Warrantless Nonconsensual Entry to Effectuate Arrest – Attenuation Doctrine
Issue (composed by On Point):
Whether Wisconsin should adopt the rule of New York v. Harris, 495 U.S. 14 (1990) – post-arrest statements following illegal entry supported by probable cause but not exigent circumstances aren’t suppressible if made away from the home.
The court of appeals’ decision does a good job of laying out the competing lines of authority. (The decision is per curiam, but is written as if designed for citability if not publication. Hard to say why the court didn’t issue a signed opinion, given its detailed analysis.) As suggested, Harris “created a bright-line rule, holding that the remedy was to exclude all physical evidence and statements obtained from inside the home, but to admit any statements obtained outside the home,” slip op., ¶13. However, Wisconsin cases, ¶¶15-17, take a different tack, and apply attenuation analysis to such circumstances. In brief, attenuation analysis permits but doesn’t require suppression; Harris rejects attenuation analysis and precludes suppression as a matter of law. The court of appeals sums up the dilemma (¶18):
¶18 Thus, application of the Harris rule would lead to the peculiar result that statements obtained after a warrantless home entry and arrest cannot be suppressed under the Brown attenuation analysis, while statements obtained following a warrantless home entry and search can. This result appears contrary to Laasch, where our supreme court indicated, “[W]e believe that the warrantless entry of a dwelling is governed by the same constitutional principles, whether the entry is made to effect a search or an arrest.” Laasch, 84 Wis. 2d at 595; see also Smith, 131 Wis. 2d at 227-28.
The court of appeals lacks authority to overrule Wisconsin supreme court precedent, hence is compelled to follow Laasch, et al., Harris notwithstanding. The court thus grants relief under the Wisconsin line of authority, which with this grant is now very much at risk. The issue, it should be noted, has certainly been percolating in the court of appeals – only recently, the court “note(d) that when police illegally enter and illegally arrest a defendant in a home, the exclusionary rule does not necessarily bar evidence later obtained away from the home,” State v. Ultsch, 2011 WI App 17, ¶30 n. 6, citing Harris. And now it has been brought to a head.