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Attorney says police should have obtained warrant

Mike Heine/The Week

(Published Dec. 05, 2007, 10:05 a.m.)

Town of Linn police should have gotten a search warrant before forcing their way into a home Nov. 4 and ticketing 11 minors for obstructing an officer and underage drinking, said the attorney for the 17-year-old accused of hosting the party.

“It’s another situation where police are too lazy to go and get a warrant, so they come up with some pretextual situation,” said attorney Larry Steen, a former police officer.

The case is similar to an underage party bust by Rock County deputies the same day.

In both cases, police entered a home under their “community caretaker” roles, saying they believed teens might be in danger, according to police reports.

A Dane County prosecutor told The Janesville Gazette that the Rock County investigation was a “fine-line case” and a “tough case for police.”

In Walworth County, police were dispatched to a group of suspicious vehicles parked in a field off Fair Oaks Road the night of Nov. 3.

According to the police report:

A boy came out of a nearby home and told questioning officers that there was a party was going on with alcohol.

After having the cars towed, police knocked on the windows and doors of the home on Wooddale Drive and made calls to people suspected to be inside. Nobody came out despite officers’ demands.

An officer knocked on a basement window, which opened, and reported seeing juveniles in a basement.

On a second look through the window, an officer noticed an unresponsive male laying on a bed. Fearing the male was “passed out and possibly suffocating,” the officer called Chief Dennis Wisniewski, who instructed officers to force entry into the home.

Police kicked in the door and started issuing citations.

“We have an obligation to protect the public,” Wisniewski said. “Certainly, if we have an individual laying on a bed unresponsive—especially face-down and knowing alcohol was involved—I would be negligent in my duty if I didn’t do something. I’m not going to leave anybody laying there.”

An attorney representing the party’s 17-year-old host said police had other ideas when kicking down the door.

“They were looking for some way to go in. If they hadn’t observed that kid, they would have observed someone else,” Steen said. “That is not what the Fourth Amendment is all about.”

Steen’s client told him he heard police talking about the community caretaker rule, which allows them to enter a home if they feel someone is in danger. However, that rule doesn’t allow officers to go inside with an intent to make arrests, Steen said.

“If cops do this once, they’re going to do it again,” Steen said.

Police went inside only to check on the welfare of the unresponsive boy, Wisniewski said. Had the boy moved when police were yelling through the window, he doubts his officers would have been ordered inside.

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