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  • WisBar News
    November
    29
    2012

    Milwaukee Police Overstepped Legal Authority with Warrantless Search

    Joe Forward
    Legal Writer

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    article titleNov. 29, 2012 – Milwaukee police did not have legal authority to enter Luis Delgado’s apartment, where they found firearms, based on exigent circumstances. Thus, a federal appeals court has vacated his conviction for possessing firearms as a felon in violation of federal law.

    The Fourth Amendment protects individuals against unreasonable searches and seizures. Warrantless searches are presumptively unreasonable, unless an exception applies.

    In 2010, Milwaukee police officers responded to a report of gunshots. When officers arrived on scene, they spotted a man (later identified as Luis Delgado) running towards a nearby building.

    A witness approached officers and said her cousin, Adrian Aviles, told her he’d been shot by a black male, and was hiding in Delgado’s apartment. She gave police the apartment number.

    Police knocked on Delgado’s apartment door, and were about to break in when Aviles opened the door. Both Aviles and Delgado exited the apartment. Police arrested Delgado based on suspected commission of a crime, and placed him in a squad car.

    However, police then searched Delgado’s apartment without a warrant. In the bedroom closet, the found antique rifles, and three shotguns. One was a sawed-off shotgun. With a previous felony conviction, Delgado was prohibited from possessing firearms under federal law.

    In criminal proceedings, Delgado moved to suppress the firearms based on an unreasonable search of his apartment. The district court denied the motion, concluding that the search constituted a protective sweep. Delgado pled guilty and was sentenced to a year in prison.

    In U.S. v. Delgado, No. 12-2478 (Nov. 29, 2012), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit vacated Delgado’s conviction.

    On appeal, the government conceded that the police search was not a reasonable protective sweep, but argued that “exigent circumstances” allowed the search without a warrant. Exigent circumstances may be present if police believe imminent injury could occur.

    Specifically, police said it was reasonable for police to believe the shooter could have chased Avila into Delgado’s apartment and was hiding there when officers came knocking. However, the appeals court was not convinced that such a belief was reasonable.

    “It is unreasonable to believe that, faced with such life-threatening danger, both the shooting victim and Delgado would leave the apartment with nary a word or any expression whatsoever indicating that the shooter was just over their shoulder or that they were within seconds of being killed,” wrote Judge Ann Claire Williams for the panel, noting that the witness never said anything about Aviles being chased by the shooter.

    “The mere fact that the shooter was generally at large is not enough for a reasonable officer to specifically believe that he was in the apartment.”

    The government’s case was lacking without a specific or affirmative sign of exigent circumstances that would require them to search Delgado’s apartment, the panel explained. Thus, the panel remanded the case with instructions to grant Delgado’s suppression motion.

    Joe Forward is the legal writer for the State Bar of Wisconsin.