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Exigency – Destruction of Evidence (Drugs) – Entry of Residence – Following Controlled Buy

State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09
For Phillips: Michael J. Backes

Issue/Holding: Warrantless entry of residence, following controlled buy within it, was justified by the threat of destruction of evidence, given that, “after seeing the police outside the residence, Phillips retreated into the residence and shut the door after the police ordered him to stop,” ¶11. State v. Vanessa D. Hughes, 2000 WI 24; and State v. Edward Garrett, 2001 WI App 240, followed, as to idea that knowledge of police presence incentivizes imminent destruction of contraband.

Elephant in the room: “knock and talk.” After the controlled buy inside the house, the police determined to follow through with a knock and talk rather than a warrant. To their good fortune, Phillips happened to be in view, in the doorway, and when he saw them he retreated inside. He argues on appeal that the police thus created their own exigency, but the court holds that Phillips himself created the exigency by retreating inside; therefore, the court “need not delve into the” propriety of the knock and talk strategy, ¶11.

Interesting dissent, ¶¶20-30, which essentially makes the point that the knock and talk strategy was unreasonable in the first place, that its purpose of circumvent the warrant requirement. Nonetheless, the majority usefully catalogs a severe split among federal circuits on “whether the police impermissibly create exigent circumstances by knocking on the door,” ¶11 n. 5. Indeed, this is a recurrent issue—and, for those keeping score at home, whenever mention is made of a deep split among the circuits, think: “cert-worthy.” For a recent example of just how enthusiastically the police sometimes employ the practice, see Hardin v. State, 2009 Fla. App. LEXIS 15198 (Fla. 2d DCA October 9, 2009) (consent following knock and talk deemed coercive on somewhat extreme facts).

Incidentally, the fact that Phillips was standing in his doorway, not outside the house, when he spotted the police is irrelevant to the analysis, ¶19 n. 9. It’s a destruction-of-evidence, not hot pursuit, case, ¶19. Hard to see, though, how Phillips’ placement in the threshold of the doorway makes any difference anyway, so long as he was exposed to public view, United States v. Santana, 427 U.S. 38 (1976).


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