¶ 108. (dissenting). To be clear, contrary to the concurrence's assertions, Payton v. New York, 445 U.S. 573 (1980) was violated when officers arrested Felix in his home without a warrant.
¶ 109. The question before this court is not whether there was a violation of Payton, as the concurrence suggests. The State has conceded a Payton violation at every stage of this case, and during oral argument in this court, it expressly disavowed the argument advanced by the concurrence.1
*723¶ 110. Rather, the question we address is whether we should interpret our state constitution as providing greater protection of our liberty interests than the protection provided by the United States Constitution. The majority answers the question no, embracing the rationale of New York v. Harris, 495 U.S. 14 (1990).
¶ 111. Because I conclude that the Harris decision does not sufficiently deter illegal government activity and because that decision may instead create powerful new incentives encouraging illegal arrests, I would accord the people of this state greater protection of their liberty interests under our state constitution. Accordingly, I respectfully dissent.
I
¶ 112. The majority "find[s] no reason" to interpret the Wisconsin Constitution any differently than the Supreme Court has interpreted the United States *724Constitution. Majority op., ¶ 38. It asserts that "the Harris Court drew a line at the entrance to the home," and following Harris, it declines to suppress the statements made by Felix outside of his home following his warrantless home arrest. Id., ¶ 48.
¶ 113. Although the Harris rule pertains only to statements obtained outside the home, the majority goes further. It extends the Harris rule to physical evidence obtained outside the home, even though the physical evidence would not have been seized "but for" the illegal entry. Id., ¶¶ 25, 46. Its rationale appears to be grounded in the Harris Court's assurances that "there is no compelling reason" to suppress this evidence because suppression would have little deterrent effect. Id., ¶ 40.
II
¶ 114. Unlike the majority, a unanimous court of appeals declined to apply the Harris rule in this case. State v. Felix, Case No. 2010AP346-CR, unpublished slip op. (Wis. Ct. App. Mar. 29, 2011). The court of appeals explained that the 5-4 Harris decision has been the subject of substantial criticism. Id., ¶ 19 n.9. In particular, it "was the subject of a vigorous dissent" which advanced that the Harris majority's "reasoning amounts to nothing more than an analytical sleight of hand, resting on errors in logic, misreadings of our cases, and an apparent blindness to the incentives the Court's ruling creates for knowing and intentional constitutional violation by the police." Id. (citing Harris, 495 U.S. at 21-22 (Marshall, J., dissenting)).
¶ 115. The Harris decision has also been criticized on various grounds by a leading scholar of Fourth Amendment jurisprudence, Professor Wayne LaFave. 6 *725Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4(b), at 304 (4th ed. 2004) ("The trouble with [Harris], as the Harris dissenters pointed out... is that. . . the detrimental consequences of illegal police action... do not inevitably cease simultaneously with the illegality itself.").
¶ 116. Several state courts have criticized the Harris decision and have explicitly refused to apply its rationale to their state constitutions. When the Supreme Court remanded Harris to New York's highest court, for example, the New York court refused to adopt the Supreme Court's rationale. It explained: "We conclude that the Supreme Court's rule does not adequately protect the search and seizure rights of citizens of New York. Accordingly, we hold that our State Constitution requires that statements obtained from an accused following a Payton violation must be suppressed unless the taint resulting from the violation has been attenuated." People v. Harris, 570 N.E.2d 1051, 1052-53 (N.Y. 1991).
¶ 117. Although state courts have split on the question, several states have followed New York's lead. In State v. Mariano, 160 P.3d 1258, 1268 (Haw. Ct. App. 2007), the court of appeals of Hawaii stated: "We cannot condone the parsimonious Fourth Amendment protection the Supreme Court doled out in Harris." Likewise, the Supreme Court of Connecticut concluded that the Harris rule does not provide the protection required by that state's constitution. State v. Luurtsema, 811 A.2d 223, 233 (Conn. 2002), overruled on other grounds by State v. Salamon, 949 A.2d 1092 (Conn. 2008). See also State v. Eserjose, 259 P.3d 172, 178 (Wash. 2011) (concluding that the Harris rule "falls short of the protection afforded by our state constitution"). Indeed, we have previously declined to adopt Harris in the past, *726even though we were given an occasion to do so. State v. Roberson, 2006 WI 80, 292 Wis. 2d 280, 717 N.W.2d 111.
