¶ 46.
{dissenting). The issue in the present case is whether the defendant should get a hearing {a Machner hearing)1 on his motion to vacate the judgment of conviction on the ground of ineffective assistance of counsel. He claims defense counsel was ineffective in failing to challenge the officers' testimony regarding the out-of-court iden*311tifications and in failing to object to the in-court identifications as tainted by the out-of-court identifications.2
¶ 47. To get a Machner evidentiary hearing, an accused must make a sufficient showing on the two elements of ineffective assistance of counsel: (1) counsel's performance was deficient;3 and (2) counsel's deficient performance was prejudicial.4 The defendant need not prove either of these prongs at the motion stage of the proceeding. The defendant need show only that he should get an evidentiary hearing on the issues.
¶ 48. A circuit court determines as a matter of law "whether the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to *312relief.... If the motion raises such facts, the circuit court must hold an evidentiary hearing. However, if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing."5
¶ 49. Whether the motion sufficiently alleges facts which, if true, would entitle an accused to relief is a question of law to be determined by this court independently of the circuit court or court of appeals.6
¶ 50. The majority opinion first decides whether defense counsel's performance (even if deficient in failing to object to the out-of-court identifications) prejudiced the defendant. The majority opinion then declares that even if defense counsel erred in failing to challenge the out-of-court identifications, the error was harmless error and the court need not examine whether counsel fell below an objective standard of reasonableness for an attorney with regard to the out-of-court identifications.7 Under the majority opinion's assump*313tions, I conclude that the admission of the out-of-court identifications was prejudicial because at trial the State tied together the out-of-court and in-court identifications and used the out-of-court identifications to bolster the in-court identifications.
¶ 51. The majority opinion then concludes that the in-court identifications were properly admitted into evidence, regardless of whether the warrantless entry into the house was illegal and regardless of whether the out-of-court identifications were inadmissible. I disagree and conclude that the defendant is entitled to a hearing on whether the in-court identifications were tainted.
¶ 52. The majority opinion recognizes that if defense counsel erred in failing to challenge the in-court identifications, this deficient performance was prejudicial. The majority opinion treats the admissibility of the in-court identification as determinative of the case.8
¶ 53. I shall first discuss whether the assumed deficient performance on the part of defense counsel in not challenging the out-of-court identifications was prejudicial error. In contrast with the majority opinion, I conclude that it was. I then turn to whether the defendant's motion alleges sufficient material facts regarding both the out-of-court identifications and the in-court identifications that, if true, would entitle the defendant to a Machner hearing on the deficient performance of defense counsel. I conclude that the motion is sufficient to entitle the defendant to a Machner hearing.
I — I
¶ 54. The majority opinion assumes for the purposes of review, and I agree, that defense counsel erred by failing to object to the out-of-court identifications *314and that the out-of-court identifications should have been suppressed. The majority opinion then concludes that the record conclusively shows that the defendant was not prejudiced by defense counsel's failure to challenge the out-of-court identifications.9 Here is where I part with the majority opinion.
¶ 55. If the out-of-court identifications had been suppressed, the only evidence supporting the conviction would have been the in-court identifications. Because the State tried the case by bolstering the in-court identification with the out-of-court identifications, I conclude (assuming as did the majority opinion that the in-court identifications were admissible and that the out-of-court identifications were erroneously admitted) that admission of the out-of-court identifications was prejudicial error.
¶ 56. This case turns on the identifications of the defendant. The identifications are the only evidence tying the defendant to the crime charged. The defendant's defense was that he did not do it and was a victim of misidentification. The only evidence in the entire case tying the defendant to the drug offense was the officers' in-court and out-of-court identifications.10 No drugs or marked money were found on the defendant's person or in the house from which he was removed a short time after the drug transaction.
¶ 57. The majority opinion treats the admissibility of the in-court identifications alone as determinative of the case.11 Yet during trial the State tied the in-court *315identification to the out-of-court identifications to convince the jurors that the in-court identification was reliable and persuasive.
