Follow Us

Facebooktwitterrss
≡ Menu

Reasonable Suspicion – Enter Home without Warrant

State v. Jeffrey Stout, 2002 WI App 41, PFR filed 2/21/02
For Stout: James L. Fullin, Jr., SPD, Madison Appellate

Issue/Holding:

¶14. … (T)he United States Supreme Court has never held that a warrantless entry into a private residence may be justified by a Terry investigatory stop based on reasonable suspicion provided by an informant’s tip. To the contrary, the Supreme Court extended the Terry doctrine’s reasonable suspicion standard within the confines of a dwelling only when lawful entry had already been obtained. See Maryland v. Buie, 494 U.S. 325, 333 (1990). We are convinced that this is also the law in Wisconsin. For example, in State v. Rodriguez, 2001 WI App 206, 247 Wis. 2d 734, 634 N.W.2d 844, review denied, 2001 WI 117, 247 Wis. 2d 1035, 635 N.W.2d 783 (Wis. Oct. 23, 2001) (No. 00-2546-CR), we addressed whether a warrantless entry into a home is justified when an individual flees from an officer attempting to conduct an investigative stop. Id. at ¶22. We concluded that the suspect’s flight from the officer constituted, at best, reasonable suspicion, id., and as the concurring opinion clarified, reasonable suspicion, even coupled with exigent circumstances, is not sufficient to justify a warrantless home entry; probable cause and exigent circumstances are required. Id. at ¶26. Also on point is State v. Munroe, 2001 WI App 104, 244 Wis. 2d 1, 630 N.W.2d 223, in which officers obtained Munroe’s consent to enter his hotel room by telling him that they were there to check his identification. Id. at ¶5. Once they determined that his identification was valid, they asked for permission to search his room. Id. In a footnote, we explicitly refused to sanction the trial court’s use of the Terry doctrine authorizing brief investigative stops to justify talking to Munroe in his motel room about drugs. Id. at ¶13 n.4 (‘[B]oth Terry and § 968.24 authorize such stops in public places, not in homes or hotel rooms.’).

¶15. Based upon RodriguezMunroe, and the explicit language in Wis. Stat. § 968.24 that a ‘law enforcement officer may stop a person in a public place,’ we conclude that under Wisconsin law, Terry applies to confrontations between the police and citizens in public places only. For private residences and hotels, in the absence of a warrant, the police must have probable cause and exigent circumstances or consent to justify an entry.State v. Rodgers, 119 Wis. 2d 102, 107, 349 N.W.2d 453 (1984).

For addtional authority to effect that “(p)olice may not intrude into a residence in order to effectuate a Terry stop,” see, State v. Maland , 103 P.3d 430 (Idaho SCt No. 29136, 2004 Op. No. 106, 11/24/04). See also U.S. v. Washington, 387 F. 3d 1060 (9th Cir. No. 02-10526, 11/2/04), fn. 8 (“We have repeatedly held that an intrusion into someone’s home may not be premised on Terry‘s reasonable suspicion standard.”), and cases string cited. But for a seemingly contrary holding (which means a potentially cert-worthy split), see State v. Mann, 857 A. 2d 329 (CT SCt No. SC 16996, 10/5/04); and People v. Wear, Ill App 4th Dist No. 4-06-0353, 1/19/07 (“the doctrine of hot pursuit does not care whether it was a Terry stop or an arrest that the police officer set in motion before pursuing a suspect into a private place”).

Does an arrest warrant for a misdemeanor confer sufficient authority for entry of a residence? Yes, according to U.S. v. Gooch, 9th Cir No. 06-30645, 11/1/07, and cases cited.

Facebooktwitterlinkedinmail
{ 0 comments… add one }

Leave a Comment