Divided Wisconsin Supreme Court Changes Law on Fourth Amendment
In State of Wisconsin vs. Richard L. Weber, 2014AP304-CR (Wis. Nov. 29, 2016), a divided Wisconsin Supreme Court ruled that a police officer does not violate the Fourth Amendment to the U.S. Constitution by pursuing an individual suspected of a minor traffic violation into that suspect’s own home. The Fourth Amendment, like a similar provision of the Wisconsin Constitution, provides that individuals will not be subject to unreasonable searches or seizures by the government.
The case is notable not only for its groundbreaking result, but also because it splintered the Court in an unusual way, with Justice Rebecca Bradley, a conservative, joining liberal Justices Ann Walsh Bradley and Shirley Abrahamson in dissent. New, conservative Justice Dan Kelly also rejected one of the central tenets of the lead opinion, though he chose not to dissent and instead concurred in the outcome on other grounds.
Facts:
On April 20, 2012, Deputy Calvin Dorshorst of the Wood County Sheriff’s Department noticed that Richard Weber’s car had a defective tail light; he flashed his lights in an effort to get Weber to stop. Weber did not stop, but continued 100 feet, turned into his driveway and parked in his attached garage. Deputy Dorshorst followed him into the driveway, parking 15 to 20 feet outside the garage. Deputy Dorshorst contacted dispatch and indicated he was conducting a traffic stop. He exited his vehicle and ran forward, stating that he needed to speak with Weber, who continued up the steps to his house. Weber did not stop until Deputy Dorshorst entered the garage and grabbed him by the arm. Deputy Dorshorst then asked Weber to return to the vehicle so that Deputy Dorshorst could “point out exactly the reason for the stop and which light was defective.” Weber, slip op., ¶ 5.
At that point, Deputy Dorshorst testified, Weber tried to pull away and enter the house. Importantly, all of Deputy Dorshorst’s actions to that point related to the defective tail light. Deputy Dorshorst did not articulate a basis to believe Weber might be intoxicated until he made contact with Weber, observed “slow, slurred speech” and “glassy, bloodshot eyes,” and smelled “a strong odor of intoxicants.” Id. Under prior Fourth Amendment case law, an officer needed to have a particularized suspicion that a driver was operating while intoxicated before he could expand a traffic stop or investigation. Deputy Dorshorst’s suspicions arose only after he had expanded his investigation by entering Weber’s garage and grabbing his arm.
Weber and Deputy Dorshorst left the garage and walked onto the driveway. When the Deputy asked Weber if he had been drinking, Weber said that he had. Weber refused to perform field sobriety tests, and Deputy Dorshorst placed him under arrest. Among other offenses, Weber was cited for Operating While Intoxicated-10th offense, Operating with a Prohibited Alcohol Concentration-10th offense, and Resisting Arrest.
Proceedings below:
Weber sought to exclude evidence of his intoxication on the grounds that the Deputy’s observations and all evidence obtained subsequent to the arrest were tainted because Deputy Dorshorst had violated Weber’s constitutional right to be free from unlawful search and seizure. The circuit court denied Weber’s suppression motion, reasoning that Deputy Dorshorst’s actions were justified by exigent circumstances arising from his hot pursuit of Weber. See id., ¶12. Weber eventually pled guilty and was sentenced to four years of initial confinement and four years of extended supervision. See id., ¶13. Weber appealed the denial of his suppression motion.
The court of appeals reversed the trial court order denying Weber’s suppression motion. The appellate court concluded that hot pursuit alone was an insufficient basis for warrantless entry and held that hot pursuit plus other exigent circumstances were required for a warrantless entry. Id., ¶41. The appellate court explained that the “exigent circumstances requirement means that there must be a potential for danger to life, risk of evidence destruction, or likelihood of escape.” Id., ¶14. It then held that those factors did not exist in this case and observed that “the State appeared to assume that all hot pursuits qualify as exigent circumstances” but provided no legal argument to support that assumption. Id. Because the court itself failed to discern why an immediate warrantless entry was justified, it held that Deputy Dorshorst was not in hot pursuit under sufficiently exigent circumstances to justify a warrantless entry into Weber’s garage. Id., ¶41. The State filed a petition for review in the Wisconsin Supreme Court.
