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Payton v. New York Violation (Unlawful Entry of Residence, but with Probable Cause) and New York v. Harris Attenuation Doctrine

State v. Devin W. Felix, 2012 WI 36, reversing unpublished decision; for Felix: Leonard D. Kachinsky; case activity

Under Payton v. New York, 445 U.S. 573 (1980), warrantless arrest following nonconsensual entry of a home is illegal unless supported by probable cause and exigent circumstances. However, New York v. Harris, 495 U.S. 14 (1990) deems non-suppressible as a matter of law statements made after a Payton violation statements if made away from the home. The supreme court, which has not previously had occasion to adopt Harris, now does so:

¶4   We continue our usual practice of interpreting Article I, Section 11 of the Wisconsin Constitution in accord with the United States Supreme Court’s interpretation of the Fourth Amendment.  Thus, we adopt the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation.  We hold that, where police had probable cause to arrest before the unlawful entry, a warrantless arrest from Felix’s home in violation of Payton requires neither the suppression of statements made outside of the home after Felix was given and waived his Miranda rights, nor the suppression of physical evidence obtained from Felix outside of the home.  Assuming without deciding that Felix’s warrantless arrest from his home was in violation of Payton, we conclude that, pursuant to the Harris rule, the following evidence that police obtained outside of his home is admissible: Felix’s signed statement, made after Felix was given and waived his Miranda rights, the buccal swab obtained at the police station, and Felix’s clothing seized at the jail, as well as any derivative evidence.[12]

¶41  The Harris Court drew a line at the entrance to the home because that is the heart of the Fourth Amendment and the focus of Payton.  Id. at 17-18.  Harris provides a narrow rule: where police had probable cause before the unlawful entry and arrest, an arrest in violation of Payton does not require the suppression of evidence obtained from the defendant outside of the home, such as statements obtained after Miranda warnings and the waiver of those rights.  For this narrow category of evidence, it is not necessary to do a Brown analysis where it is clear as it is here that the evidence is not derived from the illegality.  See id. at 19-20.  In other situations, this court and the United States Supreme Court continue to require a Brown analysis to ensure that evidence or statements obtained following police misconduct are not the product of the illegality.  Additionally, as the Supreme Court noted in Harris, evidence will still be suppressed if it was “the product of coercion, if Miranda warnings were not given, or if there was a violation of the rule of Edwards v. Arizona, 451 U.S. 477 (1981).”  Id. at 20.  The Harris rule is a common-sense limitation on the exclusionary rule where excluding statements and evidence does not serve the deterrent purpose of the exclusionary rule or the purpose of the Payton rule.

¶42  While this court’s decisions in Smith and Walker, which preceded Harris, applied a Brown attenuation analysis to determine the admissibility of evidence that is covered by the Harris rule, we follow the United States Supreme Court’s evolving interpretation of the Fourth Amendment.[29]  In accord with Harris, we hold that where police had probable cause to arrest before the unlawful entry and warrantless arrest from a defendant’s home, this violation of Payton does not require the suppression of evidence obtained from a defendant outside of the home, such as statements obtained after the defendant was given and waived his Miranda rights.

¶50  Therefore, we conclude that, under Harris, there is no  basis for suppressing Felix’s written, signed statement after he was given and waived his Miranda rights at the police station, the buccal swab that he provided at the police station, and his clothing that police seized at the jail.

¶51  We continue our usual practice of interpreting Article I, Section 11 of the Wisconsin Constitution in accord with the United States Supreme Court’s interpretation of the Fourth Amendment.  Thus, we adopt the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation.  We hold that, where police had probable cause to arrest before the unlawful entry, a warrantless arrest from Felix’s home in violation of Payton requires neither the suppression of statements outside of the home after Miranda rights were given and waived, nor the suppression of physical evidence obtained from Felix outside of the home. Assuming without deciding that Felix’s warrantless arrest from his home was in violation of Payton, we conclude that, pursuant to the Harris rule, the following evidence that police obtained outside of the home is admissible: Felix’s signed statement, made after Felix was given and waived his Miranda rights, the buccal swab obtained at the police station, and Felix’s clothing seized at the jail, as well as any derivative evidence.

The court assumes a Payton violation (warrantless entry with probable cause but not exigent circumstances or consent, ¶¶28-29). Justice Prosser’s concurrence argues that there was in fact no such violation: the officers knocked on the door, it swung open, they saw Felix and ordered him outside, where they effectuated the arrest; in other words, the police never crossed the threshold of the residence. ¶¶53-107. This amounted to, in Justice Prosser’s view, a “constructive entry,” which simply isn’t covered by 4th amendment protection against intrusions on privacy and trespass. The dissent disputes that view, ¶109 and id. n. 1. The dissent, as a matter of greater state constitutional protection, decline to adopt Harris; further, would decline to apply it to seizure of physical evidence, ¶¶108-134.

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