*1 Plaintiff-Respondent, State of Wisconsin,
v. Terion Lamar Robinson, Defendant-Appellant-Petitioner.
Supreme Court
argument
No. 2008AP266-CR. Oral
April
July
—Decided
For the the cause was attorney general, Sanders, Michael C. assistant with general. attorney Hollen, whom the brief on was J.B. Van ¶ ANNETTE ZIEGLER, J. KINGSLAND This is published appeals1 of a review decision of the court of judgment upon that affirmed a guilty plea by of conviction entered County
the Milwaukee Court, Circuit Judge. Joseph upon anonymous Acting R. Wall, an tip informant's and what an forcibly believed to be out- standing felony police arrest warrant, officers subsequently apartment entered and searched the of (Robinson). Following Terion Lamar Robinson the cir- suppress, cuit court's denial of his motion to Robinson pled guilty possession to one count of with intent to tetrahydrocannabinols (THC), grams deliver 200 or 961.41(lm)(h)l § less, in violation of Wis. Stat. (2005-06).2 appeal, argues On Robinson that the offic- entry apartment ers' warrantless into his and subse- Robinson, v. State AppWI 320 Wis. 2d N.W.2d 721. subsequent All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. 961.41(1m) §
Wisconsin Stat. "Possession with intent manufacture, or provides distribute deliver" part: relevant Except chapter, any as authorized this it is for unlawful
person possess, manufacture, intent with distribute or deliver, a analog. controlled substance or a controlled substance may by, Intent under this subsection be demonstrated without enumeration, limitation quantity because of evidence and monetary possessed, possession value of the substances against rights quent constitutional his search violated disagree and and seizures. We searches unreasonable appeals decision. the court of affirm therefore dispositive is issue in this case whether The into Robinson's officers' warrantless supported by subsequent apartment and search by exigent justified probable circumstances and cause the four details three of corroborated when the officers relayed by anonymous informant, knocked immediately presence, heard foot- their announced running steps from the door. deciding Assuming commit- that the without unpaid an arrest fines did not constitute
ment order for *7 permit the to therefore was insufficient and warrant police apartment, entry into Robinson's officers' lawful entry was neverthe- that the warrantless we conclude by probable supported it because was less reasonable by exigent justified First, we circumstances. cause entry police officers' warrantless the determine supported by probable apartment was into Robinson's the each of the officers corroborated Because cause. by anonymous provided preliminary the details three to then for the officers informant, it reasonable was or manufacturing implements paraphernalia, and the activities or person possession controlled substance of the statements alleged analog prior and after the to a controlled substance or subject the Any person is who violates this subsection violation. following penalties: (h) person this subsec- Tetrahydrocannabinols. If a violates tetrahydrocannabinols, included under s. respect tion with analog tetrahydrocan- 961.14(4)(t), substance or a controlled manufacture, nabinols, possessed, with intent and the amount deliver, distribute, or is: containing less, plants grams fewer or or or 1. Two hundred felony. guilty person of a I tetrahydrocannabinols, the is Class alleged, believe, had as informant that evidence of illegal drug activity probably be would found in apartment. Second, Robinson's we conclude police apart- officers' warrantless into Robinson's justified by ment was circumstances. Once presence Robinson aware of officers' outside his footsteps immediately running door and were heard reasonably door, from officers believed that destroy illegal drug Robinson would evidence of his activity. Finally, apart- we conclude that once inside the lawfully plain ment, seized the officers the evidence in view arrested Robinson.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE anonymous 6, 2006, 4. On November citizen walked into Milwaukee's District Five station and (Officer Yaghnam Yaghnam) informed Officer Wesam selling that a man the name of Terion Robinson was marijuana apartment. provided out of his The citizen Yaghnam complete Officer with Robinson's address, Apartment 7233 North 38th Milwaukee, Street in 8, in phone addition to Robinson's cell number. Yaghnam
¶ 5. Officer then conducted a warrant (CIB) check on the Crime Information Bureau and the (NCIC) *8 National Crime Center Information databases.3 According Yaghnam's testimony sup- Officer to at the pression hearing, his search revealed that Robinson operates manages The CIB and a law enforcement mes sage system switch and network provides justice criminal employees a of variety information, including with wide "wants warrants, and driver registration license and vehicle informa tion, histories, protection injunction criminal files, order and information, sex offender property, and corrections stolen miss- and warrants," one for offense" "family two open "had of of a con- possession delivery [or] for "the another the names Listed on the screen were trolled substance." warrants, for, and their what the warrants were of delivery The for or possession case numbers. warrant number. felony substance had a case a controlled his usual Officer practice, 6. Consistent with he did not the warrants and testified that pull Yaghnam Instead, of so. always capability doing have the does If is run on the it comes system. [the officers] [] do "[a]ll good faith, that is in and warrant, with a then back [they] how arrest." is Officer check, After the warrant conducting the ad- officers4 went and several other
Yaghnam as informant anonymous identified by dress The officers did not seek apartment. Robinson's warrant, conduct a were intending search as building talk."5 were let into the "knock and The officers officers, Officer including another resident. Some Justice, Department Law of ing persons more." Wisconsin CIB, http://www.doj.state.wi.us/dles/cib/ Enforcement Services: (last 2010). July visited NCIC, Investigation by the Federal Bureau of
The described (FBI) enforcement," an electronic "the lifeline law is as of justice agen- that enables criminal clearinghouse crime data missing persons, fugitives, locate "apprehend nationwide cies FBI, The identify terrorists." NCIC: property, recover stolen Center, http://www.fbi.gov/hq/ Crime Information National 2010). (last July cjisd/ncic.htm visited his testimony, he and According Yaghnam's to Officer eight squads total of joined by were five other for a partner officers. Appeals explained The Seventh Circuit Court Johnson, 170 F.3d in United States v. technique
"knock and talk" (7th 1999): 708, 711 Cir. *9 Yaghnam, proceeded upstairs Apartment while others remained outside to secure the exits. 8. According to Officer Yaghnam, the officers
knocked on the door to 8 several times Apartment with no They answer. knocked again heard movement inside the them apartment, leading to believe that somebody was inside. At that Officer point, Yaghnam called cell phone number provided by the anony- mous informant. A phone rang on the other side of the door, nobody but answered. Officer Yaghnam described events as succeeding follows:
Q [Attorney Merten, on behalf of the State]: What happened next?
