- Bookmark
- Share
- CaseIQ
STATE v. ARTIC
PER CURIAM.
The parties have filed a joint motion to dismiss this appeal. We grant the motion and dismiss the appeal. See TEX. R. APP. P. 42.1(a)(1).
¶ 71. This court upheld the search on grounds that the entry was justified by exigent circumstances, but went on to clarify the application of the attenuation doctrine. Id., ¶¶ 44-45. First, the court acknowledged the extremely short temporal proximity between the entry and the search. Id., ¶ 46. It then noted that the facts that the officer was armed and that he woke Richter from a deep sleep were not "sufficiently aggravating to transform this non-threatening, non-custodial situation into one which weighs against attenuation." Id., ¶ 47. Second, the court clarified that meaningful intervening circumstances could exist even though the officer did not inform the resident that he did not have a warrant or that the resident was free to refuse consent. Id., ¶ 48. Third, the court found that the officer's conduct was not purposeful or flagrant because the investigation was not directed at Richter, but rather at a fleeing burglar. Id., ¶ 54. Accordingly, the court concluded that, even if exigent circumstances were not present, Richter's consent was sufficiently attenuated from the entry to purge any taint. Id., ¶ 55.
¶ 72. We now apply the three Brown attenuation factors to the facts of this case. In doing so, we examine the temporal proximity of the illegal entry and the search, the existence of meaningful intervening circumstances, and the purposefulness and flagrancy of the police conduct.
1. Temporal Proximity
¶ 73. The first Brown factor is temporal proximity — the time between the illegal entry and the search. In Rawlings v. Kentucky, 448 U.S. 98, 100-01 (1980), a period of 45 minutes passed from the beginning of an illegal detention to a confession. The Supreme Court held that "under the strictest of custodial conditions such a short lapse of time might not suffice to purge the initial taint," but it was necessary to examine the nature of the conditions. Id. at 107. The Court held that the "congenial atmosphere" outweighed the relatively short time period. Id. at 108. In both Phillips and Richter, the temporal proximity was only a matter of minutes. However, the non-custodial and non-threatening nature of the situations in those cases mitigated the impact of the short time period.
¶ 74. In the present case, the court of appeals analyzed the temporal proximity factor and determined that the lapse in time between the illegal entry and the request for consent was "more than the few minutes present" in Phillips. Artic, 316 Wis. 2d 133, ¶ 25. The court stated that "the number of events that transpired from the entry — start of the search downstairs, knocking at the upstairs door, waiting, entry upstairs, more waiting and talking at the kitchen table — constitute a significant temporal distance from the unlawful downstairs entry." Id.
¶ 75. Evaluating temporal proximity entails a "measurement of the intervening time." Phillips, 218 Wis. 2d at 213. How much time passed between one event and another? We think it is likely that more time passed between the illegal entry and the request for consent in this case than the time that passed in either Phillips or Richter. However, the amount of time that passed should not be overstated. Admittedly, it was relatively brief. The passage of time is important, but time is not necessarily of the essence when it is outweighed by other factors in an attenuation analysis.
¶ 76. Here, the record does not provide the exact time period from the illegal entry to the subsequent consent to search. After breaking in the front doors, the officers secured the first floor of the residence. There was no clear indication of how long this took. The officers then proceeded up the stairs where they knocked, waited a short period of time for Artic to answer, then entered the residence with permission. They then waited for Grafton to get dressed and enter the kitchen. It was "very shortly thereafter" that Wagner asked Artic for consent. Therefore, although the time span is unclear, it appears from the record that it was not more than about five minutes. This short temporal proximity weighs against a finding of attenuation.
¶ 77. In this case, as in Rawlings, Phillips, and Richter, other circumstances mitigate the short time span. In Rawlings, the Supreme Court found congenial conditions to be a mitigating factor even though the officers detained the residents while other officers obtained a search warrant. Rawlings, 448 U.S. at 107-08. In both Phillips and Richter, this court considered the fact that the conditions were non-custodial when weighing the short temporal proximity. Phillips, 218 Wis. 2d at 207; Richter, 235 Wis. 2d 524, ¶ 47.
¶ 78. Here, neither Artic nor Grafton was in custody. Wagner displayed a weapon at the beginning of the encounter, but holstered it shortly afterward. For the reasons discussed earlier, the evidence suggests that the incident evolved into a relatively congenial and non-threatening encounter, culminating in Artic and Wagner discussing "family and stuff" while sitting at the kitchen table. Therefore, while the short temporal proximity does weigh against attenuation, its impact is mitigated by the congenial and non-threatening conditions at the time of consent.
In examining the nature of the conditions, we note that while the analyses of attenuation and voluntariness "overlap to a considerable degree, they address separate constitutional values and they are not always coterminous." Phillips, 218 Wis. 2d at 205 n. 9 (quoting United States v. Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994)).
2. Intervening Circumstances
¶ 79. The second Brown factor is the presence or absence of meaningful intervening circumstances. This factor concerns whether the defendant acted "of free will unaffected by the initial illegality." Rawlings, 448 U.S. at 108 (quoting Brown, 442 U.S. at 603). In both Phillips and Richter, significant intervening circumstances existed based on forthright conversations that officers had with the people who gave consent. In Bermudez and Kiekhefer, however, the court of appeals refused to find meaningful intervening circumstances where the officers made unannounced entries that improperly surprised, frightened, or confused the defendants. Bermudez, 221 Wis. 2d at 355; Kiekhefer, 212 Wis. 2d at 482-83. Thus, in addressing this issue, we look to whether the officers "exploit[ed] their unlawful entry . . . by surprising or misleading the defendant into consenting to the search." Phillips, 218 Wis. 2d at 209.
