State v. Christopher D. Wilson, 2022 WI 77, 11/23/22, reversing an unpublished decision of the court of appeals, 2020AP1014; case activity (including briefs)

Someone called the police to report that a vehicle was driving erratically “all over the road.” The caller said the car had stopped in the alley behind a particular house and described its driver getting out, climbing up on the fence to reach over an unlatch a gate, and going into the backyard.

When police arrived, they saw the vehicle running in the alley next to the fence: a “high, solid wooden fence that obstructed any view of the yard.” The gate was open, but a large garbage can blocked entrance. The officers moved the garbage can, went through the gate, and knocked on a side door of the unattached garage on the property. Wilson answered, and his interaction with the officers yielded evidence that would eventually form the basis of various charges.

Wilson moved to suppress all evidence gathered after the police breached the backyard fence. The circuit court denied suppression, holding that the police had been in hot pursuit of Wilson, and thus were permitted to enter the curtilage of his home by the doctrine of exigency. After pleading to some counts, Wilson appealed this ruling. The court of appeals affirmed, but not on the circuit court’s theory: it instead held that the officers had performed a valid “knock and talk” interview with Wilson.

Our supreme court now reverses. Its unanimous and relatively brief opinion makes no new law. Instead, it repairs some Fourth Amendment doctrine that the lower courts had stretched quite alarmingly.

It first addresses the “knock and talk” theory. Florida v. Jardines, 569 U.S. 1 (2013), outlines the concept: police are generally free to engage the public in the same manner any private citizen could; doing so does not instigate a Fourth Amendment search. In our country, there’s a social understanding that it’s acceptable for anyone to approach the front door of a private home and knock or ring in an attempt to converse with an inhabitant (provided one leaves promptly if an answer is not forthcoming). Thus, the police may do the same without probable cause or a warrant.

Though Jardines spoke of approaching a door “by the front path,” other courts have held that our social expectations can accommodate other physical arrangements and circumstances. Thus courts have sanctioned officers’ entry of a backyard when a sign in the front directed comers to a “Party in Back”; and to a backyard that was readily accessible from a public area and appeared (wrongly, it turned out) to be the main entrance to an apartment. (¶¶27-28).

Here, the court says, it was not reasonable to believe the public was implicitly invited into Wilson’s backyard:

Wilson’s backyard was surrounded by a tall, solid wooden fence and even though the gate to the backyard was open, it was blocked by a large garbage can. It is hard to believe that a private citizen in the alley would consider Wilson’s fence, together with the garbage can impeding the opening in the fence, as an invitation to approach the side door of the unattached garage. If a private citizen does not have an implicit license to do this, neither does law enforcement.

(¶30).

The court makes similarly quick work of the state’s “hot pursuit” argument:

The basic ingredient of the exigency of hot pursuit is “immediate or continuous pursuit of [a suspect] from the scene of a crime.” State v. Richter, 2000 WI 58, ¶32, 235 Wis. 2d 524, 612 N.W.2d 29. “[S]ome sort of a chase” is required, but it “need not be an extended hue and cry ‘in and about (the) public streets.’” United States v. Santana, 427 U.S. 38, 43 (1976).

(¶38).

Unlike in Richter, the officers here did not pick up Wilson’s trail and immediately pursue Wilson based on the contemporaneous collection of information. Instead, they received a call to go to a particular location. Upon arrival, the officers delayed in order to gather more information. After observing the location, the officers ran the vehicle license plate to obtain vehicle registration information. Next, they contacted the 911 caller to discuss more details of the complaint, including the speed of the vehicle, the nature of the erratic driving, and a description of its three-and-a-half mile route. Additionally, they discussed what the suspect was wearing and his conduct upon exiting the vehicle. Although we do not know the exact amount of time it took the officers to check the vehicle registration and contact the 911 caller, the record does not support the proposition that the officers were acting in hot pursuit. What occurred was neither hot nor was it a continuous pursuit.

(¶42).