Party bust is 'fine-line' case

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Mike DuPre'
Saturday, November 24, 2007

Rock County deputies think they had a responsibility to enter a rural Edgerton home without a search warrant earlier this month because the rowdy teen drinking party inside could have endangered the young drinkers.

The legal reasons they cite are valid, said Paul Merkle, a longtime public defender in Rock County, but it’s a close call whether they should have called for a warrant or forced their way in as they did.

Rock County sheriff’s deputies broke into the home at 5390 W. River Oaks Road early the morning of Sunday, Nov. 4. The case raises broader questions about what law officers may and may not do when they are denied access to a house where they believe people—often teenagers—are violating the law.

They acknowledge they forced their way into the party but said in reports and interviews that they did so out of concern about:

-- Possible alcohol poisoning.

-- Vulnerability of possibly highly intoxicated underage girls.

-- Possible presence of guns in the hands of drunken kids.

-- Overall safety of drunken teenagers.

-- Obvious criminal damage to property.

Deputies ticketed a dozen underage drinkers, and they made a drunken-driving arrest near the home before the entry but in connection with the party.

Derek W. Trickle, 24, M1536 Rockvale Road, Edgerton, was cited for procuring alcohol for underage people, and Cody J. Hinkle, 20, of 107 W. Lawton St., Edgerton, was arrested on several charges.

Legal reasons

Though obvious, the vandalism in and of itself was not enough legal reason to enter the home without a search warrant, said two sheriff’s department sergeants and Brian Blanchard, Dane County district attorney.

Rock County District Attorney David O’Leary declined to comment because the case is pending.

The criminal damage was just one factor in the "totality of circumstances," said Sgt. Michael Mugnani, who decided to force entry.

On their way to the house for a loud party complaint, deputies stopped a car driving on lawns near the party.

The passenger was a 16-year-old girl whose preliminary breath test showed the relatively high blood-alcohol concentration of 0.20, deputies reported.

She told Mugnani that other high school students were drinking at the party and drugs possibly were present, according to departmental reports.

When they got to the home, deputies knocked and pounded on the door but got no response other than kids taunting them through windows.

Hinkle was looking out a window, drinking beer and throwing empty beer cans at the window, sheriff’s deputies reported.

"There were beer cans virtually littering every surface. There was half a case of beer out in the front yard," Mugnani said this week. "We could see kids out of control, throwing beer cans."

Through windows, deputies also could see a young man unconscious on the couch, and he did not respond when deputies pounded on the door and shouted.

And they saw a gun-cleaning kit next to the front door, Mugnani said.

His decision to use a crowbar to open the door was based on "the totality of the circumstances and on my training and experience, Mugnani said. "I’ve been doing this since 1981. …

"If I see a gun-cleaning kit right by the doorway, I’ve got to think there’s a good possibility guns are in the house."

He pointed out that police often deal with possibly lethal alcohol poisoning in young people.

Community caretakers

Police can enter private property without warrants if there are urgent circumstances such as hot pursuit of a suspected criminal, the probability that evidence such as drugs will be immediately destroyed or if they think someone is in danger of death or serious injury, Blanchard explained.

Entering to prevent death or injury comes under the responsibility of police to be community caretakers, Blanchard explained.

"If you believe someone is having a heart attack or stroke, you immediately bust in. This person needs help," Blanchard said.

He declined to comment on the specific case, but the district attorney offered general opinions when factors were described to him.

"If I see people throwing things in a house, throwing beer cans, the threat to others might be raised. It’s a fine-line case," Blanchard said.

Asked about entry without a warrant if deputies saw what they thought to a passed-out, unresponsive person, Blanchard replied:

"That kind of thing absolutely could be considered community caretaker. This is a tough case for police."

He noted that deputies could be faulted either way: For not entering when teens could be drinking themselves to death and for going overboard by entering a simple party without a search warrant.

‘A close case’

Assistant public defender Merkle agreed that police have the right to enter without a warrant under urgent circumstances and in their community caretaker role.

But he added:

"This is a close case. They’re (deputies) making a lot of conclusions based on what they see. But the facts could be construed another way."

For instance, maybe the gun-cleaning kit was out because of the approaching deer season, Merkle said.

And where the deputies were standing—on public or private property—when they saw what they saw could be factor, he said.

At issue would be whether they had a legal reason to go on the property and look through the windows, Merkle said.

The question of entering the home could have been resolved, he said, by calling a judge and asking for a search warrant based on crimes probably being committed.

"Take that guy off the couch, and I think it’s search warrant time," said Sgt. Gary Groelle. "It’s our responsibility to take care of them to some extent.

"If you don’t do something, the liability aspects can be astronomical. You’re balancing the safety of the community with constitutional rights, and it’s based on reasonableness."

Guns, unresponsive men found

Before using the crowbar, Mugnani fired a couple of short bursts of pepper spray through an open window to try to get the celebrants to come out. They closed and locked the window and went to another part of the house.

After they entered the home, deputies found a lot of damage, several long guns such as rifles and shotguns in the basement and four men, ages 18 to 20, passed out in the basement, according to reports.

"It seemed that they were incapacitated to the degree that none of them knew what was going on around them, nor even that we had made entrance to the house," a deputy reported.

The men appeared not only drunk but possibly drugged, and deputies found an empty prescription drug bottle with an empty baggie in it, according to the report.

What they found bore out their concerns, Mugnani said, but he acknowledged that it wasn’t a legal reason to enter without a warrant because deputies discovered it only after they entered the house.

"It was the totality of the circumstances," Mugnani reiterated.

"There is no police action that has one little factor. You take all the factors on balance and see if you can make a decision.”

Last updated: 9:58 pm Thursday, December 13, 2012

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