*1 Plaintiff-Appellant-Petitioner, Wisconsin, State
v. Defendant-Respondent-Cross Patrick E. Richter,
Petitioner.
Supreme Court
February
argument
No. 98-1332-CR. Oral
2000.—Decided June
For the argument by there were briefs and oral Susan E. Ale- public sia, assistant state defender. SYKES, 1. DIANE S. J. This case involves a recurring ques- home,
warrantless of a and the tion of whether the circumstances under which it took place sufficiently exigent justify were it. The circum- County stances were these: a Marinette sheriffs deputy responded early-morning dispatch to an of a burglary progress park. flag- in at a trailer The victim ged deputy down the as he arrived on the scene and told him that someone had broken into her mobile home, and that she had seen the intruder flee her trailer and enter the defendant's trailer across deputy signs street. The observed of forced at the defendant's trailer —a window screen was knocked out lying ground. deputy and on the shined his flash- light open in the window and attracted the attention of people sleeping They opened two who were on the floor. sleep- the door and ing defendant, identified the who was deputy couch, on the as the owner ofthe trailer. The trailer, entered the defendant, woke the him told what happened permission had and asked his to search burglary suspect. trailer for the Permission was granted. During deputy search, observed mari- juana plain view, which the defendant admitted was his. charged
¶ 2. The defendant was with several marijuana possession suppress offenses, and moved to physical alleging statements, evidence and his an illegal entry. granted The circuit motion, court finding appeals affirmed, the circum-
the court of
insufficiently exigent
the defendant's
stances
justify
insufficiently
the search.
attenuated to
consent
*6
814, 817,
County Deputy in Berlin was on Sheriffs Rick City approximately a.m., 4:30 Ber- Marinette. At City police dispatch of Marinette lin overheard reporting burglary progress Sands in at Golden responded Berlin, area, Trailer Park. who was near Sands, at he was the call. When he arrived Golden to immediately flagged Champion, Linda who down just reported man had broken into that an unknown 438. She told the officer that she her mobile home on lot yelled intruder, he then ran from her had at the directly across the trailer into the trailer on lot account. street. Her husband confirmed this Deputy Berlin to the trailer on lot 439. went just picture west of its The trailer had a front window approached, As he Berlin noted that front door. open and its screen had been knocked out window was temperature ground Since the onto the outside. sign entry, given 40s, Berlin took this as a of forced Champions from the the information he had obtained across the street. going through your
Q. What was mind at that you thinking time as far as what you were when open saw that window?
A. I whoeverthis male believed was ran to
trailer at 439 and because the screen was into that broke trailer
laying on the side- porch. walk or the front you safety any Q. Did have concernsfor the may occupants have been in that whatever home? mobile Yes,I did.
A. you
Q. What concernsdid have? possibly I endangerment A. felt that there could be some did there because this male ran break into that trailer at 438 and then across and ran into the trailer at 439. *7 open approached
¶ and 5. Berlin window flashlight into the darkened trailer. He saw shined his sleeping people in the front room—two on at least three directly man on the sofa across from the floor and one shining waking occupants by He tried the window. announcing, flashlight and "Sheriffs his on them Department, come to the door." occupants,
¶ Nicholas Dufek 6. Two up Sable, to the door. Berlin told Debra woke and came a at the home across them there had been break-in they had seen a man enter and asked whether street they sleep- had been their trailer. Dufek and Sable said ing anyone then seen enter. Berlin asked and had not permission for the to enter the home and search they did not told Berlin that intruder. Dufek and Sable sleeping sofa, trailer, that the man on own the but Richter, did. Patrick trailer and 7. Berlin entered the woke Richter.1 just
