State v. Felix
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Defendant Devin Felix was convicted of second-degree intentional homicide. The court of appeals reversed, holding that statements and physical evidence obtained from Defendant outside of the home after Miranda warnings were given and waived following a warrantless in-home arrest made in violation of Payton v. New York were not sufficiently attenuated from the unlawful arrest as to be lawful. At issue before the Supreme Court was which analysis governed the admissibility of such evidence, Brown v. Illinois or New York v. Harris, both decisions by the U.S. Supreme Court. The Wisconsin Supreme Court reversed the decision of the court of appeals after adopting the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation, holding that, where police had probable cause to arrest before the unlawful entry, a warrantless arrest from Defendant's home in violation of Payton required neither the suppression of statements outside of the home after Miranda rights were given and waived nor the suppression of physical evidence obtained from Defendant outside of the home.
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2012 WI 36 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2010AP346-CR State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Devin W. Felix, Defendant-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 332 Wis. 2d 804, 798 N.W.2d 319 (Ct. App. 2011 - Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: April 3, 2012 November 9, 2011 CIRCUIT MARATHON CONRAD A. RICHARDS PROSSER, J., concurs (Opinion filed). BRADLEY, J., dissents (Opinion filed). ABRAHAMSON, C.J., joins dissent. NOT PARTICIPATING: ATTORNEYS: For the plaintiff-respondent-petitioner the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general. For the defendant-appellant there was a brief and oral argument by Leonard D. Kachinsky and Sisson & Kachinsky Law Offices, Appleton. 2012 WI 36 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2010AP346-CR (L.C. No. 2007CF659) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent-Petitioner, FILED v. APR 3, 2012 Devin W. Felix, Diane M. Fremgen Clerk of Supreme Court Defendant-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 N. unpublished circuit decision court's intentional involves PATRICK CROOKS, of the judgment homicide statements a This court of after and J. of is physical of review appeals conviction plea a Reversed. for an reversing the second-degree guilty.1 evidence of This obtained case from a defendant outside of the home after Miranda warnings2 were given and waived following a warrantless in-home arrest 1 made in State v. Felix, No. 2010AP346-CR, unpublished slip op. (Wis. Ct. App. Mar. 29, 2011). 2 See Miranda v. Arizona, 384 U.S. 436 (1966). No. alleged violation of Payton v. New York.3 presented in this case is which 2010AP346-CR The central issue analysis governs the admissibility of such evidence: does Article I, Section 11 of the Wisconsin Constitution demand the suppression of such evidence unless it is sufficiently attenuated under Brown v. Illinois,4 or does this court adopt the rule developed by the United States Supreme Court in New York v. Harris5 under its interpretation Constitution? of the The Fourth United Amendment States to Supreme the United Court set States forth a three-factor attenuation analysis in Brown to determine whether evidence obtained following an unlawful search or seizure must be suppressed under the exclusionary rule as the fruit of a Fourth Amendment Supreme Court violation.6 clarified In that Harris, where the the United Fourth States Amendment violation is an unlawful arrest without a warrant, in violation of Payton, but with probable cause, evidence obtained from the defendant outside of the home is admissible because it is not "the product of illegal governmental activity."7 ¶2 In the early morning of September 8, 2007, a violent fight erupted outside of a house where a party was being held. 3 445 U.S. 573 (1980). 4 442 U.S. 590 (1975). 5 495 U.S. 14 (1990). 6 Brown, 442 U.S. at 603-04. 7 Harris, 495 U.S. at 17-19 (quoting United States v. Crews, 445 U.S. 463, 471 (1980)). 