State v. Richard L. Weber ( 2016 )

2016 WI 96
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP304-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Richard L. Weber,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
OPINION FILED: November 29, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 6, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Wood
JUDGE: Gregory J. Potter
JUSTICES:
CONCURRED: KELLY, D., J. concurs (Opinion filed).
DISSENTED: BRADLEY, A. W., J. dissents, joined by
ABRAHAMSON, J. (Opinion filed).
BRADLEY, R. G., J. dissents (Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner the cause was
argued by Nancy A. Noet, assistant attorney general, with whom
on the brief(s) was Brad D. Schimel, attorney general.
For the defendant-appellant, there was a brief and oral
argument by Kara L. Mele, assistant state public defender.
2016 WI 96
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP304-CR
(L.C. No. 2012CF274)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. NOV 29, 2016
Richard L. Weber, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished decision of the court of appeals, State v. Weber,
No. 2014AP304-CR, unpublished slip op. (Wis. Ct. App. Oct. 8,
2015) (per curiam), which reversed the Wood County circuit
court's1 order denying defendant Richard Weber's ("Weber") motion
to suppress evidence of drunk driving, possession of marijuana,
and possession of drug paraphernalia, and remanded the case to
the circuit court with directions to vacate its judgment of
conviction, permit Weber to withdraw his plea, and grant Weber's
1
The Honorable Gregory J. Potter presided.
No. 2014AP304-CR
motion to suppress evidence. Weber, unpublished slip op., ¶¶1,
10.
¶2 A deputy of the Wood County sheriff's department
attempted to pull Weber over on a public highway by activating
the emergency lights on his vehicle after observing that Weber's
vehicle had a defective high-mounted brake lamp and watching the
vehicle weave over the highway's fog line. When Weber failed to
yield to the traffic stop, the deputy pursued Weber into his
driveway and apprehended him in his garage. The question before
this court is whether the deputy's warrantless entry into
Weber's garage and subsequent arrest of Weber violated the
Fourth Amendment of the United States Constitution and Article
I, Section 11 of the Wisconsin Constitution, or whether the need
for a warrant was obviated by the exigent circumstance of the
deputy's "hot pursuit" of a fleeing suspect who had committed
jailable offenses. See, e.g., United States v. Santana, 427
U.S. 38 (1976).
¶3 We conclude that the deputy's warrantless entry into
Weber's garage and subsequent arrest of Weber were
constitutional because they were justified by the exigent
circumstance of hot pursuit of a fleeing suspect who had
committed jailable offenses. The deputy had probable cause to
believe that Weber had committed two jailable offenses,
immediately pursued Weber, and performed a limited entry into
Weber's open garage for the purpose of preventing Weber's
continued flight. Under these specific circumstances, the
2
No. 2014AP304-CR
deputy's actions were constitutionally reasonable. Accordingly,
we reverse the decision of the court of appeals.
I. FACTUAL BACKGROUND
¶4 On April 20, 2012, Deputy Calvin Dorshorst ("Deputy
Dorshorst") of the Wood County sheriff's department and Weber
were driving in separate vehicles in Arpin, Wisconsin. Deputy
Dorshorst observed that the high-mounted brake lamp on Weber's
vehicle was not working properly and saw Weber's vehicle "weave
from its lane of travel" "[o]ver the white fog line." Deputy
Dorshorst activated his vehicle's emergency lights in an attempt
to conduct a traffic stop. Weber did not, however, stop his
vehicle. Instead, he drove about 100 feet, turned into a
driveway, and pulled into an attached garage. Deputy Dorshorst
followed the vehicle and parked 15 to 20 feet behind it but
outside of the garage with his vehicle's emergency lights still
on. At some point during this process, Deputy Dorshorst
"contact[ed] dispatch notifying them [he] had a traffic stop."
¶5 Weber and Deputy Dorshorst exited their vehicles at
about the same time. Weber began moving toward a door of the
attached house inside the garage. Deputy Dorshorst ran to the
front of his vehicle and in the direction of the garage, where
he witnessed Weber "walking slowly" and "somewhat staggering" up
steps inside the garage leading to the door to the house. As
Deputy Dorshorst ran toward Weber he told Weber to stop and that
3
No. 2014AP304-CR
he needed to speak with him.2 Weber did not stop but instead
continued up the steps to the house. Deputy Dorshorst entered
the garage and "secured [Weber's] arm" as Weber was "just inside
his [house's] door" at the top of the steps. Weber stopped and
Deputy Dorshorst explained that he had stopped Weber because of
the defective high-mounted brake lamp on Weber's vehicle.
Deputy Dorshorst asked Weber to accompany him to Weber's vehicle
so that Deputy Dorshorst could "point out exactly the reason for
the stop and which light was defective." During this time Weber
tried to pull away from Deputy Dorshorst and enter his house.
Deputy Dorshorst noticed that Weber had "slow, slurred speech"
and "glassy, bloodshot eyes." Additionally, Deputy Dorshorst
could smell "a strong odor of intoxicants."
¶6 Weber and Deputy Dorshorst eventually exited the
garage and walked back outside, where Deputy Dorshorst asked
Weber if he had been drinking. Weber informed Deputy Dorshorst
that "he was drinking at his residence and a while after
drinking a couple of beers, he left and went to the Village of
Arpin, at which time . . . he went to another place and was
drinking." Weber was "unable to identify" the location in Arpin
to which he had traveled. After consuming "a few drinks" there,
Weber explained, he had returned to his home. Weber informed
2
There may be some dispute as to the deputy's position at
the time he first spoke to Weber. For a discussion, see infra,
n.8.
4
No. 2014AP304-CR
Deputy Dorshorst that he thought he had had "way too much"
alcohol.
¶7 Deputy Dorshorst asked Weber to perform field sobriety
tests, but Weber refused. Weber then tried to leave and reenter
his garage, but Deputy Dorshorst advised Weber he was not free
to do so. Weber "aggressively pushed into [Deputy Dorshorst's]
chest with his head" around the same time that a second deputy
pulled into the driveway. Deputy Dorshorst told Weber a second
time that he was not free to leave. Weber "continued to
resist," and the two deputies "escorted the defendant to the
ground and secured his arms." Weber was put in handcuffs and
placed under arrest.
¶8 The deputies searched Weber and he consented to a
search of his vehicle. In the vehicle the deputies found "a
tinfoil square folded up with [a] green leafy vegetable
substance inside, which was later tested positive for
[tetrahydrocannabinols]," as well as a "metal pipe in the
ashtray of the vehicle." The pipe "had a burned residue inside
it" and "smelled of burnt marijuana."
¶9 Weber was eventually taken to a hospital where his
blood was drawn. Later analysis of his blood showed a blood
alcohol concentration of 0.24.
II. PROCEDURAL BACKGROUND
¶10 On July 9, 2012, a criminal complaint was filed
against Weber in Wood County circuit court charging him with one
5
No. 2014AP304-CR
count of operating while intoxicated, contrary to Wis. Stat.
§ 346.63(1)(a) (2011-12),3 tenth and subsequent offense, see Wis.
Stat. § 346.65(2)(am)7.; one count of operating with a
prohibited alcohol concentration, contrary to § 346.63(1)(b),
tenth and subsequent offense, see § 346.65(2)(am)7.; one count
of possession of tetrahydrocannabinols, contrary to Wis. Stat.
§ 961.41(3g)(e); possession of drug paraphernalia, contrary to
Wis. Stat. § 961.573(1); and resisting an officer, contrary to
Wis. Stat. § 946.41(1). On August 14, 2012, an information was
filed in the case.
¶11 On October 24, 2012, Weber filed a motion collaterally
attacking one of his prior convictions for drunk driving on the
ground that he had not properly waived his right to counsel when
entering his plea in that case. On October 29, 2012, Weber also
moved the circuit court
for an order excluding [Weber's] illegal arrest and
evidence obtained as a result of the illegal arrest,
including but not limited to the following: the blood
alcohol concentration, officer's observations
including glassy eyes, slurred speech, and odor of
intoxicants, statements made by defendant, defendant's
refusal to perform field sobriety tests, a metal pipe
believed to be drug paraphernalia, and tin foil
containing a green leafy vegetable substance believed
to be tetrahydrocannabinols.
¶12 On February 21, 2013, the circuit court granted
Weber's motion collaterally attacking one of his prior
convictions but denied Weber's suppression motion. As to the
3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
6
No. 2014AP304-CR
latter ruling, the circuit court concluded that Deputy
Dorshorst's actions were justified by the exigent circumstance
of hot pursuit. Specifically, Weber was fleeing Deputy
Dorshorst's lawful attempts to stop him, Deputy Dorshorst had
probable cause to believe that Weber was committing a crime in
so doing, and Deputy Dorshorst's pursuit of Weber for this
offense was "promptly made and maintained."
¶13 On May 23, 2013, an amended information was filed in
the case. On the same day, Weber pleaded no contest to
operating with a prohibited alcohol concentration, ninth
offense, possession of tetrahydrocannabinols, and resisting an
officer. The other two counts against Weber were dismissed. On
August 6, 2013, the circuit court sentenced Weber to four years
of initial confinement and four years of extended supervision on
the operating with a prohibited alcohol concentration charge and
ordered that Weber pay costs on the other two offenses. On
August 12, 2013, the court's judgment of conviction of Weber was
filed. On January 30, 2014, Weber filed a notice of appeal.
¶14 On October 8, 2015, the court of appeals reversed the
circuit court's order denying Weber's motion to suppress
evidence and remanded the case to the circuit court with
directions to vacate its judgment of conviction, permit Weber to
withdraw his plea, and grant Weber's motion to suppress. Weber,
unpublished slip op., ¶¶1, 10. The court of appeals explained
that "the exigent circumstances requirement means that there
must be a potential for danger to life, risk of evidence
destruction, or likelihood of escape." Id., ¶7. The court
7
No. 2014AP304-CR
added that the State failed to explain how this standard was
met; the State instead "appear[ed] to assume that all hot
pursuits qualify as exigent circumstances" but "provide[d] no
legal argument to support that assumption." Id., ¶¶8-9. The
court itself "fail[ed] to discern why an immediate warrantless
entry was justified" and ultimately reversed on the ground that
the State had conceded Weber's argument by failing to rebut it.
Id., ¶9 (citing Charolais Breeding Ranches, Ltd. V. FPC Sec.
Corp., 90 Wis. 2d 97, 108-09, 279 N.W.2d 493 (Ct. App. 1979)).
¶15 On November 6, 2015, the State filed a petition for
review in this court. On February 3, 2016, this court granted
the petition.
III. STANDARD OF REVIEW
¶16 "Our review of an order granting or denying a motion
to suppress evidence presents a question of constitutional
fact." State v. Iverson, 2015 WI 101, ¶17, 365 Wis. 2d 302, 871
N.W.2d 661 (quoting State v. Robinson, 2010 WI 80, ¶22, 327
Wis. 2d 302, 786 N.W.2d 463). In answering these types of
questions, this court "review[s] the circuit court's findings of
historical fact under a deferential standard, upholding them
unless they are clearly erroneous," then "independently
appl[ies] constitutional principles to those facts." Id., ¶18
(quoting Robinson, 327 Wis. 2d 302, ¶22).
IV. ANALYSIS
¶17 The Fourth Amendment to the United States Constitution
provides:
8
No. 2014AP304-CR
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.
U.S. Const. amend. IV.4 Article I, Section 11 of the Wisconsin
Constitution is a "substantively identical provision . . . that
this court interprets consistently with the Fourth Amendment."
State v. Richter, 2000 WI 58, ¶27, 235 Wis. 2d 524, 612
N.W.2d 29 (citing State v. Secrist, 224 Wis. 2d 201, 208, 589
N.W.2d 387 (1999)).
¶18 "It is a '"basic principle of Fourth Amendment law
that searches and seizures inside a home without a warrant are
presumptively unreasonable."' Nevertheless, because the
ultimate touchstone of the Fourth Amendment is 'reasonableness,'
the warrant requirement is subject to certain exceptions."
Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (citation
omitted) (quoting Groh v. Ramirez, 540 U.S. 551, 559 (2004)).
Relevant to the warrantless home entry that occurred in this
case,5 this court has recognized that "a home entry, though
unaccompanied by a warrant, is lawful if 'exigent circumstances'
4
The Fourth Amendment applies to the states through the
Fourteenth Amendment. E.g., State v. Kramer, 2009 WI 14, ¶18 &
n.6, 315 Wis. 2d 414, 759 N.W.2d 598 (citing Mapp v. Ohio, 367
U.S. 643 (1961)).
5
The State does not disagree with Weber's position that his
garage was protected under the Fourth Amendment as curtilage of
his home. See, e.g., State v. Davis, 2011 WI App 74, ¶¶9-15,
333 Wis. 2d 490, 798 N.W.2d 902.
9
No. 2014AP304-CR
are present," a condition satisfied when "it would be
unreasonable and contrary to public policy to bar law
enforcement officers at the door." State v. Ferguson, 2009 WI
50, ¶19, 317 Wis. 2d 586, 767 N.W.2d 187 (quoting Richter, 235
Wis. 2d 524, ¶28).
[T]here are four well-recognized categories of exigent
circumstances that have been held to authorize a law
enforcement officer's warrantless entry into a home:
1) hot pursuit of a suspect, 2) a threat to the safety
of a suspect or others, 3) a risk that evidence will
be destroyed, and 4) a likelihood that the suspect
will flee.
