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Defense win! Warrantless entry into hotel room violated the 4th Amendment

State v. Eric D. Bourgeois, 2022 WI App 18; case activity (including briefs)

Police went looking for Bourgeois at a hotel because he might have been in possession of stolen handgun, he had PTSD, and he had a drug problem. At 2:00 a.m., despite a “do not disturb” sign, 3 officers tried to enter his room unannounced first using a key card and then a master key. Due to the chain lock, they could only peek through but they saw that Bourgeois alone and unarmed  He declined to let them in and turned away. Claiming exigent circumstances, police busted through the hotel door.

Thirty to forty minutes passed before police broke into Bourgeois’s room.  They did find a handgun. But they also alarmed him and he began making threats to them. They arrested him and took him to the VA Hospital for treatment and then to the Milwaukee County Medical Hospital where medical professionals refused to admit him. Police then dropped Bourgeois off, uncharged, at his duplex where he threatened the neighbor who reported the stolen handgun.  When police returned, he threatened them again. This time he was charged.

Note: Mukwonago police asked West Milwaukee police to look for Bourgeois at the hotel. Footnote 2 explains that Mukwonogo police had been told that Bourgeois had made suicidal threats, but they determined he did not fit the criteria for a Chapter 51 commitment.  They did not convey this information to the West Milwaukee police. Thus, Bourgeois’s alleged suicidal ideation never became part of the exigent circumstances analysis.

The State charged Bourgeois with a slew of offenses. After the circuit court denied his motion to suppress, a jury convicted him only of theft of a handgun and threatening an officer.

The court of appeals reversed the order denying suppression and the conviction for theft of a handgun. It did not reverse the “threatening an officer” conviction because Bourgeois created new criminal evidence for this charge after police unlawfully entered his hotel room and found the handgun. Opinion, ¶30.

The State defended the warrantless search based on exigent circumstances under State v. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29 and State v. Kirby, 2014 WI App 74, 355 Wis. 2d 423, 851 N.W.2d 796. The court of appeals distinguished both cases.

Richter involved a warrantless entry into a trailer showing signs of forced entry. There, police had exigent circumstances because they were seeking an intruder who had forcibly entered two occupied homes at night, and they believed a threat to safety existed. Opinion, ¶21.

In Kirby, two police officers went to an apartment where the door was wide open and stood in the doorway talking to 5 guys who had just been in a fight. The officers then received reliable information that there was a black backpack containing a sawed-off shotgun inside the apartment. They took a few steps in, saw the backpack, and appropriately determined that it was a safety risk. Opinion, ¶22.

In contrast, police were told that Bourgeois “may” have a stolen handgun. They encountered a locked hotel door marked “do not disturb.” They had no reason to believe that Bourgeois was violent or that they were outnumbered. Plus the room was quiet. From this, a reasonable officer could conclude that Bourgeois was not in the room, or he was asleep, or he was exercising his right not to interact with the officers.  Opinion, ¶24. 

Bottom line: The State failed to show clear and convincing evidence of a real immediate and serious risk of harm to Bourgeois or the officers that justified their entry into his room without first procuring a warrant.  Opinion, ¶25.

The court of appeals also rejected the State’s backup argument. Allegedly, exigent circumstances existed when, peeking through the crack in the door, the officers observed Bourgeois turning away from them. This failed because the officers had no right to be peering into Bourgeois’s room. Opinion, ¶26 (citing State v. Buchanan, 2011 WI 49, ¶23, 334 Wis. 2d 379, 799 N.W.2d 775 and Kentucky v. King, 563 U.S. 452, 462-63 (2011)). Furthermore, officers cannot justify a search based on exigent circumstances that they created. Id. (citing State v. Robinson, 2010 WI 80, ¶24, 327 Wis. 2d 302, 786 N.W.2d 463 and State v. Guard, 2012 WI App 8, ¶14, 338 Wis. 2d 385, 808 N.W.2d 718 (2011)).

 

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