In Rawlings, the sufficiently untainted act of free will was the defendant's spontaneous admission that drugs found in another person's purse were actually his. Id.
¶ 80. The record here demonstrates the existence of meaningful intervening circumstances following the illegal entry on the ground floor.
¶ 81. First, the court of appeals concluded that the most meaningful intervening circumstance was "the consensual opening of the door by Artic." Artic, 316 Wis. 2d 133, ¶ 26. "Even Artic's version of events agrees that the police waited after knocking and identifying themselves." Id. Artic "admits that he then opened the door to the police. They did not force entry or threaten to enter. They knocked and waited." Id.
¶ 82. This record does not support Artic's present argument that Detective Wagner made a "demand to open the door."
¶ 83. Putting the police entry into context, Artic testified at trial that he watched the video monitor and saw the police at his front door. He was therefore not surprised when an officer knocked on the door of the second-floor unit. Artic was prepared, and he bought time by replying "just a minute." He opened the door and, upon request, gave Detective Wagner and a colleague permission to come in.
¶ 84. Second, beginning with the knock on the upstairs door, the police made accommodations. They waited for Artic to open the door. Wagner quickly holstered his weapon. The officers waited for Winnie Grafton to get dressed and come into the kitchen. The police did not frisk Artic or Grafton. They did not see any incriminating evidence in plain view and they did not find the video monitor until later. Consequently, they did not treat Artic as a suspect or challenge his failure to respond to their loud "knock and announce" at the front door. Overall, they made a concerted effort to diffuse a tense situation.
¶ 85. To constitute sufficient intervening circumstances, the interim facts or evidence must show a "discontinuity between the illegal [entry] and the consent such that the original illegality is weakened and attenuated." United States v. Gregory, 79 F.3d 973, 980 (10th Cir. 1996). In this case, Artic watched the illegality on a monitor and responded with cool sangfroid, delaying police entry and delaying any investigation until the arrival of Grafton, while orchestrating the destruction of incriminating evidence. He and Grafton then engaged officers in a congenial conversation.
¶ 86. Third, there were two sides to the conversation, with each side playing a role. The officers explained what had transpired: their presence in the area, the arrest of Artic's son with a large amount of cocaine immediately after he was seen leaving the house, their desire to know if his son had left any cocaine behind, their lack of a search warrant. There was nothing deceptive in their information, although Artic must have believed the police suspected more. For his part, Artic said he could not remember when he had last seen his son, could not believe his son would be involved in drugs at his house, and was willing to consent to search because he had nothing to hide. Artic did not attempt to withhold what officers easily could have discovered and perhaps already knew: that he was on supervision for a prior offense. In short, Artic had the presence of mind to delay the police twice, see that evidence was destroyed, lie to the police, and decline to sign any written consent to search.
¶ 87. In one sense, the congenial conversation provided Artic with sufficient information to "decide whether to freely consent to the search." Richter, 235 Wis. 2d 524, ¶ 50 (quoting Phillips, 218 Wis. 2d at 208-09). In another sense, however, Artic made a strategic decision, skillfully playing the hand he was dealt and consenting to a search in the mistaken belief that police would no longer be able to find incriminating evidence.
¶ 88. The intervening circumstances in this case are more significant than those in either Phillips or Richter because the officers in those cases made entry directly into the residence that they ultimately received consent to search. In contrast, the illegal entry here occurred in the first-floor unit.
¶ 89. The record demonstrates that Artic's upstairs unit was separate from the downstairs unit and that the upstairs unit was his current residence. Artic explained that he "lived on the second floor" and that at the time of the search, both Matthew and Grafton were "living downstairs." Therefore, the officers' decision to knock and announce at the upstairs door constitutes a significant intervening circumstance.
Even if the upstairs were not a separate residence, it is relevant that the officers treated it as such. Wagner testified that he knocked and announced at the upper door because he "was unsure if this was a duplex where there was two separate residences."
¶ 90. Finally, Artic's counsel suggests that this case is analogous to Bermudez in that Artic must have been "surprised, frightened, or confused" when the officers arrived at his door. But Artic's testimony suggests otherwise. Artic testified that he woke up to a loud thump. He saw people kicking at his front door through the monitor for his closed-circuit camera, and he suspected they were the police because of the cars outside. Artic said that after the officers entered the home, he heard Grafton fumbling with something in the bathroom and warned her that the police were on their way. He then deliberately delayed answering the door to give Grafton more time to dispose of cocaine. While Grafton was in the bathroom, Artic approached the door to his unit to meet the police there. Although he testified that he "panicked," the record does not support the conclusion that Artic was surprised, frightened, or confused by the police presence in a way that would diminish the meaningfulness of the intervening circumstances.
3. Purposefulness and Flagrancy of the Police Conduct
¶ 91. The third Brown factor is the purposefulness and flagrancy of the police conduct. This factor is "particularly" important because it goes to the heart of the exclusionary rule's objective of deterring unlawful police conduct. Phillips, 218 Wis. 2d at 209 (citing Brown, 422 U.S. at 604). In Brown, the Court determined that an illegal detention was purposeful because the detectives arrested the defendant "in the hope that something might turn up," in a manner that "[gave] the appearance of having been calculated to cause surprise, fright, and confusion." Brown, 422 U.S. at 605. Police conduct may be purposeful or flagrant if "the impropriety of the official's misconduct was obvious or the official knew, at the time, that his conduct was likely unconstitutional but engaged in it nevertheless." United States v. Carter, 573 F.3d 418, 425 (7th Cir. 2009) (quoting United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006). This court has considered "whether there is evidence of some degree of bad faith exploitation of the situation on the part of the officer." Richter, 235 Wis. 2d 524, ¶ 53. Conversely, "courts frequently hesitate to find that an officer's violation of the law was `purposeful' or `flagrant' when the officer broke the law acting in good faith." United States v. Washington, 387 F.3d 1060, 1075 (9th Cir. 2004).
