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Officer “briskly walking” up driveway was in hot pursuit

State v. Steven D. Palmersheim, 2018AP746, 10/31/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

This is the state’s appeal of the circuit court’s grant of a suppression motion. A motorist called the police saying another car on the road was wildly swerving; the caller stayed with the swerving vehicle until it stopped on a residential street. When a police officer arrived in response to the car, the caller told him the driver, Palmersheim, had gotten out of the car and urinated in the street.

The officer saw Palmersheim walking up the driveway to his house, away from his vehicle, and first asked, then ordered him to stop. Palmersheim turned and looked at the officer, but then kept walking into his garage, and began to close the garage door. The officer, following Palmersheim, stuck his foot under the closing door, causing the safety sensors to lift it back up again. He then coaxed Palmersheim out of the garage, and eventually arrested him.

The court of appeals holds that the officer had probable cause to arrest Palmersheim for two offenses – disorderly conduct (for the public, daytime urination) and obstructing an officer (for refusing the officer’s order to stop):

Related to the first three elements, Palmersheim’s act of turning away from the officer and continuing to head into his garage and toward the door leading into his house, despite having apparently heard the officer’s command for him to stop, would lead a reasonable officer to believe Palmersheim probably had rebuffed the officer’s command and was in the process of at least resisting, if not obstructing, the officer (first element). The officer was on duty as a police officer and investigating an OWI offense and thus acting in his official capacity (second element). The reliable witness had indicated to dispatch and the officer collectively that Palmersheim had been “all over the road,” was swaying side to side upon exiting his vehicle, and urinated next to the parked Ranger. With this, the officer had reasonable suspicion that Palmersheim had been operating his vehicle while intoxicated and probable cause to arrest him for committing disorderly conduct. Thus, the officer had lawful authority to stop Palmersheim for further OWI and/or disorderly conduct investigation and even arrest him, based upon probable cause, for the latter offense (third element).

As for the remaining three elements, the officer testified it was “day time,” “kind of mid afternoon around 5 p.m.” in September when Palmersheim, in response to the officer’s command for him to stop, turned around and looked at the officer, who was in his “full police uniform and … in proximity of [his] fully marked patrol car.” This would lead a reasonable officer to believe Palmersheim probably knew the officer was acting in his official capacity (fourth element). Palmersheim then turned away from the officer and continued proceeding toward the door to his residence inside the garage and hit the button to lower the garage as the officer was “briskly walk[ing] … up to try to catch up to him.” All of this would lead a reasonable officer to believe Palmersheim probably knew the officer was acting with lawful authority (fifth element).

(¶¶16-17).

The court also concludes, following United States v. Santana, 427 U.S. 38 (1976), and State v. Weber, 2016 WI 96, 372 Wis. 2d 202, 887 N.W.2d 554, that the officer was justified in following Palmersheim into his home (the garage) under the hot pursuit doctrine:

Whether a pursuit of a criminal suspect is a “hot” pursuit depends on the particular circumstances of each case. If a suspect is speeding away in a vehicle, hot pursuit will no doubt involve an officer following the suspect in a vehicle, quite possibly, but not necessarily, at a high rate of speed. If a suspect is running through back yards and alleys attempting to escape from an officer, the officer will likely need to engage in a hot-pursuit foot race requiring speeds near that of a sprint. If the pursuit goes longer, that sprint may turn to a more paced foot race, yet still be a hot pursuit. If an officer is pursuing a suspect and the suspect tries to close a door, garage door or otherwise, to prevent apprehension, hot pursuit will necessarily include preventing the door from being closed.

In this case, there is no indication Palmersheim ran from the officer, so hot pursuit could be accomplished by the officer “stepp[ing] up [his] pace” to “briskly walk[ing] and hustl[ing] up” to try to catch Palmersheim. The officer then stopped the closing of the garage door as part of his pursuit. The manner in which the officer engaged in hot pursuit was appropriately measured to the manner Palmersheim used to try to evade the officer. Once he foiled Palmersheim’s effort to close the garage door, the officer succeeded in his hot-pursuit objective of
stopping Palmersheim’s escape into his home by persuading Palmersheim to exit the garage. This proved as effective as if the officer had fully invaded Palmersheim’s curtilage/garage and grabbed Palmersheim by the arm, similar to what occurred in Weber, yet without creating a safety risk for the officer. At the moment the officer’s foot entered the garage and stopped the garage door from closing—the warrantless entry—the officer was in hot pursuit of Palmersheim.

(¶¶28-29).

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