¶ 118. Despite the substantial criticism, the majority today embraces the Harris rule and declines to afford greater protection of liberty interests under our state constitution. Both the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution provide that "[t]he right of the people to be secure in their . .. houses . . . shall not be violated." Even if officers have probable cause to arrest a suspect, they are required to secure a warrant before effectuating the arrest at the suspect's home. Payton, 445 U.S. 573.2 The warrant requirement reflects the framers' conviction that the decision to effectuate a home arrest should not be made on the spot by a police officer engaged in the competitive enterprise of ferreting out crime. Rather, the framers provided that the decision should be made by a neutral and detached magistrate. Id. at 582, n. 17.
¶ 119. Absent exigent circumstances, warrantless home arrests are unconstitutional. For years, American courts have suppressed evidence obtained in violation of the Fourth Amendment and Article I, Section 11 of the Wisconsin Constitution.3 One purpose furthered by the exclusionary rule is to deter future constitutional violations by "compelling] respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it." Elkins *727v. United States, 364 U.S. 206, 217 (1960).4 Deterrence through suppression of illegally obtained evidence is necessary to safeguard the constitutional rights of all citizens.5
¶ 120. Driven by the purpose of deterring illegal government activity, the United States Supreme Court has recognized the reality that it is often necessary to suppress derivative evidence. This type of evidence is not obtained during the actual illegal search or seizure, but rather, it is the later product of an initial illegal intrusion. Derivative evidence is often referred to as "fruit of the poisonous tree."6
Id. at 181 (Jackson, J., dissenting).*728¶ 121. In the landmark case Brown v. Illinois, 422 U.S. 590 (1975), the United States Supreme Court acknowledged that not all derivative evidence must be suppressed to fulfill the deterrent purpose of the exclusionary rule. Some derivative evidence may be so attenuated from the underlying illegal conduct that "the deterrent effect of the exclusionary rule no longer justifies its cost." Id. at 609 (Powell, J., concurring in part). Nevertheless, the Court indicated that persistent refusal to suppress fruits of the poisonous tree would "substantially dilute[]" the "effect of the exclusionary rule."7 Id. at 602.
¶ 122. The United States Supreme Court has repeatedly rejected per se rules which would provide that suppression of certain categories of derivative evidence is no longer justified by the cost of deterrence.8 Rather, when deciding whether derivative evidence must be suppressed, a court must make a determination "on the facts of each case" and guided by three factors set forth in Brown: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, *729and the purpose and flagrancy of the official misconduct. Id. at 603-04.
¶ 123. Harris marked a significant departure from this line of cases. The Harris opinion gave a nod toward the "familiar proposition that the indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality." Harris, 495 U.S. at 17. However, the Court proceeded to abandon that "familiar proposition" altogether when it came to statements procured outside the threshold of the home following an illegal warrant-less home arrest.
¶ 124. Instead of applying the familiar attenuation test, the Harris Court adopted the following categorical rule: Statements obtained outside the home following a warrantless arrest are not "the product of illegal governmental activity." Id. at 19. Accordingly, "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by a defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Id. at 21. The Harris Court's per se rule is a startling departure from Brown's attenuation analysis. See LaFave, Search & Seizure § 11.4(b), at 304.
¶ 125. As justification for its new rule, the Harris Court declared that its holding would not lead to any significant reduction in deterrence: "[T]he principal incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found, or statements taken, inside the home. If we did suppress statements like Harris', moreover, the incremental deterrent value would be minimal." 495 U.S. at 20.