¶ 92. In this case, the officers entered the house based upon their belief that exigent circumstances existed. Their belief in exigent circumstances was based, in turn, on observations that Detective Davila made from within the curtilage of Artic's residence. Accordingly, we must examine the nature of Davila's presence in the curtilage.
¶ 93. Curtilage is the land immediately surrounding a house. Oliver v. United States, 466 U.S. 170, 178, 180 (1984). Because curtilage is "the area to which extends the intimate activity associated with the `sanctity of a man's home and the privacies of life,'" it is considered part of the home itself under Fourth Amendment analysis. Id. at 180 (Powell, J., concurring). The curtilage is defined by factors that determine "whether an individual reasonably may expect that an area immediately adjacent to the home will remain private." Id. The existence of a fence is an important factor in delineating the curtilage of a home. United States v. Dunn, 480 U.S. 294, 301 n. 4 (1987); Martwick, 231 Wis. 2d 801, ¶ 37 (noting that the owner did not erect a fence when determining that plants were not within the curtilage of the home).
¶ 94. In this case, the fenced-in area immediately adjacent to the back of Artic's house must be regarded as curtilage. The general rule is that law enforcement may not search this area of a private residence without "a search warrant (or some exception to the warrant requirement)." Siebert v. Severino, 256 F.3d 648, 654 (7th Cir. 2001). Here, Detective Davila did not have a warrant to enter the fenced-in area to position herself near the rear door. She did not know whether anyone was in the house. Consequently, she did not have probable cause to believe that someone would try to escape from the house.
¶ 95. Nevertheless, we recognize that officers may sometimes enter curtilage to further a "legitimate law enforcement objective" when the restriction upon a person's privacy is limited. United States v. Weston, 443 F.3d 661, 667 (8th Cir. 2006). The officer's reason for entering the curtilage must be "unconnected with a search of the premises directed against the accused." United States v. Bradshaw, 490 F.2d 1097, 1100 (4th Cir. 1974); see also United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006). An officer may, for example, come within the curtilage in order to serve civil process on the homeowner. United States v. Raines, 243 F.3d 419, 421 (8th Cir. 2001). Some courts have also defined an exception permitting officers to enter the curtilage when engaging in a "knock and talk" investigation. See Hardesty v. Hamburg Twp., 416 F.3d 646, 654 (6th Cir. 2006); see also United States v. Troop, 514 F.3d 405, 410 (5th Cir. 2008) (holding that a "knock and talk" is a "reasonable investigative tool when officers seek to gain an occupant's consent to search or when officers reasonably suspect criminal activity"). Several courts have extended this exception to permit officers to enter the back yard in search of a homeowner when nobody answers the front door.
These courts include the Third, Fourth, Sixth, Eighth, and Ninth Circuits. See Hardesty v. Hamburg Township, 461 F.3d 646, 664 (6th Cir. 2007); Estate of Smith v. Marasco, 318 F.3d 497, 520-21 (3d Cir. 2003); United States v. Hammett, 236 F.3d 1054, 1060 (9th Cir. 2001); United States v. Anderson, 552 F.2d 1296, 1300 (8th Cir. 1977); United States v. Bradshaw, 490 F.2d 1097, 1101 (4th Cir. 1974).
¶ 96. In this case, Detective Davila's purpose for entering the curtilage was not to search the area or investigate the back of the house but to prevent any person in the house from trying to escape.
¶ 97. Detective Davila's entry into the curtilage of Artic's house was not permitted by the Fourth Amendment on the basis of information she had at the time. However, we are not required to determine that her presence in the fenced-in portion of Artic's back yard was lawful or that her observations there permitted other officers to break in the front door based on exigent circumstances as a prerequisite to our conclusion that police conduct was not "flagrant" or "purposeful." Securing the rear door by entering the curtilage was not, under the circumstances, flagrant conduct. Entering the curtilage advanced a legitimate law enforcement objective — securing the premises in preparation for an anticipated search warrant and preventing an escape if someone in the house tried to escape — without an undue invasion of privacy. See United States v. Scheets, 188 F.3d 829, 840 (7th Cir. 1999) (citing Segura v. United States, 468 U.S. 796, 810 (1984)) ("Law enforcement officers may seize an area to avoid the destruction or removal of evidence when probable cause to search the area exists."); United States v. Ruiz-Estrada, 312 F.3d 398, 404 (8th Cir. 2002) ("The act of securing [an] apartment while awaiting a search warrant comports with the Fourth Amendment.").
¶ 98. When Detective Davila noticed the upstairs light go out as police announced their presence at the front door, and when she heard the phone ringing and scurrying movement inside the house, she drew the reasonable inference that the occupants of the house did not wish to be seen and could very well be involved in trying to destroy evidence. While the resulting entry through the front door was illegal, it was neither illogical nor unnatural under the circumstances.
¶ 99. Once Davila relayed her information to the other officers, those officers acted on a reasonable belief that evidence might be destroyed. They had reason to believe drugs were in the residence based on the fact that Rob had left the residence moments before his arrest. Wagner observed a camera near the front door of the house, which was characteristic of houses he had investigated for drugs and drug offenses. Wagner knocked and announced loudly enough that Artic could hear him. At this point, Davila relayed her observations about the light turning off, phone ringing, and scurrying footsteps on the stairs. Wagner testified that the officers' forced entry was based upon their belief that evidence was being destroyed, and nothing in the record suggests that this belief was not genuine. The fact that Davila's observations were made unlawfully from within the curtilage rendered the officers' subsequent entry illegal, but it did not make the entry purposeful or flagrant for the purposes of attenuation analysis.
