was

intentionally limited to its own facts and later distinguished by the Sixth Circuit as

standing for the proposition that the community caretaker function was applicable

as a nuisance abatement measure. 98 F3d at 1524 n11. In Rohrig, the Sixth

Circuit stated that it wished “to emphasize the fact-specific nature of [its] holding.”

Id. (cited by the majority to support the proposition that the community caretaker

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exception applies to entry into a home, see supra ¶36 n8). It is also important to

recognize that Rohrig was recently qualified by the Sixth Circuit in Washington,

573 F3d at 287-88. The court in Washington distinguished Rohrig on the basis that

the police acted in Rohrig to stop the extremely loud music to prevent further harm

to the community. The court went on to add the requirement that “true immediacy

that absolves an officer from the need to apply for a warrant” is the crucial question

in cases involving exceptions to the Fourth Amendment’s warrant requirement.

True immediacy was a factor that was not present in the case now before this Court

as the officers had the time and opportunity to apply for a warrant before entering

the apparently empty home.

[¶80.] The majority also cites several cases to support the proposition that

“[m]any courts have extended the community caretaker exception to the entry of a

home.” Supra ¶36 n8. However, a closer reading of these cases illustrates that no

case stands for this proposition as broadly as it is being advanced in the majority

opinion. In sum, all of the cited cases are distinguishable or actually stand for a

different proposition. See Nord, 586 F2d at 1289 (stating the facts of the case had

certain “emergency features” unlike those found in the case before this Court); York,

895 F2d at 1029-30 (holding that no search had taken place when police entered

defendant’s home, at the request of defendant’s guests, to assist in removing guest’s

daughter and belongings from home because defendant was intoxicated, belligerent,

and had threatened them); Rohrig, 98 F3d 1506 (holding under the specific facts

presented that the community caretaker exception was applicable as a nuisance

abatement measure); Ray, 981 P2d at 937 (involving an apartment with an open

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door with the “ransacked” interior in plain view); Hoth, 718 A2d 28 (applying the

emergency exception to the warrant requirement); Williams, 962 A2d at 219

(involving the stop of a pedestrian on a traffic median); Crawford, 659 NW2d 537

(holding that stop of defendant’s vehicle was reasonable under the community

caretaker exception); Blair, 62 P3d 661 (reversing defendant’s conviction and

holding that emergency doctrine did not apply to facts of case); Alexander, 721 A2d

at 277 (imposing a reasonableness standard, not advancing the community

caretaker exception specifically); Davis, 497 NW2d at 920 (“[A]lthough

administering emergency aid is referred to as one of the community caretaking

functions of the police, this should not have any effect on the law governing the

emergency aid exception.” The court went on to reverse the conviction on the

grounds that report of shots being fired at motel did not give officers reasonable

belief that someone could potentially be in need of immediate aid, which precluded

officers from entering motel room under emergency aid exception.); Lemieux, 726

NW2d at 787 (“[C]oncluding that the warrantless entry was justified under the

emergency-aid exception to the warrant requirement.”); Garbin, 739 A2d at 1018-19

(involving an intoxicated person operating his vehicle in his garage who opened his

garage door at the request of the police who then “observed the tires of defendant’s

truck spinning, creating smoke, and the front bumper pushing against the rear of

the garage.”); Christenson, 45 P3d 511 (holding that police entry into defendant’s

home without a warrant was not justified under community caretaker statute or the

emergency aid doctrine exception); Laney, 76 SW3d 524 (involving a welfare check

of a child who was known to be in the home of a man twice arrested for indecency

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with a child); Ziedonis, 707 NW2d at 570 (applying a three-part test with a four-

part subtest distinguishable from that advanced in the majority opinion in

evaluating the community caretaker exception to a factual scenario involving a one

and one-half hour vicious dog “emergency”). Instead, these cases together stand for

the proposition that the community caretaking function of police is an aspect of the

emergency exception and emergency aid exception. The community caretaker

exception, however, is an independent and broader exception to the Fourth

Amendment and has not been expansively recognized by any authority outside of

the context of motor vehicles.

Proposed Standard Unclear and Ambiguous

[¶81.] The standard and application of the community caretaker exception

espoused by the majority opinion leaves too much ambiguity and too little direction

for law enforcement. Allowing police to enter a private home based on a mere

possibility that someone inside might be in danger obliterates the Fourth

Amendment guarantee against unreasonable searches and seizures. The majority

states at one point that “the purpose of community caretaking must be the

objectively reasonable independent and substantial justification for the intrusion;

the police action must be apart from the detection, investigation, or acquisition of

criminal evidence; and the officer should be able to articulate specific facts that,

taken with rational inferences, reasonably warrant the intrusion.” Supra ¶41. The

standard advanced and the standard actually applied by the majority, however, are

quite different.

