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Warrantless Entry of Residence – Exigency – Effectuate Misdemeanor Arrest

State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion

Issue/Holding: Support for warrantless entry of a residence to effectuate an arrest may be found where the offense is jailable, even if a misdemeanor; State v. Mikkelson, 2002 WI App 152 overruled:

¶27      Our review of the reasoning of Mikkelson, as compared with that of Welsh and Santana, causes us to overrule Mikkelson and to adopt Justice Prosser’s concurrence in State v. Sanders, 2008 WI 85, 311 Wis. 2d 257, 752 N.W.2d 713. As Justice Prosser noted, Welsh and Santana did not create a bright-line rule requiring the underlying offense to be labeled a felony in order for exigent circumstances to justify a warrantless home entry. [8] Id., ¶71 (Prosser, J., concurring). Instead, Welsh held that the gravity of the underlying offense is “an important factor to be considered when determining whether any exigency exists,” Welsh, 466 U.S. at 753, and that where the underlying offense is “a noncriminal, civil forfeiture offense for which no imprisonment is possible,” exigent circumstances will rarely, if ever, be present, id. at 754.

¶28      Welsh does not create a felony/misdemeanor distinction for finding exigent circumstances, contrary to the holding in Mikkelson. Instead, in determining the extent to which the underlying offense may support a finding of exigency, “the critical factor . . . is . . . ‘the penalty that may attach.'” Sanders, 311 Wis.  2d 257, ¶81 (Prosser, J., concurring) (quoting Welsh, 466 U.S. at 754 n.14). We reach this conclusion since the penalty imposed for an offense “‘provide[s] the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.'” Id.(quoting Welsh, 466 U.S. at 754 n.14).

¶29      Accordingly, courts, in evaluating whether a warrantless entry is justified by exigent circumstances, should consider whether the underlying offense is a jailable or nonjailable offense, rather than whether the legislature has labeled that offense a felony or a misdemeanor. To hold otherwise would allow “the perpetrator of a serious misdemeanor offense, for which jail time is a penalty, to avoid immediate arrest merely because of the label (‘felony’ or ‘misdemeanor’) chosen by the legislature.” Id., ¶93 (citation omitted). Such a result is not mandated by Welsh.

No bright line, then, any longer separates misdemeanors from felonies for purposes of warrantless entry to arrest. Does this also mean that such entries are necessarily lawful? Not clear. All the majority says on this point, really, is that probable cause to believe Ferguson committed disorderly conduct, a jailable offense, potentially supported warrantless police entry, ¶30. “Gravity” of the underlying offense is an “important factor”: just because the offense is jailable doesn’t mean it’s sufficiently “grave”—or so you might think. And although this is no doubt something to be hashed out case-by-case, the court doesn’t say what ought to be weighed in any given case. Perhaps this is because the viability of Mikkelson wasn’t really presented under the facts and that the majority, despite its protestation to the contrary, ¶30 n. 9, reached an issue that was really an abstraction to the case, and thus engaged in a bit of judicial activism.To belabor the obvious on a separate point: probable cause to arrest isn’t enough, of course, for warrantless entry. There must be some sort of exigency, such as hot pursuit or evidence destruction, e.g., ¶20.

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