State v. Steven T. Delap

2018 WI 64

SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2196-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Steven T. Delap,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 375 Wis. 2d 799, 899 N.W.2d 738
(2017 – Unpublished)

OPINION FILED: June 6, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 12, 2018

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dodge
JUDGE: Steven G. Bauer

JUSTICES:
CONCURRED: GABLEMAN, J., concurs, joined by KELLY, J.
(opinion filed).
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs
and an oral argument by Michael J. Herbert, Madison.

For the plaintiff-respondent there was a brief and an oral
argument by Jennifer R. McNamee, assistant attorney general,
with whom on the brief was Brad D. Schimel, attorney general.
 2018 WI 64
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2196-CR
(L.C. No. 2015CM408)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v.
JUN 6, 2018
Steven T. Delap,
Sheila T. Reiff
Defendant-Appellant-Petitioner. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of an
unpublished decision of the court of appeals affirming a

judgment of conviction of the Circuit Court for Dodge County,

Steven G. Bauer, Judge.1 Steven Delap, the defendant, was

convicted of obstructing an officer in violation of Wis. Stat.

1
State v. Delap, No. 2016AP2196-CR, unpublished slip op.
(Wis. Ct. App. Apr. 20, 2017). The case was decided by one
judge pursuant to Wis. Stat. § 752.31(2)(f) (2015-16). All
subsequent references to the Wisconsin Statutes are to the 2015-
16 version unless otherwise indicated.
 No. 2016AP2196-CR

§ 946.41(1) and possession of drug paraphernalia in violation of

Wis. Stat. § 961.573(1), both as a repeater.

¶2 In the circuit court, the defendant claimed that his

arrest was unlawful and that the evidence seized should be

suppressed. The defendant argued that law enforcement officers,

who had two valid warrants for his arrest, unlawfully attempted

to stop him in the driveway of his home, unlawfully pursued him

into his home to effectuate his arrest, and unlawfully seized

evidence obtained from a search incident to his arrest.

¶3 The defendant claims that the arrest and subsequent

search violated his rights under the Fourth Amendment of the

United States Constitution and Article I, Section 11 of the

Wisconsin Constitution.

¶4 The circuit court denied the defendant's motion to

suppress the evidence. The circuit court concluded that the hot

pursuit doctrine permitted the law enforcement officers in the

instant case to follow the defendant into his home to effectuate

his arrest. Relying on the hot pursuit doctrine, the court of
appeals affirmed the circuit court's denial of the defendant's

motion to suppress evidence.

¶5 We affirm the decision of the court of appeals, but on

grounds different than those relied upon by the circuit court

and court of appeals. We conclude that the instant case is

2
 No. 2016AP2196-CR

governed by Payton v. New York, 445 U.S. 573 (1980), and we need

not address the applicability of the hot pursuit doctrine.2

¶6 In Payton, the United States Supreme Court declared

that "for Fourth Amendment purposes, an arrest warrant founded

on probable cause implicitly carries with it the limited

authority to enter a dwelling in which the suspect lives when

there is reason to believe the suspect is within." Payton, 445

U.S. at 603.

¶7 In the instant case, law enforcement officers had two

valid arrest warrants based on probable cause for the arrest of

the defendant. The facts and circumstances known to the

officers at the time they located the defendant were sufficient

to form probable cause to believe that the individual they saw

entering the residence was the defendant and that the defendant

lived in the residence into which he fled.

¶8 Thus, applying the teachings of Payton, we conclude

that the law enforcement officers in the instant case lawfully

entered the defendant's residence to execute the two valid
warrants for the defendant's arrest and lawfully seized evidence

discovered in the search incident to the defendant's arrest.3
2
We note that although the circuit court and court of
appeals did not rely on Payton, the parties briefed and argued
the application of Payton to the facts of the instant case while
in this court.
3
Because we affirm the decision of the court of appeals
under the Supreme Court's decision in Payton, we need not (and
do not) address the issue of whether the hot pursuit doctrine
permitted the law enforcement officers in the instant case to
follow the defendant into his home to effectuate his arrest.

3
 No. 2016AP2196-CR

¶9 Accordingly, we affirm the decision of the court of

appeals.

I

¶10 The following facts are taken from the testimony

elicited at the hearing on the defendant's motion to suppress

evidence and from the circuit court's findings based on that

testimony.

