COURT OF APPEALS

DECISION

DATED AND FILED

April 14, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP523-CR Cir. Ct. No. 2017CT33

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

SHANNON G. POTOCNIK,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Taylor County: 

ANN KNOX-BAUER, Judge. Affirmed. 

¶1 SEIDL, J.1 Shannon Potocnik, pro se, appeals a judgment 

convicting him of operating a motor vehicle with a prohibited alcohol 

concentration (PAC) as a second offense. The conviction was entered on

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All 

references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted. 
No. 2019AP523-CR

2

Potocnik’s no-contest plea following the circuit court’s denial of his motion to 

suppress. That motion sought to suppress the result of a warrantless chemical 

blood test obtained at a hospital after a law enforcement officer had entered

Potocnik’s house without a warrant. Potocnik argues the circuit court erred in 

concluding that: (1) the community caretaker exception to the Fourth 

Amendment’s warrant requirement applied to permit the warrantless search of his 

house; and (2) Potocnik’s warrantless blood draw did not violate the Fourth 

Amendment due to exigent circumstances. We affirm.

BACKGROUND

¶2 The State charged Potocnik with operating a motor vehicle while 

intoxicated (OWI) and PAC for having been the suspected driver of a vehicle

involved in a crash on May 15, 2017. Potocnik filed a motion to suppress the 

result of a chemical test of his blood, alleging that the warrantless entry by a law 

enforcement officer into his home and subsequent warrantless blood draw at a 

hospital violated his Fourth Amendment rights. The circuit court held an 

evidentiary hearing on the motion, at which Taylor County Sheriff’s Department 

sergeant Anthony Schuett testified to the following facts. 

¶3 At 1:25 a.m., a passerby called the sheriff’s department’s dispatch 

and reported a one-vehicle accident where the driver was absent from the scene. 

Schuett arrived at the scene shortly thereafter. Schuett observed skid marks on the 

roadway leading to a truck in a ditch laying on its driver’s side. The truck had 

apparently hit a large pine tree, which was sheared off six to eight feet from the 

ground and was leaning into the adjacent woods. A large debris field surrounded 

the scene. 
No. 2019AP523-CR

3

¶4 The truck was severely damaged. Both of its driver’s side doors had

been sheared off. The passenger’s side door and window were intact, but that door 

was too damaged to open. The windshield was cracked but otherwise remained 

intact. The rear window was broken out, but due to the small size of the opening 

and damage, Schuett did not believe anybody would have been able to exit the 

truck through that window. Based on his training, experience, and the nature of 

the severe damage he observed, Schuett concluded that the truck’s driver must 

have been ejected from the truck during the crash. However, Schuett could not 

immediately locate the driver or any other vehicle occupants. 

¶5 Schuett and other law enforcement officers spent approximately one 

hour searching the area for the truck’s occupants. Finding no person or a body,

even after using thermal imaging, they concluded the truck’s occupant or 

occupants were no longer in the area. Dispatch eventually informed Schuett that 

Potocnik was the truck’s registered owner. 

¶6 After learning Potocnik’s registered address, Schuett then drove 

approximately eight miles to Potocnik’s residence. Upon Schuett’s arrival at 

about 2:33 a.m., Schuett observed a light on in the living room. The entry door to 

the home was located through the garage, and the garage’s entry door was 

unlocked. Schuett entered the garage, knocked on the entry door to the house 

numerous times, opened that door, and announced himself. He heard no response. 

¶7 Schuett exited the garage and climbed onto a railing located on a 

porch alongside the house and looked through a second story window. He 

observed a man lying in bed. 

¶8 Schuett returned to his squad car to make phone calls, but as he was 

doing so, he saw through a living room window a naked man walking around the 
No. 2019AP523-CR

4

first story of the house. Schuett recognized that man as Potocnik due to Schuett’s 

prior contacts with him. Schuett returned to the house entry door and knocked 

again, but Potocnik “disappeared” and did not respond to Schuett. When Schuett 

opened the house door to announce himself again, this time he “heard someone 

moaning as if in pain.” Schuett then entered the home because he believed 

someone was injured inside the house. 

¶9 Schuett found Potocnik lying on a bed and could smell the odor of 

intoxicants. Potocnik told Schuett that he had been in an accident. Potocnik also 

admitted to having consumed “one or two” alcoholic beverages. When Schuett 

asked Potocnik if he needed an ambulance, Potocnik replied, “Sure, whatever 

man.” Potocnik additionally had been “making noises ... like he was in pain” and 

told Schuett that he was in pain. 

