State v. Kiper
| Decision Date | 24 May 1995 |
| Docket Number | No. 93-2997-CR.,93-2997-CR. |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jason KIPER, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
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For the defendant-appellant-petitioner there were briefs and oral argument by Mary E. Waitrovich, assistant state public defender.
For the plaintiff-respondent the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was James E. Doyle.
The petitioner, Jason Kiper (Kiper), seeks a review of an unpublished decision of the court of appeals, filed May 17, 1994, which affirmed a decision of the circuit court for Brown County, Susan E. Bischel, Circuit Judge. Kiper was arrested and convicted for possession with intent to deliver a controlled substance, in violation of §161.41(1m)(h)1, Stats.1 However, Kiper argues that his arrest and conviction were based upon evidence illegally seized at his home when a police officer sought to execute an arrest warrant for a third party, David J. Wanie (Wanie). According to Kiper, the evidence seized should have been suppressed because: (a) prior to his entry, the police officer lacked probable cause to believe that Wanie resided in the apartment; (b) even if there was sufficient evidence to believe that Wanie resided in the apartment, the underlying warrant used by the police officer to gain entry was invalid since the police officer did not seek judicial approval to modify the warrant to reflect Wanie's new address; and (c) no exigent circumstances existed at the time the police officer entered the apartment, establishing an exception to the warrant requirement.
The circuit court denied Kiper's motions to suppress and concluded that (a) probable cause existed to believe Wanie resided in Kiper's apartment, and (b) exigent circumstances existed which would justify the warrantless entry because the police officer feared Wanie would attempt to evade custody by fleeing through a rear apartment exit.2 Consequently, the circuit court found that the holding in Steagald v. United States, 451 U.S. 204 (1981), did not apply. The Steagald Court held that in the absence of consent or exigent circumstances, a search warrant is required to enter the home of an individual in order to execute an arrest warrant for a third party believed to be present therein. Id. at 213-14.
Affirming the judgment of the circuit court, the court of appeals concluded that this case was controlled by Payton v. New York, 445 U.S. 573, 603 (1980), wherein the United States Supreme Court held that police may enter a dwelling to serve an arrest warrant founded on probable cause only when there is reason to believe the suspect resides there and is present within.
The issue before this court is whether police entry into Kiper's home is controlled by Steagald or Payton. For the reasons set forth below, we reverse the decision of the court of appeals and hold that Steagald is controlling in this case. Accordingly, the police officer was required to obtain a search warrant prior to entering Kiper's apartment to execute an arrest warrant for Wanie. Absent the search warrant, the police entry was illegal, and any and all statements Kiper made to the police, as well as any evidence seized from Kiper's apartment, ought to have been suppressed. Further, neither consent nor exigent circumstances existed at the time of the police officer's entry which would have established an exception to the requirement for the search warrant.
In 1992, Wanie was convicted, pursuant to § 345.45(1) of the Green Bay Code of Ordinances, of "permitting an unauthorized minor to drive." The judgment of conviction required payment of a $55 fine, due on November 2, 1992. Wanie failed to pay the fine, and a warrant was issued for his arrest on December 2, 1992.3 On December 31, 1992, Green Bay police officer Todd Thomas (Thomas) sought to execute the arrest warrant. The face of the warrant indicated an address of "1221 Doblon, Rear," but it had been crossed out and replaced with the address "207 N. Irwin." An additional notation of "Moved" was marked next to the two addresses. However, as Thomas would later testify, he did not look for Wanie at "207 N. Irwin" on December 31 because he previously learned that Wanie had moved from that address as well.
Instead, Thomas went to Kiper's home, 1136 Harvey Street, Apartment 3, believing he might find Wanie there since he had seen him at the same location six weeks earlier while on another call.4 Upon his arrival, Thomas notified the police department that he intended to pick up a party on a warrant.5 Thomas then went to the apartment and knocked on the front door. A young man named Jason Mianecki (Mianecki) opened the door, and Thomas asked if "David Wane was there,"6 mispronouncing Wanie's last name. Shortly after Mianecki responded "no," Thomas saw the person he believed to be Wanie inside the apartment, near the doorway. Thomas then said that a warrant had been issued for "Mr. Wane." Wanie responded that "Wane" wasn't there and walked away from the doorway area toward the kitchen. Thomas entered the apartment and followed Wanie down the hallway toward the bedrooms. At that point, Thomas asked Wanie to identify himself, which he did.
