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Arrest — In Residence, Based on Search Warrant

State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta


¶26. Cash also argues that Grable was ineffective for failing to seek suppression of certain statements he made on the basis that his arrest in his home was accomplished without an arrest warrant. Cash argues that his arrest was unlawful pursuant to Payton v. New York, 445 U.S. 573, 590 (1980), which prohibits a warrantless arrest in the home. Payton, however, is not an ironclad rule. InUnited States v. Winchenbach, 197 F.3d 548 (1st Cir. 1999), the court held that where the police are lawfully on the suspect’s premises by virtue of a valid search warrant, they may make a warrantless arrest of the suspect prior to the search if the arrest is supported by probable cause. Id. at 554. The court stated:

A search warrant represents a judicial determination that there is probable cause to invade the privacy of the suspect’s home. The impartial determination that supports the issuance of a search warrant justifies a greater intrusion than that supporting the issuance of an arrest warrant. Thus, once an officer has procured a search warrant, the privacy interests that led to the imposition of an arrest warrant requirement in Payton have been protected.

Winchenbach, 197 F.3d at 553, (quoting from Jones v. City of Denver, 854 F.2d 1206, 1209 (10th Cir. 1988)). The Winchenbach court went on to explain that Payton, although addressing the validity of an arrest, was essentially grounded on the “physical integrity of the home.” Winchenbach, 197 F.3d at 553. The court concluded that this interest was sufficiently addressed and protected by the existence of a valid search warrant. Id. at 553-54.

¶27. We agree with Winchenbach and we adopt it for purposes of Wisconsin law. Here, the police were lawfully present on Cash’s premises by virtue of a valid search warrant.9 And based on our earlier discussion, Cash’s warrantless arrest in his home was supported by probable cause. We therefore reject Cash’s assertion that Grable was ineffective for failing to challenge his warrantless arrest.10


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