STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Dwight M. SANDERS, Defendant-Appellant.
No. 2006AP2060-CR
Supreme Court of Wisconsin
July 9, 2008
2008 WI 85; 311 Wis. 2d 257; 752 N.W.2d 713
Oral argument December 12, 2007.
For the defendant-appellant there was a brief and oral argument by Patrick M. Donnelly, assistant state public defender.
¶ 1. SHIRLEY S. ABRAHAMSON, C.J. The State seeks review of a published court of appeals decision reversing an order and judgment of the Circuit Court for Racine County, Dennis J. Barry, Judge.1 The circuit court denied defendant Dwight M. Sanders’ motions to suppress both physical evidence and statements that law enforcement officers obtained following a warrantless entry into the defendant‘s home and two subsequent warrantless searches of the defendant‘s bedroom. The defendant was convicted of possession of cocaine with intent to deliver as a second offense and as a
¶ 2. In reversing the circuit court‘s order and judgment, the court of appeals concluded that the law enforcement officers’ warrantless entry into the defendant‘s home violated the defendant‘s rights under the
¶ 3. The determinative issue on review is whether the circuit court erred in denying the defendant‘s motions to suppress the physical evidence that law enforcement officers obtained following a warrantless entry into the defendant‘s home to make a warrantless arrest and two subsequent warrantless searches of his bedroom.4 This issue turns on the answer to the following question: Are the law enforcement officers’ two
¶ 4. The court concludes that although the first warrantless search of the defendant‘s bedroom may have been justified under the “protective sweep” exception to the Fourth Amendment warrant requirement, the second search of the bedroom was not justified under the “search incident to arrest” exception to the Fourth Amendment warrant requirement. The court further concludes that the search of the canister found in the bedroom and seizure of its contents were not justified under either exception to the Fourth Amendment warrant requirement.
¶ 5. For the reasons set forth, we affirm the decision of the court of appeals reversing the circuit court‘s order denying the defendant‘s motion to suppress and reversing the circuit court‘s judgment of conviction.
I
¶ 6. We briefly summarize the facts relating to the officers’ obtaining possession of the evidence that the defendant moved to suppress.
¶ 7. Two City of Racine police officers, Officers Garcia and Anderson, were dispatched to a residence on a complaint of cruelty to animals. As the officers arrived, they heard a dog yelping and proceeded to the
¶ 8. Officer Anderson advised the defendant of the animal cruelty complaint and made multiple requests for the defendant to identify himself. The defendant responded to each of these requests by saying that he had done nothing wrong. According to Officer Anderson, the defendant objected to the officers’ conduct, saying that “this [is] bullshit.”
¶ 9. As the officers conversed with the defendant, they observed that the defendant was holding folded-up bills of currency5 as well as a yellow and black canister later revealed to be a beef jerky canister.
¶ 10. Officer Garcia testified that the defendant‘s residence was not a known drug house, that Officer Garcia had had no prior dealings with the defendant, that Officer Garcia was unaware at the time whether the defendant had a history of drug trafficking, and that Officer Garcia observed neither a controlled substance nor a drug transaction in the defendant‘s back yard. Officer Garcia also testified that the defendant‘s residence is located in a known drug trafficking area and that it was “not unusual” for persons to conceal controlled substances in canisters “similar to” the beef jerky canister that the officers observed in the defendant‘s hand.
¶ 11. Officer Anderson attempted to detain the defendant with handcuffs. At oral argument in this court, the State characterized this attempted detainer
¶ 12. When Officer Anderson attempted to detain the defendant, the defendant moved away from the officers and then ran into his home through the rear door. At some point while the defendant was moving toward his home, Officer Anderson ordered the defendant to stop. The defendant did not stop.
¶ 13. The officers pursued the defendant, following him into his home. The defendant ran into a bedroom and shut the door behind him. Officer Garcia and Officer Anderson each testified that the purpose of following the defendant into his home was to take the defendant into custody. Each officer also testified that he did not believe evidence of any crime would be discovered inside the defendant‘s home.
¶ 14. After approximately one minute or less, the defendant voluntarily exited the bedroom. Officer Garcia testified that he then ordered the defendant to the ground and that the defendant did not obey this order. Chemical spray was applied to the defendant.6 The defendant fell to the ground and was handcuffed.7
¶ 16. Officer Garcia testified that while performing this second search, he discovered underneath the defendant‘s bed the canister that the officers earlier had observed in the defendant‘s hand. Officer Garcia opened the canister. The canister contained a substance that Officer Garcia identified as cocaine.
¶ 17. Officer Garcia testified that his purpose in performing the second search of the defendant‘s bedroom was “to search[] for the canister.” When asked why he did not obtain a warrant before performing this second search of the defendant‘s bedroom, Officer Garcia testified that he “didn‘t think of it.”
¶ 18. Officer Anderson‘s testimony regarding Officer Garcia‘s searches of the bedroom was inconsistent with Officer Garcia‘s testimony on one point. Officer Anderson testified that Officer Garcia discovered the canister during his initial search of the defendant‘s bedroom, not during the second search. Officer Anderson offered no testimony regarding the nature or timing of either the first or second searches of the bedroom.
¶ 19. The circuit court did not make a factual finding regarding whether Officer Garcia discovered the canister and contraband during his first or second search of the defendant‘s bedroom. In his brief, the defendant states that the canister and contraband were discovered during the second search of the
¶ 20. Subsequent to his arrest, the defendant was transported to the Racine County Jail. The defendant allegedly made inculpatory statements to police while at the jail.
¶ 21. The State charged the defendant with one count of obstructing an officer and one count of second offense possession of cocaine with intent to deliver. The defendant was charged as a habitual offender under each count.
¶ 22. The defendant moved to suppress as evidence the contraband that Officer Garcia discovered while searching the defendant‘s bedroom, as well as the statements that the defendant allegedly made at the Racine County Jail. The circuit court denied the defendant‘s suppression motion.
¶ 23. The defendant pled guilty to possession of cocaine with intent to deliver as a second offense and as a habitual offender. The defendant filed a motion for postconviction relief, which the circuit court denied.
¶ 24. The court of appeals reversed the order of the circuit court, holding that the officers’ warrantless entry into the defendant‘s residence was unlawful. The court of appeals did not address the question whether the searches of the defendant‘s bedroom were lawful.
¶ 25. Assuming without deciding that the warrantless entry into the defendant‘s home was justified under the Fourth Amendment, we consider whether the warrantless search of the defendant‘s bedroom and the warrantless search of the canister and seizure of the contents thereof are constitutional under the Fourth Amendment. The question whether a search is constitutional is a question of constitutional fact.10 This court upholds the circuit court‘s findings of evidentiary or historical facts unless those findings are clearly erroneous. This court determines the application of constitutional principles to those evidentiary facts independently of the circuit court and court of appeals but benefiting from those courts’ analyses.11
¶ 26. Neither the record nor the circuit court‘s findings resolves whether the canister was found during the first or second search of the defendant‘s bedroom. Resolution of this factual question is unnecessary for purposes of this review. We conclude that the search of the canister and seizure of its contents were unlawful regardless of whether the canister was found during the first or second search of the bedroom.
¶ 27. We approach the issue of the search of the bedroom and the search of the canister and seizure of its contents with the understanding that warrantless searches are per se unreasonable under the Fourth Amendment, subject to a few carefully delineated ex-
A. The First Search
¶ 28. For purposes of this part of the opinion, we assume that Officer Garcia discovered the canister and contraband during his first search of the defendant‘s bedroom and that the officers’ presence in the home was lawful.
¶ 29. The record offers little information regarding what happened during the first search. Officer Garcia‘s testimony flatly contradicts the very premise that Officer Garcia discovered the canister and contraband during his first search of the bedroom. Officer Anderson offered no testimony describing Officer Garcia‘s searches.
¶ 30. The State‘s brief seems to assume that if the first warrantless search of the bedroom falls within an exception to the warrant requirement, the search of the
¶ 31. The State relies on the “protective sweep” exception to the search warrant requirement established in Maryland v. Buie, 494 U.S. 325 (1990), to validate the search of the bedroom.