¶ 58. The State's direct examination of Detective Wagner emphasized the out-of-court identifications outside the mother's home and used them to bolster the in-court identification:
Q: ... The identification you made of Mr. Roberson when he was brought out of the house... was made, if I'm adding up here the time schedule correctly, within minutes of you seeing Mr. Roberson ... run into that house.
A: Yes.
Q: And that all occurred shortly after you had finished the surveillance of Mr. Roberson ... in front of that liquor store that afternoon—
A: Correct.
Q: —right? So you were not simply identifying Mr. Roberson here today a couple of months later; you identified him right there minutes after the incident.
A: Yes.
Q: And that identification was made after you watched him for approximately 25 minutes through the binoculars very carefully, wasn't it?
A: Yes.
¶ 59. During opening and closing statements the State emphasized the out-of-court identifications (which the majority opinion assumes should have been suppressed), again to bolster the in-court identifications.
*316¶ 60. In the opening argument, the assistant district attorney stressed that the two officers readily identified the defendant outside of his mother's house.
¶ 61. The State placed similar emphasis on the out-of-court identifications outside the mother's home in closing arguments, underscoring for the jury the importance of these out-of-court identifications. Specifically, the assistant district attorney stated that the issue in the case was not whether the in-court identification was reliable but, rather, whether the contemporaneous police report and out-of-court identifications were reliable.
¶ 62. The assistant district attorney said: 'You write a report close in time, you make an ID and put it down in the report. The issue is; did he identify correctly [the defendant] shortly after the incident based on what he saw and did."
¶ 63. If the out-of-court identifications were inadmissible, the only remaining evidence was the in-court identifications, which the State at trial significantly entangled with the out-of-court identifications that should have been suppressed. Considering all the factors in State v. Billings, 110 Wis. 2d 661, 668-70, 329 N.W.2d 192 (1983), such as the frequency of the error, the nature of the State's case, the defense presented at trial, whether the evidence was duplicative of other evidence, and any other factors that may help reveal whether the admission of evidence was prejudicial,12 it *317is clear that the in-court identifications were chained at trial to the out-of-court identifications, which should have been suppressed.
¶ 64. My conclusion, unlike that of the majority opinion, is that if there was error in admitting the out-of-court identifications, the error was prejudicial, even if the in-court identifications were admissible.
I — I HH
¶ 65. I now turn to whether the defendant's motion to vacate the conviction on the grounds of ineffective assistance of counsel makes a sufficient showing that counsel's performance was deficient (by failing to challenge the officers' testimony regarding the out-of-court identifications outside the mother's home and by failing to object to the in-court identifications as tainted by the out-of-court identifications), entitling him to an evidentiary hearing. Our task is not to determine whether defense counsel's performance was deficient; it is to determine whether the motion is sufficient to entitle the defendant to an evidentiary hearing.
¶ 66. An attorney's performance is not deficient for failing to pursue á suppression motion that lacks merit. Conversely, an attorney's performance may be deficient for failing to pursue a suppression motion that has merit. I conclude that the defendant's claims of *318ineffective assistance of counsel justify an evidentiary Machner hearing to determine whether a suppression motion should have been made.
¶ 67. One claim of ineffective assistance of counsel is counsel's failure to challenge the in-court identifications as tainted by the inadmissible out-of-court identifications. The State's position is that the in-court identifications were not tainted by the out-of-court identifications but were based independently on the officers' observations of the defendant's drug dealing activities, which the officers had observed earlier.
¶ 68. When an out-of-court identification of an accused is inadmissible, an in-court identification by the same individual nevertheless may be admissible "if the State carries the burden of showing 'by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the [inadmissible identification].' "13 An in-court identi*319fication is tainted if the out-of-court identification aided the officers in making the in-court identification.
