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Defense win! COA says Payton rule prevents warrantless “Terry stop” inside home

State v. Gregory L. Cundy, 2023 WI App 41, District 4; case activity (including briefs)

A person called police and said they’d seen a particular vehicle back into a parked car at idle speed and then drive off. About 40 minutes later, an officer arrived at Cundy’s house, knowing that the suspect vehicle was registered to Cundy and finding it in the driveway. The officer knocked on the front door and eventually spoke with Cundy, who remained inside the threshold. At some point the officer declined to let Cundy end the conversation, and a bit later he ordered Cundy out, drove him in his squad to the accident scene, and had the witness identify him. The officer then returned Cundy to his home, where after some further discussion, he was arrested.

All parties agree that the officer seized Cundy when he told Cundy he had to continue speaking with him. Cundy argues that the officer lacked the warrant he would need to lawfully seize Cundy within his own home, making any this seizure illegal under Payton v. New York, 445 U.S. 573 (1980). But this argument only gets Cundy so far, because New York v. Harris, 495 U.S. 14 (1990), says statements of a defendant (and, presumably, other derivative fruits) later acquired outside the home do not need to be suppressed where the only illegality is that the police did not get a warrant for an arrest inside the home. And the things Cundy wants suppressed–his statements, the witness ID, and subsequent blood testing–are such derivative fruits of his in-home arrest.

But, notes Cundy, the Harris exception to the usual fruit-of-the-poisonous-tree rule  applies only if police had probable cause to arrest before going into the house. Here, he says, the officer couldn’t point to facts amounting to probable cause he’d committed a crime, so Harris doesn’t apply and Payton does: his warrantless arrest in the home, along with its fruits, must be suppressed.

The state doesn’t try to make the case that there was probable cause such that the Harris exception would apply even if the arrest violated Payton. In fact, the state does not even acknowledge Payton and its clear rule that in-home seizures of the person–absent exigency or some other circumstances–require a warrant. Instead, the state suggests that this is a simple Terry stop case in which Cundy was moved in the vicinity and for a reasonable purpose.

The state cites State v. Quartana, 213 Wis. 2d 440, 570 N.W.2d 618 (1997), as a case where the court of appeals approved the seizure of a person who was initially at home was then moved pursuant to a temporary detention. But, the court here notes, the Quartana opinion clearly points out that the defendant there did not argue his seizure violated his Fourth Amendment right to remain unmolested in his home, and the court thus did not address it. Cundy is making that argument; what’s more, the state can point to no authority for the implicit claim that there is a “reasonable suspicion exception” permitting police to invade the home to conduct a Terry stop.

As Cundy points out, such a rule would be nonsense: police with probable cause to arrest cannot enter, but police without probable cause (who only have reasonable suspicion of criminal activity) can?

The court therefore reaches to a previous non-published but citable case rejecting a “reasonable suspicion exception” to Payton, and by quoting it in this soon-to-be-published case makes it (soon to be) binding:

For the sake of our analysis, we will accept that the officer had reasonable suspicion [of operating while intoxicated because] it clarifies the point we wish to make, which is that reasonable suspicion does not create an exception to the warrant requirement under the Fourth Amendment for an in-home search or seizure under these circumstances. The State cites to Terry v. Ohio, 392 U.S. 1, 22 (1968) for the proposition that officers are allowed “to perform brief investigations with less than probable [cause] to determine if a person has committed a crime.” Terry does not authorize an officer to enter a private home. See, e.g., Moore v. Pederson, 806 F.3d 1036, 1054 (11th Cir. 2015) (“Home may be where the heart is, but it cannot be where the government is—at least for purposes of conducting a Terry-like stop […]” (footnote omitted)); United States v. Perea-Rey, 680 F.3d 1179, 1188 (9th Cir. 2012) (“[T]he Terry exception to the warrant requirement does not apply to in-home searches and seizures.” (citation omitted)).


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