¶ 32. The protective sweep doctrine applies once law enforcement officers are inside an area, including a home. Once inside an area a law enforcement officer may perform a warrantless “protective sweep,” that is, “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.”14 Under Buie, a law enforcement officer is justified in performing a warrantless protective sweep when the officer possesses “a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others.”15 Because the protective sweep exception authorizes only a limited intrusion, Buie requires the officer to have only reasonable suspicion that the area poses a danger to the officer or others; the test is not probable cause.16
¶ 34. The State argues that Officer Garcia‘s initial search of the defendant‘s bedroom was justified under the Buie standard. According to the State, the officer had reasonable suspicion of drug trafficking and therefore understandably feared others may be present who would jeopardize the officers’ safety.19 The State recounts that the defendant “was uncooperative, had fled, was carrying money and a container that looked like it could be used to conceal drugs and, in addition, the area where [the defendant‘s] apartment is located is noted for drug trafficking.”20
¶ 35. Accepting for the moment the State‘s position that articulable facts exist to demonstrate that the officer had reasonable suspicion that other persons may be lurking in the defendant‘s bedroom who would pose a danger to the officers and that a protective search of the bedroom was therefore justified, we nevertheless must conclude that Officer Garcia‘s search of the canister and seizure of its contents clearly were not within
¶ 36. Accordingly, we determine that if the canister was searched and the contents of the canister were seized during the first search of the defendant‘s bedroom, the search of the canister and the seizure of its contents do not fall within the protective sweep exception to the search warrant requirement. The physical evidence is therefore the fruit of a search that violated the Fourth Amendment and must be suppressed.
¶ 37. The State offers no justification for the officers’ search of the canister and seizure of its contents beyond the protective sweep exception to the warrant requirement. Under our case law, warrantless seizure and inspection of evidence are justified when the officer is lawfully in a position to observe the evidence, the evidence is in plain view of the officer, the discovery is inadvertent, and the item seized in itself or in itself with facts known to the officer at the time of the seizure provides probable cause to believe there is a connection between the evidence and criminal activity.21 The State does not, however, cite to or rely on this
¶ 38. The present case is reminiscent of Arizona v. Hicks, 480 U.S. 321, 324-25 (1987), in which officers were lawfully in an apartment looking for a shooter. Suspecting that stereo components in the squalid, ill-appointed apartment might be stolen goods, one of the officers moved some pieces of equipment slightly to reveal and record their serial numbers. The officer called in the serial numbers and immediately established that the equipment was stolen property. The law enforcement officers seized the equipment. The United States Supreme Court held that the officer‘s initial movement of the equipment was a search separate and apart from the search of the apartment for the shooter that justified the officer‘s original entry into the apartment and that the search of the equipment was unreasonable under the Fourth Amendment because only reasonable suspicion, not probable cause, existed to believe that the equipment was stolen.
¶ 39. Hicks teaches that even in the face of a lawful entry and reasonable suspicion that an object is evidence of a crime, a slight movement of the object is an impermissible search whenever it is “unrelated to the objectives of the authorized intrusion.”23
¶ 41. Because the officer‘s search of the canister and seizure of the contents were unrelated to the objectives of the authorized intrusion into the bedroom as a protective sweep in relation to arresting the defendant for obstructing the officers, the officer‘s search of the canister and seizure of its contents do not fall within the protective sweep exception to the warrant requirement.
¶ 42. Accordingly, we conclude that if the canister was searched and its contents were seized during the first search of the defendant‘s bedroom, the physical evidence in the canister is the fruit of a search that violated the Fourth Amendment and must be suppressed.
B. The Second Search
¶ 43. For purposes of this part of the opinion, we assume that Officer Garcia searched the canister and seized its contents during his second search of the defendant‘s bedroom and that the officers’ presence in the home was lawful.
¶ 44. The record offers little information regarding what happened during the second search of the bedroom. Officer Garcia testified that he discovered the canister and contraband during his second search of the bedroom while he was looking under the bed.
¶ 45. The defendant was arrested in the living room. The parties do not dispute that the police had probable cause to arrest the defendant for obstructing
¶ 46. The State‘s brief seems to assume that if the second warrantless search of the bedroom falls within an exception to the warrant requirement, the search of the canister and seizure of its contents during the second search of the bedroom also fall within an exception to the warrant requirement.
¶ 47. The circuit court concluded that the search of the bedroom was a valid search pursuant to an arrest.
¶ 48. The scope of what is conventionally termed the “search incident to arrest” exception to the Fourth Amendment warrant requirement was set forth in Chimel v. California, 395 U.S. 752 (1969). In Chimel, the United States Supreme Court held that a lawful arrest creates a situation justifying a contemporaneous, warrantless “search of the arrestee‘s person and the area within his immediate control.”24 It is a search of the area within the arrestee‘s immediate control that is at issue here.
¶ 49. This exception to the warrant requirement serves two primary governmental interests. “One is the need to detect and remove any weapons that the arrestee might try to use to resist arrest or escape. Another is the need to prevent the destruction or concealment of evidence.”25
¶ 51. The State contends that Officer Garcia‘s second search of the defendant‘s bedroom was justified as a search incident to arrest under the Chimel standard because the bedroom was “within [the defendant‘s] immediate presence or control when he barricaded himself in the bedroom and was out of the police officers’ sight.”28
¶ 52. Although the bedroom might be considered within the defendant‘s immediate presence or control for Chimel purposes, we do not agree with the State that the second search of the bedroom was a search incident to arrest under the circumstances of the present case. The second search occurred after the defendant had been removed from the home.29 The defendant could not have gained possession of a weapon or destructible evidence from his bedroom when the
¶ 53. The State relies upon State v. Murdock, 155 Wis. 2d 217, 227, 455 N.W.2d 618 (1990), to support the second search of the bedroom under the Chimel standard even though the defendant in the instant case had been removed from the home. Murdock does not authorize the search of the bedroom at issue in the present case as a search incident to arrest.
¶ 54. In Murdock, law enforcement officers performed a warrantless search of an area immediately surrounding the defendant. The search was contemporaneous with handcuffing the defendant.30 The search involved a pantry-type closet connected to the room in which the arrest was made. The court upheld the search notwithstanding the defendant‘s restrained condition and apparent inability to access the areas immediately surrounding him. The Murdock court was “unwilling to say that a defendant who is arrested in and remains in his or her dwelling as the search is conducted could never regain access to areas in his or her immediate control at the time of arrest.”31
¶ 55. The Murdock court also determined that even when an arrestee is handcuffed, “we cannot require an officer to weigh the arrestee‘s probability of success in obtaining a weapon or destructible evidence
Nothing in the record suggests that the defendant was still in his residence at the time that Officer Garcia performed his second search of the defendant‘s bedroom. The record instead shows that the State was correct to assert in its brief that the second search occurred after the defendant had been handcuffed and removed from his residence.
hidden within his or her immediate control.”32 According to the Murdock court, Chimel authorizes a limited, contemporaneous search for weapons and evidence in the area surrounding the arrestee. “Its sanction of a contemporaneous, limited search protects the individual‘s privacy interests in areas outside his or her immediate control and also serves valid societal interests in protecting officer safety and preserving evidence.”33
¶ 56. The facts in the present case do not resemble those in Murdock. In the instant case, unlike in Murdock, the defendant was not in his home when the bedroom was searched. The defendant had already been removed from the home at the time of the search. No possibility existed that the defendant could obtain a weapon or destroy evidence in the home. The purposes of the search incident to arrest were achieved by removing the defendant from his home. By removing the defendant from the home, the officers eliminated the need to detect and remove any weapons that the arrestee might try to use to resist arrest or escape or to prevent the destruction or concealment of evidence.
¶ 57. Neither Chimel nor Murdock governs the instant case, in which the defendant was removed from the home before the search supposedly incident to the arrest.
¶ 58. At oral argument, the State suggested that the law enforcement officers were justified in conducting the second warrantless search of the defendant‘s bedroom because it was “highly likely” that persons other than the defendant would destroy evidence inside the defendant‘s bedroom had the officers waited to
¶ 59. Accordingly, we determine that the second search of the bedroom does not fall within the search incident to arrest exception to the search warrant requirement. If the canister was searched and the contents seized during the second search of the defendant‘s bedroom, the search and seizure were not within the State‘s claimed search incident to arrest exception to the search warrant requirement. The physical evidence in the canister is therefore the fruit of a search that violated the
* * * *
¶ 60. For the reasons set forth, we affirm the decision of the court of appeals reversing the circuit court‘s order denying the defendant‘s motion to suppress and reversing the circuit court‘s judgment of conviction.
By the Court.—The decision of the court of appeals is affirmed.