¶ 69. The majority opinion concludes that the in-court identifications-' are not tainted because the identifying officers, Detective Wagner and Officer Terrell, were experienced in law enforcement in general and drug enforcement in particular, they had ample opportunity to view the suspect and the drug buy, their views of the defendant were unobstructed, they were trained in how to later identify a suspect, they gave consistent descriptions, and less than three months elapsed between their observations of the alleged crime and the in-court identifications.14
¶ 70. I disagree with this reasoning. Because defense counsel did not move to suppress the out-of-court identifications, the circuit court never faced the question of whether the in-court identifications were tainted. The record does not conclusively demonstrate that the in-court identifications were not tainted by the out-of-court identifications outside the mother's home.
¶ 71. This court is making its determination of whether the in-court identifications were tainted on the basis of an incomplete record. Defense counsel failed to move to suppress both the out-of-court and the in-court identifications. Therefore, defense counsel did not question any of the witnesses to show whether the in-court identifications were tainted, and the defendant did not have an opportunity at trial to show a taint. We do not know what the officers would have said on questioning about the relation between the in-court identification and the identification outside the mother's home. The State at trial tied the in-court identifications to the out-of-court identifications. The Machner hearing *320would give the defendant the opportunity to question the officers to show a taint.
¶ 72. Notwithstanding the defense counsel's failure to move to suppress the identifications and to question the witnesses to show a taint, the smell of a taint pervades the record and entitles the defendant to a Machner hearing.
¶ 73. A second claim of ineffective assistance of counsel in the instant case is defense counsel's failure to challenge the entry into the home of the defendant's mother to arrest the defendant as an illegal entry, thus making the out-of-court identifications at the mother's house inadmissible. The defendant never consented to the entry. If the defendant's mother consented to the police entering the home,15 the defendant might not have a constitutional challenge under the Fourth and Fourteenth Amendments to the United States Constitution to law enforcement's entry into the home.16
¶ 74. In denying the defendant's motion for a Machner hearing, the circuit court stated that the trial testimony it had already heard from the defendant's mother and the officer who confronted the defendant's mother provided "essentially the same testimony the court would have heard" in a Machner hearing or in a hearing on a suppression motion.
*321¶ 75. I agree with the court of appeals that the testimony the circuit court heard at trial is not "essentially the same" as the testimony the circuit court might have heard at a Machner hearing. The circuit court's explanation does not provide a satisfactory basis for denying the request for a Machner hearing.17 As the court of appeals observed, both the defendant's mother and the officer "were not questioned thoroughly at trial about whether [the defendant's mother] consented to the entry. And other officers who witnessed the entry did not testify [at trial]. Wé do not know if their testimony would have supported [the officer's or the defendant's mother's] version of events."18 Notably, however, the defendant's mother testified at trial that she did not provide consent to enter the home and that she called 9-1-1 to object to the police entry.
¶ 76. Because defense counsel did not challenge the entry into the home of the defendant's mother, the circuit court never took testimony about consent. Without a hearing or uncontroverted testimony, the record does not provide a basis upon which to make a determination of consent. Thus, consent should be determined at an evidentiary Machner hearing.
¶ 77. Without consent and without a warrant, generally law enforcement may not constitutionally enter a home to make an arrest.19 There are, however, exceptions, such as exigent circumstances, permitting the warrantless entry into a home to effect an arrest. *322None of the exceptions are conclusively established at the motion stage in the instant case.
¶ 78. The remedy for a warrantless arrest on a warrantless entry into a home ordinarily is suppression of the evidence obtained from the warrantless arrest.20 In the instant case, the evidence obtained from the warrantless entry into the home was the out-of-court identifications of the defendant outside the mother's home.
