June 18, 2009 – Police may arrest a suspect at home without a warrant under exigent circumstances if the offense charged is punishable with jail, the Wisconsin Supreme Court held June 16.

In State v. Ferguson, 2009 WI 50, a majority of the court overruled a bright line rule for warrantless arrests in the home set out in State v. Mikkelson, 2002 WI App 152. In Mikkelson,  the court of appeals held that police are justified in making a warrantless entry into a home only where the underlying offense is a felony.

Justice Patrick Crooks, dissenting from this part of the court’s opinion, warned that the majority was imposing a “totally unworkable” test onto police officers without sufficient regard for the special status of the home recognized by the Fourth Amendment. Crooks, joined by Justice Ann Walsh Bradley and Chief Justice Shirley Abrahamson, also objected that the court had “reach[ed] out unnecessarily to overrule” a case that neither party in Ferguson discussed.

Ferguson’s disorderly conduct charge

Wausau police received a neighbor’s complaint about Kelly Ferguson’s behavior that prompted the officers to knock on her apartment door in the early morning of Dec. 29, 2005. Ferguson answered and became belligerent. Police reported that as Ferguson yelled at them, her nephew attempted to calm her down, but she shoved him. The officers then entered the apartment without a warrant and arrested Ferguson for misdemeanor disorderly conduct.

Ferguson tried to pull her arm away as the officers handcuffed her. She was also resistive as the police attempted to get her socks on, continuing to yell and scream. When the police escorted Ferguson out of her apartment, she continued to resist and even kicked one of the officers. From these events, Ferguson was charged with disorderly conduct and obstruction of an officer.

At trial, Ferguson sought an instruction to the jury on the obstruction charge that the police lack lawful authority to make an arrest in a person’s home unless exigent circumstances exist that require the arrest to take place immediately.

The circuit court denied the request, instructing the jury that officers have “lawful authority if their acts are conducted in accordance with the law.” The court further instructed, “An arrest is lawful when the officer has reasonable grounds to believe that the person is committing, has committed, or is about to commit a crime.”

Ferguson appealed and won a reversal of her conviction for obstruction. The Wisconsin Court of Appeals held that the jury instruction for the lawful authority element of obstruction was an incorrect statement of law. Because the officers arrested her for the very crime that led them into her home, the court of appeals held that the police could be acting with lawful authority only if her arrest was justified by exigent circumstances.

Before the supreme court, the justices agreed that a jury instruction on exigent circumstances could have been given, but the instruction given accurately set out the law for the jury to convict Ferguson on the basis of her struggle with police outside of her home. “If the failure to instruct on exigent circumstances was error, it was harmless,” Justice Patience Roggensack wrote for the majority, reversing the court of appeals.

The justices observed that continued custody of a suspect arrested without a warrant -- but with probable cause -- is not unlawful once the suspect is removed from the house. “Once Ferguson was removed from her house, the police were not required to rearrest her for disorderly conduct in order to make her continued custody lawful,” the court wrote.

Warrantless arrests

Police may make a warrantless arrest with probable cause in most instances, but entry and arrest in a home without a warrant is presumptively unlawful, the court explained.

But, the court continued, a warrantless home entry may be lawful if exigent circumstances are present such as a risk that evidence will be destroyed, hot pursuit of the suspect, and a threat to the safety of a suspect or others. In this case, the state argued that Ferguson was threatening the safety of her nephew.

The court noted that the extent to which law enforcement is permitted to rely on an exigency for a warrantless entry is determined by the seriousness of the offense, citing Welsh v. Wisconsin, 466 U.S. 740 (1984).

“We acknowledge the distinction recognized in Welsh, and note that this distinction causes us to address State v. Mikkelson,” the court said.

Analyzing Welsh and United States v. Santana, 427 U.S. 38 (1976), a majority of justices concluded that the U.S. Supreme Court does not require the underlying offense to be a felony in order for exigent circumstances to justify a warrantless entry. In its place, the court said the distinction will be whether the offense is punishable by jail or a fine – an approach advocated by Justice David Prosser in his concurring opinion in State v. Sanders, 2008 WI 85.

Quoting Prosser’s concurrence in Sanders, the court explained that the Mikkelson distinction permitted “the perpetrator of a serious misdemeanor offense, for which jail time is a penalty, to avoid immediate arrest merely because of the label (‘felony’ or ‘misdemeanor’) chosen by the legislature.”

The dissenters

But Crooks said the majority was needlessly making new policy with a case that was resolved on the basis of harmless error. “What is even more difficult to understand is why this is being done when the majority acknowledged that Ferguson is not even relying on Mikkelson,” Crooks wrote.

“The majority exhibits an unbridled exercise of power,” wrote Justice Ann Walsh Bradley in a separate opinion. “[I]t unnecessarily reaches out to overrule a prior decision that even the State acknowledges ‘was never raised’ previously and ‘is not part of this case.’ Why does the majority do this? Because it can.”

In rebuttal, Roggensack wrote, “[Justice Bradley’s] phraseology is really code words for not wanting the majority of the court to comply with the directive of the United States Supreme Court by overruling a published Wisconsin case that has incorrectly interpreted a United States Supreme Court case.

“We conclude that due to the law-declaring function of this court, it is our responsibility to overrule Mikkelson’s incorrect interpretation,” Roggensack concluded.

Crooks warned that the majority’s new standard “offers the police officers on the front line almost no real guidance in deciding whether a warrantless entry into someone’s home will ultimately be justified.”

“I sincerely doubt that a law enforcement officer will easily be able to determine, perhaps in the middle of the night, and certainly without the knowledge of what offense the prosecuting authority will ultimately decide to charge, whether the offense involved ‘is a jailable or nonjailable offense,’” Crooks wrote, adding that “in many communities charging decisions involve a choice between a criminal offense or an ordinance violation – e.g., possession of marijuana.”

Bradley said the facts presented by Ferguson’s arrest demonstrate the problems with the new standard. She pointed out that the arresting officer testified he initially decided to take Ferguson into custody so that she could sober up and calm down. “It is unclear whether at the time of the arrest for disorderly conduct, [the officer] intended for Ferguson to be charged with a crime or any offense at all,” Bradley wrote.

“If charged, it just as easily could have been for a civil forfeiture rather than a misdemeanor, but for Ferguson’s post-arrest conduct,” Bradley added.

Roggensack acknowledged “the distinction between a jailable offense and a non-jailable offense may not provide a bright line for law enforcement officers under all possible circumstances.”

But, she observed, “the distinction between a misdemeanor and a felony also does not provide a bright line for officers considering whether to enter a person’s home without a warrant under all circumstances, and that distinction is not supported by the United States Supreme Court precedent.”