¶10 An ambulance took Potocnik to a hospital, arriving at approximately 

4:00 a.m.—two and one-half hours after Schuett arrived at the crash scene. 

Hospital staff began taking X-rays and CT scans of Potocnik. Schuett believed 

obtaining a search warrant for a blood draw would take at least one more hour. 

From prior experience, Schuett knew that Potocnik might need to be transported 

by helicopter to another facility for additional medical assistance. Due to his 

training and experience, Schuett also knew that alcohol in an individual’s 

bloodstream dissipates over time. Schuett therefore instructed hospital personnel 

to draw Potocnik’s blood without first obtaining a search warrant. 

¶11 In a written decision, the circuit court denied Potocnik’s suppression 

motion following briefing. The court determined that Schuett’s warrantless entry 

into Potocnik’s home was lawful under the community caretaker exception to the 

Fourth Amendment’s warrant requirement. It concluded that, based on the totality 
No. 2019AP523-CR

5

of the circumstances, Schuett “took progressive, minimally intrusive steps in order 

to respond to someone that he reasonably believed needed assistance.” The court 

further concluded exigent circumstances existed for Potocnik’s blood to be drawn 

without a warrant. Potocnik now appeals his second-offense PAC conviction, 

challenging only the denial of his suppression motion.2

DISCUSSION

¶12 Potocnik argues the circuit court erred by denying his suppression 

motion because his right to be free from unreasonable searches and seizures under 

the Fourth Amendment of the United States Constitution and article I, section 11 

of the Wisconsin Constitution was violated by Schuett’s warrantless entry into 

Potocnik’s home and the warrantless draw of his blood.3 When reviewing the 

denial of a motion to suppress evidence, we uphold the circuit court’s findings of 

fact unless clearly erroneous. State v. Pinkard, 2010 WI 81, ¶12, 327 Wis. 2d 

346, 785 N.W.2d 592. However, the application of constitutional principles to the 

facts presents a question of law that we review de novo. Id.

I. Schuett’s warrantless entry into Potocnik’s garage and home

¶13 The Fourth Amendment protects against unreasonable searches and 

seizures. Id., ¶¶12-13. Warrantless searches are considered per se unreasonable, 

 

2

 A circuit court’s order denying a motion to suppress evidence may be reviewed on 

appeal from a judgment of conviction notwithstanding a defendant’s not-guilty plea. See WIS.

STAT. § 971.31(10).

3

 Our supreme court has generally interpreted article I, section 11 to provide the same 

constitutional guarantees as those the United States Supreme Court has accorded in interpreting 

the Fourth Amendment. See State v. Kramer, 2009 WI 14, ¶18, 315 Wis. 2d 414, 759 N.W.2d 

598.
No. 2019AP523-CR

6

subject to a few well-delineated exceptions. Id., ¶13. One such exception, which 

the State argues applied here to permit Schuett’s warrantless entry into Potocnik’s 

home, involves a law enforcement officer acting as a “community caretaker.” See

id., ¶14. The State has the burden of establishing that a warrantless entry into a 

home occurred pursuant to the community caretaker exception to the warrant 

requirement. See id., ¶29.

¶14 A law enforcement officer exercises a community caretaker function 

when that officer “discovers a member of the public who is in need of assistance.” 

Id., ¶18. To determine whether an officer’s conduct properly falls within the 

scope of the community caretaker exception, we must assess:

(1) whether a search or seizure within the meaning of the 

Fourth Amendment has occurred; (2) if so, whether the 

police were exercising a bona fide community caretaker 

function; and (3) if so, whether the public interest 

outweighs the intrusion upon the privacy of the individual 

such that the community caretaker function was reasonably 

exercised within the context of a home.

Id., ¶29. 

A. Step 1 of the community caretaker test

¶15 The parties do not dispute that Schuett’s entry into Potocnik’s home 

constituted a search within the meaning of the Fourth Amendment—they primarily 

disagree on whether the requirements of the second and third steps of the 

community caretaker test are met here. Potocnik, however, appears to argue that a 

Fourth Amendment search occurred when Schuett entered Potocnik’s garage, 

which is a point in time prior to when Schuett entered Potocnik’s home. Potocnik 

begins his argument by asserting that “[a]n attached garage is protected curtilage 

and peering into the windows of a residence is unconstitutional,” citing Florida v. 
No. 2019AP523-CR

7

Jardines, 569 U.S. 1 (2013), among other cases. Yet, other than this general 

statement of the law, Potocnik argues that the totality of the circumstances does 

not support Schuett’s entry into Potocnik’s home, as opposed to Potocnik’s 

garage.

