Home / Legal News / Drunk driver in garage poses exigent circumstances

Drunk driver in garage poses exigent circumstances


“Most people exit their cars shortly after parking at their homes. … We agree with the circuit court that this circumstance, combined with other information, suggested a current intoxication-related health problem.”

Hon. Paul G. Lundsten Wisconsin Court of Appeals

A police officer had exigent circumstances to justify entering the garage of a reportedly highly intoxicated driver who was sitting in his car in the garage, the Wisconsin Court of Appeals held on June 24.

On July 2, 2001, a citizen telephoned police to report what he believed to be an intoxicated driver. The citizen, using a cell phone, called from a tavern parking lot and gave specific information indicating that a man, later identified as Walter Leutenegger, was very intoxicated and was driving a car away from the tavern.

Using information supplied by the citizen, who followed Leutenegger and provided updates, a police officer located Leutenegger sitting in his car in an attached garage to Leutenegger’s home.

After viewing the situation for a short time, the officer approached Leuteneg-ger’s open garage door and proceeded into the garage, making contact with Leutenegger, who was still in his car. After entering the garage, the officer made observations supporting that Leutenegger was intoxicated.

Leutenegger was arrested, and police subsequently obtained a breath test result showing that Leutenegger’s blood alcohol content was .28%. Leutenegger moved to suppress all evidence obtained after the police officer entered his garage.

Dane County Circuit Court Judge Angela B. Bartell concluded that the attached garage was part of the curtilage of the Leutenegger residence and, therefore, the officer’s warrantless entry into the garage was presumptively unconstitutional. However, Bartell concluded that the entry was justified by exigent circumstances, and denied the motion. Leutenegger then pleaded no contest to the charge of operating a motor vehicle while intoxicated, fourth offense.

Leutenegger appealed the denial of the suppression motion, but the court of appeals affirmed in a decision by Judge Paul G. Lundsten.

Subjective Belief

The court first held that the proper standard to apply, in determining whether a warrantless entry is lawful, because of a possible need to render assistance or prevent harm, is a purely objective one.

The court acknowledged that, in State v. Boggess, 115 Wis. 2d 443, 340 N.W.2d 516 (1983), the Supreme Court employed an objective/subjective test. However, more recently, in State v. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, the same court employed a purely objective test. The court of appeals concluded that it must follow this more recent decision.

In Richter, a police officer made a warrantless entry into a mobile home, after being dispatched to a burglary in progress. When the officer arrived, he was flagged down by a person who told the officer that someone had broken into her mobile home and that she had seen the intruder flee her home and enter another mobile home across the street. After observing signs of forced entry, the officer entered the mobile home.

Upholding the entry, under the second category of exigent circumstances — a threat to the safety of a suspect or others — the Supreme Court wrote, “Focusing on what was known and could reasonably be inferred by the officer at the time of the entry, we conclude that [the officer] reasonably believed that the intruder he was pursuing posed a threat to the safety of the occupants of Richter’s trailer. It was the middle of the night. A stranger had just broken into the Champions’ trailer, but was discovered and therefore abandoned whatever crime he intended to commit inside, fleeing into Richter’s trailer across the street. There were obvious signs of forced entry at Richter’s trailer — an open window (in 40-degree weather), and the knocked out screen lying on the ground. It was reasonable to infer from this that the suspect did not belong there but in fact had broken in, just as he did at the Champions. There were people sleeping inside Richter’s trailer at the time the intruder entered, creating a situation fraught with potential for physical harm if something was not immediately done to apprehend the suspect.”

What the court held

Case: State of Wisconsin v. Walter Leutenegger, No. 03-0133-CR.

Issue: Does an officer have exigent circumstances to enter an attached garage, when a reportedly very drunk driver is seated in his car in the garage?

Holding: Yes. Because the driver could back out of the garage, and because he may need assistance, the entry is reasonable.

