State v. Cervantes
| Decision Date | 12 February 2013 |
| Docket Number | No. 2011AP1858–CR.,2011AP1858–CR. |
| Citation | 346 Wis.2d 730,2013 WI App 41,828 N.W.2d 592 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Daniel CERVANTES, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment of the circuit court for Milwaukee County: Paul R. Van Grunsven, Judge. Reversed.
Before CURLEY, P.J., KESSLER and BRENNAN, JJ.¶ 1CURLEY, P.J.
Daniel Cervantes appeals the judgment convicting him of possession of marijuana, second or subsequent offense, contrary to Wis. Stat. § 961.41(3g)e. (2009–10).1 Cervantes argues that the marijuana should have been suppressed because: (1) the police entered his apartment, seized and arrested him without probable cause or exigent circumstances; (2) the police entered his home and conducted a protective sweep without lawful authority; and (3) the later consent given by Cervantes to search for guns was not sufficiently attenuated from the taint of the illegal entries, seizure and arrest. We agree that the police lacked probable cause or exigent circumstances to arrest him when he opened the door of his apartment; the protective sweep following Cervantes' arrest was unlawful; and his consent to search the apartment was not sufficiently attenuated from the illegal entries, seizure and arrest. Consequently, we grant the motion to suppress the evidence and reverse the conviction.
¶ 2 According to the record and the transcripts of the proceedings held in the case, a Milwaukee police officer was contacted on June 9, 2010 by a security guard who works for a company that contracts with an apartment complex located at 2803 West Kilbourn Avenue in Milwaukee. The security guard, who the officer knew from previous encounters, told him that he had received information from the building manager that for the prior several days tenants had complained that Cervantes was walking through the apartment complex with a shotgun, cursing and yelling at other residents. The security guard did not personally witness the complained-of conduct. Although the information given to the police was that Cervantes was making threats while carrying the shotgun, they had no information that Cervantes had actually pointed the gun at anyone. As a result, the police officer obtained a photograph of Cervantes from the Milwaukee Police Department and showed it to the security guard who confirmed that the photo was that of Cervantes.
¶ 3 Following the identification of Cervantes by the security guard, the police officer and his partner, both of whom were in plain clothes, proceeded to the apartment building after making arrangements for five uniformed officers to meet them there. Once at the apartment building, the officers did not attempt to make contact with the building manager or any of the complaining tenants. Instead, the two plain clothes officers went to Cervantes' apartment and knocked on the door several times. After about a minute, Cervantes answered the door. The officers only identified themselves as police officers when Cervantes opened the door. Once the door was opened, one of the officers asked if anyone else was in the apartment. Cervantes failed to immediately respond, and, according to the testimony of one of the officers, took a step backward into the apartment. At this time the officer grabbed Cervantes, pulled him into the hallway, and handcuffed him. The officer then asked the uniformed officers who were in the hall to go inside and see if anyone else was in the apartment. The police found no one else in the apartment. When asked why Cervantes was handcuffed, the officer said it was done “for his safety and our safety.” Cervantes testified that he believed he was arrested when he opened the apartment door and was handcuffed. He remarked that he “had never been arrested like that before.”
¶ 4 Following the search of the apartment for other people, the officer brought the handcuffed Cervantes into the kitchen and told him they were investigating complaints concerning his walking in the building with a shotgun. The officer then asked Cervantes if he had a shotgun or any handguns in the apartment. Cervantes responded he had neither a shotgun nor any handguns. The officer then asked him twice if they could search the apartment and he gave consent. At the time he gave consent there were five officers in the kitchen with him.
¶ 5 No shotgun or handgun was found, but one of the uniformed officers claimed to have smelled marijuana coming from a book bag that was lying on the living room floor. When the officer opened the bag, he found two large baggies of marijuana.