*730¶ 126. As the dissent in Harris quipped, "The Court's saying it may make it law [for purposes of the Fourth Amendment], but it does not make it true." Id. at 29 (Marshall, J., dissenting). Indeed, the Harris Court's declaration that deterrence would not be diminished is belied by the facts underlying that case.9
¶ 127. The following example, proffered by the dissent, illustrates how officers have much to gain and little to lose when they illegally perform a warrantless home arrest in the wake of Harris:
[T]he officer knows that if he breaks into the house without a warrant and drags the suspect outside, the suspect, shaken by the enormous invasion of privacy he has just undergone, may say something incriminating. ... [T]he officer envisions the following best-case scenario if he chooses to violate the Constitution [by making a warrantless home arrest in violation of Payton]: He avoids a major expenditure of time and effort, ensures that the suspect will not escape, and procures the most damaging evidence of all, a confession. His worst-case scenario is that he will avoid a major expenditure of effort, ensure that the suspect will not escape, and wall see evidence in the house (which would have remained unknown absent the constitutional violation) that cannot be used in the prosecution's case in chief.
Id. at 32. Ultimately, the dissent persuasively argued that rather than deterring illegal government conduct, *731the Harris majority actually "create[d] powerful incentives for police officers to violate the Fourth Amendment." Id.
Ill
¶ 128. I agree with the Harris dissenters that "[a] regime that suppresses only some fruits of constitutional violations" does not go far enough to "eliminate the incentives to violate the Constitution." Id. at 23. I find the Harris dissent's clear explanation of the necessity of continuing to apply Brown much more persuasive than the rationale for abandoning Brown proffered by the Harris majority.
¶ 129. In the wake of Harris, I fail to see how the exclusionary rule serves its purpose as an effective deterrent of warrantless home arrests. An officer familiar with Payton and Harris, but wishing to avoid the hassle of securing an arrest warrant, has little incentive to do so. Rather, the officer need only usher the suspect out of the house as quickly as possible so that anything the suspect accidentally blurts out will be admissible under Harris's categorical rule.
¶ 130. Harris's limitation on the exclusionary rule may be the law of the land with regard to the Fourth Amendment of the United States Constitution. But that fact does not compel this court to similarly engraft this limitation of our liberty onto Article I, Section 11 of the Wisconsin Constitution.
¶ 131. If we declined to adopt the Harris rationale, it would not be the first time we interpreted Article I, Section 11 of our state constitution to provide greater protection of liberty interests than are provided by the United States Supreme Court's existing interpretation of the Fourth Amendment. The majority *732acknowledges that in State v. Eason, 2001 WI 98, ¶¶ 60-63, 245 Wis. 2d 206, 629 N.W.2d 625, we concluded that the federal good faith exception to the exclusionary rule did not sufficiently deter illegal government activity. Majority op., ¶ 37. But contrary to its assertion, Eason is not the only case in which we declined to follow lockstep the Supreme Court.10 The majority's own discussion admits of another occasion in which we interpreted Article I Section 11 more expansively than the existing interpretation of the Fourth Amendment. See majority op., ¶ 29 (discussing Laasch v. State, 84 Wis. 2d 587, 595-97; 267 N.W.2d 278 (1978)).
¶ 132. Here, the officers had probable cause to arrest Felix. See id., ¶ 28. Additionally, they had ample time to secure a warrant for his arrest, given that they secured a warrant to search the crime scene, and the affidavit in support of that warrant named Felix as the suspect. Id., ¶ 8. Nevertheless, despite ample opportunity and the constitutional protections afforded to the home, the officers apparently decided that there was no *733need to secure an arrest warrant prior to confronting Felix at his apartment.11
¶ 133. Under these circumstances, the officers' illegal conduct should not be sanctioned with a categorical exception to the exclusionary rule. I conclude that the Harris per se rule is an ineffective deterrent for Payton violations, and that any advantage of the rule does not outweigh the potential loss of liberty to the people of this state. I would remand to the circuit court to determine whether, under the Brown attenuation analysis, Felix's signed statement, the buccal swab, and Felix's clothing were sufficiently attenuated from the illegal arrest that they should not be suppressed.12 Accordingly, I respectfully dissent.
¶ 134. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.The concurrence opines that Payton was not violated when the officers, with guns drawn, ordered Felix out of his home where he was placed in handcuffs. It suggests that Felix was arrested "outside the home" because the arresting officers never "broke the plane of the threshold [of Felix's home] before or during the arrest." Concurrence, ¶¶ 103, 70.
