On Point

State v. Robert L. Artic, Sr., 2010 WI 83, affirming 2009 WI App 12; for Artic: Keith A. Findley, James D. Cooley; BiC; Resp.; Reply

Notwithstanding an unlawful, forcible police entry into his residence, Artic voluntarily consented to the subsequent search of the house, which was also sufficiently attenuated from the illegal entry to purge the taint of the illegal entry.

The police clearly had probable cause to get a search warrant — they had just established that Artic’s (the owner) son had retrieved cocaine from within. But before getting the warrant, they decided to perform a “knock and talk.” No one answered, so one of the detectives went around to the back to make sure no one got away; that was the first illegal act, because the back was fenced off. She reported movements inside the house to the officers in front and they kicked in the outer front door. Then they broke into the inner front door. If you’re keeping score at home, that’s three illegal acts. One detective went up to the second floor, gun drawn, knocked on a closed door, “asked” if he could come in, and Wagner said, yes. Within the next five minutes, Artic “consented” to a full search of the house, which the court upholds notwithstanding the illegal entry. The facts won’t be further recited here. Search and seizure cases are necessarily fact-intensive, making generalizations about any given case unproductive. But it’s fair to discern in this case a trend that bids to take the label attached to mundane police activity — “knock and talk” — and turn it into a veritable exception to the warrant requirement.

Get the supposedly larger principles out the way, voluntary consent and taint-attenuation. “To determine if the consent exception is satisfied, we review, first, whether consent was given in fact by words, gestures, or conduct; and, second, whether the consent given was voluntary,” ¶30. Compare the majority’s analysis (¶¶30-62) to the dissent’s (¶¶111-21), and draw your own conclusion. Attenuation is a 3-factor test: temporal proximity of consent to primary illegality, intervening circumstances, purpose and flagrancy of misconduct, ¶66. Police just bulled their way into your home? No problem. What follows is perfectly “congenial,” so of course your happily-given permission to turn your house upside down is severed from any misunderstanding caused by the entry. Ultimately, you’ll again have to see for yourself, comparing majority (¶¶63-105) to dissent’s (¶¶128-47) analysis. The majority’s final thought is worth quoting, though, as it captures much of the flavor of its analysis:

¶105 While the officers here did break down the front doors to the building, there is nothing in the record to suggest that their actions were calculated to surprise, frighten, or confuse Artic, whom they did not realize was an occupant of the house. The officers were furthering a legitimate law enforcement purpose, see Scheets, 188 F.3d at 840, acting on a reasonable belief that evidence might be destroyed, and not specifically targeting Artic. In sum, the record simply does not suggest “bad faith exploitation of the situation on the part of the officer[s].”  Richter, 235 Wis. 2d 524, ¶53. Therefore, their actions were neither purposeful nor flagrant, and this factor weighs in favor of attenuation.

Well, they may not have known that Artic was an occupant, but so what? They knew someone was inside, in fact that’s the very reason they went. Not only that, but the entire basis for the (unlawful) entry was to prevent destruction of contraband by whomever it was, ¶26 (“the officers acted upon their belief that evidence was being destroyed”). Which means, they very much wanted “to surprise, frighten, or confuse” whomever was inside, otherwise, what’s the point of smashing their way in?

But the real star of the show is the “knock and talk” technique. It’s ill-defined (see, for example, State v. Robinson, 2010 WI 80, ¶7 n. 5). But that’s because it just means that the police go up to a house to knock on the door and see what happens. The public has an “implied invitation” to walk up up to someone’s front door and knock. Whether limits should be imposed on police authority to do it is an on-going dispute, but merely calling the technique “knock and talk” doesn’t expand police authority to intrude on residential privacy interests. And yet the court apparently sees it otherwise, indeed is well on its way to elevating “knock and talk” into its own exception to the warrant requirement. Remember that illegal entry into Artic’s back yard? Well, maybe it wasn’t really that unlawful after all:

¶95 Nevertheless, we recognize that officers may sometimes enter curtilage to further a “legitimate law enforcement objective” when the restriction upon a person’s privacy is limited. … Some courts have also defined an exception permitting officers to enter the curtilage when engaging in a “knock and talk” investigation. See Hardesty v. Hamburg Twp., 416 [sic, 461] F.3d 646, 654 (6th Cir. 2006); see also United States v. Troop, 514 F.3d 405, 410 (5th Cir. 2008) (holding that a “knock and talk” is a “reasonable investigative tool when officers seek to gain an occupant’s consent to search or when officers reasonably suspect criminal activity”).  Several courts have extended this exception to permit officers to enter the back yard in search of a homeowner when nobody answers the front door.[15]

It is not quite as simple as, “an exception permitting officers to enter the curtilage when engaging in a ‘knock and talk.'” Troop, for example, says:

The Government asserts that the agents were attempting a “knock and talk” strategy that is permitted under Fifth Circuit precedent. It is true that our precedent holds that the knock and talk strategy is a “reasonable investigative tool when officers seek to gain an occupant’s consent to search or when officers reasonably suspect criminal activity.” Jones, 239 F.3d at 720. However, we have also held that when no one answers the door, the officers should end the knock and talk and “change[ their strategy by retreating cautiously, seeking a search warrant, or conducting further surveillance.” Gomez-Moreno, 479 F.3d at 356. In the instant case, rather then changing their strategy when no one responded to the knocks on the door, the agents proceeded `to conduct a warrantless search of the curtilage of Troop’s house, going so far as to reach inside the window and grab an occupant. ^[4] Gomez-Moreno counsels us that such conduct is not permitted under the Fourth Amendment.

Familiar refrain: read the cases cited by Artic (fn. 15) and draw your own conclusions. It is highly likely that the police will take opinions such as this one as an implied invitation to stretch the “knock and talk” doctrine as far as possible. You will have to be prepared to litigate the doctrine on the law and the particular facts. You have an ever-expanding body of caselaw to assist (and limit) you. The merest smattering may be found here and here (scrolling down a bit in each instance).

All that said, note that the court readily assumed without real analysis that the police presence in the back yard was unlawful (¶26). If the idea is that the house needed to be secured so that obtaining a warrant would be productive, then finding justification for the police presence in the back yard would further the policy favoring the warrant requirement. How else could they fully secure the premises without warrantless intrusion? A holding to that effect would have been narrower than those the court adopted — and that, among other things, is the point.

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.

State v. Juiquin A. Pinkard, 2010 WI 81, affirming unpublished decision; for Pinkard: Richard L. Zaffiro; BiC; Resp.; Reply

The community caretaker function, which allows the police “to protect persons and property,” supports warrantless entry of a home. Exercising this function, the police justifiably entered Pinkard’s home in response to an anonymous phone report that “two individuals … appeared to be sleeping next to drugs, money and drug paraphernalia and that the door to the residence was standing open.”

You wouldn’t necessarily know it from the majority opinion, but applying the community caretaker doctrine, originally limited to automobile searches, to warrantless entry of a home is the subject of a deep, on-going national split. Couple of recent examples on opposite sides of the divide: State v. Deneui, 2009 SD, ¶41, 99, 775 NW 2d 221 (“From our review of the caselaw and scholarship on the community caretaker exception, we conclude that the constitutional difference between homes and automobiles counsels a cautious approach when the exception is invoked to justify law enforcement intrusion into a home.”); State v. Gill, 2008 ND 152, ¶18, 755 N.W.2d 454, 460 (“We now hold that a law enforcement officer’s entry into a dwelling place cannot be justified alone on the basis that the officer is acting in a community caretaking capacity. We decline to extend the scope of the community caretaking doctrine to include officers’ entry into private residences.”). A deep and abiding split may spell “cert-worthy.” We’ll see. In the meantime, you’re stuck with the doctrine, so let’s see how it works in action.

¶29 We apply a three-step test to determine whether an officer’s conduct properly falls within the scope of the community caretaker exception to the Fourth Amendment’s warrant requirement. Kramer, 315 Wis. 2d 414, ¶21. When a community caretaker function is asserted as the basis for a home entry, the circuit court must determine: (1) whether a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, whether the police were exercising a bona fide community caretaker function; and (3) if so, whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised within the context of a home.[10] See id. The State bears the burden of proof. Id., ¶17.

Notice anything missing? If you said, “probable cause,” pat yourself on the back. The constable doesn’t require probable cause before blundering into your house to check on your sleeping habits. Surely, though, given the sanctity of the home, some significant showing if less than probable cause must be made of a genuine need for “protection.” Let’s see.

This started with an “anonymous” phone tip, reporting that the caller had just left Pinkard’s residence, where two people appeared to be sleeping next to drugs, etc., and that the rear door was open. The officer who received the call had better things to do than investigate this pressing emergency so he passed the “information” along to … the person most qualified to handle possible medical emergencies: a cop from the Intelligence Division Gang Crimes Unit. Sounded to him pretty much like what is was, a report of a “drug house,” so he rounded up 4 other members of his unit. They went to the back of Pinkard’s residence. The door was indeed open. They knocked, announced, got no answer and, consumed by apprehension for the well-being of the occupants, went in. After that, it was plain view, etc. ¶¶2-5.

