Dec. 5, 2022 – Police who arrived at an address where an erratic driver was reported to have gone but waited to gather information before entering the property were not engaged in hot pursuit and their warrantless search was illegal, the Wisconsin Supreme Court has unanimously ruled.
In State v. Wilson, 2022 WI 77 (Nov. 23, 2022) the supreme court also held that the police did not conduct a valid “knock-and-talk” investigation.
A witness called the South Milwaukee Police Department on Jan. 16, 2017, and reported that a grey BMW was driving erratically.
The witness gave the address where the BMW had parked and said the driver was wearing a black hat and orange shoes. The witness also said that the driver had come out of the vehicle, reached over a fence to open the fence, and walked into the backyard.
Officer Nathan Seifert drove to the address provided by the witness. Siefert saw a silver BMW parked in the back. The BMW was running and the tailgate was open.
When Siefert ran the BMW’s license plate, he learned that the BMW was not registered to the address where it was parked. Siefert then called the witness to confirm the details of what the witness had seen.
Siefert later testified that he thought he was dealing with a drunk driving or a burglary situation, because the BMW wasn’t registered to the address and was left running and had the tailgate open, and because the driver had climbed the fence.
Tall Wooden Fence
The backyard was surrounded and cut off from view by a tall fence made of solid wood. When Siefert and his partner arrived, the fence gate was open but a garbage can blocked the path through the gate.
Siefert and his partner walked through the gate after moving the garbage can. They walked into the backyard and knocked on the side door of the unattached garage.
Christopher Wilson answered the door. He was wearing a black cap and orange shoes.
Wilson spoke with slurred speech. Siefert walked with Wilson back to the BMW. When he got to the BMW, Siefert saw a handgun inside the vehicle.
When Siefert learned that Wilson’s driver’s license was expired, he arrested him. During a pat-down search, Siefert found a bottle of prescription pills in Wilson’s pocket; the prescription was not in Wilson’s name.
The Milwaukee County District Attorney charged Wilson with second offense operating while intoxicated (OWI), endangering safety by use of a dangerous weapon under the influence of an intoxicant, and possession of a prescription drug without a valid prescription.
Motion to Suppress
Wilson moved to suppress his statements, the gun, the prescription drugs, and the results of a chemical test that was later performed on his blood. He argued that Siefert and his partner violated the Fourth Amendment by entering the curtilage of his home without a warrant.
The Milwaukee County Circuit Court denied Wilson’s motion, ruling that the search was justified by exigent circumstances and thus excepted from the warrant requirement. Specifically, the circuit court ruled that the police acted in hot pursuit of a fleeing suspect.
Wilson pled guilty to the OWI and endangering safety counts.
Wilson appealed. The Wisconsin Court of Appeals affirmed the circuit court, holding that the Siefert and his partner had conducted a valid “knock-and-talk” investigation.
State of the Law
Justice Ann Walsh Bradley began her opinion by noting that the U.S. Supreme Court has held that a police officer may enter the curtilage of a suspect’s home without a warrant to conduct a knock-and-talk investigation.
A.W. Bradley explained that a knock-and-talk investigation is not a search, and its validity is premised upon the existence of an implicit license to enter curtilage granted to visitors or neighbors by homeowners under certain circumstances.
Justice A.W. Bradley also pointed out that Wisconsin law recognizes four exigent circumstances exceptions to the warrant requirement, including the hot pursuit of a suspect.
Not a Knock-and-Talk Investigation
Justice A.W. Bradley concluded, supported by a unanimous court, that the police did not have an implicit license to enter the curtilage of Wilson’s home.
U.S. Supreme Court precedent, Justice A.W. Bradley explained, has held that an implicit license to enter a homeowner’s curtilage exists to approach by the front path, promptly knock, wait briefly for an answer, then leave without lingering if there’s no answer.
Additionally, she pointed out, the U.S. Supreme Court has held that such a license may exist for an alternative approach to a house, depending on the facts of the case – for instance, a sign pointing to a backyard, or where the layout of the house gives rise to a reasonable belief that a back entrance is used as the principal entrance.
Given the circumstances, A.W. Bradley concluded that the police did not have an implicit license to enter Wilson’s backyard.
“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,” Justice A.W. Bradley wrote.
“If a private citizen does not have an implicit license to do this, neither does law enforcement.”
Not Hot Pursuit
A.W. Bradley also concluded that the hot pursuit exception to the warrant requirement did not apply to the police search of the curtilage to Wilson’s house, because their pursuit of Wilson was not immediate and continuous.
Justice A.W. Bradley pointed out that upon arriving at Wilson’s home, the officers waited while they obtained more information – they ran Wilson’s license plate and called the witness before entering the property.
“Although we do not know the exact amount of time it took the officers to check the vehicle registration and contact the [witness], the record does not support the proposition that the officers were acting in hot pursuit,” A.W. Bradley wrote.
The supreme court remanded the case to the circuit court.