¶ 61. DAVID T. PROSSER, J. (concurring). The court is unanimous that evidence of a yellow and black canister containing cocaine must be suppressed because the canister was obtained in a search without a warrant in violation of the
¶ 62. I write separately to address the real issue that brought this case before the court: namely, whether warrantless police entry into a home under the exigency of “hot pursuit” to arrest a person for a misdemeanor violates the
¶ 63. The facts are undisputed that the defendant in this case committed a jailable criminal offense in the presence of police and that police entered the defendant‘s house in hot pursuit to effect the defendant‘s immediate arrest. Entering a home without a warrant under these circumstances is not unreasonable. Entry into a home in hot pursuit to arrest a person on probable cause for a jailable criminal offense is a longstanding, common sense exception to the warrant requirement. Accordingly, I concur.
I. BACKGROUND
¶ 64. The facts relevant to the warrantless entry of defendant Dwight Sanders’ (Sanders) residence are stated below. They are based on the testimony of Officers Jorge Garcia (Officer Garcia) and Hendriel Anderson (Officer Anderson) at an August 5, 2005, hearing on Sanders’ motion to suppress.
¶ 65. On May 6, 2005, Officers Garcia and Anderson were sent to 1222 Villa Street in the City of Racine in response to a complaint of cruelty to animals. Officer Garcia testified that he was familiar with the neighborhood as a high-volume drug trafficking area, although the residence in question was not a known “drug
¶ 66. Officer Garcia observed that one of the men, later identified as Sanders, was holding an unknown amount of folded United States currency and a yellow and black canister in his left hand. Officer Garcia testified that it would not be unusual for persons selling drugs to conceal them in a canister similar to the one Sanders was holding.
¶ 67. Officer Anderson advised Sanders of the animal abuse complaint and requested identification. Sanders responded that he “did not do anything wrong” and that “this [is] bullshit.” Sanders repeatedly refused to give his name, address, and date of birth. Officer Anderson testified that he became “firm” with Sanders and attempted to handcuff him for officer safety. Sanders reacted by backing away, turning, and running toward the house. Officer Anderson ordered Sanders to stop, but he did not obey. Sanders ran into the house. Officer Garcia believed he had probable cause to arrest Sanders for obstructing an officer.
¶ 68. The officers immediately chased Sanders into the house where Sanders had barricaded himself in a bedroom. Sanders voluntarily emerged from the bedroom after about one minute and was arrested. Officer Anderson testified that his purpose in chasing Sanders into the house was that he saw Sanders as a threat to himself and Officer Garcia. The officers pursued Sanders into the house to take him into custody, not to search for evidence in his house. After arresting Sanders, however, Officer Garcia searched Sanders’ bedroom twice and located the canister that Sanders was holding
¶ 69. The circuit court denied Sanders’ motion to suppress the evidence seized during the searches of Sanders’ bedroom. The court of appeals reversed, holding that the officers’ warrantless entry into Sanders’ residence violated the
II. ANALYSIS
¶ 70. The issue of hot pursuit is before us because the court of appeals applied its 2002 decision in Mikkelson to the facts of this case. Sanders, 304 Wis. 2d 159, ¶ 33. Thus, the majority opinion neglects to confront the very issue why this court accepted the State‘s petition for review.
¶ 71. In Mikkelson the court of appeals held that a warrantless entry into a home under the exigency of “hot pursuit” to arrest a probable misdemeanant violates the
¶ 72. Historically, the distinct exigency of hot pursuit has been sufficient to justify the warrantless entry of a dwelling to arrest a person for a misdemeanor such as obstructing an officer. Abandoning this principle creates a perverse incentive for misdemeanor defendants to flee from police officers into their homes to prevent their lawful seizure.
¶ 73. To address these concerns, this concurrence will first discuss the Mikkelson decision—which involved some peculiar facts regarding consent—and show that it was an aberration that did not follow either federal or state precedents interpreting and applying Welsh. The concurrence will then discuss existing law regarding “hot pursuit” as a stand-alone justification for a warrantless home entry and arrest.
A. The Mikkelson Rule
¶ 74. Mikkelson involved an encounter between Harold Mikkelson (Mikkelson) and Officer Bonita Jo Johnson (Officer Johnson), a police officer in Superior. Mikkelson, 256 Wis. 2d 132, ¶¶ 1-2. While on vehicle patrol, Officer Johnson observed a male, later determined to be Mikkelson, making suspicious movements between a car and garage. Id., ¶ 2. Officer Johnson pulled her squad car into an alley and shined her light
¶ 75. When help arrived, Officer Johnson knocked on the door, spoke with Mikkelson‘s father, and was told that Mikkelson would be forthcoming. Id., ¶ 4. However, Mikkelson never appeared. Id. According to Officer Johnson, she then received permission from Mikkelson‘s mother to enter the house. Id., ¶ 5. After gaining entry, several officers went into the basement and arrested Mikkelson. Id., ¶ 6. During the arrest, Mikkelson allegedly punched an officer and was subsequently charged with a misdemeanor count of obstructing an officer and a felony count of battery to a police officer. Id.
¶ 76. Mikkelson moved to suppress all evidence obtained by the police inside the house. Id., ¶ 7. At the suppression hearing, three officers testified that they had been given consent to enter Mikkelson‘s house. Id., ¶ 8. This was disputed by Mikkelson‘s parents. Id., ¶ 5. The circuit court found that the officers had not received consent to enter the house, and therefore sup
¶ 77. The court of appeals ruled that the State had waived its argument that police were entitled to enter Mikkelson‘s house without a warrant because they were in hot pursuit. Id., ¶¶ 13, 16. Nonetheless, a plainly annoyed court addressed the hot pursuit argument and held that, under the facts presented, the argument was without merit. Id., ¶ 17. The court stated:
Even if we were to consider the State‘s argument, we would reject it. An arrest made in hot pursuit constitutes an exigent circumstance required for a warrantless entry. State v. Smith, 131 Wis. 2d 220, 229, 388 N.W.2d 601 (1986). Relying on United States v. Santana, 427 U.S. 38, 43 (1976), the State argues that the police were entitled to enter the house and arrest Mikkelson because they were in hot pursuit. Santana holds that a suspect may not defeat an arrest that has been set in motion in a public place by escaping to a private place. Id. However, in Welsh v. Wisconsin, 466 U.S. 740, 749-51 (1984), the Supreme Court limited Santana to the hot pursuit of fleeing felons. Also, the court in Payton v. New York, 445 U.S. 573 (1980), stated that Santana was limited to in-home arrests of felons when police have probable cause and exigent circumstances. The police were pursuing Mikkelson for obstructing an officer, a misdemeanor. See
Wis. Stat. § 946.41 . Therefore, Santana does not permit the warrantless entry into Mikkelson‘s house.
Id. (footnote omitted).
¶ 79. In Welsh, the Court considered whether the
¶ 80. The Court determined that a warrantless entry under these circumstances violated the
¶ 81. The Court did not state that all misdemeanors are inherently “minor.” Instead, the Court cautioned that the critical factor in judging the impact of a particular offense is not the nature of the crime but “the penalty that may attach to any particular offense.” Id. at 754 n.14.3 The Court added that the penalty “seems to provide the clearest and most consistent indication of the State‘s interest in arresting individuals suspected of committing that offense.” Id.
¶ 82. The Court concluded that there were no exigent circumstances at play in Welsh sufficient to justify a warrantless home entry and arrest; therefore, it had “no occasion to consider whether the
¶ 83. The Mikkelson court‘s mistaken reading of Welsh is confirmed by the fact that the Supreme Court subsequently explained that Welsh drew a distinction between jailable and nonjailable offenses, not between felony and misdemeanor offenses. Illinois v. McArthur, 531 U.S. 326, 335-36 (2001). The Court emphasized in McArthur that the important factor in determining whether an offense provides a justification supporting an exigent circumstances exception to the warrant requirement is whether the offense is jailable. Id. at 336.
¶ 84. McArthur involved the question of whether police officers effected an unlawful “seizure” when they prevented the defendant, Charles McArthur (McArthur), from entering his home for two hours while police obtained a search warrant. Id. at 329-30. After receiving the warrant, police searched McArthur‘s home and retrieved marijuana and drug paraphernalia. Id. at 329. The Court ruled that, although McArthur was seized, the police action of preventing him from entering his residence did not offend the
¶ 85. The Court addressed the reasonableness of the seizure based on the gravity of the misdemeanor offenses of possession of drug paraphernalia and marijuana. Id. at 330, 335-36. McArthur argued that, under
We nonetheless find significant distinctions. The evidence at issue here was of crimes that were “jailable,” not “nonjailable.” See
Ill. Comp. Stat., ch. 720, § 550/4(a) (1998) ;ch. 730, § 5/5-8-3(3) (possession of less than 2.5 grams of marijuana punishable by up to 30 days in jail);ch. 720, § 600/3.5 ;ch. 730, § 5/5-8-3(1) (possession of drug paraphernalia punishable by up to one year in jail). In Welsh, we noted that, “[g]iven that the classification of state crimes differs widely among the States, the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State‘s interest in arresting individuals suspected of committing that offense.” 466 U.S., at 754, n.14. The same reasoning applies here, where class C misdemeanors include such widely diverse offenses as drag racing, drinking alcohol in a railroad car or on a railroad platform, bribery by a candidate for public office, and assault. See, e.g.,Ill. Comp. Stat., ch. 65, § 5/4-8-2 (1998) ;ch. 610, § 90/1 ;ch. 625, § 5/11-504 ;ch. 720, § 5/12-1 .