The circuit court found that the presence of the camera, coupled with Rob's arrest and the information provided by the confidential informant, heightened the officers' suspicion that drugs may have been in the home.
¶ 100. The officers did not enter the house after Rob's arrest because they were targeting his father. Davila did not go to the back of the house to search for evidence against him. This was not a circumstance in which she "went in merely to see if there was anything worth getting a warrant for." Murray v. United States, 487 U.S. 533, 540 n. 2. Events played out in an unexpected fashion. Similar to Richter, where the officer was pursuing a fleeing burglar, there was no evidence "that [the officer] entered Richter's home with ulterior motives, to undermine Richter's rights, to pressure him to consent, or to otherwise exploit the situation in hopes of finding evidence against Richter." Richter, 235 Wis. 2d 524, ¶ 54.
¶ 101. Artic compares the facts of this case to Bermudez, in which the court of appeals held that "the facts suggest[ed] an orchestrated attempt to collect further incriminating evidence." Bermudez, 221 Wis. 2d at 357. In Bermudez, however, the facts were inconsistent with the officers' stated purpose for the entry. Id. at 356-57. That is not the case here.
Specifically, the court of appeals held that it was "disingenuous for the officers involved to testify that their only purpose in going to the motel room was to inform [the defendant's wife] that her husband had been arrested." Bermudez, 221 Wis. 2d at 356. The court concluded that the officers' subsequent actions revealed their "ulterior motive." Id.
¶ 102. Nothing in the record suggests the officers acted in bad faith or under a pretext. The officers testified extensively regarding their initial investigation, and the police presence was consistent with these activities. Although the observations supporting their belief in exigent circumstances were made illegally, the officers' behavior upon entering the residence was consistent with their goal of preventing the destruction of evidence. Furthermore, they were specifically investigating Artic's son, not Artic himself. They did not know that Artic was a resident of the building and, in fact, were surprised to encounter him.
Wagner testified that when Artic answered the door, Wagner "was surprised because he seemed like an elderly gentleman, and I wasn't sure — I wasn't sure if this was a duplex or a single family. It was kind of confusing all at once." This kind of confusion is inconsistent with an orchestrated plan to exploit an illegal entry for the purposes of obtaining evidence against Artic.
¶ 103. Finally, Artic argues that the officers' illegal activity was purposeful and flagrant because the officers forced entry into the house. He relies on language in Phillips noting that the agents in that case did not gain entry by "breaking through, unlocking, or even opening a window or door." Phillips, 218 Wis. 2d at 211. Although the fact that the officers forced entry certainly makes their entry more flagrant than it would be if they had simply opened a door, the flagrancy is mitigated by the fact that the officers forced entry into the building generally, not into Artic's upstairs living quarters.
¶ 104. Artic cites United States v. Robeles-Ortega, 348 F.3d 679 (7th Cir. 2003), which is instructive on this point. In Robeles-Ortega, the Seventh Circuit found the officers' activity flagrant where they "literally broke down the door, without exigent circumstances and without a warrant, and at least five agents rushed into the apartment with guns." Id. at 684. The officers then ordered the occupants to lie on the ground. Id. The Seventh Circuit held that the manner of the entry "gave the appearance of having been calculated to cause surprise, fright, and confusion." Id. (quoting Brown, 422 U.S. at 605).
¶ 105. While the officers here did break down the front doors to the building, there is nothing in the record to suggest that their actions were calculated to surprise, frighten, or confuse Artic, whom they did not realize was an occupant of the house. The officers were furthering a legitimate law enforcement purpose, see Scheets, 188 F.3d at 840, acting on a reasonable belief that evidence might be destroyed, and not specifically targeting Artic. In sum, the record simply does not suggest "bad faith exploitation of the situation on the part of the officer[s]." Richter, 235 Wis. 2d 524, ¶ 53. Therefore, their actions were neither purposeful nor flagrant, and this factor weighs in favor of attenuation.
IV. CONCLUSION
¶ 106. We conclude that Artic's consent to search was given freely and voluntarily, and not merely in acquiescence to police authority. We also conclude that the police search of Artic's upper-level residence was sufficiently attenuated from the illegal entry to purge the primary taint of that entry. While the temporal proximity was short, meaningful intervening circumstances took place and the official conduct was neither flagrant nor purposeful. For these reasons, Artic was not prejudiced by his counsel's failure in the suppression motion to raise the argument that the police created their own exigent circumstances and to object to testimony about observations made illegally from within the curtilage of Artic's house. Accordingly, we affirm the court of appeals.
By the Court. — The decision of the court of appeals is affirmed.
¶ 107. SHIRLEY S. ABRAHAMSON, C.J. (dissenting).
The majority acknowledges that the following occurred in this case:
• Milwaukee police contemplated obtaining a search warrant for Artic's home but specifically chose not to do so, instead proceeding without one. Majority op., ¶ 8.
• Several officers approached the home. One unlawfully entered the curtilage of Artic's property behind the house while others aggressively knocked and yelled at the front door. Majority op., ¶¶ 9-10.
• When no response was forthcoming, the officers forcibly kicked in one door and broke out a window in a second to make a forced, warrantless entry. Majority op., ¶ 11.
• Police searched the downstairs portions of defendant's house before confronting him in his upstairs rooms. Police had weapons drawn during this encounter. Majority op., ¶ 12-13.
• Still without seeking a warrant, police had a conversation with the defendant for which there are conflicting accounts but following which police searched the upstairs rooms.
¶ 108. Given this undisputed sequence of events, given that the State bears the burden of establishing why the fruits of this warrantless and unconstitutional entry should be admitted, and given the spotty factual record on which the majority's analysis relies, it is remarkable that the majority determines that the evidence obtained following a concededly unconstitutional forced entry to the home was nevertheless properly used in court.
