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State v. Steven T. Delap, 2016AP2196-CR, petition granted 7/18/2017

Review of an unpublished court of appeals decision; case activity (including briefs)

Issue (from petition for review):

Whether the doctrine of hot pursuit always justifies a forcible warrantless entry into the residence of one suspected of minor criminal activity. In the present case, the court of appeals declined to consider Mr. Delap’s argument that the conduct of law enforcement in this case, even if justified as legitimate ‘hot pursuit’ of a fleeing suspect, was nonetheless unreasonable under the Fourth Amendment. Although Mr. Delap’s argument presented a chain of reasoning and citation to legal authority, the court of appeals characterized the argument as ‘undeveloped’ and did not consider it.

The Wisconsin Supreme Court has recently answered the question presented here: no, there is no bright line rule that police may always enter a home in hot pursuit for a minor offense. That was in State v. Weber, 2016 WI 96, ¶34, 372 Wis. 2d 202, 887 N.W.2d 554, where the court said:

[T]he State urges this court to establish a rule that hot pursuit of a suspect based on probable cause for a jailable offense will always justify a warrantless home entry and arrest. We decline to conclude that the confluence of hot pursuit and probable cause to arrest for a jailable offense will always justify a warrantless entry. The touchstone of the Fourth Amendment is reasonableness, and reasonableness … is measured in objective terms by examining the totality of the circumstances.

(Weber also contains, at ¶¶28-33, a succinct discussion of hot pursuit and the broader category of exigent circumstances, as well as the doctrines’ applicability, or lack thereof, to those suspected of felonies, misdemeanors, and non-jailable civil offenses.)

So it’s a bit unclear what this case is going to do for the law, other than perhaps provide an example of what does or doesn’t pass Fourth Amendment muster. Delap ran into his house after police told him to stop (they had warrants for his arrest, though it’s unclear whether they were for criminal offenses, family court, or what) and they forced open his door and drew a taser on him. Reasonable? We’ll see sometime in the next term.

Aside from the substantive issue, it’s interesting that Delap secured review despite the court of appeals finding his argument “undeveloped.” Looking at Delap’s brief, that epithet certainly seems unjust here. So, it’s heartening that Delap will, presumably, get a decision on the merits after all.

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