Berlin told Richter that someone had broken into the trailer across the street and that a witness had Richter's Berlin seen the intruder flee into trailer. then if he asked could search Richter's home for the "[y]eah, replied, Upon intruder. Richter that's cool." entering trailer, Berlin also noticed a fourth indi- sleeping vidual on the floor of the front room. Linda Champion man,- and her husband later identified that person McFadden, Shawn as the who broke into their home. mobile McFadden was Richter's roommate at the time. Having consent, obtained Richter's Berlin City Asplund, ofMarinette Police Officer Scott who responded burglary dispatch
also to the and arrived at point Berlin, some after searched the trailer for the portable intruder. Berlin found a plastic bag containing marijuana scale and a clear plain view on a nightstand in In one of bedrooms. the bedroom marijuana hanging closet, Berlin found a branch from hanger. a questioned
¶ 9. Berlin Richter about the mari- juana, and Richter admitted it was his. He consented to pat-down search, and Berlin recovered brass mari- juana pipe pants pocket. placed from his front Berlin day, during Richter under arrest. Later that a search pursuant marijuana warrant, to a officers found more garage. and another scale in Richter's trailer and charged ¶ 10. Richter was with one count of man- (THC), contrary ufacture of a controlled substance 1There is some confusion in the record as to who woke *8 However, Richter. Berlin testified that he did. his sworn search application, apparently warrant which was received into the suppression hearing by stipulation, says record Dufek and Sable did. The circuit court found that Berlin woke Richter. 961.14(4)(t) 961.41(l)(h)l (1995-96);2 §§ and Stat. Wis. contrary possession Stat. THC to Wis. of count of one 961.14(4)(t) 961.41(3g)(e); pos- one and count §§ and contrary drug paraphernalia to Wis. Stat. session of 961.573(1). allege upgraded charges later § were offense). (second repeater Wis. Stat. See status § 961.48. physical suppress evi-
¶
the
11. Richter moved to
illegal
alleging
and
statements,
an
his
dence and
January
hearing
suppression
5,
held on
A
search.
County
Court, the
Circuit
the Marinette
1998, and
motion, con-
Heath,
the
D.
Honorable Charles
denied
any
cluding
the search cured
consent to
that Richter's
entry.
problem
the initial
with
February
hearing
12,
on
held
12. At a second
finding
judge
himself,
reversed
1998, the circuit court
any exigent circum-
to show
the State
failed
had
entry.
justifying
The court
the warrantless
stances
the
and
to the search
that Richter's consent
concluded
directly
drugs
discovery
subsequent
from
flowed
illegal
Based on
cure it.
thus could not
and
9,
1, 2,
I,
art.
secs.
Amendment and
the Fourth
suppressed
Constitution,
the court
of the Wisconsin
drug evidence.
and the
statements
Richter's
judge
1998,
circuit court
On March
findings
order
signed
law and an
fact,
conclusions
suppression
This
granting
motion.
defendant's
day by
previous
Richter's
had been submitted
order
approved
attorney
in advance
had not been
but
day
attorney.
same
That
district
—March
pro-
attorney
own
his
submitted
district
1998—the
together
cover
findings
with a
posed
conclusions,
way
"problems
explaining
with
that he had
letter
noted,
to the Wisconsin
all references
Unless otherwise
the 1995-96 version.
are to
statutes
*9
[the
attorney's proposed order]
defense
was drafted."
judge signed
30,
On March
1998, the circuit court
attorney's
entered
district
order.3
May
appeal
11,
14. On
1998, the State filed an
974.05(l)(d)2
pursuant
§
to Wis. Stat.
and 3. The court
appeals
of
Richter,
affirmed.
¶ 15. The court of
also
theory
State's alternate
that Richter's consent was suf-
ficiently
attenuated from the initial
to be valid.
Relying
Phillips,
Id. at 823.
on State v.
