State v. Andrew R. Netzer ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 30, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2019AP840-CR Cir. Ct. No. 2018CF40
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ANDREW R. NETZER,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Wood County:
TODD P. WOLF, Judge. Affirmed.
Before Fitzpatrick, P.J., Kloppenburg and Nashold, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP840-CR
¶1 PER CURIAM. Andrew Netzer appeals a judgment convicting him,
based upon the entry of no-contest pleas, of possession of a firearm by a felon and
endangering safety by use of a dangerous weapon. Netzer challenges a suppression
ruling that would have allowed at trial the admission of evidence seized after a
warrantless search of his home. We conclude that the challenged search was
constitutionally permissible as a protective sweep performed incident to the exercise
by police of their community caretaker function. We therefore affirm.
BACKGROUND
¶2 J.S.C.1 contacted police to request a welfare check on R.E.K. J.S.C.
reported that Netzer, the ex-boyfriend of R.E.K., had shown up at J.S.C.’s apartment
while R.E.K. was there. After Netzer pointed a gun at J.S.C., R.E.K. left with
Netzer. Later, R.E.K.’s mother also spoke with police and relayed a concern for
R.E.K.’s safety.
¶3 R.E.K. failed to respond to multiple attempts by her mother, J.S.C.,
and the police to reach her by phone call or text. The police eventually discovered
R.E.K.’s car parked outside of Netzer’s apartment and the police knocked on the
door of the apartment. When Netzer answered the door, some officers removed him
from the apartment while other officers entered the apartment to look for R.E.K. and
also conduct a protective sweep to identify any other persons who might be present
and any potential threats.
1
This matter involves the victims of a crime. WISCONSIN STAT. RULE 809.86(4) (2017-
18) requires parties to identify crime victims “by one or more initials or other appropriate
pseudonym or designation.” Consistent with that rule, this court will also refer to the victims in
this matter by their initials.
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
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No. 2019AP840-CR
¶4 Officer Landon Kramer was one of the officers who performed the
protective sweep. Upon entering the apartment, Kramer immediately proceeded
past the living room, down a hall, and into a bedroom without noticing anyone. In
a walk-in closet of the bedroom, Kramer observed the butt of a gun at about eye
level on the edge of a shelf. Kramer was not aware while conducting the sweep
whether R.E.K. had been located. Kramer reported seeing the gun to his shift
commander, Lieutenant Jody Geurink, who subsequently directed another officer to
collect the weapon without obtaining a warrant.
¶5 Meanwhile, while Kramer had been searching the bedroom and closet,
R.E.K. came from somewhere in the back of the apartment and approached the
officers who were detaining Netzer. Geurink described R.E.K. as “upset” and the
situation as “chaotic” for a few moments. Geurink separated R.E.K. from Netzer
without speaking to her so that the police could finish their sweep, to make sure
there was no one else in the apartment and that it was safe to continue the
investigation.
¶6 The State charged Netzer with several offenses arising from the
incident and Netzer moved to suppress the gun evidence. The circuit court
determined that police had entered the apartment pursuant to a valid exercise of their
community caretaker function and that they had discovered the gun in plain view
during a permissible protective sweep. After the court denied Netzer’s suppression
motion, Netzer negotiated a plea agreement with the State. He now appeals, seeking
review of the suppression ruling. See WIS. STAT. § 971.31(10) (preserving the right
to appeal a suppression ruling after a plea).
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No. 2019AP840-CR
STANDARD OF REVIEW
¶7 When reviewing a motion to suppress evidence, we will uphold the
circuit court’s findings of fact unless they are clearly erroneous. WIS. STAT.
§ 805.17(2); State v. Hindsley, 2000 WI App 130, ¶22, 237 Wis. 2d 358,
614 N.W.2d 48. However, we will independently determine whether the facts
found by the court satisfy applicable constitutional provisions. Id.DISCUSSION
¶8 The Fourth Amendment to the United States Constitution and article
I, section 11 of the Wisconsin Constitution protect the right to be free from
unreasonable searches.2 State v. Dearborn, 2010 WI 84, ¶14, 327 Wis. 2d 252, 786
N.W.2d 97. A warrantless search is per se unreasonable unless it falls within a
clearly delineated exception. State v. Artic, 2010 WI 83, ¶29, 327 Wis. 2d 392, 786
N.W.2d 430.
