State v. Eric Dwayne Rogers, 2008 WI App 176, PFR filed 12/12/08
For Rogers: Mark D. Richards
Issue/Holding: Warrantless entry of Rogers’ home, following seizure of contraband from his car, was unlawful:
¶19 In this case, the police entered Rogers’ residence after seizing contraband from his car and person and then seeing Rogers’ brother and others at the scene talking on their phones. This triggered the officers’ entry into Rogers’ residence, upon the silence of Rogers’ elderly mother, and their protective sweep of the residence. The officers did not find or seize any contraband during their protective sweep. Still, they remained in the residence for two more hours, monitoring the inhabitants’ movements, but not otherwise searching the residence. Then, after the warrant arrived, the officers searched Rogers’ residence and seized contraband.
¶20 We hold that the initial entry and protective sweep of Rogers’ residence was an unlawful, warrantless entry because no exigent circumstances were present. The officers’ hunch, after seeing Rogers’ brother and others on their cell phones, that someone would destroy evidence at Rogers’ residence was just that—a guess that someone might be calling Rogers’ home. The officers actually had no idea who Rogers’ brother or the other persons were calling, and probably to this day, do not know for sure who they were calling. Nonetheless, the officers figured that one of them might be calling the residence, that more drugs might be located in that residence and that they better get over to the residence and secure it before the drugs disappeared. This is not enough information to qualify as exigent circumstances. To constitute exigent circumstances, the officers would have needed knowledge that someone would in fact destroy evidence at a specific place. They would have had to actually overhear one of those phone calls, and hear that one or more of them was attempting to get to Rogers’ residence before the police or was directing someone to destroy evidence at that residence. Entering Rogers’ residence based on just that guess, after confronting an elderly woman who needs oxygen and uses a walker, and seeing no other person in the residence, was not warranted. The officers could have used a less intrusive method by controlling who entered and exited the residence without actually entering and remaining in the residence. See Illinois v. McArthur, 531 U.S. 326, 336 (2001).
The police, however, didn’t seize anything at this time but, rather, simply stayed in the house for 2 hours while a search warrant was prepared based on information not related to the entry. Ah, you’re probably wondering, just how did they while away the time during this brief sojourn? “The officers proceeded to wait inside the residence and watch their television show for about two hours,” ¶6? Their show? “Cops”? “Dog, The Bounty Hunter”? We’ll never know. In any event, seizure of evidence during execution of that warrant was, the court separately holds, sufficiently disconnected from the illegal entry to be admissible.