218 Wis. 2d
(1998),
205,
filed untimely.4 appeal Richter's We address *10 notice presents question petition that it first because cross ability upon issues to reach the substantive our bears in this case. appeal pursuant
¶ The State filed its notice 17. 974.05(l)(d)2, "[w]ithinthe § states, which to Wis. Stat. 808.04(4) specified by period in the manner s. time provided appeals 809, an under chs. 808 for civil .(d) any. by may appeal state from . Order taken be judgment results effect of which the substantive or Suppressing evidence." Wisconsin Stat. . .2. in:. 808.04(4) period § time is 45 states that the relevant judgment appealed days or order from from. controversy cir- arises here because the 18. The separate orders, first on entered two
cuit court 30, 1998, on March 18, 1998, and the second March sup- accomplished result —the the same of which both although pursuant pression to somewhat of evidence— findings and conclusions of law. of fact different days May appeal 12,1998, 43 filed its notice of on State after the March 30th days March order, after the but 55 18th order. appeal argues for that the time Richter began the first § to run when 974.05
under Wis. Stat. by prepared The first order was was entered. order by attorney to the circuit court and submitted Richter's 2, 1998, the court of By December order dated untimely. appeal was the State's rejected Richter's claim (Ct. n.1, 814, Richter, 592 N.W.2d 224 Wis. 2d State v. 1999). App.
cover letter dated March 1998. The letter indicated copy given attorney that a had been to the district for approval judge his and informed the that the district attorney get "want[ed] by to it cleared Justice Nevertheless, Madison." the order was entered the very day. day, next That same March the district attorney proposed submitted his order, own cover indicating letter ney that he knew that the defense attor- "previously Findings, had submitted but I had problems way with the that was drafted." The circuit court entered the 30,1998. second order on March appeals summarily
¶ 20. The court of concluded that the circuit court intended the second order to con- appeal timely. agree. trol and so the State's We County provide Marinette Circuit Court Rules for a five-day waiting period objections proposed for to orders.5 The circuit court entered the first order in this waiting five-day objection period case without for the *11 expire, having by after been alerted the defense attor- ney prosecutor who submitted it that the wanted to attorney general's consult with the office before con- senting attorney entry. being by to its After notified the district objections were, indeed, there to the attorney's having defense order, received without objection proposed an alternate order from the district attorney, the circuit court entered the district attor- ney's order. Apparently
¶ 21. then, this was a situation of competing proposed by orders, received the court County Marinette Circuit provides: Court Rule 205 "When signature, counsel submits a document copy to the court for a simultaneously shall be forwarded to all other counsel and/or unrepresented parties. Objections to the form or content of the document writing submitted shall be filed in with the court days within 5 mailing." of service or day other; first order was entered of each within a five-day period, objection expiration prior to the objection, was alerted to and after the court replacing the All of this entered, first. order was second frame of less than two weeks. within a time occurred explicitly judge Although did not the circuit court the cir- order, it seems clear under the earlier vacate the second order to that he intended cumstances supersede the first. in which is not one of those situations 22. This nonconflicting successive, court has issued
a circuit
(for
judgments
example, memorandum deci-
orders or
by
judgment,
order,
an order for
followed
sion
by judgment),
purporting to resolve the
each
followed
matter,
is to determine which
entire
and the task
purposes
time for
final
for
intended as the
order
e.g.,
appeal.
Stores, Inc., 109
See,
v. Red Owl
Radoff
(1982);
City
Fredrick v.
Wis. 2d
326 N.W.2d
(1979);
685,
¶ 24. Edland v. Wisconsin
Service
Corp.,
(1997),
Ins.
210 Wis. 2d
¶ 25. It is to note that there is no evi- attempt dence the March 30th order was entered in an manipulate running appellate and extend the Indeed, clock. the second order was submitted attorney day district on the same the first order was (and apparently knowledge entered already without that it had days entered), signed
been and it later, *13 days appeal the left to from had 33 the State still when controlling. The second been order, had it still earlier time for the case after the resuscitate did not order finality, expired. there- appeal Considerations had seriously play case. Richter in this fore, are expected reasonably the first order to have controlling cannot order was entered after the second remain Accordingly, objection any we con- from him. without superseded March 18th 30th order clude the March including controlling purposes, for all and was order timely appeal appeal. therefore was The State's time to filed. issue:
¶
to the substantive
26. We now turn
entry into Richter's
Berlin's warrantless
whether
exigent
justified by
circumstances
trailer
requirement
exception
therefore
to
warrant
Wisconsin
Amendment and its
the Fourth
valid under
counterpart.
