State v. Smith

• Decision Date: 24 June 1986
• Docket Number: Nos. 82-377-C,82-891-CR and 84-1245-CR,s. 82-377-C
• Citation: 388 N.W.2d 601,131 Wis.2d 220
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Pervan Zeb SMITH, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 601

388 N.W.2d 601

131 Wis.2d 220

STATE of Wisconsin, Plaintiff-Respondent, v. Pervan Zeb SMITH, Defendant-Appellant-Petitioner.

Nos. 82-377-CR, 82-891-CR and 84-1245-CR.

Supreme Court of Wisconsin.

Argued April 2, 1986.

Opinion Filed June 24, 1986.

Micaela Levine argued, for defendant-appellant-petitioner; Calvey, Mitchell & Baxter, S.C., Milwaukee, on brief.

Sally L. Wellman, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

CECI, Justice.

This is a review of a decision of the court of appeals ¹ affirming orders of the circuit court for Milwaukee county, Frederick P. Kessler, Clarence R. Parrish, and Gary A. Gerlach, circuit judges, which denied a number of motions raised prior to, during, and after trial. We reverse the decision of the court of appeals and remand to the circuit court for vacation of the judgment of conviction and for further proceedings consistent with this opinion.

The issues raised on appeal by the defendant, Pervan Zeb Smith, relate to several alleged errors in both the guilt phase of a bifurcated trial and the post-conviction proceeding. Because we find that the warrantless entry of defendant's residence and subsequent arrest was made without exigent circumstances and, therefore, was unlawful, we need not reach the other grounds for Smith's appeal. The trial court erred in not suppressing the fruit of the unlawful arrest at Smith's jury trial. We therefore remand this case for a new trial without the tainted evidence. In the process, we withdraw language from our line of cases stating that an unlawful arrest deprives the trial court of personal jurisdiction over the defendant. See, e.g., State v. Monje, 109 Wis.2d 138, 325 N.W.2d 695 (1982).

Following a jury trial in 1980, Smith was found guilty of the first-degree murder and battery of Helen Lows. Smith waived a jury trial on the question of his mental responsibility for the crime. Section 971.175, Stats. The court found him not guilty by reason of mental disease or defect and committed him to the department of health and social services, Central State Hospital. ²

The following facts of record are pertinent to this review. On May 5, 1979, Helen Lows was found dead in her home. The police began their investigation by focusing their attention on a battery complaint Lows had made on April 15, 1979. By tracing a laundry ticket in a jacket found at Lows' residence after the battery, the police were able to identify the owner of the ticket, Smith, and the location of his residence. This part of the investigation was completed at the police station by 6:00 p.m. May 7, when the police checked the address supplied by the laundry against their files on Smith, which indicated the same address.

The police then went to that address and found that Smith had recently moved. They were directed by neighbors to a nearby restaurant, where they learned the location of Smith's new apartment. The investigating officers and a back-up squad (a total of seven police) then decided to go to that location and make the arrest.

At Smith's apartment the police found the door ajar and heard loud snoring coming from within. They banged loudly on the door, could not arouse Smith, and proceeded to enter. They found Smith asleep in his bedroom and handcuffed him. He then awoke.

The police then arrested Smith for battery. After interrogation several hours after the arrest, Smith confessed to both the battery and murder of Helen Lows. Smith had been kept in a controlled custodial situation from the point of arrest until his confession.

When asked during the Miranda-Goodchild pretrial hearing whether there were any circumstances preventing the police officers from getting a warrant between the time they verified Smith's identity and address at 6:00 p.m. and his arrest three hours later, one of the arresting officers said that there were none; "We had probable cause to arrest him for the battery so we didn't apply for the warrant at that time."

We turn to the applicable law on warrantless entry into the home to effect an arrest. The United States Supreme Court has held, and this court has followed its mandates, that, although probable cause for arrest is present, absent a showing of exigent circumstances or consent, a warrantless entry into the home for purposes of search, seizure, and arrest violates a person's right against unlawful searches and seizures in the home. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); State v. Welsh, 108 Wis.2d 319, 321 N.W.2d 245 (1982), vacated and remanded 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Laasch v. State, 84 Wis.2d 587, 593, 267 N.W.2d 278 (1978). ³

The fourth amendment of the United States Constitution and art. 1, section 11 of the Wisconsin Constitution guarantee "[t]he right of the people to be secure in their persons, houses, papers, and effects...." This court has applied this provision to warrantless arrests in the home. E.g., Laasch, 84 Wis.2d at 595, 267 N.W.2d 278. By announcing that "[a]n arrest ... is quintessentially a seizure," we have said that the same constitutional protections which accrue in a search context should apply to arrests in the home. Id. at 595, 267 N.W.2d 278.