A Yaghnam]: [Officer I then knocked on the door again, and replied, then a male voice "Who is it?" I then replied, stated, "Yes," "Terion?" And he actually, ’Yeah." Then myself as, I identified "The Milwaukee department. open You need to the door." And that is I footsteps running when heard from the door.
Q: you you And when footsteps said heard running door, from the quickly was that —how after the fact that you yourself identified Depart- as a Milwaukee Police you ment officer did hear that? talk," policeapproach [I]n a "knockand apartment a house or they suspect drug dealing occurring. They which is listen outside period time, they the door for a brief and then knock on the door attempt persuade give permission whoever answers to them forthcoming, they If enter. consent is enter and interview the occupants not, place; they try vantage if it is to see from their point drug paraphernalia at the door whether or contraband is in plain is, entry. view. If it then malee a warrantless As this description plain, procedure typically makes the "knock and talk" prior does not involve the issuance of warrant. Phillips,
See also State v.
App 179,
n.6,
2009 WI
Wis. 2d
A: footsteps, did Q: you heard those what And when you do then? him Then, fearing safety possibly the of
A: for entry escaping, or we then forced destroying evidence apartment. building, into the into the you heard Q: you did force after How soon footsteps? those Immediately.
A: entry? Q: you And did force how kicking open the door. ByA: door, kicked the Yaghnam open After Officer into the proceeded apartment. the other officers he and residence, identi- Yaghnam Officer entering Upon He marijuana. odor of burnt strong" fied a "pretty concept." as an layout "open the apartment's described kitchen, a to the door was Immediately right a room. Robinson was dining opened up which flowed The room dining dining in the room. standing found a female room, where the officers living into a (Reindl). The apart- Reindl later identified as Roxanne door exit, sliding accessible balcony ment had room. living room and dining located between on a coffee marijuana observed loose Officer Yaghnam bags individual in the room and several living table the couch. cooler next to open inside an marijuana Robinson, citing arrested Yaghnam 10. Officer then warrants."6 He Robinson's "open as basis "a large and recovered person Robinson's searched Her is not at issue arrested Reindl. arrest The officers also in this case. currency"7 phone. phone's
amount of and a cell The cell Yaghnam previously number matched the one Officer digital dialed. The officers also seized two scales and a baggies; box of sandwich one of the scales and the baggies were taken from kitchen counter.8
¶ 11. 8, 2006, On November Robinson was charged possession with one count of with intent grams THC, deliver more than 200 but not more than 961.41(1m)(h)2. grams, § 1,000 in violation of Wis. Stat. January suppress On 2007, Robinson moved to all apartment grounds evidence obtained from his on the entry. that it was the fruit of an unlawful *11 January ¶ 12. On 10, 2007, the circuit court con- hearing suppress, ducted a on Robinson's motion to at largely Yaghnam's which Robinson corroborated Officer testimony. hearing Robinson recalled knocks on his apartment immediately door9 on November phone ringing. followed his cell He testified that he ringer silenced his and then went to the door to look out peep peep hole, but the hole was covered. When he responded, asked there, who was someone "Milwaukee Department. Open up." According Police Robinson, " replied, you,' away he then 'No, thank and walked kicking from door, and started in the door."He running denied from the door and stated that he was wearing shoes at the time. 7According complaint, to the Robinson in possession was $1,800. Yaghnam Officer acknowledged that the second scale was plain not in view and was instead located adjacent in a closet Robinson's bedroom. The circuit court deemed that scale inad missible. initially Robinson denied residing at apartment, tes
tifying that it was not his residence but girlfriend's. instead his He has since argument. abandoned that smoking marijuana
¶ 13. Robinson also denied day that Reindl was. He admitted that but testified marijuana strong in the air in his a apartment odor of was marijuana was on the coffee table. and marijuana asked if he was aware that was also When responded cooler, that he not: "I seen the he was [The cooler] weed that was on the table. couldn't have sight." [i]t have been out of had to been — suppression ¶ 14. Reindl also testified at the hear- ing. visiting apartment recalled Robinson at his on She smoking "[a] 6, 2006, November little bit" of mari- juana. suppression hearing,
¶ 15. At the close of the it light Yaghnam thought came to that what Officer felony possession delivery open for of a warrant or actually controlled substance was a commitment order September unpaid particular, 29, 2006, for fines. on County the Milwaukee Circuit Court issued a commit- unpaid stemming for fines from Robinson's ment order manufacturing delivering or THC. 1998 conviction for According 18, 1998, records, to court on December Judge Kitty K. Brennan10 sentenced then-circuit court imprisonment 12 months and ordered him Robinson to "pay plus a fine in the amount of all costs and $500.00 starting surcharges month, at $50.00 3/1/99 *12 every days or 60 thereafter on the first of month serve TIME in the House of Correction consecu- STRAIGHT any order was tive to other sentence." The commitment signed by Court and an assistant to the Clerk of Circuit
10 court, argument filed a Prior to oral before this the State informing Judge a member of the letter us that Brennan was The was appeals panel court of that decided this case. matter attention, neither brought appeals' not to the court of Robinson nor the has briefed or filed a motion on the issue State before this court. We therefore will not address it further. arrest and enforcement officer that law "any
ordered days for 60 custody Jr[.] Robinson L[.] Terion detain is paid." or until $1026.50 14, 2007, the circuit court issued March 16. On sup- motion to Robinson's denying
an oral decision testimony Officer Yaghnam's The court adopted press. "[ejven that Terion fact, noting findings as its that much [wa]s all of this version of Robinson's In the court police[’s]." particular, than the different officers, on relying that finding made a threshold Robinson databases, believed that the CIB and NCIC felony arrest warrant outstanding to an subject was Citing delivering marijuana. or manufacturing for Collins, 320, 326, 2d 363 N.W.2d v. Wis. State that the evidence (1984), the circuit court concluded because the officers believed should not be suppressed authorized arrest warrant which they had a valid into Robinson's entry apartment. denying for grounds 17. As alternative the circuit court suppress, applied
Robinson's motion WI 24, 233 Wis. 2d 607 N.W.2d Hughes, State v. the officers' otherwise war 621, and determined apartment supported rantless into Robinson's circumstances. justified by exigent cause and by probable had cause probable The court concluded that the officers of a contained evidence apartment to believe information relayed by crime because confirmed informant, apart Robinson's anonymous specifically addition, cell number. phone ment number and his he testimony that Yaghnam's court believed Officer and consequently heard from the door footsteps running feared the destruction of evidence. *13 Following
¶ 18. the circuit court's denial of his guilty suppress, pled motion to Robinson to a reduced charge possession of one count of with intent to deliver grams THC, less, or and the circuit court entered judgment of conviction. appealed
¶ 19. Robinson
his conviction and the
denying
suppress.