is,
course, a mixed
This
constitution
question
under
that we review
fact
of constitutional
Hughes,
24,
2000 WI
State v.
standards.
two different
The trial court's
¶
280,
2d
607 N.W.2d
15, 233 Wis.
evidentiary
findings
not be
fact will
or historical
clearly
they
v.
State
are
erroneous.
unless
overturned
¶
801,
2d
5,
17, 231 Wis.
Martwick, 2000 WI
independently
determine whether
552. We
N.W.2d
exigent
evidentiary
circum-
establish
facts
historical or
justify
into
the warrantless
to
stances sufficient
2d
Secrist, 224 Wis.
State v.
defendant's home.
(1999).
208,
States Constitution against The Wis- and seizures.6 searches unreasonable Amendment states: The Fourth substantively consin Constitution contains a identical provision, interprets I, art. sec. that this court con- sistently Secrist, with the Fourth Amendment. Wis. 2d at 208. presump- 28. A warrantless search of a home is
tively unreasonable under the Fourth Amendment.
(1980).
Payton
"[i]t
York,
v. New
¶ categories 29. There are four exigent circumstances that have been held to authorize a law enforcement officer's warrantless into a 1) 2) pursuit suspect, home: hot of a a threat to the right people persons, houses, to be secure in their papers, effects, against seizures, and unreasonable searches and violated, issue, shall not be upon proba- and no Warrants shall but cause, supported by affirmation, ble particularly Oath or describing place searched, persons to be things and the or to be seized. 3) safety suspect others, risk that evidence will or a of a 4) suspect destroyed, will a likelihood that be proving The State bears burden flee. Id. at 229. exigent at 228. circumstances. Id. the existence cases, in Fourth Amendment As other 30. exigent are circumstances of whether determination present reasonableness, and considerations of turns on "[w]hether objective apply The test is test. an we police to the the circumstances known officer under reasonably entry] [of believes at the time officer endanger gravely delay procuring would a warrant greatly or enhance of evidence life or risk destruction suspect's escape." Id. at 230. likelihood of the analysis on the reasona- Thus, our focuses trailer to enter Richter's Berlin's decision bleness of possession the time he stood at the facts in his based on just across the street a break-in Richter's door: at eyewitness contemporaneous earlier, moments *15 suspect report trailer, entered Richter's had that the sleep- signs trailer, and the forced at tell-tale of ing people potentially from the risk of harm at inside enough argues exi- that there is The State intruder. entry, justify gency because the warrantless here to burglary suspect pursuit of the in hot Berlin was people safety trailer was inside the the because jeopardy. pursuit" exigent is of "hot circumstance 32. The or continu- an 'immediate there is established "where suspect] [a pursuit crime.'" the scene of a from of ous 753). (quoting at The court Welsh, 466 U.S. Id. at 232 pursuit in hot was not Berlin concluded burglary suspect because:
The suspected
already
intruder had
left the lot 438
Champion's]
by
[the
trailer
the time Berlin arrived
on the scene. The violation
was observed
a wit-
ness,
officer,
period
and some
of time
elapsed between the time Berlin arrived
at
scene and the time he approached the trailer on lot
439. The record does not demonstrate there was
immediate or
pursuit
continuous
of the suspect
from the scene
entry.
of the unlawful
Richter,
¶ 33. This that the pursuit" justification "hot as a for a warrantless home entry requires personally the officer himself fleeing suspect. observe the crime or the We do not prerequisite. exigency believe there is such a of an pursuit suspect may just great officer's of a be as when the officer is told of the crime and the whereabouts of suspect by eyewitness just an after its commission as when he observes it himself. To allow a warrantless personally when an officer observes crime and pursues suspect, but disallow it when he immedi- ately responds eyewitness report'and pursues to an suspect arbitrary would be indeed.