3 No. 2010AP346-CR After the fight, Nathaniel Davids (Davids) was left bleeding from multiple stab wounds and later died Police had probable cause to arrest Devin from those Felix wounds. (Felix) for Davids' murder based on statements from several witnesses, but police did not obtain a warrant for his arrest. Felix at his home, intentional homicide. statements and and he was charged Police arrested with first-degree Before trial, Felix sought to suppress evidence that police obtained at the police station and the jail. ¶3 part8 Relevant to this appeal, the circuit court denied in Felix s motions to suppress statements and physical evidence obtained after police arrested him at his home without an arrest warrant. not have a The circuit court concluded that Felix did reasonable expectation of privacy because he had submitted himself to public view by sleeping in front of an unsecured door that flew open easily. The court of appeals applied a Brown attenuation analysis and reversed in part the circuit court. Following the State's assumption that the arrest was unlawful in violation of Payton and the Fourth Amendment, the court of appeals remanded for a trial with directions to suppress Felix's signed statement 8 at the police station, a The circuit court granted in part Felix's motion to suppress the statement that he made outside of his residence immediately after he was arrested because police had not read Felix his Miranda warnings. The circuit court concluded that this statement could not be used in the State's case-in-chief, but could be used for impeachment purposes because it was made voluntarily. 4 No. 2010AP346-CR buccal swab Felix agreed to provide for DNA comparison and his clothing because the court of appeals concluded that they were not sufficiently attenuated from the unlawful arrest.9 The court of appeals did not apply the Harris rule because it concluded that this court had not adopted the Harris rule and that the rule conflicted with this court's precedent.10 appeals suggested that this court's The court of decisions indicate that Article I, Section 11 provides more protection than the Harris Court's interpretation of the Fourth Amendment.11 ¶4 We continue our usual practice of interpreting Article I, Section 11 of the Wisconsin Constitution in accord with the United States Amendment. Supreme Thus, we Court's interpretation adopt the Harris of the exception Fourth to the exclusionary rule for certain evidence obtained after a Payton violation. We hold that, where police had probable cause to arrest before Felix's home the in unlawful violation entry, of a warrantless Payton requires arrest from neither the suppression of statements made outside of the home after Felix was given and waived his Miranda rights, nor the suppression of physical evidence obtained from Felix outside of the home. Assuming without deciding that Felix's warrantless arrest from his home was in violation of Payton, we conclude that, pursuant to the Harris rule, the following evidence that police obtained 9 Felix, No. 2010AP346-CR, ¶¶1, 20. 10 Id., ¶¶14-19. 11 Id., ¶19. 5 No. 2010AP346-CR outside of his home is admissible: Felix's signed statement, made after Felix was given and waived his Miranda rights, the buccal swab obtained at the police station, and Felix's clothing seized at the jail, as well as any derivative evidence.12 ¶5 Therefore, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction. I. FACTUAL BACKGROUND ¶6 fight In the early morning on September 8, 2007, a violent erupted outside of Marathon County, Wisconsin. a party in the City of Schofield, Officers responded after the fight had broken up and people had fled the scene. They discovered Davids lying bleeding in the middle of the street from multiple stab wounds. pronounced Davids dead. was After taken police to the hospital interviewed and later witnesses, they located, arrested, and obtained evidence and a statement from Felix all during the morning hours of that same day. ¶7 Shortly interviewed several after people arriving who were at the still scene, present police and located several other witnesses who had attended the party. 12 also The The parties focused their arguments on the suppression of the buccal swab and the clothes themselves. The record does not indicate whether DNA or blood evidence was taken from the swab or the clothing nor does it provide the results of any DNA or blood comparison with the victim. It is reasonable to infer that Felix sought to suppress the DNA from the swab, the blood derived from the clothing and the results of tests on those samples, as well as the swab and the clothing themselves. Thus, when we refer to the suppression of the buccal swab and Felix's clothing, we include any evidence derived therefrom or the results of any tests on that evidence. 