State v. Phillips

• Decision Date: 03 November 2009
• Docket Number: No. 2009AP249-CR.,2009AP249-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Antonio K. PHILLIPS, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

778 N.W.2d 157

2009 WI App 179

STATE of Wisconsin, Plaintiff-Respondent, v. Antonio K. PHILLIPS, Defendant-Appellant.^†

No. 2009AP249-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs August 5, 2009.

Opinion Filed November 3, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael J. Backes, of Shorewood.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Ann C. Murphy, assistant attorney general.

Before CURLEY, P.J., KESSLER and BRENNAN, JJ.

¶ 1 CURLEY, P.J

Antonio K. Phillips appeals the judgments convicting him, after a jury trial, of delivery of a controlled substance—cocaine (one gram or less), possession of a controlled substance—tetrahydrocannabinols (marijuana), second or subsequent offense, and possession with intent to deliver a controlled substance—cocaine (more than one gram but less than five grams), contrary to WIS. STAT. §§ 961.41(1)(cm)1g., 961.41(3g)(e), 961.41(1m)(cm)1r., and 961.48 (2005-06).¹ He also appeals the order denying his postconviction motion alleging ineffective assistance of trial counsel.

¶ 2 Phillips claims that the trial court erred in denying his motion to suppress evidence obtained in a search because the police created the exigent circumstances that led them to enter his house following a controlled buy completed by an undercover police officer. Phillips' claim of ineffective assistance arises out of trial counsel's conduct during the suppression motion hearing. Because the police decided to conduct a "knock and talk" after the undercover officer exited Phillips' house having purchased drugs from Phillips, and on the way to Phillips' back door to conduct the knock and talk, the police saw him standing in the doorway, and Phillips, after seeing the police, fled into the residence and shut the door, the exigent circumstances were not manufactured by the police. We further conclude that the denial of Phillips' postconviction motion without a hearing was proper because Phillips' claim that he received the ineffective assistance of counsel is conclusory in nature and the record conclusively shows that he is not entitled to relief. Consequently, we affirm.

I. BACKGROUND.

¶ 3 According to the criminal complaint and the testimony at trial, the police decided to conduct a controlled buy using an undercover police officer after receiving a complaint of drug dealing at a particular address in Milwaukee. The undercover officer went to the address with $60.00 of marked money. Upon reaching the front door of the residence, the undercover officer was directed to go to the back door by Phillips. Once there, he was met by Phillips who invited him into the kitchen where the officer purchased cocaine from Phillips and gave Phillips the recorded money. The officer left the house and proceeded to a car parked nearby where other police officers were waiting. The lead detective then decided to initiate a knock and talk and began walking to the back door with two police officers when they spotted Phillips standing in the doorway.² Phillips, upon seeing the police officers, began retreating into his home, at which point the officers then began running to the door while yelling, "Police, stop."³ Phillips did not stop, and instead, he shut the door and ran up the stairs. The police pursued Phillips by kicking in the door. Phillips was arrested inside and contraband was found in the house. The undercover officer identified Phillips from a photo array, and Phillips was charged with one count of delivery of a controlled substance—cocaine.

¶ 4 Prior to the jury trial, the State filed an amended information charging Phillips with two additional charges: possession of a controlled substance—tetrahydrocannabinols (marijuana), second or subsequent offense, and possession with intent to deliver a controlled substance—cocaine (more than one gram but less than five grams). Phillips filed a motion to suppress alleging that because the police manufactured their own exigent circumstances by deciding to conduct a knock and talk rather than obtaining a search warrant, the pursuit of Phillips into his house was illegal, and therefore, the drugs found in the home had to be suppressed.⁴ The trial court denied the motion.

¶ 5 Phillips was convicted of all three counts. On the charge of delivery of a controlled substance—cocaine (one gram or less), he was sentenced to two years of imprisonment to be followed by two years of extended supervision; on the charge of possession of a controlled substance—tetrahydrocannabinols (marijuana), second or subsequent offense, he was given a sentence of one year in the House of Correction; and on the charge of possession with intent to deliver a controlled substance—cocaine (more than one gram but less than five grams), he was sentenced to three years of imprisonment to be followed by three years of extended supervision. All of the sentences were to be served concurrent to one another but consecutive to any other sentence. Phillips brought a postconviction motion seeking to have the convictions vacated and alleging that he received the ineffective assistance of trial counsel. This motion was denied without a hearing. Phillips now appeals.