¶ 34. We note that Welsh itself makes no mention of such a distinction. Welsh did not even reach the question pursued case, because in that no one the sus- flight pect from the scene of the crime or observed his at investigating only all. The officers determined the sus- pect's by checking whereabouts the motor vehicle registration of his abandoned car. Hayden supports
¶ 35. our conclusion that "hot pursuit" necessarily require does not that the officer *16 personally suspect's flight witness the crime or the Hayden, Supreme from the scene. In the United States upheld entry Court a warrantless into the home of a company. Hayden, robbing suspected of a cab man had drivers followed the robber at 297. Two cab U.S. the of to a house. Id. One of from the scene the crime suspect's dispatcher of the location his drivers notified dispatcher relayed to the the information and the responding police Id. officers, who entered the house. sufficiently exi- The found circumstances Court these entry. gent justify the Id. to officers' warrantless Hayden, in Berlin Like 36. the officers responded dispatch picked up of a and the trail to eyewitness suspect fleeing His from an account. response immediate, and crime to the scene of the was suspect pursuit and continu- his was immediate rapid upon of ous his arrival on the scene collection suspect. regarding the the whereabouts of information delay any record is no evidence in this of There response pursuit or that have inter- would Berlin's rupted continuity immediacy the situation the dissipated exigency. We conclude and therefore exigent justified circum- was that Berlin's pursuit. of hot stance argues that this was The State also safety
justified by exigency to of the "[t]he of a threat suspect others. It is well-established or require police to Amendment officers Fourth does investigation delay if to do so would in the course of an endanger gravely others." or lives of their lives Hayden, con- U.S. at 298-99. court safety here because: that there was no threat cluded to a responding dispatch Berlin Although he learned when he arrived at scene burglary, Rather, the incident place. had burglary no taken entry. no There were attempted unlawful was an *17 reports that present firearms were or indications that the suspect was known to be danger- violent or ous. The occupants in Richter's trailer were all asleep when Berlin arrived. Berlin calmly conversed occupants with the two initially he awoke prior to entering the trailer. We conclude these facts support the conclusion that the officer could not have reasonably grave believed a threat to the safety of others existed. analysis
Richter,
lack information about of any expects presence This and the of firearms. ousness puts risk. course of much at In the too much and investigating too fleeing progress pursuing and
crimes in upon police suspects, to make officers are often called incomplete judgments upon information. based safety. physical exigency threat at issue here is the to police require in this to have To a officer situation presence or the of firearms affirmative evidence of suspect part on the of the violent tendencies known arbitrary safety acting protect of is to the others before unreasonably handicaps the officer and unrealistic responsibilities. performance core of his the of one suspect Certainly, pursuit armed and of known to be exigent dangerous circumstances would establish safety. implicating physical The absence a threat to propensities of the firearms or the information about suspect, however, mean threat could does not that no present. possibly have been Focusing and could on was known what
reasonably the officer at the time be inferred reasonably entry, that Berlin believed conclude that we posed pursuing the a threat he the intruder occupants safety It was the Richter's trailer. just night. stranger into the had A broken middle of the Champions' therefore trailer, discovered and but was to commit crime he intended abandoned whatever fleeing trailer the street. inside; into Richter's across signs were There obvious of forced at Richter's (in weather), open 40-degree trailer —an window lying ground. the knocked out screen on the It was suspect reasonable to infer from this did not belong just in, there but in fact had broken as he did at Champions'. people sleeping There were inside Richter's trailer entered, at the time the intruder creat- ing fraught potential physical a situation with for harm something immediately apprehend if was not done to suspect.7 appeals'
¶ 42. The court of assertion that two of people "calmly inside conversed" with the officer is supported by not record, contains no which infor- mation about their or demeanor state of mind. Nor factually supported, conclusion, would such a if neces- sarily they establish that not risk. In were at involving this, situation such as an unknown male forcibly occupied intruder who entered one but two night, in the homes middle of the a reasonable officer *19 completely would be in warranted the that belief a safety threat existed. hindsight, apparently In 43. there was no
threat to those trailer, inside Richter's because the intruder was in fact a resident there. But we do not hindsight apply exigency analysis; to the we consider only the circumstances known to the officer the at time entry he the made and evaluate the reasonableness of light the officer's in action of those circumstances. regard, Smith, 131 at Wis. 2d 230. In this the United Supreme States Court has said: 7 any involving occupied In break-in situation an home potential there is for harm to the intruder as the well as occu pants the home.