Id., ¶20 (quoting Richter, 235 Wis. 2d 524, ¶29). The State
argues that the first of these categories, hot pursuit,
justified Deputy Dorshorst's actions in this case.
¶19 Before this court will uphold Deputy Dorshorst's
warrantless entry on the grounds asserted, the State must
"show[] that the warrantless entry was both supported by
probable cause and justified by exigent circumstances."
10
No. 2014AP304-CR
Robinson, 327 Wis. 2d 302, ¶24.6 We now assess these two
components of the State's claim.
A. Probable Cause
¶20 "The probable cause requirement in the arrest context
protects an individual's interest in his or her personal
liberty. Thus, the proper inquiry in an arrest challenge is
whether probable cause exists to believe that a particular
suspect has committed a crime." State v. Hughes, 2000 WI 24,
¶20, 233 Wis. 2d 280, 607 N.W.2d 621 (citing State v. Kiper, 193
Wis. 2d 69, 82, 532 N.W.2d 698 (1995)).
Probable cause to arrest is the quantum of evidence
within the arresting officer's knowledge at the time
of the arrest which would lead a reasonable police
officer to believe that the defendant probably
committed or was committing a crime. There must be
more than a possibility or suspicion that the
defendant committed an offense, but the evidence need
not reach the level of proof beyond a reasonable doubt
or even that guilt is more likely than not.
6
One fact that we need not consider in this case is Deputy
Dorshorst's "subjective motivation" for entering Weber's garage.
Brigham City v. Stuart, 547 U.S. 398, 404 (2006). "An action is
'reasonable' under the Fourth Amendment, regardless of the
individual officer's state of mind, 'as long as the
circumstances, viewed objectively, justify [the] action.'" Id.
(alteration in original) (quoting Scott v. United States, 436
U.S. 128, 138 (1978)). "[W]hen an officer's Fourth Amendment
search and seizure conduct is supported by an objectively
ascertainable basis for probable cause or reasonable suspicion,
the police conduct meets the Fourth Amendment's requirement of
reasonableness, thereby causing subjective motivations to be of
little concern." Kramer, 315 Wis. 2d 414, ¶27 (citing Whren v.
United States, 517 U.S. 806, 811 (1996)).
11
No. 2014AP304-CR
Secrist, 224 Wis. 2d at 212 (citations omitted). The test to
determine probable cause is objective, cf., e.g., Robinson, 327
Wis. 2d 302, ¶26 (search case), and requires an examination of
the totality of the circumstances. Kiper, 193 Wis. 2d at 82
(citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). Further,
"probable cause eschews technicality and legalisms in favor of a
'flexible, common-sense measure of the plausibility of
particular conclusions about human behavior.'" Secrist, 224
Wis. 2d at 215 (quoting Kiper, 193 Wis. 2d at 83).
¶21 The State argues that at the time of Deputy
Dorshorst's entry into Weber's garage, Deputy Dorshorst "had
probable cause to believe that Weber had committed two jailable
offenses," namely violations of Wis. Stat. §§ 346.04(2t)
("Obedience to traffic officers, signs and signals; fleeing from
officer.") and 946.41(1) ("Resisting or obstructing officer.").
The first of these statutes provides, "No operator of a vehicle,
after having received a visible or audible signal to stop his or
her vehicle from a traffic officer or marked police vehicle,
shall knowingly resist the traffic officer by failing to stop
his or her vehicle as promptly as safety reasonably permits."
§ 346.04(2t). The second of these statutes criminalizes
"knowingly resist[ing] or obstruct[ing] an officer while such
officer is doing any act in an official capacity and with lawful
authority." § 946.41(1). Each of these offenses is punishable
by a fine of $10,000, imprisonment for up to nine months, or
both. Wis. Stat. §§ 346.17(2t), 946.41(1), 939.51(3)(a).
12
No. 2014AP304-CR
¶22 In response, Weber argues that probable cause was
lacking for both jailable offenses because Deputy Dorshorst
possessed no evidence that Weber "knowingly resist[ed]," Wis.
Stat. §§ 346.04(2t), or "knowingly . . . obstruct[ed]," Wis.
Stat. § 946.41(1), Deputy Dorshorst.7
¶23 We conclude that at the time he entered Weber's
garage, Deputy Dorshorst had probable cause to arrest Weber for
violations of Wis. Stat. §§ 346.04(2t) and 946.41(1). Deputy
Dorshorst activated his emergency lights while driving behind
Weber's vehicle but Weber failed to pull over. Deputy Dorshorst
pulled his flashing vehicle into Weber's driveway and parked it
behind Weber's vehicle before Weber had even exited it, but
Weber did not acknowledge the attempted stop. Deputy Dorshorst
called after Weber, but Weber made no reply. "We evaluate the
existence of probable cause objectively, concerned with whether
law enforcement acted reasonably." Robinson, 327 Wis. 2d 302,
¶26 (search case). Our focus is not on whether Weber in fact
fled Deputy Dorshorst, but instead whether the circumstances
would have led a reasonable law enforcement officer to believe
that Weber was probably fleeing him. See Secrist, 224
Wis. 2d at 212. A reasonable law enforcement officer would
conclude on this evidence that Weber was likely feigning
ignorance and thus fleeing; most individuals would have
responded to Deputy Dorshorst's obvious attempts to catch his
7
Weber does not develop independent arguments relating to
other portions of the statutes.
13
No. 2014AP304-CR
attention. Cf. State v. Stewart, 143 Wis. 2d 28, 35, 420
N.W.2d 44 (1988) ("Intent may be inferred from the defendant's
conduct . . . .").
¶24 Our conclusion that Deputy Dorshorst possessed
probable cause to arrest Weber is only bolstered by the circuit
court's finding that Weber was in fact "fleeing the deputy in
order to avoid the stop," a finding which is not clearly
erroneous because it is not "contrary to the great weight and
clear preponderance of the evidence." State v. Popke, 2009 WI
37, ¶20, 317 Wis. 2d 118, 765 N.W.2d 569 (quoting State v.
Turner, 136 Wis. 2d 333, 343, 401 N.W.2d 827 (1987)).
Consequently, we are "bound not to upset" the court's factual
finding. Id. (emphasis added) (quoting Turner, 136 Wis. 2d at
343); see also Iverson, 365 Wis. 2d 302, ¶18 (characterizing
applicable standard of review as "deferential" (quoting
Robinson, 327 Wis. 2d 302, ¶22)).
¶25 Weber contends that Deputy Dorshorst's verbal
directive to Weber to stop as Weber neared his door is
irrelevant to a probable cause analysis because Weber was
already in the garage when it was issued. We reject this
argument. The relevant question at this stage of the analysis
is whether an officer would reasonably conclude prior to the
officer's warrantless entry that Weber had committed a jailable
offense and was now fleeing from arrest for that crime. Cf.,
e.g., Santana, 427 U.S. at 42 ("In Warden v. Hayden, 387 U.S.
294 (1967), we recognized the right of police, who had probable
cause to believe that an armed robber had entered a house a few
14
No. 2014AP304-CR
minutes before, to make a warrantless entry to arrest the robber
and to search for weapons."). Weber's failure to respond to
highly noticeable "visible [and] audible signal[s]" directed at
him while he was in the street and in his garage, Wis. Stat.
§ 346.04(2t), strongly suggested that he was in the process of
knowingly fleeing Deputy Dorshorst's lawful stop. We stress
that "an officer's conclusions must be reasonable under the
circumstances, not technically certain." Secrist, 224
Wis. 2d at 215.
The process does not deal with hard certainties, but
with probabilities. Long before the law of
probabilities was articulated as such, practical
people formulated certain common-sense conclusions
about human behavior; jurors as factfinders are
permitted to do the same——and so are law enforcement
officers.
Id. (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality
opinion)). This court can properly consider Deputy Dorshorst's
oral commands.8
8
Weber comments that "[t]he circuit court did not make an
explicit finding as to whether the deputy was inside or outside
the garage when he first spoke to [Weber]." A fair reading of
the record makes clear that a finding that Deputy Dorshorst was
outside the garage at the time he first spoke to Weber was at
least implicit. Deputy Dorshorst specifically testified that he
was not in the garage prior to first speaking to Weber. The
circuit court concluded that "[o]nce inside the garage, [Weber]
did not wait for the deputy to approach," but "instead attempted
to flee the deputy, even after obtaining verbal commands." The
court then continued, "because of the defendant's actions, the
deputy took pursuit." (Emphasis added.) In other words, the
court found that Weber's failure to respond to Deputy
Dorshorst's verbal commands partly caused and thus preceded
Deputy Dorshorst's entry into the garage.
(continued)
15
No. 2014AP304-CR
¶26 Before he entered Weber's garage, the evidence before
Deputy Dorshorst suggested, at the very least, that it was as
likely as not that Weber had committed jailable offenses by
failing to pull to the side of the road as soon as reasonably
possible. Consequently, Deputy Dorshorst possessed probable
cause to arrest Weber. See Secrist, 224 Wis. 2d at 212 (citing
State v. Mitchell, 167 Wis. 2d 672, 681-82, 482 N.W.2d 364
(1992)). To conclude that probable cause does not exist on
these facts could be construed as a sea change in the law.
Weber's defense as to why he did not pull over earlier, instead
proceeding into his garage and attempting to enter his home, all
while the law enforcement vehicle had its emergency lights
activated and despite Deputy Dorshorst calling out to him, is a
question for the jury to weigh and consider but is not
determinative of probable cause. The court's determination of
probable cause is distinct from a defense. Neither statute at
issue prescribes a time or distance requirement. This court
should neither read such a requirement into the statute nor
But even if the circuit court failed to make a specific
finding on this point, to the extent such a finding would be
outcome-determinative, we can assume the trial court made it.
See State v. Echols, 175 Wis. 2d 653, 673, 499 N.W.2d 631 (1993)
("When a trial court does not expressly make a finding necessary
to support its legal conclusion, an appellate court can assume
that the trial court made the finding in the way that supports
its decision." (citing State v. Wilks, 117 Wis. 2d 495, 503, 345
N.W.2d 498 (Ct. App. 1984), aff'd, 121 Wis. 2d 93, 358
N.W.2d 273 (1984)).
16
No. 2014AP304-CR
conflate the question of probable cause with a potential
defense.
B. Exigent Circumstances
¶27 We must next examine whether the exigencies of the
situation justified Deputy Dorshorst's entry into Weber's
garage, or whether Deputy Dorshorst was constitutionally
required to obtain an arrest warrant. As discussed, the State
relies on Deputy Dorshorst's "hot pursuit" of Weber to validate
the entry.9
¶28 Both this court and the Supreme Court of the United
States have recognized that "law enforcement officers may make a
warrantless entry onto private property . . . to engage in '"hot
pursuit"' of a fleeing suspect." Stuart, 547 U.S. at 403
(quoting Santana, 427 U.S. at 42-43); see, e.g., Ferguson, 317
Wis. 2d 586, ¶20 (characterizing "hot pursuit of a suspect" as
one of several "well-recognized categories of exigent
circumstances" (quoting Richter, 235 Wis. 2d 524, ¶29)). The
basic ingredient of the exigency of hot pursuit is "immediate or
continuous pursuit of [a suspect] from the scene of a crime."
Richter, 235 Wis. 2d 524, ¶32 (alteration in original) (quoting
State v. Smith, 131 Wis. 2d 220, 232, 388 N.W.2d 601 (1986),
abrogated on other grounds by State v. Felix, 2012 WI 36, 339
Wis. 2d 670, 811 N.W.2d 775).
9
Instead of relying on theories that were not briefed or
argued, we base our conclusions on the long-established doctrine
of hot pursuit.
17
No. 2014AP304-CR
¶29 For example, in Santana, a seminal case on hot
pursuit, the Supreme Court concluded that officers with probable
cause to arrest a defendant standing in the threshold of her
residence and who "retreat[ed] into . . . her house" as the
officers attempted to seize her could enter "through the open
door" and "catch[] her in the vestibule." Santana, 427 U.S. at
40, 42-43. And in Richter, this court determined that an
officer responding to a report of a burglary at a trailer park
who was told by the victim upon arrival that the burglar had
entered a certain trailer could enter that trailer without a
warrant. Richter, 235 Wis. 2d 524, ¶¶1-2.
¶30 Again, "[t]he ultimate touchstone of the Fourth
Amendment is 'reasonableness,'" and "the warrant requirement is
subject to certain reasonable exceptions." Kentucky v. King,
563 U.S. 452, 459 (2011) (alteration in original) (quoting
Stuart, 547 U.S. at 403). The necessity——and thus intuitive
reasonableness——of a hot pursuit doctrine in our constitutional
law is apparent. In many cases, hot pursuit into a residence
will serve the purposes of protecting a home's occupants, c.f.,
e.g., Hayden, 387 U.S. at 298-99, or preventing the destruction
of evidence. See, e.g., Santana, 427 U.S. at 43. But
"[e]xigent circumstances exist when 'it would be unreasonable
and contrary to public policy to bar law enforcement officers at
the door,'" Ferguson, 317 Wis. 2d 586, ¶19 (quoting Richter, 235
Wis. 2d 524, ¶28), and even in the absence of these additional
benefits, the hot pursuit doctrine serves an important public
policy purpose:
18
No. 2014AP304-CR
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 . . . 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. Sanders, 2008 WI 85, ¶133, 311 Wis. 2d 257, 752
N.W.2d 713 (Prosser, J., concurring) (alteration in original)
(quoting State v. Blake, 468 N.E.2d 548, 553 (Ind. Ct. App.