¶ 86. The highest courts of several states have interpreted Welsh—and McArthur—and concluded that the important distinction recognized by Welsh is the distinction between jailable and nonjailable offenses. For example, the Wyoming Supreme Court has stated that “[t]he unmistakable implication of the discussion
¶ 87. The Iowa Supreme Court has interpreted McArthur similarly and concluded that Welsh can be distinguished on the ground that the civil offense at issue was not jailable. See State v. Legg, 633 N.W.2d 763, 769-70, 773 (Iowa 2001).
¶ 88. The Minnesota Supreme Court also interpreted Welsh and rejected a bright-line rule limiting the availability of the exigency of hot pursuit as a warrant exception to suspected felonies. State v. Paul, 548 N.W.2d 260, 267-68 (Minn. 1996). The court concluded that warrantless entry to make a “hot pursuit” arrest for suspected driving under the influence of alcohol (DUI) was lawful because the Minnesota Legislature has determined that DUI is a “serious offense” and “a criminal offense for which imprisonment is possible.” Id. at 267.
¶ 89. Many other state appellate courts have distinguished Welsh because the offense at issue there was civil and did not include possible incarceration.5 These
courts have thereby rejected the Mikkelson rule that jailable misdemeanor offenses are not sufficient to support a warrantless home entry in hot pursuit of a fleeing suspect. See Mikkelson, 256 Wis. 2d 132, ¶ 17. These judicial interpretations of Welsh and McArthur are consistent with the Supreme Court‘s signal that the critical factor is not the nature of the offense but “the penalty that may attach to any particular offense.” Welsh, 466 U.S. at 754 n.14. They also reflect the fact that Welsh itself cited two hot pursuit cases involving misdemeanors. Id. at 752-53 (citing State v. Penas, 263 N.W.2d 835 (Neb. 1978); State v. Niedermeyer, 617 P.2d 911 (Or. Ct. App. 1980)).
¶ 90. The jailable/nonjailable distinction noted by the authorities above correlates with this court‘s discussion of Welsh in State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, a pre-McArthur case. Although Hughes involved a warrantless entry premised upon the exigency of potential destruction of evidence (burning marijuana), the court‘s analysis of Welsh is apt. Id., ¶¶ 30-31, 39.
¶ 91. This court correctly anticipated McArthur when it noted that the Welsh Court “did not definitively say . . . that certain categories of offenses are per se insufficiently grave to justify a warrantless entry, only that the minor, noncriminal, nonjailable traffic violation in that case (first offense drunk driving) was so.” Id., ¶ 30 (second emphasis added). This court evaluated the overall penalty structure for marijuana-related
¶ 92. The Wisconsin Legislature has determined that all misdemeanors, regardless of class, are “serious” offenses because all misdemeanors are jailable offenses.
sense that it entails a potential deprivation of liberty. See, e.g., Paul, 548 N.W.2d at 267 (“The legislature . . . has clearly and consistently indicated that driving under the influence of alcohol is a serious offense. The statute under which [the defendant] was charged . . . is classified as a criminal offense for which imprisonment is possible.” (First emphasis added.)). Instead of requiring officers to distinguish felonies from misdemeanors in the midst of hot pursuit, this court should reduce confusion for law enforcement by maintaining the rule that all criminal offenses (felonies and misdemeanors) support the exigency of hot pursuit.7 Such a rule faithfully reflects the legislature‘s classification of both felonies and misdemeanors as “jailable” and therefore “serious.”
¶ 93. A felony-only rule for hot pursuit allows the perpetrator of a serious misdemeanor offense, for which jail time is a penalty, to avoid immediate arrest merely because of the label (“felony” or “misdemeanor“) chosen by the legislature. See id.8 This fortuity is very difficult to defend.
¶ 94. The continuing validity of Mikkelson fosters such injustice. Mikkelson is plainly inconsistent with McArthur. The United States Supreme Court has never held that a misdemeanor offense cannot provide justification for a warrantless home entry and arrest in hot pursuit. Mikkelson establishes such a per se rule and should be overruled.
B. Hot Pursuit
¶ 95. This court‘s decisions in State v. Smith, 131 Wis. 2d 220, 229, 388 N.W.2d 601 (1986), and State v. Richter, 2000 WI 58, ¶ 29, 235 Wis. 2d 524, 612 N.W.2d 29, identified hot pursuit of a suspect as one of four recognized exigent circumstances authorizing a warrantless home entry and arrest.
¶ 96. Before setting forth the exigent circumstances standards laid out in Smith and Richter, it is helpful to put these cases in historical context with other Wisconsin and United States Supreme Court decisions recognizing the limited right of police to enter a home without a warrant to arrest a suspect when police have probable cause.
¶ 97. Agnello v. United States, 269 U.S. 20 (1925), illustrates an example of a crime committed in the
¶ 98. During the operation, Alba left his house and returned with Centorino. Id. Neither man produced any narcotics for the informants. Id. After the informants refused to go to Centorino‘s house at 172 Columbia Street, Centorino went there alone to fetch drugs. Id. He was followed by some of the agents. Id. Centorino then went to 167 Columbia Street, a building that was part grocery store—owned by defendant Thomas Pace and defendant Thomas Agnello—and part house—owned by defendant Frank Agnello and Pace. Id.
¶ 99. In a short time, Centorino, Pace, and the Agnellos came out of 167 Columbia Street and went back to Alba‘s house. Id. Looking through the windows, the agents on watch saw Frank Agnello produce a number of small packages for delivery to one of the informants and saw an informant hand money over to Alba. Id. at 28-29. Upon viewing this transaction, agents rushed into Alba‘s house, arrested all the defendants, and found and seized packages containing cocaine on the table where the transaction took place. Id.
¶ 100. The Court concluded that the warrantless search and seizure of evidence from Frank Agnello‘s house violated the
The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 U.S. 132, 158 (1925); Weeks v. United States, 232 U.S. 383, 392 (1914). The legality of the arrests or of the searches and seizures made at the home of Alba is not questioned. Such searches and seizures naturally and usually appertain to and attend such arrests.
Agnello, 269 U.S. at 30 (emphasis added).
¶ 102. The Court first used the term “hot pursuit” to describe exigent circumstances that might justify a warrantless home entry and arrest in Johnson v. United States, 333 U.S. 10 (1948). Johnson involved the warrantless entry and search of a hotel room by an officer after the smell of burning opium emanating from within was discovered and reported by a police informant. Id. at 12. Police arrived outside the defendant‘s room, knocked on her door, and the defendant opened it. Id. The smell of burning opium was immediately apparent to the officers when they reached the door, and the defendant was arrested and her room searched. Id. The search revealed opium and a smoking apparatus, the latter being warm, apparently from recent use. Id. The defendant sought to have the evidence suppressed. Id.
¶ 103. The Court noted that “[t]here are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate‘s warrant for search may be dispensed with.” Id. at 14-15. However, the Court held in favor of the defendant, concluding that no such exigency was present. Id. at 15. The Court distinguished Johnson‘s situation by listing circumstances not present that would have otherwise justified a warrantless entry: “No suspect was fleeing or
¶ 104. The Government argued that the warrantless entry and arrest did not violate the Fourth Amendment because the arrest was made in “hot pursuit.” Id. at 16 n.7. The Court said that there was “no element of ‘hot pursuit’ in the arrest of one who was not in flight, was completely surrounded by agents before she knew of their presence, who claims without denial that she was in bed at the time, and who made no attempt to escape.” Id.
¶ 105. Nineteen years after Johnson, the Court expanded upon this discussion in a seminal decision concerning the exigent circumstances doctrine.9 In Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 (1967), police officers had probable cause to believe that an armed robber had entered a particular house. Id. at 297. Within minutes of receiving a dispatch, an unspecified number of officers arrived outside the house. Id. One of the officers knocked and announced their presence, a woman answered the door, and police told her they believed that a robber had entered the house. Id.