¶11 On September 6, 2015, Sergeant Michael Willmann and

Deputy Dustin Waas of the Dodge County Sheriff's Department

arrested the defendant in his home.

¶12 Approximately one month prior to the defendant's

arrest, Sergeant Willmann overheard that his colleague, Deputy

John Gallenbeck, "conduct[ed] a traffic stop on a vehicle where

the driver subsequently fled from the vehicle and went into a

wooded area and deputies were unable to locate him." Deputy

Gallenbeck had learned from a passenger in the vehicle that the

fleeing driver "was Steven Delap [the defendant] and that he was

living at 110 Milwaukee Street in Neosho."
¶13 Approximately one week prior to the defendant's

arrest, Sergeant Willmann "received a teletype correspondence

from the Walworth County Sheriff's Office stating that [the

defendant] was involved in a very similar incident . . . where

he had fled from a traffic stop in the same type of manner."

The teletype indicated that the defendant lived at 110 Milwaukee

Street.

¶14 Sergeant Willmann ran the defendant's name through
Wisconsin Department of Transportation and National Crime
4
 No. 2016AP2196-CR

Information Center files which turned up two valid and

outstanding warrants for the defendant's arrest: one through

Jefferson County and another through the Wisconsin Department of

Corrections. Because of the defendant's prior history of

fleeing police, Sergeant Willmann requested that Deputy Waas

accompany him to arrest the defendant pursuant to the two arrest

warrants.

¶15 At about 10:00 p.m. on September 6, 2015, Sergeant

Willmann and Deputy Waas went to 110 Milwaukee Street in Neosho

to arrest the defendant pursuant to the two outstanding arrest

warrants. Sergeant Willmann was in full uniform: green pants,

tan shirt, patches, a badge, and a duty belt. The officers

parked about a block away from 110 Milwaukee Street out of

concern that the defendant "would either run or not answer the

door" if they parked closer. They left their vehicles and

walked down Milwaukee Street, counting down the numbers on the

houses as they went. Sergeant Willman recalled that the last

building number he counted was 120 before seeing the final
building on the 100 block of Milwaukee Street. That building

was a duplex, and based on his counting, Sergeant Willmann

believed that one of the two doors at the duplex had to be 110

Milwaukee Street.

¶16 When Sergeant Willmann walked "towards what [he]

believed [was] the residence," he saw a man standing next to a

car parked on Milwaukee Street and another man walking down the

driveway in front of the duplex towards that car. As Sergeant
Willmann and Deputy Waas approached, the man who was walking
5
 No. 2016AP2196-CR

down the driveway turned and looked at the officers before

turning around and running towards the back of the duplex.

Sergeant Willmann shined his flashlight on the individual and

shouted, "Stop, police!" but the man did not stop and instead

continued running towards the back of the duplex.

¶17 Sergeant Willmann gave chase. Based upon the man's

proximity to 110 Milwaukee Street and his reaction upon seeing

the two police officers, Sergeant Willmann believed that the

fleeing man was the defendant, Steven Delap.

¶18 When the man got to the rear door of the residence, he

went inside and began shutting the door. Sergeant Willmann used

his shoulder to "keep the door from latching completely shut."

Sergeant Willmann and the man pushed back and forth on the door

until Deputy Waas joined Sergeant Willmann. The two police

officers together pushed the door open.

¶19 At some point, one of the officers pulled out his

Taser, "got [the defendant] to the ground, [and] got [the

defendant] in cuffs." After the arrest, the fleeing individual
was identified as Steven Delap, the defendant.

¶20 A subsequent search incident to the defendant's arrest

revealed three syringes and a silver tube used for smoking crack

cocaine in the defendant's right cargo pocket.

¶21 The defendant was charged with one count of

obstructing an officer in violation of Wis. Stat. § 946.41(1)

and possession of drug paraphernalia in violation of Wis. Stat.

§ 961.573(1), both as a repeater.

6
 No. 2016AP2196-CR

¶22 The defendant moved to suppress the evidence obtained

as a result of the search incident to his arrest. The defendant

argued that the officers' attempt to stop him while he was still

in his driveway was unlawful, and further, that it was unlawful

for the officers to pursue him into his home in order to arrest

him.

¶23 At the suppression hearing, the circuit court seemed

inclined to rule that the officers lawfully entered the

defendant's home under the rationale announced in Payton v. New

York, 445 U.S. 573 (1980). The circuit court stated that "[t]he

bottom line is there's a legitimate arrest warrant for you and

the police officer[s], through their investigation, had reason

to believe and probable cause that you lived there, okay.

