State of Wis. v. Felix

• Decision Date: 29 March 2011
• Docket Number: Cir. Ct. No. 2007CF659,Appeal No. 2010AP346-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Devin W. Felix, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent,
v.
Devin W. Felix, Defendant-Appellant.

Appeal No. 2010AP346-CR
Cir. Ct. No. 2007CF659

COURT OF APPEALS
STATE OF WISCONSIN
DISTRICT III.

Filed March 29, 2011

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

APPEAL from a judgment of the circuit court for Marathon County: CONRAD A. RICHARDS, Reserve Judge. Judgment reversed and cause remanded with directions.

Before Hoover, P.J., Peterson and Brunner, JJ.

¶1 PER CURIAM. Devin Felix appeals a judgment of conviction for second-degree intentional homicide. Felix argues the circuit court erroneously denied his motions to suppress statements and physical evidence obtained after he

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was arrested in his home without a warrant and his automobile was seized and searched.¹ As to the warrantless arrest, the State abandons the rationale relied upon in the circuit court. Instead, the State argues that even if Felix's arrest was unconstitutional, federal case law dictates that Felix is not entitled to suppression. We conclude the federal case conflicts with prior and subsequent Wisconsin Supreme Court precedent. Therefore, we reverse and direct the circuit court to suppress the statements and physical evidence obtained following Felix's illegal arrest, except that any evidence obtained from Felix's automobile or pursuant to the consent search of Felix's home shall remain admissible.

BACKGROUND

¶2 Shortly after 1:00 a.m., police responded to a 911 call at 1928 Spring Street in Schofield. They found a male lying in the middle of the street with three stab wounds to his upper torso. Tara Wold, a witness located shortly thereafter, described a large fight between multiple individuals. She also reported that Devin Felix told her he stabbed someone and referenced going to prison. When Wold told Felix he was lying, he replied, "I'm not lying. I've got blood all over me." Wold stated Felix was drunk and left the scene in his car. Other witnesses told a similar account, including Kyle Leder, who stated Felix left in a green Chrysler. In an application for a search warrant for 1928 Spring Street, where the individuals had been partying, Felix was identified as the sole suspect. A search warrant for

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that address was issued at 5:44 a.m. No arrest warrant was sought. No search warrant was sought for Felix's home.

¶3 Police located Felix's residence around 8:00 a.m., observing Felix's mother's green Chrysler parked there. Felix resided in the basement of a house that was divided into several apartments. Eight officers organized a plan to arrest Felix, and established a perimeter around the house. Multiple officers were positioned at the back of the house, where Felix's apartment entrance was located. Detective Dennis Halkoski and officer Daniel Goff approached the door with their weapons drawn.

¶4 Goff opened the storm door and held it while Halkoski knocked hard on the entry door. The knock caused the door to swing completely open and hit the wall. Halkoski and Goff then took aim at Felix, who was sleeping in a recliner at the bottom of steps leading down from the door. They yelled at him to exit with his hands in the air. After taking a moment to wake up, Felix complied and was handcuffed outside on the ground. Meanwhile, as Felix exited, officers had immediately entered the apartment and conducted a protective sweep, removing and handcuffing Felix's mother and younger brother.

¶5 While Felix was still "face down," an officer patted him down for weapons, asking whether Felix had any sharp objects on him. Felix responded he had a knife in his front right pocket. After patting Felix down twice, the officer indicated to another that he did not locate a knife on Felix. Felix stated, "[W]ell, I had a knife on me. I must have gotten rid of it." Felix was taken to the police station and read his Miranda rights. He provided further incriminating statements. At the end of the interview, Felix consented to a buccal swabbing. Felix was then transported to jail, where Halkoski collected Felix's clothing for evidence.

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¶6 Back at the house, officers spoke to another resident, Dean Kudick. Kudick sublet to the Felix family and consented to a search of the house. Officers seized a knife from a shelf near the recliner Felix was sleeping in. They also seized the green Chrysler.

¶7 Felix moved to suppress all evidence derived from his warrantless arrest in his home. Additionally, he asserted all of his statements were obtained without valid Miranda warnings and were also involuntary. Felix further asserted his vehicle was illegally seized. The State argued the warrantless home arrest was permitted by exigent circumstances.