Now, apply these facts to the 3-part test. (1) Search is self-evident. (2) This was bona fide community caretaker activity: the police wanted to make sure no one inside had become a crime victim, also to investigate the occupants’ “health and safety.” Why, they might have OD’ed. ¶¶32-35. (3) Public interest in health and safety outweighed whatever paltry interest a mere citizen might have in the privacy of his home. “If Pinkard and his companion had been suffering from a cocaine overdose, a reasonable inference based on these facts, the officers were presented with a significant exigency, for every passing minute could have been the difference between life and death,” ¶47. Absolutely. That’s why 5 Gang Unit officers showed up, to make sure that someone could quickly pass the word to EMTs. If necessary.

And that really gets back to the lack of probable cause, doesn’t it. Remember that this was an anonymous call, and though the court labors to term it “reliable,” the call had no indicia of reliability. But put that aside. If the informant indeed had this inside knowledge and if the cop taking the call really was concerned with the health and safety of the occupants, why on earth didn’t the cop ask the caller if the occupants had OD’ed. Or, more remarkably still, whether they had even ingested drugs. Whether they were sleeping or might be passed out. Well, as far as the opinion reflects there was no such follow-up. Was it because this sounded like a drug-house tip for a Gang Unit entry and not a medical problem? What do you think? True, the court found the open rear door both corroborative of the anonymous tip and alarming in its own right. ¶¶36-37, 52. Maybe. But consider: the rear of a house isn’t generally thought of as a public access point, door or not. The public, that is, has an “implied invitation” to approach the front, or wherever the main entranceway is placed. Do you have a back yard? Maybe one with a patio? Is that where you expect your mail carrier to come along? Milkman? Jehovah’s Witnesses? You get the point. If the implied invitation doctrine did not beckon the Gang Unit to come calling on Pinkard’s back yard, then they were trespassing when they “corroborated” the tip. Which would mean in practical terms, it wasn’t corroborated. The magic of Google Map’s street view let’s you see for yourself, without leaving your desk. Appears that an alley runs past the back of the residence, which is situated mid-block. Not exactly a natural entry point, though you’d like to know more before reaching any conclusions. The State has the burden of proving reasonableness of a warrantless search, and if you care about such things should have had the burden of showing that the public is expected to enter this residence off an alley. You can’t exclude the possibility that this is the expectation without more evidence. Even so, we are still left with a warrantless entry on the flimsiest, not to say transparently pretextual, of reasons.

(Point of clarification: the police did say the back entrance was the “main door” to Pinkard’s residence, ¶3. If that is truly so, then they weren’t trespassing in the back. But they also said they went inside the house out of concern for Pinkard’s well-being. We are more than a little skeptical about the latter, so we might be forgiven our desire for corroboration of the former.)

court of appeals decision (1-judge, not for publication); for Franzen: Timothy J. Lennon; BiC; Resp.; Reply

Suppression Hearing – Pleading Requirements for Evidentiary Hearing

Suppression hearing isn’t required on motion which challenged probable cause to administer PBT but failed to specify the relief sought.

¶6        WISCONSIN STAT. § 971.30 deals with the required form of motions and pleadings in criminal matters, and defines “motion” as “an application for an order.” Sec. 971.30(1). The statute requires the movant to “state with particularity the grounds for the motion and the order or relief sought.” Sec. 971.30(2)(c) (emphasis added).

¶7        At the hearing, the State moved to dismiss the motion for failure to specify relief sought, which was denied. However, the circuit court repeatedly expressed confusion at what Franzen sought from the court in the first place. At multiple times during the hearing, the circuit court asked Franzen’s attorney to explain the ends of his motion. Franzen’s attorney argued that, if the PBT was improperly administered, “all the fruits of the illegal search would be extinguished.” A PBT is already inadmissible at trial by statute, and under these circumstances is used “for the purpose of deciding whether or not the person shall be arrested” or to show probable cause for arrest.  WIS. STAT. § 343.303. In essence, it appears Franzen intended to use an invalid PBT as a means to suppress any evidence obtained after the PBT to support probable cause for his arrest—including the field sobriety tests. We need not address the viability of such a strategy, and we note that this can only be discerned from the record of the evidentiary hearing and not from the motion itself.

…

¶11      We conclude that Franzen’s motion did not meet the requirements of WIS. STAT. § 971.30(2)(c) and, therefore, an evidentiary hearing should not have been granted.  Close scrutiny of a defendant’s motions in line with the threshold requirements of the statute ensures the preservation of scarce judicial resources.

Funny, you might think that the interests of preserving scarce judicial resources in this instance weigh in favor of review. After all, the trial court did hold a hearing, so those resources have already been expended. The case has been briefed. The appellate court has at least scrutinized the merits. To top it off, Franzen’s intent was clear, at least in light of the hearing, as the court of appeals grudgingly concedes, ¶7. Second-guessing the trial court’s decision to hold a hearing wastes already-expended resources. But the suspicion is that this isn’t so much about this specific case, but about sending a message to future trial courts to apply § 971.30(2)(c) more strictly (too strictly, but that is something else). It is not the first such message. Be advised.