¶ 109. I cannot agree with the majority's analysis of either of the two key inquiries: the voluntariness of consent and its attenuation from the unlawful police conduct. I discuss each in turn.
I
¶ 110. The majority's conclusion that consent was voluntarily given in this case does not, in my view, faithfully apply the governing law. The majority begins its analysis by reciting the established principles governing voluntary consent, but then walks away from these principles when it applies the law to the facts of this case. In particular, the majority does not take seriously either the evaluation of the totality of the circumstances or the applicable burden of proof, which is placed on the State.
Majority op., ¶ 32.
The circuit court found as a matter of fact that Artic gave oral consent to search. See majority op., ¶ 31. The question becomes whether consent was given voluntarily, which is a question of "constitutional fact." A reviewing court independently applies the constitutional principles to the historic and evidentiary facts to determine whether the standard of voluntariness has been met. State v. Phillips, 218 Wis. 2d 180, 195, 577 N.W.2d 794 (1998).
A
¶ 111. Although the majority recites that determining voluntariness turns on the totality of the circumstances, the majority's analysis then ignores a key, overarching circumstance in this case, namely that the encounter between Artic and the police was precipitated by a forcible, unlawful, and warrantless entry into Artic's home. In my view the majority's analysis thereby ignores the obvious. In the context of the coercive effect of the forced entry, the majority also significantly understates the legal significance of the fact that police confronted Artic with weapons drawn.
Majority op., ¶¶ 32-33.
¶ 112. The real question, as the majority acknowledges, is whether a statement of consent was the result of express or implied duress or coercion, majority op., ¶ 34. Mere "acquiescence to a claim of lawful authority" does not provide for a statement of consent that the law considers voluntary.
Majority op., ¶ 32 (quoting Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)).
¶ 113. Viewing the totality of the circumstances more candidly than the majority has done, I conclude that any consent given by Artic was an "acquiescence" to the assertion of police authority, rather than a statement of consent that the law treats as willing and voluntary.
¶ 114. The majority analyzes the six voluntariness factors focused only on events transpiring in the upstairs of Artic's residence, as if the encounter between Wagner and Artic began at the time Artic opened the upstairs door. Of course that is not what happened. The police knocked and yelled very loudly at the outside door for between 30 to 60 seconds. When there was no answer within that time, police made a forced entry. Police therefore reached Artic's upstairs rooms only after they kicked down one locked door and broke a window to force entry through a second, then passed through and searched the downstairs portions of the house with guns drawn. See majority op., ¶ 11.
For example, in addressing whether police threatened or intimidated Artic, the majority begins its discussion with the moment "when Artic opened the door to the second-floor unit." Majority op., ¶ 39.
Likewise, when the majority addresses whether conditions were "non-threatening and cooperative," it begins its discussion at the time officers knocked on Artic's [upstairs] door. Majority op., ¶ 44. There is nothing non-threatening or cooperative about the circumstance where a police officer breaks through two locked doors to gain entry to a private house.
At the suppression hearing, Detective Wagner described his knocking as "very loud. At first it was just I would say a regular knock, and then it got louder." Asked about his announcements of "Milwaukee Police," Detective Wagner stated, "It was shouting." Detective Davila testified that she yelled many times from the back of the house to the officers in the front.
At the suppression hearing, Detective Wagner testified that his weapon was drawn at the time he entered the residence.
¶ 115. The State has conceded, and the majority concludes, that the forced entry into the home was unconstitutional. Majority op., ¶ 26. But the majority treats the encounter upstairs as unrelated to the forced entry that precipitated it. The majority therefore does not candidly address the true totality of the circumstances.
¶ 116. Wouldn't Artic expect that the police approach to the upstairs would be the same as their approach downstairs? By their actions downstairs, police had indicated their intent to conduct a search and their readiness to do so forcefully and without either consent or a warrant. As the majority elsewhere points out, Artic himself watched police kick down the front door on closed-circuit video. Given how the upstairs encounter came to pass, any consent given by Artic amounted to no more than an acquiescence to a robust display of police authority.
Majority op., ¶ 90.
¶ 117. The majority also downplays the coercive effect of the officers' being armed and the fact that Detective Wagner has his weapon drawn when Artic opened the upstairs door. "The `display of weapons is a coercive factor that sharply reduces the likelihood of freely given consent.'"
4 Wayne R. LaFave Search and Seizure: A Treatise on the Fourth Amendment, § 8.2(b), at 63 (4th ed. 2004) (quoting Lowery v. State, 499 S.W.2d 160 (Tex. Crim. App. 1973)).
¶ 118. In distinguishing the cases cited by Artic in which a display of weapons demonstrated that consent was an acquiescence rather than a voluntary choice, the majority continues to be in denial about the fact that an unlawful entry to the house had already taken place.
¶ 119. Of course no two cases present identical facts, but the cases suggest that a display of weapons inside the home after police had already made one forced entry should weigh heavily against a determination of voluntary consent here. The majority cites no case that combines these elements.
The majority, ¶¶ 47-48, relies principally on United States v. Smith, 973 F.2d 1374 (8th Cir. 1992). There, officers were outside the apartment and obtained consent to enter. There was no unlawful conduct prior to obtaining consent. Simply, officers outside the apartment "`asked' if they could come inside and Debra Smith stepped aside and motioned for them to come in." 973 F.2d at 1375. The case is not analogous here unless, as the majority does, one treats the upstairs behavior in isolation. The other cases cited by the majority are also inapposite.
¶ 120. By arbitrarily limiting its factual analysis to events that happened upstairs and by downplaying the display of weapons, the majority departs from what it has promised to do and what the law requires: to evaluate the totality of the circumstances.