¶16 Although Potocnik’s argument is minimally developed, we generally 

provide pro se litigants a degree of leeway. See Rutherford v. LIRC, 2008 WI 

App 66, ¶27, 309 Wis. 2d 498, 752 N.W.2d 897. Accordingly, we conclude that 

two Fourth Amendment searches occurred—when Schuett first entered Potocnik’s 

garage and when Schuett entered Potocnik’s home from the garage.

4

 See 

Jardines, 569 U.S. at 6-7.

B. Step 2 of the community caretaker test

¶17 The second step requires us to determine whether Schuett was 

exercising a bona fide community caretaker function. See Pinkard, 327 Wis. 2d 

346, ¶29. In other words, when he entered Potocnik’s attached garage and then 

the residence, we must determine whether Schuett had an objectively reasonable 

basis to believe Potocnik was injured and in need of assistance. See id.

¶18 To make that determination, we look at the totality of the 

circumstances at the time the search occurred. See id., ¶31. In assessing the 

totality of the circumstances, the subjective intent of the law enforcement officer, 

 

4

 While we grant Potocnik leeway on the development of his arguments regarding 

whether a Fourth Amendment search occurred of his home and garage, Potocnik has not 

sufficiently developed an argument that a Fourth Amendment search occurred when Schuett 

peered into Potocnik’s first and second story windows. We therefore decline to further address 

the propriety of Schuett’s actions in this regard. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 

N.W.2d 633 (Ct. App. 1992). 
No. 2019AP523-CR

8

while not dispositive, is relevant to our analysis. State v. Kramer, 2009 WI 14, 

¶30, 315 Wis. 2d 414, 759 N.W.2d 598. Further, courts are cautioned against 

“taking a too-narrow view” in determining whether an officer acted as a bona fide 

community caretaker. Pinkard, 327 Wis. 2d 346, ¶31 (citation omitted).

¶19 As an initial matter, we note that Potocnik argues Schuett was not 

acting as a community caretaker based upon facts and circumstances existing prior 

to Schuett’s entry into Potocnik’s garage and, subsequently, his home. In fact, 

Potocnik makes no meaningful argument that the totality of the circumstances 

available to Schuett when he entered Potocnik’s garage are materially different 

than those circumstances available to Schuett when he entered Potocnik’s home. 

For the reasons discussed below, we conclude Schuett had been acting as a 

community caretaker when he entered Potocnik’s garage and home. We further 

note our analysis generally refers to Schuett’s entry into both Potocnik’s home and 

garage due to the overlap in facts and Potocnik’s failure to argue a distinction in 

the totality of the circumstances analysis between the two separate searches at 

issue.

¶20 The totality of the circumstances known to Schuett before he entered 

Potocnik’s garage, and subsequently Potocnik’s home, objectively demonstrated

that Schuett was acting as a bona fide community caretaker. Schuett observed a 

vehicle involved in an accident that had sustained devastating damage—the truck

was lying on its side with two of its doors sheared completely off and the rear 

window blown out. The truck hit a pine tree with such force that its top snapped

off over six feet above the ground. Based upon Schuett’s observation of the 

wreckage, his training, and his experience, he believed that the driver must have 

been ejected. Accordingly, although the truck’s driver was missing, Schuett could 

reasonably infer that the driver likely required medical assistance given the truck’s
No. 2019AP523-CR

9

state and the driver’s likely ejection from the vehicle during an apparent high force 

impact with the pine tree. 

¶21 Given the above information and having determined that Potocnik 

was the vehicle’s registered owner, the record supports the circuit court finding 

that it was reasonable for Schuett to travel to Potocnik’s home to check on his 

well-being. As Schuett explained, he “felt it was [his] responsibility to make sure 

that the driver was ok.” Schuett’s subjective intent of driving to Potocnik’s home 

to check on his well-being—as opposed to investigating him for his involvement 

in a possible crime—is relevant to our totality of the circumstances analysis. See 

Pinkard, 327 Wis. 2d 346, ¶54. Schuett’s concern for Potocnik’s welfare favors a 

determination that Schuett was acting as a bona fide community caretaker when he 

entered both Potocnik’s garage and home. See id., ¶53. 

