Appeals court employs “constructive entry” analysis to police arrest outside home

By Joe Forward, Legal Writer, State Bar of Wisconsin

 Dec. 7, 2010 – The District II Wisconsin appeals court looked to federal case law in determining whether police violated defendant’s Fourth Amendment rights through “constructive entry” when they persuaded him to exit his home for questioning.

In December 2006 around 10 p.m., City of Sheboygan police officers responded to a call that a pick-up truck driver had struck a subdivision fire hydrant then parked the car in a nearby driveway. Police located the pick-up truck, noticed damage to the truck, and approached the residence to question the vehicle’s owner, Brian Cesar, who lived at the residence.

Two police officers knocked on the front door and rang the doorbell numerous times for nearly 10 minutes while a third officer watched the back door. The officers also looked in the windows, and eventually saw Cesar in the kitchen. The officers identified themselves through a window and asked Cesar to come outside, but he did not respond.

After police continued knocking, Cesar came to the window and told police he was not coming outside and did not wish to speak with them. Officers told Cesar if he did not come outside, they would wait there until a search warrant could be obtained.

Eventually, Cesar exited his residence and talked with police. They arrested him on OWI first offense and “hit-and-run” charges. The circuit court denied Cesar’s motion to suppress evidence on grounds that he was detained unlawfully. He was convicted on both charges.

In City of Sheboygan v. Cesar, 2009AP3049 (Nov. 24, 2010), Cesar argued that he was unlawfully seized in violation of his Fourth Amendment right against unlawful searches and seizures. Cesar also argued that his statements to police were made involuntarily.

Constructive entry

Although not seized “within” his home, Cesar argued that police made a “constructive entry” that triggered Fourth Amendment scrutiny. The appeals court acknowledged that police can violate the Fourth Amendment, even if they do not enter the home, by “deploy[ing] overbearing tactics that essentially force the individual out of the home.”[i]

The appeals court noted that the “constructive entry” doctrine – a doctrine that restricts police use of “knock-and-talk” encounters – has not been expressly adopted by Wisconsin courts. In addition, Cesar conceded, and the appeals court agreed, that “there is no Wisconsin case law recognizing an in-home seizure when there is no entry to the home by police.”

Thus, the appeals court examined two federal cases – U.S. v. Jerez, 108 F.3d 684 (7^thCir. 1997), and U.S. v. Reeves, 525 F.3d 1161 (10^thCir. 2008) – to determine that Sheboygan police did not “constructively enter” Cesar’s home.

In determining whether a constructive entry has taken place, the appeals court explained, Reeves and Jerez considered the following nonexhaustive list of relevant factors: “the time of day, the number of officers present, the show of authority and officer persistence.”

The appeals court distinguished the case from Reeves and Jerez by noting that Cesar was not awakened by police in the early morning hours, there were only two officers actively attempting to make contact with Cesar, and the record “is void of any commands, express or implicit, made by the officers.”

“The officers simply requested Cesar to speak with them, and informed Cesar that if he chose not to speak with them, they would obtain a warrant,” wrote Judge Lisa Neubauer. “Implicit in this information is that Cesar could, in fact, ignore their requests that he cooperate and choose not to speak with them. The record reflects that Cesar, however, chose to engage in conversation and eventually exit the residence.”

Thus, the court concluded the arrest was not the result of a constructive entry in violation of Cesar’s Fourth Amendment rights. In addition, the court ruled there was no basis to conclude that Cesar made subsequent statements involuntarily.