*723This suggestion is mistaken. The flaw in the concurrence's analysis is that it confuses the legal concept of arrest with the factual, physical act of handcuffing a suspect. "[T]he standard used to determine the moment of arrest is whether a reasonable person in the defendant's position would have considered himself or herself to be in custody, given the degree of restraint under the circumstances." State v. Kiekhefer, 212 Wis. 2d 460, 485, 569 N.W.2d 315 (Ct. App. 1997).
The State has conceded that the officers' "constructive entry" of Felix's apartment violated Payton (absent exigent circumstances). This concession is on firm footing. See United States v. Saari, 272 F.3d 804 (6th Cir. 2001); Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997); United States v. Maez, 872 F.2d 1444 (10th Cir. 1989); United States v. Curzi, 867 F.2d 36 (1st Cir. 1989); United States v. Al-Azzawy, 784 F.2d 890 (9th Cir. 1985); Scroggins v. State, 633 S.W.2d 33 (Ark. 1982); State v. Dahl, 915 P.2d 979 (Or. 1996); see also City of Sheboygan v. Cesar, 2010 WI App 170, ¶ 13, 330 Wis. 2d 760, 796 N.W.2d 429.
See also Laasch v. State, 84 Wis. 2d 587, 595, 267 N.W.2d 278 (1978) (concluding that both the Fourth Amendment and Article I, section 11 of the Wisconsin Constitution require officers to secure a warrant before arresting a suspect in his or her home).
See, e.g., Weeks v. U.S., 232 U.S. 383 (1914); Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923).
Another purpose served hy the exclusionary rule is the preservation of the integrity of the judicial process. State v. Hess, 2010 WI 82, ¶¶ 3, 64-65, 327 Wis. 2d 524, 785 N.W.2d 568.
In Brinegar v. United States, 338 U.S. 160 (1949), Justice Jackson cogently explained why suppression of illegally obtained evidence was necessary to safeguard not only the rights of criminal defendants, but also, the rights of the public at large:
Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear.
Courts can protect the innocent against such invasions indirectly and through the medium of excluding evidence obtained against those who frequently are guilty.
For the origin of this phrase, see Nardone v. United States, 308 U.S. 338, 341 (1939).
Brown v. Illinois, 422 U.S. 590, 602-03 (1975) ("Arrests made without warrant or probable cause, for questioning or 'investigation,' would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expendent of giving Miranda warnings. Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a 'cure-all,' and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to 'a form of words.'").
See, e.g., Brown, 422 U.S. at 603 ("While we therefore reject the per se rule which the Illinois courts appear to have accepted, we also decline to adopt any alternative per se or 'but for' rule."); see also Wong Sun v. United States, 371 U.S. 471, 487 (1963); United States v. Leon, 468 U.S. 897, 911 (1984).
In Harris, the state court concluded that the police department had a policy of knowingly and intentionally violating Payton, and that the policy was "a device used to avoid restrictions on questioning a suspect until the police had strengthened their case with a confession." People v. Harris, 72 N.Y. 2d 614, 622 (1988). Under these circumstances, there can be no doubt that the suppression of confessions obtained following Payton violations would help deter the department's policy of knowingly and intentionally violating Payton.
See also State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899 (excluding evidence under Article I, Section 8 of the Wisconsin Constitution, even though it would not have been excluded under the United States Supreme Court's interpretation of the Fifth Amendment). In Knapp, we stated: "This 'lock-step' theory of interpreting the Wisconsin Constitution no broader than its federal counterpart appears to be aimed at promoting uniformity in the law. Uniformity may be advantageous, but it cannot be indispensable. It is the prerogative of the State of Wisconsin to afford greater protection to the liberties of persons within its boundaries under the Wisconsin Constitution than is mandated by the United States Supreme Court." Id., ¶ 59.
The officers procured additional evidence against Felix when they searched the apartment his family was renting. Apparently, a man named Dean Kudick rented the apartment and sublet it to the Felix family, and it was Kudick who consented to the officers' request to search. See majority op., ¶ 11. This court has not been asked to decide whether Kudick had common authority over the apartment so that he could consent to the search, see Georgia v. Randolph, 547 U.S. 103 (2006), and accordingly the majority does not decide that issue.
See State v. Walker, 154 Wis. 2d 158, 187-88, 453 N.W.2d 127 (1990) (remanding for the fact-finding necessary to conduct the Brown attenuation analysis).