¶ 79. Even if the entry into the home were illegal, the out-of-court identifications were not necessarily subject to the exclusionary rule. If the police had probable cause to arrest the defendant, the out-of-court identifications may be admissible under New York v. Harris, 495 U.S. 14 (1990). In Harris, the United States Supreme Court held that a confession made by the accused outside the home after an illegal entry into the home was admissible when the police had probable cause (developed apart from the illegal entry) to arrest the accused in the home.21
*323¶ 80. Harris involved a confession at the police station after an illegal arrest. The Court reasoned that after Harris had been removed from the home his continued custody was lawful, so his statement was not the product of the unlawful custody. This case differs from Harris in that in the instant case an identification was made after an illegal entry into a home after what is arguably a Terry detention.
¶ 81. In any event, this court has never adopted the Harris exception to the exclusionary rule. Furthermore, the defendant and State disagree whether the officers had probable cause to arrest the defendant before the officers entered the home. The State's brief asserts that the defendant's arrest was based on probable cause obtained before the officers entered the home. The defendant argues that the officers seized and searched the defendant in the home, as well as five other men, but did not arrest the defendant (or any of the other men seized in the home) until after the *324officers identified only the defendant outside the home. In other words, the officers in the home could not identify the defendant (or any of the other men) as the person the other officers saw in the drug deal until each man was brought outside the home and was identified by the officers. The reason that the officers could not identify any of the men in the house as the perpetrator was that the officers' description of the perpetrator was too general. Numerous males in the area might have matched the description. An evidentiary Machner hearing would allow the circuit court to determine whether the officers had probable cause to arrest the defendant in the home, whether the defendant's identification outside the home was the product of the illegal entry into the home, and whether the exclusionary rule applies.22
¶ 82. I conclude that the motion was sufficient to justify a Machner evidentiary hearing on whether defense counsel's failure to challenge the entry into the home of the defendant's mother to arrest the defendant was deficient performance.
¶ 83. The defendant has asked only for an eviden-tiary Machner hearing to determine whether defense counsel's performance was deficient. Instead of granting a hearing, the majority opinion decides his claims of deficient performance as a matter of law on a record that is incomplete because defense counsel made no objections to any of the out-of-court or in-court identifications.
¶ 84. I conclude that because the defendant's motion alleged facts that would entitle the defendant to *325the relief requested, namely, a Machner hearing, the circuit court had no discretion but to hold an eviden-tiary hearing. Accordingly, I dissent.
¶ 85. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
This case comes to this court after the court of appeals, upon motion for reconsideration by the State, withdrew its original opinion in favor of the defendant and issued a new opinion upholding the denial of the defendant's request for a Machner hearing. See State v. Roberson, 2005 WI App 195, 287 Wis. 2d 403, 704 N.W.2d 302; State v. Roberson, No. 2003AP2802-CR, unpublished slip op. (Wis. Ct. App. Sept. 30, 2004), (withdrawn by order of the court of appeals Oct. 21, 2004).
Strickland v. Washington, 466 U.S. 668, 687 (1984) ("First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.").
State v. Thiel, 2003 WI 111, ¶ 20, 264 Wis. 2d 571, 665 N.W.2d 305 (quoting Strickland, 466 U.S. at 694) ("In order to demonstrate that counsel's deficient performance is constitutionally prejudicial, the defendant must show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'").
State v. Allen, 2004 WI 106, ¶ 9, 274 Wis. 2d 568, 682 N.W.2d 433 (citing State v. Bentley, 201 Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996) and Nelson v. State, 54 Wis. 2d 489, 497, 195 N.W.2d 629 (1972)) (citations omitted).
State v. Bentley, 201 Wis. 2d 303, 309-11, 548 N.W.2d 50 (1996).
Strickland, 466 U.S. at 687-88.
In Strickland, the United States Supreme Court explained the objective standard of reasonableness for an attorney in a bit more detail: "[A] guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not 'a reasonably competent attorney' and the advice was not 'within the range of competence demanded of attorneys in criminal cases.'" Strickland, 466 U.S. at 687.
Majority op., ¶ 31 n.13.
Majority op., ¶¶ 3, 40-41.
Majority op., ¶ 14.