6 No. 2010AP346-CR witnesses who live near the scene stated that during the fight they had heard someone shouting about a stabbing. At the police station, detectives interviewed several people who had attended the party. T.W., a minor at the time of the homicide, described the fight that broke out among approximately six people outside of the party. T.W. stated that she heard Felix say, "I'm going to prison. I stabbed someone. I think I killed him." responded, "[N]o no lying." you didn't, you didn't, I T.W. had think you're According to T.W., Felix then stated, "I'm not lying, I've got blood all over me." T.W. told police that she was "pretty positive" or about "98" percent sure that Felix stabbed someone. T.W. also said that Felix left in a green Chrysler. A detective also interviewed Kyle Leder who reported hearing Felix say the word "stab" and also "I'm not going to prison" shortly before he saw Felix leave in a green Chrysler. ¶8 Based on this information, police obtained a warrant to search the residence where the party had taken place for Felix, witnesses and any evidence of the crime. find Felix at that residence, but Police did not eventually learned from Felix's father that he was living at Felix's mother's apartment. Felix's father gave the police a description of the residence and told apartment. green them that the rear entrance led to the Felixes' When the police went to that residence they saw a Chrysler parked in the driveway, which matched the description witnesses had given of the car that Felix had driven from the scene. The police had also discovered that the car was registered to Felix's mother. 7 No. ¶9 When a detective residence, it popped open. knocked on the rear 2010AP346-CR door of the The detective could immediately see someone, whom he recognized as Felix from a photo, sleeping in a recliner at the bottom of the stairs leading to the door. The detective and another officer drew their weapons and ordered Felix to come out with his hands up. Felix complied and was searched and handcuffed outside of the residence. ¶10 When Felix was being patted down before he was handcuffed, an officer asked Felix if he had any sharp objects on him. Felix replied that he had a knife in his pocket. When the officer did not find a knife on Felix, Felix stated that he "had a knife on [him]," but "must have gotten rid of it." ¶11 When officers located the person who was renting the apartment and subletting to the Felixes, Dean Kudick (Kudick), an officer asked Kudick which Kudick granted. for permission to search the house, Police found a knife next to the recliner where Felix had been sleeping. Police seized the knife and the green Chrysler that was parked in the driveway. ¶12 Felix was taken to the police department and placed in an interview room. and Felix signed A detective read Felix his Miranda rights a form waiving those rights. Felix then provided a statement detailing his involvement in the fight and Davids' death. Felix's responses The detective throughout transcribed the interview, his and questions Felix and signed this written statement after he had an opportunity to review it. Felix then agreed to submit to a buccal swab for DNA analysis. 8 No. ¶13 2010AP346-CR Felix was transported to the jail where the detective asked Felix to remove his clothes and place each item in an individual evidence bag. The detective stated that he decided to take Felix's clothes as evidence at the jail because during the interview he had noticed that Felix had some "red spots" on his shirt that he suspected might have been blood. II. PROCEDURAL HISTORY ¶14 Felix was charged with first-degree intentional homicide with the use of a dangerous weapon contrary to Wis. Stat. § 940.01(1)(a) and § 939.63(1)(b) (2005-06).13 several pre-trial motions statements and evidence. (1) the statement he including four motions Felix made to suppress Specifically, Felix sought to suppress made while being patted down upon his arrest that he "had a knife on [him]," but "must have gotten rid of it," (2) his signed statement at the police station, (3) the buccal swab he provided at the police station for DNA 13 Wisconsin Statute § 940.01 (2005-06) provides: "Firstdegree intentional homicide. (1) Offenses. (a) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony." Wisconsin Statute § 939.63 provides: "Penalties; use of a dangerous weapon. (1) If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased as follows: . . . (b) If the maximum term of imprisonment for a felony is more than 5 years or is a life term, the maximum term of imprisonment for the felony may be increased by not more than 5 years." All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. 