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Exigent Circumstances – Destruction of Evidence (Drugs) — Entry of Residence

State v. Daniel Rodriguez, 2001 WI App 206, PFR filed 9/19/01
For Rodriguez: Diana Felsmann, SPD, Milwaukee Appellate

Issue: Whether warrantless police entry of a residence was justified under the following circumstances: the location was a drug “hot spot”; before entry, undercover officers saw three people enter and quickly leave; drug arrests had been made at the home two months earlier; and, when the undercover officers approached defendant, he fled into the house.

Holding: The government has the burden of showing both probable cause to believe that the house contained drugs, and also the existence of exigent circumstances. ¶10. Neither showing is made here: Though flight may establish reasonable suspicion, “it does not rise to the level of probable cause.” ¶13. The officers never identified themselves as the police; they did not observe any actual drug activity; they knew nothing about defendant: “Fleeing from strangers into the safety of a home does not constitute a ‘fair probability’ that drugs will be found.” ¶15.

Nor, for much the same reasons, can the government show exigent circumstances:

¶19. … There was no evidence that the officers had reason to believe that Rodriguez was a drug dealer or user. The officers had never seen him before. There is no evidence that the officers saw any known or suspected drug dealer or user enter or exit the residence. There is no evidence that the officers saw any illegal drugs.

¶20. Moreover, the State cannot rely on the ‘hot pursuit’ exception because ‘hot pursuit’ is defined as an immediate or continuous pursuit of [a suspect] from the scene of a crime.’ State v. Kryzaniak, 2001 WI App 44, ¶17, 241 Wis. 2d 358, 624 N.W.2d 389. There is nothing in the record to indicate that Rodriguez was a suspect being chased from the scene of a crime.

¶22. Thus, the question becomes whether the warrantless entry into a home is justified when an individual flees from an officer attempting to conduct an investigative stop. As in most Fourth Amendment cases, we cannot set forth a bright-line rule, but must examine each case under its particular facts and circumstances…. Here, the officers did not have probable cause to believe any offense had been committed. Rather, at best, the information they had supplied only reasonable suspicion.

¶23. Thus, Rodriguez is entitled to the ‘special protection’ afforded by the Fourth Amendment in guarding against unreasonable searches into private homes. In that respect, if an officer is going to enter a private residence without a warrant, the exigency factors must rise well above the facts and circumstances presented here. If we sanction a warrantless entry based upon bicycle riding, three visitors in and out of the home, and Rodriguez retreating into the home when asked, ‘What’s up?’ by strangers in an unmarked police car, we may as well grab a toboggan and start sliding because the revered privacy of an individual in his/her own home will become a slippery hill.


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