Krysta Sutterfield v. City of Milwaukee , 751 F.3d 542 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2272
KRYSTA SUTTERFIELD,
Plaintiff-Appellant,
v.
CITY OF MILWAUKEE, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 11-C-0486 — J. P. Stadtmueller, Judge.
ARGUED OCTOBER 25, 2012 — DECIDED MAY 9, 2014
Before FLAUM, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Krysta Sutterfield sued the City of
Milwaukee and several of its police officers after the officers
forcibly entered her home to effectuate an emergency detention
for purposes of a mental health evaluation, opened a locked
container, and seized for safekeeping the gun and concealed-
carry licenses they found inside. She contends that officers
violated her rights under the Second, Fourth, and Fourteenth
2 No. 12-2272
Amendments in doing so. We conclude that the warrantless
entry into Sutterfield’s home was justified under the exigent
circumstances exception to the Fourth Amendment’s warrant
requirement, as the defendant officers had a reasonable basis
to believe that Sutterfield posed an imminent danger of harm
to herself. We shall assume, as the district court did, that the
search of a closed container for a gun, and the ensuing seizure
of that gun, violated Sutterfield’s Fourth Amendment rights.
But we agree with the district court that even if the officers did
exceed constitutional boundaries, they are protected by
qualified immunity. See Sutterfield v. City of Milwaukee, 870
F. Supp. 2d 633 (E.D. Wis. 2012). We therefore affirm the
district court’s decision to grant summary judgment in favor of
the defendants.
I.
At around noon on March 22, 2011, Dr. Michelle Bentle, a
psychiatrist at Columbia/St. Mary’s Hospital in Milwaukee,
placed a 911 call to report that Sutterfield had just left an
outpatient appointment in her office after expressing suicidal
thoughts.1 Milwaukee police officers Clifton Stephens and
Timothy Powers were tasked to respond to the report. They
contacted Dr. Bentle, who advised them that Sutterfield, after
indicating that she had received some bad news, had re-
marked, “I guess I’ll go home and blow my brains out.” Dr.
Bentle indicated she was concerned for Sutterfield’s safety and
that police intervention was warranted. She also informed the
1
Sutterfield disputes the accuracy of the report, but accepts that this is
what the defendant officers were told.
No. 12-2272 3
officers that Sutterfield had worn an empty gun holster to her
appointment, from which she had surmised that Sutterfield
owned a gun.
Over the next few hours, Stephens and Powers were unable
to locate Sutterfield. They visited her home, knocked on the
front door, but received no response. A neighbor advised them
that Sutterfield had left her home that morning in her car and
had not returned. The officers checked her garage and the
street in front of Sutterfield’s residence but did not see the type
of car that her neighbor had described.
At 2:45 p.m., Dr. Bentle telephoned the officers to advise
them that Sutterfield had called her some minutes earlier
stating that she was not in need of assistance and that the
doctor should “call off” the police search for her. According to
the officers, Dr. Bentle did not indicate that Sutterfield no
longer posed a danger to herself.
With the end of their shift approaching, Stephens and
Powers prepared a Statement of Emergency Detention by Law
Enforcement Officer (“statement of detention”) pursuant to
Wisconsin Statutes section 51.15. In relevant part, section 51.15
provides that a law enforcement officer may take a person into
custody when he has cause to believe that the person is
mentally ill and evidences “[a] substantial probability of
physical harm to himself or herself as manifested by evidence
of recent threats of or attempts at suicide or serious bodily
harm.” § 51.15(1)(a)(1). The statute specifies a set of procedures
that must be followed in effectuating such a detention. In
Milwaukee County, the law enforcement officer must sign a
statement of detention which, inter alia, “shall provide detailed
4 No. 12-2272
specific information concerning the recent overt act, attempt,
or threat to act or omission on which the belief under sub[sec-
tio]n (1) [here, that the person poses a danger to himself] is
based and the names of the persons observing or reporting the
recent overt act, attempt, or threat to act or omission.”
§ 51.15(4)(a). Signing such a statement knowing the informa-
tion contained therein to be false is deemed a felony offense.
§ 51.15(12). Upon presenting the individual—along with the
statement of detention— to an appropriate treatment facility,
the treatment director of that facility (or his designee) must
determine within 24 hours whether the individual should be
detained for a period of up to 72 hours. § 51.15(4)(b). If the
facility determines that the person does not meet the criteria set
forth in section 51.20(1)(a) of the Wisconsin Statutes to detain
an individual for purposes of an in-patient mental health
evaluation (the first step in the involuntary commitment
process),2 the person must be released immediately. Id. If the
facility director decides to detain the individual, the director
may supplement in writing the statement of detention pre-
pared by the law enforcement officer and include other
pertinent information indicating that the individual meets the
criteria for commitment; the director also must designate
whether the individual is, inter alia, mentally ill. Id. The director
must promptly file the original statement, including any
2
In relevant part, section 52.20(1)(a) requires that a petition seeking such
an evaluation allege that the person is mentally ill, drug dependent, or
developmentally disabled, and that there is a substantial probability that he
may harm himself, as evidenced by recent threats of or attempts at suicide
or serious bodily harm.
No. 12-2272 5
supplement, along with a notice of detention, with the local
probate court. Id.
The statement of detention prepared by Stephens and
Powers documented the pertinent information that Dr. Bentle
had shared with them about Sutterfield and noted their
inability to locate her. Both officers signed the statement. At
4:00 p.m., Stephens and Powers went off duty.
Officer Jamie Hewitt of the Sensitive Crimes Division
subsequently was assigned to locate Sutterfield. After spending
several hours reviewing the paperwork, tracking down
information regarding Sutterfield’s automobile and having that
information issued to Milwaukee patrol officers, and checking
with local hospitals to see whether Sutterfield had been
admitted, Hewitt and several other officers returned to Sutter-
field’s residence. Hewitt’s intent was to execute the statement
of detention if and when she located Sutterfield.
Arriving on Sutterfield’s doorstep at approximately 8:30
p.m., Hewitt and the other officers found her at home. Sutter-
field answered Hewitt’s knock at the front door but would not
engage with her, except to state repeatedly that she had “called
off” the police and to keep shutting the door on Hewitt.
Sutterfield would not admit Hewitt to the residence, and
during the exchange kept the outer storm door closed and
locked. Unable to gain admittance to the house, Hewitt
concluded that the police would have to enter it forcibly.
Consistent with police department procedure, Hewitt re-
quested that a supervisory officer be dispatched to the house.
Sergeant Aaron Berken arrived at approximately 9:00 p.m.
After Hewitt brought him up to speed on the situation, Berken
6 No. 12-2272
knocked at the front door and identified himself as a police
officer. As she had with Hewitt, Sutterfield opened the inner
door of the house but not the locked storm door; she refused
to admit Berken or any other officer into the residence.
Sutterfield called 911 in an effort to have the officers leave; as
a result of that call, the ensuing events were recorded by the
emergency call center. Sutterfield can be heard on the record-
ing telling the officers that she was fine and that she did not
want anyone to enter her residence.
After informing Sutterfield of his intention to open the
storm door forcibly if she did not unlock it herself, Berken
yanked the door open and entered the house with the other
officers to take custody of Sutterfield pursuant to the statement
of detention. A brief struggle ensued. Sutterfield can be heard
on the 911 recording demanding both that the officers let go of
her and that they leave her home. (Sutterfield would later say
that the officers tackled her.) Sutterfield was handcuffed and
placed in the officers’ custody.
At that point the officers conducted a protective sweep of
the home. In the kitchen, officer James Floriani observed a
compact disc carrying case in plain view.3 He picked up the
soft-sided case, which was locked, and surmised from the feel
and weight of its contents that there might be a firearm inside.
He then forced the case open and discovered a semi-automatic
3
Sutterfield avers that the case was not actually in plain view but instead
was within an opaque bag. The district court determined that she had not
preserved a dispute of fact on this point in responding to the defendants’
statement of material facts below. 870 F. Supp. 2d at 636 n.1. Sutterfield
concedes the point for purposes of this appeal.
No. 12-2272 7
handgun inside; a yellow smiley-face sticker was affixed to the
barrel of the gun, covering the muzzle. Also inside the case
were concealed-carry firearm licenses from multiple jurisdic-
tions other than Wisconsin. Elsewhere in the kitchen the
officers discovered a BB gun made to realistically resemble a
Glock 29 handgun.
The contents of the case were seized along with the BB gun
and placed into police inventory for safekeeping. Berken
would later state that he authorized the seizure of the handgun
in order to keep them out of the hands of a juvenile, should a
juvenile enter the house unaccompanied by an adult while
Sutterfield remained in the hospital. (The police knew that
Sutterfield had a son, whom they believed to be a juvenile,
although his specific age was unknown.) Floriani would later
testify that he believed it appropriate to take both the handgun
and BB gun into custody so that Sutterfield, when released
from the hospital, would not be able to use the handgun to
commit suicide or the BB gun to provoke a police officer to
shoot her.
Floriani and another officer subsequently transported
Sutterfield to the Milwaukee County Mental Health Complex,
a psychiatric hospital which, among other things, provides
short-term in-patient and crisis management care for persons
in mental distress. What occurred there is not part of the record
and, in any event, is not relevant to the claims made in this
litigation.
Sutterfield filed suit pursuant to 42 U.S.C. § 1983 against the
city and the individual officers involved in the incident,
challenging the warrantless entry into her home, the seizure of
8 No. 12-2272
her person, the search of the case containing the gun, and the
seizure of the gun itself along with the concealed-carry
licenses. She contends that these acts violated her rights under
the Fourth Amendment (as made applicable to the States
through the Fourteenth Amendment), and that the seizure of
the revolver additionally violated her rights under the Second
Amendment.
The district court granted summary judgment to the
officers on these claims in a thoughtful opinion. 870 F. Supp. 2d
633. Believing that Sutterfield was not contesting the seizure of
her person, see id. at 643, the court focused its attention on the
warrantless entry into her home, the search of the locked case,
and the ensuing seizure of Sutterfield’s handgun. Id. at 637.
The court treated the entry into Sutterfield’s home as
presumptively invalid, as the police had no warrant. Id. at 637-
38. It proceeded to consider whether the entry was nonetheless
justified under either the community caretaking or exigent
circumstances exceptions to the Fourth Amendment warrant
requirement.
The court determined that the community caretaker
exception, on which the defendants primarily relied, did not
justify the entry. Id. at 640. The court reasoned that although
the Wisconsin courts had deemed that exception applicable in
a “broad swath of situations,” id., the Seventh Circuit had not
done so. Indeed, in United States v. Pichany, 687 F.2d 204, 208-09
(7th Cir. 1982), we had expressly rejected the government’s
effort to apply the exception beyond the automobile context.
870 F. Supp. 2d at 640.
No. 12-2272 9
The court thought that the exigent circumstances exception
might justify the warrantless entry into Sutterfield’s home,
although it ultimately abstained from a decision on that point.
The court noted at the outset that this exception required the
authorities to make “a fairly strong showing that the surround-
ing circumstances were so severe as to justify a departure from
the warrant requirement.” Id. at 638 (citing United States v.
Patino, 830 F.2d 1413, 1415 (7th Cir. 1987)). In Patino, this court
had cited a 30-minute wait for backup before effectuating a
warrantless entry into a residence as evidence that there was
no exigency, as the waiting officers could have sought a search
and/or arrest warrant during that time period. Id. at 1415-16. In
this case, more than nine hours had transpired after the police
were first notified of the suicide threat before the officers
entered Sutterfield’s home. 870 F. Supp. 2d at 638. On the other
hand, they were also executing a section 51.15 statement
authorizing Sutterfield’s detention for a mental health evalua-
tion, and the court understood that statement to function as a
quasi-arrest warrant. Id. at 639. Even if a statement of detention
cannot fulfill the role of a warrant given the lack of judicial
involvement, the court reasoned, the officers could have
thought that the statement authorized them to take such
actions as were necessary to detain Sutterfield, including
entering her home. Id. Moreover, the officers were acting to
protect life or to forestall serious injury, an interest that the
court recognized can justify police action which would
otherwise be illegal absent an exigency or emergency. Id.
(citing Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S. Ct.
1943, 1947 (2006)). The district court ultimately concluded that
it was unnecessary to decide whether the warrantless entry
10 No. 12-2272
into Sutterfield’s home was constitutionally permissible, given
its subsequent conclusion that the officers were entitled to
qualified immunity on the unlawful entry claim. Id. at 639-40.
Turning to the search of Sutterfield’s home, the court
reasoned that a cursory sweep of the premises, which brought
the compact disc case to the officers’ attention, was legally
permissible notwithstanding the lack of a search warrant. The
court relied on Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093(1990), which authorizes officers making an in-home arrest to
conduct a protective sweep of the premises to determine
whether other persons are present. Here, the officers were
present in Sutterfield’s home as the result of her doctor’s 911
call. Sutterfield had not answered the officers when she was
asked whether anyone else was present in the home. (The
inquiry, and Sutterfield’s lack of response, can be heard on the
911 recording of the encounter.) Moreover, as a result of the
information provided by her physician, the officers believed
that she had a gun. And the overall encounter was, in the
court’s word, “tense.” 870 F. Supp. 2d at 640. Under these
circumstances, the court deemed it appropriate for the officers
to make a cursory inspection of the premises to determine if
someone else might be present. Id. at 640-41. That permissible
search led to the discovery of the compact disc case in the
kitchen, which was in plain sight. Id. at 641.
The search of that case, and the ensuing seizure of the gun
inside, was “[o]f much greater concern” to the court. Id. The
limited search authorized by Buie did not extend to the
contents of a locked case. Although Floriani indicated that
when he picked up the case, it felt as if it might contain a gun,
No. 12-2272 11
the court pointed out that the case could have held “practically
anything.” Id. As the search of the case was unauthorized, the
court acknowledged that both the opening of the case and the
seizure of the gun found inside likely constituted violations of
Sutterfield’s Fourth Amendment rights. Id.
The court rejected Sutterfield’s contention that the seizure
of the gun and concealed-carry licenses also constituted a
violation of her Second Amendment rights on the facts of this
case. In the court’s view, neither McDonald v. City of Chicago,
130 S. Ct. 3020 (2010), nor Dist. of Columbia v. Heller, 554 U.S.
570, 128 S. Ct. 2783 (2008), forecloses the possibility that an
individual’s firearm may be seized by the police for certain
purposes. 870 F. Supp. 2d at 642. Otherwise, the court rea-
soned, any seizure of a gun by the authorities—if taken as
evidence, for example—might constitute a Second Amendment
violation. Id.