That's all I needed, probable cause that you lived there and

they had the arrest warrant. That's enough."

¶24 Nevertheless, the circuit court's written order denied

the defendant's motion on the basis that the officers' entry

into the home was permitted under the hot pursuit doctrine. The
defendant pleaded no contest to the charges against him and

appealed. The court of appeals affirmed the conviction, relying

on the hot pursuit doctrine.

II

¶25 We begin by setting forth the applicable standard of

review.

¶26 "Our review of an order granting or denying a motion

to suppress evidence presents a question of constitutional
fact." State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786
7
 No. 2016AP2196-CR

N.W.2d 463; see also State v. Iverson, 2015 WI 101, ¶17, 365

Wis. 2d 302, 871 N.W.2d 661 (quoting Robinson).

¶27 "When presented with a question of constitutional

fact, this court engages in a two-step inquiry. First, we

review the circuit court's findings of historical fact under a

deferential standard, upholding them unless they are clearly

erroneous. Second, we independently apply constitutional

principles to those facts." Robinson, 327 Wis. 2d 302, ¶22

(citations omitted); see also Iverson, 365 Wis. 2d 302, ¶18;

State v. Hogan, 2015 WI 76, ¶32, 364 Wis. 2d 167, 868

N.W.2d 124.

III

¶28 For purposes of this review, no dispute exists about

the historical facts. No party argues (and we do not conclude)

that any of the circuit court's findings of fact based on the

testimony are clearly erroneous. Therefore, we apply the

relevant constitutional principles to the historical facts.

¶29 The relevant constitutional principles are set forth
in Payton v. New York, 445 U.S. 573 (1980).

¶30 The United States Supreme Court declared in Payton

that "for Fourth Amendment purposes, an arrest warrant founded

on probable cause implicitly carries with it the limited

authority to enter a dwelling in which the suspect lives when

there is reason to believe the suspect is within." Payton, 445

U.S. at 603.

¶31 The Supreme Court has further explained Payton,
stating that the Payton Court "recognized that an arrest warrant
8
 No. 2016AP2196-CR

alone was sufficient to authorize the entry into a person's home

to effect his arrest. . . . Because an arrest warrant authorizes

the police to deprive a person of his liberty, it necessarily

also authorizes a limited invasion of that person's privacy

interest when it is necessary to arrest him in his home."

Steagald v. United States, 451 U.S. 204, 214 n.7 (1981).

¶32 Under Payton, police may enter a residence pursuant to

an arrest warrant if two factors are present: "(1) the facts

and circumstances present the police with a reasonable belief

that the subject of the arrest warrant resides in the home; and

(2) the facts and circumstances present the police with a

reasonable belief that the subject of the arrest warrant is

present in the home at the time entry is effected." State v.

Blanco, 2000 WI App 119, ¶16, 237 Wis. 2d 395, 614 N.W.2d 512.

¶33 The federal circuit courts are divided regarding what

Payton meant by a "reasonable belief." See United States v.

Hill, 649 F.3d 258, 262-63 (4th Cir. 2011) (noting that some

circuits have equated "reasonable belief" with "probable cause"
while others have concluded that "reasonable belief" means

something less stringent than "probable cause").

¶34 We need not (and do not) decide today whether

"reasonable belief" means "probable cause" or something less

stringent because, in the instant case, the officers had

9
 No. 2016AP2196-CR

probable cause to believe that the defendant resided in the

duplex into which he fled.4

¶35 We have explained that "probable cause eschews

technicality and legalisms in favor of a flexible, common-sense

measure of the plausibility of particular conclusions about

human behavior." State v. Kiper, 193 Wis. 2d 69, 83, 532

N.W.2d 698 (1995) (internal quotation marks and quoted source

omitted). For probable cause to exist, "[t]he quantum of

evidence must constitute 'more than a possibility or suspicion

that defendant committed an offense, but the evidence need not

reach the level of proof beyond a reasonable doubt or even that

guilt is more likely than not. The information which

constitutes probable cause is measured by the facts of the

particular case.'" Id. at 82 (quoting State v. Mitchell, 167

Wis. 2d 672, 681-82, 482 N.W.2d 364 (1992)).