30,
order
his motion to
On June
appeals
2009,
Robinson,
the court of
affirmed. State v.
App 97,
689,
2009 WI
320 Wis. 2d
stances: "Robinson was in the identified phone given by had the cell number the informant. away footsteps moving When the heard from *14 destruc- or a suggesting possible escape attempt door evidence, circumstances were created tion of Id., to kick in the door." 17. the officers permitting ¶ review, 21. Robinson this court for petitioned ¶ 12, 2009. We now which we on November granted affirm. OF REVIEW
II. STANDARD
22.
of an order
or
granting
denying
Our review
¶
presents
question
a motion to
evidence
suppress
280,
15.
constitutional
fact.
233 Wis. 2d
Hughes,
¶
fact,
with a
of constitutional
presented
question
When
court
in a
State v.
engages
two-step inquiry.
this
Pallone,
162,
77,
27,
2000 WI
236 Wis. 2d
613 N.W.2d
¶
568;
280,
First,
2d
we review
Hughes,
Wis.
¶
the circuit court's
of historical
fact under a
findings
standard,
deferential
them unless
are
upholding
37,
10,
clearly erroneous. See State v.
2009 WI
Popke,
¶
Pallone,
569;
2d
118,
317 Wis. 2d
765 N.W.2d
236 Wis.
162,
27;
280,
Second,
2d
233 Wis.
we
Hughes,
¶
¶
constitutional
to those
independently apply
principles
Pallone,
27;
162,
facts.
236 Wis. 2d
Hughes,
¶
Limon,
280,
15;
77,
2d
v.
App
Wis.
State
2008 WI
¶
2dWis.
III. ANALYSIS case, deciding this we assume without order for fines did not unpaid commitment constitute an arrest warrant and therefore was insuffi- entry cient officers' lawful into permit need apartment. Robinson's We not determine whether rule good exclusionary faith exception applies because we conclude that the officers’ warrantless and subsequent search was justified on the more narrow grounds of probable cause and exigent circumstances. 24. The Fourth Amendment to the United States Constitution I, and Article Section Wisconsin Constitution protect ”[t]he right of the to be people secure their persons, houses, papers, and effects, against unreasonable searches and seizures." Const, U.S. Const. IV; amend. Wis. 1, § art. 11.11 Be *15 " cause physical entry of the home is deemed 'the chief evil which against of the wording Fourth Amend ment is directed,'" Payton York, v. New 573, 445 U.S. 585
11The Fourth Amendment to the United States Constitu provides tion in full: right people persons, houses, The of the to be secure in their effects, papers, against and seizures, unreasonable searches and violated, issue, shall not be and upon probable no Warrants shall but cause, supported by affirmation, particularly Oath or describing and place searched, persons to things be and the or to be seized. I,
Article Section 11 of the similarly Wisconsin Constitution states: right people The persons, houses, to be secure in their papers, against and effects unreasonable searches and seizures violated; shall not be upon probable and no warrant shall issue but cause, supported by affirmation, particularly oath or describ-
ing
place
persons
to
things
be searched and the
or
to be seized.
rule,
general
As a
historically interpret
we
the search and
provision
seizure
of our state's constitution consistent with the
United States Supreme
interpretation
Court's
of the Fourth
Pallone,
Amendment.
77,
28, 236
See State v.
2000 WI
Wis. 2d
¶
162,
568;
613 N.W.2d
State v. Hughes,
24,
n.6, 233
2000 WI
17 ¶
280,
621;
DeSmidt,
Wis. 2d
607 N.W.2d
119,
State v.
155 Wis. 2d
130,
Limon,
(1990);
319 (1980) (quoting E. Dist. Court States v. U.S. United for (1972)), war Mich., Div., 297, U.S. 313 407 S. Dist. of presumptively unreason of homes are searches rantless (1984); Wisconsin, 740, U.S. 749 466 able, v. Welsh ¶¶ Pallone, 162, 29, Payton, 2d 586; at Wis. 445 U.S. Hughes, ¶ doc- 280, However, 2d 59; 233 Wis. the well- is one of circumstances trine of recognized exceptions requirement. See
to the warrant Hughes, ¶ Payton, 280, 17; 2d 590; 233 Wis. 445 U.S. at Smith, 220, 228, 388 N.W.2d 131 Wis. 2d v. State (1986). recognizes special exception that in circum- The urgent coupled need with stances, there is an when warrant, "it be would time to obtain insufficient contrary public policy bar law unrealistic doorstep." Smith, 131 at enforcement officials sub- instances, an individual's at 228. In such Wis. 2d giveway right privacy in his or her home must stantial compelling public in effective law enforce- interest to the Hughes, Smith, 280, 16; 233 Wis. 2d ment. See government the burden of The bears 2d at 228. Wis. supported showing was both that the warrantless justified by exigent by probable circumstances. cause and Pallone, 2d Welsh, 750; U.S. at 236 Wis. See Hughes, Smith, 17; 2d 2d Wis. 29; 233 Wis. *16 at has
¶ case, conclude that the State In this we demonstrating police its satisfied burden apartment into Robinson's officers' warrantless justified by by probable supported cause and was both analyze requirement each circumstances. Wewill turn. in
A. Probable Cause
¶
to the U.S. Consti-
The Fourth Amendment
Con-
I, Section 11 of the Wisconsin
tution and Article
320
"require^ probable
support every
stitution
cause to
'safeguard
privacy
search or seizure in order to
security
against arbitraiy
by
of individuals
invasions
government
Hughes,
¶
officials.'"
