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SCOW: Defense wins war, loses battle on “hot pursuit” of driver with broken brake lamp

State v. Richard L. Weber, 11/29/16, 2016 WI 96, reversing a per curiam court of appeals decision, 2014AP304-CR; case activity (including briefs)

A deputy activates his emergency lights upon seeing a car with a defective brake lamp weave over a highway fog line. The car slows for 100 feet, turns right into a driveway, and pulls into a garage attached to a house.  The deputy apprehends the driver inside the garage.  Was there a 4th Amendment violation? 

If you’re looking for a clear and concise answer, stop reading now. You won’t find it in SCOW’s decision or in this post. Although four justices (Ziegler, Roggensack, Gableman, Kelly) found that no 4th Amendment violation occurred, they could not agree on why. The “lead opinion” (Ziegler, Roggensack, Gableman) says that the deputy was justified in making a warrantless entry into the driver’s garage by the exigent circumstances of “hotly pursuing” a fleeing suspect who had committed a jailable offense. Four justices (Kelly, A.W. Bradley, Abrahamson, R.G. Bradley) reject that rationale completely. But then Kelly (concurring) says that  by driving his car into the garage the driver invited the deputy to conduct the traffic stop there. Ergo, no 4th Amendment violation.

What this means is that Weber loses his appeal, but the 3-justice “lead opinion” is not binding authority for future cases. See State v. Dowe, 120 Wis. 2d 192, 352 N.W.2d 660 (1984). State v. Lynch, 2016 WI 66, ¶145 n.21. Indeed, the agreement among Justices Kelly, A.W. Bradley, Abrahamson, and R.G. Bradley, see ¶86, that based on the facts here, the deputy lacked probable cause to believe that Weber had committed a jailable offense and that no exigent circumstances existed, is the court’s opinion on that issue and presumably may be cited in future cases. Dowe, 120 Wis. 2d at 194-195.

About that “jailable offense” for which the deputy was “hotly pursuing” the driver . . . it wasn’t driving with a broken brake lamp. It was the driver’s decision to decelerate 100 feet, turn and pull into his garage before stopping. That conduct, according to the “lead opinion,” gave the deputy probable cause to believe the driver was  fleeing or resisting an officer (see §346.04(2t) and §946.41(1)), crimes which are potentially punishable by imprisonment. ¶¶21-23, ¶¶43-45. What’s wrong with this reasoning?

Justice Kelly:

If these unremarkable facts satisfy the State’s admittedly light burden, it is difficult to imagine a traffic stop that would not provide probable cause to believe a jailable offense has occurred. Traffic stops normally take place on public highways, which means there is no sure and certain place that a law enforcement officer knows the person will stop. ¶60.

In finding probable cause here, we are telling Wisconsin’s motorists that their protection from warrantless searches and arrests incident to traffic stops is not our constitution, but instead law enforcement officers’ discretion. It cannot be that easy to elide constitutional safeguards. Not only does this record not support probable cause with respect to this statute [§346.04(2t)], it must not. ¶61. (Emphasis in original).

Justices A.W. Bradley and Abrahamson:

Deputy Dorshorst did not enter the garage because Weber was fleeing from the scene of two jailable offenses. Rather, he followed Weber into his garage because of a minor traffic violation. According to Deputy Dorshorst’s own testimony, “the reason why I was stopping him was for his high-mounted brake lamp.” ¶107.

[A]ccording to the lead opinion’s circular logic, the crime from which Weber was fleeing was his own flight. ¶134.

Justice R.G. Bradley:

If the flight itself creates the jailable offense that serves as an exigency and overcomes Fourth Amendment protections, a police officer can in essence create a jailable offense out of any attempted traffic stop or any attempt to speak with a citizen——even though no other jailable offense has occurred. ¶147.

Precisely because the absence of alarming facts in this case may render the court’s encroachment on the Fourth Amendment a stealthy one, I write to caution against this latest contribution to the gradual depreciation of the right of a person to retreat into the home, free from unreasonable physical entry. The Fourth Amendment does not permit governmental intrusion into a person’s home premised on a de minimis traffic law violation like a broken brake light. ¶141.

This, the first decision of the 2016-2017 term, suggests that SCOW will continue to issue splintered opinions, making it harder, not easier, for lower courts, lawyers, and citizens to discern the direction of Wisconsin law. See State v. Lynch, 2016 WI 66, ¶140 ( “The proliferation of separate writings (as in this case) and “lead opinions” is emblematic of the court’s work this “term” (September 2015 to June 2016).”)

It also provides our first peek at Justice Kelly’s approach to the Fourth Amendment and opinion writing. On the upside (at least for the defense), if you liked Kelly’s reasoning on why the deputy here had no probable cause to enter Weber’s garage, you’ll enjoy his analysis of the deputy’s conduct after he entered the garage. See ¶71.

On the downside, Kelly committed an appellate “no no.” He boldly went where the parties had not gone. They did not brief the issue of whether Weber consented to having the deputy conduct the traffic stop inside his own garage. And yet, in Kelly’s view, Weber lost on that point. Had Kelly stuck to the briefs, Weber would have won the war and the battle in this case.

Lastly, R.G. Bradley’s dissent seems like an about-face. Last term she came out of nowhere (literally, because she wasn’t a justice at the time of oral argument) to cast the deciding vote in State v. Matalonis (cert. denied), which according to Justice Prosser, extended the community caretaker doctrine far enough to swallow the 4th Amendment. See our post here. In this case, she decries stealth encroachments on our 4th Amendment right to be free from government intrusions into our homes. Will she stay this new course?

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{ 1 comment… add one }
  • Sonya Bice November 30, 2016, 2:59 pm

    A job well done by appellate counsel for Weber in this case. She beat the State on the State’s own arguments and got a majority, whatever the outcome.

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