¶36 The first factor, whether the police had probable

cause to believe that the defendant resided in the home, is at

issue in the instant case.5 The defendant argues that the police
officers in the instant case did not have probable cause to

4
Moreover, this issue was not briefed or argued by the
parties in the instant case. Because the resolution of this
issue is unnecessary to the resolution of the instant case, we
leave for another day the meaning of Payton's "reasonable
belief" language. See Jamerson v. Dep't of Children & Families,
2013 WI 7, ¶57, 345 Wis. 2d 205, 824 N.W.2d 822; Pool v. City of
Sheboygan, 2007 WI 38, ¶19, 300 Wis. 2d 74, 729 N.W.2d 415.
5
The second factor is not at issue. No one disputes that
the police had probable cause to believe that the defendant was
present in the dwelling at the time of the officers' entry.

10
 No. 2016AP2196-CR

believe that he was the subject of the arrest warrants (i.e.,

that the fleeing man was Steven Delap) or that he resided in the

dwelling into which he fled. We are not persuaded by the

defendant's arguments.

¶37 The following facts known to the police officers

support a finding of probable cause to believe that the fleeing

individual was Steven Delap and that the individual resided in

the dwelling into which he fled:

• Steven Delap had two outstanding warrants for his

arrest: one from Jefferson County and one from the

Wisconsin Department of Corrections.

• Steven Delap had a prior history of fleeing from

police officers.

• Approximately one month prior to the defendant's

arrest, Sergeant Willmann overheard that Steven Delap

had fled a traffic stop conducted by one of his

colleagues, and that a passenger in the vehicle said

that Steven Delap lived at 110 Milwaukee Street in
Neosho.

• Approximately one week prior to the defendant's

arrest, Sergeant Willmann received a teletype

correspondence from the Walworth County Sheriff's

Office stating that Steven Delap was again involved in

fleeing a traffic stop. The teletype indicated that

Steven Delap lived at 110 Milwaukee Street.

• As he and Deputy Waas walked down Milwaukee Street,
Sergeant Willmann counted down the numbers on the
11
 No. 2016AP2196-CR

houses. When he reached number 120, there was only

one other building on the 100 block of Milwaukee

Street: a duplex that Sergeant Willmann deduced must

include 110 Milwaukee Street.

• As Sergeant Willmann and Deputy Waas approached the

duplex, a man who was walking down the driveway

noticed the officers, turned around, and began running

towards the back of the duplex. Sergeant Willmann was

in full uniform when the man noticed the officers and

fled. Sergeant Willmann shined his flashlight on the

man and shouted, "Stop, police!" but the man continued

running towards the back of the duplex.

¶38 Taken together, the facts and circumstances presented

to Sergeant Willmann and Deputy Waas establish probable cause to

believe that the man in the driveway of 110 Milwaukee Street who

turned and ran after noticing the police officers was Steven

Delap, the subject of the arrest warrants who had a prior

history of fleeing police and who was believed to reside at 110
Milwaukee Street.

¶39 The defendant offers two other arguments, both of

which are undeveloped and perplexing.

¶40 The defendant contends, without explanation, that the

officers did not know that the outstanding arrest warrants were

supported by probable cause as determined by a neutral

magistrate. Arrest warrants must be supported by probable

12
 No. 2016AP2196-CR

cause.6 The language of Payton requires only a valid arrest

warrant, a reasonable belief that the subject of the warrant

resides in a particular dwelling, and a reasonable belief that

the subject of the warrant will be present in the dwelling at

the time of entry. Payton, 445 U.S. at 603. Payton does not

require the specific arresting officers to also have personal

knowledge regarding the issuance of the arrest warrant. The

defendant does not argue or contend that the two warrants issued

for his arrest in the instant case lacked probable cause, only

that Sergeant Willmann and Deputy Waas did not have personal

knowledge regarding the issuance of the two warrants.

Accordingly, we reject the defendant's argument.

¶41 The defendant also asserts that even if the officers'

entry into his home was permissible under Payton, his arrest was

nonetheless unreasonable because of the officers' use of force

and display of weapons. The defendant fails to explain how the

police officers' use of force in the instant case overrides the

officers' authority to enter the home to execute the two valid

6
State v. Ritchie, 2000 WI App 136, ¶12, 237 Wis. 2d 664,
614 N.W.2d 837 (quoting Wayne R. LaFave, Search and Seizure
§ 5.1(g), at 50 (3d ed. 1996)):

The requirement of the Fourth Amendment that no
warrant shall issue, but upon probable cause,
supported by oath or affirmation and particularly
describing the person or things to be seized, applies
to arrest warrants as well as search warrants, and
thus much of what [is] said . . . with respect to the
issuance of search warrants applies by analogy to
arrest warrants.

