Dec. 10, 2018 – The Wisconsin Supreme Court has ruled (6-1) that police violated a defendant’s constitutional rights by entering her apartment without valid consent and without any other justified reason to enter without securing a warrant first.
A Tomah police officer entered Faith Reed’s apartment while investigating an alleged altercation between two men, brothers verbally fighting over a pair of shoes.
Two witnesses were still at the scene of the altercation when police arrived. Police identified the possible location of each brother, one in the apartment of Faith Reed. One of the witnesses, who knew Reed, accompanied the officer to Reed’s apartment.
The witness, Kirk Sullivan, knocked on Reed’s door, then opened the door enough to slip inside and attempted to close the door behind him, before the officer could enter. Sullivan had accompanied the officer to Reed’s apartment at the officer’s direction.
The officer blocked the apartment door from fully closing, and peered inside, where Sullivan was trying to conceal something. The officer entered the apartment and found marijuana on the counter, and arrested Reed for possession of marijuana.
The officer also found a pill in Reed’s sock, an Adderall for which she did not have a prescription. Thus, Reed was charged with illegal possession of Adderall.
Ultimately, the circuit court denied her motion to suppress the evidence, on Fourth Amendment grounds, and the appeals court upheld the conviction.
But in State v. Reed, 2018 WI 109 (Dec. 7, 2018), a supreme court majority reversed (6-1), concluding the officer did not have valid consent to enter the apartment without a warrant, and exigent circumstances did not provide justification for the officer to enter.
Interestingly, the state conceded that the officer did not have valid consent and a supreme court majority remanded the case “for reconsideration in light of the State’s concession.” But the appeals court, Judge Brian Blanchard, did not accept the state’s concession and denied reconsideration. Reed petitioned the supreme court again.
Again, the state agreed that the officer did not receive valid consent to enter, and the court of appeals decision should be reversed on that point. But the state argued that the officer’s actions, entering the apartment, were justified by exigent circumstances.
The supreme court accepted the case, concluding that the officer did not have valid consent to enter the apartment based on Sullivan’s words or actions.
“Sullivan unequivocally demonstrated that he did not consent to Officer Keller entering Reed’s apartment when Sullivan attempted to prohibit Officer Keller’s entry by shutting the door behind him,” wrote Justice Shirley Abrahamson.
The majority also concluded that even if Sullivan gave consent, which he didn’t, he unequivocally withdrew consent by attempting to shut the apartment door.
“The body camera footage is unambiguous and conclusive,” Justice Abrahamson wrote for the majority. “There is perhaps no action that could more clearly communicate ‘Do Not Enter’ than attempting to shut a door in someone’s face.”
Finally, the majority concluded that exigent circumstances, an exception to the warrant requirement, did not justify the officer in pushing the door open and entering.
The majority noted what was known to the officer at the time of entry: he believed there was a verbal altercation, the altercation was over and the quarreling parties separated. He knew one of the subjects had outstanding warrants, but that was not enough.
“An outstanding warrant for a suspect’s arrest, by itself, does not give rise to exigent circumstances justifying the warrantless entry into someone else’s home in which the suspect does not reside,” Justice Abrahamson explained.
In this case, the majority concluded, the officer had no reasonable basis to believe a dangerous situation was transpiring, necessitating his entrance into the apartment.
“[T]hese generalized concerns for safety and risk of flight are not enough to give rise to exigent circumstances,” Justice Abrahamson wrote.
Concurrence and Dissent
Justice Annette Ziegler agreed with the majority but wrote a concurring opinion to reject the majority’s assertion that consent to a search “must be unequivocal and specific.”
Chief Justice Patience Roggensack was the lone dissenter. She said the circuit court found that Sullivan consented, and that finding was not clearly erroneous.
“Furthermore, under the totality of the circumstances, Sullivan’s consent was voluntarily given and was not unequivocally withdrawn,” the chief justice wrote.