1984)); see also Santana, 427 U.S. at 42 (refusing to permit a
defendant to "thwart an otherwise proper arrest" by withdrawing
into her home). "[C]reating an incentive for . . . suspects to
flee to the home to escape lawful arrest," Sanders, 311
Wis. 2d 257, ¶133 (Prosser, J., concurring), generates
disrespect for the law and for law enforcement, risks putting
the public and any participants in the chase in harm's way, and
expends valuable law enforcement resources. Consequently, the
hot pursuit doctrine helps ensure that a criminal suspect will
not be rewarded for fleeing the police and that the police will
not be penalized for completing a lawful attempt to apprehend a
suspect, who, by his own actions, has drawn the police into his
home.
¶31 Before proceeding, we reemphasize an important
dimension of the hot pursuit doctrine. In Welsh v. Wisconsin,
466 U.S. 740 (1984), which was not a hot pursuit case, Welsh,
466 U.S. at 753, the Supreme Court characterized its earlier
decision in Santana as involving the "hot pursuit of a fleeing
19
No. 2014AP304-CR
felon." Id. at 750 (emphasis added) (citing Santana, 427 U.S.
at 42-43). The court also concluded that "an important factor
to be considered when determining whether any exigency exists is
the gravity of the underlying offense for which the arrest is
being made." Id. at 753. After Welsh, some uncertainty existed
regarding whether the hot pursuit doctrine was limited to those
cases where officers were in pursuit of a "fleeing felon."
Compare, e.g., Sanders, 311 Wis. 2d 257, ¶¶77-83, 122, 134
(Prosser, J., concurring), with id., ¶¶147, 149, 152 (Butler,
J., concurring).
¶32 In Ferguson this court concluded that "Welsh and
Santana did not create a bright-line rule requiring the
underlying offense to be labeled a felony in order for exigent
circumstances to justify a warrantless home entry." Ferguson,
317 Wis. 2d 586, ¶27 (footnote omitted) (citing Sanders, 311
Wis. 2d 257, ¶71 (Prosser, J., concurring)). We instead
clarified that "courts, in evaluating whether a warrantless
entry is justified by exigent circumstances, should consider
whether the underlying offense is a jailable or nonjailable
offense, rather than whether the legislature has labeled that
offense a felony or a misdemeanor." Id., ¶29.
¶33 Since then, the Supreme Court has confirmed our view
that Welsh and Santana do not create a felony-misdemeanor
distinction, stating:
[T]hough Santana involved a felony suspect, we did not
expressly limit our holding based on that
fact. . . . Welsh . . . [did not] involve[] hot
pursuit. Thus, despite our emphasis in Welsh on the
20
No. 2014AP304-CR
fact that the crime at issue was minor——indeed, a mere
nonjailable civil offense——nothing in the opinion
establishes that the seriousness of the crime is
equally important in cases of hot pursuit.
Stanton v. Sims, 571 U.S. ___, 134 S. Ct. 3, 6 (2013) (per
curiam) (citations omitted). While the Court in Stanton
acknowledged a "basic disagreement" among "federal and state
courts nationwide . . . on the question whether an officer with
probable cause to arrest a suspect for a misdemeanor may enter a
home without a warrant while in hot pursuit of that suspect," it
did not "express [a] view" on the ultimate question. Id. at 5,
7. Consequently, Ferguson remains the law and dictates that the
mere fact that the underlying offenses at issue in this case are
misdemeanors is not a bar to application of the hot pursuit
doctrine.
¶34 On the other hand, the State urges this court to
establish a rule that "hot pursuit of a suspect based on
probable cause for a jailable offense" will always justify a
warrantless home entry and arrest. We decline to conclude that
the confluence of hot pursuit and probable cause to arrest for a
jailable offense will always justify a warrantless entry. The
"touchstone of the Fourth Amendment is reasonableness," and
"[r]easonableness . . . is measured in objective terms by
examining the totality of the circumstances." Ohio v.
Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Jimeno,
500 U.S. 248, 250 (1991)).
21
No. 2014AP304-CR
¶35 Evaluation of all the circumstances in this case
convinces us that Deputy Dorshorst's entry into Weber's garage
was constitutionally reasonable.
¶36 To begin with, Deputy Dorshorst was indeed engaged in
"immediate or continuous pursuit of [a suspect] from the scene
of a crime." Richter, 235 Wis. 2d 524, ¶32 (alteration in
original) (quoting Smith, 131 Wis. 2d at 232). He was
attempting to apprehend Weber, who was fleeing Deputy
Dorshorst's lawful traffic stop on a public highway. There was
no delay between Weber's illegal actions and Deputy Dorshorst's
pursuit of Weber. Cf. id., ¶36 ("There is no evidence in this
record of any delay in [the deputy's] response or pursuit that
would have interrupted the immediacy and continuity of the
situation and therefore dissipated the exigency.").
¶37 Next, violations of the statutes at issue, Wis. Stat.
§§ 346.04(2t) and 946.41(1), are jailable offenses, Wis. Stat.
§§ 346.17(2t), 946.41(1), 939.51(3)(a), and thus significantly
grave. Cf. Ferguson, 317 Wis. 2d 586, ¶29 ("[C]ourts, in
evaluating whether a warrantless entry is justified by exigent
circumstances, should consider whether the underlying offense is
a jailable or nonjailable offense . . . ."). The available
penalties——up to nine months in prison for violations of each
statute, §§ 346.17(2t), 946.41(1), 939.51(3)(a)——demonstrate
that the State has a strong "interest in arresting individuals
suspected of committing [these] offense[s]." Welsh, 466 U.S. at
754 n.14.
22
No. 2014AP304-CR
¶38 We note that Deputy Dorshorst's intrusion here was
appropriately limited. Cf., e.g., Santana, 427 U.S. at 42-43
("This case . . . is clearly governed by Warden [v. Hayden]; the
need to act quickly here is even greater than in that case while
the intrusion is much less." (emphasis added) (citing Hayden,
387 U.S. 294)); id. at 43-44 (White, J., concurring) ("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." (emphasis added)).10 Deputy Dorshorst did not damage
10
As part of its analysis in United States v. Santana, 427
U.S. 38 (1976), the Supreme Court examined whether Santana
possessed an "expectation of privacy" while standing in the
doorway of her home. See Santana, 427 U.S. at 42. One might
argue that this reasoning is now suspect under two recent
Supreme Court cases, United States v. Jones, 565 U.S. ___, 132
S. Ct. 945 (2012), and Florida v. Jardines, 569 U.S. ___, 133 S.
Ct. 1409 (2013), to the extent those cases are read to emphasize
the idea that "for most of our history the Fourth Amendment was
understood to embody a particular concern for government
trespass upon the areas . . . [the Fourth Amendment]
enumerates." Jones, 132 S. Ct. at 950; see Jardines, 133 S. Ct.
at 1414.
(continued)
23
No. 2014AP304-CR
any property, open any doors or windows, or pull out any
weapons. He simply stepped into Weber's open garage and seized
his arm. The two actions——entry and apprehension——were
calculated to accomplish no more than was absolutely necessary
to halt Weber's escape. Additionally, the entry was a last
resort. Deputy Dorshorst had already attempted to stop Weber by
activating his emergency lights and calling after him; it was
due to Weber's actions that Deputy Dorshorst was forced to enter
the garage to accomplish the stop. Finally, Deputy Dorshorst
ended the intrusion promptly, staying in the garage no longer
than needed. Cf., e.g., State v. Legg, 633 N.W.2d 763, 773
Jones and Jardines are both search cases. See Jones, 132 S.
Ct. at 949 ("We hold that the Government's installation of a GPS
device on a target's vehicle, and its use of that device to
monitor the vehicle's movements, constitutes a 'search.'"
(footnote omitted)); id. at 958 (Alito, J., concurring) ("The
Court does not contend that there was a seizure."); Jardines,
133 S. Ct. at 1414 ("We granted certiorari, limited to the
question of whether the officers' behavior was a search within
the meaning of the Fourth Amendment."). Moreover, the Santana
court's discussion of Santana's expectation of privacy pertained
to whether she was in a public place "when the police first
sought to arrest" her at the "threshold of [her] dwelling," not
whether the area in which she was actually arrested, "the
vestibule of her house," was protected by the Fourth Amendment.
Santana, 427 U.S. at 40-43. The Supreme Court's acknowledgement
of the degree of the officers' "intrusion" in that case occurred
during its subsequent consideration of whether the police could
follow Santana into her house to effect an arrest. Id. at 42.
Here, Weber was clearly in a public place when Deputy Dorshorst
began his pursuit. And there is no dispute that a seizure
eventually occurred in Weber's home. The question at issue is
thus whether, under the totality of the circumstances, the
seizure which undoubtedly occurred was constitutionally
reasonable.
24
No. 2014AP304-CR
(Iowa 2001) ("Another important circumstance in this case is the
nature of the intrusion. [The officer] entered [the
defendant's] garage, not her house proper as in Santana or her
bedroom as in Welsh. . . . In addition, the magnitude of the
infringement was rather slight. [The officer's] entry into [the
defendant's] garage was no surprise to her; he was following
closely on her heels when she entered the garage. In addition,
he entered through an open door and took only three steps
inside. Thus, the intrusion was peaceful and restricted to that
which was necessary to allow the officer to speak with [the
defendant]." (citation omitted)); State v. Pinkard, 2010 WI 81,
¶¶41-42, 55, 327 Wis. 2d 346, 785 N.W.2d 592 (analyzing
"reasonable[ness]" of "police conduct" in community caretaker
context by considering, inter alia, "the degree of overt
authority and force displayed," including whether "any of
the . . . officers employed any force or drew their weapons" and
"the availability, feasibility and effectiveness of alternatives
to the type of intrusion actually accomplished" (quoting State
v. Kramer, 2009 WI 14, ¶41, 315 Wis. 2d 414, 759 N.W.2d 598)).11
¶39 Deputy Dorshorst's actions in this case were
manifestly reasonable. As the State observed at oral argument,
11
Our community caretaker line of cases sets forth
guidelines in a separate Fourth Amendment context for analyzing
different aspects of intrusions by the State. See, e.g., State
v. Pinkard, 2010 WI 81, ¶¶29, 41-42, 327 Wis. 2d 346, 785
N.W.2d 592. The cases are by no means controlling here, but are
instead merely a helpful tool for discussing the reasonableness
of Deputy Dorshorst's actions.
25
No. 2014AP304-CR
"this case is not about a bad brake light." Instead, it is
about a defendant, Weber, who declined to submit to a law
enforcement officer's lawful attempts to conduct a traffic stop.
Had Weber chosen to stop on the highway, or even in his
driveway, Deputy Dorshorst never would have entered his garage.
This is not the type of conduct that the Fourth Amendment brands
"unreasonable"; the Fourth Amendment does not dictate that
officers who fail to outpace suspects on their way to a
residence are unable to act. See Sanders, 311 Wis. 2d 257, ¶133
(Prosser, J., concurring) (quoting Blake, 468 N.E.2d at 553).
Taking the time to obtain an arrest warrant in this case would
have required Deputy Dorshorst to halt an arrest which had
already begun outside of Weber's home, an arrest lawfully
premised on probable cause that Weber had committed jailable
offenses and one which required minimal intrusion to complete.
For numerous policy reasons we have already discussed, an arrest
warrant is simply not mandated under these circumstances. See,
e.g., id. (Prosser, J., concurring) ("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." (quoting Gasset v. State, 490 So. 2d 97, 98-99 (Fla.
Dist. Ct. App. 1986) (denying certiorari))).12
12
We are not persuaded by Weber's references to general
language in Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552
(2013). McNeely did not involve the hot pursuit doctrine.
McNeely, 133 S. Ct. at 1558 (describing question at issue as
"whether the natural dissipation of alcohol in the bloodstream
establishes a per se exigency that suffices on its own to
(continued)
26
No. 2014AP304-CR
¶40 A counterargument could be made that Deputy Dorshorst
should nonetheless have attempted to secure a warrant to arrest
Weber. Presumably, Deputy Dorshorst would have needed to stop
at Weber's driveway and let Weber flee into the residence, then
call for backup, secure a perimeter around the house so that
Weber did not continue his attempts to escape law enforcement,
and obtain a warrant. And then what? Would those who support
this argument have Deputy Dorshorst knock on the door? Given
that Weber was openly fleeing Deputy Dorshorst, it is far from
clear Weber simply would have turned around and opened the door
for him. If Weber did not open the door, was Deputy Dorshorst
then to break the door in and apprehend Weber inside his actual
house as opposed to inside his open garage? Especially compared
to that scenario, an immediate and limited entry into Weber's
open garage to complete the stop was an appropriate approach.
¶41 The court of appeals below settled upon a version of
Weber's argument, stating that "the exigent circumstances
requirement means that there must be a potential for danger to
life, risk of evidence destruction, or likelihood of escape,"
Weber, unpublished slip op., ¶7, and suggested that such factors
are not present in this case. Id., ¶9. This is a form of the
"'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
justify an exception to the warrant requirement for
nonconsensual blood testing in drunk-driving investigations").
27
No. 2014AP304-CR
or destroyed evidence, or other emergencies or dangerous
situations." Sanders, 311 Wis. 2d 257, ¶153 (Butler, J.,
concurring) (emphasis added). But this approach is contradicted
by our case law. See id., ¶118 (Prosser, J., concurring)
("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 pursuit is a sufficient
justification for a warrantless entry and arrest." (citing
Smith, 131 Wis. 2d at 229; Richter, 235 Wis. 2d 524, ¶29)).