280,
233 Wis. 2d
19
(quoting
DeSmidt,
State v.
119,
155
2d
130,
Wis.
454
(1990)).
probable
N.W.2d780
context,
the search
cause
requires
probability'
a" 'fair
that contraband or evidence
particular place." Hughes,
of a crime will be found in a
(quoting
280,
233 Wis. 2d
Gates,
Illinois v.
462 U.S.
(1983));
213, 238
see
Carroll,
also State v.
8,
2010 WI
¶ 28, 322 Wis.
299,
2d
321
anony-
an
acting upon
27. The officers were
mari-
selling
that Robinson
tip
mous informant's
out of his
Considered within
apartment.
juana
of
circumstances,
reliability
the value and
totality
com-
illuminate the
"may usefully
an informant's
tip
monsense,
whether there is
practical question
'probable
located
that contraband or evidence is
cause' to believe
Gates,
at
The U.S.
462 U.S.
in a particular place."
of
value
recognized
particular
Court has
Supreme
an
of details of
enforcement's
corroboration
law
"
Id. at
is
'Because
informant
tip.
informant's
right
he
more
things,
probably
about some
is
right
Id.
v.
(quoting Spinelli
244
other
facts.'"
at
about
(1969)
States,
J.,
410,
(White,
United
393 U.S.
innocent,
is,
That
corroboration of
concurring)).
of an informant's
lend
although significant,
tip
details
informant's
of criminal
reliability
allegations
to the
Williams,
See
v.
39-40,
State
21,
2001 WI
activity.
¶¶
2d
For
of
241 Wis.
of the four informant. details testimony,12 the infor- According Yaghnam's to Officer adopted Yaghnam's testimony as The circuit court Officer uphold findings findings of We those as are its fact. *18 (1) following provided mant the four details: Someone (2) Apartment Robinson, named Terion lived in who (3) at North 38th in Street with cell Milwaukee (4) phone marijuana selling [], number was out of his apartment. explain While the informant failed how speci he information, came know of the inside ficity personally of his information and the fact he supported credibility. walked into station his "anonymous" only Indeed, the informant was to the jeopardized extent he was nameless. He ano his by nymity approaching Yaghnam person. Officer See "Risking Limon, ¶ 174, 312 Wis. 2d 18. one's identifica likely that, not, tion intimates more than the informant genuinely opposed is a concerned citizen as to a falla prankster." Williams, ¶ 631, cious 2dWis.
¶ talk," In the of midst their "knock and preliminary each officers corroborated of the three provided by anonymous details informant: phone name, address, Robinson's his and his cell num- According Yaghnam's testimony, ber. to Officer after he Apartment on 8, knocked the door to a male voice questioned Yaghnam inside, from "Who is it?" Officer replied, answered, "Terion?" The male then voice Yaghnam phone "Yeah." Officer When dialed the cell Robinson's, number identified as informant phone rang immediately on the side of It other the door. just believe, was therefore reasonable for the officers said, as the informant had that Terion Robinson resided Apartment innocent, in although 8. The officers' corroboration of
significant, tip details of the lent informant's Pallone, 162, clearly 27; Hughes, erroneous. See 236 Wis. 2d particularly because, 2d 15. This is true as the Wis. out, pointed circuit Robinson court himself confirmed much Yaghnam's testimony. Officer that Robinson allegation informant's to the
reliability See his apartment. out of selling marijuana Williams, may The officers 2d 241 Wis. of criminal allegation the substantive have corroborated demands: cause not what probable but that is activity, or only probability substan- requires cause [P]robable showing activity, not an actual criminal chance of tial therefore, innocent behav- activity. By hypothesis, such *19 showing of for a provide the basis frequently will ior would be to sub cause; require otherwise probable of drastically rigorous more definition impose silentio de- security our citizens the of cause than probable mands. .. .
Gates, of Moreover, regardless n.13. at 243 462 U.S. an constituted order not the commitment whether or decide, it we do warrant, a which question arrest that Robinson was believed remains that the officers for arrest warrant outstanding felony to an subject least, In the the marijuana. delivering or manufacturing was the fact that Robinson of cognizant were officers That knowl- activity. drug with charged illegal previously allegation the informant's reliability to further lent edge Because the offic- marijuana. selling was that Robinson details preliminary each of the three corroborated ers conclude that informant, we anonymous the provided believe, then as the officers to it reasonable for was illegal drug of had that evidence alleged, informant Ac- in Apartment be found activity probably would of demon- its burden the State has satisfied cordingly, into warrantless officers' police strating cause. by probable supported apartment Robinson's of showing exigent requisite to the State's We now turn circumstances. Exigent
B.
Circumstances
Supreme
30. Consistent with the U.S.
Court,
e.g., Brigham City,
see,
Stuart,
Utah v.
398,
U.S.
(2006); Georgia Randolph,
v.
103,
U.S.
116 n.6.