Majority op., ¶ 31 n.13.
In State v. Billings, 110 Wis. 2d 661, 668, 329 N.W.2d 192 (1983), this court warned of the problems with upholding a conviction based on the strength of untainted evidence when there is also tainted evidence presented at trial:
The impact of the erroneously admitted evidence on the jurors cannot be assessed either by looking at the erroneously admitted *317evidence in isolation or by looking at the evidence unaffected by the error ... in isolation to determine whether it is sufficient to support the conviction. The court cannot, as the United States Supreme Court has admonished, give too much emphasis to "overwhelming evidence" of guilt. Emphasizing the sufficiency of untainted evidence independently of the erroneously admitted evidence creates a danger of substituting the court's judgment for the jury's.
(quoting Chapman v. California, 386 U.S. 18, 23 (1967)).
State v. Dubose, 2005 WI 126, ¶ 38, 285 Wis. 2d 143, 699 N.W.2d 582; State v. McMorris, 213 Wis. 2d 156, 167, 570 N.W.2d 384 (1997) (quoting United States v. Wade, 388 U.S. 218, 240 (1967)).
In a similar case in which an undercover police officer identified a defendant both in court and out of court, and the out-of-court identification was inadmissible, the New York Court of Appeals concluded that the State had failed to show by clear and convincing evidence that the in-court identification was not tainted by the out-of-court identification. People v. Gethers, 654 N.E. 2d 102, 104-05 (N.Y. 1995) ("The causal link between the arrest and identification is obvious and unattenuated — the illegal seizure and detention of defendant not only made the identification possible, but was done for the purpose of displaying him to the undercover officer and thereby securing a pretrial identification to be used at the trial to holster her in-court identification.").
Majority op., ¶ 36.
The house was the defendant's mother's home, which is why she could consent to search. The defendant, however, lived at his mother's house, which is why he has standing to challenge the search. Bumper v. North Carolina, 391 U.S. 543 (1968) (family members residing with owner or tenant have same standing to challenge entry as owner or tenant).
See Georgia v. Randolph,_U.S._, 126 S. Ct. 1515 (2006) (holding warrantless search unreasonable as to defendant who expressly refused to consent to entry).
Roberson, 287 Wis. 2d 403, ¶ 13.
Roberson, 287 Wis. 2d 403, ¶ 13.
In Payton v. New York, 445 U.S. 573, 586 (1980), the Supreme Court stated that "[i]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." (internal quotation marks omitted).
New York v. Harris, 495 U.S. 14, 18-19 (1990) ("[T]he indirect fruits of an illegal search or arrest should he suppressed when they bear a sufficiently close relationship to the underlying illegality.").
Harris, 495 U.S. at 21 ("[W]here the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.").
There is substantial dispute regarding the scope and validity of the Harris exception to the exclusionary rule. See, e.g., State v. Luurtsema, 811 A.2d 223, 232-234 (Conn. 2002) (declining to follow Harris on state law grounds); Bryant v. United States, 599 A.2d 1107, 1112 (D.C. 1991) (declining to extend Harris exception to exclusionary rule to situation where police *323obtained probable cause only because they found defendant in house).
The defendant contends that there was no probable cause to arrest him before he was removed from the house. The defendant asserts that he was not arrested until after he was identified by the officers outside of the house. The officers failed to maintain continuous visual contact with the person dealing drugs, casting doubt whether any person inside the home was the same person from whom the officer purchased the drugs.
The defendant argues that he was subject to an investigative detention (a Terry stop) prior to being identified outside the home. See Terry v. Ohio, 392 U.S. 1, 12-13 (1968). If the defendant was removed from his home as part of a Terry stop, such action was unconstitutional even if the officers had the requisite reasonable suspicion. Harris does not make an exception to the exclusionary rule for the fruits of an improper investigative detention.
The court of appeals decision is unclear whether the officers had probable cause to arrest the defendant before the identification outside the home.