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Resisting, § 946.41 – “Lawful Authority” – Initially Unlawful Act by Police Doesn’t Preclude Conviction for Defendant’s Subsequent Conduct

State v. Anna Annina, 2006 WI App 202
For Van Hout: Robert R. Henak

Issue/Holding: Although police entry into the defendant’s house was pursuant to a search warrant later declared to be invalid, the defendant’s acts in response to that entry amounted to disorderly conduct which did allow for an arrest under lawful police authority; defendant could therefore be convicted for resisting a lawful arrest for disorderly conduct, an event separate and apart from any resistance to the invalid warrant.The court says, ¶18, that it will leave for another day the question of reconciling State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998) (“a private citizen may not use force to resist peaceful arrest by one he knows or has good reason to believe is an authorized peace officer performing his duties, regardless of whether the arrest is illegal”) with § 946.41(1). See also U.S. v. Sledge, 8th Cir No. 06-1480, 9/7/06 (“resistance to an illegal arrest can furnish grounds for a second, legitimate arrest”). Though it didn’t come up in Annina, it follows from its result (and other authority such as Sledge) that the lawful arrest severs any connection between seizure of evidence and the underlying illegal police conduct, so that suppression isn’t available.

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