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State v. Antonio K. Phillips, 2009 WI App 179

court of appeals decision; for Phillips: Michael J. Backes; case activity

Warrantless Entry – Exigent Circumstances 

¶8        There are four exigent circumstances that may justify a warrantless search: “(1) an arrest made in ‘hot pursuit,’ (2) a threat to safety of a suspect or others, (3) a risk that evidence will be destroyed, and (4) a likelihood that the suspect will flee.” State v. Kiekhefer, 212 Wis. 2d 460, 476, 569 N.W.2d 316 (Ct. App. 1997) (citations and one set of internal quotation marks omitted). The test for determining whether the requisite exigent circumstances existed to justify the warrantless search is an objective one, with the focus on “whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of the suspect’s escape.” Hughes, 233 Wis. 2d 280, ¶24. Our review of the exigent circumstances is “directed by a flexible test of reasonableness under the totality of the circumstances.” State v. Smith, 131 Wis. 2d 220, 229, 388 N.W.2d 601 (1986). “However, the government cannot justify a search on the basis of exigent circumstances that are of the law enforcement officers’ own making.” Kiekhefer, 212 Wis. 2d at 476; see also Hughes, 233 Wis. 2d 280, ¶28 n.7. Here, the State relies on both the first and third exceptions for a warrantless entry, namely, an arrest made in hot pursuit and the risk that evidence will be destroyed.

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 presence of police 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, purposively circumventing 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— for those keeping score at home, whenever mention is made of a deep split among the circuits, think: “cert-worthy”—and for a few other cases, see here. 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, 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).