State v. Bourgeois, 2020AP1808-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtGUNDRUM, P.J.
Decision Date23 March 2022
PartiesState of Wisconsin, Plaintiff-Respondent, v. Eric D. Bourgeois, Defendant-Appellant.
Docket Number2020AP1808-CR

State of Wisconsin, Plaintiff-Respondent,

Eric D. Bourgeois, Defendant-Appellant.

No. 2020AP1808-CR

Court of Appeals of Wisconsin, District II

March 23, 2022

APPEAL from a judgment and an order of the circuit court for Waukesha County: No. 2016CF929 LAURA F. LAU, Judge.

Before Gundrum, P.J., Neubauer and Grogan, JJ.


¶1 The Fourth Amendment is about balance-as relevant here, balancing the government's legitimate interest in public safety and security, which requires efficient, effective, and sometimes aggressive law


enforcement, with the individual's interest in not having his or her bodily integrity, residence, or personal effects intruded upon through generally well-meaning but occasionally overzealous law enforcement efforts. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995) ("[T]he ultimate measure of the constitutionality of a governmental search is 'reasonableness.' … [W]hether a particular search meets the reasonableness standard 'is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'" (citation and footnote omitted)); United States v. Place, 462 U.S. 696, 703 (1983); State v. Murdock, 155 Wis.2d 217, 227, 455 N.W.2d 618 (1990), overruled on other grounds by State v. Dearborn, 2010 WI 84, 327 Wis.2d 252, 786 N.W.2d 97. Our job in reviewing a Fourth Amendment case such as this one is to determine whether law enforcement properly maintained that balance.

¶2 Following officers' warrantless entry into his hotel room and discovery therein of a handgun that had been reported stolen, Eric Bourgeois was charged with theft, threatening a law enforcement officer, and seven other criminal offenses. Because the entry was not supported by a warrant, Bourgeois filed a motion to suppress all evidence "recovered by the police from the hotel room and his residence, and any subsequent evidence derived therefrom." Following an evidentiary hearing, the circuit court denied the motion, concluding that exigent circumstances justified the officers' warrantless entry.[1] A trial was held, and Bourgeois was convicted of theft of the handgun and threatening a law enforcement officer. The jury acquitted him on all other charges.


¶3 On appeal, as before the circuit court, Bourgeois insists that the officers' entry into his hotel room violated his Fourth Amendment rights-due to the lack of a warrant or exigent circumstances justifying the entry-and the evidence procured from that unlawful entry must be suppressed. We agree that the entry was unlawful and evidence recovered from the search of Bourgeois's hotel room must be suppressed.

¶4 Bourgeois further asks that his "convictions" be vacated due to that unlawful entry. (Emphasis added.) While we agree his conviction for theft of the handgun must be vacated, we do not agree with vacating his threatening-a-law-enforcement-officer conviction.


¶5 Joseph Vanderlinden, a Village of West Milwaukee police officer, testified at the suppression hearing that the police department ("PD") for the Village of Mukwonago had asked that West Milwaukee police officers look for Bourgeois at the Best Western Hotel in West Milwaukee across the street from a Veterans Administration Hospital ("VA") "[a]nd attempt to locate, stop, hold and advise if we found him." Vanderlinden had been informed that Bourgeois "may be in possession of a stolen" handgun, "suffers from PTSD," and "has drug


problems."[2] Vanderlinden learned that Bourgeois was an outpatient with the hospital but did not have a scheduled appointment there for two more weeks.


¶6 Around 1:46 a.m. on July 12, 2016, Vanderlinden had another West Milwaukee police officer, Steffen Pawlak, ask the hotel if Bourgeois had checked in, and Pawlak learned that he had. Around 2:00 a.m., Vanderlinden, not wanting to alert Bourgeois to their police presence, secured a key card for Bourgeois's room from the front desk. Vanderlinden, Pawlak, and a third officer went to Bourgeois's room, which was quiet. Despite a "Do Not Disturb" sign on the door, the officers attempted to enter his room using the key card. They failed in this attempt because "the deadbolt was engaged." Despite being "a little worried about officer safety," the officers eventually began knocking, announcing "police," and getting "louder and louder." The officers received no response; Bourgeois's room remained quiet.