¶ 106. The Court held that neither the warrantless entry of the house, nor the subsequent warrantless search for the suspected robber, offended any constitutional principle. Id. Under the circumstances presented, “‘the exigencies of the situation made that course imperative.‘” Id. (quoting McDonald v. United States, 335 U.S. 451, 456 (1948)). Police “acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them.” Warden, 387 U.S. at 298. The Court held that “[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.” Id. at 298-99. The Court concluded that “[s]peed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.” Id. at 299.
¶ 107. Nine years after Warden, the Court addressed the “hot pursuit” exigency doctrine in United States v. Santana, 427 U.S. 38 (1976). In Santana, a controlled drug purchase was arranged in which an associate of defendant Santana was dropped off by an undercover police officer at Santana‘s residence to obtain heroin. Id. at 39-40. The associate, who did not realize she was involved in a police operation, went
¶ 108. Police officers proceeded to Santana‘s house and saw her standing in the front door holding a brown paper bag. Id. The officers pulled their van within 15 feet of Santana, shouted “police,” and displayed their identification. Id. Santana retreated into the vestibule of her home, police followed, and Santana was arrested. Id. Police seized both the bag Santana was holding, which contained heroin, and some of the marked currency Santana possessed. Id. at 40-41. Santana was charged with possession of heroin with intent to distribute, a felony, and she moved to suppress the heroin and money found after her arrest on the ground that police acted without a warrant. Id. at 41.
¶ 109. The Court held that the arrest did not violate the Fourth Amendment and concluded that Santana‘s act of retreating into her home could not thwart an otherwise proper arrest based on probable cause. Id. at 42. The Court noted that Santana was in a “public” place for Fourth Amendment purposes when she was spotted by police while standing at her doorstep and that she subsequently retreated into a “private” place. Id. (citation omitted). The Court cited Warden and concluded that Santana‘s case involved a true “hot pursuit” sufficient to justify a warrantless entry. Id. at 42-43. The Court noted that “‘hot pursuit’ means some sort of a chase, but it need not be an extended hue and cry in and about [the] public streets.” Id. at 43 (internal quotation marks omitted). The fact that the pursuit ended almost as soon as it began did not render it any the less a “hot pursuit” sufficient to justify the warrantless entry into Santana‘s house. Id. at 43. The Court
¶ 110. Wisconsin has consistently recognized the exigent circumstances principles established by the United States Supreme Court, particularly those related to “hot pursuit.” For example, in West v. State, 74 Wis. 2d 390, 246 N.W.2d 675 (1976), this court was presented with facts substantially similar to those in Warden and concluded that the warrantless police entry of a home to apprehend suspected robbers, who had entered the home only minutes before, was not unreasonable. Id. at 400. The court relied heavily upon Warden to conclude that “the exigencies of the situation made the course which was taken imperative.” Id. at 399 (citing Warden, 387 U.S. at 298, 299).
¶ 111. In State v. Monahan, 76 Wis. 2d 387, 396, 396 n.7, 251 N.W.2d 421 (1977), this court again cited Warden as authority for the proposition that “hot pursuit” presents a circumstance “which may justify an exception to the warrant requirement.”
¶ 112. In Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978), this court considered the case of Karyn Laasch (Laasch), who was arrested and jailed for selling cocaine to a police informer, released two days later, and then arrested in her apartment, without a warrant, 13 days after the first arrest. Id. at 588-89. Laasch argued that the second arrest constituted an unreasonable seizure prohibited by the
The arrest was not made in “hot pursuit“; there was no threat to the safety of other persons; there was no risk that evidence would be destroyed, since the delivered substance had been seized at the time of the previous arrest; and any suggestion that the police feared the defendant would flee is dispelled by the fact that she had been released for approximately two weeks.
Id. The court recognized that warrantless in-house arrests had previously been upheld by the Wisconsin Supreme Court and United States Supreme Court on the grounds of consent or exigent circumstances. Id. at 593-94 (citing Johnson v. State, 75 Wis. 2d 344, 351, 352, 249 N.W.2d 593 (1976); West, 74 Wis. 2d 390; Rinehart v. State, 63 Wis. 2d 760, 218 N.W.2d 323 (1974)). The court also approvingly cited Santana and Warden as examples of cases where a warrantless home entry and arrest was upheld because of the existence of exigent circumstances. Id. at 595-96.
¶ 113. In Smith, the court built upon Laasch and the federal rule of exigent circumstances and set forth a list of factors and an objective test to evaluate the justifications for a warrantless home entry by police. Smith, 131 Wis. 2d at 229 (citing Laasch, 84 Wis. 2d at 595-96; Steagald v. United States, 451 U.S. 204, 211-12 (1981)). The Smith court identified four categories of circumstances that, when measured against the time needed to obtain a warrant, would constitute the exigent circumstances required for a warrantless entry: “(1) An arrest made in ‘hot pursuit,’ (2) a threat to safety of a suspect or others, (3) a risk that evidence would be destroyed, and (4) a likelihood that the suspect would flee.” Smith, 131 Wis. 2d at 229 (citing Laasch, 84 Wis. 2d at 592). The court concluded that
¶ 114. The Smith court‘s reliance on the Supreme Court‘s Steagald decision is telling. In Steagald, the Court stated that “a warrantless entry of a home would be justified if the police were in ‘hot pursuit’ of a fugitive.” Steagald, 451 U.S. at 221 (citing Santana, 427 U.S. at 42-43; Warden, 387 U.S. 294 (1967)).10 A “fugitive” has been defined as “[o]ne who flees; used in criminal law with the implication of a flight, evasion, or escape from arrest, prosecution, or imprisonment.” Black‘s Law Dictionary 604 (5th ed. 1979). The word “fugitive” is broad enough to cover both felons and misdemeanants.
¶ 115. Fourteen years after Smith, in Richter this court reviewed a case involving a warrantless home entry by a police officer based on his knowledge of an alleged recent break-in across the street. Richter, 235 Wis. 2d 524, ¶ 1. The circumstances of the case were summarized by the court as follows:
[A] Marinette County sheriff‘s deputy responded to an early-morning dispatch of a burglary in progress at a
trailer park. The victim flagged down the deputy 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 the street. The deputy observed signs of forced entry at the defendant‘s trailer—a window screen was knocked out and lying on the ground. The deputy shined his flashlight in the open window and attracted the attention of two people who were sleeping on the floor. They opened the door and identified the defendant, who was sleeping on the couch, as the owner of the trailer. The deputy entered the trailer, woke the defendant, told him what had happened and asked his permission to search the trailer for the burglary suspect. Permission was granted. During the search, the deputy observed marijuana in plain view, which the defendant admitted was his.
Id. The defendant was charged with marijuana possession and sought to suppress the physical evidence and statements obtained by police, alleging an illegal entry. Id., ¶ 2. This court concluded that the entry was “justified by exigent circumstances—specifically, the deputy‘s ‘hot pursuit’ of the burglary suspect and his need to protect the safety of those inside the trailer.” Id. (emphasis added).
¶ 116. The court evaluated the circumstances and concluded that the officer‘s entry was “justified by the exigent circumstance of hot pursuit.” Id., ¶ 36. The court noted that a warrantless search of a home is presumptively unreasonable under the
¶ 117. An officer in “hot pursuit” does not need to make a split-second determination about the availability of “hot pursuit” as an exigency justifying a warrantless entry. The officer has to make a determination whether there is probable cause to make an arrest for a jailable crime. Presuming probable cause, pursuit of the suspect is justified. As long as the officer has probable cause to arrest for a jailable criminal offense, the only remaining important question is whether a chase or pursuit satisfies the hot pursuit definition in Welsh—“immediate or continuous pursuit of the [defendant] from the scene of a crime.” Welsh, 466 U.S. at 753. Whether the officer reasonably believes he was in “hot pursuit” is not necessary. Thus, it is hardly surprising that this exigency is not part of the objective test set forth in Smith and Richter.
¶ 118. There is no implication in our case law that “hot pursuit” cannot stand alone as an exigent circumstance justifying a warrantless home entry and arrest. On the contrary, our cases explicitly recognize that hot
¶ 119. Wisconsin is not alone in this view. Several jurisdictions have recognized that hot pursuit is a sufficient exigency to support a warrantless entry and arrest. The Supreme Court of Ohio held in City of Middletown v. Flinchum, 765 N.E.2d 330 (Ohio 2002), that police may pursue a suspect into his home in hot pursuit regardless of whether the offense for which the suspect is being arrested is a felony or a misdemeanor, even though no other exigency is involved. Id. at 332.