¶ 121. When Artic, aware that several officers had already forced entry into his house, opened an inside door to meet a police officer who had a gun drawn and who informed Artic that he had done all this without a warrant, it hardly stands to reason that Artic believed that refusing further search would be a realistic option. Artic's consent was therefore more what the law considers an acquiescence to authority than a freely given consent. Police had by then already amply demonstrated their willingness and intent to exercise just that authority.
B
¶ 122. Furthermore, the majority misapplies the burden of proof on key facts in its analysis of consent. The majority acknowledges that a warrantless search of the home is "per se unreasonable" and that the state bears the burden of proving voluntary consent by clear and convincing evidence. The majority thus recites but does not take seriously the State's burden to prove voluntary consent by clear and convincing evidence.
¶ 123. In a move critical to its analysis, the majority asserts that the "upstairs unit was separate from the downstairs unit," and that the upstairs was where Artic lived. The record is far from clear and convincing in support of the majority's conclusion. Detective Wagner testified that when he was knocking on the upstairs door he "wasn't sure" whether the building was one residence or two, and that "[i]t was kind of confusing all at once." Evidence that is not sure and is "kind of confusing" is not clear and convincing. The majority thus misapplies the burden of proof to improperly reach a critical conclusion, which it then construes against the defendant.
Majority op., ¶ 89.
Artic's trial testimony indicated that both his girlfriend Winnie and another friend named Matt had bedrooms in the downstairs and that neither paid rent. At oral argument, Artic's Attorney summarized the situation as follows:
Understand, this was Mr. Artic's home, the whole thing was his home. It was a single family dwelling. He happened to have his bedroom upstairs. There was a kitchen upstairs. There was no kitchen on the first floor, there was a shell of a kitchen that had been completely removed — no appliances, no plumbing. This was one home, and . . . the encounter began when police pounded on the front door. . . .
¶ 124. The majority also resolves vagaries about the role of weapons in the encounter in favor of the State. The majority concedes that the record is "unclear" about the role of weapons in the encounter but nevertheless concludes that the unclear role of weapons did not undermine voluntary consent. Majority op., ¶ 45, 46-53. "Unclear" evidence is, obviously, not clear; it is also not convincing. The majority brushes past the lack of clarity about key factual disputes and resolves uncertainties against the defendant. This analysis does not hold the State to its burden.
¶ 125. Although the majority concedes that there is "no evidence in the record" that police informed Artic he could withhold consent, the majority nevertheless infers that Artic was aware of this because of his refusal to sign a written consent. This appears to be a factual determination of Artic's subjective knowledge, which is not supported by fact finding from the circuit court. The more realistic inference from the record, in light of the totality of the circumstances, is that whether or not Artic believed that he could refuse consent, he had little reason to believe such a refusal would actually deter police from completing the search of his house that they had already begun. Again, the majority infers facts not in the record about the defendant's subjective knowledge and construes them against the defendant, misallocating the burden.
Further compounding its speculation about the defendant's subjective knowledge, the majority also asserts as a "fact" "that Artic believed that Grafton had disposed of the cocaine." Majority op., ¶ 58. There was no fact finding along these lines in the circuit court. It is at most a speculative inference regarding the defendant's subjective knowledge.
The majority also determines that "there was mutual apprehension" when Artic opened the door," majority op., ¶ 39, and that the "tension" between an obvious criminal suspect and the police who had forced entry into his house "appears to have dissipated quickly." No witness testified to the majority's conclusions regarding "mutual apprehension." Such supposition of "facts" by an appellate court is contrary to our standard of review and further distorts the majority's allocation of the burden in this case.
¶ 126. Because the majority fails to candidly assess the totality of the circumstances, and particularly the bearing of the illegal entry on the encounter in which the circuit court found that consent was given, and because in my view the majority has misapplied the burden of proof by resolving key factual uncertainties in favor of the State, I cannot join the majority's conclusion that consent was voluntarily given in this case.
¶ 127. The State has not met its burden. Artic "consented to the choice at time when he had no real choice, and he had no real choice because of police misconduct." United States v. Collins, 510 F.3d 697, 701 (7th Cir. 2007).
II
¶ 128. Having concluded that any consent given in this case does not meet the constitutional requirement for being voluntarily given, I might dissent on that ground alone. I write further, however, to respond to the majority's application of the attenuation doctrine, which, in my opinion, continues to be out of sync with the controlling federal interpretations of the Fourth Amendment and risks further "making a mockery of the attenuation doctrine."
State v. Richter, 2000 WI 58, ¶ 64, 235 Wis. 2d 524, 612 N.W.2d 29 (Abrahamson, C.J., dissenting).
¶ 129. In applying the three-part analysis of attenuation from Brown v. Illinois, 422 U.S. 590 (1975), the majority acknowledges that the passage of time (the "temporal proximity") between the illegal entry and the request for consent in this case was "relatively brief," "not more than about five minutes." Majority op., ¶¶ 75, 76. The majority understates the case when it determines that this short timeframe "weighs against a finding of attenuation."
¶ 130. The only federal case to which the majority cites is Rawlings v. Kentucky, 448 U.S. 98, 100-01 (1980). There, the Court considered a 45-minute period of time to be "a short lapse," and indicated that in custodial circumstances it would in fact be too short. See majority op., ¶ 73.
¶ 131. In the present case, the circumstances were custodial (a reasonable person in Artic's position would not have felt free to leave), and the time was much shorter. Inexplicably, the majority determines that this short time is mitigated by the "congenial and non-threatening conditions" which the majority has determined existed just minutes after police kicked down Artic's front door while he watched on a video monitor.