¶ 6 Cervantes was charged with possession of a controlled substance, second or subsequent offense. He filed a motion to suppress the evidence. The two plain-clothed police officers testified to the account given above. Cervantes also testified at the hearing on his motion to suppress. Although the trial court ultimately found his version of the events not as credible as the police officers, Cervantes stated he had been asleep when he heard knocking on the door and when he got up and looked through the peep hole he could not see anyone. He then went back to bed, but when he heard more knocking he got up and asked who was there and never received an answer. He then opened the door and a police officer told him to step out, which he did, and was handcuffed. He denied ever stepping back into the apartment and he claimed that when he was asked if anyone else was inside the apartment, he said “no.” He also testified that the search occurred without anyone asking his consent. He also stated that he did not own the book bag.
¶ 7 As noted, the trial court determined that the police officers' account of the events was more credible than Cervantes'. With respect to the initial contact with Cervantes, the trial court also accepted the police version of the events that after Cervantes was asked if anyone else was in the apartment, he failed to answer and Cervantes then took a step back into the apartment, at which time one of the officers grabbed his arm and escorted him into the hallway.2 Specifically, the trial court found that “because he failed to answer as to whether anyone else was in the apartment [the police officer] placed the handcuffs on Cervantes and told the other officers to go in and clear the apartment.” In justifying the grab of Cervantes, the trial court explained that Cervantes “could have stepped back into the apartment, slammed the door” and officer safety would have been compromised. The trial court also believed that the officers asked for and obtained Cervantes' voluntary consent on two separate occasions to search the apartment for guns. As a result, the trial court denied the motion to suppress.
¶ 8 Cervantes filed a motion for reconsideration, which the trial court denied. Cervantes then pled guilty. Cervantes received a withheld sentence and fifteen months of probation. This appeal follows.
¶ 9 The issue on appeal is whether the trial court properly denied Cervantes' motion to suppress the evidence found after the police searched his apartment purportedly with Cervantes' consent. “Ordinarily, a guilty plea waives all non-jurisdictional defects and defenses.” State v. Hampton, 2010 WI App 169, ¶ 23, 330 Wis.2d 531, 793 N.W.2d 901,rev. denied,2011 WI 29, 332 Wis.2d 279, 797 N.W.2d 524. However, “[a] narrowly crafted exception to this rule exists ... which permits appellate review of an order denying a motion to suppress evidence, notwithstanding a guilty plea.” See id.; see alsoWis. Stat. § 971.31(10). We review the denial of Cervantes' motion to suppress under a two-part standard of review: we uphold the trial court's findings of fact unless they are clearly erroneous, but review de novo whether those facts warrant suppression. See Hampton, 330 Wis.2d 531, ¶ 23, 793 N.W.2d 901.
¶ 10 We first address whether Cervantes' arrest was valid. Cervantes argues that the police had no probable cause to arrest him and no exigent circumstances existed to permit the entry into his apartment. The State submits that the police did have probable cause to arrest Cervantes and there were exigent circumstances.3 In addition, the State suggests that the police were acting in their role as community caretakers when they went to Cervantes' apartment and subsequent events that occurred permitted the police to arrest him. A detention can escalate into an arrest even if the officer does not tell the individual he or she is under arrest.
“[T]he test for whether a person has been arrested ‘is whether a reasonable person in the defendant's position would have considered himself or herself to be in custody, given the degree of restraint under the circumstances.’ ”
State v. Marten–Hoye, 2008 WI App 19, ¶ 14, 307 Wis.2d 671, 746 N.W.2d 498 (). We accept Cervantes' belief that he was under arrest when he was grabbed by the officer, taken into the hallway and handcuffed. We do so because a reasonable person in Cervantes' position would have considered himself under arrest. See id.
¶ 11 A police officer's warrantless entry into a private residence is presumptively prohibited by the Fourth Amendment to the United States Constitution, and article I, section 11, of the Wisconsin Constitution. However, this court and the United States Supreme Court have recognized exceptions to the warrant requirement where the government can show both probable cause and exigent circumstances that overcome the individual's right to be free from government interference. Payton v. New York, 445 U.S. 573, 583–88, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); State v. Smith, 131 Wis.2d 220, 228, 388 N.W.2d 601 (1986) (abrogated on other grounds by State v. Felix, 2012 WI 36, 339 Wis.2d 670, 811 N.W.2d 775).
¶ 12 The Fourth Amendment requires probable...
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