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“In-Home Seizure” – “Constructive Entry”

City of Sheboygan v. Brian J. Cesar, 2010 WI App 170 (recommended for publication); for Cesar: Andrew Mishlove, Lauren Stuckert; Cesar BiC; City Resp.; Reply; AG Amicus

Police, investigating a recent traffic accident, knocked on Cesar’s door and rang his doorbell “numerous” times for up to 10 minutes, and threatened to remain until he came out or they got a warrant; Cesar’s leaving the house to talk to them was a voluntary act, not the product of a seizure:

¶13      …  Thus, a “knock and talk” interview at a private residence that has lost its consensual nature and has effectively become an in-home seizure or “constructive entry” may trigger Fourth Amendment scrutiny under Bostick.  Id. at 434; see also United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005) (a “constructive entry” occurs when the police do not enter the house but “deploy overbearing tactics that essentially force the individual out of the home”).  Although the “constructive entry” doctrine has not been expressly adopted by Wisconsin courts, it provides a Fourth Amendment check on “knock and talk” encounters and we employ it here as the backdrop to our analysis.

¶14      It is undisputed that the officers did not enter Cesar’s home, and Cesar concedes that there is no Wisconsin case law recognizing an in-home seizure when there is no entry to the home by police.  Cesar therefore relies on two federal court cases, United States v. Jerez, 108 F.3d 684 (7th Cir. 1997) and United States v. Reeves, 524 F.3d 1161 (10th Cir. 2008), in support of his contention that he was constructively seized within his home even though the police did not physically enter it.  We have reviewed both cases and conclude that Cesar’s reliance is misplaced.

¶17      In Reeves and Jerez, the courts considered the following nonexhaustive list of relevant factors in determining whether a “constructive entry” to a residence has occurred during a “knock and talk”:  the time of day, the number of officers present, the show of authority and officer persistence.  And, while there are certain facts in this case that are akin to those in Reeves and Jerez, there are important factual distinctions.  First, the officers approached Cesar’s home shortly after he returned home from the store; unlike in Jerez, there is no suggestion in the record that Cesar was awakened by the police conduct, and unlike in Reeves, the encounter did not take place in the early morning hours.  Second, although there were three officers at the residence, one was stationed at the back of the home leaving only two officers actively attempting to make contact with Cesar.  Third, unlike the facts in Jerez or Reeves, the record in this case is void of any commands, express or implicit, made by the officers.  Rather, while the officers knocked persistently at the outset, upon establishing contact with Cesar, they informed Cesar of his options and requested his cooperation.

Pounding on a door for 10 minutes, peering into windows, and threatening to get a warrant probably isn’t the image that leaps to mind when you hear the benign phrase, “knock and talk.” Make that, “probably wasn’t.” As for the threat to get a warrant, the court offers this important qualification, ¶18 n. 6:

Cesar does not contend that the officers would not have been able to obtain a warrant if it became necessary.  See State v. Kiekhefer, 212 Wis. 2d 460, 473, 569 N.W.2d 316 (Ct. App. 1997) (“Police may not threaten to obtain a search warrant when there are no grounds for a valid warrant, but ‘when the expressed intention to obtain a warrant is genuine … and not merely a pretext to induce submission, it does not vitiate consent.’” (Citation omitted.)).

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