The Wisconsin Supreme Court’s decision:
The Wisconsin Supreme Court analyzed three factors to conclude Deputy Dorshorst’s entry into Weber’s garage was constitutionally reasonable: (1) hot pursuit, (2) exigent circumstances, and (3) the scope of the intrusion. First, the court found that Deputy Dorshorst was engaged in “immediate or continuous pursuit of a suspect from the scene of a crime.” Id., ¶36. The court found that Deputy Dorshorst was attempting to apprehend Weber, who was fleeing from the Deputy’s lawful traffic stop on a public highway. See id. The court concluded that there was no record evidence of a delay in the Deputy’s response that would have interrupted the immediacy and continuity of the situation to dissipate the exigency. See id. The continuity of the situation, the court held, justified Deputy Dorshorst’s warrantless entry into Weber’s garage. See id.
The court then turned to exigent circumstances. Unlike the court of appeals, which had started by defining exigent circumstances and then compared the definition to the facts of Weber’s case, the supreme court began by looking at the specifics of the statutory violations Weber was alleged to have committed. See id., ¶37. Both Operating While Intoxicated and Resisting Arrest are jailable offenses. The supreme court deemed that a relevant factor in evaluating whether exigent circumstances justified Deputy Dorshorst’s warrantless entry. See id. This is a significant change in the law. None of the factors that courts have traditionally required before finding exigent circumstances was present here—as the court of appeals had already determined. But the supreme court decided that, if the alleged infraction under investigation carries a possible jail sentence, exigency can exist regardless of the circumstances. See id.
Third and finally, the court held that the intrusion was minimal in nature. Deputy Dorshorst did not damage any property, open any doors or windows, or pull any weapons. Rather, “he simply stepped into Weber’s garage and seized his arm.” Id., ¶38. To the court’s majority, these “[t]wo actions, entry and apprehension, were calculated to accomplish no more than was absolutely necessary to halt Weber’s escape.” Id. This holding, like the exigent circumstances ruling, appears to deviate from the court’s precedents. Previously, the court used the phrase “minimal intrusion” only in the context of a traffic stop. Weber is an unprecedented application of that concept to excuse police entry into a protected place—that is, a place where the owner has a reasonable expectation of privacy.
Having found that Deputy Dorshorst’s actions did not violate Weber’s Fourth Amendment rights, the supreme court affirmed the denial of Weber’s motion to suppress and his convictions.
Additional opinions:
The Weber decision also featured the first opinion written by Justice Kelly, who became the court’s newest member when Governor Walker appointed him in July to the remainder of retired Justice David Prosser’s term. In Justice Kelly’s view, Deputy Dorshorst lacked probable cause to arrest Weber for jailable offenses before the Deputy entered the garage, which would preclude utilization of the hot pursuit doctrine. He joined the majority in denying Weber’s suppression argument, however, because he believed that Weber had consented to Deputy Dorshorst’s entry into the garage. See id., ¶46 (Kelly, J., concurring). Justice Kelly concluded that Weber, by entering the garage, chose that as the venue for his interaction with Deputy Dorshorst and thereby invited the Deputy into the garage. See id., ¶73. This approach deviates significantly from the court’s previous opinions about consent.
The dissenting opinion by Justice A.W. Bradley (joined by Justices Shirley Abrahamson and Rebecca Bradley) concluded that, prior to entering the garage, Deputy Dorshorst had no probable cause to believe Weber had committed a jailable offense. See id., ¶85 (Bradley, J., dissenting). Nor did sufficiently exigent circumstances exist at the time to justify a warrantless entry. See id. The dissent summarized that “the lead opinion conflates legal doctrines, disregards controlling United States Supreme Court precedent and engages in flawed circular reasoning.” Id., ¶136. The dissent evinces concern over the erosion of constitutional rights and complains that the Weber decision sets a “trajectory where bit by bit, almost unnoticed, we may awaken one day to discover that the freedoms for which so many have fought and sacrificed have been severely curtailed.” Id. ¶83.