" '[T]he notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house without warrant are per se unreasonable in the absence of some one of a number of well defined "exigent circumstances." ' " Id. (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477-78, 91 S.Ct. 2022, 2044, 29 L.Ed.2d 564 (1971)).

Although warrantless arrest in the home is deemed to be presumptively unreasonable, our laws recognize that, under special circumstances, it would be unrealistic and contrary to public policy to bar law enforcement officials at the doorstep. Accordingly, the doctrine of exigent circumstances has developed to allow law enforcement officials to cross the threshold to effect an arrest in narrowly defined circumstances. Warrantless entry is permissible only where there is urgent need to do so, coupled with insufficient time to secure a warrant. If these circumstances arise, the individual's substantial right of privacy in the home must reasonably yield to the compelling public need to permit effective law enforcement.

The burden to justify warrantless in-home entry is on the state. The state must prove that there was probable cause to arrest and, in addition, exigent circumstances that could not brook the delay incident to obtaining a warrant. See, Laasch, 84 Wis.2d at 596, 267 N.W.2d 278 (citing Dorman v. United States, 435 F.2d 385, 390-92 (D.C.Cir.1970)); Welsh, 108 Wis.2d at 329, 336, 321 N.W.2d 245.

This court reviewed what constitutes exigent circumstances in Laasch and in Welsh. This court, following the federal rule of exigent circumstances, see, e.g., Steagald, 451 U.S. at 211-12, 101 S.Ct. at 1647; Laasch, 84 Wis.2d at 595-96, 267 N.W.2d 278 has identified four factors which, when measured against the time needed to obtain a warrant, would constitute the exigent circumstances required for a warrantless entry: (1) An arrest made in "hot pursuit," (2) a threat to safety of a suspect or others, (3) a risk that evidence would be destroyed, and (4) a likelihood that the suspect would flee. See, Laasch, 84 Wis.2d at 592, 267 N.W.2d 278. We recommended in Welsh, consistent with Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979), that a review of exigent circumstances be directed by a flexible test of reasonableness under the totality of the circumstances. Welsh, 108 Wis.2d at 328, 329, 321 N.W.2d 245.

We accept the suggestions of Professor Wayne LaFave, a well-known scholar of the fourth amendment, that any rule of exigent circumstances should be one which can be easily understood and readily applied by well-intentioned and reasonably competent police officers. W. LaFave, Search and Seizure, section 6.1 at 390, n. 76 (1978). The need to clarify the legal requirements for a warrantless entry with probable cause appears particularly important in light of the facts in this case. The record reveals that the two officers in charge of this investigation, who had a cumulative tenure of thirty-five years with the Milwaukee Police Department, did not make a well-considered decision to forego obtaining a warrant, but simply proceeded in the belief that probable cause was sufficient to permit this warrantless entry regardless of whether exigent circumstances existed. Despite our efforts to define exigent circumstances in the past, it would appear that the requirements for warrantless entry into the home--probable cause plus exigent cirumstances--may not have been clearly communicated to our law enforcement officials.

Just as the warrant requirement is intended to keep police practice within constitutional limits, so a narrow exception to that requirement, exigent circumstances, should be clearly delineated to achieve the same objective.

Drawing on our prior decisions, we conclude that the basic test should be an objective one: Whether a police officer under the circumstances known to the officer at the time reasonably believes that delay in procuring a warrant would gravely endanger life or risk destruction of evidence or greatly enhance the likelihood of the suspect's escape. Application of this test to the facts before us is straightforward.

The circuit court found probable cause for arrest on the misdemeanor battery which occurred three weeks before the arrest, but no probable cause for the arrest for murder. By linking the battery with the subsequent murder, the court nevertheless held that exigent circumstances were present for the misdemeanor arrest. The...