¶42 In Richter, for example, this court upheld a
warrantless entry into a trailer on the basis of both hot
pursuit of a fleeing suspect and the need to protect the
occupants of the trailer. Richter, 235 Wis. 2d 524, ¶2. But
our analysis made clear that these were independent
justifications. Id., ¶¶32-37, 41 ("We conclude that [the
deputy's] entry was justified by the exigent circumstance of hot
pursuit. The State also argues that this entry was justified by
the exigency of a threat to the safety of the suspect or
others. . . . [W]e conclude that [the deputy] reasonably
believed that the intruder he was pursuing posed a threat to the
safety of the occupants of Richter's trailer." (emphasis
added)). And it would be somewhat strange to continually list
"hot pursuit of a suspect" as one of "four well-recognized
categories of exigent circumstances" separate from "a threat to
the safety of a suspect or others," "a risk that evidence will
be destroyed," and "a likelihood that the suspect will flee" if
28
No. 2014AP304-CR
one of these additional categories were required in order to
justify a warrantless entry following hot pursuit of a suspect.
Id., ¶29 (citing Smith, 131 Wis. 2d at 229); Ferguson, 317
Wis. 2d 586, ¶20 (quoting Richter, 235 Wis. 2d 524, ¶29).
Although the presence of one or more of these additional
exigencies is relevant to the question of whether a warrantless
entry is permitted, it is not a prerequisite to application of
the hot pursuit doctrine. See, e.g., Commonwealth v. Jewett, 31
N.E.3d 1079, 1089 n.8 (Mass. 2015) ("The defendant also attempts
to argue that hot pursuit is not an exigency unto itself where
the underlying crime is not felonious, but rather additional
factors, such as the crime being violent or the suspect being
armed, must be satisfied in order to justify a warrantless
entry. We disagree with this contention."); People v. Wear, 867
N.E.2d 1027, 1045 (Ill. Ct. App. 2007) ("Most courts appear to
take Santana's holding at face value, treating hot pursuit as an
exception unto itself rather than as just another factor."
(citations omitted)), aff'd, 893 N.E.2d 631 (2008); Sanders, 311
Wis. 2d 257, ¶¶119-32 (Prosser, J., concurring) (collecting
cases).13
13
The court of appeals below essentially relied on a
discussion from this court's opinion in Smith to derive a test
for exigent circumstances in the hot pursuit context, State v.
Weber, No. 2014AP304-CR, unpublished slip op., ¶¶4, 7 (Wis. Ct.
App. Oct. 8, 2015) (per curiam) (citing State v. Smith, 131
Wis. 2d 220, 229, 231, 388 N.W.2d 601 (1986), abrogated on other
grounds by State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811
N.W.2d 601 (1986)), but as the Sanders concurrence explained,
the test for exigent circumstances set forth in that case does
not apply to the hot pursuit doctrine. See State v. Sanders,
(continued)
29
No. 2014AP304-CR
¶43 Before we conclude, we acknowledge the concern that
applying the hot pursuit doctrine to uphold a warrantless entry
in a case where fleeing law enforcement was itself the violation
giving rise to the pursuit will lead to the application of the
hot pursuit doctrine in every case involving a fleeing suspect,
no matter the gravity of the first offense committed, since
flight itself can constitute a jailable offense. The objection
is a legitimate one, but it fails to persuade for several
reasons. First, the State will not always be able to establish
probable cause that the suspect was knowingly fleeing. Second,
as stated above, we decline to adopt the per se rule set forth
by the State. The "touchstone of the Fourth Amendment is
reasonableness," and "[r]easonableness . . . is measured in
objective terms by examining the totality of the circumstances."
Robinette, 519 U.S. at 39 (quoting Jimeno, 500 U.S. at 250).
Third, application of the hot pursuit doctrine in this scenario
is not circular (i.e., the pursuit justifying the pursuit)
because the legislature did not have to make knowingly fleeing a
traffic stop a jailable offense, either at all or in all
circumstances. That it has chosen to do so means that this
court must treat it with the seriousness that it does other
311 Wis. 2d 257, ¶117 (Prosser, J., concurring) ("[Hot pursuit]
is not part of the objective test set forth in Smith . . . .").
Additionally, Smith was not a hot pursuit case. See Smith, 131
Wis. 2d at 231-32 (summarily dismissing possibility of a hot
pursuit claim in a single paragraph because "[t]he underlying
offense . . . occurred nearly three weeks earlier").
30
No. 2014AP304-CR
jailable offenses.14 And fourth, a contrary holding would lead
to the opposite problem: in every case involving a nonjailable
offense, suspects would have an incentive to flee law
enforcement because flight itself would not justify application
of the hot pursuit doctrine.
¶44 The record demonstrates that Weber committed jailable
offenses and attempted to evade lawful apprehension and that
Deputy Dorshorst's pursuit and response was immediate and
measured. A warrant was not necessary here; it was reasonable
for Deputy Dorshorst to effectuate the lawful arrest he had
begun outside of Weber's home.
V. CONCLUSION
¶45 We conclude that the deputy's warrantless entry into
Weber's garage and subsequent arrest of Weber were
constitutional because they were justified by the exigent
14
For example, with regard to Wis. Stat. § 946.41(1),
"[r]esisting or obstructing officer," we note that the
legislature provided for steeper criminal penalties when a
violation involves aggravating circumstances, such as injury to
an officer, § 946.41(2r)-(2t), or, after a violator has given
false information or placed physical evidence with intent to
mislead an officer and a trier of fact at a criminal trial has
considered this information or evidence, conviction of an
innocent person as a result of that trial, § 946.41(2m). The
legislature could easily have taken similar steps in the
opposite direction, instituting less significant penalties when
resistance or obstruction is tied to potentially less serious
circumstances, such as a traffic stop for a broken brake light.
But it did not do so; any violation of § 946.41(1) is at least a
Class A misdemeanor. § 946.41(1). Thus the legislature has
indicated that it finds resistance or obstruction of an officer
to be a serious matter regardless of the underlying
circumstances.
31
No. 2014AP304-CR
circumstance of hot pursuit of a fleeing suspect who had
committed jailable offenses. The deputy had probable cause to
believe that Weber had committed two jailable offenses,
immediately pursued Weber, and performed a limited entry into
Weber's open garage for the purpose of preventing Weber's
continued flight. Under these specific circumstances, the
deputy's actions were constitutionally reasonable. Accordingly,
we reverse the decision of the court of appeals.
By the Court.—The decision of the court of appeals is
reversed.
32
No. 2014AP304-CR.dk
¶46 DANIEL KELLY, J. (concurring). I write separately
because I do not think there is probable cause to believe Mr.
Weber committed jailable offenses before entering his garage, a
conclusion that precludes deployment of the "hot pursuit"
doctrine. I join the lead opinion's result, however, because
there is a separate, and constitutionally-sufficient, basis for
it.
¶47 Our task in this case is determining whether Deputy
Dorshorst had the authority to pursue Richard L. Weber into his
garage, and subsequently arrest and search him, without a
warrant. Mr. Weber says the Wisconsin and United States
Constitutions protected him from the deputy's warrantless
intrusion (and, consequently, the search and arrest). The
State, on the other hand, says Deputy Dorshorst was in hot
pursuit of an individual who had committed two jailable
offenses, and so was relieved of the obligation of obtaining a
warrant before entering the garage and executing the arrest and
search. I will address each of those asserted offenses
separately, and then consider an alternative basis for Deputy
Dorshorst's constitutionally-permissible entry into Mr. Weber's
garage.
I
¶48 There is no evidence that, before Mr. Weber entered
his garage, Deputy Dorshorst thought he was in hot pursuit of
someone who had committed a jailable offense.1 Instead, the
1
The lead opinion's explanation of the "hot pursuit"
doctrine is well-stated, and needs no further treatment here.
1
No. 2014AP304-CR.dk
evidence demonstrates only that he was intent on performing a
traffic stop. That's what he told dispatch when he followed Mr.
Weber into his driveway. That's also what he told Mr. Weber
after he apprehended him. And there is no indication a
different or additional rationale made its way into the report
Deputy Dorshorst ultimately prepared.2 Nor was there any
admissible evidence at the suppression hearing to suggest a
different reason for entering Mr. Weber's garage.
¶49 But we don't require that a law enforcement officer
have in mind, at the time he enters someone's home, a
constitutionally-permissible reason for doing so. All we
require is that the objective circumstances at the time could
bring to mind a constitutionally-permissible basis for entry.3
Although this standard invites post-hoc rationalizing of a law
enforcement officer's intrusion into Fourth Amendment-protected
spaces, we could hardly operate without such retrospective
analyses. It would be patently unreasonable to task a law
enforcement officer with the responsibility of being consciously
aware, minute by minute, of every possible constitutional basis
for the next step he takes in the discharge of his duties. We
2
If Deputy Dorshorst had recorded such additional or
different rationale in his report, I suspect it would have been
offered at the suppression hearing to help him refresh his
recollection of why he entered Mr. Weber's garage.
3
"[W]hen an officer's Fourth Amendment search and seizure
conduct is supported by an objectively ascertainable basis for
probable cause or reasonable suspicion, the police conduct meets
the Fourth Amendment's requirement of reasonableness, thereby
causing subjective motivations to be of little concern." State
v. Kramer, 2009 WI 14, ¶27, 315 Wis. 2d 414, 759 N.W.2d 598.
2
No. 2014AP304-CR.dk
expect him to follow the training he receives in constitutional
requirements, but when he executes a traffic stop it is also
reasonable to expect he will concentrate entirely on the
functional task at hand, while simultaneously minimizing risks
to the person of interest, the immediately surrounding
community, and himself.
¶50 So, the State properly invites us to go to the record
and consider the facts of this case like a slow-motion review of
a football play. Having received such an invitation, we would
be remiss if our analysis was less than precise, or we allowed
factual nuances to escape our attention.
A
¶51 The constitutional dimension of Deputy Dorshorst's
interaction with Mr. Weber centers on the garage's threshold:
The legitimacy of what occurred beyond it depends on what
occurred before it. Therefore, I will first address the facts
as they transpired up to the point that Mr. Weber's car crossed
the garage's threshold, and determine whether they describe
probable cause to believe he committed a jailable offense.
¶52 On April 20, 2012, Deputy Dorshorst was driving behind
Mr. Weber as they were both traveling northbound on County
Highway E in the town of Arpin. Deputy Dorshorst noticed that
Mr. Weber's high-mounted brake light was not functioning
properly, and so decided to initiate a traffic stop. Deputy
Dorshorst testified that "I activated my emergency lights and he
was turning into his driveway" off of County Highway E. The
district attorney asked Deputy Dorshorst to clarify where he was
3
No. 2014AP304-CR.dk
in relation to Mr. Weber when he activated his emergency lights.
His response was that "he was probably when I activated my
emergency lights maybe 100 feet prior to his driveway." Mr.
Weber "continued down his driveway and into his garage." Deputy
Dorshorst followed Mr. Weber into his driveway, and stopped
outside the garage approximately fifteen to twenty feet behind
Mr. Weber's car (which at that point was parked inside the
garage). During this period of time, Deputy Dorshorst was
contacting dispatch to notify the station he was initiating a
traffic stop. Neither Deputy Dorshorst nor Mr. Weber had, at
that point, exited their cars.
¶53 This is the extent of the facts, up to the point Mr.
Weber parked his car in his garage, of which we have been
apprised. The State finds in these few, bare facts probable
cause to believe Mr. Weber violated Wis. Stat. § 346.04(2t)
(2011–12).4 Because violation of that statute carries a
potential jail sentence, the State asserts the "hot pursuit"
doctrine to justify Deputy Dorshorst's decision to enter Mr.
Weber's garage without a warrant.
¶54 If the State is right, if there really is probable
cause to believe this offense occurred, then it is also right
4
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
This statute commands that "[n]o operator of a vehicle,
after having received a visible or audible signal to stop his or
her vehicle from a traffic officer, or marked police vehicle,
shall knowingly resist the traffic officer by failing to stop
his or her vehicle as promptly as safety reasonably permits."
Wis. Stat. § 346.04(2t).
4
No. 2014AP304-CR.dk
that the "hot pursuit" doctrine allowed Deputy Dorshorst to
enter the garage and conduct the search and arrest of Mr. Weber.
State v. Ferguson, 2009 WI 50, ¶¶26–30, 317 Wis. 2d 586, 767
N.W.2d 187 (holding that hot pursuit may exist where an
individual has committed a "jailable offense"). But this record
discloses no probable cause to believe Mr. Weber violated Wis.
Stat. § 346.04(2t).
¶55 The lead opinion correctly notes that "probable cause"
is not a terribly high standard. All one needs is evidence
"sufficient to warrant a reasonable person to conclude that the
defendant . . . committed or [was] in the process of committing
an offense." State v. Blatterman, 2015 WI 46, ¶35, 362
Wis. 2d 138, 864 N.W.2d 26 (quoting State v. Richardson, 156
Wis. 2d 128, 148, 456 N.W.2d 830 (1990)). Here, that quantum of
evidence must show that Mr. Weber:
1. Operated a vehicle;
2. Received a visible signal to stop his vehicle
from a traffic officer or marked police vehicle;
3. Failed to stop his vehicle as promptly as safety
reasonably permitted; and
4. Knowingly resisted the traffic officer by failing
to stop his vehicle as required.
