State v. Kiper

STEINMETZ, J.

(dissenting). Armed with an arrest warrant for David Wanie, Officer Thomas knocked on the front door of Wanie's residence. A young man named Jason Mianecki opened the door. Officer Thomas asked if Wanie "lived there," and Mianecki responded that he would get him.1 While *95standing outside the open door, Officer Thomas saw Wanie walk past the doorway. Officer Thomas recognized Wanie based on a photograph of him that was in the squad car and based on his personal observation of Wanie approximately six weeks earlier. Furthermore, as the trial court found, Wanie had a "very distinctive appearance" and an "unusual haircut." Thus, although Officer Thomas mispronounced Wanie's name, he nonetheless could and did identify Wanie by his appearance.

While still standing outside the door, Officer Thomas stated that a warrant had been issued for "Mr. Wane." Knowing that he was the subject of an outstanding arrest warrant, Wanie replied that "Wane" was not there and walked away from Officer Thomas. Reasonably fearing that Wanie would flee out a rear entrance, Officer Thomas entered the apartment and arrested Wanie. In the process, Officer Thomas saw in plain view2 illegal drug paraphernalia belonging to Kiper.

In Payton v. New York, 445 U.S. 573, 603 (1980), the Supreme Court stated that "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."3 As the court of appeals in this case correctly *96noted, this language has been construed to mean that a police officer may enter the home of a person named in an arrest warrant if the officer has probable cause to believe that the person named in the warrant resides in the home. See, e.g., Shea v. Smith, 966 F.2d 127, 131-32 (3rd Cir. 1992); United States v. Harper, 928 F.2d 894, 896 (9th Cir. 1991). Under the totality of the circumstances, Officer Thomas had probable cause to believe that Wanie was residing in Kiper's home.

Officer Thomas had confronted Wanie in the same apartment approximately six weeks earlier. From this confrontation, he thought that Wanie might be residing there. This suspicion alone would fall short of probable cause to believe that Wanie was residing at the apartment. However, Officer Thomas's suspicion rose to the level of probable cause when Wanie, who had no known present address, emerged from inside the apartment, approached Officer Thomas at the apartment door, and told him that "Wane" was not there. Wanie's presence in the apartment and his response to Officer Thomas, after Mianecki had already acknowledged Officer Thomas's presence, is consistent with a reasonable inference that Wanie had dominion or control over the premises.4

*97I recognize, as did the court of appeals, that this evidence is also consistent with a reasonable inference that Wanie was only a guest in Kiper's apartment. However, probable cause is a flexible, common-sense standard based on the practical considerations of everyday life on which ordinary persons, not legal technicians, act. See Texas v. Brown, 460 U.S. 730, 742 (1983). It does not require evidence showing proof beyond a reasonable doubt or even proof more likely than not. See State v. Mitchell, 167 Wis. 2d 672, 681-82, 482 N.W.2d 364 (1992). Accordingly, when a police officer is confronted with two reasonable competing inferences, one that would justify the search and another that would not, the officer is entitled to rely on the reasonable inference justifying the search. Cf. State v. Tompkins, 144 Wis. 2d 116, 125, 423 N.W.2d 823, 827 (1988).5

Based on this understanding of probable cause, I agree with the trial court and the court of appeals that the evidence supports a finding that Officer Thomas had probable cause to believe that Wanie was residing in the apartment in question. Officer Thomas was not required to know for certain whether Wanie was residing in the apartment. Rather, he was entitled to rely on the reasonable inference that Wanie was residing there. Thus, because Officer Thomas had a valid arrest warrant and had probable cause to believe that Wanie *98was residing in the apartment, under Payton, Officer Thomas had authority to enter the apartment in order to execute the arrest warrant for Wanie.

The majority incorrectly concludes that Steagald v. United States, 451 U.S. 204 (1981), is controlling. In Steagald, agents of the Drug Enforcement Administration (DEA), armed with an arrest warrant for Ricky Lyons, entered Gary Steagald's residence and proceeded to search for Lyons based solely on information that Lyons could be reached by telephone at Steagald's residence during the next 24 hours. While searching the residence for Lyons, the DEA agents found a substantial amount of cocaine. Steagald was subsequently arrested and indicted on federal drug charges. Thus, the DEA agents relied on the arrest warrant for Lyons as legal authority to enter the home of a third person based on their belief that Lyons might be a guest in that home. Within this context, the Court stated that the issue was "whether, under the Fourth Amendment, a law enforcement officer may legally search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant." Id. at 205.