9 No. 2010AP346-CR comparison, (4) the clothing he was wearing when arrested that police seized at the jail, (5) the knife police seized from his apartment, and (6) evidence obtained from his green Chrysler. The Marathon County Circuit Court, the Honorable Dorothy L. Bain presiding, held hearings on Felix's motions to suppress. ¶15 The Marathon County Circuit Court, the Honorable C.A. Richards presiding, granted in part and denied in part Felix's motions. The circuit court began with its conclusion that Felix was lawfully arrested. It noted that Felix was sleeping in a recliner in plain view of a door to the apartment that was known to pop open. According to the circuit court, the arrest was valid because Felix had voluntarily submitted himself to public view and thus had no reasonable expectation of privacy protected by the Fourth Amendment. The circuit court explained, quoting United States v. Santana, 427 U.S. 38, 42 (1976), what "a person knowingly exposes office, . . . is to the public, even not a subject of in his [F]ourth own house or [A]mendment protection."14 ¶16 Thus, because the circuit court concluded that Felix's arrest was not a violation of his Fourth Amendment rights, it also concluded that Felix's signed statement, the buccal swab 14 Before this court, the State does not advance the argument that the arrest was lawful based on the reasoning of the circuit court. Rather, the State's argument before this court presumes that the arrest was made in violation of Payton, 445 U.S. at 590. Consistent with the parties' positions, we assume, without deciding, that Felix's arrest at his home without an arrest warrant was in violation of Payton. See infra ¶29. 10 No. 2010AP346-CR provided at the police station, and his clothing seized at the jail were not tainted by any constitutional violation and were admissible. The circuit court denied Felix's motion to suppress the knife that police discovered in his apartment because the circuit court concluded that Kudick provided valid consent to search that area. The circuit court suppressed the statement Felix made outside of his residence, that he "had a knife on [him]," but "must have gotten rid of it," because Felix had not been given Miranda warnings. While that statement could not be used in the State's case-in-chief, the circuit court determined that because the statement was made voluntarily, it could be used for impeachment purposes.15 ¶17 Felix information pleaded guilty of second-degree Wis. Stat. § 940.05(1)(b).16 to the charge intentional in homicide the amended contrary to Felix was sentenced to 28 years of initial confinement and 20 years on extended supervision. 15 State v. Mendoza, 96 Wis. 2d 106, 118, 291 N.W.2d 478 (1980) ("A statement of the defendant made without the appropriate Miranda warnings, although inadmissible in the prosecution's case-in-chief, may be used to impeach the defendant's credibility if the defendant testifies to matters contrary to what is in the excluded statement." (citing Harris v. New York, 401 U.S. 222 (1971))). 16 Wisconsin Statute § 940.05 provides: "Second degree intentional homicide. (1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if: . . . (b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes." 11 No. ¶18 Felix appealed the circuit court's 2010AP346-CR denial of the suppression motion,17 and the court of appeals affirmed in part and reversed in part the circuit court's decision. State v. Felix, No. 2010AP346-CR, unpublished slip op., ¶1 (Wis. Ct. App. Mar. 29, 2011). The court of appeals remanded for a trial with directions to suppress Felix's signed statement and the buccal swab provided at the police police seized at the jail. ¶19 station, and his clothing that Id. Following the State's assumption that Felix's arrest violated Payton, the court of appeals addressed whether Harris or Brown provided the proper analysis regarding the suppression of evidence later obtained from Felix. appeals declined to apply the Id., ¶19. Harris The court of exception to the exclusionary rule because it had not yet been adopted by this court, and because the court of appeals concluded that Harris conflicted with this court's decisions in Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978), State v. Smith, 131 Wis. 2d 220, 388 N.W.2d 601 (1986), and State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990). Id., ¶¶14-15, 19. The court of appeals also noted that after Harris was decided, this court applied the Brown analysis in State v. Anderson, 165 Wis. 2d 441, 477 N.W.2d 277 (1991), and State v. Phillips, 218 Wis. 2d 180, 577 N.W.2d 794 (1998), involving the suppression of evidence obtained following a warrantless home entry and search. 