RACINE — It’s been about five months since the Wisconsin Supreme Court rattled privacy advocates by further broadening law enforcement’s ability to use evidence obtained without a search warrant.

Now, two local lawyers are asking the U.S. Supreme Court to examine what they argue has become an overly expansive use of the “community caretaker” exception — a provision police can use to justify searching private places without a warrant if they believe the search is necessary to protect the public.

Racine Attorneys Mark Richards and Brian Dimmer were first faced with the exception and its application in January 2012 when they were hired to represent Charles V. Matalonis, a Kenosha man charged with manufacturing and delivering marijuana.

According to his criminal complaint, officers with the Kenosha Police Department were called to Matalonis’ home after they found his brother bloodied at a nearby residence and a trail of blood leading from that residence to Matalonis’ home.

When they arrived at Matalonis’ home they allegedly saw blood smeared on the front door and heard two loud “bangs” from inside the home. Charles Matalonis, who was 18 at the time, let police inside the home, stating that he lived alone and had been fighting with his brother.

After searching the residence and reportedly finding blood smears and spatters in various locations, as well as evidence of marijuana use, the officers asked to enter a locked room on the second floor.

The door had a few blood spatters and police later argued that they were concerned that another injured person might be in the room and in need of help. After obtaining a key to the room, the officers found four marijuana plants.

Just how the officers obtained the key to enter the locked room — whether they threatened to kick down the door if Matalonis didn’t give them a key or if Matalonis provided it willingly — was heavily disputed at trial court.

Matalonis moved to suppress the evidence obtained during the search, arguing that the search was illegal because police had no probable cause to believe there was someone in need of help behind the door.

Kenosha County Circuit Judge Wilbur W. Warren III denied the motion to suppress in April 2013. Matalonis appealed that decision.

The state Court of Appeals reversed Warren’s ruling in January 2015, stating that search did not fall within the “community caretaker” exception, but less than a year later the state Supreme Court accepted a state petition to review the case.

In a 4-3 ruling issued in February, the state Supreme Court upheld the lower court’s decision, determining that the evidence was indeed admissible.

In addition to troubling those concerned about 4th Amendment rights, the decision rankled some because Justice Rebecca Bradley — a Gov. Scott Walker appointee who had not heard the oral arguments in the case — joined the majority.

Without Bradley’s vote, the court would have been split on the issue, allowing the Court of Appeals decision to stand.

In their petition to the U.S. Supreme Court in June, Richards and Dimmer asked the justices not only to consider whether the officers correctly applied the “community caretaker” exception, but whether the “community caretaker” exception itself is innately flawed or flies in the face of the 4th Amendment, which protects citizens against unreasonable searches and seizures.

“We’re basically taking 10 steps back and now we’re looking at whether that (exception) in and of itself is constitutional,” Dimmer said, noting the increased use of the provision.

Writing for the majority in the state Supreme Court decision, Justice Annette Ziegler stated that officers correctly applied the exception arguing that “they reasonably concluded based on the evidence before them that their assistance was needed to verify the blood in Matalonis’ house did not belong to an injured person other than (his brother).”

State Supreme Court Justice David Prosser, speaking for the three dissenting justices, wrote that while officers “should not hesitate to assist members of the public when time is of the essence,” the majority’s embrace of a broad, ever-expanding version” of the (community caretaker) exception risks transforming” the provision “into an investigatory sword.”

The question of whether the exception is constitutional becomes of even greater importance given the recent concerns over police use of force, Dimmer said.

“Where do we draw the lines?” he said of the state Supreme Court ruling.

“I am not suggesting that officers are going to take this opinion and do random knocks, but it is not pointing to more privacy, it is pointing to less privacy.

“It is another step toward a society where we are living with basically no right to privacy at all; where the unknown is the basis for the police getting involved.”

The U.S. Supreme Court could decide this fall whether it will accept the case.

“Where do we draw the lines? ... (the state Supreme Court decision) is another step towards a society where we are living with basically no right to privacy at all; where the unknown is the basis for the police getting involved.”— Attorney Brian Dimmer of Racine

Courtesy of: Racine Journal Times Cara Spoto