State v. Phillips

KESSLER, J.

¶ 20. (concurring in part, dissenting in part). I concur with the majority's conclusion that the trial court did not erroneously exercise its discretion when it denied Phillips' motion for postconviction relief alleging ineffective assistance of counsel. However, I respectfully dissent from the majority's decision affirming the denial of the motion to suppress because I conclude that the officers' decision to approach the home to conduct a knock and talk is relevant, see majority, ¶ 11, and created the exigent circumstances upon which justification for the warrantless entry into Phillips' home was based.

*596¶ 21. To obtain a warrant, an officer must prepare an affidavit describing facts to establish probable cause for the search or arrest, and particularly describing the place to be searched and the person(s) or property to be seized.1 From the practical perspective of a law enforcement officer "engaged in the often competitive enterprise of ferreting out crime," see Johnson v. United States, 333 U.S. 10, 14 (1948), it is understandable that obtaining a warrant is an inconvenient addition of paperwork that slows the progress of an investigation. From the perspective of the drafters of our constitutions, these inconveniences to law enforcement were outweighed by the importance of the right of all persons to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," see U.S. Const, amend, iy unless a warrant is approved by a judge or magistrate. Balancing the constitutional preference for privacy of home and body against the reduced efficiency of law enforcement has led to some very narrow judicially construed exceptions to the warrant requirement. This case concerns only one such exception: the existence of exigent circumstances, which can justify entry without a warrant. Specifically at issue is whether this exception to the warrant requirement applies where the exigent circumstances were created by the acts of law enforcement.

¶ 22. The majority describes the exigent circumstances as a risk that the evidence (presumably the additional drugs the undercover officer reported seeing *597in Phillips’ home) would be destroyed "once Phillips became aware of the police presence outside of his residence." See majority, ¶ 14. There is no dispute that the reasonable belief that evidence will be destroyed constitutes exigent circumstances that can justify a warrantless entry. See State v. Kiekhefer, 212 Wis. 2d 460, 476, 569 N.W.2d 316 (Ct. App. 1997). The question here, however, is whether the police themselves created the risk that evidence would be destroyed when they took affirmative action that made Phillips aware of the police presence outside of his residence, which subsequently allowed the officers to circumvent the requirement that they obtain a warrant to arrest Phillips and to search his home.

¶ 23. When exigent circumstances are created by law enforcement, the ability to proceed without a warrant is lost. In State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, a case relied on by the majority, the Wisconsin Supreme Court recognized that when determining whether exigent circumstances excused the need for a warrant, it is relevant whether "the exigency was created by the police themselves, which would generally not justify a warrantless search of a home."2 See id., ¶ 28 n.7. Unlike the facts in Hughes, *598where "a drug possessor who knows the police are outside waiting for a warrant would use the delay to get rid of the evidence," see id., ¶ 26, there is no evidence that Phillips was aware of the police presence until he saw them approaching his home to conduct the knock and talk.

¶ 24. Even prior to Hughes, our supreme court recognized that law enforcement cannot create exigencies to justify a warrantless arrest. In State v. Smith, 131 Wis. 2d 220, 388 N.W.2d 601 (1986), the court *599considered a case where the police had made a deliberate plan to go to the defendant's residence and arrest him without an arrest warrant, although they had identified him as the perpetrator and determined his address several hours before they entered his apartment. See id. at 232. When they arrived at the defendant's apartment, there were three squad cars and a total of seven officers, which was enough, the court noted, to have staked out all exits while a warrant was obtained. Id. at 234-35. The court concluded that the arrest was unconstitutional, reasoning:

The officers' uncertainty regarding [the defendant's] whereabouts is not enough to justify a warrantless entry into his home. The police cannot themselves create the exigency — risk of escape — by merely conducting an investigation. If that theory were correct, then any time an investigation is conducted, the police obviate the need for a warrant.

Id. at 234.