13
 No. 2016AP2196-CR

outstanding arrest warrants or how the use of force in the

instant case was unreasonable.

¶42 Applying Payton to the undisputed facts, we conclude

that the police officers' entry into the defendant's home to

execute two valid warrants for the defendant's arrest was

permissible. We therefore affirm the decision of the court of

appeals affirming the defendant's judgment of conviction.

By the Court.—The decision of the court of appeals is

affirmed.

14
 No. 2016AP2196-CR.mjg

¶43 MICHAEL J. GABLEMAN, J. (Concurring). I agree with

the majority that the entry into Delap's residence was lawful

pursuant to Payton v. New York, 445 U.S. 573 (1980), and,

consequently, his conviction should be affirmed.1 However, I

would go further and also answer the question of whether the

officers' entry into Delap's residence was lawful pursuant to

the hot pursuit doctrine. See, e.g., State v. Washington, 2018

WI 3, ¶¶61-68, 379 Wis. 2d 58, 905 N.W.2d 380 (Gableman, J.,

joined by R.G. Bradley and Kelly, JJ, concurring) ("I would go

further and hold that Washington forfeited his right to be

present at trial."); Leavitt v. Beverly Enters., 2010 WI 71,

¶¶59-62, 326 Wis. 2d 421, 784 N.W.2d 683 (Ziegler, J.,

concurring) ("I write separately because I would go further and

decide that an order compelling arbitration is not appealable as

a matter of right.").

¶44 Though appellate courts should generally decide cases

on the narrowest possible grounds, State v. Toliver, 2014 WI 85,

¶12, 356 Wis. 2d 642, 851 N.W.2d 251, I would make an exception
in this case for three reasons: (1) the circuit court and court

of appeals based their respective decisions on hot pursuit;2 (2)

1
I join the majority opinion except the last sentence of ¶5
and footnote three.
2
The circuit court relied on both Payton v. New York, 445
U.S. 573 (1980) and hot pursuit in its oral decision denying
Delap's motion to suppress. However, in its written order, the
circuit court relied only on hot pursuit. In addition, the
court of appeals relied only on hot pursuit in affirming Delap's
conviction. State v. Delap, 2016AP2196-CR, unpublished slip op.
(Wis. Ct. App. April 20, 2017).

1
 No. 2016AP2196-CR.mjg

Delap presented only the hot pursuit question in his petition

for review;3 and (3) answering the hot pursuit question in this

case may serve to alleviate any confusion stemming from our

splintered decision in State v. Weber, 2016 WI 96, 372 Wis. 2d

202, 887 N.W.2d 554.

I. THE OFFICERS WERE IN HOT PURSUIT OF DELAP WHEN THEY ENTERED
HIS HOME.
¶45 "The Fourth Amendment to the United States

Constitution and Article I, Section 11 of the Wisconsin

Constitution protect the right of people to be secure in their

persons . . . against unreasonable searches and seizures."

State v. Tullberg, 2014 WI 134, ¶29, 359 Wis. 2d 421, 857 N.W.2d

120. This protection also bars police entry into a private

residence without consent or a warrant. Welsh v. Wisconsin, 466

U.S. 740, 748 (1984). Wisconsin "adhere[s] to the basic

principle that warrantless searches[, or entries,] are per se

unreasonable unless they fall within a well-recognized exception

to the warrant requirement." State v. Foster, 2014 WI 131, ¶32,

360 Wis. 2d 12, 856 N.W.2d 847. One well-recognized exception

to the warrant requirement is the exigent circumstances

doctrine. State v. Robinson, 2010 WI 80, ¶24, 327 Wis. 2d 302,

786 N.W.2d 463. The exigent circumstances doctrine provides

that a warrantless search is reasonable under the Fourth

3
The State raised Payton in its response brief to this
court. Though petitioners may address only issues raised in the
petition for review, respondents (such as the State in this
case) may advance any argument in support of the judgment below.
Cynthia E. v. La Crosse Cty. Human Servs., 172 Wis. 2d 218, 233,
493 N.W.2d 56 (1992).