¶ 120. In Flinchum, officers saw the defendant‘s car waiting at a red traffic light. Id. at 331. When the light turned green, the defendant spun his tires. Id. Officers followed the defendant and observed him stop his car, then accelerate rapidly, causing his car to fishtail. Id. The officers attempted to approach the defendant‘s car twice, but each time the defendant fled from the police. Id.
¶ 121. The officers eventually caught up with the defendant and saw him standing outside his parked car. Id. When the defendant saw the officers’ cruiser, he ran toward the rear entrance of his home. Id. One of the officers pursued the defendant, yelling “stop” and “police” several times, to no avail. Id. As the pursuit continued, an officer heard a rear screen door slam at the defendant‘s house. Id. The officer then observed the defendant standing in his kitchen approximately five feet inside his house. Id. Without the defendant‘s consent, the officer entered the house and arrested the defendant, who was subsequently charged with reckless operation, driving under the influence of alcohol, and resisting arrest, all misdemeanors. Id. at 331.
¶ 123. In State v. Paul the Minnesota Supreme Court declined to adopt a bright-line rule that would prohibit officers from entering a suspected misdemeanant‘s home when officers are in hot pursuit. Paul, 548 N.W.2d at 268. Paul involved a defendant charged with the misdemeanor offense of driving under the influence of alcohol. Id. at 262. Joseph Gunderson (Gunderson), a uniformed and on-duty police officer, bumped into defendant Peter Dean Paul (Paul) at an auto parts store, spoke with Paul, and noted a strong smell of alcohol on Paul‘s breath, his slurred speech, flushed face, watery eyes, and difficulty in standing. Id. Gunderson then observed Paul leave the store, climb into a pickup truck, drive away, and roll through a stop sign. Id. Gunderson followed Paul in his squad car, observed Paul “fishtail” as he entered the highway, and attempted to pull Paul over by activating his squad car‘s red lights. Id.
¶ 125. The Minnesota Supreme Court held that Gunderson‘s warrantless entry into Paul‘s home was not unlawful. Id. at 268. The court first concluded that Gunderson had probable cause to arrest Paul for DUI. Id. at 264. The court then addressed whether Gunderson was in “hot pursuit” of Paul when he made the home entry and arrest. Id. The court discussed Santana and noted that “a suspect may not defeat an arrest which has been set in motion in a public place by the expedient of retreating to a private place.” Id. (citing Santana, 427 U.S. at 43). The court held that the doctrine of hot pursuit “applies whether police officers engage in a high-speed chase of the suspect ... or merely approach a suspect who immediately retreats into a house.” Id. at 265 (footnote omitted). Paul fell somewhere in the middle of this continuum. Id.
¶ 126. The Paul court next analyzed Welsh and concluded that it was distinguishable. Id. at 266. Paul involved both “hot pursuit” of a suspect and the exigency of potential destruction of blood-alcohol evidence. Id. The court also found it important that the Minnesota Legislature had “clearly and consistently indicated that driving under the influence of alcohol is a serious offense” due to it being classified “as a criminal offense for which imprisonment is possible.” Id. at 267.
The Fourth Amendment simply cannot be stretched nor can public safety be ensured by a bright-line felony rule which would encourage drunk drivers to elude the police by racing through the streets to the sanctuary of their homes in order to “freeze” a hot pursuit or to otherwise evade a lawful arrest.
¶ 128. Two decisions from the Iowa Supreme Court essentially echo the conclusions reached in Paul regarding hot pursuit as an exigency sufficient to support a warrantless home entry and arrest for a misdemeanor.
¶ 129. In State v. Legg the Iowa Supreme Court upheld a warrantless “hot pursuit” home entry by police who possessed probable cause to believe a suspect had committed the “serious misdemeanors” of interference with official acts and first offense operating while intoxicated. Legg, 633 N.W.2d at 766, 772. The court reviewed Santana, Welsh, and McArthur and concluded that, on balance, the competing privacy and law enforcement concerns weighed in favor of allowing the
¶ 130. Following Legg, the Iowa Supreme Court reiterated its position that hot pursuit of a fleeing misdemeanant can provide a justification for a warrantless entry and arrest in State v. Pink, 648 N.W.2d 107, 109 (Iowa 2002) (per curiam).
¶ 131. Recently, the Illinois Appellate Court, Fourth District refused to adopt a rule that hot pursuit, standing alone, was insufficient to justify an exception to the warrant requirement. People v. Wear, 867 N.E.2d 1027, 1045-46 (Ill. App. Ct. 2007). The officer in Wear had probable cause to believe that the defendant committed several traffic violations and was guilty of eluding or attempting to flee an officer, a misdemeanor punishable by up to 364 days in jail. Id. at 1041, 1044. The Illinois court discussed Welsh and distinguished the case on the grounds that the penalties for the offenses in question were jailable and that the officer in Wear was in “hot pursuit.” Id. at 1044. The court held that the officer “was in hot pursuit of defendant and, for that reason alone, had the right to enter the house and arrest him.” Id. (emphasis added). The court stated that “[i]t appears that the majority of jurisdictions that have considered this question would so hold.” Id. (citing D.
¶ 132. Courts from several other jurisdictions are in accord with these cases from Ohio, Minnesota, Iowa, and Illinois.12
Law enforcement is not a child‘s game of prisoner‘s base, or a contest, with apprehension and conviction depending upon whether the officer or defendant is the fleetest of foot. A police officer in continuous pursuit of a perpetrator of a crime committed in the officer‘s presence, be it a felony or a misdemeanor, must be allowed to follow the suspect into a private place, or the suspect‘s home if he chooses to flee there, and effect the arrest without a warrant.
State v. Blake, 468 N.E.2d 548, 553 (Ind. Ct. App. 1984). See also Gasset v. State, 490 So. 2d 97, 98-99 (Fla. Dist. Ct. App. 1986) (“The enforcement of our criminal laws ... is not a game where law enforcement officers are ‘it’ and one is ‘safe’ if one reaches ‘home’ before being tagged.“) (citing Blake, 468 N.E.2d at 553).
¶ 134. In sum, hot pursuit of a fleeing misdemeanant, premised upon probable cause, is an exigency sufficient to justify a warrantless home entry and arrest. This view is amply supported by existing Wisconsin case law, the United States Supreme Court, and persuasive authority from other jurisdictions.
III. CONCLUSION
¶ 135. The majority opinion‘s conclusion that the circuit court erred when it denied Sanders’ motion to
¶ 136. I write separately to address the issue that brought this case before us, namely the continuing validity of Mikkelson. The facts are undisputed that the defendant in this case committed a jailable criminal offense in the presence of police and that police entered the defendant‘s house in hot pursuit to effect the defendant‘s immediate arrest. Entering a home without a warrant under these circumstances is not unreasonable. Entry into a home in hot pursuit to arrest a person on probable cause for a jailable criminal offense is a longstanding, common sense exception to the warrant requirement. Accordingly, I concur.
¶ 137. I am authorized to state that Justices PATIENCE DRAKE ROGGENSACK and ANNETTE KINGSLAND ZIEGLER join this concurrence.
Appendix
1. Excerpt from Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 310-11 (1967) (Fortas, J., concurring):
Our Constitution envisions that searches will ordinarily follow procurement by police of a valid search warrant. Such warrants are to issue only on probable cause, and must describe with particularity the persons or things to be seized. There are exceptions to this rule. Searches may be made incident to a lawful arrest, and—as today‘s decision indicates—in the course of hot pursuit. ... The use in evidence of weapons seized in a hot pursuit search or search incident to arrest satisfies this criterion because of the need to protect the arresting officers from weapons to which the suspect might resort. The search for and seizure of fruits are, of course, justifiable on independent grounds.
The right of privacy protected by the Fourth Amendment relates in part of course to the precincts of the home or the office. But it does not make them sanctuaries where the law can never reach. There are such places in the world. A mosque in Fez, Morocco, that I have visited, is by custom a sanctuary where any refugee may hide, safe from police intrusion. We have no such sanctuaries here. A policeman in hot pursuit or an officer with a search warrant can enter any house, any room, any building, any office. The privacy of those places is, of course, protected against invasion except in limited situations.