Although the court had found it “likely” that Sutterfield’s
Fourth Amendment rights had been violated, the court
discerned no basis to hold Milwaukee liable for the violation.
Id. at 642-43. Sutterfield had identified no municipal policy,
custom, or practice as necessary to support a claim against the
city under Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 98
S. Ct. 2018 (1978). The court theorized that Sutterfield perhaps
could argue that it was an unconstitutional practice for the city
to follow section 51.15 by requiring that the subject of a section
51.15 statement be taken into custody no matter the circum-
12 No. 12-2272
stances,4 but Sutterfield had not made such an argument. 870
F. Supp. 2d at 643. Consequently, only the individual officers
had any prospective liability. (Sutterfield has not challenged
this aspect of the district court’s decision.)
The court concluded that the officers, assuming they had
violated Sutterfield’s Fourth Amendment rights, were entitled
to qualified immunity. Id. at 643-44. The only aspect of the
encounter over which they may have lacked discretion was the
decision to detain Sutterfield, which the court believed she had
not contested. Id. at 643. The court noted that the circumstances
of the encounter, if they did not qualify as exigent, were nearly
so; and the boundaries separating exigent from non-exigent
circumstances were not so clear as to have placed the officers
on notice that their conduct exceeded the bounds of the exigent
circumstances exception. Id. at 644. At the same time, given the
breadth that the Wisconsin courts had attributed to the
community caretaker exception, the officers could have
thought that this exception allowed them to enter Sutterfield’s
home, to perform a warrantless search of the premises,
including the compact disc case, and to seize the gun they
found inside of that case. Id.
While the Seventh Circuit has refused to read the
Community Care[taker] exemption nearly as expan-
sively as Wisconsin, and would thus seem to bind this
4
Both Hewitt and Berken indicated in their depositions that they
understood department policy to essentially require them to execute the
51.15 statement by taking Sutterfield into custody regardless of what
transpired at her home, suggesting that the decision to seize her person was
not a discretionary call on their part.
No. 12-2272 13
Court to find that such an exemption clearly does not
apply, the Court cannot expect that police officers are
schooled in the nuances of the law as it differs by
jurisdiction. The police must be able to act decisively to
prevent injury to citizens, especially when they are
acting upon information from a third party whom it
seems reasonable to believe is telling the truth, such as
Dr. Bentle in this case. By entering Ms. Sutterfield’s
home, searching it, and seizing the items that they
believed to pose a danger to both Ms. Sutterfield and
members of the community who may (though it was
unlikely) happen upon those items, the officers acted in
that decisive, though discretionary way; and, under the
laws of Wisconsin, doing so was not clearly unlawful.
Id. (internal quotation marks and citations omitted).
II.
Sutterfield challenges each aspect of the district court’s
summary judgment decision, save for the court’s determina-
tion that the record lacked evidence sufficient to hold Milwau-
kee liable under Monell for any of the constitutional violations
asserted in this case. So only the liability of the individual
oficers is at issue. Sutterfield contends, in sum, that the police
officers’ warrantless entry into her home, the seizure of her
person, the search of the locked compact disc case, and the
seizure of the revolver and the concealed carry licenses
discovered therein all violated her rights under the Fourth and
Fourteenth Amendments, and that the seizure of the gun and
licenses also violated her rights under the Second Amendment.
She further contends that because these rights were clearly
14 No. 12-2272
established (in her view), the officers do not enjoy qualified
immunity from suit. Before we turn to the merits of Sutter-
field’s claims, we feel compelled to say a few words about the
importance of the competing interests at stake in this case.
The intrusions upon Sutterfield’s privacy were profound.
At the core of the privacy protected by the Fourth Amendment
is the right to be let alone in one’s home. See, e.g., Kyllo v. United
States, 533 U.S. 27, 31, 121 S. Ct. 2038, 2041-42 (2001) (citing
Silverman v. United States , 365 U.S. 505, 511, 81 S. Ct. 679, 683
(1961)); Payton v. N.Y., 445 U.S. 573, 589-90, 100 S. Ct. 1371,
1381-82 (1980). In this case, police entered Sutterfield’s home
forcibly and without a warrant, against her express wishes.
Once inside of her home, they seized her person, again
employing force because she resisted. They then searched the
premises of the house, discovered the locked compact disc
case, broke it open, and seized her gun and concealed carry
licenses, all without a search warrant. Finally, pursuant to
section 51.15, they took Sutterfield to the Milwaukee Mental
Health Complex for an (involuntary) evaluation. Although the
officers took each of these actions for benevolent reasons, from
Sutterfield’s perspective—and from the perspective of anyone
in a similar situation who did not wish assistance—these were
serious intrusions upon the sanctity of her home and her
person.
On the other hand, courts from the United States Supreme
Court on down have long recognized the important role that
police play in safeguarding individuals from dangers posed to
themselves and others—a role that will, in appropriate
circumstances, permit searches and seizures made without the
judicial sanction of a warrant. See, e.g., Brigham City, Utah v.
No. 12-2272 15
Stuart, supra, 547 U.S. at 403-04, 126 S. Ct. at 1947 (collecting
cases); Mincey v. Ariz., 437 U.S. 385, 392 & nn.6-7, 98 S. Ct. 2408,
2413 & nn.6-7 (1978) (same). Here, the Milwaukee police had
been contacted by Sutterfield’s physician with a concern that
Sutterfield might harm herself. Wisconsin law sets forth an
emergency detention procedure to deal with precisely this sort
of situation. Pursuant to section 51.15, a statement authorizing
Sutterfield’s emergency detention was prepared, and police
executed that statement when they entered Sutterfield’s home
and took her into their custody. They looked for, discovered,
and seized her firearm out of concern for Sutterfield’s safety
and that of any minor who might enter her home in her
absence. There is no suggestion that they acted for any reason
other than to protect Sutterfield from harm.
This case therefore requires us to balance Sutterfield’s
privacy interests, as protected by the Fourth Amendment,
against a community interest—and frankly Sutterfield’s own
interest—in protecting her from harm, including self-inflicted
harm. Aside from the importance of these competing interests,
several circumstances make our job more difficult. First, the
parties have given us virtually no information as to the
alternatives other than emergency detention pursuant to
section 51.15 that were available to the Milwaukee police in
this situation. Sutterfield, for example, frequently speaks about
the lack of a warrant but has not addressed what type of
warrant, if any, would have been appropriate and available in
the circumstances confronting the police. Her briefs seem to
view the case through the lens of criminal law enforcement
when the case plainly does not fit that model. Moreover, as we
shall discuss, there also persists a lack of clarity in Fourth
16 No. 12-2272
Amendment case law as to the appropriate legal framework
that should be applied to warrantless intrusions motivated by
purposes other than law enforcement and evidence-gathering.
It will no doubt be frustrating to Sutterfield and to the
reader that we do not reach firm conclusions as to the merits of
all of the claims she has asserted and instead, like the district
court, resolve the case in part based on the doctrine of qualified
immunity. We recognize the significant role that resolving the
merits of each claim plays in the development of precedent and
clarifying the boundaries of constitutional rights. See Pearson v.
Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818 (2009). But given
the importance of the interests at stake, the lack of clarity in the
case law, and the shallowness of the briefing as to the alterna-
tives available to the police on the facts presented here, we
believe that the tentative nature of some of our analysis is
appropriate.
We now turn to the merits of Sutterfield’s claims.
A. Detention of Sutterfield
Our discussion of the first claim may be brief. Although
Sutterfield insists that, contrary to the district court’s belief, she
has challenged the defendants’ seizure of her person as being
contrary to the Fourth Amendment, she has not adequately
developed any such argument. She does not contest that her
physician reported that she had threatened to do herself harm.
Further, there is no dispute that, in light of the doctor’s report,
there was a valid basis to pursue an emergency detention of
Sutterfield under section 51.15, that the police complied with
the requirements of that statute, or that the statute (and the
statement completed by officers Stephens and Powers)
No. 12-2272 17
authorized the seizure of Sutterfield. Sutterfield suggests that
the statute is unconstitutional to the extent that it permits the
seizure of a person without the authorization of a judicial
officer. But she fails to support her contention with any citation
of authority or legal analysis.
We note that Sutterfield’s position presumes that prior
judicial approval is required when a person is detained not
because she is suspected of a crime but rather because she is
believed to pose a danger to herself. In that respect, she makes
no distinction between the law enforcement and community
caretaking functions of the police. Her argument, moreover,
calls into question the constitutionality not only of Wisconsin’s
section 51.15, but a host of comparable provisions found in
other state codes. Many if not most states have provisions
authorizing the emergency detention of individuals based on
information indicating that they pose a danger to themselves
or others. See Treatment Advocacy Center, Emergency Hospital-
ization for Evaluation—Assisted Psychiatric Treatment Standards
by State (June 2011), available at http://treatmentadvocacy
center.org/storage/documents/Emergency_Hospitalization_
for_Evaluation.pdf (last visited May 9, 2014). Although the
specifics of such statutes vary, they commonly do not require
prior judicial approval of the emergency detention. See, e.g.,
405 Ill. Comp. Stat. 5/3-601 - 5/3-603 (authorizing involuntary
admission of person to mental health facility when adult
presents petition to facility indicating admission is necessary to
protect self or others from harm, detailing signs or symptoms
of mental illness, and describing relevant acts, threats, behav-
ior, and so forth; petition must be accompanied by statement
of qualified expert and if none immediately available, person
18 No. 12-2272
may be detained for purposes of examination by such expert);
Indiana Code § 12-26-5-1 (authorizing detention of person for
no more than 72 hours on written application of individual
setting forth belief admitted person is mentally ill or dangerous
and in need of immediate restraint, together with statement of
at least one physician indicating person may be mentally ill or
dangerous).
Our point is not to suggest that the sort of emergency
detention authorized by section 51.15 and similar statutes in
other states necessarily is constitutional. Our point, instead, is
that given the ubiquity of such statutes, and the legitimacy of
the interests in both personal and public safety underlying
such statutes, a contention that an emergency detention is per
se unconstitutional without prior judicial authorization
demands much more than a conclusory argument to that effect.
Sutterfield has waived any claim that her detention was
unlawful absent the prior approval of a judge. See, e.g., Fluker
v. Cnty. of Kankakee, 741 F.3d 787, 795 (7th Cir. 2013) (perfunc-
tory and undeveloped arguments waived). See also In re
Commitment of Louise M., 555 N.W.2d 807, 810 (Wis. 1996)
(finding that procedures for involuntary detention set forth in
section 51.15 satisfy the requirements of due process).
B. Entry into Sutterfield’s Home
The district court, as noted, found that the warrantless
entry into Sutterfield’s home might be justified on the basis of
the exigent circumstances doctrine. Sutterfield focuses the bulk
of her argument on this possibility, contending that in view of
the passage of nine hours between her physician’s initial phone
call to the police and the point at which police sought entry
No. 12-2272 19
into her home, the circumstances cannot be desribed as exigent,
as there was ample opportunity for the police to obtain a
warrant. She adds that her own conduct in refusing to open the
door to her home and admit the police cannot be said to have
created an exigency where none otherwise existed.
There are three doctrines or exceptions to the warrant
requirement that have been raised at one point or another in
this case as possible justifications for the warrantless entry into
Sutterfield’s home: the community caretaking doctrine, the
emergency aid doctrine, and the exigent circumstances
doctrine. For the reasons that follow, we believe that the entry
into Sutterfield’s home was justified by the emergency aid
doctrine, which the Supreme Court has deemed a subset of the
exigent circumstances doctrine. But as there is some degree of
overlap between the doctrines, the distinctions between them
are not always clear, and all three doctrines are, to some
degree, implicated in this case, we begin with a short discus-
sion of each.5
5
Scholars have frequently remarked on the lack of clarity in judicial
articulation and application of the three doctrines. See, e.g., Megan Pauline
Marinos, Comment, Breaking and Entering or Community Caretaking? A
Solution to the Overbroad Expansion of the Inventory Search, 22 GEO. MASON U.
CIVIL RIGHTS L. J. 249, 261 (2012) (“Over the years, state and federal courts
have muddled the distinction between the emergency aid exception to the
warrant requirement and the community caretaking exception to the
probable cause and warrant requirements.”); Michael R. Dimino, Sr., Police
Paternalism: Community Caretaking, Assistance Searches, and Fourth Amend-
ment Reasonableness, 66 WASH. & LEE L. REV. 1485, 1494 (2009) (“The
vagueness surrounding the definition of the community-caretaking
category and the different standards governing the constitutionality of
(continued...)
20 No. 12-2272
The community caretaking doctrine recognizes that police
sometimes take actions not for any criminal law enforcement
purpose but rather to protect members of the public; searches
(including home entries) conducted for the latter purpose are
deemed exempt from the Fourth Amendment warrant require-
ment. The doctrine was first recognized by the United States
Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct.
2523 (1973), which sustained the warrantless search of an
automobile in police custody that was conducted as a matter of
routine for a purpose “totally divorced from the detection,
investigation, or acquisition of evidence relating to the viola-
tion of a criminal statute,” id. at 441, 93 S. Ct. at 2528. As we
shall see, state and federal courts have divided over the scope
of the community caretaking doctrine recognized in Cady. This
court, taking the narrow view, has confined the doctrine to
automobile searches. United State v. Pichany, supra, 687 F.2d at
207-09. Pichany rules out the community caretaker doctrine as
a basis which might justify the warrantless entry into
5
(...continued)
different types of community-caretaking searches indicate that more
precision is needed. There is not a single community-caretaking doctrine.
Rather, there are several different community-caretaking doctrines, but
courts have not clarified the constitutional interests affected by those
different kinds of searches.”); Deborah Tuerkheimer, Exigency, 49 ARIZ. L.
REV. 801, 812 n. 60 (2007) (“the state of the case law in this area is remark-
ably confused”); Mary Elizabeth Naumann, Note, The Community Caretaker
Doctrine: Yet Another Fourth Amendment Exception, 26 AM. J. CRIM. L. 325, 365
(1999) (“A review of both federal and state case law reveals a lack of
consistency in the definition and boundaries of the community caretaker
doctrine that control the judgment exercised by the officers in these
situations.”).