The facts in Steagald differ substantially from the facts in this case. In Steagald, the residence that the DEA agents entered and searched was not the residence of the person named in the arrest warrant. At best, the agents thought that the subject of the warrant might be a short-term guest there. In the instant case, the residence that Officer Thomas entered was the residence of David Wanie, the person named in the arrest warrant. Officer Thomas did not rely on the arrest warrant as legal authority to search the residence of a third party; rather, he properly relied on the warrant as authority to enter Wanie's residence and seize him.

*99Given the factual differences between Steagald and this case, I believe, contrary to the majority, that Stea-gald is not controlling.

Moreover, in applying Steagald, the majority makes an unwarranted extension of Welsh v. Wisconsin, 466 U.S. 740 (1984). The majority concludes that under Welsh, Officer Thomas was not faced with exigent circumstances during his encounter with Wanie, primarily because the offense underlying the warrant was the failure to pay a fine for permitting an unauthorized minor to drive a motor vehicle. Majority op. at 93-94. Welsh was a warrantless, hot pursuit case in which the Supreme Court held that the severity of the underlying offense was relevant to whether exigent circumstances existed in that case. Welsh, 466 U.S. at 750. The underlying offense in Welsh was a nonjailable traffic violation. In contrast, the case before us is not a warrantless, hot pursuit case. Officer Thomas entered Wanie's residence armed with an arrest warrant for a civil violation. The failure to pay this violation carried a fine or, in the alternative, a three-day jail term.

Exigent circumstances operate as an exception to the warrant requirement. See Payton, 445 U.S. at 583. In other words, exigent circumstances can "justify a warrantless entry into a home for the purpose of either arrest or search." Id. However, when a valid warrant has been issued by a judicial officer, as in the instant case, the presence or absence of exigent circumstances is totally irrelevant. Accordingly, I believe that the majority errs in extending and applying Welsh to this case.

Even if I were to conclude, which I do not, that Officer Thomas was required to secure a search warrant, I would nonetheless disagree with the majority's conclusion that exigent circumstances did not exist jus*100tifying Officer Thomas's entry into the apartment. I would conclude that Officer Thomas's observation of Wanie in the doorway coupled with his reasonable fear that Wanie might flee out a back door to the apartment provides a sufficient basis for a finding of exigent circumstances.

A police officer who has an arrest warrant for a suspect should not be forced to stand outside the open front door of the suspect's residence and watch as the suspect walks out the back door. Regardless of the severity of the offense underlying the arrest warrant, if the officer is in possession of an arrest warrant, the officer may enter the home and arrest the suspect. Under these circumstances, the severity of the underlying offense is simply irrelevant. The arrest warrant gives the officer legal authority to enter the premises and arrest the suspect. Steagald, 451 U.S. at 221 (citing Payton, 445 U.S. at 602 — 03).

For these reasons, I dissent.

I am authorized to state that JUSTICES Roland B. Day and JON P. WILCOX join this dissenting opinion.

Mianecki's and Officer Thomas's testimony differed slightly. Mianecki testified that he responded "I will get him." Officer Thomas testified that Mianecki responded "[Wanie] is not here." Nonetheless, it is undisputed that while the conversa*95tion was taking place, Wanie came out of a bedroom and walked past the open door.

"The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Payton, 445 U.S. at 587.

In Steagald v. United States, 451 U.S. 204, 221 (1981), the Court twice reiterated that "an arrest warrant alone will suffice to enter a suspect's own residence to effect his arrest." (citing *96Payton, 445 U.S. at 602-03); see also id. at 214 n.7 ("In Payton, of course, we recognized that an arrest warrant 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").

The reasonableness of this inference is buttressed by the fact that Wanie was actually residing in the apartment on December 31, 1992, the date that Officer Thomas executed the warrant.

In Tompkins, 144 Wis. 2d at 125, this court held:

[Wlhere there is evidence that would lead a reasonable person to conclude that the evidence sought is likely to be in a particular location — although there may be other evidence that could lead a reasonable person to conclude that the evidence may instead be in another location — there is probable cause for a search of the first location. The search of the first location is appropriate although there may also be probable cause to believe the evidence may be in the second or third location.