Wis. Stat. § 346.04(2t).
¶56 Mr. Weber does not contest the sufficiency of evidence
to meet elements one through three, and the record confirms
their satisfaction. Deputy Dorshorst observed Mr. Weber driving
his car on a public highway, and followed him until he parked
his car in the garage. There, Deputy Dorshorst observed Mr.
5
No. 2014AP304-CR.dk
Weber exit the vehicle. Thus, we know Mr. Weber was operating
the vehicle. As to element two, Deputy Dorshorst testified,
without contradiction, that he activated his emergency lights
while behind Mr. Weber on County Highway E, and that they were
still on when both vehicles came to rest. The third element is
a closer call, but the evidence appears sufficient to support
it. Although it is difficult to know whether Mr. Weber could
have safely and reasonably stopped his vehicle 100 feet after
Deputy Dorshorst activated his emergency lights, we do know he
was able to slow enough to enter his driveway within that space.
And if that is true, then it must also be true that he could
have stopped in the driveway. That is, it was not reasonably
necessary for him to drive into his garage.
¶57 But that still leaves the fourth element. There is no
probable cause to believe Mr. Weber violated this statute unless
there is evidence that the failure to stop his vehicle on either
the county highway or his driveway would lead "a reasonable
person to conclude" Mr. Weber was knowingly resisting Deputy
Dorshorst. On this, the record is silent.
¶58 It is certainly true that we do not need to wait until
Mr. Weber announces he is intentionally resisting Deputy
Dorshorst before we find this element satisfied. We may infer
the intent to resist from conduct. State v. Stewart, 143 Wis.
2d 28, 35, 420 N.W.2d 44 (1988). However, his conduct in
relation to this element is unremarkable. So completely
unremarkable, in fact, that it compels me to depart from the
lead opinion.
6
No. 2014AP304-CR.dk
¶59 Maybe Mr. Weber could have stopped his car while still
on County Highway E. He certainly could have stopped on the
driveway. But was he knowingly resisting Deputy Dorshorst by
parking in the garage instead of the driveway? Of course not.
Deputy Dorshorst knew how far Mr. Weber could possibly go with
his car——the garage. And after reviewing the record, so do
we . . . unless we are to assume Mr. Weber was not planning to
stop at the back wall. There is nothing, however, to suggest
this. So we all know there was a sure and certain end to Mr.
Weber's travels on the 20th of April, and whether it was the
driveway or the garage, the difference is a matter of feet.
Because Deputy Dorshorst knew the stopping point of Mr. Weber's
car would be almost immediately in front of him, this gives us
nothing at all from which he (or we) may conclude an intent to
resist. Probable cause may not be a rigorous standard, but it
still requires some plausible evidence. These facts are simply
incapable of indicating the presence of the fourth element.
¶60 This is no small quibble. If these unremarkable facts
satisfy the State's admittedly light burden, it is difficult to
imagine a traffic stop that would not provide probable cause to
believe a jailable offense has occurred. Traffic stops normally
take place on public highways, which means there is no sure and
certain place that a law enforcement officer knows the person
will stop. The highway environment is much less controlled than
here, the variables much greater. Traffic, weather, road
conditions, road construction activity, lighting, all will play
into when and where the motorist might decide he can stop as
7
No. 2014AP304-CR.dk
"promptly as safety reasonably permit[s]." And that is before
we even consider how quickly the motorist might recognize he is
being signaled to stop. This means the distance a law
enforcement officer might follow a driver before he pulls over
can vary significantly. In the normal course of events, the
officer assuredly cannot accurately predict, within a matter of
feet, where the vehicle will come to rest (as he could here).
So, unless an observant driver immediately slams on his brakes
and comes to a screeching halt when he sees a patrol car's
emergency lights, an officer who wants to search the car or
arrest the driver will always be able to plausibly say the
motorist could have stopped a few feet earlier.
¶61 On that last point, we would do well to keep in mind
that the State is asserting there was "probable cause," not just
"reasonable suspicion" to believe Mr. Weber violated this
statute. That has consequences. Probable cause regarding a
jailable offense doesn't just give law enforcement officers a
basis for asserting "hot pursuit." It also authorizes them to
arrest motorists and conduct warrantless searches of their
persons and vehicles. Maryland v. Dyson, 527 U.S. 465 (1999)
(per curiam) (stating that probable cause is sufficient for
warrantless search under the "automobile exception" to the
Fourth Amendment); State v. Paszek, 50 Wis. 2d 619, 624–25, 184
N.W.2d 836 (1971) (holding probable cause sufficient for
arrest). Under the State's reading, this statute is so powerful
it can transmogrify the most minor imaginable equipment
malfunction——a burnt-out light——into permission for a
8
No. 2014AP304-CR.dk
warrantless arrest and search. In finding probable cause here,
we are telling Wisconsin's motorists that their protection from
warrantless searches and arrests incident to traffic stops is
not our constitution, but instead law enforcement officers'
discretion. It cannot be that easy to elide constitutional
safeguards. Not only does this record not support probable
cause with respect to this statute, it must not.
¶62 The facts the State offers us reveal no probable cause
to believe Mr. Weber violated Wis. Stat. § 346.04(2t). As a
result, the State may not use the "hot pursuit" doctrine to
justify Deputy Dorshorst's decision to enter Mr. Weber's garage
without a warrant——at least with respect to this statute.
B
¶63 There is still, of course, the State's argument that
Mr. Weber committed a second jailable offense capable of
supporting its "hot pursuit" theory. If we include Mr. Weber's
actions after entering his garage, the State says there was
probable cause to believe Mr. Weber was resisting a law
enforcement officer in violation of Wis. Stat. § 946.41(1)
(another jailable offense). So now we extend the temporal
horizon to reach those facts in determining whether they excuse
the need for a warrant.
¶64 When the replay of events paused to conduct the
analysis above, Mr. Weber was in his car in his garage. Deputy
Dorshorst was in his patrol car on the driveway, just outside
the garage with his emergency lights activated. And the only
constitutionally-relevant facts ascertainable at that point were
9
No. 2014AP304-CR.dk
that one of Mr. Weber's brake lights was out, and he had driven
into the garage instead of stopping on the driveway. As already
discussed, these facts support a traffic stop, but nothing more.
The replay now picks up from there, and we learn the following.
¶65 Mr. Weber and Deputy Dorshorst exited their vehicles
at about the same time. Mr. Weber started moving towards the
door from the attached garage into his house. Simultaneously,
Deputy Dorshorst moved towards the front of his patrol car in an
effort to keep Mr. Weber in view. When Mr. Weber started
walking up the stairs to the house door, Deputy Dorshorst told
Mr. Weber he "needed to speak with him." When Mr. Weber did not
stop, Deputy Dorshorst entered the garage and again told him he
"needed to speak with him." Because this is the point at which
Deputy Dorshorst passed into Fourth Amendment-protected space,5
the replay must pause again so we can determine whether the
objectively ascertainable facts at that point plausibly suggest
a violation of Wis. Stat. § 946.41(1).6
5
Technically, we count an attached garage as part of the
"curtilage" of Mr. Weber's home. The curtilage comprises "the
land and buildings immediately surrounding a house." State v.
Martwick, 2000 WI 5, ¶1 n.2, 231 Wis. 2d 801, 604 N.W.2d 552
(citing United States v. Dunn, 480 U.S. 294, 300 (1987)). For
purposes of Fourth Amendment analysis, we treat the curtilage as
identical to the house itself. State v. Dumstrey, 2016 WI 3,
¶23, 366 Wis. 2d 64, 873 N.W.2d 502.
6
A person violates this statute when he "knowingly resists
or obstructs an officer while such officer is doing any act in
an official capacity and with lawful authority . . . ." Wis.
Stat. § 946.41(1).
10
No. 2014AP304-CR.dk
¶66 If the "hot pursuit" exception to the warrant
requirement is to get Deputy Dorshorst inside the garage without
a constitutional violation, there must be probable cause to
believe Mr. Weber committed a jailable offense before he entered
the garage. "We thus conclude that a suspect may not defeat an
arrest which has been set in motion in a public place, and is
therefore proper under Watson,7 by the expedient of escaping to a
private place." United States v. Santana, 427 U.S. 38, 43
(1976); see also State v. Smith, 131 Wis. 2d 220, 232, 388
N.W.2d 601 (1986) (quoting Welsh v. Wisconsin, 466 U.S. 740, 753
(1984)) (stating that hot pursuit occurs "where there is an
'immediate or continuous pursuit of [a suspect] from the scene
of a crime'"). This makes sense——the entire purpose behind this
exception is to prevent an offender's retreat into Fourth
Amendment-protected space from frustrating an arrest that
started outside that space.
¶67 So the problem with the State's argument is that the
jailable offense must have commenced before Mr. Weber reached
his garage. As discussed above, the objectively ascertainable
facts by that point only supported Deputy Dorshorst's pursuit of
Mr. Weber for a bad brake light. Driving with a dysfunctional
light is not a jailable offense. Thus, nothing happened before
Mr. Weber entered his garage capable of supporting a "hot
pursuit" argument.
7
United States v. Watson, 423 U.S. 411 (1976) (finding
warrantless arrest of an individual in a public place upon
probable cause does not violate the Fourth Amendment).
11
No. 2014AP304-CR.dk
¶68 Even if we could consider the facts transpiring after
Mr. Weber entered the garage, there is nothing to support a
reasonable belief that a jailable offense had occurred, or was
in the process of happening. Before Deputy Dorshorst entered
the garage, he said he told Mr. Weber that he "needed to speak
with him." Mr. Weber, however, continued moving towards the
door into his house. These additional facts, according to the
State, are supposed to provide probable cause to believe Mr.
Weber was knowingly resisting or obstructing an officer. To
make such a showing, the State must demonstrate that Deputy
Dorshorst was acting in an official capacity, that he exercised
lawful authority, and that Mr. Weber knowingly resisted or
obstructed what Deputy Dorshorst was lawfully trying to
accomplish in his official capacity.
¶69 The State says the action with which Mr. Weber
interfered was his refusal to stop when Deputy Dorshorst told
him he "needed to speak with him." This depends, in part, on
what was meant by the deputy's statement. "I need to speak with
you," when considered in isolation, is of dubious import. It
could potentially be understood as a request to speak
immediately, a command that Mr. Weber speak with him at some
point, or a command that Mr. Weber speak with him immediately.
But when a deputy sheriff makes this statement when his patrol
car is just a few feet away with its emergency lights flashing,
the only reasonable understanding is that one must immediately
cease whatever one is doing and give him your undivided
attention.
12
No. 2014AP304-CR.dk
¶70 Deputy Dorshorst intended his statement to restrict
Mr. Weber's freedom to move about in his home. That is, he
intended his words to effect a seizure of Mr. Weber just as
surely as if he were physically restraining him. And it is
reasonable to understand those words as such. Mr. Weber's
failure to understand it that way (or heed the command) led
Deputy Dorshorst to follow his words into the garage, and
accomplish physically what his words could not.
¶71 Thus, the question is whether Deputy Dorshorst had
lawful authority to command Mr. Weber to stop what he was doing
and submit to questioning. The State's argument simply assumes
we should answer that question affirmatively, but it provided no
adequate explanation. This is a significant shortcoming; if, by
nothing more than his command, an officer has the lawful
authority to freeze a person in place such that the failure to
comply justifies warrantless entry of his home, then the Fourth
Amendment is a false promise.8 An officer could manufacture a
basis for crossing into protected space simply by commanding the
occupant to come out. Failure to comply would justify an
incursion to fetch him. This we do not tolerate. See generally
City of Sheboygan v. Cesar, 2010 WI App 170, ¶18, 330
8
Sutterfield v. City of Milwaukee, 751 F.3d 542, 550 (7th
Cir. 2014) ("At the core of the privacy protected by the Fourth
Amendment is the right to be let alone in one's home."); Kylio
v. United States, 533 U.S. 27, 31 (2001) ("'At the very core' of
the Fourth Amendment 'stands the right of a man to retreat into
his own home and there be free from unreasonable governmental
intrusion.'" (quoting Silverman v. United States, 365 U.S. 505,
511 (1961))).
13
No. 2014AP304-CR.dk
Wis. 2d 760, 796 N.W.2d 429 (noting that people inside their
homes may "ignore [the officers'] requests that [they] cooperate
and choose not to speak with them," though the officers could
still seek a warrant).
¶72 The State's argument doesn't hit true because it does
not explain why Deputy Dorshorst can lawfully command a man in
his own home to do anything under these circumstances. Without
that, there can be no violation of Wis. Stat. § 946.41(1). And
in the absence of a violation, the State cannot argue Deputy
Dorshorst was in hot pursuit when he entered Mr. Weber's garage
(even if we were to consider Mr. Weber's conduct after he
entered his garage, which we may not do). If this was the end
of the analysis, I would have to conclude that Deputy Dorshorst
unconstitutionally entered Mr. Weber's garage. But it is not
the end.
II
¶73 The reason Deputy Dorshorst could enter Mr. Weber's
garage without violating constitutional guarantees is that Mr.
Weber consented to his entry. Warrantless searches and seizures
are not "unreasonable" within the meaning of the Fourth
Amendment when the suspect consents. State v. Artic, 2010
WI 83, ¶29, 327 Wis. 2d 382, 786 N.W.2d 430.
¶74 When we consider this exception to the warrant
requirement, we first look for words, gestures, or conduct that
one can reasonably understand to manifest consent to the search.
State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998).