3. Excerpt from United States v. Santana, 427 U.S. 38, 43-44 (1976) (White, J., concurring):
It is not disputed here that the officers had probable cause to arrest Santana and to believe that she was in the house. In these circumstances, a warrant was not required to enter the house to make the arrest, at least where entry by force was not required. This has been the longstanding statutory or judicial rule in the majority of jurisdictions in the United States, see ALI, A Model Code of Pre-arraignment Procedure 306-314, 696-697 (1975), and has been deemed consistent with state constitutions, as well as the Fourth Amendment. It is also the Institute‘s recommended rule. Id., § 120.6. I agree with the Court that the arrest here did not violate the Fourth Amendment.
¶ 138. LOUIS B. BUTLER, JR., J. (concurring). The majority does not determine whether the warrantless entry into Sanders’ home to make a warrantless arrest was justified as an exception to the Fourth Amendment warrant requirement. Because this case is resolved on other grounds, we need not (and
¶ 139. This case involves one of the most fundamental liberties guaranteed by our federal and state constitutions: the right to privacy in the sanctity of one‘s home. The United States Supreme Court has explained that “[t]he Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511 (1961) (emphasis added). The Supreme Court also affirmed the fundamental importance of jealously guarding the right to privacy against unwarranted invasions in McDonald v. United States, 335 U.S. 451, 455-56 (1948), explaining:
We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a
magistrate to pass on the desires of the police before they violate the privacy of the home.
¶ 140. In a later case, the Supreme Court elaborated:
It is axiomatic that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” And a principle protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest.
....
“The right of officers to thrust themselves into a home is a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance.”
Welsh v. Wisconsin, 466 U.S. 740, 748 & n.10 (1984) (quoting United States v. United States District Court, 407 U.S. 297, 313 (1972); Johnson v. United States, 333 U.S. 10, 13–14 (1948)).
¶ 141. Whether viewed in terms of the protections accorded by the
¶ 142. In Smith, this court described the exigent circumstances test as follows: “[w]hether a police officer under the circumstances known to the officer at the time reasonably believes that delay in procuring a warrant would gravely endanger life or risk destruction of evidence or greatly enhance the likelihood of the suspect‘s escape.” Id. at 230. As reinforced in later decisions such as Hughes, 233 Wis. 2d 280, ¶ 24, the Smith decision recognized
four factors which, when measured against the time needed to obtain a warrant, would constitute the exigent circumstances required for a warrantless entry: (1) An arrest made in “hot pursuit,” (2) a threat to safety of a suspect or others, (3) a risk that evidence would be destroyed, and (4) a likelihood that the suspect would flee. See Laasch [v. State, 84 Wis. 2d 587, 592, 267 N.W.2d 278 (1978)]. We recommended in Welsh, consistent with Brown v. Texas, 443 U.S. 47, 50-51 (1979), that a review of exigent circumstances be directed by a flexible test of reasonableness under the totality of the circumstances. [State v. Welsh, 108 Wis. 2d [319,] 328, 329[, 321 N.W.2d 245 (1982)].
Smith, 131 Wis. 2d at 229. The debate presented by Justice Prosser‘s concurrence comes down to the question of whether the first factor alone, hot pursuit, can constitute such sufficient exigent circumstances under
¶ 143. In its Welsh decision addressing the constitutional limitations on warrantless home entries, the United States Supreme Court emphasized its hesitation to find exigent circumstances “when warrantless arrests in the home are at issue,” and particularly when the underlying offense giving rise to probable cause to arrest “is relatively minor.” Welsh, 466 U.S. at 749-50 (citing United States v. Santana, 427 U.S. 38, 42-43 (1976); Warden v. Hayden, 387 U.S. 294, 298-299 (1967); Schmerber v. California, 384 U.S. 757, 770-71 (1966); Michigan v. Tyler, 436 U.S. 499, 509 (1978)). The Welsh court further noted that exceptions to the warrant requirement are “few in number and carefully delineated.” Welsh, 466 U.S. at 749 (citation omitted). The Court listed the emergency conditions it had previously recognized, and indicated that it had applied only the hot pursuit of a fleeing felon emergency condition to warrantless arrests in the home. Id. at 750, 753.
¶ 144. Welsh explained the difference between how courts should treat serious and minor offenses in the context of warrantless entry cases in the following terms: “When the government‘s interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.” Welsh, 466 U.S. at 750. The Court pointed out that “[e]ven the dissenters in Payton, although believing that warrantless home arrests are not prohibited by the
¶ 145. Justice Prosser‘s concurrence recognizes that Welsh distinguishes between different types of offenses. The context in which that distinction was made in Welsh was limited, however, to noting that the Court “[did not have] to consider whether the Fourth Amendment may impose an absolute ban on warrantless home arrests for certain minor offenses.” Id. at 749 n. 11 (emphasis added). The Court also noted that the decision allowing warrantless home arrests upon a showing of probable cause and exigent circumstances, Payton, was also ”expressly limited to felony arrests.” Id. (emphasis added).
¶ 146. The Court quoted Justice Jackson‘s concurrence in McDonald in discussing why a finding of exigent circumstances to justify a warrantless home entry should be severely restricted, if allowed at all, when a minor offense has been committed:
It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it. While I should be human enough to apply the letter of the law with some indulgence to officers acting to deal with threats or crimes of violence which endanger life or security, it is notable that few of the searches found by this Court to be unlawful dealt
with that category of crime. ... While the enterprise of parting fools from their money by the “numbers” lottery is one that ought to be suppressed, I do not think its suppression is more important to society than the security of the people against unreasonable searches and seizures. When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant.
McDonald, 335 U.S. at 459-60 (Jackson, J. concurring) (emphasis added). See also Welsh, 466 U.S. at 751 (quoting the above passage from Justice Jackson‘s McDonald concurrence). Thus, while the Court discussed the possibility that an argument could be made to extend the Payton limitation of felony home arrests upon a showing of probable cause and exigent circumstances to situations involving minor offenses where threats or crimes of violence were involved, the rule established in Payton remained in effect for the time being. Moreover, the Court never contemplated home arrests for any type of minor offense that did not involve threats or crimes of violence.
¶ 147. Justice Prosser‘s concurrence strives to go in a direction never adopted, nor even contemplated, by the Supreme Court. Justice Prosser‘s concurrence would establish a rule that police in hot pursuit can enter the sanctity of one‘s home without a warrant for any jailable misdemeanor offense, notwithstanding the fact that the Payton rule allowing warrantless entry into the home in some cases was expressly limited to felony arrests. See Welsh, 466 U.S. at 749 n. 11.
¶ 148. Welsh, while not a hot pursuit case itself, discussed hot pursuit along with the other exigent circumstances that may be factors in a warrantless entry analysis. Welsh, 466 U.S. at 749-53. Similarly,
¶ 149. Justice Prosser‘s concurrence suggests that the distinction to be drawn in warrantless entry cases is between jailable and nonjailable offenses, completely ignoring the Payton limitation. Justice Prosser‘s concurrence, ¶¶ 83-85. Justice Prosser‘s concurrence then boldly states that because all misdemeanors are potentially jailable in Wisconsin, then all crimes in Wisconsin are “serious” offenses, see id., ¶¶ 92-94, leading to the necessary conclusion that warrantless entry during hot pursuit is justified for any type of crime whatsoever.
¶ 150. Justice Prosser‘s concurrence errs by completely misconstruing the case of Illinois v. McArthur, 531 U.S. 326 (2001). McArthur did not involve a warrantless home entry by police based on probable cause and exigent circumstances for a jailable misdemeanor offense. To the contrary, the police in McArthur prevented a defendant from entering his home outside of their presence, precisely so the police could secure a warrant prior to entering the home. Id. at 328-29. The Court‘s holding was limited to justifying the restriction upon the defendant‘s entry into his home that the police imposed. Id. at 336. Of particular import is the distinction recognized by the Court that:
Temporarily keeping a person from entering his home ... is considerably less intrusive than police entry into the home in order to make a warrantless arrest or conduct a search. Cf. Payton v. New York, 445 U.S., at 585 (the Fourth Amendment‘s central concern is the warrantless entry and search of the home).