(2006); Welsh,
recognized
466 U.S. at
this court has
against
four
which,
circumstances
when measured
required
procure
time
exigent
warrant,
constitute
(1)
justify
entry:
circumstances that
a warrantless
an
(2)
pursuit,"
in
safety
arrest made
"hot
a threat to the
(3)
suspect
others,
or
a risk that evidence will be
(4)
destroyed,
suspect
a likelihood that the
will flee.
Hughes,
233 Wis. 2d
25; Smith, 131 Wis. 2d at
analysis
probable
229. Like our
cause, the test for
determining
the existence of
circumstances is
objective
Brigham City,
one. See
403-04;
547 U.S. at
Smith,
326
(2d
1990).
MacDonald,
States v.
766, 772
Cir.
916 F.2d
on Robinson's door and
them-
knocking
announcing
By
the Milwaukee Police
an an-
Department,
selves as
in fact
Robinson's
nouncement which
was invited
it?",
of "Who is
the officers were
question
conducting
in
and lawful man-
utterly appropriate
themselves
(7th
Collins,
United States v.
697,
See
ner.
510 F.3d
2007) ("[T]here is no
of
legal requirement
obtaining
Cir.
door.").14
to knock on someone's
Simply
warrant
to the
because Robinson chose to
officers'
respond
door,
from the
by running
thereby
lawful conduct
the officers to believe that he would
leading
destroy
evidence,
not mean that
to overlook the
ought
does
we
MacDonald,
circumstances. See
Moreover, in its discussion of the Seventh Circuit's earlier
Ellis,
dissent,
72-77,
in
decision
see
dissent leaves out
¶¶
key
distinguish
analysis in
complicated
facts that
Ellis
Ellis,
Among
things,
from the facts of this case.
other
in
kicked in
showing
officer
the side door made no
who
differentiate the movement he heard inside the home from the
any
type
reasonable
of movement
that could be found
home
following a knock at the door.
("Exigent
disregarded
circumstances are not to be
sim-
ply
suspects
respond
agents'
because the
chose to
to the
destroy
attempting
escape,
lawful conduct
evi-
engage
any
activity.").
dence, or
in
other unlawful
It was
not the officers' knock and announcement that created
exigent
circumstances. To hold otherwise would
defy
very
standard of reasonableness considered to
be the "ultimate
of the Fourth
touchstone
Amendment."
Brigham City,
Rather,
See
(1985);
Finally,
Johnston,
IV CONCLUSION Assuming deciding the com- without unpaid mitment for fines did not constitute an order permit insufficient to arrest warrant and therefore was *23 entry police apart- the officers' lawful into Robinson's entry ment, we conclude that the warrantless was by supported reasonable because it was nevertheless justified by exigent probable and circumstances. cause police First, we determine that the officers' warrantless entry apartment supported was into Robinson's probable cause. Because the officers corroborated each preliminary provided by anony- of the three details informant, mous it was reasonable for the officers alleged, believe, had that evi- then as the informant illegal drug activity probably be found in dence of would apartment. Second, Robinson's we conclude apart- police officers' warrantless into Robinson's justified by exigent ment circumstances. Once presence his Robinson was aware of the officers' outside running footsteps immediately door and were heard reasonably door, from the the officers believed that drug destroy illegal would evidence of his Robinson activity. Finally, apart- we conclude that once inside the lawfully plain ment, the officers seized the evidence view and arrested Robinson. appeals
By court of Court.—The decision of the is affirmed. (dissenting). BRADLEY, J. To ANN WALSH
day, cases, this court decides three each of which police involves a search of a Milwaukee home where drug suspicion activity officers have some but have procured a cases, warrant. In each of these three a majority suppress this court refuses to the evidence narrowly because it concludes that one of the drawn carefully exceptions delineated to the warrant requirement applies. Artic, 83, In State v. 2010 WI 327 Wis. 2d
392, 430, 786 N.W.2d officers knock at the front door of suspected drug house, and when the resident fails to guns answer, the officers kick down door. With drawn, knock on intermediate door on the Although floor, second and the homeowner answers. disputes homeowner that he consented to the search, consented, this court determines that he that his con voluntary, exception sent was and that the consent requirement applies. the warrant Pinkard, 81, State v. 2010 WI 327 Wis. 2d drug 785 N.W.2d five unit officers arrive at an apartment anonymous tipster after an alerts drugs, money present. there are scale, After the *24 presence, knock, officers announce their and wait for 30 they proceed seconds, to 45 then to enter the residence occupants. out of concern for the welfare of the Al though testimony the does not reveal that the officers possibility were concerned about the overdose, of an hypothetically, this court concludes that "an officer reasonably occupants] [the could be concerned that may drugs." ¶ have Id., Therefore, overdosed on 35. it community caretaking exception determines that the to requirement applies. the warrant ¶ In case, 38. this at least seven officers arrive at apartment perform to a "knock and talk" after an anonymous tip providing unspecified allegations that dealing drugs apartment. the resident is out of the apartment, Officers confirm that the resident inis the door, and the officers hear the open fails to the resident the then to kick down They proceed running footsteps. is that the resident determines because door. This court every he has incentive presence, of the officers' aware facts, Under these it evidence. intentionally destroy circumstances exception that the exigent determines applies. the requirement warrant cre- "effectively refrain from 39. Courts should ¶ have no reason to which the a situation ating] a home with want to search they obtain a warrant when v. See United States drugs." connections to any of type (7th 2007). Yet, the inter- 686, 691 Cir. Ellis, 499 F.3d to conclude three cases could lead one section of these generalized suspicion officers have a that when home, go in a need not they activity occurring is drug Rather, a warrant. procuring the trouble of through and talk. execute a knock only need door, that suspect the opens If the suspect the consented to voluntarily to have be found may the door open If the suspect search. refuses inside, there be máy officers hear movement the destruction to the possibility circumstances due door, concern for If no one answers of evidence. like a drug sounds what well-being occupants caretaker community may justify entry under house exception. case, along that this with I am concerned Amend- dilute the Fourth today, cases decided
other two to justify knock and talk procedure ment by allowing enforcement officers Both law entry. warrantless and talk mindful the knock alike be courts should thin ice. constitutionally on rests technique case, I con- the facts of this examining *25 that determining prob- errs in majority that clude circumstances were present exigent able cause and here. I Because determine that the warrantless search apartment
of Robinson's violates the constitutional protections guaranteed by the Amendment, Fourth I respectfully dissent.
