County of Calumet v. Daniel A. Ryan, 2011AP490, District 2, 12/14/11
Officers, investigating a one-car accident, approached Ryan’s home, knocked on his door and “(a)fter several minutes of ‘back and forth,’ Ryan came out of his residence” (admittedly “voluntarily”). Subsequent testing revealed him to be intoxicated and he was convicted of OWI. His appeal challenges the initial encounter as an unlawful encounter. The trial court held that Ryan left his house incident to “a voluntary ‘knock and talk’ interview” unaccompanied by any police threats; the court of appeals affirms, applying City of Sheboygan v. Cesar, 2010 WI App 170, 330 Wis. 2d 760, 796 N.W.2d 429 (consensual “knock and talk” interview doesn’t amount to seizure). United States v. Jerez, 108 F.3d 684 (7th Cir. 1997) (court finding unlawful seizure when police knocked on motel room door for 3 minutes without response, and at one point commanded, “Police. Open up the door.”), ¶13 n. 2.
Not argued: the “implied invitation” doctrine (see, e.g., State v. Davis, 2011 WI App 74, ¶10: police may enter curtilage if impliedly open to public). In other words, if an area around the home appears to be accessible to the public at large, the police also have an “implied invitation” to access that area. Here, the police went to Ryan’s back, not front, door – which on its face might raise at least a question about unlawful entry, against which the following details must be considered: “Kucharski walked to Ryan’s house and followed a trail to the back door because the front door did not appear accessible. The front of the property had a dumpster in the driveway and was overgrown with weeds,” ¶3. Granted, the seeming inaccessibility from the front suggests the futility of a curtilage argument. On the other hand, just how much of an invitation does a trail present? In any event, the point here is simply that the “implied invitation” doctrine is relatively undeveloped terrain in Wisconsin caselaw, and will remain so if not raised. (Which isn’t to say that it should have been raised here; to the contrary, Ryan’s brief acknowledges that the front door “was not used as an active entryway,” and on these facts the argument probably would have been a non-starter.)