¶8 The circuit court denied Felix's motion with one exception, holding that, because the entry door had a history of popping open in response to a hard knock:

The Court is going to find that the arrest was valid finding that the defendant had no reasonable expectation of privacy to be protected by the [F]ourth [A]mendment because there was a voluntary submission to public view placing the recliner that he apparently slept in in a position where it could be seen from the door.

The court ordered Felix's statements to police outside his home suppressed because he had not been given Miranda warnings. However, the court ruled the statements were voluntary and could therefore be used as impeachment evidence. The court further held that the station house statements were obtained pursuant to a valid Miranda waiver and were voluntary. Finally, the court ruled Felix's car was legally seized under the automobile exception to the warrant requirement. Felix subsequently pled guilty. He now appeals.

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DISCUSSION

¶9 Felix argues that all physical evidence and statements derived from his warrantless arrest in his home should have been suppressed under the federal and state constitutions, pursuant to Payton v. New York, 445 U.S. 573 (1980); Brown v. Illinois, 422 U.S. 590 (1975); and Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978), modified by State v. Smith, 131 Wis. 2d 220, 240, 388 N.W.2d 601 (1986).

¶10 Payton established that the Fourth Amendment prohibits the police from effecting a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. Payton, 445 U.S. at 576. The court also noted Wisconsin was one of ten states in which the highest court had already held as much, citing Laasch.² Payton, 445 U.S. at 575 n.3.

¶11 Because the police arrested Felix in his home without a warrant, he asserts we must apply the attenuation analysis set forth in Brown to determine whether any evidence derived from his arrest must be suppressed. Under Brown, courts evaluate three factors to determine whether evidence obtained following a constitutional violation is sufficiently attenuated to be removed from the initial taint: (1) the temporal proximity of the evidence and the violation; (2) the presence of any intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 603-04; Smith, 131 Wis. 2d at 241. Addressing each of these factors, Felix argues application of the Brown

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attenuation analysis requires suppression of all statements and physical evidence obtained following his arrest.

Whether Brown attenuation analysis applies

¶12 In the circuit court, the State argued Felix's warrantless arrest was permissible due to exigent circumstances. On appeal, it abandons both that rationale and the circuit court's reasoning that Felix had no constitutionally protected right to privacy in his home.³ Instead, the State now argues, "Assuming that Felix's warrantless arrest was illegal under [Payton], neither his statements to police nor evidence derived therefrom need be suppressed as fruits of an illegal arrest," citing New York v. Harris, 495 U.S. 14 (1990); and State v. Roberson, 2005 WI App 195, 287 Wis. 2d 403, 704 N.W.2d 302 (Roberson I), aff'd on other grounds, 2006 WI 80, 292 Wis. 2d 280, 717 N.W.2d 111 (Roberson II).⁴

¶13 In Harris, the court distinguished the facts of that case from prior cases such as Brown, where the warrantless home entries were not based on probable cause. Harris, 495 U.S. at 18-19. Thus, Harris rejected application of

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the Brown attenuation analysis to an illegal warrantless arrest in the home based on probable cause but no exigent circumstances. Id. at 19, 21. Instead, the court created a bright-line rule, holding that the remedy was to exclude all physical evidence and statements obtained from inside the home, but to admit any statements obtained outside the home. Id. at 19-20. The court stated that once the arrestee is removed from the home, the illegal arrest transforms into legal custody because no arrest warrant would be required to arrest the person in a public place. Id. at 18. The court reasoned that because police already had probable cause to arrest, "the police had a justification to question Harris prior to his arrest; therefore, his subsequent statement was not an exploitation of the illegal entry into [Harris's] home." Id. at 19.

¶14 The Harris rule, however, has not been adopted by the Wisconsin Supreme Court. See Roberson II, 292 Wis. 2d 280, ¶81 (Abrahamson, C.J., dissenting) ("[T]his court has never adopted the Harris exception to the exclusionary rule"). Nonetheless, this court applied the rule in Roberson I, without recognizing or discussing Harris's apparent conflict with the existing supreme court precedent established by Laasch and Smith. Roberson I, 287 Wis. 2d 403, ¶¶16-23.⁵ On review in Roberson II, however, the supreme court

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cited Harris only in passing, for the proposition that "[i]n general, evidence must be suppressed as fruit of...