¶7 Vanderlinden returned to the front desk and procured a master key, returned to Bourgeois's room, and opened the door; however, he could only open it a few inches because the inside chain lock was engaged. Using a flashlight, Vanderlinden was able to "see a little bit in" the dark room and was able to see Bourgeois lying on the bed and "just staring towards the door." Bourgeois "didn't say anything," and Vanderlinden "didn't know if he was alive or not." Through the slightly-opened door, the officers again identified themselves as police and several times asked Bourgeois to come to the door. Bourgeois "basically" asked the officers, "[W]hat do you want?" and "Why are you here?" The officers "talked him into coming to the door" and asked him "numerous times if he could open the door and talk to us, that we were concerned about him." Bourgeois "either [asked] us what did we need or told us to leave. He was kind of back and forth." Vanderlinden could see Bourgeois's hands and observed he had nothing in them, including no firearm. Vanderlinden admitted that at that point, Bourgeois had not done anything alarming in their presence.


¶8 When Vanderlinden again said, "[J]ust open the door and talk to us," Bourgeois responded, "[T]hat's not going to happen," and he turned and walked away from the door. Vanderlinden "didn't know if [Bourgeois] was going to retrieve the gun" and "was worried about him and us," so Vanderlinden broke open the door, and he, Pawlak, and the third officer secured Bourgeois in handcuffs and searched the room, locating a handgun on the bed. The then very-disturbed Bourgeois made repeated verbal threats toward the officers. Vanderlinden testified that approximately thirty to forty minutes passed from the time they arrived until they entered Bourgeois's room.

¶9 Officers subsequently took Bourgeois to the VA for treatment. During that time, Mukwonago PD informed Vanderlinden that it did not want Bourgeois in custody, but that it only wanted to recover the gun. Vanderlinden confirmed that he told the Mukwonago PD that the West Milwaukee PD "never would have attempted to even make contact with Mr. Bourgeois if" it had known that "all Mukwonago wanted was the firearm."

¶10 Pawlak clarified through his testimony at trial[3] that it was two days before their July 12 contact with Bourgeois-so, on July 10-that the Mukwonago PD had asked the West Milwaukee PD for help locating Bourgeois. Pawlak and members of his department first tried to locate Bourgeois at the Best Western Hotel on July 10, but he was not there at that time. The officers had "attempted several days of checking [for Bourgeois at] various businesses and the hotels around that area," including the Best Western, to no avail, but when they went to


the Best Western around 1:46 a.m. on July 12, they learned that he had checked into that hotel.

¶11 Other testimony at trial indicated that after the West Milwaukee police officers took Bourgeois to the VA Hospital for treatment, they took him to the Milwaukee County Mental Health Hospital because of verbal threats he continued to make toward the officers. After medical professionals there declined to admit him, the officers drove Bourgeois back to his duplex in Mukwonago and released him there, uncharged, hours after the entry into and search of his hotel room.

¶12 Upon returning home, Bourgeois went upstairs to his apartment. He later went to the lower apartment and began "pounding" on the door of his duplex-neighbor, who had reported the stolen handgun to Mukwonago police on July 10, demanding that she open her door. She told him to go away, but he continued, adding swears and threats, including that he was going to kill her, prompting her to call the Mukwonago PD. Bourgeois eventually returned to his upstairs apartment.

¶13 Mukwonago police officers responded to the duplex and were engaging with the neighbor when Bourgeois came downstairs again. Officers arrested him and placed him in handcuffs, which led to him stating, as Mukwonago Police Officer Jason Steinbrenner testified, "[S]omething to the effect that he was going to kill all of us and that Dallas was nothing." Steinbrenner presumed this to be a reference to "a shooting [a few days earlier] of several Dallas police officers … committed by a former military veteran who was singling out police officers and shooting them." Bourgeois's engagement with the police at that time-specifically with Steinbrenner-ultimately led to Bourgeois being


charged with threatening a law enforcement officer, as well as the eight other criminal offenses, including theft of the handgun.

¶14 As indicated, Bourgeois was found guilty of theft of the handgun and threatening Officer Steinbrenner and found not guilty on the other charges, and he was later sentenced. Bourgeois appeals, challenging the circuit court's denial of his suppression motion and his convictions that followed. Additional facts will be provided as necessary.


The Theft Conviction

¶15 Bourgeois contends the West Milwaukee police officers' entry into his hotel room was unlawful because the officers entered without a warrant and exigent circumstances did not otherwise justify the entry. Because of this, Bourgeois asserts, evidence found in his hotel room, such as the stolen handgun, must be suppressed. We agree.

¶16 When, as in this case, the relevant facts are undisputed, we independently apply...

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