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  • April 07, 2022

    Warrantless Search of Hotel Room Not Justified by Exigent Circumstances

    Exigent circumstances did not justify the warrantless search of a hotel room occupied by a man who allegedly stole a pistol and was reportedly suffering from post-traumatic stress disorder and drug problems, a state appeals court has ruled.

    Jeff M. Brown

    Hotel Room Door Ajar

    April 7, 2022 – Exigent circumstances did not justify the warrantless search of a hotel room occupied by a man who allegedly stole a pistol and was reportedly suffering from post-traumatic stress disorder (PTSD) and drug problems, a state appeals court has ruled.

    In State v. Bourgeois, 2020AP1808-CR (March 23, 2022), the Court of Appeals District II held that because the circumstances of the search did not present a serious and immediate risk to the police officers, they didn’t obviate the need to obtain a warrant. 

    Report of a Stolen Pistol

    On July 10, 2016, the Village of Mukwonago police asked the the Village of West Milwaukee police to look for Eric Bourgeois at the Best Western Hotel in Western Milwaukee.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    The Mukwonago police said that Bourgeois suffered from post-traumatic stress disorder (PTSD) and drug problems and might have a stolen pistol.

    On July 12, 2016, West Milwaukee police officers Joseph Vanderlinden and Steffen Pawlak learned that Bourgeois had checked into the Best Western. The desk clerk gave Vanderlinden a key card to Bourgeois’ room.

    ‘Do Not Disturb’

    When Vanderlinden, Pawlak, and another officer went to Bourgeois’ room, it was quiet. A “Do Not Disturb” sign hung on the door knob.

    The police attempted to use the key card but the door wouldn’t open because the deadbolt was slid shut.

    The police were “a little worried” about their safety, but began knocking on the door and saying “police,” getting louder and louder. The room remained quiet.

    Dead or Alive?

    Officer Vanderlinden got a master key from the desk clerk and used it to open the door to Bourgeois’ room. But the chain lock was engaged so Vanderlinden could only open the door a few inches.

    Using flashlight, Vanderlinden peered through the open door. He saw Bourgeois lying on a bed, staring towards the door.

    Bourgeois didn’t say anything. Vanderlinden didn’t know whether Bourgeois was dead or alive.

    The police identified themselves as police and more than once asked Bourgeois to come to the door.

    Bourgeois asked the police what they wanted. The police asked Bourgeois multiple times to open the door and talk to them.

    Bourgeois told the police to leave. Officer Vanderlinden could see that Bourgeois had nothing in his hands.

    Police Break Down Door

    Vanderlinden again asked Bourgeois to open the door. “That’s not going to happen,” Bourgeois said, before turning and walking away from the door.

    Vanderlinden didn’t know whether Bourgeois would grab the pistol. He later said he was worried about Bourgeois and himself and his fellow officers.

    Vanderlinden broke the door down. He and the other officers handcuffed Bourgeois. They found the pistol lying on the bed.

    Bourgeois became upset and verbally threatened the officers.

    Motion to Suppress Denied

    The Waukesha County District Attorney charged Bourgeois with theft, threatening a law enforcement officer, and seven other crimes.

    Before trial, Bourgeois moved to suppress the evidence gathered from the hotel room because it was collected through a warrantless search. The circuit court denied the motion, ruling that exigent circumstances justified the search.

    The jury convicted Bourgeois on the theft and threatening a law enforcement officer charges. Bourgeois appealed.

    Urgency Weighed Against Time

    Writing for a three-judge panel, Presiding Judge Mark Gundrum explained that in analyzing a claim that exigent circumstances justified a warrantless search, a court must weigh the urgency of the officer’s need to enter against the time it would take to obtain a warrant.

    “The exigent circumstances test is not easily met,” Judge Gundrum wrote. “The State must show ‘by clear and convincing evidence that exigent circumstances justified [an] officer’s lack of effort to secure a warrant.’”

    The police must be able to point to “some real immediate and serious consequences” of postponing action to seek a warrant, Gundrum explained.

    Judge Gundrum pointed out that the police were not in hot pursuit of Bourgeois, the state hadn’t argued there was a risk that Bourgeois would destroy evidence, and Bourgeois was not a flight risk – each scenarios found by courts to constitute exigent circumstances justifying warrantless searches.

    No ‘Immediate and Serious’ Risk

    Instead, Judge Gundrum, explained, the search of Bourgeois’ hotel room could be justified only if the state could demonstrate that life would have been gravely endangered if the police had waited to get a warrant before entering the room.

    The state failed to meet that burden, Judge Gundrum wrote.

    “Here, the three officers had no reason to believe they were outnumbered as they had no reason to believe anybody except possibly Bourgeois was in the room. Furthermore, and significantly, Bourgeois had exhibited neither aggression nor a penchant for violence toward anyone nor threatened the law enforcement officers prior to them opening the door to his room.”

    Judge Gundrum noted that a reasonable police officer, after knocking on the hotel room door and hearing it remain silent, would have most likely concluded that Bourgeois was either not in the room, sleeping, or awake but had decided to exercise his right not to come to the door.

    “The officers heard no noises inside the room that would have suggested that harm to Bourgeois or the officers was a real ‘immediate and serious’ risk—and likely to occur before a warrant could be secured.”

    Sneak Peek Disallowed

    Even if the officers thought it would take a substantial amount of time to obtain a warrant, Judge Gundrum explained, the state failed to demonstrate that there was a “real immediate and serious” risk of harm to the officers while they waited outside the hotel room while the warrant was being obtained.

    Whatever Vanderlinden saw through the narrow opening in the door after he used the master key wasn’t admissible to justify the exigence circumstances, Judge Gundrum noted.

    “Lacking a warrant or exigent circumstances, the officers had no lawful basis to open the door—even just the few inches they initially could—and peer inside or even speak to Bourgeois through the opening,” Gundrum wrote.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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