No. 12-2272 21
Sutterfield’s home, as the district court recognized. But because
the Wisconsin courts—which, like the court, possess the
authority and indeed the obligation to interpret and apply the
Fourth Amendment, see Burgess v. Lowery, 201 F.3d 942, 945-46
(7th Cir. 2000)—have accorded a much broader sweep to the
community caretaker doctrine, and this would have given the
defendants reason to believe that the entry was justified, a
more detailed discussion of Cady and its progeny is called for.
In Cady, Wisconsin police officers searched the trunk of a
rented automobile that had been disabled in a one-car accident.
The obviously intoxicated driver of the car, Dombrowski, had
informed the officers that he was a Chicago policeman.
Believing that Chicago police officers were required to carry
their service revolvers with them at all times, the Wisconsin
police looked for a gun on Dombrowski’s person and in the
glove compartment and front seat of the car, but they did not
find one. The car was towed to a local (private) garage and
Dombrowski was taken into custody for drunken driving.
Later that night, an officer visited the garage to search the car
again for Dombrowski’s revolver; the search was described as
a matter of routine practice within the local police department.
When the officer opened the locked trunk of the car, he
discovered clothing and other items with blood on them. When
Dombrowski was confronted with those items, he directed
police to a body on his brother’s farm. Dombrowski was
ultimately charged with murder, and the items discovered in
the trunk of the car were admitted at trial as evidence.
Dombrowski was convicted. On habeas review, this court
agreed with Dombrowski that the search of the car trunk
violated his Fourth Amendment rights, as there was no
22 No. 12-2272
exigency that might have justified a warrantless search.
Dombrowski v. Cady, 471 F.2d 280, 283-84 (7th Cir. 1972) (2-1
decision). The Supreme Court reversed.
The Court in Cady sustained the search of car trunk as a
legitimate exercise of the police force’s community caretaking
function. After first noting that the touchstone of the Fourth
Amendment is “reasonableness,” id. at 439, 93 S. Ct. at 2527,
the Court pointed out that it had long distinguished automo-
bile searches from searches of the home, both because cars are
inherently mobile, lending greater justification to warrantless
searches, and because the highly-regulated status of motor
vehicles brings the police into frequent contact with automo-
biles—and any contents, including contraband, which are in
plain view—for reasons unrelated to the investigation of crime.
Id. at 440-42, 93 S. Ct. at 2527-28. In this case, the police had
been compelled to assume custody of Dombrowski’s rental car
because Dombrowski himself was unable to drive and because
the wrecked vehicle otherwise presented a nuisance upon the
roadway. Id. at 442-43, 93 S. Ct. at 2529. After they took
custody of the car, police had followed what the lower courts
had determined to be standard operating procedure in
searching the car for Dombrowski’s service revolver. That
search was conducted not for evidence-gathering purposes but
rather for safety reasons: the car had been towed to a garage lot
which was not secured, leaving any gun inside accessible to
vandals. Id. at 443, 448, 93 S. Ct. at 2529, 2531. Thus, the search,
although unsupported by a warrant, constituted a legitimate
exercise of the police force’s community caretaking function.
Id. at 447-48, 93 S. Ct. at 2531.
No. 12-2272 23
Cady’s holding has since evolved into a rule authorizing a
routine, warrantless inventory search of an automobile
lawfully impounded by the police. In South Dakota v. Opperman,
428 U.S. 364, 96 S. Ct. 3092 (1976), for example, the Court
sustained the search of a car which had been impounded by
police after it was left parked illegally in a restricted zone; the
search had unearthed marijuana in the vehicle’s glove com-
partment. After reiterating Cady’s rationale and adding that the
individual has a lesser expectation of privacy in the automobile
than in the home, id. at 367-69, 96 S. Ct. at 3096, the Court
noted that a routine inventory search of an impounded vehicle
serves multiple needs: protection of the owner’s property,
protection of the police against allegations of lost or stolen
property, and protection of the police from potential danger,
id. at 369, 96 S. Ct. at 3097. The search, conducted for legitimate
caretaking reasons and not as a pretext for evidence-gathering,
therefore met the Fourth Amendment’s reasonableness
standard. Id. at 375-76, 96 S. Ct. at 3100; see also, e.g., United
States v. Jackson, 189 F.3d 502, 508-09 (7th Cir. 1999). Opperman,
as it turned out, marked the last time that the Supreme Court
relied to any meaningful degree on the community caretaking
function of the police in evaluating the reasonableness of
searching automobiles and other items impounded by the
police; subsequent cases have rested on Opperman’s description
of the search as a routine “inventory” search. See, e.g., Colorado
v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741 (1987) (“inven-
tory searches are now a well-defined exception to the warrant
requirement of the Fourth Amendment”); see also Marinos,
supra n.5, 22 GEO. MASON U. CIVIL RTS. L. J. at 251 n.11, 259.
24 No. 12-2272
This court, as we have mentioned, has limited the commu-
nity caretaker doctrine to automobile searches. Pichany, 687
F.2d at 207-09. Our decision in Pichany addressed the warrant-
less search of a commercial warehouse. Police officers had
arrived early for a meeting at an industrial park with a
business owner who had reported a burglary of his warehouse.
While looking for the owner, the officers wandered into the
defendant’s nearby warehouse, which was both unlocked and
unmarked—but which was not the warehouse reported
burglarized. There they discovered several stolen tractors,
which resulted in the defendant being charged with theft. After
the district court suppressed the evidence discovered in the
warehouse, the government appealed, seeking to justify the
warrantless entry into the defendant’s warehouse on the basis
of the community caretaker doctrine. The government argued
that when the officers entered the defendant’s warehouse, they
were not investigating the defendant’s possible involvement in
a crime but simply looking for the individual who had re-
ported a burglary. We rejected the invitation to extend Cady’s
community caretaking rationale beyond the automobile
context. “None of the factors which the Court found character-
ized the community caretaking function are present here.” 687
F.2d at 207. We pointed out that, in contrast to the situation in
Cady, the police had not exercised control or dominion over the
defendant’s warehouse, nor was there any threat of damage or
theft that might have triggered a duty on the part of the
officers to secure his warehouse. Id. at 207-08. More fundamen-
tally, the Court in Cady, by stressing the circumstances that
differentiated cars from houses and other things that might be
searched, had indicated that its holding “extended only to
No. 12-2272 25
automobiles temporarily in police custody.” id. at 208. “Conse-
quently, the plain import from the language of the Cady
decision is that the Supreme Court did not intend to create a
broad exception to the Fourth Amendment warrant require-
ment to apply whenever the police are acting in an ‘investiga-
tive,’ [i.e., community caretaking] rather than a ‘criminal’
function.” Id. at 208-09 (quoting Cady, 413 U.S. at 453, 93 S. Ct.
at 2534) (Brennan, J., dissenting)).
The other circuits are divided on the question of whether
the community caretaker exception applies outside of the
automobile context, and in particular to warrantless searches
of the home. In addition to this circuit, the Third, Ninth, and
Tenth circuits have confined the community caretaking
exception to the automobile context. See Ray v. Tp. of Warren,
626 F.3d 170, 177 (3d Cir. 2010); United States v. Bute, 43 F.3d
531, 535 (10th Cir. 1994) (2-1 decision); United States v. Erickson,
991 F.2d 529, 531-33 (9th Cir. 1993).6 In contrast, the Fifth, Sixth,
and Eighth circuits have relied on the community caretaking
exception to justify warrantless searches of the home. See
United States v. Quezada, 448 F.3d 1005, 1007-08 (8th Cir. 2006);
United States v. Rohrig, 98 F.3d 1506, 1521-25 (6th Cir. 1996) (2-1
decision); United States v. York, 895 F.2d 1026, 1029-30 (5th Cir.
6
More recently, the Ninth Circuit found that a warrantless entry into a
home was justified when police entered the home in a community
caretaking role while responding to a perceived emergency; the court
emphasized that the circumstances must present a genuine emergency in
order for such an entry to be justified. See United States v. Stafford, 416 F.3d
1068, 1073-75 (9th Cir. 2005). Despite the references to community
caretaking, the decision is probably best characterized as relying on the
emergency aid doctrine rather than the community caretaking doctrine.
26 No. 12-2272
1990) (framed as an exigent circumstances decision, but
stressing community caretaking role of police in abating noise
disturbance). However, the Sixth Circuit more recently has
expressed doubt that the community caretaking doctrine
would generally authorize the warrantless entry into a home,
see United States v. Williams, 354 F.3d 497, 508 (6th Cir. 2003),
although its decision in that case ultimately rested on the fact
that police were motivated by a suspicion of criminal wrong-
doing in addition to community caretaking purposes, id.Finally, the Fourth Circuit has indicated that the community
caretaking exception may justify a warrantless residential
search when, as in Cady, the search is conducted pursuant to
routine procedure and not for purposes of criminal evidence-
gathering. Hunsberger v. Wood, 570 F.3d 546, 554 (4th Cir. 2009)
(Wilkinson, J.). See also MacDonald v. Town of Eastham, 2014 WL
944707, at *4-*6 (1st Cir. Mar. 12, 2014) (noting disarray in cases
and leaving question open); United States v. McGough, 412 F.3d
1232, 1238-39 (11th Cir. 2005) (noting that “we have never
explicitly held that the community caretaking functions of a
police officer permit the warrantless entry into a home”; court
goes on to find that in any event facts did not warrant applica-
tion of the exception in that case). A similar division exists at
the state level. See Gregory T. Helding, Comment, Stop Ham-
mering Fourth Amendment Rights: Reshaping the Community
Caretaking Exception With the Physicial Intrusion Standard, 97
MARQUETTE L. REV. 123, 143-48 (2013) (collecting cases extend-
ing community caretaking exception beyond the automobile
context); Naumann, supra n.5, 26 AM. J. CRIM. L. at 352-57
(surveying different approaches employed by state courts).
No. 12-2272 27
As the district court noted, the Wisconsin courts in particu-
lar have extended the community caretaking doctrine to
searches of homes. We reserve our discussion of the Wisconsin
precedents for our qualified immunity analysis below. For
now, it is sufficient to express our agreement with the district
court that, given our decision in Pichany, the warrantless entry
into Sutterfield’s home cannot be sustained on the basis of the
community caretaker doctrine.
The exigent circumstances exception to the warrant
requirement constitutes a second ground on which the
warrantless entry into Sutterfield’s home potentially could be
justified. Pursuant to this exception, a warrantless entry into a
dwelling may be lawful when there is a pressing need for the
police to enter but no time for them to secure a warrant.
Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 1949 (1978);
see also, e.g., Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir.
2013). Recognized exigencies include situations in which the
occupant of a residence is injured or is in danger of imminent
injury, Michigan v. Fisher, 558 U.S. 45, 47-48, 130 S. Ct. 546, 548-
49 (2009); Brigham City, Utah v. Stuart, supra, 547 U.S. at 403-04,
126 S. Ct. at 1947; see, e.g., Fitzgerald, 707 F.3d at 731-32) (danger
of suicide); when there is a danger posed to others by the
occupant of a dwelling, as when the occupant is armed and
might shoot at the police or other persons, e.g., United States v.
Kempf, 400 F.3d 501, 503 (7th Cir. 2005); when police are in “hot
pursuit” of a fleeing suspect, United States v. Santana, 427 U.S.
38, 42-43, 96 S. Ct. 2406, 2409-10 (1976) (citing Warden v.
Hayden, 387 U.S. 294, 87 S. Ct. 1642 (1967)), or there is a risk
that the suspect may escape, see Minnesota v. Olson, 495 U.S. 91,
100, 110 S. Ct. 1684, 1690 (1990); and to prevent the imminent
28 No. 12-2272
destruction of evidence, Kentucky v. King, 131 S. Ct. 1849, 1856-
57 (2011). Whether the exigent circumstances exception justifies
warrantless action is judged by an objective standard: we ask
whether it was reasonable for the police officers on the scene to
believe, in light of the circumstances they faced, that there was
a compelling need to act and no time to obtain a warrant. See
Tyler, 436 U.S. at 509, 98 S. Ct. at 1949; e.g., Fitzgerald, 707 F.3d
at 730. There must be a genuine need to forego the warrant
process; and in assessing that need, we must focus not only on
the moment that police made the decision to make the warrant-
less entry, but rather “appraise the agents' conduct during the
entire period after they had a right to obtain a warrant and not
merely from the moment when they knocked at the front
door.” United States v. Patino, supra, 830 F.2d at 1416 (quoting
United States v. Rosselli, 506 F.2d 627, 630 (7th Cir.1974) (foot-
note omitted) (Stevens, J.)).
Related to both of the foregoing exceptions to the warrant
requirement is the emergency or emergency aid doctrine,
which recognizes that a warrantless entry into the home may
be appropriate when police enter for an urgent purpose other
than to arrest a suspect or to look for evidence of a crime. See
Mincey v. Ariz., supra, 437 U.S. at 392-93, 98 S. Ct. at 2413;
Hanson v. Dane Cnty., Wis., 608 F.3d 335, 337-38 (7th Cir. 2010);
United States v. Richardson, 208 F.3d 626, 630 (7th Cir. 2000);
United States v. Salava, 978 F.2d 320, 324-25 (7th Cir. 1992). Like
the community caretaker exception to the warrant require-
ment, this doctrine recognizes that police play a service and
protective role in addition to a law enforcement role. See Sheik-
Abdi v. McClellan, 37 F.3d 1240, 1244 (7th Cir. 1994) (citing
United States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992)). In the
No. 12-2272 29
former capacities, police officers may sometimes need to enter
a dwelling in order to render aid to an occupant whom they
believe to be in distress and in immediate need of their
assistance. Id. The test for this exception is also objective: the
question is whether the police, given the facts confronting
them, reasonably believed that it was necessary to enter a
home in order to “render assistance or prevent harm to
persons or property within.” Id. (quoting Moss, 963 F.2d at
678); see also United States v. Jenkins, 329 F.3d 579, 581-82 (7th
Cir. 2003).
Although we had understood the emergency aid doctrine
to be separate from (albeit related to) the exigent circumstances
exception, see Sheik-Abdi, 37 F.3d at 1244, see also Hopkins v.
Bonvicino, 573 F.3d 752, 763 (9th Cir. 2009); John F. Decker,
Emergency Circumstances, Police Responses, and Fourth Amend-
ment Restrictions, 89 J. CRIM. L. & CRIMINOLOGY 433, 441-45
(1999), the Supreme Court in Brigham City effectively made the
former a subset of the latter. 547 U.S. at 403-4, 126 S. Ct. at
1947; see Tuerkheimer, supra n.5, 49 ARIZ. L. REV. at 812-13 &
n.60.
