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Warrantless Entry – Exigent Circumstances

State v. Terion Lamar Robinson, 2010 WI 80, affirming 2009 WI App 97; for Robinson: Melinda A. Swartz, SPD, Milwaukee Appellate; BiC; Resp.; Reply

¶2   The dispositive issue in this case is whether the police officers’ warrantless entry into Robinson’s apartment and subsequent search was supported by probable cause and justified by exigent circumstances when the officers corroborated three of the four details relayed by an anonymous informant, knocked and announced their presence, and immediately heard footsteps running from the door.

¶3   Assuming without deciding that the commitment order for unpaid fines did not constitute an arrest warrant and therefore was insufficient to permit the police officers’ lawful entry into Robinson’s apartment, we conclude that the warrantless entry was nevertheless reasonable because it was supported by probable cause and justified by exigent circumstances. First, we determine that the police officers’ warrantless entry into Robinson’s apartment was supported by probable cause. Because the officers corroborated each of the three preliminary details provided by the anonymous informant, it was reasonable for the officers to then believe, as the informant had alleged, that evidence of illegal drug activity would probably be found in Robinson’s apartment. Second, we conclude that the police officers’ warrantless entry into Robinson’s apartment was justified by exigent circumstances. Once Robinson was aware of the officers’ presence outside his door and footsteps were immediately heard running from the door, the officers reasonably believed that Robinson would destroy evidence of his illegal drug activity.  Finally, we conclude that once inside the apartment, the officers lawfully seized the evidence in plain view and arrested Robinson.

The court of appeals held that entry was justified by “the officer’s good faith belief that there existed an open felony warrant for Robinson’s arrest” (it “was actually a commitment order that was not signed by a judge”). All portions of published court of appeals decision lose precedential effect if any portion is “overruled.” But this decision has now been affirmed, albeit on different grounds. So the court of appeals decision on good faith remains binding. It’s the best of all worlds. At least, if you think the exclusionary rule has outlasted its usefulness. But we’re a bit ahead of the game.

Someone walked into a local police station and reported Robinson for dealing drugs out of his apartment. The police went to the address for a “knock and talk.” They announced themselves, Robinson refused to let them in, they heard footsteps running away from the door and so they did what any police officer would do when denied consensual entry: they kicked the door down. As the blockquote above indicates, the court finds the requisites for entry, probable cause and exigent circumstances. In this context, probable cause of course relates to illegal drug activity inside the apartment. The court describes the informant as “anonymous,” but that’s not quite accurate. “Indeed, the informant was ‘anonymous’ only to the extent that he was nameless. He jeopardized his anonymity by approaching Officer Yaghnam in person,” ¶28. The police confirmed three of the reported details: Robinson’s name, address, and cell phone, ¶29. Less corroboration is required when the informant is non-anonymous. Still, this seems a bit thin: “Because the officers corroborated each of the threepreliminary details provided by the anonymous informant, we conclude that it was reasonable for the officers to then believe, as the informant had alleged, that evidence of illegal drug activity would probably be found in Apartment 8,” ¶29. But the real battle is fought on exigent circumstances.

Of those discrete categories recognized as potential exigencies, risk of evidence destruction is pertinent, ¶¶30-31. Robinson argues that the police manufactured the exigency, and can’t profit by it. The court recognizes this principle, but rejects it under the facts.

¶32  Robinson argues that to the extent the officers’ knock and announcement led to the running footsteps, the officers manufactured the exigent circumstances and therefore cannot rely on them. This court has recognized that police officers may not benefit from exigent circumstances that they themselves create. Id., ¶28 n.7. However, we disagree with Robinson that the officers impermissibly created the exigent circumstances merely by knocking on his door and announcing their presence. “[W]hen law enforcement agents act in an entirely lawful manner, they do not impermissibly create exigent circumstances.”  United States v. MacDonald, 916 F.2d 766, 772 (2d Cir. 1990). By knocking on Robinson’s door and announcing themselves as the Milwaukee Police Department, an announcement which in fact was invited by Robinson’s question of “Who is it?”, the officers were conducting themselves in an utterly appropriate and lawful manner. See United States v. Collins, 510 F.3d 697, 700 (7th Cir. 2007) (“[T]here is no legal requirement of obtaining a warrant to knock on someone’s door.”).[14] Simply because Robinson chose to respond to the officers’ lawful conduct by running from the door, thereby leading the officers to believe that he would destroy evidence, does not mean that we ought to overlook the exigent circumstances. See MacDonald, 916 F.2d at 771 (“Exigent circumstances are not to be disregarded simply because the suspects chose to respond to the agents’ lawful conduct by attempting to escape, destroy evidence, or engage in any other unlawful activity.”). It was not the officers’ knock and announcement that created the exigent circumstances.  o hold otherwise would defy the very standard of reasonableness considered to be the “ultimate touchstone of the Fourth Amendment.” See Brigham City, 547 U.S. at 403. Rather, Robinson’s choice to run from the door created the exigent circumstances that justified the officers’ warrantless entry.

In isolation, this result might not raise eyebrows. But as the dissent points out, this is one of a trilogy of fourth amendment cases released simultaneously that, taken together, say this:

¶40  If the suspect opens the door, that suspect may be found to have voluntarily consented to the search. If the suspect refuses to open the door and officers hear movement inside, there may be exigent circumstances due to the possibility of the destruction of evidence. If no one answers the door, concern for the well-being of the occupants of what sounds like a drug house may justify entry under the community caretaker exception.

¶41  I am concerned that this case, along with the other two cases decided today, dilute the Fourth Amendment by allowing the knock and talk procedure to justify warrantless entry. Both law enforcement officers and courts alike should be mindful that the knock and talk technique rests on constitutionally thin ice.

We now seem very far from the idea that warrantless entry is presumptively unreasonable, that the home enjoys the greatest protection from government intrusion. As a matter of practice, if not judicial rhetoric. For the Grateful Dead, who knew a thing or two about unlawful drug use, the problem was, “if you’ve got a warrant, I guess you’re gonna come in.” Those were the days.

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