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Another garage hot pursuit case

State v. Jonalle L. Ferraro, 2018AP498, 11/8/18, District 4 (one-judge decision; ineligible for publication); case activity

As in Palmersheim just last week, here we have another successor to Weber from the 2016 term – an officer follows a driver (or recent driver) into his or her garage to arrest.

And, as in Palmersheim, the court concludes the officer had probable cause to arrest for jailable offenses (here, fleeing, resisting, and hit-and-run, ¶¶21-25).

The court also holds that the officer’s pursuit was “hot” in the sense that it began soon enough after, and close enough to, the scene of the crime:

Ferraro argues that Vierck could not have been in hot pursuit of Ferraro for the hit-and-run offense because his pursuit did not originate from the scene of the accident. This argument begins with an emphatic citation to Richter, 235 Wis. 2d 524, ¶32, for the following proposition regarding hot pursuit: “[I]mmediate and continuous contact must occur from the scene of the crime—not from the point the officer first tries to make contact.” (Emphasis in original) However, Ferraro ignores the next paragraph of Richter, which explicitly states that immediate response to a report coming from an eyewitness may be sufficient. Id., ¶33. Indeed, Ferraro’s argument appears to be defeated by the holding in Richter that police pursuit of a suspected burglar was continuous for purposes of the hot pursuit doctrine, even though the pursuing officer arrived after the crime had occurred and, therefore, did not personally observe the crime or the fleeing suspect. See id., ¶¶33, 36,

Hmm. The officer in Richter arrived at the scene of a burglary moments after it occurred, and the victims told him the burglar had just gone into an adjacent home, which the officer entered. Here, the officer, hearing of a hit-and-run over the radio, drove to a different location where he though, based on local traffic patterns, the suspect vehicle might be headed. Seems worthy of a little deeper analysis than the court gives it. The court only says, in a footnote, that it is not persuaded “that the fresh, concrete details relayed to Vierck were not the functional equivalent of the witness statements at issue in Richter.” It also faults Ferraro for only replying to the state’s argument about Richter in her reply brief, saying without explanation that her argument “comes too late.” When is the appellant supposed to reply to the response brief?

The court also rejects arguments that the officer used excessive force to detain Ferraro inside her garage (he cuffed her, despite her warning that it would dislocate her shoulder, which it did, after which the officer undid the cuffs and let her pop her shoulder back in, ¶¶29-31) and that she was in Miranda custody when she made certain statements, ¶¶32-36.

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