¶ 132. The majority's analysis of timing is not consistent with other cases. In Dunaway v. New York, 442 U.S. 200, 218 (1979), one and one-half hours was too short. Likewise, in Taylor v. Alabama, 457 U.S. 687, 691 (1982), a confession obtained approximately six hours after an illegal arrest was determined not sufficiently attenuated. To the extent that the analysis of "temporal proximity" in this case is consistent with Wisconsin case law, it indicates how far this court's attenuation analysis has strayed from the controlling interpretations of Fourth Amendment doctrine from the United States Supreme Court.
¶ 133. It is in its analysis of "intervening circumstances" that the majority opinion works a novel misapplication of Fourth Amendment law. The majority asserts that there were "meaningful intervening circumstances following the illegal entry on the ground floor." But rather than identify a factual discontinuity of the kind previously recognized in the case law, the majority focuses on the defendant's conduct and apparently on his state of mind. See majority op., ¶¶ 80, 85-87.
¶ 134. The majority recognizes that a proper intervening circumstance "must show a `discontinuity between the illegal [entry] and the consent." Majority op., ¶ 85 (quoting United States v. Gregory, 79 F.3d 973, 980 (10th Cir. 1996)).
¶ 135. Here there was no discontinuity in light of the question underlying the three Brown v. Illinois factors: "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality. . . ." Wong Sun v. United States, 371 U.S. 471, 488 (1963); majority op., ¶ 64. The majority treats the encounter in Artic's upstairs kitchen as if the encounter itself provides the intervening circumstance that makes the subsequent search attenuated. In my view, it is the upstairs encounter itself and the consent given therein which were plainly "come at by exploitation of" the unlawful entry into the house in the first place.
As Professor LaFave explains regarding the validity of a search justified by consent, "While there is sufficient overlap of the voluntariness and fruits tests that often a proper result may be reached by using either one independently, it is extremely important to understand that (i) the two tests are not identical, and (ii) consequently the evidence obtained by the purported consent should be held admissible only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality." 4 LaFave, supra note 9, § 8.2(d), at 76. See also United States v. Robeles-Ortega, 348 F.3d 679, 683 (7th Cir. 2003) ("[T]he voluntariness of the consent is only the first step, and the next inquiry is whether the consent was tainted by the entry, in other words, whether it was the product of that illegal entry.").
¶ 136. The problem is that the majority then fails to identify a factual discontinuity or intervening circumstance that occurred in this case. The facts in this case show a continuous course of action over "not more than five minutes" from when police forced entry through the outside door, swept through the lower rooms of the house, moved upstairs, knocked and entered Artic's upstairs door and searched the upstairs premises. The majority fails to identify any intervening facts or circumstances in the course of the police actions initiated by that illegality and culminating in the search.
¶ 137. Perhaps because it cannot identify a meaningful discontinuity in the circumstances, the majority instead oddly focuses on Artic's behavior and subjective state of mind, noting his "cool sangfroid," his "presence of mind," his "strategic decision[s]" and the fact that he was not surprised, frightened, or confused. An inquiry into the mind of the defendant is unrelated to the question whether an intervening circumstance created sufficient discontinuity or attenuation to break the connection between the unlawful police conduct and the evidence thereby obtained. "Consent alone does not necessarily purge the taint of the illegal action." Robeles-Ortega, 348 F.3d at 684.
The majority also determines (without explanation) that the very brief time in which police knocked on the upstairs door and "the consensual opening of the door" constitute an intervening circumstance. Majority op., ¶ 81. Contradicting itself, the majority asserts that Artic was "prepared" for police to enter his apartment because he had been watching the downstairs entry by video. Majority op., ¶ 83. Thus the majority corroborates what the time analysis reveals: that the entry and search amount to a single, continuous course of police conduct.
The majority goes on to make the additional factual assertions that police "did not treat Artic as a suspect," and "made a concerted effort to diffuse a tense situation," without citation to record facts.
¶ 138. Whether Artic kept his "presence of mind" or merely was resigned to the search is not relevant to the determination of the circumstances that reveal attenuation. The same evidence that would be suppressed against a panicky defendant is not admissible simply because the suspect remained calm.
¶ 139. The United States Supreme Court has rejected just the type of argument on which the majority relies. In Taylor v. Alabama, 457 U.S. 687 (1982), the petitioner was unlawfully arrested and detained. He was fingerprinted and put in a lineup and though he spent most of the time during which he was detained by himself, he eventually visited with two friends. Following this visit he executed a waiver of rights and a written confession. The State argued, much as the majority insinuates here, that the defendant "had every opportunity to consider his situation, to organize his thoughts, to contemplate his constitutional rights, and to exercise his free will."
¶ 140. The Supreme Court rejected the State's characterization and determined that the confession was insufficiently attenuated from the illegal arrest and that the defendant's statement was therefore inadmissible. This result was reached even when the defendant there had several hours' time to consider his decision; he had time out of the presence of police, as Artic did not; his location changed, as Artic's did not; he visited with friends who were not in custody, as Artic did not; and he executed two written documents waiving his rights and entering a statement, as Artic did not. Yet none of those arguably intervening circumstances in Taylor was sufficient for the United States Supreme Court to determine that the confession was sufficiently attenuated from the unlawful arrest.
¶ 141. The United States Supreme Court analysis thus teaches that the consent and search of the upstairs rooms here was not sufficiently attenuated from the initial unlawful entry to render the evidence admissible.
¶ 142. The third Brown v. Illinois factor, as analyzed by the majority, is the "purposefulness and flagrancy of the police conduct." Majority op., ¶¶ 91-105. The majority concludes that the police conduct was not "purposeful" or "flagrant."