The police in Brigham City had responded to a 3:00 a.m. call
complaining of a loud party at a residence. On arrival at the
residence, the officers heard shouting from inside of the house,
walked down the driveway, saw two juveniles drinking beer
in the backyard, and from there noticed an altercation taking
place in the kitchen of the home. Through a screen door, they
saw four adults attempting to restrain a juvenile, who was able
to break free and strike one of the adults, drawing blood. As
the struggle continued, one of the officers opened the door to
30 No. 12-2272
the kitchen, announced himself, and then entered. At that
point, the altercation ceased. The police ultimately arrested the
adults for, inter alia, contributing to the delinquency of a minor
and disorderly conduct. At issue before the Supreme Court
was the lawfulness of the police officers’ entry into the resi-
dence.
The Court determined that the interest in preventing injury
to an occupant of the home justified a warrantless entry by the
police. The Court recognized that the need to assist a person
who is seriously injured or who is threatened with such an
injury is one type of exigency that obviates the need to obtain
a warrant: “The need to protect or preserve life or avoid
serious injury is justification for what would be otherwise
illegal absent an exigency or emergency.” 547 U.S. at 403, 126
S. Ct. at 1947 (internal quotation marks and citations omitted).
“Accordingly, law enforcement officers may enter a home
without a warrant to render emergency assistance to an injured
occupant or to protect an occupant from imminent injury.” Ibid.The officers’ subjective motive for the entry—be it to quell
violence or to make an arrest, for example—is irrelevant; what
matters is whether the facts, viewed objectively, justified the
action taken by the police. Id. at 404-05, 126 S. Ct. at 1948. In
this case, the officers witnessed a fracas ongoing within the
home that had already resulted in injury to one of the occu-
pants. The officers consequently had reason to believe both
that the person who had been struck might need help and that
the fight might continue without intervention. The entry into
the home was therefore reasonable. Id. at 406, 126 S. Ct. at 1949.
We relied on Brigham City’s exigency rationale in Fitzgerald,
707 F.3d 725, to sustain a warrantless entry into a home where
No. 12-2272 31
police had reason to believe that the occupant might harm
herself. The police in Fitzgerald were summoned to the plain-
tiff’s home after she had a telephone conversation with a police
officer that caused that officer to be concerned that she might
be suicidal. At the conclusion of a stressful, aggravating day,
the plaintiff, who had been drinking, attempted to contact a
local help line but instead found herself speaking to the desk
sergeant at a local police station. Although she denied enter-
taining suicidal thoughts, the sergeant, while remaining on the
line with her, dispatched officers to her home, reporting that
she was highly depressed, intoxicated, and possibly suicidal.
As the officers were approaching the plaintiff’s condominium,
they learned that the plaintiff had just abruptly hung up on the
desk sergeant. At that point, the officers made a forced,
warrantless entry into the plaintiff’s home. After speaking with
her for a period of 30 minutes, the officers ultimately took the
plaintiff into custody against her will for evaluation at a
hospital. She later filed suit, contending among other things
that the warrantless intrusion into her home violated the
Fourth Amendment.
We concluded that the entry was justified based on the
exigent circumstances exception. Given the information
available to the officers, it was objectively reasonable for them
to believe at the time they entered the home that the occupant
was in need of immediate assistance. See id. at 731(quoting
United States v. Arch, 7 F.3d 1300, 1304 (7th Cir. 1993)). The fact
that the officers who arrived on the plaintiff’s doorstep had not
personally observed any suicidal behavior was not dispositive.
They were reasonably relying on information provided to them
by the desk sergeant, who had conveyed to them that the
32 No. 12-2272
plaintiff had called the police station, that she sounded both
intoxicated and suicidal, and had abruptly hung up as officers
approached her home.
This case fits snugly within our precedents holding
that police officers and other emergency personnel
must be “able to assist persons in danger or other-
wise in need of assistance.” Richardson, 208 F.3d at
630. “[W]hen police are acting in a swiftly develop-
ing situation … a court must not indulge in unrealis-
tic second-guessing.” Leaf v. Shelnutt, 400 F.3d 1070,
1092 (7th Cir. 2005) (internal quotation marks omit-
ted). We apply that maxim again today.
707 F.3d at 732.
Fitzgerald, we believe, guides us to a particular result in this
case; but before we turn back to the particular facts before us,
several points deserve making as to the three doctrines we
have just discussed. All three doctrines, to the extent they
authorize the police to make a warrantless entry into a dwell-
ing in order to render aid to a member of the
public—sometimes described as an “assistance search,” see
Dimino, supra n.5, 66 WASH. & LEE L. REV. at 1488—are speak-
ing to the community caretaking function of police officers, see
id. at 1494. There are, nonetheless, important differences in
both the doctrines and how courts apply them that present
challenges in deciding which of them governs a particular set
of facts.
Exigency, for example, is defined by a time-urgent need to
act that makes resort to the warrant process impractical. See id.
at 1508; see also, e.g., Tyler, 439 U.S. at 509, 98 S. Ct. at 1949;
No. 12-2272 33
United States v. Foxworth, 8 F.3d 540, 544-45 (7th Cir. 1993). If,
on the other hand, there is time for the police to seek a warrant,
then one must be sought: see, for example, our decision in
Patino, 830 F.2d at 1416-17, which the district court discussed.
870 F. Supp. 2d at 638; see also, e.g., United States v. Talkington,
843 F.2d 1041, 1046 (7th Cir. 1988) (remanding for determina-
tion of whether agents had time to procure warrant). But the
focus on the standard warrant process presumes that there is
reason to believe that something criminal is afoot. Exigency
cases thus typically speak either of there being probable cause
to believe a crime is being or has been committed or of the
need to act in order to fulfill the probable cause requirement,
as by preventing a suspect from fleeing or preserving evidence
that might otherwise be destroyed. See Marinos, 22 GEO.
MASON U. CIVIL RTS. L. J. at 262; Debra Livingston, Police,
Community Caretaking, and the Fourth Amendment, 1998 U. CHI.
LEGAL FORUM 261, 274-77 (1998); Brigham City, 547 U.S. at 402,
126 S. Ct. at 1946 (discussing and quoting from decision of
court below, Brigham City v. Stuart, 122 P.3d 506, 5014 (Utah
2005)); Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211,
1221 (9th Cir. 2014); Hogan v. Cunningham, 722 F.3d 725, 731-32
(5th Cir. 2013); Feliciano v. City of Miami Beach, 707 F.3d 1244,
1251 (11th Cir. 2013); Storey v. Taylor, 696 F.3d 987, 992 (10th
Cir. 2012); United States v. Watson, 489 F. App’x 922, 925 (6th
Cir. 2012) (unpublished); Cisneros v. Gutierrez, 598 F.3d 997,
1004 (8th Cir. 2010); United States v. Coles, 437 F.3d 361, 365-66
(3d Cir. 2006); United States v. Cephas, 254 F.3d 488, 494-95 (4th
Cir. 2001); United States v. Tibolt, 72 F.3d 965, 969 (1st Cir. 1995);
United States v. Dawkins, 17 F.3d 399, 403 (D.C. Cir. 1994). In
this respect, the exigent circumstances doctrine, as it has
34 No. 12-2272
traditionally been understood, is ill-suited to assistance
searches like the one in this case, where there was no reason to
suspect anyone of committing a crime. See Dimino, 66 WASH.
& LEE L. REV. at 1512 (“All community-caretaking cases are
incompatible with Fourth Amendment requirements of
warrants and probable cause.”); see also id. at 1494, 1508-09,
1512-13; Livingston, 1998 U. CHI. LEGAL FORUM at 277 (“For
community caretaking intrusions, … the exigency concept is
considerably less straightforward.”); Sheik-Abdi, 37 F.3d at 1244
(citing Moss, 963 F.2d at 678) (noting that whether warrantless
entry effectuated for law enforcement purpose or
service/protective purpose may distinguish exigent circum-
stances doctrine from emergency aid doctrine).
The emergency aid doctrine logically is a better fit in this
regard, its defining characteristic being urgency, see Dimino, 66
WASH. & LEE L. REV. at 1505-06, and there being no logical need
to additionally consider probable cause and the availability of
a standard criminal warrant. See Decker, 89 J. CRIM. L. &
CRIMINALITY at 439, 455; Livingston, 1998 U. CHI. LEGAL FORUM
at 277. And that appears to be true notwithstanding the
Supreme Court’s decision in Brigham City to place the emer-
gency aid doctrine within the exigent circumstances frame-
work. See United States v. Gordon, 741 F.3d 64, 70 (10th Cir.
2014) (“Officers do not need probable cause if they face exigent
circumstances in an emergency.”) (internal quotation marks
and citation omitted); United States v. Timmann, 741 F.3d 1170,
1178 & n.4 (11th Cir. 2013); Hunsberger v. Wood, supra, 570 F.3d
at 555; United States v. Huffman, 461 F.3d 777, 783 (6th Cir.
2006); United States v. Stafford, supra n.6, 416 F.3d at 1075. But,
as we discuss below, the real difficulty with applying the
No. 12-2272 35
emergency aid doctrine to a case like this one may be the
passage of a substantial amount of time between the point at
which the police are on notice that someone requires their aid
and the point at which they make a warrantless entry into that
person’s home. The doctrine may not require that action be
taken immediately in order for it to be characterized as
“emergency” aid, see Dimino, 66 WASH. & LEE L. REV. at 1507
(delays may be tolerable if they are explained) (citing Decker,
89 J. CRIM. L. & CRIMINOLOGY at 508), but at some point, the
passage of time will undermine the notion that emergency aid
was required, id. at 1506-07.
The community caretaking doctrine has a more expansive
temporal reach, in that its primary focus is on the purpose of
police action rather than on its urgency. See Livingston, 1998 U.
CHI. LEGAL FORUM at 277 (“the relevance of time as a limiting
principle in the exigency equation seems less apparent in these
community caretaking intrusions—since police could not have
obtained a traditional warrant in any event”); see also Marinos,
22 GEO. MASON U. CIVIL RTS. L. J. at 280; Dimino, 66 WASH. &
LEE L. REV. at 1506. Moreover, as we have already mentioned
and as we shall discuss further, because this doctrine presumes
that the police are not acting for any law enforcement purpose,
whether or not there is time to seek a traditional criminal
warrant is immaterial (although, as we also discuss, a different
type of warrant could be envisioned).
As a matter of doctrine, then, the community caretaking
doctrine would potentially be the best fit for this case, in that
it captures the beneficent purpose for which police entered
Sutterfield’s home and leaves more room for the delay that
preceded it than the emergency aid doctrine otherwise might.
36 No. 12-2272
And because there is no suggestion that police had any law
enforcement motive in entering the home, there would be a
ready basis on which to distinguish criminal cases like Patino,
which demand a search warrant when there is, in fact, time in
which to seek one.
Yet, our decision in Pichany obviously forecloses reliance on
the community caretaking doctrine here. Although the
defendants invoked the community caretaking doctrine below,
they have not pursued it on appeal, let alone asked us to
reconsider Pichany. And the division among the federal circuits
as to the appropriate scope of the community caretaking
doctrine makes clear that there is no obvious answer as to
whether it is appropriate to extend that doctrine beyond the
automobile setting that the Supreme Court dealt with in Cady.
The defendants have chosen instead to rely on the exigent
circumstances exception to the warrant requirement and, in
particular, the emergency aid exception that Brigham City
places within the exigency framework, as the justification for
their entry into their home. And ultimately, given the Court’s
decision in Brigham City and our own decision in Fitzgerald, we
believe they are right on that score.
As in Fitzgerald, the officers in this case had objectively
reasonable grounds on which to believe that Sutterfield might
harm herself. The police had been advised by Sutterfield’s
physician that she had threatened to take her own life. Based
on that report, they had completed a statement of emergency
detention that authorized officers to take Suttefield into
custody for a mental health evaluation. When officers arrived
at Sutterfield’s home that evening and tried to talk to her, she
No. 12-2272 37
would not allow them into her home. Sutterfield contends that
she was not acting “erratically,” as the district court put it, but
simply wished to be left alone. Perhaps so. But the relevant
point, for our purposes, is that nothing transpired at the front
door of her home that might have put the police on notice that
the emergency that had been reported by Sutterfield’s physi-
cian, and which was the basis for the section 51.15 statement of
emergency detention, had dissipated. It was objectively
reasonable for police on the scene to believe that the danger to
Sutterfield’s well-being was ongoing and that, in the absence
of Sutterfield’s cooperation, they needed to enter the home
forcibly, as they did.
To say, as Sutterfield does, that given the passage of time
and her own assurances to the officers that she was fine, that
there was no longer any emergency, and that the officers
should have heeded her demands that they leave, is to engage
in the very sort of second-guessing that we eschewed in
Fitzgerald. How were the officers to know that Sutterfield was
competent to assess the state of her own mental health or that,
regardless of what she herself said, there was no longer any
risk that she might harm herself? Only a medical professional
could make that judgment, and the officers had prepared and
were executing a section 51.15 statement for the very purpose
of having her evaluated by such a professional.
There are, as we have acknowledged, outstanding ques-
tions about the extent to which the exigent circumstances
exception to the warrant requirement, and the emergency aid
subset of exigency precedent, apply to a situation like this one.
The district court itself had doubts about whether the warrant-
less entry into Sutterfield’s home could be justified on the basis
38 No. 12-2272
of exigency; and the overlapping and uncertain boundaries of
the three doctrines we have been discussing certainly leave
room for Sutterfield’s contention that neither the exigent
circumstances doctrine nor any other justifies the entry into her
home given the facts presented.
Clearly, one concern is the nine hours that passed between
the initial report from Sutterfield’s physician and the entry into
Sutterfield’s home. Again, the exigency doctrine generally, and
the emergency aid doctrine in particular, presume that there is
an emergency that requires expeditious, if not immediate,
action on the part of the police. See Fitzgerald, 707 F.3d at 731
(quoting Arch, 7 F.3d at 1304); cf. Hunsberger v. Wood, 570 F.3d
at 554 (whereas “[t]he community caretaking doctrine requires
a court to look at the function performed by a police officer, …
the emergency exception requires an analysis of the circum-
stances to determine whether an emergency requiring immedi-
ate action existed”) (emphasis in original). Sutterfield suggests
that, by the time police chose to force open her storm door, the
facts known to the officers dispelled any notion that there was
an urgent need for them to enter her home: she had told her
physician to call off the police, many hours had passed since
the doctor’s initial communication with the police, and when
the police arrived on her doorstep they could see that she was
alive, coherent, and did not want their assistance. We should
note that on the current record, we see no indication that the
police acted in anything but a conscientious and expeditious
manner; they simply had trouble locating Sutterfield. Still, it is
a reasonable and important question how long the police may
claim that a putative emergency justifies warrantless action.
