By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 16, 2010 – When police visit a suspected drug dealer for a “knock and talk,” exigent circumstances could arise to allow police to enter without a warrant, the Wisconsin Supreme Court recently held in State v. Robinson, 2010 WI 80.

In a dissenting opinion, Justice Ann Walsh Bradley (Abrahamson, C.J. joined) stated a concern that the majority’s decision helps “dilute the Fourth Amendment by allowing the knock and talk procedure to justify warrantless entry.”

But the court ruled 5-2 that police were reasonable in entering Terion Robinson’s home without a warrant because they feared Robinson would destroy evidence that was inside.

Facts

In 2006, police obtained a tip that Robinson was dealing marijuana from his apartment. The tipster, who visited the police station to make the tip, provided police with Robinson’s name, address, and cellular phone number.

An officer conducted a warrant check on Robinson. The officer mistakenly believed that Robinson had two felony warrants outstanding for possession or delivery of a controlled substance. In fact, it was a commitment order for unpaid fines.

Without a warrant, eight officers then visited Robinson for a “knock and talk.” Nobody answered, but police heard someone inside. An officer then called the cellular phone number provided by the anonymous tipster. Nobody answered.

Police knocked again, and Robinson asked who was at the door. Police inquired about Robinson’s identity and he revealed it. An officer said it was the police. Officers then allege that Robinson ran away from the door.

Police kicked open the door. Inside they found marijuana and plastic baggies. The state charged Robinson with one count of possession with intent to deliver between 200 and 1,000 grams of THC. Robinson moved to suppress all evidence obtained.

The circuit court denied the motion, concluding that police reasonably believed the commitment order was a valid arrest warrant. In the alternative, the court concluded the officers had probable cause and entry was justified by exigent circumstances, namely, a fear that Robinson would destroy evidence. The appeals court affirmed based on a good-faith exception to the rule that excludes evidence unlawfully seized by police.

Majority

The majority assumed, without deciding, that a commitment order was insufficient to permit a lawful entry, but concluded the warrantless entry and subsequent search was valid based on exigent circumstances.

In an opinion written by Justice Annette K. Ziegler, the court explained that the Fourth Amendment to the U.S. and Wisconsin Constitutions protects citizens from unreasonable searches and seizures, but exceptions apply.

Where officers have probable cause to believe a citizen is engaged in illegal activity, a warrantless entry is not unlawful if exigent circumstances justify the warrantless search. Fear that evidence will be destroyed is an exigent circumstance that justifies a warrantless search.

The court concluded that officers had probable cause to believe they would find drugs in Robinson’s home because the officers corroborated three of the four details provided by the anonymous tipster. That is, police confirmed the suspect’s name, his address, and cell phone number.

The court also held that police entry was justified by exigent circumstances because they reasonably believed that any delay in procuring a warrant would risk destruction of evidence. In other words, when officers heard Robinson inside, they feared he would destroy the evidence knowing police were present.

The court rejected Robinson’s argument that police created the exigent circumstances, and
“police officers may not benefit from exigent circumstances that they themselves create.”

“It was not the officers’ knock and announcement that created the exigent circumstances,” the court explained. “Robinson’s choice to run from the door created the exigent circumstances that justified the officers’ warrantless entry.” Once inside, the evidence seized was in plain sight and therefore lawfully seized, the court noted.

Thus, the court affirmed the appeals court ruling to deny Robinson’s motion to suppress.

Dissent

The dissenters determined that the warrantless search violated Robinson’s Fourth Amendment rights. First, the dissent concluded that corroboration of a name, address, and phone number were not significant enough to support the tipster’s reliability. Second, the dissent concluded that police cannot rely on exigent circumstances they create.

Noting two other cases cases – State v. Artic, 2010 WI 83 and State v. Pinkard, 2010 WI 81, in which the supreme court allowed evidence based on exceptions, Bradley stated: “I fear that the presumption that warrantless home searches are unreasonable has become an example of a rule that has been swallowed by its exceptions.”

Attorneys

Assistant State Public Defender Melinda Swartz represented Terion Robinson. Assistant Attorney General Michael Sanders represented the state.