I majority correctly ¶ acknowledges 43. The demonstrating the State bears the burden of that this entry supported by probable warrantless home justified by exigent Majority cause and op., circumstances. prior ¶ breaking 24. It determines that down the Apartment probable door to 8, the officers had cause to illegal drug activity believe that evidence of would be apartment found in the because the officers had cor- provided by roborated three of the four details anonymous tipster: name, address, Robinson's and cell phone Although recognizes ¶¶ Id,., number. it only that suggests details corroborated were innocent, it "specificity" anonymous person- informant's information and "the fact that he ally supported walked into the station" his cred- ibility. Id., majority
¶ 44. The further determines that exi- gent present circumstances were because, once Robin- presence son was footsteps aware of the officers' and his running were heard door, from the a reasonable officer destroy would believe that Robinson would evidence. majority acknowledges Id., 31. The that officers justify exigent cannot a home due circum- stances that Id., themselves create. 32. How- citing ever, majority United MacDonald,1 States v. impermissibly asserts that officers do not create United MacDonald, States v. (2d 916 F.2d Cir. 1990). *26 acting lawfully. Majority they are when circumstances op., lawfully may a ¶ execute Because officers 32. majority "It concludes: talk, the knock warrantless that and announcement the officers' knock was not exigent it Rather, Id. circumstances." created the created from the door" that to run "Robinson's choice exigency.Id. the to execute a knock
¶ officers choose 45. When they seeking are on consti- warrant, than talk rather tutionally recognize majority this fails to ice. The thin search. this warrantless ice, and instead ratifies thin determining probable exi- cause and that In gent facts, the ma- under these circumstances existed away "cut[] jority the distinct errors makes two way protections, in a Amendment's of the Fourth core sanctioned[.]" Supreme United Court has never the (7th Johnson, 708, F.3d Benet v. Juan States 1999). requirement majority the dilutes First, the Cir. anonymous tip. reliability of an assess the that officers give meaning that officers rule Second, it fails to from circumstances cannot benefit create. themselves implica- first the constitutional I address technique. Then, I address knock and talk
tions of the majority that cut distinct errors in turn the two protections. Fourth Amendment at the core of II special place occupies in Fourth The home jurisprudence. Wisconsin, 466 Welsh v. Amendment (1984). homes are searches of Warrantless U.S. presumptively Id. at 748-49.
unreasonable. cogently Supreme described Court United States procure requiring a warrant officers to rationale for prior entering a home. It emphasized role of the neutral and detached magistrate: point Amendment,
The of the Fourth which often is not grasped by officers, zealous is not that it denies law enforcement support of the usual inferences which *27 reasonable men draw from evidence. protection Its requiring consists in that those by inferences be drawn a neutral magistrate and detached being instead of judged by the engaged officer in the often competitive enterprise ferreting out crime.
Anne Johnson v. States, United 333 10, U.S. 13-14 (1948). Here, as
¶ with the other two cases decided today, officers engaged the competitive enterprise of ferreting out crime chose not to seek a warrant. In- stead, they to to opted go a suspected drug house and perform a "knock and talk." 50. A recent
¶ commentator has posited that per- functory review by courts of law enforcement's use of the knock and talk procedure to circumvent the war- rant requirement "has severely limited the Fourth Amendment protection afforded to homes, despite the Supreme Court's stance that homes are heavily pro- tected." M. Craig Bradley, "Knock and Talk" and the Amendment, (2009). Fourth 84 Ind. L.J. 1099 He " '[kjnock asserts that and talk' has become a talisman before which the Fourth Amendment 'fades away and disappears.'" Id. at 1127.2 large [T]here is a police activity swath of that intrudes
into dwellings widely that has been allowed the courts and that often renders the search and arrest warrant requirements nugatory... . Under talk," "knock and go people's residences, probable cause, with or without and knock on plain the door to obtain views of the interior have been critical of the Likewise, courts State, v. Hayes talk N.E.2d procedure. knock and (Ind. 2003), the court opined App. named 'knock aptly and talk more be might "[k]nock enter,' usually goal because it is officer's not but a warrantless search of to talk to conduct merely It se per "[w]hile explained the premises." unlawful, the knock and talk procedure 'pushes misused." Id. easily and can be envelope' chooses to majority It is curious that procedure quotation the knock and talk with explain v. Juan the Seventh Circuit case United States from Johnson, 7 n.5.3 708. See majority op., Benet F.3d of the knock court critical the use The Johnson house, residents, to seek consent to question search, warrant, often based on without a arrest and/or during talk." When discover the "knock and what exceptions to the warrant combined with such other consent, view," incident requirement "plain as and search *28 arrest, powerful investigative a "knock talk" is to and technique. Amendment, Bradley, Talk" and the
Craig M. "Knock and Fourth (2009). 84 L.J. Ind. Johnson, 170 F.3d In United States v. Juan Benet (7th 1999), that knock and talk explained the the Cir. court they that procedure employed by hopes often officers in the entry: home would able to conduct a warrantless be apartment talk," police approach a and house or [I]n a "knock the dealing occurring. They they suspect drug listen is in which time, they period a knock on the door for of and then outside brief give attempt them persuade whoever to door and to answers the forthcoming, they enter permission to enter. If consent is not, they try occupants place; if it is to see the interview vantage point drug paraphernalia their at the door whether from entry. is, As this plain If it made warrantless is in view. then typically plain, procedure talk" description makes "knock and the prior issuance of warrant. does not involve procedure police and talk Milwaukee officers who probable explained: lacked cause to secure a warrant. It today "We do hold talk' 'knock and tech- nique automatically is unconstitutional. Neverthe- recognize less . . . the themselves must the inher- way proceeding." ent limits in this more Id. informal added). (emphasis at 720 right. ¶ 53. The Seventh Circuit is Law enforce- recognize ment officers must the limitations of this way attempting gain entry more informal to to a today home. The three cases decided demonstrate that recognize this court as well must the limitations of the procedure. knock and talk any given temptation case, there is a exceptions require-
stretch and twist the to the warrant explain ment Often, to fit the facts. the court will presents exception call," the case a "close but an to the requirement applies. exception warrant The stretches a likely further, little and next time it will be stretched again. narrowly exceptions time, Over defined the Fourth Amendment become the rule. unwilling provide A55. court that it is a check gathering
on unconstitutional evidence does a disfavor to law enforcement and citizens alike. It abandons its role message the clear sends to law enforcement that no players one is at the helm. When the on a team learn that foul, referee will never call there remains little play incentive to within the rules. Despite reiterating
¶ 56. that warrantless presumptively searches are this unreasonable, court suppressed procured during has evidence a warrantless only years.4 home search two times last *29 4 Sanders, State v. 85, 257, 2008 311 WI Wis. 2d 752 N.W.2d Knapp, 713; State v. 127, 86, 285 WI Wis. 2d 700 N.W.2d 899.
