State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Where the police had undisputed probable cause to arrest Ferguson for disorderly conduct outside her apartment, but entered her apartment without a warrant to arrest her, they acted with “lawful authority” for purposes of obstructing, § 946.41, when transporting her away from the apartment, whether or not the entry was supported by exigent circumstances:
¶39 The reasoning and conclusions of Harris are applicable to Ferguson’s struggles while the police were escorting her down the apartment stairs and placing her into the squad car. This is so because the police had probable cause to arrest Ferguson for disorderly conduct so that she was lawfully in their custody. Once Ferguson was removed from her house, the police were not required to re-arrest her for disorderly conduct in order to make her continued custody lawful. Therefore, her continuing struggles outside of her home occurred when the police were lawfully transporting her to the station house.¶40 Our conclusion in this regard is supported by other courts that have considered the issue of whether continued custody subsequent to an arrest based on probable cause is lawful, even though the defendant was not arrested in a lawful manner. See United States v. Hudson, 405 F.3d 425, 439 (6th Cir. 2005) (“[Harris] emphasized that although the manner of the defendant’s arrest was unconstitutional, his continued custody——supported by probable cause——was not unlawful and he could not claim ‘immunity from prosecution because his person was the fruit of an illegal arrest.'”); United States v. Villa-Velazquez, 282 F.3d 553, 556 (8th Cir. 2002) (holding that, because law enforcement officers had probable cause to arrest the defendant, “the evidence obtained during the time that [the defendant] was in lawful custody” should not be suppressed because of “the earlier unlawful entry into his residence”); Torres v. State, 619 A.2d 566, 569 (Md. Ct. Spec. App. 1993) (“Once the suspect is outside the protected premises, . . . the initially invalid restraint ripens into valid restraint.”);Roberson, 287 Wis. 2d 403, ¶16 (noting that “the Harris court distinguishedPayton as protecting the home itself, not the defendant’s person, and, as a result, Harris’ confession made outside of the home was admissible”).
In other words, the Payton-Dunaway rule is limited to entries lacking probable cause. Entry based on probable cause but lacking exigent circumstances nonetheless supports lawful “continued custody.” Thus, statements made at the station house are admissible notwithstanding violation of the warrant (as opposed to probable cause) requirement. But this does not diminish the principle, recognized by one of the cases cited by the majority,Hudson, that “evidence the police obtained by virtue of their arresting … in an illegal manner be suppressed.” It’s probably obvious anyway, but evidence obtained during and as a result of a violation of the warrant requirement is suppressible.