Section 51.15 itself specifies no limit on the time that police
No. 12-2272 39
have to execute a statement of emergency detention. At oral
argument, the defendants’ attorney suggested that 24 hours
might in practice be the outer limit in a case such as this one.
But although we agree with Sutterfield that emergencies do not
last forever, it would be folly for us to try to declare ex ante
some arbitrary cut-off that would apply to all emergency aid
cases. Even in this case, it is not at all clear to us, nor would it
have been to the police, that the mere passage of time without
apparent incident was sufficient to alleviate any concern that
Sutterfield might yet harm herself. Cf. United States v. Salava,
supra, 978 F.2d at 324-25 (period of 90 minutes that police took
to identify lessee of mobile home and to take various precau-
tionary measures before entering home to check for presence
of murder victim did not vitiate emergency). And the parties
have given us no information about how long a threat of
suicide could be thought to impose an imminent danger of
harm to the person who made it; certainly nothing in this
record suggests that such a threat necessarily diminishes with
the passage of a few hours or with the suicidal individual’s
assurances that she is fine.
A related concern involves the opportunity to seek a
warrant. As we have said, the exigent circumstances exception
traditionally has been understood to excuse the lack of a
warrant when, although a warrant is available, the need for
immediate action deprives law enforcement of adequate time
to seek one. E.g., Michigan v. Tyler, supra, 436 U.S. at 509, 98 S.
Ct. at 1949-50; United States v. Schmidt, 700 F.3d 934, 937 (7th
Cir. 2012); Livingston, 1998 U. CHI. LEGAL FORUM at 274-77.
Proceeding from the premise that a warrant theoretically was
available to the police officers involved in this case, Sutterfield
40 No. 12-2272
has argued that there was ample time for them to seek a
warrant. The district court, having our decision in Patino in
mind, saw some merit in that argument. Pointing out that even
if one confines the analysis to the roughly 30-minute period
between the initial arrival of police at Sutterfield’s doorstep
and the entry into her home, the district court noted that Patino
had deemed that amount of time sufficient for the police to try
and obtain a warrant. 870 F. Supp. 2d at 638 (citing Patino, 830
F.2d at 1415-16). Moreover, as Sutterfield suggests, it might not
be appropriate for us to confine our consideration to that 30-
minute period. After all, it took nine hours to track Sutterfield
down after her physician first raised the alarm. There was
more than sufficient time during that longer period to consult
a judge. And even if we view the completion of the section
51.15 statement as the event that started the clock running,
there still were between four and five hours in which to seek a
warrant. Assuming that there was some type of warrant
available to the police in this situation, there was, as the district
court pointed out, ample time in which to seek one.
But a more fundamental question raised by this case is the
relevance of the warrant requirement. Certainly it is logical to
consider the availability of a warrant when the police have
reason to suspect that criminal activity may be afoot, but what
about cases in which the police are not acting in a law enforce-
ment capacity? Some emergency aid cases repeat the custom-
ary language about the lack of time to seek a warrant, e.g.,
Fitzgerald, 707 F.3d at 730, but one wonders whether, in the
emergency aid context, it is more accurate to say that a warrant
is unavailable, period. See Livingston, 1998 U. CHI. LEGAL
FORUM at 277, 281. The typical warrant, after all, requires
No. 12-2272 41
probable cause to believe that someone is engaged in criminal
mischief and/or that evidence of a crime will be found in a
particular place, see Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868,
1879 (1968); Wong Sun v. United States, 371 U.S. 471, 479, 83 S.
Ct. 407, 413 (1963); Brinegar v. United States, 338 U.S. 160, 175-
76, 69 S. Ct. 1302, 1310-11 (1949), and given that the point of the
exigent circumstances doctrine is to excuse the lack of a
warrant, it comes as no surprise that our exigency cases (and
those of other courts, see supra at 36) frequently reference
probable cause, e.g., United States v. Venters, 539 F.3d 801, 806-
07 (7th Cir. 2008); Leaf v. Shelnutt, 400 F.3d 1070, 1081-82 & n.10
(7th Cir. 2005); United States v. Rivera, 248 F.3d 677, 680-81 (7th
Cir. 2001); Cannaday v. Sandoval, 458 F. App’x 563, 567 (7th Cir.
2012) (per curiam) (nonprecedential decision). But in emer-
gency aid cases, where the police are acting to protect someone
from imminent harm, there frequently is no suspicion of
wrongdoing at the moment that the police take action. Even in
a case like Brigham City, for example, where there actually were
signs of criminal activity (juveniles drinking beer in the
backyard, and people fighting inside of the house), and the
occupants of the house ultimately were arrested and charged
with criminal offenses, the relevant point vis-à-vis the warrant-
less entry was that immediate action was required in order to
protect someone from harm. Brigham City thus articulated the
justification for the entry not in terms of reason to believe that
any crime was taking place, or that evidence was about to be
destroyed, but rather as reason to believe that an occupant of
the home needed their assistance. 547 U.S. at 403, 406, 126 S. Ct.
at 1947, 1949. It may be, then, that probable cause in the
emergency aid context is not reason to believe a crime is
42 No. 12-2272
occurring or has been committed, but reason to believe that
someone is in need of aid and there is a compelling need to act.
See Hanson v. Dane Cnty., Wis., supra, 608 F.3d at 338 (“probable
cause just means a good reason to act”); United States v. Jenkins,
329 F.3d 579, 581-82 (7th Cir. 2003) (reason to believe that
occupant of home, who did not respond to 911 call-back, was
ill, injured, or under threat of violence); see also United States v.
Timmann, supra, 741 F.3d at 1178 n.4; United States v. Wolfe, 452
F. App’x 180, 183 (3d Cir. 2011) (nonprecedential decision);
United States v. Martins, 413 F.3d 139, 147 (1st Cir. 2005);
Livingston, 1998 U. CHI. LEGAL FORUM at 275. This framing of
the inquiry suggests that whether there was time to seek a
warrant loses its relevance in the emergency aid subset of
exigency cases. The passage of time may remain relevant as a
measure of whether there was a true emergency justifying the
intrusion into someone’s home, but not in terms of whether a
warrant could have been sought.
Reinforcing that point in this case is the unanswered
question as to what type of warrant would have been available
to the police, given that Sutterfield was not suspected of any
crime.7 We posed that question at oral argument and neither
7
We set aside the possibility, not discussed by the parties, that attempted
suicide might constitute a crime and that the police would have had reason
to take warrantless action in order to prevent Sutterfield from committing
that crime. Consistent with most states, Wisconsin prohibits assisting
another person to take her own life, see Wis. Stat. § 940.12, but does not
appear to make attempted suicide itself a crime. See generally 2 Wayne R.
LaFave, SUBSTANTIVE CRIM. L. § 15.6 (aiding and attempting suicide) (2d ed.
updated through October 2013) (“In some states attempted suicide, which
(continued...)
No. 12-2272 43
counsel could identify such an alternative. Sutterfield’s counsel
suggested that perhaps the police could have sought a writ of
capias8 or bench warrant authorizing Sutterfield’s detention,
but the legal basis for such a course of action in Wisconsin
remains unclear. Sutterfield’s counsel may be correct in
arguing that the lack of an available warrant procedure does
not foreclose her Fourth Amendment challenge to the warrant-
less entry; the judiciary could, in theory, require the creation of
an appropriate procedure. That is essentially what the Su-
preme Court did in Camara v. Muni. Ct. of City & Cnty. of San
Francisco, 387 U.S. 523, 87 S. Ct. 1727 (1967). In Camara, the
Court dealt with an inspection scheme pursuant to which city
housing inspectors had the right to enter any building at a
reasonable time simply upon presentation of their credentials.
The plaintiff had been charged with a misdemeanor offense
after he had repeatedly refused to allow an inspection of his
apartment pursuant to this scheme. He contended that such a
warrantless inspection violated his rights under the Fourth and
Fourteenth Amendments. The Supreme Court agreed. In the
absence of the resident’s consent, the Court held, authorities
7
(...continued)
was a common law misdemeanor, was at one time a crime, but the
prevailing view has long been otherwise.”) (footnotes omitted); see also State
v. Genova, 252 N.W.2d 380, 383 (Wis. 1977) (“Common law crimes were
abolished in Wisconsin in the 1955 Criminal Code.”) (citing Wis. Stat.
§ 939.10).
8
A writ of capias is essentially a writ commanding an officer to take a
named individual into custody, typically when he has failed to appear or
failed to comply with a judgment. See BLACK’S LAW DICTIONARY 236 (9th ed.
2009).
44 No. 12-2272
were required to obtain an administrative warrant for an
inspection supported by probable cause to believe that the
building for which the warrant is sought qualifies for inspec-
tion pursuant to reasonable legislative or administrative
standards (based on such factors as the type of building, the
condition of the surrounding area, and the passage of time) for
conducting an inspection. Id. at 538, 87 S. Ct. at 1735-36. Camara
at least takes us out of the crime-detecting context, but obvi-
ously it is not a close fit with this case, which does not involve
anything like a uniform inspection scheme.
What Sutterfield would envision, presumably, is something
more like a standard criminal warrant-application process in
the sense that it is individualized, but pursuant to which a
neutral decisionmaker determines whether there is reason to
believe that the occupant of a dwelling is in danger such that
entry into (and search of) the dwelling is necessary to address
that danger. At least one writer has argued in favor of a
community-caretaking warrant as a means of guarding against
unnecessary intrusions into the sanctity of the home and
against police abuses. Marinos, Comment, 22 GEO. MASON U.
CIVIL RTS. L. J. at 284-89; see also Dimino, 66 WASH. & LEE L.
REV. at 1520-21. But the parties have cited no existing process
by which such a warrant could be obtained, whether in
Wisconsin or any other jurisdiction. And we have found no
Wisconsin case citing section 51.15 which identifies an alterna-
tive procedure that was available to the police in the situation
confronting them.
To be clear then, what Sutterfield is arguing for is the
creation of a particular type of warrant that does not currently
exist. In making that argument, however, she does not discuss
No. 12-2272 45
who would issue a community caretaking warrant, what the
criteria for issuance of such a warrant would be, what type of
evidence would be required to meet those criteria (in a case like
this one, for example, would the statement of a physician or
other qualified mental health professional be necessary?), or
how such a warrant might interact with an emergency commit-
ment scheme like that established by section 51.15. Much like
Sutterfield’s cursory contention that section 51.15 is unconstitu-
tional, her suggestion that a warrant is required in a situation
like this one amounts to no more than a premise that is stated
without any elaboration or substance. We would also point out
that the advisability of, and precedential support for, a warrant
requirement for assistance searches are open to debate.
Compare Marinos, 22 GEO. MASON U. CIVIL RTS. L. J. at 285, 288
(“By requiring a community caretaking warrant, a neutral third
party would determine [in advance] whether the circumstances
rise to the level that requires entry into a home by balancing
the need to search against the resident’s Fourth Amendment
rights. … Relying solely on an ex post reasonableness determi-
nation has contributed to a muddling of the exigent circum-
stances exception and [the community caretaking doctrine] in
various courts that have extended the [community caretaking
doctrine] to the home.”), with Dimino, 66 WASH. & LEE L. REV.
at 1521 (“Requiring administrative warrants for nonemergency
community-caretaking searches as a matter of Fourth Amend-
ment doctrine carries substantial disadvantages … . [It] would
be a substantial shift from the Supreme Court’s practice in the
community-caretaking area, which has shown no inclination
whatever to require any kind of warrant, and it would be
contrary to the trend of the Court’s other Fourth Amendment
46 No. 12-2272
cases, which have tended of late to stress the Reasonableness
Clause much more than the Warrant Clause. … Additionally,
community-caretaking situations arise on the spur of the
moment, and it is difficult to imagine officers being able to
expend the time necessary to obtain a warrant while their
crime-detection and crime-prevention duties go neglected.”).
A decision akin to Camara requiring such a warrant, whatever
its merits might be, would require a much more developed
argument than this.
Returning to first principles: What the Fourth Amendment
requires in all cases is reasonableness, Kentucky v. King, supra,131 S. Ct. at 1856; Brigham City, 547 U.S. at 403, 126 S. Ct. at
1947, and without knowing what, if any, alternative process
was available to the police, we are not prepared to say that the
warrantless entry into Sutterfield’s home was unlawful under
the circumstances presented to them. The police acted out of
legitimate concern for Sutterfield’s safety and well-being (in
other words, there is no hint that they were using the emer-
gency as a pretext to look for evidence of a crime), they acted
consistently with section 51.15, and the circumstances generally
meet the criteria for a warrantless entry articulated in Brigham
City and applied in Fitzgerald, in that it was objectively reason-
able for the officers to believe that their intervention was
required in order to prevent Sutterfield from harming herself,
notwithstanding her own protestations to the contrary. Her
own physician, a psychiatrist, had expressed concern for
Sutterfield’s well-being and declared a need for intervention on
her behalf, and despite the passage of time between the
physician’s initial telephone call to the police and the forced
entry into Sutterfield’s home, the record contains no evidence,
No. 12-2272 47
other than Sutterfield’s own protestations at the time, that the
crisis had passed and that she no longer presented a threat to
herself. We are not in any position, in fact, to second-guess the
police, who were following the procedure prescribed by
Wisconsin law (the constitutionality of which has not been
preserved as an issue in this appeal). The forced entry into
Sutterfield’s home was reasonable under the circumstances.
C. Protective Sweep of Sutterfield’s Home
Sutterfield has conceded that if the police officers’ entry
into her home was legal, a protective sweep of the premises of
the type authorized by Buie was also appropriate. Sutterfield
Br. 17. Given our conclusion that the forced entry was reason-
able, the sweep that resulted in the discovery of the locked
compact disc case containing Sutterfield’s gun and various
concealed-carry licenses was also reasonable, and we need not
discuss the sweep further.
D. Search of the Locked Case
Opening the locked compact disc case was a significant step
beyond the search authorized by Buie. The case was obviously
too small to be hiding a person, the case itself was innocuous,
and although Floriani averred that he thought the weight and
feel of the case was consistent with a gun being inside, that was
at most a very good guess—as the district court pointed out,
the case could have contained almost anything.9
9
Even if the gun had been in plain view, there would be a separate
question whether the Fourth Amendment permitted the seizure of the gun,
which Sutterfield lawfully possessed. But we address the legitimacy of the
(continued...)