Today, three more this court ratifies warrantless exceptions searches, based on three different home requirement. this track and the warrant With record meaningful place of courts to limitations the failure the technique, knock talk I fear the on the presumption home searches are un- that warrantless example an a has reasonable has become of rule that by exceptions. its been swallowed
Ill majority ¶ 57. The it dilutes the re- errs when reliability quirement an that officers assess the of anonymous heavily tip. It relies on the fact that by walking jeopardized anonymity into informant his relaying police tip station, the phone. rather that over Majority op., ¶ 28. of Yet, 58. that fact alone is not sufficient indicia
reliability probable cause. Wisconsin courts establish reliability tip require of a additional evidence of the informant, from confidential even when it comes provided officers, has reliable known who past. Romero, information in the State v. 2009 WI Independent ¶ 26, 2d Wis. N.W.2d tip reliability required. is corroboration of the of majority The is that corroboration of correct may provide although significant indi- innocent, details tip. agree reliability anonymous I cia of the with majority address, tele- name, the phone that Robinson's
number are "innocent" details corroborated prior officers to their decision to kick Robinson's door. However, de- the corroboration innocent support enough. To that the tails is determination anonymous reliable, informant is the details must also "significant." be *30 majority,
¶ 61. Unlike the I cannot conclude that name, the details about Robinson's cell address, and phone "significant." number are Various individuals likely type identifying have this access to information all about of us. by anony- provided
¶ 62. The innocent details this cry a far mous informant are from the details innocent Supreme Gates, that the relied Court on in Illinois v. 462 (1983), anonymous tip. U.S. to corroborate an anonymous Gates, an letter asserted that Gates was planning trip pick up drugs, a Florida the letter provided including details, time, date, and mode of transportation, trip. of this at Id. 213. The letter's predictions detailed were corroborated the authori- magistrate Based details, ties. on these corroborated a a review, issued warrant to search car. Id. Gates' On Supreme tipster insight Court indicated that the had plan. explained: enough, into Gates' purposes The Court "It is for assessing probable cause, that corroboration through other sources of information reduced prevaricating provid- chances of a or tale, reckless thus ing crediting" anonymous tip.5 a substantial basis for at Id. 244-45. Similarly, anony-
¶ 63. in Williams, State v. an purported caller mous described the scene of crime great including detail, vehicle, the location of the general description layout of the vehicle, and the of surroundings. ¶21, 2001 WI Wis. 2d N.W.2d 106. The arrived four minutes later and corroborated those details. Because the caller could specific describe the with scene such it detail, recently reasonable to conclude that the caller was at on-the-spot Unlike officer's probable cause determina tion, an issuing-magistrate's probable determination cause is presumptively reasonable. illegal activity. observe the in a position scene decision con- its
The Williams explained court Gates, indicia of other "[w]here because with formed not necessary information is exist, reliability predictive *31 Id., 42. veracity[.]" tipster's ¶ an anonymous to test Williams, the corrobora- Gates In 64. both ¶ of indicia provided details significant innocent but tion of of criminal assertions for the uncorroborated reliability entirely in this case is of an The "corroboration" conduct. informant anonymous The fact that the nature. different information identifying Robinson's accurately provided any has into insight the informant indicia that is not anony- the that only It corroborated criminal behavior. of Robinson, or knew perhaps informant knew mous Robinson. is a lower standard suspicion 65. Reasonable held that the Yet, the Court has cause.
than probable
kinds
here are insufficient
provided
of innocent details
criminal
conduct.
of
suspicion
reasonable
establish
details,
anony-
the
containing "significant"
than
Rather
the
of "bare-bones
type
case looks like
mous
in this
tip
J.L.,
Miami-Dade Police was a shirt wearing plaid stop a bus particular details Id. at 268. Officers corroborated a gun." carrying the young frisked identity, but suspect's the about a carrying gun. that he was corroborating man without its reliable because tip that "the was argued The State proved attributes the visible suspect's of description wearing a black male young There really accurate: Id. at stop."6 shirt at the bus a plaid and frisk should be argued stop that "a Similarly, an amici (1) description of provides a anonymous tip permitted 'when ¶ 67. The determined that "the Court Fourth easily Amendment so is not satisfied." Id. at 273. It explained anonymous tip accurately describing that an suspect's appearance the location and "is of course help in reliable this limited sense: It the will correctly identify person tipster the whom means to tip, however, accuse. Such a does not that activity." show tipster knowledge has of concealed criminal suspicion, tip at Id. 272. To constitute reasonable illegality, just must "be reliable in its assertion of in tendency identify person." its determinate Id. tip anonymous tip J.L., to the Similar provided identify per- here information sufficient to tipster that the meant However, son to accuse. it did not any tipster knowledge demonstrate that had activity. I concealed criminal conclude corroboration provided by tip innocent details this bare-bones did *32 provide suspicion, not these officers with reasonable probable much less cause.
