State v. Bourgeois, Appeal No. 2020AP1808-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtGUNDRUM, P.J.
Citation401 Wis.2d 489,973 N.W.2d 818,2022 WI App 18
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Eric D. BOURGEOIS, Defendant-Appellant.
Docket NumberAppeal No. 2020AP1808-CR
Decision Date23 March 2022

401 Wis.2d 489
973 N.W.2d 818
2022 WI App 18

STATE of Wisconsin, Plaintiff-Respondent,
v.
Eric D. BOURGEOIS, Defendant-Appellant.

Appeal No. 2020AP1808-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: September 30, 2021
Opinion Filed: March 23, 2022


On behalf of the defendant-appellant, the cause was submitted on the briefs of Law Offices of James A. Walrath, LLC, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sonya K. Bice, assistant attorney general and Joshua L. Kaul, attorney general.

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

GUNDRUM, P.J.

973 N.W.2d 820
401 Wis.2d 491

¶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, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) ("[T]he

401 Wis.2d 492

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, 103 S.Ct. 2637, 77 L.Ed.2d 110 (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

401 Wis.2d 493

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.

Background

¶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

973 N.W.2d 821

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

401 Wis.2d 494

Bourgeois was an outpatient with the hospital but did

401 Wis.2d 495

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.

973 N.W.2d 822

¶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

401 Wis.2d 496

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."

401 Wis.2d 497

¶10 Pawlak clarified through his testimony at trial3 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.

973 N.W.2d 823

¶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,...

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