17 A defendant may appeal an order denying a motion to suppress despite the fact that the final judgment was entered upon the defendant's guilty plea. Wis. Stat. § 971.31(10). 12 No. Id., ¶¶16-17. 2010AP346-CR The court of appeals concluded that it would be "peculiar" to admit evidence obtained after a warrantless home entry and arrest under Harris and to analyze evidence obtained after a warrantless home entry and search under Brown. ¶18. Id., Although the court of appeals recognized that Article I, Section 11 has typically been interpreted in accord with the Fourth Amendment, constrained by the this court of court's appeals prior stated that decisions. it Id., was ¶19. Applying Brown, the court of appeals remanded with directions to suppress Felix's signed statement, the buccal swab provided at the police station, and his clothing seized at the jail as not sufficiently attenuated from the illegal arrest.18 ¶20 The court of appeals affirmed the Id., ¶20. circuit court's decision to admit the knife and any evidence obtained from the green Chrysler. Id., ¶¶21-22. According to the court of appeals, the knife was admissible because it was seized in a search conducted pursuant to Kudick's valid consent. Id., ¶21. The court of appeals did not remand to suppress the evidence obtained from the green Chrysler because the police had probable cause to search and did not need a search warrant to seize the vehicle. Id., ¶22. ¶21 The State petitioned this court for review, which we granted. The State asks this court to resolve whether under 18 The court of appeals declined to address Felix's argument that both of his statements were involuntary and that his Miranda waiver at the police station was invalid because the court of appeals remanded for suppression on other grounds. Felix, No. 2010AP346-CR, ¶1 n.1. 13 No. 2010AP346-CR Article I, Section 11 the Harris rule or the three-factor Brown attenuation analysis governs the suppression of obtained following an arrest in violation of Payton. also asks this court to determine, under the evidence The State applicable analysis, whether Felix's signed statement and the buccal swab he provided at the police station, and Felix's clothes that were obtained at the jail must be suppressed.19 III. STANDARD OF REVIEW ¶22 prong This court reviews a motion to suppress under a two- analysis. State v. Eason, 2001 WI 98, ¶9, 245 19 Felix did not file a cross-petition in this court for review. While he argued before the circuit court and the court of appeals that his statements were involuntary and his Miranda waiver invalid, he did not raise these issues in his briefs or at oral argument before this court. In fact, in Felix's brief he clarified that he "is no longer arguing before this court that his statement to [the detective] was involuntary due to police misconduct." The circuit court suppressed the statement Felix made in his yard because he had not been given Miranda warnings, but concluded that it was voluntary. The circuit court denied Felix's motion to suppress his signed statement at the police station because it concluded that his arrest was lawful and that prior to making this statement he was given and waived his Miranda rights. The circuit court did not address Felix's argument that his signed statement at the police station was involuntary. The court of appeals declined to address these issues because it remanded to suppress Felix's signed statement on other grounds. Felix, No. 2010AP346-CR, ¶1 n.1. Felix did not ask this court, in his briefs or at oral argument, for a remand to the court of appeals to allow it to address these issues. Thus, we do not address the voluntariness of Felix's statements or the validity of his Miranda waiver nor do we remand to the court of appeals to address these issues because Felix apparently has abandoned these arguments and has not asked for a remand to the court of appeals. 