2
 No. 2016AP2196-CR.mjg

Amendment if the need for the search is urgent and there is

insufficient time to obtain a warrant. Tullberg, 359 Wis. 2d

421, ¶30.

¶46 We have identified four categories of exigent

circumstances: "1) hot pursuit of a suspect, 2) a threat to the

safety of a suspect or others, 3) a risk that evidence will be

destroyed, and 4) a likelihood that the suspect will flee."

State v. Howes, 2017 WI 18, ¶24, 373 Wis. 2d 468, 893 N.W.2d 812

(quoting State v. Richter, 2000 WI 58, ¶29, 235 Wis. 2d 524, 612

N.W.2d 29). The burden is on the State to "prov[e] that a

warrantless home entry is justified by exigent circumstances."

State v. Ferguson, 2009 WI 50, ¶20, 317 Wis. 2d 586, 767 N.W.2d

187. In the present matter, we are concerned with only the

first category of exigent circumstances: hot pursuit.

¶47 The hot pursuit exception applies when officers are in

"immediate or continuous pursuit of [a suspect] from the scene

of a crime." State v. Weber, 2016 WI 96, ¶28, 372 Wis. 2d 202,

887 N.W.2d 554 (quoting Richter, 235 Wis. 2d 524, ¶29). Thus,
the State must show that: (1) the officers were in immediate

pursuit of the suspect; and (2) the officers had probable cause

to arrest the fleeing suspect for a "jailable criminal offense."

State v. Sanders, 2008 WI 85, ¶117, 311 Wis. 2d 257, 752 N.W.2d

713 (Prosser, J., concurring) (citing Welsh, 466 U.S. at 753).

A. The Officers were in Immediate Pursuit of Delap

¶48 The first element of the hot pursuit test requires

that the officers actually be engaged in pursuing or chasing the
defendant. While "'hot pursuit' means some sort of

3
 No. 2016AP2196-CR.mjg

chase, . . . it need not be an extended hue and cry in and about

public streets." United States v. Santana, 427 U.S. 38, 43

(1976). A pursuit or chase that ends "almost as soon as it

began [does] not render it any less a 'hot pursuit' sufficient

to justify the warrantless entry." Sanders, 311 Wis. 2d 257,

¶109 (Prosser, J., concurring) (citing Santana, 427 U.S. at 43).

"[A] suspect may not defeat an arrest which has been set in

motion in a public place, and is therefore proper under [United

States v. Watson, 423 U.S. 411 (1976)], by the expedient of

escaping into a private place." Santana, 427 U.S. at 40.

Law enforcement is not a child’s game of prisoner[’]s
base, or a contest, with apprehension and conviction
depending upon whether the officer or defendant is the
fleetest of foot. A police officer in continuous
pursuit of a perpetrator of a crime committed in the
officer’s presence . . . must be allowed to follow the
suspect into a private place, or the suspect’s home if
he chooses to flee there, and effect the arrest
without a warrant.
Weber, 372 Wis. 2d 202, ¶30 (quoting Sanders, 311 Wis. 2d 257,

¶133 (Prosser, J., concurring)).

¶49 Stated otherwise, "[a]n officer in 'hot pursuit' does

not need to make a split-second determination about the

availability of 'hot pursuit' as an exigency . . . . [He must]

determin[e] whether there is probable cause to make an arrest

for a jailable crime. Presuming probable cause, pursuit . . .

is justified." Sanders, 311 Wis. 2d 257, ¶117 (Prosser, J.,

concurring).

¶50 This element of the hot pursuit test is satisfied by
the circumstances of the chase from Delap's driveway to his

doorway. Although the chase was short, it nonetheless qualifies
4
 No. 2016AP2196-CR.mjg

as a chase because Sgt. Willmann pursued Delap from his driveway

into his home after identifying himself as a police officer and

ordering Delap to stop. See Santana, 427 U.S. at 43; Sanders,

311 Wis. 2d 257, ¶109 (Prosser, J., concurring).

B. The Officers had Probable Cause to Arrest Delap for a
Jailable Offense.
¶51 The second element of hot pursuit requires that the

officers had probable cause to believe that the defendant

committed a jailable offense at the time of the chase. See

Ferguson, 317 Wis. 2d 586, ¶29. "[I]n evaluating whether a

warrantless entry is justified by exigent circumstances,

[courts] should consider whether the underlying offense is a

jailable or nonjailable offense, rather than whether the

legislature has labeled that offense a felony or misdemeanor."