While in the hallway, Wanie attempted to close one of the bedroom doors. Thomas told him to stop and, through the partially closed doorway, saw drug paraphernalia and smelled the odor of marijuana. Thomas entered the bedroom, told Wanie to sit on the couch, and saw Kiper standing next to a number of items located on the floor, including a metal lock box, scales, a bong, and drugs.
When the second police officer, Belongea, arrived at the apartment, a complete search of the bedroom was conducted, resulting in the seizure of the aforementioned items as well as other drugs located under a mattress. Kiper was placed under arrest and taken to the police department by Thomas. Wanie was also arrested and taken to the police department by Belongea, who served him with the outstanding arrest warrant.
In an information dated January 26, 1993, Kiper was charged with possession with intent to deliver THC, in violation of § 161.41(1m)(h)1, Stats.7 After he waived his right to a preliminary hearing and was bound over for trial, Kiper filed motions to suppress any and all statements he gave to the police, as well as physical evidence obtained from his apartment, arguing that the evidence was seized as a result of an illegal search. Specifically, Kiper argued that under Steagald, the police could not enter his home to execute an arrest warrant for a third party (Wanie) without first securing a search warrant. Further, according to Kiper, even if the police officer had a reasonable belief that Wanie was in the apartment, that belief was never subjected "to the detached scrutiny of a judicial officer." Steagald, 451 U.S. at 213.8 Finally, Kiper argued that no exigent circumstances existed at the time Thomas entered the apartment which would provide an exception to the warrant requirement. The circuit court, however, denied the motions to suppress on May 7, 1993, and found that Thomas legally entered Kiper's apartment because he had probable cause to believe Wanie lived there. As a result, Steagald did not control, and a search warrant was not required. Further, the court concluded that the following exigent circumstances existed, authorizing police entry into the apartment: (a) Wanie did not "stay put" when Thomas attempted to question him, and (b) Thomas feared that Wanie would attempt to evade being taken into custody by fleeing through the rear entrance to the apartment.9
On May 13, 1993, Kiper entered a plea of no contest to the charge against him.10 At the sentencing hearing, the circuit court decided to withhold the imposition of sentence in lieu of a three-year probation, the conditions of which included a fine, community service, and nine months in jail.
On appeal, Kiper argued that his right to be free from unreasonable search and seizure in the privacy of his home was violated when the police entered the apartment without first obtaining a search warrant as required under Steagald. As a result, the arrest warrant for Wanie could not constitutionally support the entry. The court of appeals rejected Kiper's arguments, affirmed the judgment of the circuit court, and found that the facts supported a conclusion of probable cause to believe Wanie lived in and was present at the apartment. Additionally, probable cause authorizing Thomas's entry was based upon the totality of the circumstances: (a) Thomas recognized Wanie from a photograph he had with him at the scene; (b) Thomas had seen Wanie at the apartment six weeks earlier; (c) Wanie had moved from two previous addresses and had no known present address; and (d) Wanie's conduct inside the apartment was consistent with an inference of control or dominion over the premises. Therefore, according to the court of appeals, Thomas was authorized under Payton to enter the apartment in order to execute the warrant.
"In reviewing an order suppressing evidence, this court will uphold a trial court's findings of fact unless they are against the great weight and clear preponderance of the evidence." State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990) (citation omitted). "However, whether a seizure or search has occurred, and, if so, whether it passes statutory and constitutional muster are questions of law subject to de novo review." Id. at 137-38 (citation and footnote omitted).
Kiper argues that the nonconsensual police entry into his home to execute an arrest warrant for Wanie resulted in a violation of his fourth amendment rights because, at the time of entry, police did not have probable cause to believe Wanie was a resident. As a consequence, Kiper claims that a...
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