State v. Richter

• Decision Date: 20 June 2000
• Docket Number: No. 98-1332-CR.,98-1332-CR.
• Citation: 612 N.W.2d 29,235 Wis.2d 524,2000 WI 58
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Patrick E. RICHTER, Defendant-Respondent-Cross Petitioner.
• Court: Wisconsin Supreme Court

235 Wis.2d 524

2000 WI 58

612 N.W.2d 29

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Patrick E. RICHTER, Defendant-Respondent-Cross Petitioner.

No. 98-1332-CR.

Supreme Court of Wisconsin.

Oral argument February 15, 2000.

Decided June 20, 2000.

For the plaintiff-appellant-petitioner the cause was argued by Eileen W. Pray, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-respondent-cross petitioner there were briefs and oral argument by Susan E. Alesia, assistant state public defender.

¶ 1. DIANE S. SYKES, J.

This case involves a warrantless entry of a home, and the recurring question of whether the circumstances under which it took place were sufficiently exigent to justify it. The circumstances were these: a Marinette County sheriff's deputy responded to an early-morning dispatch of a burglary in progress at a trailer park. The victim flagged down the deputy as he arrived on the scene and told him that someone had broken into her mobile home, and that she had seen the intruder flee her trailer and enter the defendant's trailer across the street. The deputy observed signs of forced entry at the defendant's trailer—a window screen was knocked out and lying on the ground. The deputy shined his flashlight in the open window and attracted the attention of two people who were sleeping on the floor. They opened the door and identified the defendant, who was sleeping on the couch, as the owner of the trailer. The deputy entered the trailer, woke the defendant, told him what had happened and asked his permission to search the trailer for the burglary suspect. Permission was granted. During the search, the deputy observed marijuana in plain view, which the defendant admitted was his.

¶ 2. The defendant was charged with several marijuana possession offenses, and moved to suppress the physical evidence and his statements, alleging an illegal entry. The circuit court granted the motion, and the court of appeals affirmed, finding the circumstances insufficiently exigent and the defendant's consent insufficiently attenuated to justify the search. State v. Richter, 224 Wis. 2d 814, 817, 592 N.W.2d 310 (Ct. App. 1999). Because we conclude the entry was justified by exigent circumstances—specifically, the deputy's "hot pursuit" of the burglary suspect and his need to protect the safety of those inside the trailer—we reverse. We also conclude that the court of appeals' application of the attenuation doctrine was based upon a misconstruction of several of the doctrine's elements.

¶ 3. The facts of the case are not in dispute. In the early morning hours of October 12, 1997, Marinette County Sheriff's Deputy Rick Berlin was on patrol in the City of Marinette. At approximately 4:30 a.m., Berlin overheard a City of Marinette police dispatch reporting a burglary in progress at the Golden Sands Trailer Park. Berlin, who was near the area, responded to the call. When he arrived at Golden Sands, he was immediately flagged down by Linda Champion, who reported that an unknown man had just broken into her mobile home on lot 438. She told the officer that she had yelled at the intruder, and he then ran from her trailer into the trailer on lot 439 directly across the street. Her husband confirmed this account.

¶ 4. Deputy Berlin went to the trailer on lot 439. The trailer had a front picture window just west of its front door. As he approached, Berlin noted that the window was open and its screen had been knocked out onto the ground outside. Since the temperature was in the 40s, Berlin took this as a sign of forced entry, given the information he had obtained from the Champions across the street.

Q. What was going through your mind at that time as far as what you were thinking when you saw that open window?

A. I believed whoever this male was ran to that trailer at 439 and broke into that trailer because the screen was laying on the sidewalk or the front porch.

Q. Did you have any concerns for the safety of whatever occupants may have been in that mobile home?

A. Yes, I did.

Q. What concerns did you have?

A. I felt that there could be possibly some endangerment there because this male did break into that trailer at 438 and then ran across and ran into the trailer at 439.

¶ 5. Berlin approached the open window and shined his flashlight into the darkened trailer. He saw at least three people sleeping in the front room—two on the floor and one man on the sofa directly across from the window. He tried waking the occupants by shining his flashlight on them and announcing, "Sheriff's Department, come to the door."