14
No. 2014AP304-CR.dk
We then examine the facts to ensure the suspect gave consent
voluntarily——that is, "in the absence of duress or coercion,
either express or implied." Id.
¶75 Here, Mr. Weber gave Deputy Dorshorst consent to enter
his garage for the purpose of completing the traffic stop that
had commenced on a public highway. As discussed above, Deputy
Dorshorst initiated the traffic stop while both he and Mr. Weber
were on County Highway E. Mr. Weber then slowed and pulled into
his driveway. He did not, however, stop there. He instead
pulled into his garage.
¶76 Had Mr. Weber chosen to stop in his driveway, which he
clearly could have done, this case would not be before us.
Deputy Dorshorst would have approached the car, spoken with Mr.
Weber, observed the indicia of intoxication, and the remaining
events would likely have unfolded as they actually did. But
with one exception——it all would have happened outside
constitutionally-protected space, and the sanctity of Mr.
Weber's home would have remained intact.
¶77 The reason the events at issue took place in Mr.
Weber's garage is because that is where Mr. Weber chose for them
to take place. He was, without question, obligated to stop so
that Deputy Dorshorst could investigate the defective brake
light. State v. Gaulrapp, 207 Wis. 2d 600, 605, 558 N.W.2d 696
(1996) ("A traffic stop is generally reasonable if the officers
have probable cause to believe that a traffic violation has
occurred, or have grounds to reasonably suspect a violation
has been or will be committed." (citation omitted)); see also
15
No. 2014AP304-CR.dk
Terry v. Ohio, 392 U.S. 1, 22 (1968) ("[A] police officer may in
appropriate circumstances and in an appropriate manner approach
a person for purposes of investigating possibly criminal
behavior even though there is no probable cause to make an
arrest"). That obligation attached when Deputy Dorshorst
activated his emergency lights, and it persisted thereafter
until the lawful incidents to a traffic stop were complete.
¶78 So as Mr. Weber continued from his driveway into his
garage, he was operating under a continuing obligation to allow
Deputy Dorshorst to complete the traffic stop that had commenced
on County Highway E. Entering the garage did not terminate the
obligation——it followed him inside. And because we presume that
Wisconsin's citizens know the law,9 we can conclude that Mr.
Weber knew he was under this obligation.
¶79 Knowing his obligation, Mr. Weber chose where he would
stop, and in doing so also chose where Deputy Dorshorst would
perform his duties. His conduct would communicate to a
reasonable observer that he preferred to complete the traffic
stop in his garage, rather than on the driveway. Having
extended that invitation, Mr. Weber may not fault Deputy
Dorshorst for accepting it.
¶80 The next step in the "consent" analysis is to
determine whether Mr. Weber was under any duress or coercion
9
State v. Neumann, 2013 WI 58, ¶50 n.29, 348 Wis. 2d 455,
832 N.W.2d 560. This is the legal maxim of ignorantia juris
neminem excusat, or "ignorance of the law excuses no one."
Ignorantia Juris Non Excusat, Black's Law Dictionary, (10th ed.
2014).
16
No. 2014AP304-CR.dk
(whether express or implied) to provide that consent. There are
no facts of record to indicate he might have been. Indeed,
quite the opposite is true. To the extent there was any duress
or coercion in these facts, it was to prevent Mr. Weber from
offering this conduct-based invitation to Deputy Dorshorst. The
patrol car's emergency lights were an unequivocal command to
submit to a traffic stop. Mr. Weber could have complied by
stopping in his driveway. To the extent the emergency lights
exerted coercion or duress, they certainly weren't encouraging
Mr. Weber to proceed into his garage. Thus, Mr. Weber's consent
was voluntary.
¶81 Consequently, it was not constitutionally unreasonable
for Deputy Dorshorst to enter Mr. Weber's garage for the purpose
of performing the traffic stop that had commenced on a public
highway. A law enforcement officer may, during a lawful traffic
stop, detain everyone in the vehicle. Brendlin v. California,
551 U.S. 249, 255 (2007) ("The law is settled that in Fourth
Amendment terms a traffic stop entails a seizure of the driver
'even though the purpose of the stop is limited and the
resulting detention quite brief.'" (quoting Delaware v. Prouse,
440 U.S. 648, 653 (1979))). The scope and duration of the stop
are limited by the purpose for effecting the stop: "Like a Terry
stop, the tolerable duration of police inquiries in the traffic-
stop context is determined by the seizure's 'mission'——to
address the traffic violation that warranted the stop, and
attend to related safety concerns." Rodriguez v. United States,
135 S. Ct. 1609, 1614 (2015) (citations omitted). Because of
17
No. 2014AP304-CR.dk
the invitation Mr. Weber extended, Deputy Dorshorst was
authorized to do all of this in the garage.
¶82 It is at this point that I rejoin the lead opinion.
My need to write separately stemmed only from the State's
constitutionally-insufficient (in my view) basis for justifying
Deputy Dorshorst's presence in the garage. Because he did, in
fact, have that authority (by virtue of the conduct-based
invitation), he also had the lawful authority to command Mr.
Weber to stop moving towards the house door so that he could
complete the traffic stop. When Mr. Weber failed to comply,
Deputy Dorshorst lawfully and appropriately restrained Mr.
Weber's further progress. The discovery of incriminating
evidence appropriately followed, as well as the conviction. For
that reason, I join the lead opinion's conclusion that the court
of appeals must be reversed.
18
No. 2014AP304-CR.awb
¶83 ANN WALSH BRADLEY, J. (dissenting). Facts shape the
contours of our constitutional guarantees. By lowering the
standard to meet the facts in this case, the lead opinion would
erode the constitutional rights of us all.1 It sets a trajectory
where, bit by bit, almost unnoticed, we may awaken one day to
discover that the freedoms for which so many have fought and
sacrificed have been severely curtailed.
¶84 Among those freedoms is the sanctity of the home and
its curtilage. "It is axiomatic that the 'physical entry of the
home is the chief evil against which the wording of the Fourth
Amendment is directed.'" Welsh v. Wisconsin, 466 U.S. 740, 748
1
I use the term "lead" opinion for two reasons. First, I
am concerned that without this cue, the reader may mistakenly
believe that the lead opinion has any precedential value.
Although four justices join in the mandate of the opinion to
reverse the court of appeals (Zeigler, J., joined by Roggensack,
C.J., Gableman, J. and Kelly, J.), it represents the reasoning
of only three justices (Ziegler, J., joined by Roggensack, C.J.,
and Gableman, J.). Justice Kelly joined in the mandate, but
would reverse on other grounds.
Although set forth in three separate opinions, four
justices——a majority of the court——disagree with the reasoning
of the lead opinion. Contrary to the lead opinion, four
justices determine that there was neither probable cause nor
exigent circumstances here (Abrahamson, J., Ann Walsh Bradley,
J., Rebecca Grassl Bradley, J., and Kelly, J.).
Second, I use the term "lead" opinion because although it
is undefined in our Internal Operating Procedures, its use here
is consistent with past description. We have said "that a lead
opinion is one that states (and agrees with) the mandate of a
majority of the justices, but represents the reasoning of less
than a majority of the participating justices." State v. Lynch,
2016 WI 66, ¶143, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann
Walsh Bradley, J.J., concurring in part, dissenting in part)
(citing Hoffer Props., LLC v. State, Dep't of Transp., 2016 WI
5, 366 Wis. 2d 372, 874 N.W.2d 533).
1
No. 2014AP304-CR.awb
(1984) (citing United States v. United States Dist. Ct., 407
U.S. 297, 313 (1972)).
¶85 Ignoring that the State has the burden to overcome the
presumption of unreasonableness that attaches to warrantless
physical entries of the home, the lead opinion determines that
Deputy Dorshorst's warrantless entry into Richard Weber's garage
and his subsequent arrest met the constitutional standard. It
posits that Dorshorst was "justified by the exigent circumstance
of hot pursuit of a fleeing suspect who had committed jailable
offenses." Lead op., ¶3.
¶86 I agree with both Justice Daniel Kelly and Justice
Rebecca Grassl Bradley that there was no probable cause to
believe that Weber committed a jailable offense. Additionally,
I agree that under no reasonable view of the facts of this case
was there an emergency justifying an exception to the Fourth
Amendment's warrant requirement. The alleged "hot pursuit"
occurred for no more than a few seconds and emanated from a
routine traffic violation, a mere non-jailable civil offense.
¶87 The lead opinion further errs by failing to apply the
proper analysis for determining whether exigent circumstances
justify warrantless entry into a suspect's home. Instead, it
advances a per se rule that contravenes United States Supreme
Court precedent.
¶88 Contrary to the lead opinion, and like a unanimous
court of appeals, I conclude that the State failed to overcome
the presumption of unreasonableness that attaches to a
warrantless entry into a constitutionally protected area. Here,
2
No. 2014AP304-CR.awb
the government's warrantless, non-consensual intrusion into
Weber's garage and the resulting search and seizure violated the
Fourth Amendment of the United States Constitution.
Accordingly, I respectfully dissent.
I
¶89 During the daylight hours of April 20, 2012, Deputy
Dorshorst noticed that Weber's vehicle had a defective high-
mounted brake lamp.2 He also observed Weber's vehicle weave in
its lane, deviating over the fog line. The State concedes that
Dorshorst did not have probable cause to initiate a traffic stop
based upon the lane deviation, but instead asserts that he
initiated the stop because of Weber's defective high-mounted
brake lamp.
¶90 One hundred feet before Weber turned into his
driveway, Deputy Dorshorst activated his emergency lights, but
2
A toxicology report (Exhibit 1) was offered and received
into the record at the preliminary hearing. It provides that
blood was "recovered from Richard L. Weber on April 20, 2012 at
1955 hours."
Judicial notice may be taken of matters of common
knowledge, such as the time of sunset on April 20. See, e.g.,
State ex rel. Schilling v. Baird, 65 Wis. 2d 394, 399, 222
N.W.2d 666 (1974). On April 20, 2012, in the city of Arpin,
Wood County, sunset began at 7:51 p.m and civil twilight ended
at 8:21 p.m. See Sunrise Sunset Calendar, Wisconsin Locations,
http://www.sunrisesunset.com/usa/Wisconsin.asp (last visited
Nov. 16, 2016).
Given the intervening events that occurred from the time
Dorshorst initiated the traffic stop to when he placed Weber
under arrest, it is reasonable to conclude that Dorshorst
initiated the traffic stop during daylight, well before Weber's
blood was drawn at 7:55 p.m.
3
No. 2014AP304-CR.awb
did not turn on the siren in his squad car. The record does not
reflect any of the usual indicia of fleeing, such as an increase
in speed, a furtive glance back at the deputy or running from
the vehicle. Instead, the record reflects that Weber continued
to drive for a few seconds, turned into his driveway and entered
his attached garage.
¶91 The one bit of testimony the State attempted to offer
regarding an indicia of fleeing was excluded as speculative.
Without any foundation, Deputy Dorshorst testified that "it
seemed to me that he was attempting to evade me." Defense
counsel immediately objected and the circuit court agreed,
concluding that the testimony was speculative.
¶92 Leaving his emergency lights on, Deputy Dorshorst
parked his squad car in Weber's driveway. He then got out of
his squad car and saw Weber walking up the steps in his attached
garage leading to the house door. Dorshorst followed him.
¶93 According to Deputy Dorshorst's subsequent testimony,
he "was just entering the garage" when he told Weber he needed
to speak to him. Weber did not respond, but continued up the
steps within his garage toward the house door. While in the
garage Dorshorst "secured [Weber's] arm" as Weber was "just
inside his [house's] door" at the top of the steps. Deputy
Dorshorst again advised Weber that he needed to talk to him.
¶94 Deputy Dorshorst testified that he then told Weber
that "I needed to talk to him and the reason why I was stopping
him was for his high mounted brake lamp." Dorshorst asked Weber
4
No. 2014AP304-CR.awb
"to come out to his car so that I could point out exactly the
reason for the stop and which light was defective."
¶95 After Dorshorst made contact with Weber he observed
that Weber had slow, slurred speech, a strong odor of
intoxicants, and glassy, bloodshot eyes. During their
conversation, Weber admitted that he had been drinking.
¶96 Deputy Dorshorst testified that had he not entered
Weber's garage he "would still have attempted to make contact
with him." According to Dorshorst, "I would have still
attempted either way knocking on his door or I would have
attempted other means. I wouldn't have——I would not have just
left." It is unclear from the record whether the "other means"
referred to obtaining a search warrant.
¶97 Weber was never cited for the defective high-mounted
brake lamp and the bit of testimony the State attempted to offer
regarding an indicia of fleeing was excluded as speculative.
Nevertheless, he was charged with resisting an officer by
fleeing and other offenses. Ultimately, he pleaded no contest
to operating with a prohibited alcohol concentration as a 9th or
subsequent offense, resisting an officer and possession of
marijuana.
II
¶98 As observed above, "(i)t is axiomatic that the
'physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed.'" Welsh, 466 U.S.
at 748 (citing United States Dist. Ct., 407 U.S. at 313).
Accordingly, it is a basic principle of Fourth Amendment law
5
No. 2014AP304-CR.awb
that warrantless searches and seizures inside a home are
"presumptively unreasonable." Id. at 749.
¶99 Under the Fourth Amendment, an attached garage has the
same protections as the home. Florida v. Jardines, 133 S. Ct.