546 satisfy apparent the "reasona- that in order to It is requirement Amendment, of the Fourth bleness" many generally factual demanded what is regularly by must made determinations that be magistrate government agents ofthe —whether executing issuing police warrant, officer conducting police warrant, a search or officer or exceptionsto the one of the warrant seizure under they always requirement correct, that be not—is they always be reasonable. but (1990). Rodriguez, 177, 185 U.S. Illinois v. 497 ¶44. that Berlin's Because we have concluded justified reasonable and into Richter's home was by exigent circumstances, need not address the we by theory as an alter- advanced the State attenuation upon uphold However, search. which to this nate basis agree mis- that the court of with the State we purposes applied so for attenuation doctrine and briefly it. clarification address may Illegal law enforcement conduct subsequent search. consent to taint a homeowner's (1975); 603 State v. Illinois, v. U.S. Brown Phillips, Anderson, 205; State v. 218 Wis. 2d at (1991). Phillips, In 441, 448, 477 N.W.2d Wis. 2d applied in for determin- Brown the test established we illegal ing after an to search obtained whether consent illegal entry sufficiently attenuated from an is Phillips, purge 2d at the taint. Wis. order to requires of three fac- the evaluation The test 205-12. 1) proximity temporal of the official tors: 2) presence of evidence, seizure of misconduct and intervening *20 3) purpose and fla- circumstances, and grancy Brown, 422 at U.S. official misconduct. of the Phillips, 603-04; 205; 218 Wis. 2d at Anderson, Wis. 2d at 448. appeals
¶ 46. The court of
found the first of the
temporal proximity
attenuation factors —the
of the
entry
weigh against
and the seizure of the evidence—to
entry
attenuation, since Berlin's
into the trailer was
immediately by
followed almost
Richter's consent and
Richter,
search.
cededly non-threatening, non-custodial situation:
(even though
Berlin was armed
he did not draw his
2)
gun),
deep sleep.
and Richter was awakened from a
disagree
Richter,
¶
In
were
that inter-
49.