¶22 Other information Schuett acquired outside Potocnik’s garage and 

home further supports the circuit court’s finding that Schuett reasonably believed 

Potocnik required medical assistance. The home’s lights were on and the doors to 

both the home and garage were unlocked—facts suggesting a person was present 

at the home. Moreover, Potocnik was not hiding his presence inside the home 

from Schuett because he observed Potocnik walking past windows. Based on 

these facts, and the severe damage to the truck, Schuett could reasonably surmise 

that Potocnik was the truck’s driver and could be traumatized or suffering from 

injuries sustained in the crash.

¶23 The evidence also supports the circuit court’s finding that Schuett 

“took progressive, minimally intrusive steps in order to respond to someone that 

he reasonably believed needed assistance.” Schuett reasonably believed that 

Potocnik was at home and ultimately saw him through its windows. Potocnik, 
No. 2019AP523-CR

10

however, did not respond to Schuett’s many knocks and announcements. Lacking 

a response from Potocnik, Schuett opened the house door, but he did not enter the 

home until he heard someone moaning in pain from inside, suggesting an 

immediate need to respond to an ongoing emergency. 

¶24 Potocnik argues that we should not consider that Schuett heard 

Potocnik moaning under the totality of the circumstances. Potocnik asserts “any 

attempt by the State to create a ‘moaning’ argument for entry to the home is 

mistaken” because it was “[o]nly after Schuett opened Mr. Potocnik’s door did he 

hear moaning or yelling.” Potocnik’s argument, however, makes no material 

difference in our analysis. Schuett had been acting as a bona fide community 

caretaker before he entered the home, when he entered Potocnik’s garage. Thus, 

even without considering that Schuett heard Potocnik moaning in our totality of 

the circumstances analysis, Potocnik’s argument is a nonstarter.

¶25 Potocnik alleges that Schuett unreasonably believed Potocnik was 

injured and in need of assistance because Schuett saw Potocnik through the 

window walking in his own home without any visible injuries. In Potocnik’s 

view, because Schuett saw Potocnik naked, Schuett could visibly confirm that 

Potocnik was uninjured, and, consequently, there was no need for further contact. 

We disagree. 

¶26 We acknowledge that Potocnik’s lack of any visible injuries is a fact 

that, when viewed in isolation, militates against concluding that Schuett was 

acting as a bona fide community caretaker. However, contrary to Potocnik’s 

assertion, Schuett’s belief that Potocnik required medical attention was reasonable 

notwithstanding Schuett’s observation that Potocnik had no visible injuries. After 

all, a person can be injured without having visible signs of the injury. We must 
No. 2019AP523-CR

11

analyze the circumstances in their totality, as opposed to viewing one fact in 

isolation. See Pinkard, 327 Wis. 2d 346, ¶31 (citation omitted). In the same vein, 

we are counseled not to take a too-narrow view in determining whether Schuett 

had been acting as a bona fide community caretaker. See id., ¶33. 

¶27 For the foregoing reasons, we conclude Schuett was acting as a bona 

fide community caretaker when he entered Potocnik’s garage and home. Schuett 

reasonably believed that Potocnik likely had been involved in a severe motor 

vehicle accident, that he had been ejected from his vehicle, and that he needed 

medical attention. 

C. Step 3 of the community caretaker test

¶28 The third step of the community caretaker analysis requires us to 

balance “whether the public interest outweighs the intrusion upon the privacy of 

the individual such that the community caretaker function was reasonably 

exercised within the context of a home.” Id., ¶29. We answer this question by 

applying a four-part test balancing the public interest or need that is furthered by 

the officer’s conduct against the degree and nature of the intrusion on the citizen’s 

constitutional interest. Id., ¶41. We consider:

(1) the degree of the public interest and the exigency of the 

situation; (2) the attendant circumstances surrounding the 

[search], including time, location, the degree of overt 

authority and force displayed; (3) whether an automobile is 

involved; and (4) the availability, feasibility and 

effectiveness of alternatives to the type of intrusion actually 

accomplished.[5]

 

5

 The third consideration is irrelevant in this case because Schuett entered a home and 

not an automobile. See State v. Gracia, 2013 WI 15, ¶27, 345 Wis. 2d 488, 826 N.W.2d 87. 

Both parties appropriately do not discuss it.
No. 2019AP523-CR

12

Id., ¶¶41-42 (citations and footnote omitted).

i. The degree of the public interest and the exigency of the situation

¶29 Potocnik asserts the exigency of the situation did not demand that 

Schuett enter the home. Potocnik argues “the State speculates that, based on how 

the truck was damaged, [he] must have been injured.” For support, he contends 

that there was “no blood at the scene or any other physical evidence of bodily 

injury.” Focusing on parts of his truck that remained intact and its undeployed 

airbags, Potocnik argues that “it is more logical to assume the operator was not 

injured.” 