1409, 1414 (2013) (the curtilage of the house "enjoys protection
as part of the home itself."); see also State v. Dumstrey, 2016
WI 3, ¶35, 366 Wis. 2d 64, 873 N.W.2d 502 (courts have
consistently concluded that a single family home's attached
garage constitutes curtilage). This basic premise is not
disputed by the parties because the State concedes that Weber's
attached garage is curtilage.
¶100 The State has the burden to demonstrate both probable
cause and "exigent circumstances that overcome the presumption
of unreasonableness that attaches to all warrantless home
entries." Welch, 466 U.S. at 750. I examine first whether the
State has met its burden of demonstrating that Deputy Dorshorst
had probable cause to arrest Weber for a jailable offense.
¶101 Probable cause exists where "the totality of the
circumstances within the arresting officer's knowledge at the
time of the arrest would lead a reasonable police officer to
believe that the defendant probably committed a crime." State
v. Koch, 175 Wis. 2d 684, 701, 499 N.W.2d 152 (1993). The
totality of the circumstances that constitute probable cause to
arrest "must be measured by the facts of the particular case."
State v. Paszek, 50 Wis. 2d 619, 625, 184 N.W.2d 836 (1971).
¶102 The lead opinion concludes that "at the time he
entered Weber's garage, Deputy Dorshorst had probable cause to
6
No. 2014AP304-CR.awb
arrest Weber for violations of Wis. Stat. §§ 346.04(2t)
[resisting by fleeing] and 946.41(1) [obstructing]." Lead op.,
¶23. Jailable offenses of resisting and obstructing both
require a suspect to "knowingly resist" an officer.3 According
to the lead opinion, it is reasonable to conclude that "Weber
was likely feigning ignorance and thus fleeing" and that "most
individuals would have responded to Deputy Dorshorst's obvious
attempts to catch his attention." Lead op., ¶23. But this is
the very type of assertion that the circuit court deemed
inadmissible because it was speculative. Any assertion that
Weber on that day knew he had a duty to stop and intentionally
chose to comply with that obligation by pulling into his garage
is likewise speculative.
¶103 The lead opinion is left with only one fact that is
relevant to a determination of whether Deputy Dorshorst had
probable cause to arrest Weber for "knowingly" resisting an
officer. This is the fact that for a few seconds "Deputy
Dorshorst activated his emergency lights while driving behind
Weber's vehicle but Weber failed to pull over." Lead op., ¶23.
3
Wis. Stat. § 346.04(2t) provides: "No operator of a
vehicle, after having received a visible or audible signal to
stop his or her vehicle from a traffic officer or marked police
vehicle, shall knowingly resist the traffic officer by failing
to stop his or her vehicle as promptly as safety reasonably
permits."
Wis. Stat. § 946.41(1) provides: " . . . whoever knowingly
resists or obstructs and officer while such officer is doing any
act in an official capacity and with lawful authority is guilty
of a Class A misdemeanor."
7
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¶104 Although Weber does not dispute that Deputy Dorshorst
activated his emergency lights, he does dispute whether he saw
those lights in the seconds before he turned into his driveway
and parked his vehicle. Thus, when Weber disputes that he
"knowingly" resisted an officer, he is in fact disputing that he
received a visible signal or failed to stop promptly.
¶105 The record reflects that Deputy Dorshorst activated
his emergency lights, but he did so only a few seconds before
Weber turned into his driveway and parked his vehicle. Turning
on the siren in his squad car may have given credence to the
lead opinion’s speculation about Weber’s intent, but there is no
dispute that Deputy Dorshorst failed to turn it on.
¶106 Additionally, the record does not reflect any of the
usual indicia of fleeing, such as an increase in speed, a
furtive glance back at the deputy or running from the vehicle.
The one bit of testimony the state attempted to offer regarding
Weber’s intent was excluded as speculative.
¶107 Deputy Dorshorst did not enter the garage because
Weber was fleeing from the scene of two jailable offenses.
Rather, he followed Weber into his garage because of a minor
traffic violation. According to Deputy Dorshorst's own
testimony, "the reason why I was stopping him was for his high
mounted brake lamp."
¶108 When Weber did not respond to Deputy Dorshorst's
request to talk, Dorshorst followed Weber up the stairs of his
attached garage and grabbed Weber's arm as he was just inside
his house door. He then told Weber "to come out to his car so
8
No. 2014AP304-CR.awb
that I could point out exactly the reason for the stop and which
light was defective."
¶109 There are no additional facts in the record supporting
a reason for the stop other than the defective high mounted
brake lamp. Thus, the State has not met its burden of
establishing that Deputy Dorshorst had probable cause to arrest
Weber for a knowing violation of either Wis. Stat. §§ 346.04(2t)
(resisting) or 946.41(1) (obstructing).
¶110 Without probable cause to arrest for resisting or
obstructing an officer, the government's interest at the time
Deputy Dorshorst entered Weber's home without a warrant was for
a minor traffic violation. This minor offense does not justify
"the chief evil" of entry into the home "against which the
wording of the Fourth Amendment is directed." Welsh, 466 U.S.
at 748 (citing United States Dist. Ct., 407 U.S. at 313).
III
¶111 The lead opinion's discussion of exigent circumstances
is analytically unnecessary. There is no need to reach the
issue of exigent circumstances unless as a threshold matter at
least four Justices have determined that probable cause exists.
Nevertheless, I address exigent circumstances to respond to the
assertions of the lead opinion.
¶112 The State failed to meet its burden that there were
exigent circumstances justifying Deputy Dorshort's warrantless
intrusion into Weber's home. It bears "the heavy burden of
trying to demonstrate exigent circumstances to overcome the
presumption of unreasonableness" that attaches to warrantless
9
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home entries. State v. Rodriguez, 2001 WI App 206, ¶9, 247
Wis. 2d 734, 634 N.W.2d 844 (citing Welsh, 466 U.S. at 750).
¶113 Under both Wisconsin and United States Supreme Court
jurisprudence, it is well-established that "[w]arrentless entry
is permissible only where there is urgent need to do so, coupled
with insufficient time to secure a warrant." State v. Smith,
131 Wis. 2d 220, 228, 388 N.W.2d 601 (1986) abrogated on other
grounds by State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811
N.W.2d 775; see also Missouri v. McNeely, 133 S. Ct. 1552, 1559
(2013) (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978) (a
warrantless search is potentially reasonable only when "there is
compelling need for official action and no time to secure a
warrant.")). To determine whether a law enforcement officer
faced an emergency that justified acting without a warrant,
courts examine the "totality of circumstances." McNeely, 133
S. Ct. at 1559.
¶114 The facts here cannot support a conclusion that Deputy
Dorshorst had an urgent need to act with no time to support a
warrant. For example, the facts of this case stand in stark
contrast to the facts in United States v. Santana, 427 U.S. 38
(1976), which the lead opinion relies upon as a seminal case on
the exigent circumstance of hot pursuit.
¶115 In Santana, the hot pursuit occurred when undercover
officers rushed to Santana's residence after being informed that
she had marked bills from their investigation in her possession.
Id. at 39-40. When the officers arrived, they saw Santana
standing in the doorway with a brown paper bag in her hand. Id.
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at 40. As the officers shouted "police" and displayed their
identification, Santana retreated into the vestibule of her
house. Id.
¶116 As the Santana court explained, once Santana saw the
police there was "a realistic expectation that any delay would
result in destruction of evidence." Id. at 43. Thus, in
Santana, there was both an urgent need to act and no time to
secure a warrant because delay would lead to the loss of
evidence in an undercover drug investigation.
¶117 The facts of this case could not be more different
from those in Santana. Here, Deputy Dorshorst stopped Weber for
a defective high-mounted brake lamp. In Santana, the police
were in pursuit of a suspected drug dealer. Here, there was no
evidence to destroy regardless of whether the focus of the
analysis is on a defective high-mounted brake lamp or Weber’s
alleged flight from the police. In Santana, the police had to
act immediately or evidence would be destroyed.
¶118 Any analysis of whether the State met the required
showing that Deputy Dorshorst had an urgent need to act and no
time to secure a warrant is completely absent from the lead
opinion. Why? Because under the facts of this case it would be
unable to meet the test.
¶119 Instead, the lead opinion shifts the analysis and
contends that it would be unreasonable to expect Deputy
Dorshorst to knock on Weber's front door or take the time to
obtain a warrant, rather than invade his home. Lead op., ¶40.
The lead opinion asserts that "Deputy Dorshorst would have
11
No. 2014AP304-CR.awb
needed to stop at Weber’s driveway and let Weber flee into the
residence, then call for backup, secure a perimeter around the
house so that Weber did not continue his attempts to escape law
enforcement, and obtain a warrant." Lead op., ¶40. "And then
what? Would those who support this argument have Deputy
Dorshorst knock on the door?" Lead op., ¶40.
¶120 The answer is yes, because this is both what the law
requires and what Deputy Dorshorst testified he would do.
According to Dorshorst's own testimony, had he not entered
Weber's garage he "would still have attempted to make contact
with him." He explained, "I would have still attempted either
way knocking on his door or I would have attempted other means.
I wouldn't have——I would not have just left." Attempting to
secure a warrant would not have allowed Weber to escape arrest
or conviction.
¶121 In essence, Deputy Dorshorst assumed the role of a
magistrate. "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." Welsh, 46 U.S. at 751
(quoting McDonald v. United States, 335 U.S. 451, 460 (1948)).
That is simply not possible here, when even Deputy Dorshorst
acknowledged that he could have pursued alternative routes. He
testified that had he not entered the garage he would have
knocked on the door or pursued some other means to make contact
with Weber.
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¶122 Under these facts, the State has failed to show that
Deputy Dorshorst had no time to get a warrant and that there was
an urgent need to act. Accordingly, I conclude that the State
has not met its burden of demonstrating exigent circumstances
sufficient to overcome the presumption of unreasonableness that
attaches to warrantless home entries.
IV
¶123 By advancing a per se rule that hot pursuit of a
fleeing suspect is always an exigent circumstance, the lead
opinion contravenes United States Supreme Court precedent. A
per se exception to the Fourth Amendment is contrary to the
United States Supreme Court's recent decision in McNeely, 133
S. Ct. at 1558-59. In McNeely, the Supreme Court declined to
adopt a rule that the dissipation of alcohol in the bloodstream
presents a per se exigency that justifies an exception to the
Fourth Amendment's warrant requirement for non-consensual blood
testing in drunk driving cases. Id. at 1556. Declining to
adopt a categorical rule for drunk driving investigations,
McNeely refused to "depart from a careful case-by-case
assessment of exigency . . . ." Id. at 1561.
¶124 The lead opinion would create a per se exception while
simultaneously asserting that it is doing no such thing.4 See
lead op., ¶43. Initially, it acknowledges and calls
"legitimate" the concern "that applying the hot pursuit doctrine
to uphold a warrantless entry in a case where fleeing law
4
At oral argument, the State conceded that it was seeking a
bright-line rule in this case.
13
No. 2014AP304-CR.awb
enforcement was itself the violation giving rise to the pursuit
will lead to the application of the hot pursuit doctrine in
every case involving a fleeing suspect . . .." Lead op., ¶43.
¶125 Then, in attempting to explain away the legitimacy of
the concern, the lead opinion contends that it does not support
a per se rule for four reasons: (1) the State will not always
be able to establish probable cause; (2) reasonableness is
measured in objective terms by examining the totality of the
circumstances; (3) application of the hot pursuit doctrine is
not circular because the legislature chose to make knowingly
fleeing a jailable offense; and (4) a contrary holding would
incentivize flight in every case involving a nonjailable
offense. Id.
¶126 The lead opinion's first reason fails because it
conflates probable cause with exigent circumstances. According
to the lead opinion, it is not creating a per se rule in every
case involving flight from an officer because "the State will
not always be able to establish probable cause that the suspect
was knowingly fleeing." Lead op., ¶43 (emphasis in original).
However, as set forth above, the state must separately prove
both probable cause to arrest and exigent circumstances in order
to justify warrantless entry into Weber's home. Payton v. New
York, 445 U.S. 573, 587-90 (1980). Thus, the lead opinion has
created a per se rule because in every case where an officer has
probable cause, the act of fleeing from an officer will be
considered an exigent circumstance.
14
No. 2014AP304-CR.awb
¶127 The lead opinion's second reason fails because there
is no legal support for the proposition that Dorshort's entry
was reasonable under the totality of the circumstances because
it was a limited intrusion. In recent years, the United States
Supreme Court has reaffirmed that the Fourth Amendment embodies
"a particular concern for government trespass upon the areas
('persons, houses, papers, and effects') it enumerates." United
States v. Jones, 132 S. Ct. 945, 950 (2012).
¶128 Prior to Jones, courts employed the Katz "reasonable
expectation of privacy" test in analyzing the Fourth Amendment's
protections. See Katz v. United States, 389 U.S. 347, 351
(1967) (What a person "seeks to preserve as private, even in an
area accessible to the public, may be constitutionally
protected."). However, Jones clarified that "the Katz
reasonable-expectation-of-privacy test has been added to, not
substituted for, the common-law trespassory test." Jones, 132
S. Ct. at 952.
¶129 Additionally, in Jardines, the Supreme Court further
explained that "an officer's leave to gather information is
sharply circumscribed when he steps off [public] thoroughfares
and enters the Fourth Amendment's protected areas." 133 S. Ct.
at 1415. Jardines acknowledged that the porch of a home is a
semi-public area, but nonetheless determined that the use of a
trained police dog on Jardines' porch was a search within the
meaning of the Fourth Amendment. Id. at 1415-18.