48 No. 12-2272
The defendants’ brief is conspicuously devoid of citation to
any authority that justified the search of the locked case.10 Even
9
(...continued)
seizure separately below. At this juncture, we are concerned solely with the
decision to search the compact disc case, which was both closed and locked.
10
The defendants cite State v. Gocken, 857 P.2d 1074 (Wash. Ct. App. 1993),
as authority supporting a community-caretaking search of the compact disc
case. Defendants’ Br. 23. As Gocken does not address the search of a closed
bag or container, the defendants probably mean to cite State v. Gray, No.
38406–6-1, 1997 WL 537861, at *3 (Wash. Ct. App. Sep. 2, 1997) (unpub-
lished, nonprecedential decision), a case in which the court sustained the
search of the defendant’s tote bag (where both drugs and money were
discovered) as a legitimate exercise of the community caretaking function.
The police encounter with Gray had begun as a safety and welfare check
triggered by her erratic behavior. She held the officers at bay for 30 minutes,
holding a knife to her throat and threatening to kill herself; she also made
a number of delusional statements. When informed that she was being
taken to the hospital, Gray asked if she could take her tote bag with her. At
that point an officer informed her that he would have to search the bag first.
The court concluded that the search was justified on safety grounds, to
ensure that there was no weapon or other item in the bag that Gray might
use to harm herself. Gray is quite similar in that respect to State v. Tilley, No.
00-2540-CR, 2001 WL 942608, at *3-*4 (Wis. Ct. App. Aug. 21, 2001)
(unpublished, nonprecedential decision), which upheld a search of the
defendant’s purse and bag (in which marijuana and drug paraphernalia
were found). A police officer had taken an intoxicated and despondent
Tilley to the hospital, where she began to say that she was thinking about
killing herself and had attempted to do so in the past. Those remarks led the
officer to take Tilley into protective custody pursuant to section 51.15 for an
emergency mental health evaluation and to search her bags for anything she
might use to harm herself or others. The court held that the community
caretaker exception justified the search. Both cases are distinct from this
case in the sense that they involved an acute need to ensure that the
(continued...)
No. 12-2272 49
the Wisconsin cases that extend the community caretaking
doctrine to dwellings do not go so far as to endorse full
searches of those dwellings and their contents. As our discus-
sion below will reveal, those cases authorize safety-related
sweeps akin to that here, and the seizure of contraband that is
in plain view, but no more. It may be possible to construct an
argument that when police lawfully enter a home to address
the possibility that the occupant may harm herself—and
particularly where, as here, they have reason to believe the
person in question owns a firearm (as the gun holster Sutter-
field’s physician noticed suggested she did)—the police have
the authority to search the premises, including closed contain-
ers, for firearms. Cf. Cady v. Dombrowski, supra, 413 U.S. 433, 93
S. Ct. 2523 (sustaining warrantless inventory search of locked
automobile trunk for defendant’s service revolver for safety
reasons); Stricker v. Tp. of Cambridge, 710 F.3d 350, 362 (6th Cir.
2013) (in case of reported drug overdose, sustaining warrant-
less search of house, including closed drawers and cabinets, for
clues as to what drug(s) occupant may have ingested); Mora v.
City of Gaithersburg, Md., 519 F.3d 216, 225-26 (4th Cir. 2008)
(Wilkinson, J.) (in case of reported comments by plaintiff to
hotline operator that he was suicidal, that he could understand
shooting people at work, that he had weapons in his apart-
10
(...continued)
detained individual did not have access to a weapon or other implement of
harm in her belongings. By contrast, Sutterfield never asked to take the
compact disc case with her to the hospital, so there was no immediate need
to search the case in order to protect both her and the individuals who
would be transporting and then examining her during the period of her
emergency detention.
50 No. 12-2272
ment, and that he “might as well die at work,” sustaining
warrantless search of plaintiff’s luggage, van, and apart-
ment—including locked rooms, gun safes, and filing cabi-
nets—even after plaintiff had been seized and handcuffed, in
order to determine scope of threat potentially posed by
plaintiff). It bears noting, however, that this would be an
argument for license to conduct virtually a top-to-bottom
search of the home, as almost any closet, drawer, or container
theoretically could contain a handgun (or other potential
implements of self-harm). In any case, the defendants have not
developed such an argument here.
We therefore proceed on the assumption that the search of
the locked compact disc case was unlawful. Sutterfield had a
privacy interest in the contents of the case regardless of
whether the police were searching the case for a law enforce-
ment purpose or solely for purposes of protecting Sutterfield
from harm. See Camara, 387 U.S. at 530, 87 S. Ct. at 1732 (“It is
surely anomalous to say that the individual and his private
property are fully protected by the Fourth Amendment only
when the individual is suspected of criminal behavior.”); Dubbs
v. Head Start, Inc., 336 F.3d 1194, 1206 (10th Cir. 2003)
(McConnell, J.) (“The focus of the Amendment is … on the
security of the person, not the identity of the searcher or the
purpose of the search.”); Doe v. Heck, 327 F.3d 492, 509 (7th Cir.
2003) (Fourth Amendment applies to intrusions during civil as
well as criminal investigations). Even if the police had a
legitimate interest in securing any weapons that were in plain
view or that were in a place obviously meant for gun storage,
such as a gun safe (a point we address below), nothing more
than a hunch supported the notion that a gun might be inside
No. 12-2272 51
the compact disc case. Moreover, Sutterfield was already in
police custody at the time the case was opened and was about
to be transported from her home for evaluation by a mental
health profession. At that point in time, she posed no immedi-
ate danger to herself. Still, for the reasons we discuss below in
the qualified immunity portion of our analysis, even if the
search of the case was unlawful, we believe that the police
officers had ample reason to believe that it was permissible as
a legitimate safety measure under the circumstances confront-
ing them.
E. Seizure of the Gun and Concealed-Carry Licenses
1. Fourth Amendment
Our assumption that the search of the locked case contain-
ing the gun violated the Fourth Amendment requires a similar
assumption as to the seizure of the gun. Cf. Wong Sun v. United
States, supra, 371 U.S. at 484-86, 83 S. Ct. at 416 (evidence seized
as a result of an unlawful search is fruit of the poisonous tree);
United States v. Jeffers, 342 U.S. 48, 52, 72 S. Ct. 93, 95 (1951)
(“The search and seizure are … incapable of being untied.”),
overruled on other grounds by Rakas v. Illinois, 439 U.S. 128, 98
S. Ct. 421 (1978). Nonetheless, because the reasons for the
seizure have a bearing on our qualified immunity analysis, it
is worth spending a few moments discussing the competing
interests implicated by the seizure.
Officer Floriani’s instinct to seize the gun in order to
remove from the house a weapon that Sutterfield might use to
harm herself was natural and understandable. (Sutterfield’s
empty gun holster and her remark to her doctor, after all,
suggested that if she did do herself harm, she would do so with
52 No. 12-2272
a gun.) Nonetheless, Sutterfield had a legal right to possess the
gun. And, again, once she was in police custody, there was no
possibility that she was going to harm herself with the gun
either at that moment or during her ensuing commitment for
a mental health evaluation. Moreover, Floriani’s concern as to
what might happen if doctors decided to release Sutterfield
after evaluating her poses a conundrum: Certainly there was
a possibility that Sutterfield might again (or still) harbor
suicidal thoughts; yet, she presumably would be released only
if medical experts decided that she did not pose an immediate
danger to herself. So although removing the gun from the
house seems like a logical step to take to protect Sutterfield
from self-harm, the possibility of her release tends to negate
the notion that she needed such protection. Moreover, if the
prospect of Sutterfield’s commitment for a mental health
evaluation justified the seizure of a gun, would it also have
justified the removal of other items that Sutterfield might use
to harm herself, such as knives and potentially lethal medica-
tions? These are not easy questions to answer.
The Fourth Circuit, when confronted with somewhat
similar circumstances, cautioned against “slic[ing] the situation
too finely and employ[ing] hindsight too readily to actions
aimed … at heading off a human tragedy that, once visited,
could not be redeemed or taken back.” Mora v. City of Gaithers-
burg, Md., supra, 519 F.3d at 228. Recall that the plaintiff in Mora
was seized on an emergency basis after he indicated to a
healthcare hotline operator that he was suicidal and made
remarks suggesting that he might kill himself at work and take
the lives of his co-workers in the process. After he was dis-
patched to a hospital for an emergency mental health evalua-
No. 12-2272 53
tion, the police, without a warrant, seized the many (lawfully-
possessed) guns they had found in his home for safekeeping.
The plaintiff argued that this step was logically unjustified,
given that the state’s involuntary commitment statute did not
authorize his release if, as was feared, he posed a danger to
himself or others. The Fourth Circuit rejected this contention:
This argument implies that once police transferred
Mora to a psychiatrist, the responsibility for ensuring
public safety passed to the psychiatrist as well; the
officers could wash their hands of the situation, their job
done. But protecting public safety is why police exist,
and nothing in Maryland’s involuntary admission
statute supports the remarkable suggestion that, by
handing Mora over to doctors, the officers relinquished
authority over the thing for which they are under law
chiefly responsible. A psychological evaluation would
not change what the officers already knew: that Mora
was unstable and heavily armed, and a risk to himself
and others. …
Id. For similar reasons the court rejected the notion that once
Mora was on his way to the hospital, the police should have
sought a warrant before seizing his guns, as there was no
longer an emergency justifying warrantless action.
[W]e are unwilling to say the emergency that brought
on the seizure disappeared as quickly as Mora would
have us think. The officers were entitled to take into
account the nature of the threat that led to their pres-
ence at the scene, and the corroborating fact of a verita-
54 No. 12-2272
ble fortress of weapons and ammunition they found
when they arrived. Moreover, in the rapidly unfolding
series of events, the officers could not be sure of exactly
what it was they confronted. They had no way of
knowing whether confederates might possess access to
Mora’s considerable store of firearms, or whether Mora
himself might return to the apartment more quickly
than expected and carry out some desperate plan. …
Id.To be sure, there are significant differences between the
facts presented in Mora and those presented here: Sutterfield
never threatened anyone’s life but her own, and so far as the
record reveals, she possessed just one (real) gun rather than the
“veritable fortress of weapons and ammunition” that the police
discovered in Mora. But the essential point that the Fourth
Circuit made in Mora is nonetheless relevant here: The police
officers who took Sutterfield into custody had a legitimate
public safety interest in her health, and although they knew
that she would be evaluated by mental health professionals
pursuant to section 51.15, they could not be sure what would
happen next. It was natural, logical, and prudent for them to
believe that her firearm should be seized for safekeeping until
such time as she was evaluated and it was clear that she no
longer posed a danger to herself.11
11
In the event professionals determined that Sutterfield indeed did pose a
danger to herself (or others), one consequence of that finding might have
been a judicial order prohibiting her from possessing a firearm and directing
the seizure of any firearm owned by her. See Wis. Stat. § 51.20(13)(cv)(1).
No. 12-2272 55
An equally persuasive justification for the seizure of the
gun is the one articulated by Sergeant Berken, that the gun
might otherwise be accessible to Sutterfield’s son during her
absence from the house. The police knew that Sutterfield had
a son, but they did not know where he was or whether he
might have unsupervised access to Sutterfield’s home in her
absence. Neither did they know, nor could they have known,
how long Sutterfield might be detained nor who might have
access to the house during that time. It was arguably prudent
to remove the gun from the home as a prophylactic measure
during Sutterfield’s absence. Cf. United States v. Harris, 2014
WL 1356822, at *3 & n.4 (8th Cir. Apr. 4, 2014) (community
caretaking doctrine justified temporary seizure of gun seen
falling out of pocket of man sleeping in bus terminal, given
danger exposed and unguarded firearm posed to public,
including risk that a child or devious adult might take the
gun). There may have been alternatives, but removing and
securing the firearm was an obvious and reasonable measure.
One need only imagine the public outcry that would have
taken place had the police left the gun where it was and had
Sutterfield returned home and then used the gun to take her
own life, or had her son taken the gun in her absence and used
it to harm himself or others, to see the wisdom in what the
police did.
Milwaukee does have in place a procedure, which Sutter-
field ultimately used, to regain possession of the gun. No issue
is raised here as to the adequacy of that procedure. So we are
presented solely with a dispute as to the seizure of the gun at
the time Sutterfield was taken into custody and transported for
evaluation, rather than questions as to the timeliness and
56 No. 12-2272
efficacy of the process that Sutterfield ultimately employed to
obtain the return of her gun.
Finally, Sutterfield has argued that even if the seizure of the
gun was lawful, the seizure of her concealed-carry licenses was
not. But on the facts presented to us, the seizure of the licenses
does not present a separate issue. We can imagine that Sutter-
field might have been able to obtain another firearm while she
was awaiting the return of the seized gun; she may even have
owned other guns not seized by the police. The seizure of the
licenses did not preclude her from possessing those guns,
however. They simply prevented her from carrying those
weapons in a concealed fashion in various states other than
Wisconsin. Sutterfield has not developed any argument as to
the ways in which her temporary inability to carry a concealed
weapon in other states, as distinct from the seizure of her
firearm, harmed her. On this record, any injury inflicted by the
seizure of the licenses was de minimis, and we need not
explore this issue further.
We began this discussion with an assumption that, if the
search of the case containing the gun was conducted in
violation the Fourth Amendment, the seizure of the gun itself
was also contrary to the Fourth Amendment. But there are, as
we have gone on to note, powerful arguments in favor of the
temporary seizure of the gun as a prudential measure; these
arguments figure prominently in our qualified immunity
analysis below. For now it bears emphasis that our assump-
tions that the search for and seizure of the gun were inconsis-
tent with the Fourth Amendment are just that—assumptions.
We reserve a firm ruling on the merits of these issues for a case
in which the arguments are better developed and supported.
No. 12-2272 57
2. Second Amendment
Sutterfield has separately argued that the seizure of her
firearm violated her Second Amendment rights. She reasons
that apart from her property interest in the gun, the Supreme
Court’s decisions in District of Columbia v. Heller, supra, 554 U.S.