¶ 151. In addition to misinterpreting Welsh and McArthur by concluding that warrantless entry is con-
¶ 152. Some cases have maintained the distinction between felonies and misdemeanors. See, e.g., Welsh, 466 U.S. at 749 n.11 (“Our decision in Payton, allowing warrantless home arrests upon a showing of probable cause and exigent circumstances, was also expressly limited to felony arrests.“); State v. Mikkelson, 2002 WI App 152, ¶ 17, 256 Wis. 2d 132, 647 N.W.2d 421 (interpreting Welsh as “limit[ing] Santana to the hot pursuit of fleeing felons“); see also State v. Sorenson, 590 P.2d 136, 139 (Mont. 1979) (“The [hot pursuit] doctrine is unavailable to peace officers until a felony has been committed and the suspect is fleeing.“); City of Seattle v. Altschuler, 766 P.2d 518, 520 (Wash. App. 1989) (”Santana‘s facts limit its application to the ‘hot pursuit’ of a fleeing felon.“). But cf. City of Middletown v. Flinchum, 765 N.E.2d 330, 332 (Ohio 2002) (holding “that when officers, having identified themselves, are in hot pursuit of a suspect who flees to a house in order to avoid arrest, the police may enter without a warrant, regardless of whether the offense for which the suspect is being arrested is a misdemeanor“).
¶ 153. Other cases adopt what may be viewed as a “hot pursuit plus” approach that upholds hot pursuits for offenses of varying degrees of seriousness where there are other exigent circumstances present, for example threats of violence or destroyed evidence, or other emergencies or dangerous situations. See War- den, 387 U.S. at 297-99 (upholding hot pursuit on the grounds that an armed robbery suspect who had entered a house might “gravely endanger” the lives of officers or other individuals, with speed being of the essence to ensure “that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape“); Hughes, 233 Wis. 2d 280, ¶¶ 26-27, 33-35, 39 (The “immediate and compelling” exigent circumstances in that case included probable cause to believe that apartment occupants would intentionally destroy evidence of drug-related offense.); Butler v. State, 829 S.W.2d 412, 415 (Ark. 1992) (interpreting the
¶ 154. Santana, relied upon by Justice Prosser‘s concurrence and described by that concurrence as a case that does not limit “hot pursuit” warrantless entries to felonies, involved a felony arrest upon probable cause of criminal heroin sales activity, with the Supreme Court holding that in such a context, a defendant cannot defeat an otherwise proper arrest that commenced in a public place by retreating into a private place. Santana, 427 U.S. at 39-40, 42-43. See Welsh, 466 U.S. at 750 (citing Santana as involving “hot pursuit of a fleeing felon“). The Court described the chase in that case as “a true ‘hot pursuit‘” because there was a realistic expectation that if the police did not follow Santana into her house, “any delay would result in a destruction of evidence.” Santana, 427 U.S. at 42-43. As such, it was the likelihood of the destruction of drug evidence, rather than any actual chase,1 that caused the Court to conclude that warrantless entry was justified in that felony case.
¶ 155. However, Santana has not been applied to warrantless misdemeanor arrests inside a home by the Supreme Court; notwithstanding Santana,2 the Court in Welsh did emphasize that Payton was limited to
¶ 156. In denying all criminal suspects in Wisconsin the right to a warrant before being hotly pursued right into their own home, Justice Prosser‘s concurrence would accord fewer protections to individuals to be secure in their homes and persons than those recognized by the United States Supreme Court. Such denial of fundamental Fourth Amendment rights would be in clear contravention of the basic constitutional principle that the federal Constitution sets the floor, not the ceiling for individual rights, and states may not provide fewer constitutional protections than those guaranteed by the federal constitution, although we are always free to grant more rights under our state‘s constitution. See
¶ 157. Finally, Justice Prosser‘s concurrence confuses and conflates “minor” with “petty” misdemeanors, in its analysis that our legislature “has determined that all misdemeanors, regardless of class, are ‘serious’ offenses” simply “because all misdemeanors are jailable offenses.” Justice Prosser‘s concurrence, ¶ 92. Justice Prosser‘s concurrence ignores the fact that the United States Supreme Court has already distinguished “serious” offenses from “petty offenses,” not in terms of whether any jail time at all may be a penalty, but in terms of how much maximum jail time may be imposed. Specifically, the Supreme Court has explained that:
[i]n deciding whether an offense is “petty,” we have sought objective criteria reflecting the seriousness with
which society regards the offense, and we have found the most relevant such criteria in the severity of the maximum authorized penalty. Applying these guidelines, we have held that a possible six-month penalty is short enough to permit classification of the offense as “petty,” but that a two-year maximum is sufficiently “serious” to require an opportunity for jury trial. ...
Baldwin v. New York, 399 U.S. 66, 68-69 (1970) (citations omitted). Other cases in which the Court has explained that offenses are presumptively “petty,” as opposed to “serious” offenses, if the maximum potential sentence is six months or less, include United States v. Nachtigal, 507 U.S. 1, 3–4 (1993), and Blanton v. City of North Las Vegas, 489 U.S. 538, 542-43 (1989).
¶ 158. In closing, although the proposal of Justice Prosser‘s concurrence—denying the Fourth Amendment right to be protected from literally unwarranted intrusions into the sanctity of one‘s home in any misdemeanor involving hot pursuit—is contrary to established legal standards, I again emphasize that we need not decide whether a warrantless entry into a home by police officers in the context of hot pursuit should continue to be limited to warrantless felony arrests or if the hot pursuit exception to the warrant requirement should be extended to serious misdemeanor arrests. The majority correctly decided this case on narrower grounds.
¶ 159. For the foregoing reasons, I respectfully concur.
Notes
One commentator has observed that the Court‘s holding in Welsh can be read to distinguish between the “civil” or “criminal” nature of an offense:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
[T]he Welsh Court specifically disavowed any judicial judgment about the significance of the actual violation in question and deferred instead to Wisconsin‘s classification of the offense as “civil” in deciding the case. If Wisconsin were unhappy with the Court‘s decision, it could, therefore, nullify it prospectively by simply changing (legislatively) the status of driving while intoxicated from a civil violation to a criminal offense.
The initial entry into the defendant‘s home to arrest the defendant, the searches of the defendant‘s bedroom, the search of a canister in the defendant‘s bedroom, and the seizure of the
contents of the canister were all nonconsensual in the instant case. The instant case does not address consensual searches or seizures.The State‘s brief concentrates on suppression of the physical evidence and makes little mention of the defendant‘s statements. The assumption seems to be that if the physical evidence is suppressed so are the defendant‘s alleged statements.
Two recognized criminal law treatises note that the conclusion drawn by the Wyoming Supreme Court in Rideout v. State, 122 P.3d 201 (Wyo. 2005), is correct. See 2 Wayne R. LaFave, et al., Criminal Procedure § 3.6(a), at 243 n.24 (3d ed. 2007); 3 Wayne R. LaFave, Search and Seizure § 6.1(f), at 38-39, 39 n.211.2 (4th ed. Supp. 2007).- Minnesota has a class of offenses designated “petty” misdemeanors. ” ‘Petty misdemeanor’ means a petty offense which is prohibited by statute, which does not constitute a crime and for which a sentence of a fine of not more than $300 may be imposed.”
Minn. Stat. § 609.02, Subd. 4a (2007) . - Nebraska‘s “Class IV” and “Class V” misdemeanors are nonjailable and subject only to maximum fines of $500 and $100, respectively.
Neb. Rev. Stat. § 28-106(1) (2007) . - New Hampshire classifies offenses as “felony,” “misdemeanor,” or “violation.”
N.H. Rev. Stat. Ann. § 625:9, II (2008) . Only a “felony” and “misdemeanor” are considered crimes.Id. “A class B misdemeanor is any crime . . . for which the maximum penalty does not include any term of imprisonment.”N.H. Rev. Stat. Ann. § 625:9, IV(b) (2008) . - Ohio has a class of “minor misdemeanors” for which punishment cannot exceed a $150 fine, community service, or a financial sanction not constituting a fine.
Ohio Rev. Code Ann. § 2901.02(A), (G) (West 2006) . Texas’ “Class C” misdemeanors are subject to no imprisonment and a fine “not to exceed $500.” Tex. Penal Code Ann. § 12.23 (Vernon 2003) .- Virginia‘s “Class 3” and “Class 4” misdemeanors are nonjailable and subject only to maximum fines of $500 and $250, respectively.
Va. Code Ann. § 18.2-11(c)-(d) (2004) .
The determination of whether an offense is a felony or a serious misdemeanor is not one that we should force officers to make on the spot in the tense and often dangerous circumstances of hot pursuit. See Payton [v. New York], 445 U.S. [573, 619 (1980)] (White, J., dissenting). Adopting a bright-line rule based on the legislature‘s classification of conduct as a misdemeanor would also sweep away any possibility that warrantless home arrests would be justified for those misdemeanors in which the underlying conduct is serious, or when the underlying offense is minor, but subsequent activity by the perpetrator during his flight from the police elevates the situation to a serious one.