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COA finds exigent circumstances based on screaming and a slap

State v. Jesse Rogalla, 2019AP1486-CR, 10/26/21, District 3 (1-judge opinion, ineligible for publication; case activity (including briefs)

Officer Klieforth was dispatched to a home after someone reported that Rogalla was yelling at a woman inside. Klieforth heard both parties screaming, peeked in a window, saw Rogalla yelling as a woman knelt before him crying “You don’t have to do this” and “Why?” After hearing a loud slap, Klieforth entered without a warrant based on fear for the woman’s safety.

The State charged Rogalla with disorderly conduct as an act of domestic violence.  Rogalla moved to suppress arguing that there were no exigent circumstances to justify the officer’s warrantless entry.

The parties disagreed over the standard for determining exigent circumstances. The State claimed that an officer may enter a home where he reasonably believes that delaying to get a warrant will result in a “threat to someone’s physical safety.” See State v. Richter, 2000 WI 58, ¶¶29, 235 Wis. 2d 524, 612, N.W.2d 29. Rogalla argued that the State must prove that a delay will “gravely endanger life.” See Richter, ¶30. The court of appeals agreed with Rogalla. Opinion, ¶¶8-9.

But the court of appeals further held that Rogalla still loses under the “gravely endanger life” standard:

¶16 . . . Klieforth had independent, personal knowledge of the ongoing argument inside the home and heard an aggravated, verbal dispute escalate into what he believed to be physical violence. Klieforth heard Rogalla swearing at the female, and Rogalla sounded like he was in a rage. Klieforth could also see the female in a vulnerable position as Rogalla stood over her; he heard her crying and telling Rogalla, “You don’t have to do this”; he heard Rogalla say, “Wrong answer,” before hearing a loud slap; and he heard the female “continuously screaming” after the slap. At the time Klieforth entered the home, which was roughly three minutes after he arrived on the scene, nothing suggested that the argument might cease, and an officer in Klieforth’s position could reasonably believe that immediate action was necessary to prevent serious harm to the female.

The court of appeals noted that three Wisconsin cases applying the “gravely endanger life” test, found exigent circumstances based on facts less compelling than these. One of those cases is Richter. The other two are State v. Subdiaz-Osorio, 2014 WI 87, 357 Wis. 2d 41, 849 N.W.2d 748 (a fractured opinion) and State v. Lee, 2009 WI App 96, 320 Wis. 2d 536, 771 N.W.2d 373.

The court of appeals also held that the facts of this case are actually similar to Brigham City v. Stuart, 547 U.S. 398 (2006), where police responded to a loud party, looked inside the house, and observed 4 adults attempting to restrain an juvenile who broke free and hit one of the adults to in the face, sending the adult to the sink spitting blood. According to SCOTUS, the officers had an objectively reasonable basis for believing that the injured adult might need help and that the violence was just beginning.

The court of appeals’ recitation of Brigham leaves out the part about the police observing the juvenile hitting the adult so hard that the adult ran to the sink spitting blood. Compare Opinion ¶¶19-20 with Brigham, 547 U.S. at 406.

Rogalla also argued that Officer Klieforth should have either obtained a warrant first or knocked and announced himself before entering. The court of appeals dismissed both arguments. It would have taken several minutes to obtain a warrant in a situation where an argument had turned physical and was escalating. Plus Klieforth testified that he did not know whether Rogalla had a weapon or whether more harm might come to the woman if he announced his presence. Opinion, ¶¶23-24.

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