Unlawful police entry does not require suppression of evidence obtained outside home

By Joe Forward, Legal Writer, State Bar of Wisconsin

April 5, 2012 – Following the U.S. Supreme Court’s lead, the Wisconsin Supreme Court recently adopted a rule that allows courts to admit evidence obtained from a suspect, even after police unlawfully enter a residence to arrest the suspect.

Under Payton v. New York, 445 U.S. 573 (1980) and the Fourth Amendment to the U.S. Constitution, police cannot legally enter the residence of a suspect to make an arrest if they don’t have a warrant, even if there is probable cause to make the arrest.

However, the U.S. Supreme Court in New York v. Harris, 495 U.S. 14 (1990), held that Payton violations do not require suppression of evidence legally obtained outside the residence, if police have probable cause to arrest the suspect before the unlawful intrusion.

Noting that Wisconsin aligns with U.S. Supreme Court interpretations of the Fourth Amendment in search and seizure cases, a Wisconsin Supreme Court majority (5-2) adopted the Harris holding in State v. Felix, 2012 WI 36 (April 3, 2012).

“We continue our usual practice of interpreting Article I, Section 11 of the Wisconsin Constitution in accord with the United States Supreme Court’s interpretation of the Fourth Amendment,” wrote Justice Patrick Crooks for the majority. “Thus, we adopt the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation.”

Facts of the case

In 2007, a fight broke out in the street outside a house party in the City of Schofield near Wausau. Nathaniel Davids was stabbed and later died at the hospital.

When police arrived, witnesses suggested that Devin Felix may have been the culprit. Thus, police had probable cause to arrest Felix, but he had fled the scene in his vehicle.

Police later found him in plain view sleeping on a recliner when they arrived at his residence without a warrant, and entered an unlocked door that “popped” open when they knocked.

Outside the home, Felix admitted that he recently possessed a knife but “must have gotten rid of it.” Police later found the knife near the recliner where Felix was sleeping.

Police took Felix to the police station, where he waived his Miranda rights. He then signed a statement of events and agreed to give a DNA sample. After transporting him to the county jail, police also took his clothing, spotted with blood, as evidence.

Felix was charged with first-degree intentional homicide but later pled guilty to second-degree intentional homicide. He was sentenced to 28 years in prison, 20 years extended supervision.

On appeal, Felix argued that certain evidence should have been suppressed. Specifically, he argued that his signed statements, his DNA sample, and his clothes should have been suppressed because police unlawfully entered his home to arrest him.

Harris applies, not Brown

Felix argued that Brown v. Illinois, 442 U.S. 590 (1975) demanded suppression. Under Brown, courts use a three-factor test to determine whether evidence obtained after a Fourth Amendment violation is still admissible as “sufficiently attenuated” from the illegality.

Under Brown, courts examine the time between the illegal police conduct and the collection of evidence at issue, the presence of intervening circumstances, and the flagrancy of police conduct, in determining whether evidence can still be admitted despite a violation.

The appeals court applied Brown – noting the Wisconsin Supreme Court had not yet adopted Harris and Harris conflicted with prior state case law – to conclude that the signed statement, DNA sample, and clothing should have been suppressed as “fruit of the poisonous tree.”

But the Wisconsin Supreme Court reversed, adopting Harris. “For this narrow category of evidence, it is not necessary to do a Brown analysis where it is clear as it is here that the evidence is not derived from the illegality,” Justice Crooks explained.

Justice Crooks continued: “In other situations, this court and the United States Supreme Court continue to require a Brown analysis to ensure that evidence or statements obtained following police misconduct are not the product of the illegality.”

The majority concluded that Harris applied in this case because police had probable cause to arrest Felix, unlawfully entered the home in violation of Payton, but legally obtained the disputed evidence outside the home after Felix waived his Miranda rights.

Concurrence and dissent

In its opinion, the Wisconsin Supreme Court majority assumed without deciding that police violated Payton when they entered Felix’s residence without a warrant to arrest him.

In a concurring opinion, Justice David Prosser took issue with that assumption, explaining that police did not physically enter Felix’s residence. The record reflects that officers opened the door, saw him in plain view, and told him to come out, Justice Prosser explained.

“Harris is simply inconsistent with the notion of a Payton ‘violation’ on the facts of this case where there was no physical entry into the home,” he wrote, otherwise joining the majority.

Justice Ann Walsh Bradley (joined by Chief Justice Shirley Abrahamson) wrote a dissenting opinion, arguing that Harris does not sufficiently deter illegal government activity.

“I would accord the people of this state greater protection of their liberty interests under our state constitution,” wrote Justice Bradley, noting that other states have refused to apply Harris.

The dissenters would have applied a Brown analysis and fear the decision will allow police to bypass constitutional protections by simply removing a suspect from their home.

That Harris is the “law of the land with regard to the Fourth Amendment of the United States Constitution” she explained, “does not compel this court to similarly engraft this limitation of our liberty onto Article I, Section 11 of the Wisconsin Constitution.”

Attorneys

Assistant Attorney General Marguerite Moeller represented the State of Wisconsin. Leonard Kachinsky of Sisson & Kachinsky Law Offices, Appleton, represented Devin Felix.