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Warrantless entry allowed where police pounding on front door sparks shuffling sounds

State v. Andre Bridges, 2013AP350-CR, district 2; 1/27/15 (not recommended for publication); case activity

If any doubt remained, rest assured that if police have probable cause to believe there are drugs in your apartment, pound on your door, yell “Milwaukee police” and then hear sounds of movement, they may bust down your door and conduct a “protective sweep.”

Bridges was visiting his buddy’s apartment. He did not contest that police had probable cause to belive that they would find drugs there. But he did object to their warrantless entry into the apartment based, allegedly, on exigent circumstances: the possible destruction of drugs. Guess what the police found after they barged into the apartment? Drugs and guns. Bridges argued that police pounding created the exigency. Until then, there was no shuffling noise and no exigency. Thus, he contended, the drugs and guns should be suppressed.

Been there. Rejected that. The court of appeals held:

Our supreme court rejected a similar argument in State v. Robinson, 2010 WI 80, 327 Wis. 2d 302, 786 N.W.2d 463, where it held that the police who “knock and announce” are not impermissibly creating exigent circumstances because knocking on someone’s door is entirely lawful.  Id., ¶32.  The actions of those behind the door and how they choose to respond to the “knock and announce” was what created the exigent circumstances, not the police action of knocking. Slip op. ¶13.

Here, the police lawfully entered the apartment building when the tenant from apartment two let them into the building.  The police chose to do a “knock and talk” at apartment one which is a proper investigative technique.  See State v. Phillips, 2009 WI App 179, ¶11 n.6, 322 Wis. 2d 576, 778 N.W.2d 157.  When doing so, the police heard the occupants moving, shuffling, and something that sounded like things were being moved around.  This caused the police to reasonably believe that the occupants were destroying evidence.  Drugs, especially ecstasy, can be quickly and easily destroyed.  The police actions here did not create the exigent circumstances.  Rather, the occupants’ response to the knocking did. Slip op. ¶13.

You see the problem. So did Justice Ginsberg. In her dissent to Kentucky v. King, 131 S. Ct. 1849 (2011) she argued that this kind of reasoning “arms police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.” She asked whether our homes will actually remain secure “if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity[.]” Id. at 1846. To maintain the protections of the Fourth Amendment, she argued, the exigent circumstances must exist “when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.” Read more on King and its limits here and here. While you’re at it, read more on Robinson here. Gets some ideas, but don’t get your hopes up.

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