State v. Ionescu

• Decision Date: 13 November 2019
• Docket Number: Appeal No. 2018AP1620-CR
• Citation: 2019 WI App 68,389 Wis.2d 586,937 N.W.2d 90
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey L. IONESCU, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

389 Wis.2d 586
937 N.W.2d 90
2019 WI App 68

STATE of Wisconsin, Plaintiff-Respondent,
v.
Jeffrey L. IONESCU, Defendant-Appellant.^†

Appeal No. 2018AP1620-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: August 15, 2019
Opinion Filed: November 13, 2019

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jorge R. Fragoso, assistant state public defender of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Tiffany M. Winter, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

GUNDRUM, J.

389 Wis.2d 588

¶1 Jeffrey Ionescu appeals from his judgment of conviction for burglary, challenging the circuit court’s denial of his motion to suppress evidence. Specifically, he claims New Berlin Police Officer James Ament, a K-9 officer, violated his Fourth Amendment rights when Ament and his trained tracking dog, Condor, entered onto the yard of Ionescu’s mother without a warrant while tracking a burglar, Ionescu. Because we conclude Ament’s entry was lawful as he was in "hot pursuit" of Ionescu, we affirm.

389 Wis.2d 589

Background

¶2 Following Ament and Condor’s tracking of a burglary suspect through multiple yards, onto the property of Ionescu’s mother, and ultimately up to the door of a motor home in which Ionescu stayed, Ionescu was arrested and charged with multiple offenses. He brought a motion to suppress evidence asserting that Ament and Condor could not lawfully enter onto his mother’s yard without a warrant. An evidentiary hearing was held, at which the following relevant evidence was presented.

¶3 Ament testified that shortly after 4 a.m. on June 6, 2016, he was dispatched to a New Berlin home due to a report of a burglary in progress. Ament was informed that the homeowner had heard noises in his garage, investigated, and found an individual inside of his vehicle. Upon Ament’s arrival at the home, the homeowner informed Ament that the burglary suspect had fled, cutting west across the homeowner’s yard. Due to the dew on the

937 N.W.2d 92

ground, Ament "could see one set of footprints heading where the homeowner said he saw the suspect last run."

¶4 Ament and Condor began tracking the burglary suspect,¹ and:

Condor takes me down the road and we lose that track on the road because it is very difficult to track there. However, at a point he does again locate a track that heads through a series of backyards. During that

389 Wis.2d 590

time at various points I can see one set of footprints in that dew based on the conditions of the grass that are sometimes apparent and sometimes not. Condor is filling in those gaps.

The set of footprints was consistent with those Ament observed leaving the homeowner’s residence, "seem[ed] to follow a direct series," and was the only set Ament saw in the area. Ament and Condor traversed approximately ten to twelve backyards, losing the track one more time, but finding it "and verify[ing] with footprints again." After tracking for twenty to thirty minutes and approximately 2000 feet, Ament and Condor followed the track largely along the property line between two properties, from the back of the properties to the front. A motor home was parked in the front of one of these properties. Coming up the property line to "the edge of the motor home," Condor "immediately [took] a hard left turn" and Ament "c[ould] see those same footprints. The dog as well as the footprints go directly to the ... door of that motor home." Condor "sat and stared at the door," which informed Ament that Condor had "finished his track and he thinks that the person is in there."

¶5 An officer who was with Ament knocked on the door of the motor home, but there was no answer. They then walked to the front door of the house on the property and made contact with Ionescu’s mother, who indicated she owned the residence and the motor home but that Ionescu "stayed" in the motor home. She willingly opened the motor home for the officers and gave them permission to enter. According to the criminal complaint, the officers found Ionescu as well as a watch that had been stolen from the homeowner’s vehicle.

389 Wis.2d 591

¶6 The circuit court found that the pursuit began "in very close proximity" to when the burglary occurred.

As soon as the homeowner had contact with the individual that took off, [he] called the police and they responded in short order.... They see a track going the direction the homeowner described as the individual took off in and they began following it.... The officers were following what would be a current track or believed to be a current track. Ultimately, it led to the Ionescu property.

The court denied the suppression motion, expressing that it was "satisfied" the circumstances that "led up to the contact and the search w[ere] appropriate."² Ionescu pled to the burglary charge, was sentenced, and now appeals.

937 N.W.2d 93

Discussion

¶7 Ionescu contends Ament violated his Fourth Amendment rights "by bringing a trained police dog onto the curtilage of his home" without a warrant.³ We

389 Wis.2d 592

conclude the circuit court did not err in denying his suppression motion because Ament and Condor’s entry onto the yard of Ionescu’s mother was lawful despite the absence of a warrant. This is so because Ament and Condor were in "hot pursuit" of the suspect, Ionescu, whom they had probable cause to believe had recently committed the jailable offense of burglary.

¶8 "The review of a circuit court’s order granting or denying a suppression motion presents a question of constitutional fact. We will uphold the court’s factual findings unless they are clearly erroneous, but we independently apply constitutional principles to those facts." State v. Coffee , 2019 WI App 25, ¶6, 387 Wis. 2d 673, 929 N.W.2d 245 (citation omitted), review granted , 2019 WI 100, 389 Wis. 2d 152, 935 N.W.2d 682. Here, neither party argues that any of the court’s findings of fact are clearly erroneous. Thus, we apply the relevant constitutional principles to the facts.

¶9 Under the Fourth Amendment, warrantless searches inside a home or its curtilage⁴ are presumptively unreasonable and unlawful. Florida v. Jardines , 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) ; State v. Weber , 2016 WI 96, ¶18, 372 Wis. 2d 202, 887 N.W.2d 554. Such searches are reasonable and lawful, however, when there is probable cause to believe a jailable offense has been committed

389 Wis.2d 593

and an exigent circumstance exists. State v. Ferguson , 2009 WI 50, ¶¶19, 29, 317 Wis. 2d 586, 767 N.W.2d 187. An exigent circumstance exists "when ‘it would be unreasonable and contrary to public policy to bar law enforcement officers at the door,’ " id. , ¶19 (citation omitted), or, in this case, at the edge of the curtilage. Here, we are concerned only with the exigent circumstance of hot pursuit.

¶10 Our state supreme court and the United States Supreme Court have both recognized that "law enforcement officers may make a warrantless entry onto private property ... to engage in ‘hot pursuit’ of a fleeing suspect." Weber , 372 Wis. 2d 202, ¶28, 887 N.W.2d 554 (quoting Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ). "The basic ingredient of the exigency of hot pursuit is ‘immediate or continuous pursuit of [a suspect] from the scene of a crime.’ " Weber , 372 Wis. 2d 202, ¶28, 887 N.W.2d 554 (alteration in original) (citing State v. Richter , 2000 WI 58, ¶32, 235 Wis. 2d 524, 612 N.W.2d 29 ).

¶11 Ionescu argues Ament was not in hot pursuit when he and Condor entered onto the yard of Ionescu’s mother because the burglary victim "was only able to tell the police in which direction the suspect had fled," the track Ament and Condor

937 N.W.2d 94

followed was "invisible," and it took police "5 to 10 minutes ... to arrive" after the burglary and...