State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09
For Phillips: Michael J. Backes
¶8 There are four exigent circumstances that may justify a warrantless search: “(1) an arrest made in ‘hot pursuit,’ (2) a threat to safety of a suspect or others, (3) a risk that evidence will be destroyed, and (4) a likelihood that the suspect will flee.” State v. Kiekhefer, 212 Wis. 2d 460, 476, 569 N.W.2d 316 (Ct. App. 1997) (citations and one set of internal quotation marks omitted). The test for determining whether the requisite exigent circumstances existed to justify the warrantless search is an objective one, with the focus on “whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of the suspect’s escape.” Hughes, 233 Wis. 2d 280, ¶24. Our review of the exigent circumstances is “directed by a flexible test of reasonableness under the totality of the circumstances.” State v. Smith, 131 Wis. 2d 220, 229, 388 N.W.2d 601 (1986). “However, the government cannot justify a search on the basis of exigent circumstances that are of the law enforcement officers’ own making.”Kiekhefer, 212 Wis. 2d at 476; see also Hughes, 233 Wis. 2d 280, ¶28 n.7. Here, the State relies on both the first and third exceptions for a warrantless entry, namely, an arrest made in hot pursuit and the risk that evidence will be destroyed.