we
sufficiently present
vening
to
circumstances were
things,
among
support
because,
attenuation
other
they
the defendant that
did not have
officers informed
Phillips,
In
had broken into the trailer street, across the that the entering intruder had trailer, been seen Richter's that he wanted to search the trailer for the intruder. It conversation, was clear from the however brief and entry, hard on the heels of the that Richter was not the *22 target of the search. We conclude that this information freely was sufficient to allow Richter to consent to the search. analysis
¶ 52. The third in factor the attenuation purpose flagrancy is the of the official conduct. Id. Applying Phillips, at 209. the test from the court of appeals stated: may
Conduct which flagrant may be still be sufficiently purposeful so as to proscribed be under analysis. attenuation purpose Berlin's of entry was to a lead that an sus- follow unidentified pect attempted had to enter another trailer and then apparently run into Richter's trailer. posi- From his window, tion outside the Berlin could see Richter asleep on the sofa. Berlin nevertheless entered the trailer unannounced sometime after 4:30 a.m. and awoke Richter to ask permission to search for an intruder. He attempt did not to awaken Richter from outside the trailer either shining his flash- light Richter, at as he did the other two occupants, by knocking or on the door. He did not ask the already awakened in occupants the trailer to awaken Richter. These give circumstances appearance exploiting of Richter's sleep state of in Therefore, order gain entry. we conclude that displays Berlin's conduct the necessary level of pur- posefulness which is proscribed under analysis. attenuation added). (emphasis
Richter, 2d at 826-27 Wis. in the have held that this third factor 53. We " analysis 'particularly' important" is attenuation closely to the rationale of the it is most tied because discourage police exclusionary misconduct. rule —to (citing Phillips, Brown, 422 U.S. at 2d at 209 Wis. (7th Fazio, 914 F.2d 604, and United States v. 1990)). [exclusionary rule] "[A]pplication of the Cir. police this deterrent function when does not serve although erroneous, not undertaken an action, police expense at the of the sus- effort to benefit rights." Phillips, pect's protected 2d at 209 218 Wis. 958). (quoting in the Fazio, 914 F.2d at Thus inherent inquiry flagrancy purposefulness evaluation is an or degree there is evidence of some of bad into whether part exploitation the situation on the faith officer. Phillips or Here —unlike either target not the officer's
Bermudez —Richter was *23 investigation pursuing flee- The officer was a or search. investigating drug ing burglar, There is not crime. suggest simply Berlin in this record to that no evidence motives, under- home with ulterior to entered Richter's rights, pressure consent, to him to or mine Richter's to finding hopes exploit evi- of situation otherwise against So, Berlin's conduct was dence Richter. while trying gain entry "purposeful" to course was —he appre- purpose at was directed consent to search —the getting goods hending burglary suspect, on "purposefulness" This is not the Richter. sort defeats attenuation. Accordingly, that the warrant-
¶ we conclude 55. justified entry based home was of the defendant's less pursuit exigent threat of hot circumstances on the 551 safety to and was therefore reasonable under the counterpart. Fourth Amendment and its Wisconsin We entry also conclude that even if Berlin's had been con- trary Amendment, to the Fourth Richter's consent was sufficiently entry purge any attenuated from the illegality. taint of
By the Court.—The decision of court of is reversed.
¶ 56. SHIRLEY S. ABRAHAMSON, CHIEF (dissenting). agree JUSTICE I with the circuit court appeals, and court of both which held that the evi- suppressed. majority dence in this case should be opinion, hand, on the other criticizes the court of appeals, contending that it "draws inferences and support. reaches conclusions that the facts do not ..." Majority op. very ¶at I37. believe this same criticism majority opinion. can be leveled at the "physical entry ¶ 57. A of the home is the chief against wording evil which the of the Fourth Amend- ment presumptively A is directed."1 warrantless search of a home is Majority op.
unreasonable. at prove Therefore the burden is on the State to the exis- permitting entry tence of circumstances into a home Majority op. without a warrant. at 29. The State clearly has not met its burden in this case. majority opinion
¶ 58. The infers that intruder's into trailer #439 was forced through According complaint, a window. to the how- Champion ever, Brian said that when the intruder left (#438) Champion trailer the intruder "went in the Wisconsin, Welsh v. (1984), quoting U.S. Ct., United States v. United States Dist. 407 U.S. *24 (1972).
552 According [of #439]." the front door trailer to officer's testimony hearing, suppression at the witnesses reported only that the intruder entered trailer #439. The officer inferred that the intruder entered trailer through open #439 an window. The officer shone his flashlight through open exposing window, four asleep adults supposed in the room in which the intruder was reports
to have entered. The officer had no
physical
weapons.
violence, threats or
These facts are
support
insufficient
an officer's reasonable belief
delay
procuring
gravely
"that
in
a warrant would
endanger
greatly
life or risk destruction of evidence or
suspect's escape."2
enhance the likelihood of the
agree
¶ 59.