¶9 One such exception to the warrant requirement occurs when the police
are serving as community caretakers. State v. Ultsch, 2011 WI App 17, ¶10, 331
Wis. 2d 242, 793 N.W.2d 505. In determining whether a search or seizure is
justified under the community caretaker exception, a court must consider both
whether the challenged police conduct qualifies as bona fide community caretaker
activity and also whether the public interest outweighs the intrusion upon the
privacy of the individual under the circumstances of the case. Id., ¶13. Bona fide
community caretaker activity requires an objectively reasonable basis to believe
2
Due to the similarity of article I, section 11 of the Wisconsin Constitution to the Fourth
Amendment of the United States Constitution, Wisconsin courts look to the Supreme Court’s
interpretation of the Fourth Amendment for guidance in construing the state constitution. State v.
Roberts, 196 Wis. 2d 445, 452-53, 538 N.W.2d 825 (Ct. App. 1995).
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No. 2019AP840-CR
there is a member of the public in need of assistance. Id., ¶15. The balancing test
requires an objective analysis of the reasonableness of the police conduct in light of
such factors as the urgency of the situation facing the officer and the availability of
less intrusive alternatives. Id., ¶¶25-28.
¶10 When police lawfully enter a residence in the performance of their
community caretaker function, they may also conduct a protective sweep when they
reasonably believe—based on specific and articulable facts, given the totality of the
circumstances—that a search is necessary to assure the safety of officers or others.
State v. Maddix, 2013 WI App 64, ¶15, 348 Wis. 2d 179, 831 N.W.2d 778. A
protective sweep must be limited to a cursory inspection of those places where a
person posing a danger might reasonably be located. State v. Sanders, 2008 WI 85,
¶33, 311 Wis. 2d 257, 752 N.W.2d 713.
¶11 Netzer does not dispute that police were engaged in bona fide
community caretaker activity when they arrived at his door or that the public interest
warranted the initial warrantless entry into his apartment to search for R.E.K.
Netzer also concedes that the gun was in plain view in the closet.
12 Netzer contends, first, that any valid community caretaker function
ended the moment R.E.K. made contact with the police and they were able to
observe that she appeared uninjured. From that premise, he argues that it was
unreasonable for the police to continue searching his apartment and to discover the
gun. Second, Netzer contends that the search of the closet exceeded the permissible
scope of a protective sweep incident to arrest because the police had no reason to
believe there was anyone else present in the apartment who would present a danger.
¶13 Netzer’s contention that the community caretaker activity had ended
before the gun was discovered is flawed in multiple respects. First, Kramer testified
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No. 2019AP840-CR
that he began his protective sweep and was already in the bedroom before R.E.K.
appeared and made contact with the police. Geurink similarly testified that the
protective sweep was already underway when R.E.K. came out from the back of the
apartment. Given that the events were occurring contemporaneously, there is no
way to conclusively determine whether Kramer had already seen the gun by the time
Geurink or other officers observed that R.E.K. appeared uninjured. Even if Kramer
had not yet seen the gun by that point, Geurink’s description of a chaotic situation
suggests that there would not have been time for anyone to tell Kramer to
discontinue the sweep before it had been completed. Moreover, there is no
indication in the record that R.E.K. immediately identified herself or that any of the
officers on scene recognized her, and the record indicates that the police did not
speak with R.E.K. until after the protective sweep had been completed. In sum, the
community caretaker function was ongoing until the police had verified R.E.K.’s
identity and well-being, and there is no factual basis to conclude that had occurred
before the gun was discovered.
¶14 Because we conclude that the gun was discovered during a protective
sweep while the police were engaged in community caretaking, we need not address
Netzer’s argument that the protective sweep was outside the scope of a search
incident to arrest, or the State’s alternate arguments that the search was justified by
exigent circumstances or the emergency doctrine.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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