128 S. Ct. 2783, and McDonald v. City of Chicago, Ill., supra, 130
S. Ct. 3020, recognize her right to possess a gun in the home for
purposes of self-defense. See also Moore v. Madigan, 702 F.3d 933(7th Cir. 2012) (2-1 decision) (holding that Second Amendment
right to bear arms for self-defense extends beyond home), reh’g
en banc denied over dissent, 708 F.3d 901 (7th Cir. 2013). The
seizure deprived her of that right in addition to her Fourth
Amendment right not to have the gun taken from her without
probable cause, she reasons.
Whether and to what extent the Second Amendment
protects an individual’s right to possess a particular gun (and
limits the power of the police to seize it absent probable cause
to believe it was involved in a crime) is an issue that is just
beginning to receive judicial attention. Heller itself recognizes
that the right to possess a firearm secured by the Second
Amendment “is not unlimited.” 554 U.S. at 626, 128 S. Ct. at
2816. The Eighth Circuit, having concluded that the plaintiff’s
Fourteenth Amendment right to due process was violated by
the authorities’ refusal to return his gun once the legal basis for
seizing it had evaporated, found no independent violation of
the plaintiff’s Second Amendment right to possess the gun.
Walters v. Wolf, 660 F.3d 307, 317-18 (8th Cir. 2011). Although
the court confined its ruling to the facts and did not rule out
the possibility that, under different circumstances, the seizure
58 No. 12-2272
of a gun might constitute a Second Amendment violation, id.
at 318, it reasoned that where the plaintiff had been able to
vindicate his interest in “a meaningful procedural mechanism
for return of his lawfully seized firearm,” by way of the due
process clause, id. at 317, the seizure of one particular firearm
did not otherwise interfere with his Second Amendment
interests: “The defendants’ policy and action affected one of
Walter’s firearms, which was lawfully seized. The defendants
did not prohibit Walters from retaining or acquiring other
firearms.” Id. at 318 (emphasis in original). Cf. Houston v. City
of New Orleans, 682 F.3d 361, 363-64 (5th Cir. 2012) (per curiam)
(remanding to district court for determination whether state
law permitted state officials to retain plaintiff’s handgun
following entry of nolle prosequi on charges against him, as
determination that state law compelled return of gun would
render it unnecessary to decide whether defendants violated
plaintiff’s Second Amendment rights by refusing to return gun
to him); see generally John L. Schwab & Thomas G. Sprankling,
Houston, We Have a Problem: Does the Second Amendment Create
a Property Right to a Specific Firearm?, 112 COLUM. L. REV.
SIDEBAR 158 (2012) (agreeing that Second Amendment does not
encompass right to possess a specific firearm, criticizing lack of
analytic rigor in judicial decisions to date on this subject, and
proposing cautious, minimalist approach to determining scope
of Second Amendment).
This is not an issue that we have addressed and it is not one
that we will address here. Beyond a bare-boned contention that
the seizure violated her Second Amendment rights, Sutterfield
has not developed a cogent argument as to the reach and
application of the Second Amendment in the law enforcement
No. 12-2272 59
and community caretaking context. The issue is a sensitive one,
as it implicates not only the individual’s right to possess a
firearm, but the ability of the police to take appropriate action
when they are confronted with a firearm that may or may not
be lawfully possessed, and which, irrespective of the owner’s
right to possess the firearm, may pose a danger to the owner or
others.
We do reiterate that Milwaukee has a procedure by which
a citizen whose lawfully-possessed gun has been seized may
seek its return. Sutterfield availed herself of that procedure and
has not contested its adequacy in this appeal. This too counsels
against addressing the merits of Sutterfield’s Second Amend-
ment claim. Cf. Houston, 682 F.3d at 364.
F. Qualified Immunity
Qualified immunity shields a government official from suit
when the official is performing a discretionary function and his
conduct does not violate clearly established rights of which a
reasonable person would have known. Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982); see also, e.g., Volkman
v. Ryker, 736 F.3d 1084, 1089-90 (7th Cir. 2013).
Sutterfield concedes that all but one of the police actions at
issue in this case were discretionary acts that are potentially
subject to qualified immunity. The one action she asserts was
not discretionary was the seizure of her person pursuant to
section 51.15. This assertion is based largely on Hewitt’s and
Berken’s testimony that they were going to execute the
statement of emergency detention by taking Sutterfield into
custody regardless of what transpired when they located her
and gained access to her home. Sutterfield reads this testimony
60 No. 12-2272
as proof that the decision to seize her was not discretionary.
She contradicts herself on this point, however, when she
argues that the police officers who seized her should have
realized that section 51.15 itself is flawed—the implication
being that they could and should have declined to implement
the statement of emergency detention. No matter. As we
discussed earlier, Sutterfield has not preserved a challenge to
the legality of her seizure. Whether or not that act was poten-
tially subject to a qualified immunity defense is therefore a
question we need not address.
The defense clearly does apply to the other acts to which
Sutterfield has preserved a challenge—the warrantless entry
into her home, the search of the locked compact disc case, and
the seizure of the gun and licenses. For the reasons that follow,
given the broad sweep that Wisconsin courts have given to the
community caretaking doctrine, we agree with the district
court that the police could have thought each of these actions
was permissible in order to protect Sutterfield’s well-being.
One point as to the relevance of Wisconsin cases must be
disposed of at the start. Sutterfield contends that because
Wisconsin precedent would not bind this court on the merits
of her claims, and because in particular we, in contrast to the
Wisconsin courts, have refused to extend the community
caretaking doctrine to anything but automobile searches, the
Wisconsin cases are irrelevant in terms of whether the defen-
dants have qualified immunity. Not so. Although it is true that
in this court, the Wisconsin cases have persuasive value only
on the merits of Sutterfield’s federal claims, they remain
relevant as to what the defendants might have thought the law,
including the federal constitution, permitted them to do in
No. 12-2272 61
executing the emergency statement of detention. Federal courts
do not possess exclusive authority to decide Fourth Amend-
ment issues; state courts resolve such issues every day. See
Pompey v. Broward Cnty., 95 F.3d 1543, 1550 (11th Cir. 1996)
(“The state courts are courts of equal dignity with all of the
federal ‘inferior courts’—to use the Framers’ phrase—and state
courts have the same duty to interpret and apply the United
States Constitution as we do.”). In the absence of a controlling
decision by the United States Supreme Court, the Wisconsin
cases are thus as relevant as our own precedents in evaluating
what a Milwaukee police officer might have thought the law
permitted in responding to a report that the occupant of a
private dwelling was in danger of harming herself. See Burgess
v. Lowery, supra, 201 F.3d at 945-46; see also Stanton v. Sims, 134
S. Ct. 3, 5, 7 (2013) (per curiam) (considering decisions of both
federal and state courts in concluding it was not clearly
established that warrantless entry into home in hot pursuit of
person believed to have committed misdemeanor offense was
contrary to Fourth Amendment); Barnes v. Zaccari, 669 F.3d
1295, 1307 (11th Cir. 2012); Starlight Sugar, Inc. v. Soto, 253 F.3d
137, 144-45 (1st Cir. 2001); Edwards v. City of Goldsboro, 178 F.3d
231, 251 (4th Cir. 1999).12
12
It is worth noting that even if we were reviewing the Wisconsin
decisions we are about to discuss—both of which are criminal
cases—pursuant to petitions for a writ of habeas corpus, see 28 U.S.C.
§ 2254, the conflict between those decisions and our own decision in Pichany
as to the appropriate scope of the community caretaker exception would
not by itself support habeas relief. Pursuant to the Antiterrorism and
Effective Death Penalty Act of 1996, the state decisions would have to be
(continued...)
62 No. 12-2272
Although our decision in Pichany refused to extend the
community caretaking exception recognized by the Supreme
Court in Cady beyond the automobile context, Wisconsin
courts have given the exception a much broader reach. They
have relied on the community caretaking doctrine to justify
warrantless entries into the home when the police have reason
to believe that the occupant may be injured or otherwise in
danger of harm.
The appellate court’s decision in State v. Horngren, 617
N.W.2d 508 (Wis. Ct. App. 2000), applied the doctrine in the
context of a reported suicide threat to hold that a warrantless
entry into and search of a home under circumstances much like
those presented here was lawful. The police in that case had
received a call reporting that Horngren had threatened to kill
himself. While en route to Horngren’s apartment, the respond-
ing officers were further advised he had a history of prior
suicide threats (and had once been committed to a mental
health facility for such a threat), and that he had (lawfully)
possessed multiple firearms. When they arrived at the apart-
ment, the officers knocked on his door and discovered it was
unlocked. When one of the officers leaned on the door, causing
it to open slightly, a naked Horngren rushed to the door and
tried to push it shut without success. The officers forced the
12
(...continued)
“contrary to, or involve[ ] an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of the United States,”
in order to support the issuance of a writ. § 2254(d)(1) (emphasis ours). See
Marshall v. Rodgers, 133 S. Ct. 1446, 1450-51 (2013) (per curiam); Williams v.
Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523 (2000); Morales v. Boat-
wright, 580 F.3d 653, 662-63 (7th Cir. 2009).
No. 12-2272 63
door open, placed Horngren in handcuffs, and then conducted
a sweep of the apartment in order to determine whether there
was someone else present, as Horngren told them there was.
During that sweep, they came across marijuana that was in
plain view. That discovery (along with drug paraphernalia
found pursuant to a subsequent consensual search of the
premises) led to criminal charges against Horngren. He sought
to suppress the marijuana and drug paraphernalia on the
ground that the warrantless entry into and sweep of his home,
which resulted in the discovery of the marijuana, violated the
Fourth Amendment. The Wisconsin appellate court, however,
held that the entry and sweep were consistent with both the
Fourth Amendment and the corresponding provision of
Wisconsin’s constitution, as the police were not engaged in
traditional law enforcement when they entered Horngren’s
home but rather community caretaking. Id. at 511. The court
applied a two-part test to determine whether the community
caretaker exception to the warrant requirement applied, first
confirming that the police were engaged in bona fide commu-
nity caretaking activity, that is, activity “totally divorced from
the detection, investigation, or acquisition of evidence relating
to the violation of a criminal statute,” id. (internal quotation
marks and citations omitted), and second, weighing the public
good served by the actions of the police against the level of
intrusion on the individual’s privacy, and determining in light
of that balance whether the police action was reasonable on the
facts and circumstances of the individual case, id.
Citing section 51.15, the court observed that the police had
a legitimate interest in Horngren’s well-being, given the
reported suicide threat, that permitted them to enter the home
64 No. 12-2272
against Horngren’s consent. “Truly, the motivation in investi-
gating the complaint was to render aid, not to investigate any
criminal activity.” Id. at 511. Given the potential danger to
Horngren’s well-being, the public interest also supported the
degree of intrusion upon Horngren’s privacy. Id. at 512.
Preventing an individual from taking his own life was of the
“utmost public concern.” Id. The circumstances were also
genuinely exigent: the police were acting in response to an
emergency call and to the circumstances presented to them;
and no less intrusive means of responding to the exigency were
feasible under the circumstances.
The sweep of the premises was likewise permissible: the
court noted that a protective sweep is authorized to ensure the
safety of the police and others present on the premises. Id. at
513. Horngren had indicated to the officers that a girl was
present but she had not shown herself despite the officers’
struggle with him; it would have been unreasonable, in the
court’s view, for the police not to check on her status. And
because they discovered the marijuana in plain view during
the check for the girl, the court concluded that the marijuana
should not be suppressed. Id. at 513-14.
In State v. Pinkard, 785 N.W.2d 592 (Wis. 2010), the Wiscon-
sin Supreme Court—applying both the Fourth Amendment
and its Wisconsin counterpart—likewise sustained the
warrantless entry into, and sweep of, a dwelling, this time in
response to a report suggesting that the occupants were
unconscious, possibly as the result of drug abuse. There, a
police officer had received a tip that two people were seen
sleeping in a residence next to cocaine, money, and a digital
No. 12-2272 65
scale; the back door to the residence was reportedly standing
open. Police responded to the tip, saw that the back door (the
main entrance to the residence) was indeed standing three-
quarters of the way ajar, knocked and announced themselves
to no response, and entered the dwelling. Upon looking
around, they saw an open bedroom door and two people
sleeping inside of that bedroom. They announced themselves
loudly a second time to the occupants, and after again receiv-
ing no response, entered the bedroom. There, in plain view,
they observed both powder and crack cocaine, marijuana, and
a digital scale. Ultimately, they had to physically shake one of
the occupants—Pinkard, the defendant—awake, after which
they arrested him for possession of the drugs.13
The court held that the warrantless entry into the defen-
dant’s home constituted a legitimate exercise of the community
caretaking function of the police. Consequently, the drugs and
drug paraphernalia discovered in the home were admissible
against Pinkard at trial.
At the outset, the court expressly rejected Pinkard’s
contention that the community caretaking exception first
recognized by the United States Supreme Court in Cady was
limited to searches of automobiles. The court instead declared
that the community caretaking function may also justify the
warrantless entry into a home, depending on the totality of the
13
They subsequently found a gun underneath the mattress. However, the
trial court granted the defendant’s motion to suppress the gun, finding that
searching beneath the mattress exceeded the bounds of the police officers’
community caretaking function. That ruling was not appealed by the State.
785 N.W.2d at 596.
66 No. 12-2272
circumstances confronting the police. Id. at 598-601. Whether
the police were serving a bona fide community caretaking
function when they entered Pinkard’s home presented a
“close” question, in the sense that the information reported to
the police not only raised a legitimate concern for the occu-
pants’ safety but also implicated the occupants in criminal
activity. Id. at 603. But the court declined to take a narrow view
of the community caretaking exception and limit the exception
only to cases in which the sole motivation for police action is
the safety and well-being of a dwelling’s occupant; community
caretaking and law enforcement objectives are not mutually
exclusive, the court reasoned. Id. at 604-05.14
With that point settled, the court considered whether the
community caretaker exception justified the warrantless entry
into and sweep of Pinkard’s home. After ascertaining that a
Fourth Amendment search or seizure had occurred, id. at 602,
the court engaged in the same two-part inquiry that the
appellate court had in Horngren: (1) were the police exercising
14
By contrast, some scholars have advocated for a rule conditioning
application of the community caretaking doctrine on evidence that the
police were animated primarily or solely by a community caretaking
purpose, as opposed to a criminal law enforcement purpose, when they
took warrantless action. See Dimino, 66 WASH. & LEE L. REV. at 1528-40;
Decker, 89 J. CRIM. LAW & CRIMINOLOGY at 510-12; cf. People v. Mitchell, 347
N.E.2d 607, 609 (N.Y. 1976) (finding warrantless entry into defendant’s
hotel room to be justified under emergency aid doctrine, in part because
police had no motive to apprehend and arrest defendant or to seize
evidence), abrogated by Brigham City, 547 U.S. at 404-05, 126 S. Ct. at 1948 (in
emergency aid situation, “[t]he officer’s subjective motivation is irrele-
vant.”).