Counsel: Bill Ginsberg, Madison, for appellant; Gregory M. Weber, Madison; Jonathon G. Kaiser, Madison, for respondent.

Applying Richter to the case at bar, the court of appeals reasoned, “The State makes essentially the same argument here that it made in Richter: that exigent circumstances justified the warrantless entry because there was reason to believe Leutenegger was in need of assistance or still posed a threat to others. We discern no reason why the test should be different when the person suspected of being in danger or of posing a danger is a suspect, rather than some other party. In these situations, it is the urgent need to enter because of the possible need to render immediate assistance or prevent harm that justifies the warrantless entry.”

Although applying a solely objective test,
the court nevertheless held that the officer’s subjective belief is relevant in determining whether the objective standard was met, citing State v. Kyles, 2004 WI 15, par. 39, 269 Wis. 2d 1, 675 N.W.2d 449. Kyles involved a protective frisk of a suspect, but the court found no reason not to extend its reasoning to a determination whether exigent circumstances justify a warrantless entry.


Applying the test, the court acknowledged that this is “a difficult case,” but ultimately upheld the circuit court’s holding that exigent circumstances justified the warrantless entry into the garage.

The court reviewed the various descriptions of Leutenegger provided by the citizen suggesting he was extremely intoxicated: the citizen described him as “an old, extremely drunk guy” who had been in a bar drinking whiskey on the rocks, and left a cigarette burning in the ashtray and a full drink; “[i]t took him like three minutes just to get out to his car”; “he just got into his car and he’s trying to figure out how to drive it”; “he keeps hitting the brake lights. It kind of looks like he was passing out”; “he keeps kind of nodding and coming up to and he’s got a seat belt on. But he’s moving around in there, so I don’t think he’s passed out. But I think it might be a good idea to get an officer here to keep him from driving ‘cause if he makes it out of the parking lot I don’t think he’s going to make it too far before he runs into something.”

While following Leutenneger, the citizen reported: “He’s driving off the curb. Almost ran into a sign”; “he almost pulled out in front of a truck”; “he just pulled out right in front of traffic”; “he’s going about three miles an hour”; “he’s honking at people that are backing out a half a block away. He’s coming to a full stop.”

After the officer arrived, he saw Leutenneger sitting in his car for about a minute without getting out of it. Eventually, the officer approached, entered the open garage door, and got Leutenegger’s attention by knocking on the passenger window.

Related Links

Wisconsin Court System

Related Article

Case Analysis

After quoting the circuit court’s findings and conclusions at great length, the court agreed, “We agree with this analysis. The facts would have led a reasonable officer to conclude that Leutenegger was in his seventies or eighties and highly intoxicated. As the circuit court explained, this age, combined with a high degree of intoxication, would lead a reasonable officer to be concerned about Leutenegger’s health.”

Discussing Leutenneger’s remaining in the car after he arrived home, the court observed, “it is apparent that, after driving into his garage, Leutenegger sat in his car for at least two to three minutes before the officer entered the garage. This might seem like a short time, unless one looks at a clock, watches two or three minutes go by, and considers the normal time it takes to get out of a car after parking.”

The court added, “The obvious inference is that the officer thought Leutenegger might be experiencing a physical problem related to his intoxication that was preventing him from taking the normal action of exiting his car and entering his home. We agree with the officer that most people exit their cars shortly after parking at their homes. … We agree with the circuit court that this circumstance, combined with other information, suggested a current intoxication-related health problem.”

The court also found that obtaining a telephonic search warrant was not a reasonable alternative, concluding, “The delay inherent in obtaining a search warrant would have been in conflict with the very reasons it was reasonable for the officer to immediately enter the garage without a warrant; that is, there was reason to believe that Leutenegger was currently in distress or might abruptly decide to drive back out of the garage.”

Accordingly, the court affirmed.

Click here for Case Analysis.

David Ziemer can be reached by email.

Leave a Reply

Your email address will not be published. Required fields are marked *