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Warrantless entry into home to arrest for OWI was not justified by exigent circumstances

State v. Jeffrey G. Vanden Huevel, 2013AP1107-CR, District 3, 10/8/13; court of appeals decision (1-judge; ineligible for publication); case activity

After rolling his car over early one morning Vanden Huevel left the scene of the accident and went back to his cabin. (¶¶1-7). A sheriff’s deputy named Kelley located the cabin and started knocking on a sliding patio door. (¶¶8-9). Kelley could see someone inside and told the person to open the door, or he’d come back with a warrant. (¶9). Vanden Huevel opened the door part way, confirmed his identity, and, in response to Kelley’s question of whether he was injured, said he was fine; he then started to close the sliding door. (¶10). Kelley stuck his arm in the door to keep Vanden Huevel from closing it. (¶11). Vanden Huevel refused Kelley’s requests to complete an accident report or go back to the scene, and told Kelley he was not leaving the cabin and to come back tomorrow. (¶¶11-13). Kelley then told Vanden Huevel he was under arrest for OWI. (¶12).

The court rejects Vanden Huevel’s argument that Kelley lacked probable cause to arrest him for OWI, given that Kelley knew Vanden Heuvel had been in a rollover accident at 3:30 a.m. and had left the scene, had two prior OWI convictions, smelled of alcohol, and had bloodshot eyes and slurred speech. (¶¶28-30). The question, then, is whether Kelley could enter Vanden Huevel’s home without a warrant to arrest him. Warrantless entry to a home to make an arrest is justified if there are exigent circumstances–namely, hot pursuit, a threat to the safety of the subject or others, a risk evidence will be destroyed, or a likelihood the suspect will flee. State v. Ferguson, 2009 WI 50, ¶19, 317 Wis. 2d 586, 767 N.W.2d 187. (¶31). The only possible justification here was destruction of evidence–dissipation of alcohol from Vanden Huevel’s blood–which is what the circuit court relied on in denying Vanden Huevel’s suppression motion. (¶¶16, 32, 37, 41). The court of appeals concludes the record doesn’t support a finding of that exigency:

¶40      When we review what officer Kelley objectively knew at the moment of entry, we agree with Vanden Heuvel that the circuit court’s exigency determination was made without supporting evidence. “The State bears the burden of proving the existence of exigent circumstances.” [State v. Richter, 2000 WI 58,] ¶29[, 235 Wis. 2d 524, 612 N.W.2d 29]. On appeal, the State does not address Vanden Heuvel’s lack of evidence argument. It asserts only that it agrees with the circuit court’s determination that the dissipation of alcohol in Vanden Heuvel’s bloodstream constituted a sufficient exigency. However, the State has not explained why the dissipation of alcohol in this case constituted a sufficient exigency such that it would justify Kelley’s warrantless entry. Although we recognize that alcohol naturally dissipates from the bloodstream, we also observe that test results from blood draws that occur within three hours of any allegedly driving are generally admissible and constitute prima facie evidence of intoxication. See Wis. Stat. § 343.305(5)(d) (“[R]esults of a test administered in accordance with this section are admissible on the issue of whether the person was under the influence of an intoxicant ….  Test results shall be given the effect required under s. 885.235.”); see also Wis. Stat. § 885.235(1g) (Test results are admissible “if … taken within 3 hours after the event to be proved[;]” the results are prima facie evidence the person was under the influence of an intoxicant.). The State has not pointed to any objective facts that indicate time was of the essence when Kelley entered the house. The record does not reveal how much time it took Kelley to find Vanden Heuvel, how much time it would have taken to obtain a warrant, or how much time it would have taken to travel and obtain a blood draw at the hospital.

Because of the lack of objective facts in the record on which to conclude Kelley entered Vanden Heuvel’s house because he reasonably believed that delay in procuring a warrant would risk destruction of evidence, the entry was not justified by an exigent circumstance and, therefore, was illegal. (¶42).

While this case is about warrantless entry into a home, not about a warrantless blood draw, after Missouri v. McNeely, 133 S. Ct. 1552 (2013), the evanescent quality of alcohol in a suspect’s blood is not enough by itself to create an exigency that allows police to perform a blood draw without a warrant. Thus, the analysis in this case–whether there were “any objective facts that indicate time was of the essence”–seemingly applies with equal force to whether there are exigent circumstances justifying a warrantless blood draw.

The state claimed Kelley did not “enter” Vanden Huevel’s home, but the court rejects the argument based on State v. Larson, 2003 WI App 150, 266 Wis. 2d 236, 668 N.W.2d 338, where an officer investigating a possible OWI offense put his foot across the threshold of the doorway after the defendant answered the door, preventing the door from being closed. Just as the officer’s act of planting his foot in the doorway constituted an entry for Fourth Amendment purposes in Larson, ¶¶10-11, so, too, did Kelley’s act of inserting his arm into the cabin, even though he remained outside standing on the porch: “We reject the State’s assertion that the Fourth Amendment warrant requirement is triggered only if the officer crosses the threshold with his foot, as opposed to some other body part.” (¶26).

The court also rejected Vanden Huevel’s argument that he was seized when Kelley said he would come back with a warrant if Vanden Huevel did not open the door. Kelley’s statement made it clear that if Vanden Heuvel chose not to open the door, Kelley would be forced to wait until he obtained a warrant authorizing his entry into the home. “Accordingly, a reasonable person would have believed that he or she was not required to comply with Kelley’s request and could continue to go about his or her business until law enforcement produced a warrant.” State v. Young, 2006 WI 98, ¶18, 294 Wis. 2d 1, 717 N.W.2d 729. (¶¶19-21).

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