IV probable 69. Like its determination about majority's analysis exigent cause, the circumstances incompatible controlling majority also is with law. The recognizes that law, under Wisconsin officers cannot justify exigent a warrantless home based on they Hughes, circumstances that create. See State v. ¶24, n.7, 2000 WI 28 233 Wis. 2d 607 N.W.2d621 ("It important is also to note that this is not a situation particular person particular a a illegally at carrying location (2) firearm, police verify concealed promptly the pertinent tip except details of the the firearm, existence the and (3) there are no that reliability factors cast doubt on the J.L., Florida (2000). v. tip....'" 529 U.S. 271
340 by police exigency was created the them in which justify generally not selves, which would warrantless home.") citing a However, of a Second Circuit search roundly majority opinion criticized,7 the that has been agents in that "when law enforcement act determines entirely they impermissibly manner, do not lawful (cit exigent Majority op., ¶ circumstances." 32 create (2d ing MacDonald, F.2d 766, United States v. 1990)). Cir. majority's appears logic follows: 70. The be as from know that cannot benefit manufactur-
We
officers
exigent
thereby circumventing
ing
circumstances,
requirement.
However, MacDonald holds
warrant
exigent
do
manufacture
circumstances
officers
not
they
place.
that the officers
when
are
a lawful
Given
executing
talk,
not
a lawful knock
it must
were
knock and announcement that created
have been their
exigency. Majority op., ¶
Therefore,
someone
exigency.
It
been
else must
created
must have
have
their
Robinson, who invited
announce
1990).
(2d
MacDonald,
United
v.
¶ 71. The MacDonald decision is not Hughes, the law of Wisconsin. See Wis. 2d contrary Further, 28 n.7. it is to the case law of the jurisdictions. Seventh Circuit and other decision, In a recent the Seventh Circuit explained government that it is lawful "for the to knock [a] on the front door of Ellis, home and ask to come in." [the resident] 499 F.3d at However, "once said no, government by kicking could not save its case in the side door."Id. very The facts in the Ellis case are similar to today.
the facts before the There, court five Milwaukee perform officers decided to a knock and talk at a suspected drug house. When officers arrived at the they registered occupant home, prior drug knew that the had two drug
convictions and that an unknown supplier had visited the house a week earlier. Id. at 690. Ellis door, answered the but he refused to consent to the entry. officers' warrantless Id. at 688. Lopez
¶ 74. Officer was identified as the officer standing who was at the side of the house. Id. The facts reflect that what he heard was not mere movement in person running up Rather, house. Id. he heard "a "Hearing [the] and down the stairs." Id. movement, Lopez occupants Officer concluded that the in the home trying destroy drugs." were Id. He made the decision prevent to break down the door and enter to destruction of evidence. Id.
¶ 75. The that, Seventh Circuit held under those justify facts, the officers could not their warrantless upon exigency home based had by informing occupants presence: created of their *34 government's decision to inform the occu- It was the they targets of the 40th Street home that were pants investigation government when the government a for the front door and asked consent knocked on gamble government The took a come into the home. occupants would consent to their hoping that revealing plain in open would the door contraband or sight. at 692.
Id. explained refused The court that "once Ellis government's occupants consent, the knew of to investigation government home and so the might destroy any drugs occupants that the concerned acknowledged in the Id. It that could be home." destroyable "[d]rugs easily and are an form of evidence may suspicions he be raised when therefore an officer's Further, hears movement." Id. at 691. or she "Knock- any ing home result in movement on a door will occupant see who is will move to door to because knocking possibly However, Id. to answer the door." government's choice admonished, "it was the the court by engaging occupants in a itself to the home to reveal investigation its decision back- and talk' 'knock fired." Id. at 692. explained, problem "[T]he it "is case," in this they agents when the officers and lacked warrant
approached if that, al- the home and utilized tactics go Fourth unchecked, eliminate the would lowed any requirement for a home with warrant Amendment drugs." "If affirm the Id. at 691. we connection to [that circumstances district court's decision effectively present], situation in created a were we have no reason to obtain warrant have which any type a home want to search with when drugs." Id. connections Appeals employed The Third Circuit Court of analysis Coles,
a similar
in United States v.
¶ 79. whether circum- present, emphasized stances were the court that "the officers decided to enter room 511 without a warrant." Id. at 370. "It was that decision to conduct a warrantless entry any urgent room, and search of the without need impermissibly very exigency so, to do that created the upon by government relied in this case." Id.
¶ 80. The Third Circuit concluded that the offic- justify exigency ers could not their with an that did not exist before officers decided to alert the occu- pants presence: to their emphasize
We the record urgency reveals no or action, need for the to prior officers take immediate the officers' decision to knock on Coles's hotel room is, course, door and entry. demand It true that once the officers knocked on announced, "open the door and door, police," they this is the heard sounds indicat- ing that evidence being destroyed. was But exi- gency did naturally not arise or from reasonable investigative Quite contrary, tactics. to the the offic- ers, pretextual after their announcements had failed gain entry to room deliberately created exigency by knocking on the door to room 511 and demanding entry. at
Id. 371. I courts, other conclude that Like these MacDonald previously which has not been analysis, Wisconsin, safeguard does not adequately adopted I conclude that the Amendment Because rights. Fourth exigency cause and any officers did not have probable the door open Robinson refused that existed when I determine that the exigent created police, was requirement to the warrant exception circumstances search of Robinson's The warrantless apply. does unconstitutional, and the evidence apartment should be suppressed. seized this search during above, I respectfully For the reasons stated dissent. to state that Chief Justice I am authorized this dissent. joins
SHIRLEY S. ABRAHAMSON