Manitowoc Co. HSD v. Tammy L.C., No. 2010AP118, District II, 7/14/10 court of appeals decision (1-judge, not for publication); for Tammy L.C.: Matthew S. Pinix

Mootness – Discharge from Civil Commitment

Appeal of commitment order is dismissed as moot where appellant has been discharged and no extension sought.

Mootness raises a question of policy, not jurisdiction, and the court dismissed the appeal only after satisfying itself that the underlying issue isn’t recurrent but, rather, highly fact-contingent. “Fact-intensive issues are not good candidates for definitive, bright-line decision making of the type that would compel us to sweep mootness aside.”

State v. Brittany A. Meye, No. 2010AP336-CR, District II, 7/14/10

court of appeals decision (1-judge, not for publication); for Meye: Kevin G. Keane; BiC; Resp.; Reply

¶6        Meye argues that the odor of intoxicants alone is insufficient to raise reasonable suspicion to make an investigatory stop. We agree. We will not cite, chapter and verse, all the many cases in this state where either we or our supreme court found facts sufficient for an investigatory stop. Suffice it to say that these decisions, both published and unpublished, include an officer or a citizen having observed traffic violations, erratic driving, mechanical defects with the vehicle, unexplained accidents or multiple indicia of physical impairment. Not one of these cases has held that reasonable suspicion to seize a person on suspicion of drunk driving arises simply from smelling alcohol on a person who has alighted from a vehicle after it has stopped—and nothing else. As we already stated, the officer in this case observed no traffic violations, no erratic driving, saw no mechanical defects or had any other information from which to justify the seizure.

The odor of intoxicants was “strong,” ¶2, but as just seen, still not enough for a stop. Bit of ambiguity in that the officer couldn’t link the odor to driver as opposed to passenger — if he could have, would that have been enough? The court suggests not — “The weakness of this seizure is exacerbated by the fact that the officer was not sure from which person the odor of alcohol was coming from or if it was coming from both persons,” ¶9 — but doesn’t say as much explicitly.

State v. Patrick C. Carter, 2010 WI 77, affirming as modified, 2007 WI App 255; for Carter: Ellen Henak, SPD, Milwaukee Appellate

Carter is entitled to sentence credit for time spent in custody in Illinois following his arrest on an outstanding Wisconsin warrant along with an Illinois charge, given that the resultant sentences were concurrent.

Five different opinions, 238 paragraphs spread out over 116 pages (pdf file), so take that into account in determining whether you want to rely on the terse summary above to the exclusion of reading the opinions for yourself. Couple of points though while you’re weighing that option. The majority rejects the idea, once and for all, that credit requires “exclusive” custody on that charge, ¶34. Carter was arrested, and held in Illinois pending extradition on this Wisconsin case, and the fact that he was also picked up and held on an otherwise unrelated Illinois charge didn’t disentitle him to credit. But there’s a bit of a catch. Ultimately, the facts matter as much as the law: “Thus we must determine in the instant case whether a “factual connection” exists between the defendant’s presentence Illinois custody (from December 13, 2003, to October 19, 2004) and the Wisconsin sentence imposed,” ¶57. And the facts have to be established in any given case: “A defendant seeking sentence credit in Wisconsin has the burden of demonstrating both “custody” and its connection with the course of conduct for which the Wisconsin sentence was imposed,” ¶11, citing State v. Villalobos, 196 Wis. 2d 141, 148, 537 N.W.2d 139 (Ct. App. 1995). Your burden. The operative legal principle might now be settled, but the facts in any given case aren’t, and if you fail to show whether or when the defendant was picked up in another state because of a Wisconsin charge, the defendant won’t get (all) the credit coming. Justice Gableman’s concurrence (¶¶84-87), the 4th and deciding vote, effectively makes this point:

¶85  The circuit court found (and the parties agree) that Carter’s arrest and confinement in Illinois were based in part on the outstanding Wisconsin felony warrant for first degree recklessly endangering safety. Specifically, the circuit court found that Carter “was arrested in Chicago, Illinois, on a probation violation warrant from Illinois and on the Wisconsin warrant” and that he “was held in custody resulting in part from the Wisconsin warrant issued in this case” from “December 13, 2003, until October 19, 2004,” excepting a six-day period while he “was serving his sentence” for the Illinois probation charge.[70]

Justice Gableman stresses the obligation to defer to trial court findings, on which he grounds the result.

Other larger principles? A consecutive sentence severs the credit connection to its companion sentence. As does a concurrent sentence imposed separately and earlier.