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Warrantless Entry – Hot Pursuit

State v. Jenny L. Nowak, 2010AP1499-CR, District 3, 5/17/11

court of appeals decision (1-judge, not for publication); for Nowak: Keith F. Ellison; case activity

Warrantless entry into Nowak’s garage was justified under hot pursuit doctrine, given “probable cause to believe Nowak committed a jailable offense—specifically, resisting by failure to stop,” § 346.17(2t) (punishable by 9 months imprisonment), ¶15. (Citing, State v. Richter, 2000 WI 58, ¶32, 235 Wis. 2d 524, 612 N.W.2d 29: “’Hot pursuit’” is established ‘where there is an immediate or continuous pursuit of [a suspect] from the scene of a crime.’”)

A cop tried, without notable success, to pull Nowak over for speeding and she eventually pulled into her own garage, cop right behind. He was going to let her go with only a speeding citation. Some people don’t want to be burdened by success and so, thinking her time would be better spent inside the house, Nowak ignored his instruction to remain in her car. The cop followed her into the garage, and subdued her after a struggle, earning her 2 criminal resisting charges for her effort: §§ 346.17(2t) (resisting by failure to stop) and 946.41(1) (resisting officer).

She argues illegal entry and, as just seen, the court holds otherwise. But does it really matter whether or not the cop entered the house illegally (the garage was attached, but undoubtedly would have been deemed curtilage even if detached, Bies v. State, 76 Wis.2d 457, 251 N.W.2d 461 (1977))? No, the court suggests, reminding us that an illegal arrest is in and of itself neither bar to prosecution nor valid defense, ¶13, citing State v. Ferguson, 2009 WI 50, ¶22, 317 Wis. 2d 586, 767 N.W.2d 187. That may be so, but there are other wrinkles. Nowak argues that, because entry was unlawful, she was entitled to “suppression” (of, presumably, all evidence of her resisting the officer; the resisting by failure to stop had already occurred, so isn’t relevant to this discussion). Lawfulness of the entry quickly dooms the argument – “therefore, the circuit court properly denied Nowak’s suppression motion,” ¶15. But the deeper question is whether an illegal entry would have mattered. It isn’t a question readily answered, but analysis might hinge on whether Nowak’s commission of a “new” crime (resisting an officer) attenuated the taint of the illegal entry. You’ll find a relatively comprehensive discussion in United States v. Olavarria, 2011 U.S. Dist. LEXIS 42867 (S.D. N.Y. April 20, 2011), including support for the idea that the “new” crime of resisting or obstructing arising from an illegal seizure doesn’t necessarily defeat suppression at least where, as here, the “new” crime requires exercise of “lawful” police authority. (No non-commercial link available for Olavarria, though a couple of paragraphs are cited at John Hall’s fourthamendment. com. A couple of the cases relied on by that decision: People v Lupinacci, 191 A.D.2d 589, 595 N.Y.S.2d 76 (2d Dept 1993); Williams v. City of Mount Vernon, 428 F.Supp.2d 146, 157 (S.D.N.Y.2006).) But in Olavarria, there was evidence to suppress, here there isn’t, beyond the fact of the resisting itself. Is a “crime” suppressible? It better be, because otherwise the problem would be one of sufficiency, rather than suppression, of evidence; whether, in other words, finding an illegal entry would amount to a lack of proof of an element (namely, that the person must resist an officer who is then acting “with lawful authority”). And then you will have to explain why State v. Hobson, 218 Wis.2d 350, 577 N.W.2d 825 (1998) (common law privilege to resist arrest abrogated) doesn’t apply. Also see Barnes v. State, 82S05-1007-CR-343 (Ind. May 12, 2011) (“we decline to recognize the right to reasonably resist an unlawful entry”; citing Hobson).

{ 1 comment… add one }
  • Robert R. Henak May 20, 2011, 8:05 am


    I raised a similar claim in State v. Annina, 2006 WI APP 202, regarding sufficiency of the factual basis for a plea. As I recall, the Court of Appeals found that there was sufficient evidence for a plea to resisting when the police broke entered based on an invalid warrant. Although the invalidity of the warrant meant that they were not acting lawfully by entering the home, they acted legally for subsequently arresting my client for disorderly conduct, so her “resisting” that arrest was properly a crime. It doesn’t make much sense since it was the unlawful police action that provoked the disorderly conduct, Lane v. Collins, 29 Wis.2d 66, 138 N.W.2d 264 (1965) (upholding judgment for false imprisonment against police officer who provoked plaintiff to breach of peace), but that was their decision.

    As for Hobson, the Court held that it did not apply. Hobson addressed the common law privilege to resist an unlawful arrest. That decision does not change the elements of the offense of resisting arrest, which require that the officer be acting lawfully. The defendant may be guilty of assault or some other offense by responding to unlawful police conduct (assuming that statutory self-defense does not apply), but cannot be convicted of resisting.

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