¶30 We reject Potocnik’s argument. Schuett was not speculating that 

Potocnik was injured. Rather, as discussed above, Schuett could reasonably infer 

from the facts with which he was confronted that Potocnik required immediate 

medical attention. A reasonable inference is “a conclusion reached on the basis of 

evidence and reasoning.” Water Well Sols. Serv. Grp. Inc. v. Consolidated Ins. 

Co., 2016 WI 54, ¶38, 369 Wis. 2d 607, 881 N.W.2d 285. When officers are 

confronted with facts that could have an innocent explanation, they are not 

required to infer innocence as long as the inference that they do draw is supported 

by evidence and reasoning. See State v. Waldner, 206 Wis. 2d 51, 59-60, 556 

N.W.2d 681 (1996) (analyzing whether the reasonable inferences a law 

enforcement officer drew amounted to reasonable suspicion under the Fourth 

Amendment). Moreover, the public “has a significant interest” in law 

enforcement officers ensuring the safety of a home’s occupants, particularly when 

they cannot readily ascertain the occupants’ physical condition and “reasonably 

conclude” that medical assistance is needed. State v. Matalonis, 2016 WI 7, ¶59, 

366 Wis. 2d 443, 875 N.W.2d 567; see also State v. Gracia, 2013 WI 15, ¶25, 345 
No. 2019AP523-CR

13

Wis. 2d 488, 826 N.W.2d 87 (“The public has a substantial interest in ensuring the 

safety of drivers in serious traffic accidents.”). 

¶31 The Fourth Amendment does not require officers to ascertain with 

one hundred percent certainty an occupant’s condition, as Potocnik suggests,

before entering a home without a warrant to render emergency assistance. See 

Matalonis, 366 Wis. 2d 443, ¶59; Pinkard, 327 Wis. 2d 346, ¶¶46-48. Instead, 

the Fourth Amendment requires a reasonable certainty, which is what Schuett 

acted upon here. 

¶32 Schuett reasonably inferred that Potocnik drove the truck involved in 

the accident and that he had been ejected from that vehicle. Schuett heard 

Potocnik moaning as if in pain and observed that Potocnik failed to respond to 

Schuett’s repeated knocking and announcements. Schuett could reasonably infer 

that Potocnik was suffering from a traumatic head injury (such as a concussion) or 

other injury that would not necessarily have produced blood at the scene or on his 

body. Common sense dictates that time is of the essence to acquire medical 

attention for individuals who may have sustained a head or other injury. These 

facts, taken together, raise more than mere speculation; they raise a reasonable 

inference that Potocnik was injured and needed immediate medical assistance. 

Thus, although we agree with Potocnik that some of the facts presented to Schuett 

could have permitted an inference that Potocnik did not need medical attention, we 

conclude, when viewing the situation’s entirety, that Schuett reasonably 

determined that the situation was exigent.

ii. The attendant circumstances surrounding the search

¶33 Moving to the second consideration of the four-part balancing test, 

Potocnik argues that the attendant circumstances of “time” and “location”
No. 2019AP523-CR

14

surrounding the search weigh in his favor. Potocnik first asserts that the situation 

lacked exigency because “we must speculate about the time” that his truck struck 

the tree. Specifically, he argues any exigency became “stale or mute” because 

there is no evidence as to “how much time passed from the accident occurring to 

the accident being noticed. 

¶34 We disagree with Potocnik and conclude that the “time” factor here 

favors a determination that Schuett’s actions were appropriate under the 

circumstances. Potocnik largely misinterprets the context in which “time” is 

analyzed within the four-part balancing test. Our supreme court explained in 

Pinkard that courts should analyze whether law enforcement officers had 

“control” of the time of day or location at which the home entry occurred and “the 

amount of time that passed” prior to the home’s entry. See Pinkard, 327 Wis. 2d 

346, ¶49 (collecting cases that found officers acted reasonably when they waited

thirty and ninety minutes, respectively, before entering a home after arriving on its 

premises). 

