State v. Cordarol M. Kirby, 2014 WI App 74; case activity
The court of appeals holds that “while exigent circumstances may justify entry, the fact that entry has already been made does not necessarily invalidate reliance on the exigent circumstances doctrine.” (¶22). Thus, because in this case there were exigent circumstances justifying police entry into an apartment to locate a backpack the police believed contained firearms, it “does not matter” that an officer had earlier stepped over the threshold of the apartment door to converse with people inside.
While investigating reports of a fight, police entered an apartment building (with consent) and located a suspect, who turned out to be Kirby, in the hallway. Kirby led police to the apartment he’d come from, the door to which was standing open. One officer talked to Kirby in the hallway, another spoke to four other men inside the apartment, and while doing so she went “a few steps” past the threshold into the apartment. The officers were about to leave when a police investigator called advising them to look for a black backpack, which an informant said contained firearms. The officer inside the apartment took a couple more steps to get a better view and saw a black backpack. Concerned about their safety, the officers handcuffed the five men, picked up the backpack, and asked who it belonged to. No one claimed it, and no one objected when the officers announced they would open it. Inside was a sawed-off shotgun and evidence suggesting the pack belonged to Kirby. (¶¶2-12).
Assuming Kirby had a reasonable expectation of privacy in the apartment, the court holds that the officer’s being a few steps over the threshold “is completely irrelevant here” (¶17) because there were exigent circumstances justifying the warrantless entry:
¶18 In the case at hand, exigent circumstances that developed during this investigation justified the warrantless search and seizure of the backpack with the sawed-off shotgun in it. This officer was in the midst of completing her interview of several men suspected of involvement in a fight nearby. She was even readying to leave with the admonition to tell the men to “knock it off.” Then, she received information that the men possessed a black backpack with weapons in it—a sawed-off shotgun and a handgun… There was already a previous report that the chief aggressor in the fight, who fit Kirby’s description, had threatened to return to the scene with a weapon. The officer initially saw no weapon at the scene, but then received a report that these men involved in the fight had a black backpack with a sawed-off shotgun and a handgun in it. Importantly, even had the officer been outside the threshold of the apartment instead of having crossed over it, this new information would have created the same exigent circumstances justifying entry into the apartment to see if there was a black backpack near these men like the one described.
¶19 Therefore, it is immaterial that, as it so happened, the officer had already stepped into the apartment when the exigent circumstances arose. Whether or not the men’s behavior constituted consent to the officer’s entry,.. the fact is that so long as she was standing in the vicinity of this group of men when she received the information that they might possess a backpack with loaded weapons in it, her search for and seizure of the backpack was, at that moment, justified by exigent circumstances. Asking the men to wait while she got a warrant to search for the backpack could have provoked violence. See [State v.] Limon, [2008 WI App 77,] 312 Wis. 2d 174, ¶¶28, 33-34[, 751 N.W.2d 877] (permitting search of purse for a weapon based upon exigent circumstances when officers conducting an investigation were “outnumbered and without backup” and reasonably suspected they could be in physical danger from a weapon). The only reasonable course of action was to temporarily handcuff as many of the men as she had handcuffs for and then conduct a limited protective search for a backpack in the vicinity.
The exigent circumstances justified the search of the backpack, assuming Kirby had an expectation of privacy in it. (¶20). Alternatively, the disavowal by Kirby (as well as the other men) of any connection with the backpack and its presence in an apartment over which he apparently had no control means Kirby had no expectation of privacy. (¶21).