Nov. 30, 2016 – Police initiated a traffic stop for a broken tail light about 100 feet from the driver’s home. He pulled into his garage. Police entered the garage without a warrant to stop him. Recently, the state supreme court found no constitutional violation.
In State v. Weber, 2016 WI 96 (Nov. 29, 2016), four justices agreed that a sheriff’s deputy did not violate the Fourth Amendment when entering the driver’s garage without a warrant, but only three justices agreed on the rationale. Another three dissented.
Three justices – Chief Justice Patience Roggensack, and Justices Annette Ziegler and Michael Gableman – concluded that “the warrantless entry into [the driver’s] garage and subsequent arrest were constitutional because they were justified by the exigent circumstance of hot pursuit of a fleeing suspect who had committed jailable offenses.”
Justice Daniel Kelly wrote a concurring opinion. He concluded that the hot pursuit doctrine did not apply because police did not have probable cause to believe the driver committed jailable offenses, but the driver consented to the warrantless entry.
Justice Ann Walsh Bradley dissented (joined by Justice Shirley Abrahamson). Justice Rebecca Bradley wrote a separate dissent, cautioning “against this latest contribution to the gradual depreciation” of the right against unreasonable searches and seizures.
A sheriff’s deputy attempted to stop driver Richard Weber for a defective brake lamp. Weber, who was about 100 feet from his home when the deputy activated his lights, continued driving, pulled into his driveway, and parked in his attached garage.
The deputy pulled into Weber’s driveway, exited the vehicle, and ultimately entered Weber’s garage to apprehend him before Weber could enter his home through a door.
The deputy, Calvin Dorshorst, was questioning Weber when a second deputy arrived. According to the record, Weber seemed drunk and admitted to drinking but refused to take a field sobriety test. The deputies placed him under arrest after he resisted.
Weber consented to a search of his vehicle and deputies found marijuana and drug paraphernalia. They transported him to a hospital for a blood draw, which revealed a blood alcohol concentration of 0.24, triple the legal limit of 0.08 in Wisconsin.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Weber was charged with a 10th offense operating while intoxicated (OWI), 10th offense operating with a prohibited alcohol concentration (PAC), possession of tetrahydrocannabinols (THC), possession of drug paraphernalia, and resisting arrest.
Weber moved to suppress all evidence obtained as the result of an arrest that violated his constitutional Fourth Amendment right against unreasonable searches and seizures.
The Wood County Circuit Court denied the motion, concluding that police were justified in entering Weber’s private garage based on the exigent circumstances of hot pursuit.
Ultimately, Weber pled no contest to ninth offense PAC, possession of THC, and resisting arrest. He was sentenced to four years in prison and four years of extended supervision. But an appeals court reversed and ordered the circuit court to vacate the judgment, withdraw the plea, and grant Weber’s motion to suppress the evidence. The state appealed to the Wisconsin Supreme Court and a four-justice majority reversed.
Majority Says No Fourth Amendment Violation
Justice Annette Ziegler wrote a lead opinion, joined by Chief Justice Patience Roggensack and Justice Michael Gableman. They noted that warrantless entries into constitutionally protected areas may be justified by “exigent circumstances” if police have probable cause to believe a suspect has committed a “jailable” offense.
The three justices agreed with the state’s argument that at the time the deputy entered the garage, he had probable cause to believe that Weber committed two jailable offenses: he knowingly fled from a police officer and knowingly obstructed the officer.
Weber argued there was no evidence he “knowingly” fled or obstructed an officer, since only seconds passed before police activated the lights and Weber reached his garage.
But Justice Ziegler disagreed: “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,” she wrote.
“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 attention.”
Finding the deputy had probable cause to believe Weber committed a jailable offense, the lead opinion also agreed that “hot pursuit” – involving suspects who flee when police attempt to stop them – was an exigent circumstance that justified warrantless entry in this case, as suspected criminals who flee do not have full constitutional protections.
“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,” wrote Justice Ziegler.
However, the lead opinion declined to rule that the hot pursuit doctrine will always justify a warrantless home entry and arrest. That is, the court will still examine the “reasonableness” of a warrantless entry that is based on the hot pursuit doctrine.
Justice Daniel Kelly concurred in the ultimate result – no constitutional violation – but departed from the lead opinion’s reasoning. Kelly did not think there was probable cause to believe the defendant committed jailable offenses. Thus, he said the “hot pursuit” doctrine could not be applied as an exception to the warrant requirement.
Instead, Justice Kelly said that Weber consented to the warrantless entry into the garage because the police initiated the traffic stop on a public highway.
“His conduct would communicate to a reasonable observer that he preferred to complete the traffic stop in his garage, rather than on the driveway,” he wrote. “Having extended that invitation, Mr. Weber may not fault Deputy Dorshorst for accepting it.”
Justice Ann Walsh Bradley and Justice Shirley Abrahamson concluded “the state has not met its burden of demonstrating exigent circumstances sufficient to overcome the presumption of unreasonableness that attaches to warrantless home entries.”
Police did not have probable cause to believe Weber committed a jailable offense, A.W. Bradley noted, and there was no “hot pursuit” emergency to justify warrantless entry.
“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,” Justice A.W. Bradley wrote.
She noted that the deputy activated his squad car’s lights but did not activate the siren, undermining the lead opinion’s “speculation” that Weber was intending to flee the police.
Justice Rebecca Bradley wrote a separate dissent. She agreed that hot pursuit for a jailable offense can justify warrantless entry based on exigent circumstances.
But she said the record did not show hot pursuit and failed “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,” R. Bradley wrote.
“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.”