¶35 Here, Schuett lacked control over the time of day when his entry into 

Potocnik’s home occurred because he had been dispatched to investigate the crash

in response to a tip from a passerby. Additionally, Schuett did not immediately 

enter Potocnik’s home when he arrived on the premises, but rather waited to 

investigate and determine whether the facts known to him required his warrantless 

entry. While the facts are unclear on exactly how long Schuett waited, the circuit 

court found that he arrived on the premises at approximately 2:30 a.m. and arrived 

at the hospital with Potocnik at approximately 4:00 a.m. During that one and onehalf hour window, the court found that Schuett took a number of progressive, 

minimally intrusive steps before entering Potocnik’s home. Schuett did not rush 

to enter the home, nor did he unreasonably wait to do so. We therefore conclude 
No. 2019AP523-CR

15

the “time” factor favors a determination that Schuett’s actions were appropriate 

under these circumstances.

¶36 As to “location” under the four-part balancing test’s second 

consideration, Potocnik argues that the further a person is located from the scene 

of an accident, the less likely it is that person sustained a serious injury. In this 

case, Potocnik lived approximately eight miles from the scene of his vehicle’s 

crash. Citing only to State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 

N.W.2d 505 (2010), Potocnik argues that in “the cases where the courts have 

found it constitutionally permissible for the police to enter a home under the 

community caretaker exception ... there is a damaged vehicle parked in the 

general location of the home which is subsequently searched.” We are not 

persuaded by this argument, for a few reasons.

¶37 To begin, Ultsch is inapposite. There, police officers investigated an 

early-morning traffic accident in which a driver, later identified as Ultsch, had 

smashed into a brick wall and fled the scene in the vehicle. Id., ¶2. The officers

found the damaged vehicle—a “large, heavy SUV”—at the end of a private 

residence’s long driveway two to three miles away. Id., ¶¶2, 21. The SUV had 

sustained damage only to its left front fender. Id., ¶21. When the officers saw 

someone leaving the house, who turned out to be Ultsch’s boyfriend, the officers

did not express any concern about the Ultsch’s safety to Ultsch’s boyfriend. Id., 

¶3. Similarly, Ultsch’s boyfriend expressed no concern to the officers about 

Ultsch’s condition. Id., ¶25. The officers eventually went to the house, entered 

the unlocked front door, and found their way to Ultsch’s bedroom where she was 

sleeping. Id., ¶4. They transported her to the sheriff’s department where they 

performed both field sobriety and chemical breath tests, after which they arrested 

her. Id., ¶5. We concluded the officers did not have an objectively reasonable 
No. 2019AP523-CR

16

basis to believe Ultsch was in need of assistance at the time they entered the 

residence. Id., ¶¶21, 30. 

¶38 In this case, the facts Schuett confronted indicated a greater exigency 

than the facts presented to the officers in Ultsch. Schuett had no confirmation 

from an occupant in Potocnik’s home that he was safe. Furthermore, Potocnik’s 

truck sustained far more damage than Ultsch’s vehicle. Schuett’s inability to 

contact anyone inside Potocnik’s home—in part due to Potocnik’s own 

unresponsiveness—and the severity of the damage Potocnik’s truck sustained, 

make Ultsch an unpersuasive comparison.

¶39 The location of Potocnik relative to his vehicle is not dispositive 

when we consider the other attendant circumstances of Schuett’s entry. Namely,

“the low degree of overt authority and force” Schuett displayed suggests that he 

acted reasonably under the circumstances. See Pinkard, 327 Wis. 2d 346, ¶54.

Law enforcement officers demonstrate a low degree of overt authority and force 

when they show concern about the health and safety of a home’s occupants and 

when the officers go directly to the room where they expect to find those 

occupants. See id., ¶¶54-55. In this case, Schuett entered Potocnik’s home 

because he was concerned about Potocnik’s welfare. There is no indication that 

Schuett employed any force or drew his weapon, and he went immediately to a 

bedroom where he expected to find Potocnik. We therefore conclude the low 

degree of overt authority and force here weighs in favor of finding that Schuett 

exercised his community caretaker responsibilities reasonably. In all, the second 

part of the balancing test weighs in favor of concluding that Schuett’s exercise of 

the community caretaker function was reasonable.
No. 2019AP523-CR

17

iii. Alternatives to the type of intrusion actually accomplished

¶40 The fourth part of the balancing test requires us to consider the 

availability, feasibility and effectiveness of alternatives to the type of intrusion 

actually accomplished. Id., ¶42. Potocnik makes no developed argument that this 

consideration weighs in his favor. Instead, he makes only passing assertions that 

Schuett had other means to contact him—namely, by telephone—but did not do 

so. We determine the fourth consideration favors concluding that Schuett 

exercised his community caretaker duty reasonably, notwithstanding Potocnik’s 

undeveloped argument.