II. ANALYSIS.

A. The trial court properly denied Phillips' motion to suppress.

¶ 6 "When we review a trial court's ruling on a motion to suppress, we uphold [its] factual findings unless those findings are clearly erroneous." State v. Patton, 2006 WI App 235, ¶ 7, 297 Wis.2d 415, 724 N.W.2d 347. Whether the facts satisfy constitutional principles is a question of law for this court to decide. See State v. Kyles, 2004 WI 15, ¶ 7, 269 Wis.2d 1, 675 N.W.2d 449. We are not bound by the trial court's decision on questions of law, but we benefit from its analysis. Id. "The constitutional reasonableness of a search and seizure is a question of law." State v. Nicholson, 174 Wis.2d 542, 545, 497 N.W.2d 791 (Ct.App.1993). Whether probable cause and exigent circumstances exist are also both questions of law subject to independent, de novo review. See State v. Faust, 2004 WI 99, ¶ 9, 274 Wis.2d 183, 682 N.W.2d 371; State v. Kiper, 193 Wis.2d 69, 79-80, 532 N.W.2d 698 (1995).

¶ 7 A warrantless entry into one's home by police is presumptively prohibited by both the United States and Wisconsin Constitutions. State v. Hughes, 2000 WI 24, ¶ 17, 233 Wis.2d 280, 607 N.W.2d 621. However, there are "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." Id. The government bears the burden of establishing a recognized exception to the warrant requirement. State v. Leutenegger, 2004 WI App 127, ¶ 12, 275 Wis.2d 512, 685 N.W.2d 536.

¶ 8 There are four exigent circumstances that may justify a warrantless search: "(1) an arrest made in `hot pursuit,' (2) a threat to safety of a suspect or others, (3) a risk that evidence will be destroyed, and (4) a likelihood that the suspect will flee." State v. Kiekhefer, 212 Wis.2d 460, 476, 569 N.W.2d 316 (Ct.App. 1997) (citations and one set of internal quotation marks omitted). The test for determining whether the requisite exigent circumstances existed to justify the warrantless search is an objective one, with the focus on "whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of the suspect's escape." Hughes, 233 Wis.2d 280, ¶ 24, 607 N.W.2d 621. Our review of the exigent circumstances is "directed by a flexible test of reasonableness under the totality of the circumstances." State v. Smith, 131 Wis.2d 220, 229, 388 N.W.2d 601 (1986). "However, the government cannot justify a search on the basis of exigent circumstances that are of the law enforcement officers' own making." Kiekhefer, 212 Wis.2d at 476, 569 N.W.2d 316; see also Hughes, 233 Wis.2d 280, ¶ 28 n. 7, 607 N.W.2d 621. Here, the State relies on both the first and third exceptions for a warrantless entry, namely, an arrest made in hot pursuit and the risk that evidence will be destroyed.

¶ 9 "Whether a warrantless entry into a home is justified by the exigent circumstances exception is a mixed question of fact and law." Leutenegger, 275 Wis.2d 512, ¶ 13, 685 N.W.2d 536. The trial court's findings of fact will be upheld unless they are clearly erroneous. Id. However, this court will determine whether the facts establish exigent circumstances sufficient to justify a warrantless entry as a question of law. Id.

¶ 10 Neither party disputes that probable cause for a warrant existed following the controlled buy; as such, our focus is on whether exigent circumstances existed to justify the warrantless search. Phillips argues that the trial court erred in denying his motion to suppress because the police impermissibly created the exigency used to justify the warrantless search. After conceding that probable cause for a warrant existed following the controlled buy, Phillips writes:

However, instead of securing a warrant, two of the observing officers decided to conduct a []knock and talk. They approached the rear of the residence and, allegedly to their surprise, observed the suspect right where he was last reported by the officer who conducted the controlled buy, specifically, in the rear doorway. They were seen by the suspect, and surprise again, he slammed the door. With the basis to claim exigency now in hand they kicked in the rear door and proceeded to make their arrest and gather evidence.

Phillips contends that there was no indication that there was a threat to any officer, that anyone was trying to flee, that evidence was about to be destroyed, or any other reason justifying immediate action. Phillips further points to the fact "that...