¶ 143. The majority is misguided when it concludes that the police conduct was not "purposeful." See majority op., ¶ 97. In State v. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, this court analyzed the police "purpose" in attenuation analysis by noting that "Richter was not the target of the officer's investigation or search." Richter, 235 Wis. 2d 524, ¶ 54. There the police entered the home for reasons unrelated to investigating Richter, believing instead that they were in pursuit of a burglar. Here, by contrast, police entered the home with the very purpose which they eventually carried out: securing and seizing evidence of drug crimes and apprehending any persons involved.
The majority opinion acknowledges that this was a "knock and talk" procedure. This procedure is described as one in which "police approach a house or apartment in which they suspect drug dealing . . . [and] listen outside the door. . . . [T]hen they knock on the door and attempt to persuade whoever answers to give them permission to enter. If consent is forthcoming, they enter and interview the occupants of the place; if it is not, they try to see from their vantage point at the door whether drug paraphernalia or contraband is in plain view. If it is, then they make a warrantless entry. As this description makes plain, the `knock and talk procedure typically does not involve the prior issuance of a warrant.'" State v. Robinson, 2010 WI 80, ¶ 7 n. 5, 327 Wis. 2d 302, 786 N.W.2d 463 (quoting United States v. Johnson, 170 F.3d 708, 711 (7th Cir. 1999)).
Clearly the "purpose" of the knock and talk procedure, in general and as employed here, is to secure, if possible, drug evidence, without obtaining a warrant.
¶ 144. The majority also concludes that the unconstitutional entry was not "flagrant," a point which the parties vigorously dispute. Once again, the majority allows its focus on one isolated piece of the three-factor attenuation analysis to obscure the overarching attenuation inquiry, which, as the majority recognizes, aims to discern when "the deterrent effect of the exclusionary rule no longer justifies its cost." Majority op., ¶ 65 (quoting Brown v. Illinois, 422 U.S. at 609 (Powell, J., concurring)). Here, police deliberately abandoned their well-grounded plan to seek a warrant, which all agree they had probable cause to obtain. "Until a valid warrant has issued, citizens are entitled to shield `their persons, houses, papers, and effects' from the government's scrutiny. Exclusion of the evidence obtained by a warrantless search vindicates that entitlement." Hudson v. Michigan, 547 U.S. 586, 591 (2006). The majority analysis loses sight of the deterrence and judicial integrity goals it purports to effect through the exclusionary rule by providing no reason for police to obtain a warrant when evidence obtained without one is nevertheless admitted.
¶ 145. Police conduct need not be flagrant in order for the exclusionary rule to have a meaningful deterrent effect. Here, as the majority recognizes, police not only considered seeking a warrant but were planning to do so. Majority op., ¶ 8. As was true in Robeles-Ortega, the police decision to proceed without first obtaining a warrant as planned was, in a sense, "inexplicable." Had police obtained a warrant, there would have been no concern with entering the curtilage, no concern with the forced entry, and no need for multiple rounds of appellate litigation addressing detailed suppression doctrines. The State would not bear the burden of showing why the evidence obtained as a result of unconstitutional police conduct should nevertheless be admitted.
United States v. Robeles-Ortega, 348 F.3d 679, 680 (7th Cir. 2003) ("The actions taken by the DEA agents at that point in time are inexplicable. Rather than obtaining a search warrant based on that information, within two minutes of the [informant's] departure the agents forcibly entered the apartment by breaking down the door.").
¶ 146. As the Seventh Circuit court of appeals has recognized, police who undertake a "knock and talk" procedure take on the risk that they may or may not thereby obtain admissible evidence. Here, had the police obtained a search warrant, they would have been assured that any evidence thereby obtained would be lawful and admissible in court. When they chose to approach the house without a warrant, entered the curtilage, forced entry, and searched the upstairs and downstairs of Artic's house without ever seeking or obtaining a search warrant, police entered an arena where the law has maintained strong presumptions of constitutional protection and placed the burdens of proof on the state. It is "axiomatic," after all, that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Richter, 235 Wis. 2d at 540 (quoting Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)).
In United States v. Collins, 510 F.3d 697, 701 (7th Cir. 2007), the Seventh Circuit court of appeals explained that
[T]here is no legal requirement of obtaining a warrant to knock on someone's door. . . . But the risk [police] take in proceeding . . . is that the emergency will not materialize — that the occupant of the house will calmly open the door and ask to see their warrant. . . . The further risk is that no one will answer the knock and the government will be unable to prove that the police knew the house was occupied.
Here, this is just what unfolded. Because the observations made from the rear of the house were unlawfully made, police were unable to prove, by evidence legally admissible in court, that the house was occupied. The majority nevertheless, and without explanation, relies on the observations unlawfully made by Detective Davila in its analysis of the case. See majority op., ¶¶ 10-11, 26 n. 5, 42, 99.
¶ 147. Because the majority has not candidly assessed the totality of the circumstances or properly allocated the burden of proof to the State and because the majority distorts the attenuation analysis, it has, in my view, incorrectly reached the conclusion that the evidence in this case was properly admitted and that the defendant therefore suffered no prejudice as a result of his counsel's failure to properly argue for its suppression. See majority op., ¶¶ 25-26. Although the majority concedes that Detective Davila's observations were unlawfully obtained, majority op., ¶ 26, no explanation is offered for why Artic was not prejudiced by her testimony both at the suppression hearing and at trial. The circuit court's crucial determination that Artic's own testimony at the suppression hearing was not credible relied explicitly on the unlawfully obtained Davila testimony. Nevertheless, the majority continues to rely on the credibility finding by the circuit court.
Neither the majority opinion nor the parties' briefs separately argue the issue of counsel's deficiency, and neither shall I.
¶ 148. For the reasons set forth, I dissent.
¶ 149. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
Alert