¶130 Thus, Fourth Amendment jurisprudence emphasizing
privacy over trespass is now inconsistent with Jones and
15
No. 2014AP304-CR.awb
Jardines.5 In Santana, 427 U.S. at 42, on which the lead opinion
relies in making its limited intrusion argument, the court
determined that even though Santana was arrested in the
threshold of her home, her Fourth Amendment rights were not
violated because she "was not in an area where she had any
expectation of privacy." Id. However, under Jones and
Jardines, the reasonable expectation of privacy test may be
"unnecessary to consider when the government gains evidence by
physically intruding on constitutionally protected areas."
Jardines, 133 S. Ct. at 1417; see also Jones, 132 S. Ct. at 951-
52.
¶131 Nevertheless, the lead opinion turns a blind eye to
current Fourth Amendment jurisprudence when it suggests that
limited intrusions into the constitutionally protected areas are
just fine. Conflating this case with community caretaker cases,
the lead opinion deems the trespass here reasonable because
Deputy Dorshorst did not:
 damage any property;
5
In a footnote, the lead opinion attempts to distinguish
this case from Jones and Jardines by emphasizing that the latter
two are "search cases." Lead op., ¶38 n.10. This distinction
fails because a search occurred when Deputy Dorshorst physically
occupied Weber's private property for the purpose of obtaining
information. See United States v. Jones, 132 S. Ct. 945, 949
(2012); see also Florida v. Jardines, 133 S. Ct. 1409, 1417
(2013) ("That the officers learned what they learned only by
physically intruding on Jardines' property to gather evidence is
enough to establish that a search occurred."); United States v.
Perea-Ray, 680 F.3d 1179, 1185 (9th Cir. 2012) ("Warrantless
trespasses by the government into the home or its curtilage are
Fourth Amendment searches.").
16
No. 2014AP304-CR.awb
 open any doors or windows;
 pull out any weapons;
 stay in the constitutionally protected area longer
than necessary; or
 enter the house proper, but instead entered only the
curtilage of the house. Lead op., ¶38.6
¶132 What the lead opinion misses is that we are not
examining the reasonableness of the conduct once inside the
constitutionally protected area, but rather whether the officer
should have been in the protected area at all. The legal
analysis for determining whether exigent circumstances justify
warrantless entry is entirely unrelated to the reasonableness
factors considered under the community caretaker doctrine.
¶133 The third reason the lead opinion offers is logically
flawed. It asserts that the application of the hot pursuit
doctrine in this case is not circular because the legislature
chose to make knowingly fleeing a traffic offense jailable.
Although the lead opinion is correct that the seriousness of the
6
The lead opinion relies on community caretaker cases.
See, e.g., State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785
N.W.2d 592; State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759
N.W.2d 598. Yet, the legal analysis of exigent circumstances is
distinct from the community caretaker doctrine. Compare
Michigan v. Tyler, 436 U.S. 499, 509 (1978) ("Our decisions have
recognized that a warrantless entry by criminal law enforcement
officials may be legal when there is compelling need for
official action and no time to secure a warrant."), with
Pinkard, 327 Wis. 2d 346, ¶49 ("In considering the second
reasonableness factor [under the community caretaker doctrine],
we assess whether the time, location, the degree of overt
authority and force displayed were appropriate under the
circumstances.") (quotations and citation omitted).
17
No. 2014AP304-CR.awb
underlying offense is a factor in determining whether there are
exigent circumstances, the jailable offenses in this case
emanate from the flight itself. This is circular reasoning
because it departs from a case-by-case analysis and creates an
exigency in every case where there is a flight, no matter how
minor the underlying offense.
¶134 According to the lead opinion, exigent circumstances
exist because Deputy Dorshorst had probable cause to arrest
Weber for "two jailable offenses." Lead op., ¶3. The two
jailable offenses the lead opinion references here are resisting
an officer and obstructing an officer. Lead op., ¶23. It then
reasons that Deputy Dorshorst was in hot pursuit because Weber
was "a fleeing suspect who had committed jailable offenses."
Lead op., ¶3. Thus, according to the lead opinion's circular
logic, the crime from which Weber was fleeing was his own
flight.
¶135 Finally, the lead opinion's fourth reason fails
because a case-by-case rule is required, even if the State
wishes to discourage suspects from fleeing the police. The lead
opinion is correct that police officers and the communities they
protect have a compelling interest in discouraging suspects from
fleeing to their homes, but that interest must be balanced with
the Fourth Amendment's fundamental protections. However, as
McNeely explained, the State's interests are adequately
addressed under a case-by-case analysis and do not justify "the
'considerable overgeneralization' that a per se rule would
18
No. 2014AP304-CR.awb
reflect." 133 S. Ct. at 1561 (quoting Richards v. Wisconsin,
520 U.S. 385, 393 (1997)).
¶136 Ultimately, every rationale offered by the lead
opinion in defense of its assertion that it has not created a
per se rule is logically and legally unsound. In order to reach
its conclusion, the lead opinion conflates legal doctrines,
disregards controlling United States Supreme Court precedent and
engages in flawed circular reasoning.
¶137 Accordingly, for the reasons set forth above, I
respectfully dissent.
¶138 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
19
No. 2014AP304-CR.rgb
¶139 REBECCA GRASSL BRADLEY, J. (dissenting). I agree
with the lead opinion's holding that hot pursuit for a jailable
offense can itself present exigent circumstances justifying
warrantless entry into a citizen's home. This court has already
said so. See State v. Ferguson, 2009 WI 50, ¶¶19-20, 26–30, 317
Wis. 2d 586, 767 N.W.2d 187; State v. Sanders, 2008 WI 85,
¶¶117-118, 311 Wis. 2d 257, 133-134 752 N.W.2d 713 (Prosser, J.,
concurring). I cannot join the lead opinion, however, because
the facts in this record (1) do not show hot pursuit and (2)
fail to establish that probable cause to arrest for a jailable
offense existed before the deputy entered Weber's garage. The
lead opinion——without precedent——extends the exigency of hot
pursuit to the situation here where the jailable offense is the
alleged "flight" itself. This circular expansion of hot pursuit
doctrine violates the Fourth Amendment, which the Founding
Fathers enshrined in our Constitution to protect the people from
unwarranted government intrusion. Accordingly, I respectfully
dissent.
¶140 The objective facts here do not support probable cause
for a jailable offense and do not establish any exigent
circumstance. Instead, the facts show a deputy concerned about
a broken brake light who nevertheless had no urgent or immediate
need to breach the threshold of Weber's home without first
securing a warrant. Merely because the officer's actions in
this case may not strike us as particularly offensive does not
mean this court should lower its guard over constitutional
rights:
1
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[I]llegitimate and unconstitutional practices get
their first footing . . . by silent approaches and
slight deviations from legal modes of procedure. This
can only be obviated by adhering to the rule that
constitutional provisions for the security of person
and property should be liberally construed. A close
and literal construction deprives them of half their
efficacy, and leads to gradual depreciation of the
right, as if it consisted more in sound than in
substance. It is the duty of the courts to be
watchful for the constitutional rights of the citizen,
and against any stealthy encroachments thereon.
Boyd v. United States, 116 U.S. 616, 635 (1886).
¶141 Precisely because the absence of alarming facts in
this case may render the court's encroachment on the Fourth
Amendment a stealthy one, I write to caution against this latest
contribution to the gradual depreciation of the right of a
person to retreat into the home, free from unreasonable physical
entry. The Fourth Amendment does not permit governmental
intrusion into a person's home premised on a de minimis traffic
law violation like a broken brake light. Entering the home
without a warrant and absent any exigency is the "chief evil"
against which the Fourth Amendment protects the people. See
Welsh v. Wisconsin, 466 U.S. 740, 748 (1984).
¶142 Setting aside Fourth Amendment concerns, the deputy's
actions do not seem egregious; if the deputy had done the same
thing in a public place, his actions undoubtedly would not
violate the Fourth Amendment. But seizing Weber inside Weber's
protected curtilage absent any exigency triggers the Fourth
Amendment's protection and makes the deputy's warrantless entry
2
No. 2014AP304-CR.rgb
constitutionally unreasonable.1 Although the deputy's actions
may seem less intrusive because he entered Weber's open garage
rather than Weber's home, entering the garage is the constitutional
equivalent of entering the home. The lead opinion's reasoning
ignores this principle and opens the door for a future court to
endorse an officer's warrantless entry into a home for a mere
traffic violation.
I
¶143 The lead opinion concludes that this case involved hot
pursuit. I disagree. Hot pursuit means "some sort of a chase."
Sanders, 311 Wis. 2d 257, ¶109 (Prosser, J. concurring) (quoting
United States v. Santana, 427 U.S. 38, 43 (1976)). "Hot pursuit
describes the situation when the police are pursuing a suspect
who is in the process of fleeing from a recently committed
crime." State v. Naujoks, 637 N.W.2d 101, 109 (Iowa 2001)
(citing Warden v. Hayden, 387 U.S. 294, 298-99 (1967)). It is
the "immediate or continuous pursuit of the [suspect] from the
scene of the crime." Welsh, 466 U.S. at 753. Although hot
pursuit is not defined in terms of a particular length of time,
it does involve some sort of chase and requires the recent
commission of a jailable crime. The chase commences from the
scene of the crime, triggering the hot pursuit.
1
There is no dispute that Weber's attached garage is the
equivalent of his home and therefore receives the same Fourth
Amendment protections. See Florida v. Jardines, 133 S. Ct.
1409, 1414 (2013) (explaining that the curtilage "enjoys [the
same] protection as part of the home itself"); see also State v.
Dumstrey, 2016 WI 3, ¶35, 366 Wis. 2d 64, 873 N.W.2d 502 (noting
that a single family home's attached garage is curtilage).
3
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¶144 Calling what happened here "hot pursuit" stretches
that term too far. "[A]pplication of the exigent-circumstances
exception in the context of a home entry should rarely be
sanctioned when there is probable cause to believe that only a
minor offense, such as the kind at issue in this case, has been
committed." Welsh, 466 U.S. at 753 (involving first-offense
drunk driving). The facts here show there was no chase. The
deputy followed Weber 100 feet while Weber slowed his car down to
turn into his driveway. There was no recently committed
jailable crime prompting the pursuit, nor was there a crime
scene from which Weber fled. Weber was driving with a broken
brake light. That is not a jailable crime.
¶145 It may be tempting to validate the deputy's actions
here in order to discourage traffic violators and serious
criminals from ignoring the police and racing home to avoid
traffic stops or police investigation. Fourth Amendment
protections, however, cannot be jettisoned based on fear that
some citizens may attempt to run home and hide. The 100 feet
Weber travelled did not create an exigency because the deputy
was not "chasing" Weber for a jailable crime recently committed.2
There are, however, factual scenarios where a pursuit of 100
2
Although the information discovered after the deputy
breached the garage threshold revealed that Weber had been
drinking and driving, our Constitutional decisions must not be
influenced by evidence obtained after an unlawful entry. See,
e.g., Missouri v. McNeely, 133 S. Ct. 1552 (2013) (excluding
warrantless blood test showing driver had illegal BAC because
search was unlawful under Fourth Amendment).
4
No. 2014AP304-CR.rgb
feet or an even shorter distance will justify warrantless entry.
See, e.g., Santana, 427 U.S. at 43.
¶146 We need not identify a precise distance that is
acceptable or unacceptable because the Fourth Amendment draws
the line at probable cause, exigency, and reasonableness.
Police may enter a person's home without a warrant only if there
is probable cause to believe a jailable crime has been
committed, a suspect's flight creates an exigency such that
there is no time to get a warrant, and the search or seizure is
reasonable.
II
¶147 The lead opinion essentially concludes the jailable
offense at issue here was Weber's "flight." The Fourth
Amendment, however, does not support warrantless entry into a
home when the jailable offense justifying entry is the flight
itself. To condone warrantless entry into the home, Fourth
Amendment jurisprudence requires probable cause that a jailable
offense occurred before the flight began. If the flight itself
creates the jailable offense that serves as an exigency and
overcomes Fourth Amendment protections, a police officer can in
essence create a jailable offense out of any attempted traffic
stop or any attempt to speak with a citizen——even though no
other jailable offense has occurred. At the point the deputy
entered Weber's garage, all he knew was that Weber had a
defective high-mounted brake lamp, pulled into his garage,
walked to the door of his house inside the garage, and did not
respond to the deputy's request to talk.
5
No. 2014AP304-CR.rgb
¶148 At the time the deputy seized Weber, the deputy's sole
concern was the defective high-mounted brake lamp. When asked
why he tried to stop Weber, the deputy answered, "I attempted to
stop him for defective high mounted brake lamp," and he added
that he notified dispatch he "had a traffic stop." Clearly, to
the deputy this stop was not about pursuing Weber for a jailable
offense. It was about a broken brake light and the need to tell
Weber about it.
¶149 The lead opinion points out that the officer's
subjective motivation does not govern our review; instead, we
review the objective facts. See lead op., ¶19 n.6. But the
objective facts are clear: There was no recently committed
jailable offense that sparked a hot pursuit into Weber's home.
There was an attempted traffic stop for a broken brake light.
The motorist showed no indication of knowing the deputy
activated his squad car's emergency lights. The motorist slowed
down, drove 100 feet, turned into his driveway, pulled into his
garage, and walked to the door of the house. Because the law
does not support warrantless entry under these circumstances, I
respectfully dissent.
6
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1