Issue (composed by On Point):
Is hot pursuit of a suspect based upon probable cause for a jailable offense a stand-alone justification for a warrantless home entry and arrest or must law enforcement reasonably believe that a delay in obtaining a warrant would endanger life, risk destruction of evidence, or greatly enhance the likelihood of the person’s escape?
That’s the short version. The State’s petition for review presents the long version. Basically, a deputy tried to stop Weber for a defective brake lamp by activating his emergency lights. Weber didn’t stop. He drove 100 feet further into his garage, got out of his car, and tried to enter his attached house. But the officer entered Weber’s garage, grabbed him by the arm, and moved him outside where he saw signs of intoxication and ultimately found other incriminating evidence. Weber was charged with OWI 10th, possession of marijuana, and resisting an officer. He filed and lost a motion to suppress. The court of appeals reversed for these reasons:
¶7 The problem with the State’s argument is that it relies on a recitation of applicable law that fails to acknowledge that the exigent circumstances requirement means that there must be a potential for danger to life, risk of evidence destruction, or likelihood of escape. The State cites State v. Richter, 2000 WI 58, ¶32, 235 Wis. 2d 524, 612 N.W.2d 29, for the proposition that “[t]he exigent circumstance of ‘hot pursuit’ is established” where there is an immediate or continuous pursuit of a suspect from the scene of a crime, but does not acknowledge that Richter also includes the requirement that the officer reasonably believes the delay in obtaining a warrant would endanger life, risk destruction of evidence, or greatly enhance the likelihood of the person’s escape. Id., ¶30. The State does not disagree that this requirement exists—it just ignores the topic.
¶8 Moreover, the State does not acknowledge Weber’s argument about lack of exigency. The State, thus, offers no explanation as to what circumstance created an exigency justifying an immediate warrantless entry. In essence, the State appears to assume that all hot pursuits qualify as exigent circumstances, but, as we have seen, provides no legal argument to support that assumption.
¶9 Weber’s argument about lack of exigency is supported by the law he cites, and required a response from the State. Even if we accept the State’s argument that the officer had probable cause to arrest Weber for resisting or obstructing before the deputy entered the garage, rather than merely citing him for the brake light, we fail to discern why an immediate warrantless entry was justified. There would be no physical evidence of obstructing for Weber to destroy in the house. Weber could not readily flee with the officer parked in the driveway. And there is no indication of a threat to safety.
The State’s PFR argues that the court of appeals misinterpreted Richter and that Wisconsin follows Justice Prosser’s concurrence in State v. Sanders, 2008 WI 85, ¶72, 311 Wis. 2d 257, 752 N.W.2d 713, where he wrote that “[h]istorically, the distinct exigency of hot pursuit has been sufficient to justify the warrantless entry of a dwelling to arrest a person for a misdemeanor such as obstructing an officer.” See our post on State v. Ferguson, which formally adopted Prosser’s concurrence in Sanders.