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Warrantless arrest on porch unlawful, but probable cause to arrest means no suppression

State v. Kallie M. Gajewski, 2020AP7-CR, District 3, 8/2/22 (not recommended for publication); case activity (including briefs)

Police arrested Gajewski in the curtilage of her home without a warrant and exigent circumstances. While this makes the arrest unlawful, the evidence obtained from the arrest is not subject to suppression because police had probable cause to arrest her.

While investigating a suspected OWI, police went onto Gajewski’s property without a warrant. She was inside her home, but on seeing the police she stepped onto her porch and spoke with the officers. They noticed obvious evidence of intoxication. She denied driving that night, but when one of the officers told her he’d seen her driving earlier in the evening she turned and tried to go back inside her home. The police grabbed and arrested her. (¶¶3-9).

The circuit court denied her motion to suppress the evidence from the subsequent blood draw done after her arrest on the grounds that there were exigent circumstances and the police were in hot pursuit. (¶¶11-13). But after Gajewski moved to reconsider, the court backed off the exigent circumstances rationale and appeared to conclude the arrest didn’t occur in the curtilage and that Gajewski impliedly “invited” the police onto the porch when she came out to talk to them and in the process gave them probable cause to arrest her. (¶¶13-14, 24 n.10).

The parties now agree that Gajewski’s porch was part of the curtilage of her home; so does the court of appeals. (¶20). A warrantless entry into a home or curtilage to search or make an arrest is presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980); State v. Reed, 2108 WI 109, ¶¶52, 54 & n.27, 384 Wis. 2d 469, 920 N.W.2d 56. The presumption is overcome if police have probable cause and there are exigent circumstances. State v. Ferguson, 2009 WI 50, ¶19, 317 Wis. 2d 586, 767 N.W.2d 187; State v. Richter, 2000 WI 58, ¶29, 235 Wis. 2d 524, 612 N.W.2d 29.

The state doesn’t argue any of the usual exigent circumstances made the warrantless arrest reasonable in this case, but instead offers two other justifications for the arrest. (¶25). The court of appeals rejects both:

  • First, the state likens the officers’ actions to a “knock and talk” situation, where police have an implicit license to go onto the curtilage like any other member of the public to knock on the front door and speak to the occupant. Florida v. Jardines, 569 U.S. 1, 8 (2013); State v. Edgeberg, 188 Wis. 2d 339, 344, 348, 524 N.W2d 911 (Ct. App. 1994). (¶¶25-26). This argument misses the point:

¶27     …. Gajewski is not claiming that law enforcement violated her constitutional rights by coming to her home, entering her porch, knocking on her door, and asking to speak with her…. Instead, Gajewski argues that the officers unlawfully seized her in the curtilage of her property, when she attempted to enter her home, without a warrant or probable cause and exigent circumstances. Jardines and Edgeberg cannot reasonably be said to stand in opposition to Gajewski’s claim.

  • Second, the state argues this case is like United States v. Santana, 427 U.S. 38 (1976), where officers had probable cause to arrest Santana but lacked an arrest or a search warrant. Officers went to Santana’s home and saw her in the doorway; when she saw them, she turned and fled into the home; officers chased her inside and arrested her. Thus, the state says, officers may arrest a person at the doorway of a home as long as the person is in the public view (and therefore no longer has any expectation of privacy). (¶28). The court of appeals says Santana doesn’t apply here because it pre-dates both the curtilage doctrine and the common-law trespass test (¶¶29-30) and because the facts are so different: “Santana involved a combination of probable cause, hot pursuit, and other exigent circumstances. …[I]n this case, the State has not argued on appeal that any exigency existed. Gajewski’s arrest was not set in motion in a public place such that she was attempting to escape to a private place while an officer was in hot pursuit.” (¶31).

But while Gajewski wins the battle about the unreasonableness of the warrantless arrest in her curtilage, she loses the suppression war because of New York v. Harris, 495 U.S. 14 (1990), and State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811 N.W.2d 775, which hold that when police had probable cause to arrest before the unlawful entry, a warrantless arrest inside the home doesn’t require the suppression of physical evidence obtained from the defendant outside of the home. (¶¶34-36).

The officers had probable cause to arrest Gajewski because one of the arresting officers had seen her driving earlier in the evening and recognized her as the suspected intoxicated driver; her denial to him that she was driving earlier amounted to obstruction. Though the parties disputed whether the collective knowledge doctrine applied here because only one of the two officers had seen her driving earlier and it’s not clear he had shared that information with the other officer, that doesn’t matter: both officers arrested here simultaneously, and at least one of the officers had probable cause and that’s enough. (¶¶37-46).

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