¶41 First, Schuett had no feasible alternatives other than to enter 

Potocnik’s home without a warrant. See id., ¶57. Schuett could have reasonably 

determined that telephoning the home would have been fruitless, given Potocnik’s 

unresponsiveness to Schuett’s numerous loud knocks and announcements. 

¶42 Next, we must consider whether the “citizens of the community” 

would have viewed Schuett’s actions as poor police work had he not entered 

Potocnik’s home and instead taken another course, “perhaps by leaving the scene 

to obtain a warrant or waiting for an ambulance to arrive.” See id., ¶59. We 

believe the public would consider Schuett to have been derelict in his duty had he 

not checked on Potocnik’s welfare given the circumstances The fourth 

consideration therefore favors concluding that Schuett reasonably exercised his 

community caretaker function.

¶43 Because the majority of the four considerations favor concluding 

that Schuett reasonably performed his community caretaker function, the third step 

of the community caretaker analysis has been satisfied. Schuett’s warrantless 
No. 2019AP523-CR

18

entry into Potocnik’s garage and home was therefore reasonable under the Fourth 

Amendment.

II. The warrantless draw of Potocnik’s blood

¶44 A blood draw is a search under the Fourth Amendment. See 

Missouri v. McNeely, 569 U.S. 141, 148 (2013). A warrantless search of a person 

is presumptively unreasonable unless an exception to the warrant requirement 

applies. State v. Dalton, 2018 WI 85, ¶38, 383 Wis. 2d 147, 914 N.W.2d 120.

¶45 “Exigent circumstances” are a recognized exception to the warrant 

requirement. Id., ¶39. An exigent circumstance is one in which “the exigencies of 

the situation make the needs of law enforcement so compelling that a warrantless 

search is objectively reasonable under the Fourth Amendment.” McNeely, 569 

U.S. at 148-49 (citation omitted). One well-recognized exigent circumstance is 

“the threat that evidence will be lost or destroyed if time is taken to obtain a 

warrant.” State v. Parisi, 2016 WI 10, ¶32, 367 Wis. 2d 1, 875 N.W.2d 619 

(citation omitted). 

¶46 The natural dissipation of alcohol in a person’s blood stream “may 

present a risk” that evidence will be destroyed, thus supporting a finding of 

exigency in a specific case. Dalton, 383 Wis. 2d 147, ¶40. But the dissipation of

alcohol in the blood does not per se create an exigency. Id., ¶42. Rather, whether 

a warrantless blood draw was reasonable must be determined case-by-case based 

upon the totality of the circumstances. Id. 

¶47 A delay in a law enforcement officer’s ability to procure a warrant in 

the regular course of his or her duties may give rise to exigent circumstances and, 

therefore, is particularly relevant to the totality of the circumstances analysis in 
No. 2019AP523-CR

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OWI cases. See id., ¶40. This is so because blood test results decrease in 

accuracy as more time passes from the time when the alleged offense occurred. 

Id., ¶41. 

¶48 Our rules of evidence reflect this notion. Id. WISCONSIN STAT.

§ 885.235(1g) provides that the results of a blood test are automatically admissible 

to prove intoxication or demonstrate a prohibited alcohol concentration “if the 

sample was taken within 3 hours after the event to be proved.” After that

three-hour window, the evidence is admissible “only if expert testimony 

establishes its probative value and may be given prima facie effect only if the 

effect is established by expert testimony.” Sec. 885.235(3). Thus, law 

enforcement officers investigating an OWI or a PAC violation have a legitimate 

interest in administering a blood test within the three-hour window for automatic 

admissibility of blood test results because those results decrease in accuracy as 

more time passes. See Dalton, 383 Wis. 2d 147, ¶41.

¶49 The ultimate question is whether Schuett, under the circumstances 

known to him at the time, reasonably believed that a delay in procuring a warrant 

would risk an adverse effect upon the evidence—namely, the dissipation of 

alcohol and the inability to obtain automatic admissibility of the evidence of 

alcohol concentration in Potocnik’s blood. See id., ¶43. We conclude Schuett’s 

belief was reasonable under the totality of the circumstances. 

¶50 A passerby notified law enforcement of the accident at 1:25 a.m. 