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[¶82.] The accepted standard for the community caretaker exception to the

Fourth Amendment comes from Cady, 413 US 433, 93 SCt 2523 (involving the

search of a vehicle for a gun reasonably believed to be located within). Cady

emphasized the importance of reasonableness in construing Fourth Amendment

protections. Id. at 439, 93 SCt at 2527. The only controlling test provided by the

United States Supreme Court limits this exception to vehicles. Further, this test is

not only limited to the search of vehicles, but it also requires that the police action

involved be “totally divorced from the detection, investigation, or acquisition of

evidence relating to the violation of a criminal statute.” Id. at 441, 93 SCt at 2528.

The standard provided by the majority does not include this language. The majority

requires a lower threshold than the one provided by the United States Supreme

Court for vehicles. The Fourth Amendment’s strong protections against entry into

the home without a warrant should require greater protections and more stringent

standards than those afforded to automobiles.

Distinction Between Vehicle and Home Searches

[¶83.] Constitutionally speaking, the difference between the search of a car

and the search of a home is extremely important. Id. at 439, 93 SCt at 2527. The

United States Supreme Court in Cady outlined some of the reasons for the

constitutional differences in treatment between vehicles and homes by stating:

Because of the extensive regulation of motor vehicles and traffic,

and also because of the frequency with which a vehicle can

become disabled or involved in an accident on public highways,

the extent of police-citizen contact involving automobiles will be

substantially greater than police-citizen contact in a home or

office. Some such contacts will occur because the officer may

believe the operator has violated a criminal statute, but many

more will not be of that nature.

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Id. at 441, 93 SCt at 2528. After broadly laying the analytical framework for the

community caretaker doctrine in the vehicular context, the majority applies that

exception to the search of a house because “homes cannot be arbitrarily isolated

from the community caretaking equation.” Supra ¶41. On the contrary, most

jurisdictions have isolated homes from the community caretaker equation. This

isolation is not arbitrary, but based on the constitutional differences between homes

and automobiles.

[¶84.] Constitutional jurisprudence in the United States has created rules

distinguishing searches of cars and homes. See Rinehart, 2000 SD 135, ¶7, 617

NW2d at 843-44 (permitting the search of a vehicle under the community caretaker

exception) (citing Cady, 413 US 433, 93 SCt 2523); Payton, 445 US at 586, 100 SCt

at 1380 (“[P]hysical entry of the home is the chief evil against which the wording of

the Fourth Amendment is directed[.]”); Katz, 389 US at 357, 88 SCt at 514 (“[E]very

law enforcement entry into a home for the purpose of search and seizure must be

made with a warrant.”). Thus, the analysis from Cady need not be extended to

searches of a home. See supra ¶35.

Emergency and Exigent Circumstances Exceptions

[¶85.] Even without the community caretaker exception, police can respond

and enter a home in emergencies to preserve life or property. Likewise, police can

enter a home without a warrant with probable cause if the police reasonably believe

“that delay in procuring a search warrant would gravely endanger life, risk

destruction of evidence, or greatly enhance the likelihood of a suspect’s escape.”

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Hess, 2004 SD 60, ¶24, 680 NW2d at 325. The majority opinion discusses these two

exceptions at length.

[¶86.] In this case, had the officers had an objectively reasonable basis to

conclude someone was still in the house and was in danger of asphyxiation from the

gas, they may have been justified in entering without a warrant under the

emergency doctrine. For example, had the neighbor who approached the officers

told them he saw five people go into the house but only saw four leave, the officers

may have been justified in entering without a warrant. However, by permitting

officers to enter the home without an objectively reasonable basis to believe

someone was inside and in danger, this Court would be handing the police

unfettered discretion to enter someone’s home. The result could serve to undermine

the thrust of the Fourth Amendment and the notion that “searches and seizures

inside a home without a warrant are presumptively unreasonable.” Id. at 324

(citing Payton, 445 US at 586, 100 SCt at 1380). The majority’s expansion of the

community caretaker exception to the Fourth Amendment, through the standard

adopted, goes too far and disrupts the balance between necessary police action and

the constitutional protections afforded to South Dakotans. We should maintain the

natural balance between these sometimes competing interests that weighs in favor

of obtaining a warrant prior to entering an individual’s home. This is especially so

in this case where there was no objective basis to conclude a “true immediacy that

absolves an officer from the need to apply for a warrant” was present. Washington,

573 F3d at 287-88 (distinguishing Rohrig, 98 F3d at 1524).

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[¶87.] It is also interesting to note that under the facts of this case, there was

no reason why the officers could not have secured the home and sought a search

warrant. Had the officers added up all the clues – swapped gas meter, ammonia

fumes, propane tank, Sudafed purchases, and freezer-hose-bucket contraption – the

officers would have had probable cause for a warrant.

[¶88.] For these reasons, I respectfully dissent.

[¶89.] SABERS, Retired Justice, joins this dissent.

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