¶ 25. Both Hughes and Smith are instructive in this case. As the majority notes, the burden was on the State to demonstrate a basis for the warrantless entry and search of the home. See State v. Leutenegger, 2004 WI App 127, ¶ 12, 275 Wis. 2d 512, 685 N.W.2d 536. The State elicited testimony from the undercover officer who bought drugs from Phillips in the home. Based on that testimony — which was accepted by the trial court — the following two facts are established. First, there was probable cause to arrest Phillips, who had just sold drugs to the undercover officer. Second, there was probable cause to search the home, where the undercover officer had seen Phillips with a large plastic bag of corner cuts of drugs. The record is devoid of any evidence that the undercover officer believed that Phillips knew he had sold drugs to an officer, or that *600any other officer believed at the time the undercover officer returned from the drug transaction that exigent circumstances existed for any other reason. Indeed, there is no evidence that the officers believed Phillips was aware of the police presence prior to the time they approached his home to conduct the knock and talk. When Phillips saw the officers running toward him, he retreated into his home, closed the door and ran upstairs. There is no evidence police belieyed Phillips intended to get rid of the drugs in his home before the above-described display of police presence.

¶ 26. The record discloses no reason to further investigate the already completed drug purchase.3 Specifically, the record is void of even a suggestion of what police hoped to learn in the knock and talk that they did not already know about the crime which had been committed. One officer testified that no reason for the knock and talk was mentioned. Another testified that the decision to instigate a knock and talk was made by two detectives. At the trial, one of these detectives testified why he decided to conduct a knock and talk: "My intention was to basically conduct a knock and talk, knock on the door. We have a subject inside that I know . .. sold cocaine to an undercover and to ascertain where he is in the residence and ultimately arrest him." (Emphasis supplied.) The detective did not say they were going to request consent to search, ask questions or pursue any other reasonable investigative *601objective. The detective's explanation leads to no reasonable conclusion but that his intent was to arrest Phillips without a warrant.

¶ 27. Even if the officers' goal was conducting a knock and talk investigation, as opposed to arresting Phillips and searching his home without warrants, the time and manner of this attempted knock and talk were unreasonable, given the high probability that exigent circumstances would develop when numerous officers approached Phillips' home ten minutes after he sold drugs to an undercover officer. See United States v. Rosselli, 506 F.2d 627, 630 (7th Cir. 1974) ("This is the kind of situation in which there is an especially high risk that error may be committed even when officers are acting in the best of faith.").

¶ 28. In the absence of a reasonable justification for the further police actions, I cannot join the majority's conclusion that "it was reasonable for the police to conduct a 'knock and talk' after the undercover officer exited Phillips' house having purchased drugs from Phillips." See majority, ¶ 2.1 fear that the majority opinion in this case creates a road map for avoiding the tedium of obtaining warrants by endorsing law enforcement creation of exigent circumstances. I conclude that the officers' actions, in announcing their presence as they did, predictably and actually created the exigent circumstances (i.e., the risk that evidence would be destroyed) that did not previously exist. Because "the exigency was created by the police themselves," I conclude that the warrantless search of the home was unconstitutional. See Hughes, 233 Wis. 2d 280, ¶ 28 n.7.

¶ 29. My conclusion is consistent with the court's reasoning in United States v. Munoz-Guerra, 788 F.2d 295 (5th Cir. 1986). In Munoz-Guerra, Drug Enforce*602ment Agency agents acted on an anonymous tip that a condominium contained marijuana, money, guns and a briefcase containing white powder. Id. at 296-97. After observing a woman exit the condominium carrying a briefcase like that described by the tipster, one agent walked along the exterior of the condominium and saw on the window sill "the butt of a large marijuana cigarette and a gray box in which scales are customarily packed." Id. at 297. He also saw a bag of white powder on the floor inside the condominium. Id. Two agents climbed a fence that enclosed a small patio on the side of the condominium and knocked on the glass patio door. Id. When the defendant appeared at the door, the agents "ordered him to put his hands on the glass . . . and then to reach down and open the door." Id. When the defendant indicated he would have to go get the key, the agents became concerned that he might destroy evidence or get a weapon, so they kicked in the door and entered the condominium. Id. They conducted a security search and discovered drugs and guns. Id. The agents' entry was held to be unconstitutional and the evidence was suppressed. Id. at 298-99. The court's reasoning is applicable here:

Our past opinions have consistently emphasized that without reason to believe that a criminal suspect was aware of police surveillance, the mere presence of firearms or destructible, incriminating evidence does not create exigent circumstances. In the instant case, it was possible to secure the condominium covertly from the outside. There was no basis, on these facts, for believing that resort to a magistrate would have created risks of a greater magnitude than those which are present in any case where the police have probable cause but delay entry pending receipt of a warrant. Had the police's necessary efforts to secure the premises been visible to the inhabitants or had there been reason *603to believe that someone within the condominium was in need of immediate succor, the government's position would have merit. The government's argument that swift and immediate action may have minimized risks to human life and physical evidence, however, misses the mark. Our fourth amendment jurisprudence contemplates that protection of individual rights of privacy will be achieved at some cost to society's interest in public safety; and, in the ordinary case the risk that a criminal suspect will become aware of covert surveillance is deemed insignificant in contrast to the more substantial benefits we all derive from the procedural safeguards of judicial process.

Id. (emphasis added; citations and footnote omitted).

¶ 30. For the foregoing reasons, I would reverse both the order denying Phillips' motion to suppress and the judgment of conviction and remand for further proceedings.

See Wis. Const. art. I, § 11, which provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue hut upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

Federal law is consistent with Wisconsin's law on exigent circumstances created by police. See United States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006) ("Exigent circumstances ... do not meet Fourth Amendment standards if the government deliberately creates them."); United States v. Thompson, 700 F.2d 944, 950 (5th Cir. 1983) ("[Ajgents cannot justify their search on the basis of exigent circumstances of their own making."); Federal Trial Handbook: Criminal § 36:16 (4th ed. 2008) ("While exigent circumstances may justify a warrantless search, that is not sufficient ground for a warrantless search if the police manufactured the exigency."); 79 C.J.S. Searches § 73 (2006) ("Officers *598cannot create exigent circumstances in order to justify a search or seizure."). In United States v. Rosselli, 506 F.2d 627 (7th Cir. 1974), the Seventh Circuit weighed in on this issue. Rossetti affirmed an order suppressing evidence obtained after government agents forcibly entered an apartment without a warrant to seize marijuana they feared would be destroyed. See id. at 627-28. Rossetti explained that the time at which the existence of exigent circumstances must be examined is "the agents' conduct during the entire period after they had a right to obtain a warrant and not merely from the moment when they knocked at the front door." Id. at 630. Rosselli continued:

In this case, the evidence does not adequately explain why no attempt to obtain a warrant was made, or why no consideration was given to placing the defendant's apartment under surveillance while an attempt to secure a warrant was being made ....
We do not suggest that the emergency which did develop was contrived by the agents. They had a right to pursue their investigation by seeking voluntary cooperation from a suspect. But certainly the emergency which did ensue was foreseeable. Moreover, this type of situation may reoccur repeatedly and might lend itself to too easy a by-pass of the constitutional requirement that probable cause should generally be assessed by a neutral and detached magistrate before the citizen's privacy is invaded. This is the kind of situation in which there is an especially high risk that error may be committed even when officers are acting in the best of faith.

Id: (citations and footnotes omitted).

I do not mean to suggest that further investigation of an already completed crime as to which the police have probable cause for arrest and/or a search is necessarily inappropriate. However, the techniques employed in that further investigation must be chosen carefully so that police conduct which is highly likely to create exigent circumstances is not selected, for this is likely to render the evidence thereby obtained inadmissible.