Potocnik and Schuett arrived at a hospital at approximately 4:00 a.m., and Schuett 

believed obtaining a search warrant for a blood draw would take at least one more 

hour. Schuett testified he was aware that alcohol dissipates rapidly in the 

bloodstream. The dissipation of alcohol in Potocnik’s blood during the rapidly 
No. 2019AP523-CR

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closing three-hour window to accomplish a presumptively admissible and accurate 

blood draw presented Schuett with exigent circumstances because circumstances

outside of his control and the regular course of his law enforcement duties 

prevented him from timely applying for and obtaining a warrant. 

¶51 Further, when a defendant’s actions delay a law enforcement officer 

from timely applying for and obtaining a search warrant, that delay makes the

officer’s decision to order a warrantless blood draw more reasonable. See State v. 

Tullberg, 2014 WI 134, ¶43, 359 Wis. 2d 421, 857 N.W.2d 120. A defendant that

leaves an accident scene on his or her own accord is an example of such a delay. 

See id., ¶46. Here, Potocnik left the crash scene, substantially delaying Schuett’s 

ability to determine whether he had probable cause to believe Potocnik had 

operated a motor vehicle while intoxicated. Consequently, Potocnik’s actions, not 

Schuett’s, hindered Schuett’s ability to secure a search warrant for a blood sample 

within the three-hour window to ensure its accuracy and admissibility, thereby 

adding to the situation’s exigency.

¶52 Next, Schuett’s investigation of the crash scene necessarily delayed 

his ability to obtain a search warrant. When confronted with an accident scene, a 

law enforcement officer “should first attend to the emergency circumstances at 

hand.” Dalton, 383 Wis. 2d 147, ¶45. Here, Schuett spent approximately one 

hour searching the crash scene and nearby area for the truck’s driver, whom 

Schuett reasonably believed had been ejected from the truck. His decision to 

thoroughly investigate the area around the crash for the driver before attempting to 

contact Potocnik at his home was reasonable, especially in light of the crash’s 

severity.
No. 2019AP523-CR

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¶53 Finally, Schuett faced uncertainty at the hospital regarding whether 

Potocnik would even be available for a blood draw if Schuett obtained a search 

warrant. From prior experience, Schuett knew that Potocnik might need to be 

transported by helicopter to another facility for medical treatment. A defendant’s 

potential unavailability due to impending medical procedures is a fact that adds to 

a situation’s exigency. See Tullberg, 359 Wis. 2d 421, ¶48. Schuett and Potocnik 

arrived at the hospital approximately two and one-half hours after Schuett had 

arrived at the crash scene. Again, Schuett reasonably believed obtaining a search 

warrant would take at least one more hour—further risking the accuracy and 

admissibility of Potocnik’s blood test result. Under these circumstances, Schuett 

could not have “reasonably obtained a warrant without significantly undermining 

the efficacy of the search.” See id. (citation omitted). 

¶54 Potocnik argues that “[a]ny ‘exigency’ is speculation” because 

“there is no known time of operation of the vehicle in question.” He claims that 

without “a starting point for any exigency,” Schuett could not reasonably believe 

that circumstances justified the warrantless draw of Potocnik’s blood. We are 

unpersuaded. He does not cite any legal authority supporting the proposition that

the exigent circumstances exception cannot be applied in an OWI case in which 

the exact time of a crash cannot be ascertained. Further, Schuett knew that every 

minute that passed further reduced the accuracy and admissibility of the blood 

draw and increased the likelihood Potocnik might be moved to another hospital. 

¶55 Moreover, Schuett could reasonably conclude that Potocnik had

crashed his vehicle recently. Potocnik was unresponsive and moaning in pain 

before Schuett entered the home. Potocnik then acknowledged that “he had been 

in an accident” and replied “sure, whatever man” when Schuett asked if Potocnik 

wanted an ambulance. Potocnik had also been “making noises ... like he was in 
No. 2019AP523-CR

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pain” and told Schuett that he was in pain. Thus, even if Schuett did not know 

exactly when Potocnik crashed his vehicle, Schuett could reasonably determine 

based on Potocnik’s conduct that it had happened recently such that he was 

justified in ordering a draw of Potocnik’s blood due to exigent circumstances.

¶56 Viewing the totality of these facts and circumstances, Schuett 

reasonably responded to the crash scene, investigated the matter at two different 

locations, and ultimately was left with a very narrow time frame within which 

Potocnik’s blood could be drawn to produce reliable evidence of intoxication. 

“This sort of ‘now or never’ moment is the epitome of an exigent circumstance.” 

Id., ¶50. Schuett acted reasonably under these circumstances. We therefore 

conclude that exigent circumstances justified the warrantless draw of Potocnik’s 

blood.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)4.