Search and Seizure – “Hot Pursuit” Exception to Warrant Requirement
State v. Weber, 2016 WI 96 (filed 29 Nov. 2016)
MANDATE: A majority of the supreme court voted to reverse the decision of the court of appeals in this case, but there was no majority opinion supporting the mandate to reverse.
SUMMARY: A deputy sheriff attempted to pull defendant 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. Weber failed to yield to the traffic stop and instead drove approximately 100 additional feet, turned into his driveway, and pulled into the garage attached to his home.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
The deputy pursued Weber into his driveway. When Weber failed to obey the deputy’s directive to stop and attempted to enter his home from the garage, the deputy entered the garage, secured Weber’s arm, and eventually escorted him back outside the garage. Later investigation at the scene led to the recovery of evidence and charges against Weber for operating while intoxicated (OWI) (10th offense), drug offenses, and resisting an officer.
Weber moved to suppress the evidence that was recovered after the deputy’s warrantless entry into his garage. The circuit court denied the motion, concluding that the deputy’s actions were justified by the exigent circumstance of hot pursuit. Weber subsequently pleaded no contest to several charges and then took this appeal. In an unpublished per curiam decision, the court of appeals reversed.
The supreme court reversed the court of appeals. The court was split in its reasoning and there was no majority opinion. The lead opinion, authored by Justice Ziegler and joined in by Chief Justice Roggensack and Justice Gableman, concluded that the deputy’s warrantless entry into Weber’s garage and 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.
According to the lead opinion, the deputy had probable cause to believe that Weber had committed two jailable offenses (misdemeanor fleeing contrary to Wis. Stat. section 346.04(2t) and misdemeanor resisting an officer contrary to section 946.41(1)), 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 (see ¶ 3).
The court declined to adopt a rule urged by the state 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 reasonableness is measured in objective terms by examining the totality of the circumstances” (¶ 34) (internal quotations omitted). As indicated above, the lead opinion concluded that, under the specific circumstances of this case, the deputy’s actions were reasonable.
Justice Kelly supplied the fourth vote to reverse the court of appeals. He did not believe there was probable cause to believe the defendant committed jailable offenses before entering his garage. However, he did conclude that the defendant consented to the deputy’s entry (see ¶ 73). Justice Kelly reasoned that as Weber continued from his driveway into his garage, he was operating under a continuing obligation to allow the deputy to complete the traffic stop that had commenced on the highway.
“Entering the garage did not terminate the obligation – it followed him inside. And because we presume that Wisconsin’s citizens know the law, we can conclude that Mr. Weber knew he was under this obligation. 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” (¶¶ 78-79).
Justice Ann Walsh Bradley filed a dissenting opinion that was joined in by Justice Abrahamson. Justice Rebecca G. Bradley filed a separate dissent.