Id. (citing Welsh, 466 U.S. at 753 (holding that a noncriminal

traffic offense was not serious enough for exigent circumstances

to exist); Sanders, 311 Wis. 2d 257, ¶93 (Prosser, J.,

concurring)).

¶52 Here, the officers had probable cause that Delap

committed the jailable offense of obstructing an officer

contrary to Wis. Stat. § 946.41(1). Obstructing an officer is a

class A misdemeanor punishable by up to 9 months in jail and/or

a fine not to exceed $10,000. Wis. Stat. § 946.41(1); see also

Wis. Stat. § 939.51(3)(a).

¶53 In order to convict a person of obstructing an

officer, the State must prove that the person knowingly: (1)
obstructed an officer; (2) while the officer was doing any act

in an official capacity; and (3) the officer was acting with
5
 No. 2016AP2196-CR.mjg

lawful authority.4 Wis. Stat. § 946.41(1); see also State v.

Lossman, 118 Wis. 2d 526, 536, 348 N.W.2d 159 (1984).

¶54 Delap's conduct provided the officers with probable

cause to believe he violated all three elements. First, Delap

knowingly obstructed the officers when he fled from them. State

v. Grobstick, 200 Wis. 2d 242, 249-50, 546 N.W.2d 187 (Ct. App.

1996).

¶55 Second, Delap knew the officers were acting in their

official capacity because: (1) the officers were the only

people walking up the street at the time; (2) the officers were

shining their flashlights in the direction of Delap; (3) the

officers were in full uniform; and (4) the officers yelled

"stop——police" when they saw Delap. Sanders, 311 Wis. 2d 257,

¶121 (Prosser, J., concurring) (citing City of Middletown v.

Flinchum, 765 N.E.2d 330, 331 (Ohio 2002)).

¶56 Third, we are to look at the totality of the

circumstances to determine whether Delap knew the officers were

acting with lawful authority. See Lossman, 118 Wis. 2d at 543-
44 ("[I]n order for the [S]tate to prove that the defendant knew

or believed that the officer was acting with lawful authority,

the defendant's subjective intent must be ascertained, based on

the totality of the circumstances."). Many of the same facts

4
The pattern jury instructions list four elements for the
crime of obstructing an officer. Wis. JI——Criminal 1766 (2010).
This is so because the pattern jury instructions construe the
necessary mens rea (knowing) as a separate, fourth element of
the offense. Id.; see also State v. Young, 2006 WI 98, ¶57, 294
Wis. 2d 1, 717 N.W.2d 729.

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that demonstrate Delap knew the officers were acting in their

official capacities also demonstrate that he knew they were

acting with lawful authority: (1) the officers were in uniform;

(2) the officers were wearing their standard service belt; and

(3) the officers yelled that they were police when Delap started

running. See id. (holding that jury could infer defendant knew

officer was acting with lawful authority because defendant: (1)

saw the officer in uniform; (2) saw the officer's holstered

weapon; and (3) was told why the officer was on his property).

Based on these facts, the officers had probable cause to believe

Delap committed the jailable offense of obstructing an officer.

II. CONCLUSION

¶57 In his petition for review, Delap raised the issue of

whether his arrest fell within the hot pursuit exception to the

warrant requirement under the Fourth Amendment——the basis on

which the court of appeals affirmed his conviction. State v.

Delap, 2016AP2196-CR, unpublished slip op. (Wis. Ct. App. April

20, 2017). While I both fully understand that "it is axiomatic
that this court is not bound by the issues presented or the

arguments made by the parties,"5 and agree with the majority's

application of Payton, 445 U.S. 573, I believe it would have

been prudent for the court to address the hot pursuit exception

to help resolve any confusion stemming from our splintered

decision in Weber, 372 Wis. 2d 202 last term.
5
State v. Alexander, 2015 WI 6, ¶83, 360 Wis. 2d 292, 858
N.W.2d 662 (Gableman, J., concurring); see also Springer v. Nohl
Elec. Prods. Corp., 2018 WI 48, ¶41, ___ Wis. 2d ___, ___
N.W.2d ___.

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¶58 Accordingly, I respectfully concur.

¶59 I am authorized to state that Justice DANIEL KELLY

joins this concurrence.

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