I
with the court of
that the
pursuit
suspect
"[t]he
officer was not in hot
of a
because
record does not demonstrate there was immediate or
pursuit
suspect
of the
continuous
from
scene
entry."
Richter,
814,
unlawful
State v.
224 Wis. 2d
(Ct.
1999).
App.
821-22,
In
2 Smith, 220, 230, State v. 601 131 Wis. 2d 388 N.W.2d (1986). 3 (1984). 740, 466 U.S. 753 (N.J. 1989) (hot See, Bolte, e.g., v. State 560 A.2d justification for a pursuit alone is an insufficient warrantless (Ark. State, Butler v. home); entry into 829 S.W.2d *25 agree ¶ I with the circuit court and court of 60. exigent justify appeals this that no circumstances war- rantless search. The circuit court stated: really exigent
I don't think that constitutes circum- I really stances. don't. The officer could have stood searching He's outside and knocked on door. for says way.. someone that a citizen ran that . . Clearly illegally the officer is there because he I permission. doesn't have don't think there are exi- I gent circumstances. don't think there is hot indicated, I pursuit. very As the officer could have outside, on and —on well knocked the door there, explained why gaining he was instead of permission. access without agree I 61. with the circuit court and court of that the warrantless search was unconstitutional. deciding entry
¶ 62. But after
was constitu-
majority opinion unnecessarily
tional, the
concludes
entry
if
even
the officer's warrantless
into the
suppres-
constitutional,
defendant'sTiome was not
1992)(hot pursuit
justification
alone is an insufficient
for war-
entry
home; exigent
required
rantless
into
circumstances
for
disorderly conduct);
Altschuler,
City Seattle v.
766 P.2d
(Wash.
1989) (hot
App.
pursuit
520-21
Ct.
alone is an insuffi
home;
justification
entry
exigent
cient
for warrantless
into
required
fleeing felon);
Bowe,
circumstances
unless
State v.
(Ohio
1988)(hot
139, 141
App.
pursuit
N.E.2d
Ct.
is an insuffi
justification
cient
for warrantless
into home unless
involved; burglary
violent crime
without violence not suffi
1978)
(Ill.
Sanders,
cient); People
App.
v.
rantless,
adequate
defendant and failure to conduct an
investi-
gation weigh against
finding
all
of attenuation.5 The
*26
trailer,
officer entered the defendant's
shook
defen-
burglar
awake,
dant
him
told
that a
had been seen
entering his trailer and asked for consent to search the
suppression
trailer. In the officer's own words at the
[the
hearing,
defendant]
sleeping.
"He
.
.
.1had to
up...."
him and
him
shake
woke
majority
¶ 64. The
relies on this "brief conversa-
support
finding
majority
tion" to
a
of attenuation. The
finding
opinion's
of.attenuation in this case is inconsis-
5Contrary
majority's suggestion,
prior
to the
our
cases hold
warning
to
that
the defendant that the officer does not have a
warrant,
necessary,
perhaps
finding
while
to a
contributes
180, 208-09,
Phillips,
of attenuation. See State v.
218 Wis. 2d
(1998) (explaining
police
555 making mockery cases and risks tent with other attenuation doctrine.6 unfortunately, just is, one more in 65. This case the court has not been a line of recent cases which sufficiently privacy protective of the of the home.7 For above, I the reasons set forth dissent. I to state that Justice ANN am authorized joins BRADLEY this dissent.
WALSH
(7th
6 See,
Jerez,
684,
e.g., United States v.
108 F.3d
Cir.
1997) (no attenuation where consent to search "followedalmost
immediately
illegal
intervening
after the
seizure" and "no
event
any significance
illegal
seizure and the
occurred between
chain");
Gregory,
United States v.
consent to break the causal
(for
(10th
1996)
discontinuity
Cir.
attenuation a
F.3d
occur).
illegal stop
between the
consent must
7See,
Welsh,
e.g.,
2d