No. 12-2272 67
a bona fide community caretaking function, and, if so, (2)
whether the public interest outweighed the intrusion upon the
privacy of the individual, such that the officers’ exercise of
their community caretaking function was reasonable. See id. at
601.
The court answered these questions in the affirmative. In
this case, the police had a legitimate concern for the well-being
of the unconscious, unresponsive occupants of the house. Id. at
603-04. Balancing the public interest served by police action
against the intrusion on Pinkard’s privacy interests, id. at 605,
the court concluded that the former outweighed the latter: it
was possible that the occupants may have overdosed on drugs
and thus required urgent medical assistance, and the fact that
the door to the residence was left ajar suggested that the
occupants were unable to look out for their own interests, id.
at 606-08. In short, given the totality of the circumstances, the
entry into the house and then the open bedroom constituted a
reasonable exercise of the police officers’ community caretak-
ing function. Id. at 608. And as the drugs were observed in
plain view in the bedroom, they were admissible against the
defendant at trial. Id.15
15
See also, e.g., State v. Ziedonis, 707 N.W.2d 565 (Wis. Ct. App. 2005)
(sustaining warrantless entry into defendant’s home—wherein both
unlawfully possessed firearms and marijuana were observed in plain
view—on basis of community caretaker doctrine, where police, in attempt
to solicit defendant’s help in corralling his dogs, which were running loose
outside his residence and causing a disturbance in the middle of the night,
saw that back door of defendant’s home was open by several inches, and
defendant did not respond to repeated and prolonged efforts to announce
(continued...)
68 No. 12-2272
Based on these decisions, the officers who forcibly entered
Sutterfield’s home could have believed that their entry was
justified by the community caretaking doctrine as understood
and applied by the Wisconsin courts. They had a section 51.15
statement of emergency detention to execute based on the
suicidal remark Sutterfield had made to her physician earlier
that day. Sutterfield would not voluntarily admit the officers
to her home; and her behavior, if not erratic, did nothing to
allay the concerns raised by the physician’s report to the police.
The entry was made in a bona fide effort to assure Sutterfield’s
well-being; there has never been any suggestion that the police
were acting for a law enforcement motive. In relevant respects,
the circumstances of this case, as we have noted, were substan-
tially similar to the circumstances that the appellate court in
Horngren found sufficient to justify a forcible entry. Based on
both that precedent and Pinkard, the police reasonably could
have thought that the public interest in safeguarding Sutter-
field’s life outweighed the intrusion into the privacy of her
home.
15
(...continued)
their presence and have him come to door); State v. Ferguson, 629 N.W.2d
788 (Wis. Ct. App. 2001) (sustaining warrantless entry into defendant’s
bedroom and closet—wherein marijuana plants were discovered—as
legitimate exercise of community caretaker function, where occupants of
bedroom did not respond to officers’ repeated knocks and yells, there were
multiple indicia elsewhere in the apartment that juveniles had been
drinking substantial amounts of alcohol, and defendant had not been seen
at work in several days; officers were justified in both entering bedroom
and checking closet to make sure there was no one inside who needed
assistance).
No. 12-2272 69
The decision to forcibly open and search the locked
compact disc case discovered in the course of the protective
sweep presents a closer question in terms of the officers’
qualified immunity, just as it does on the merits of Sutterfield’s
Fourth Amendment claim. No Wisconsin case that has been
cited to us or that we have found has relied on the community
caretaking doctrine to justify any search of the premises more
intrusive than the sort of limited, protective sweep envisioned
by Buie—that is, a search of places within the home that
another person might be found. 494 U.S. at 335-36, 110 S. Ct. at
1099. The gun, having been secured within a locked, opaque
case, obviously was not in plain view, in contrast to the drugs
found in both Horngren and Pinkard. Opening the case was a
substantial step beyond the standard protective sweep, and
constituted a more substantial intrusion on Sutterfield’s
privacy interests in her personal effects.16
Even so, a police officer might have thought the search of
the case justified by the circumstances presented to him and
the broader articulation of the community caretaking doctrine
16
Compare State v. Toliver, No. 2010AP484-CR, 2011 WL 228889 (Wis. Ct.
App. Jan. 26, 2011) (nonprecedential decision) (community caretaker
doctrine justified officer’s decision to open purse and look for identifica-
tion, where officer was responding to report of possible suicide attempt and
arrived to discover purse left unattended in common area outside of
duplex), with State v. Kuczor, No. 2009AP1077-CR, 2009 WL 3103749 (Wis.
Ct. App. Sep. 30, 2009) (nonprecedential decision) (community caretaker
doctrine did not justify warrantless search of defendant’s duffel bag by
deputy who responded to defendant’s one-car accident, notwithstanding
both accident and defendant’s strange behavior, where there were no
particular facts that warranted intrusion into bag and deputy was simply
on a fishing expedition.
70 No. 12-2272
by the Wisconsin Supreme Court in Pinkard. The two-part
inquiry set forth in Pinkard asks first whether the police acted
for a community-caretaking purpose and second whether, on
the totality of the circumstances, the public interest served by
the police action outweigh the intrusion upon the individual’s
privacy. Although we have not found any Wisconsin case that
invoked the community caretaking doctrine to sustain a search
akin to that here, neither have we found anything that would
preclude this result when the search is conducted for purposes
of protecting someone’s safety or well-being. We can imagine,
for example, that in the case of a reported suicide attempt by
drug overdose, a Wisconsin court might sustain the search of
someone’s medicine cabinet, nightstand, or purse in an effort
to locate drugs that the individual has taken or might take. See
Stricker v. Tp. of Cambridge, supra, 710 F.3d at 362 (sustaining the
warrantless search of home, including drawers and cabinets,
where drug overdose of occupant had been reported and such
search might yield clues as to what occupant had ingested).
Indeed, the U.S. Supreme Court’s analysis in Brigham City
theoretically might recognize such a situation as an emergency
that justifies a warrantless search of this kind.17
17
See State v. Hooper, No. 2009AP575-CR, 2009 WL 4806889 (Wis. Ct. App.
Dec. 10, 2009) (nonprecedential decision) (finding search of defendant’s
dresser justified by community caretaker exception, where defendant had
summoned emergency assistance with report that she had taken cocaine and
was having difficulty breathing, emergency medical personnel arrivedto find
her incoherent and unresponsive, medical personnel instructed police to look
around defendant’s apartment for any harmful substance defendant might
have ingested, officer saw a mirror on top of dresser with powdery residue
on it, and officer looked in dresser drawer and discovered cocaine).
No. 12-2272 71
Here, there is no question that the police searched the
compact disc case not for law enforcement purposes but rather
out of a safety concern. And the police might reasonably have
concluded that although forcing open the case was a significant
intrusion upon Sutterfield’s privacy, it was amply justified by
the public interest in protecting both her safety and well-being
as well as that of anyone else who either lived with her or had
access to her home, including in particular a minor. Given the
nature of Sutterfield’s threat to harm herself and her physi-
cian’s report that she likely possessed a gun, police had reason
to look for any firearm that Sutterfield might use to harm
herself. And although there was nothing but Floriani’s hunch
that suggested there might be a gun inside of the case, the
locked case was a logical place to look for a gun.
For essentially the same reasons, we believe that a reason-
able police officer might have thought, upon discovery of the
gun, that he was authorized by his community caretaking
function to seize the gun for safekeeping. Given the breadth
that the Wisconsin courts have given to the community
caretaking doctrine, and the fact-specific balancing of public
versus private interests in which they engage when the police
take action as they did here to safeguard an individual’s well-
being, a police officer might think he would be authorized to
seize an obvious implement of harm from an individual who
has threatened to kill herself and is being taken into custody
pursuant to section 51.15 for an emergency mental health
evaluation. Regardless of Sutterfield’s legal right to possess the
gun, there is an obvious and powerful logic and prudence
supporting the decision to take the gun into police custody. See
72 No. 12-2272
Florida v. J. L., 529 U.S. 266, 272, 120 S. Ct. 1375, 1379 (2000)
(“Firearms are dangerous, and extraordinary dangers some-
times justify unusual precautions.”).18 The police knew that
Sutterfield had threatened to harm herself and was potentially
in a volatile state of mind, that her psychiatrist believed she
was in need of an intervention, and that, pursuant to section
51.15, Sutterfield was facing a short-term commitment for
evaluation and potentially a longer term commitment if
professionals confirmed she indeed posed a danger to herself.
They had no idea whether she would be released within a day,
a week, or a month. And they had no idea who, in the
meantime—including her son—might have access to her home
and to the unattended gun. Seizing the gun might not have
been the only step they could have taken to prevent the gun
from being misused or falling into the wrong hands, but it was
a rational and defensible step. See Mora v. City of Gaithersburg,
supra, 519 F.3d at 227-28 (sustaining seizure of individual’s
guns and ammunition for public safety, after individual had
been seized for involuntary mental health admission for
making remarks indicating he might kill himself and possibly
his co-workers); United States v. Harris, supra, 2014 WL 1356822,
18
See also State v. Kucik, No. 2009AP933-CR, 2010 WL 4633082, at *11 (Wis.
Ct. App. Nov. 16, 2010) (nonprecedential decision) (Fine, J., concurring)
(where defendant had been detained pursuant to section 51.15 after
assaulting cousin and threatening life of both cousin and aunt—including
threat to put a bullet in aunt’s head—and guns were seen in plain view in
glass-fronted gun cabinet, it was reasonable for officers to take custody of
defendant’s guns as safety measure in exercise of their community
caretaking function, given that they did not know how long defendant
would otherwise be separated from his guns).
No. 12-2272 73
at * 3 & n.4 (sustaining temporary seizure of gun falling out of
sleeping man’s pocket).
For all of these reasons, the defendants are entitled to
qualified immunity for the warrantless entry into Sutterfield’s
home, the search of the locked compact disc case, and the
temporary seizure of the gun found inside of the case. The
police were faced with a difficult situation in which they had
reason to believe, based on her physician’s report, that Sutter-
field might pose a danger to herself, they were implementing
an emergency detention of her person for evaluation pursuant
to section 51.15, and they were logically attempting to find the
firearm they had reason to believe Sutterfield possessed and to
secure that firearm while Sutterfield was undergoing a mental
health evaluation. Notwithstanding the uncertainty as to which
legal framework best applies to the warrantless actions of the
police in these circumstances, the police could have believed
that Wisconsin precedents, if not the federal cases, authorized
them to take these actions in order to protect Sutterfield’s well-
being as well as the well-being of anyone else, including her
son, who might have access to her home in her absence.
III.
Based on the Supreme Court’s decision in Brigham City and
this court’s decision in Fitzgerald, we conclude that the warrant-
less entry into Sutterfield’s home was justified. Under the
circumstances confronting the defendant police officers, they
had an objectively reasonable basis for believing that Sutter-
field posed an imminent danger of harm to herself; the
circumstances thus constituted an emergency which dispensed
with the need for a warrant under the exigent circumstances
74 No. 12-2272
exception to the Fourth Amendment’s warrant requirement.
Alternatively, even if the entry into Sutterfield’s home was
inconsistent with the Fourth Amendment, a reasonable person
would not have known that the entry violated Sutterfield’s
clearly established rights; the officers would therefore be
entitled to qualified immunity on the unlawful entry claim.
Similarly, although we have assumed arguendo that both the
search of the compact disc case in Sutterfield’s home and the
seizure of the (lawfully-possessed) gun found inside of that
case were contrary to the Fourth Amendment, we conclude
that the defendant officers are entitled to qualified immunity
on the unlawful search and seizure claims. We do not address
Sutterfield’s summary contention that the officers’ seizure of
her person for purposes of an emergency mental health
evaluation pursuant to Wisconsin Statutes section 51.15 was
contrary to the Fourth Amendment, as she has not adequately
preserved that argument. Neither do we address Sutterfield’s
contention that the seizure of her lawfully-possessed handgun
violated her Second Amendment right to possess a firearm for
the purpose of self-defense, as Sutterfield has not adequately
developed and supported that contention, nor has she shown
any defect in the available means of regaining possession of her
gun from the authorities.
The judgment of the district court is AFFIRMED.
No. 12-2272 75
MANION, Circuit Judge, concurring.
I am pleased to join the court’s thorough and scholarly
opinion. After examining many of the problems, the court
reaches the correct conclusion that the actions of the police
officers were well within the shelter of qualified immunity
provided by state and federal judicial opinions interpreting
and applying the Fourth Amendment. I write separately only
with the hope of encouraging legislatures to provide for a
judicially-issued civil warrant process that would authorize
law enforcement to enter someone’s home when there is
probable cause to believe that she poses a risk to herself or
others because of mental illness.
In this case we are able to determine that exigent circum-
stances justified the police forcing their way into a private
dwelling in order to protect the owner. But there was no other
legal authority to enter her home against her will.
I recognize that allegations of mental health risks can have
dramatic implications on privacy, liberty, and property rights.
After receiving some due process, those determined to be
mentally ill may lose certain fundamental rights, the same as
a criminal. See 18 U.S.C. § 922(d); Jana R. McCreary, “Mentally
Defective" Language in the Gun Control Act,” 45 CONN. L. REV.
813 (2013). What we do not seem to have is a law that strikes a
balance that protects those rights at least as much as it does the
rights of the criminally accused, while still allowing for swift
and effective responses by the police. Here, exigent
circumstances enabled the police to bypass some legal barriers.
But in very limited circumstances, as here, when the police are
positioned to enter a private home against the owner’s will, it
76 No. 12-2272
would be very helpful, for example, if the state legislature of
Wisconsin were to amend Wis. Stat. § 51.15 to allow the option
of having what in this case is called the “Statement of Emer-
gency Detention” approved by a judge. Then, the document
could be a sort of civil warrant on par with an arrest warrant.
It would allow the police to rely on the document to enter the
home when the owner-occupant is believed to pose a risk to
herself or others. By providing the police with the ability to
obtain a civil warrant prior to entering the home of such a
person, they will have a more clearly established method that
is safely within the confines of the law and which protects
personal property and privacy.
Because the court resolved the issues before it consistent
with controlling precedent, I fully concur.