¶ 6. Two of the occupants, Nicholas Dufek and Debra Sable, woke up and came to the door. Berlin told them there had been a break-in at the home across the street and asked whether they had seen a man enter their trailer. Dufek and Sable said they had been sleeping and had not seen anyone enter. Berlin then asked permission to enter the home and search for the intruder. Dufek and Sable told Berlin that they did not own the trailer, but that the man sleeping on the sofa, Patrick Richter, did. ¶ 7. Berlin entered the trailer and woke Richter.¹ Berlin told Richter that someone had just broken into the trailer across the street and that a witness had seen the intruder flee into Richter's trailer. Berlin then asked if he could search Richter's home for the intruder. Richter replied, "[y]eah, that's cool." Upon entering the trailer, Berlin also noticed a fourth individual sleeping on the floor of the front room. Linda Champion and her husband later identified that man, Shawn McFadden, as the person who broke into their mobile home. McFadden was Richter's roommate at the time.

¶ 8. Having obtained Richter's consent, Berlin and City of Marinette Police Officer Scott Asplund, who also responded to the burglary dispatch and arrived at some point after Berlin, searched the trailer for the intruder. Berlin found a portable scale and a clear plastic bag containing marijuana in plain view on a nightstand in one of the bedrooms. In the bedroom closet, Berlin found a marijuana branch hanging from a hanger.

¶ 9. Berlin questioned Richter about the marijuana, and Richter admitted it was his. He consented to a pat-down search, and Berlin recovered a brass marijuana pipe from his front pants pocket. Berlin placed Richter under arrest. Later that day, during a search pursuant to a warrant, officers found more marijuana and another scale in Richter's trailer and garage.

¶ 10. Richter was charged with one count of manufacture of a controlled substance (THC), contrary to Wis. Stat. §§ 961.41(1)(h)1 and 961.14(4)(t) (1995-96);² one count of possession of THC contrary to Wis. Stat. §§ 961.14(4)(t) and 961.41(3g)(e); and one count of possession of drug paraphernalia contrary to Wis. Stat. § 961.573(1). The charges were later upgraded to allege repeater status (second offense). See Wis. Stat. § 961.48.

¶ 11. Richter moved to suppress the physical evidence and his statements, alleging an illegal entry and search. A suppression hearing was held on January 5, 1998, and the Marinette County Circuit Court, the Honorable Charles D. Heath, denied the motion, concluding that Richter's consent to the search cured any problem with the initial entry.

¶ 12. At a second hearing held on February 12, 1998, the circuit court judge reversed himself, finding that the State had failed to show any exigent circumstances justifying the warrantless entry. The court concluded that Richter's consent to the search and the subsequent discovery of the drugs flowed directly from the illegal entry and thus could not cure it. Based on the Fourth Amendment and art. I, secs. 1, 2, 9, and 11 of the Wisconsin Constitution, the court suppressed Richter's statements and the drug evidence.

¶ 13. On March 18, 1998, the circuit court judge signed findings of fact, conclusions of law and an order granting the defendant's suppression motion. This order had been submitted the previous day by Richter's attorney but had not been approved in advance by the district attorney. That same day—March 18, 1998—the district attorney submitted his own proposed findings and conclusions, together with a cover letter explaining that he had "problems with the way [the defense attorney's proposed order] was drafted." On March 30, 1998, the circuit court judge signed and entered the district attorney's order.³

¶ 14. On May 11, 1998, the State filed an appeal pursuant to Wis. Stat. § 974.05(1)(d)2 and 3. The court of appeals affirmed. Richter, 224 Wis. 2d at 817. The court concluded that exigent circumstances did not justify the warrantless entry, rejecting the State's argument that a threat to the safety of the trailer's occupants was present. Id. at 821. The court of appeals also rejected the State's argument that this was a case of "hot pursuit," concluding that because Berlin did not personally observe the crime or the fleeing suspect, his actions did not constitute an "`immediate or continuous pursuit of [a suspect] from the scene of a crime. . .'" Id. at 821 (quoting Welsh v. Wisconsin, 466 U.S. 740, 753 (1984)).

¶ 15. The court of appeals also rejected the State's alternate theory that Richter's consent was sufficiently attenuated from the initial entry to be valid. Id. at 823. Relying on State v. Phillips, 218 Wis. 2d 180, 205, 577 N.W.2d 794 (1998), and State v. Bermudez, 221 Wis. 2d 33, 585 N.W.2d 628 (Ct. App. 1998), the court of appeals found Richter's consent to be too close in time to the entry and not adequately insulated from the initial illegality by an acceptable intervening circumstance in order for attenuation theory to apply. In particular, the court the appeals was troubled by the fact that Berlin did not tell Richter he did not have to consent to the search. Richter, 224 Wis. 2d at 825-26. The court also concluded that Berlin purposefully exploited Richter's state of sleep in order to gain consent. Id. at...