14 No. Wis. 2d 206, 629 N.W.2d 625. "First, we review 2010AP346-CR the circuit court's findings of historical fact, and will uphold them unless they are clearly erroneous. of constitutional Whether police Second, we review the application principles conduct to violated those a facts de defendant's novo." Id. constitutional rights under Article I, Section 11 of the Wisconsin Constitution and the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures presents a question of constitutional fact that this court independently reviews. State v. Griffith, 2000 WI 72, ¶23, 236 Wis. 2d 48, 613 N.W.2d 72. IV. ANALYSIS ¶23 Because Felix raised multiple challenges to statements and evidence that police obtained following his arrest, we begin by clarifying the evidence at issue before this court. The State the appealed the court of appeals decision regarding suppression of Felix's written, signed statement at the police station, the buccal swab that he provided at the police station, and Felix's clothing that police seized at the jail. These are the only matters at issue in this appeal. ¶24 The State urges this court to interpret Article I, Section 1120 consistent with the Fourth Amendment21 and to adopt 20 Article I, Section 11 of the Wisconsin Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." 15 No. the Harris rule. erroneously The State asserts that the court of appeals concluded that this conflicted with the Harris rule. 84 2010AP346-CR Wis. 2d 587, Smith, 131 court's previous decisions The State notes that Laasch, Wis. 2d 220, and Walker, 154 Wis. 2d 158, were decided before Harris, and that Anderson, 165 Wis. 2d 441, involved an unlawful entry and search, which is not covered by the Harris rule. Instead, the State asserts that the court of appeals was bound by its decision in State v. Roberson adopting the Harris rule. 2005 WI App 195, 287 Wis. 2d 403, 704 N.W.2d 302, aff'd on other grounds, 2006 WI 80, 292 Wis. 2d 280, 717 N.W.2d 111. usual past The State asks this court to continue with its practice and interpret Article I, Section 11 consistent with the Fourth Amendment. ¶25 asserts If this that court Felix's adopts signed the Harris statement, rule, the the buccal State swab he provided at the police station, and Felix's clothing seized at the jail are all admissible. While Harris dealt with a defendant's statements, the State argues that its rationale also applies to Felix's clothes, and presumes that the Harris rule applies to the buccal swab. According to the State, the court of appeals erroneously concluded that Felix's clothes must be 21 The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 16 No. suppressed even under Harris by relying on a 2010AP346-CR Massachusetts Supreme Judicial Court case, Commonwealth v. Tyree, 919 N.E.2d 660 (Mass. 2010), which the State asserts incorrectly interprets Harris and is distinguishable. Even if the clothing should have been suppressed under Harris, the State argues that the error was harmless because there is no reasonable probability that Felix would have decided not to plead guilty, given the rest of the evidence against him, and the significantly reduced exposure to jail time he received with the plea. If this court declines to adopt the Harris rule and instead applies Brown, then the State asserts that Felix's statements and the buccal swab he provided at the police station are sufficiently attenuated and admissible.22 ¶26 Felix argues that the Brown attenuation analysis governs the suppression of the statement and the other physical evidence because the Harris rule conflicts with this court's decisions and Article I, Section 11. According to Felix, applying a Brown analysis in this case is consistent with this court's decisions in Laasch, 84 Wis. 2d 587, Smith, 131 Wis. 2d 220, and Walker, 154 Wis. 2d 158, which predate Harris. Felix further argues that applying Brown is consistent with Anderson, 165 Wis. 2d 441, and Phillips, 218 Wis. 2d 180, which applied the Brown analysis after the United States Supreme Court decided Harris. Felix asserts that this court should conclude, 22 The State makes no argument in regard to the application of the Brown attenuation analysis to Felix's clothes. 17 No. 2010AP346-CR as it did in Eason, 245 Wis. 2d 206, that this is a situation in which the United States Supreme Court's interpretation of the Fourth Amendment does Section 11 rights. not protect a defendant's Article I, Felix finds it significant that this court did not adopt Harris in Anderson because, even though that case involved the fruit of unlawful searches, it would be "peculiar" to have different analyses for unlawful searches and seizures. If this court adopts Harris, then Felix argues that his clothing should be suppressed because the Harris rule applies only to statements and not tangible evidence, see Tyree, 919 N.E.2d at 679-82. According to Felix, if this court concludes that the clothing should have been suppressed, it is unclear whether the harmless error test applies and this court should decline to apply it here. attenuation He argues that, if this court applies the Brown analysis, then the signed statement, the buccal swab, and his clothing should be suppressed. ¶27 We first examine whether Brown or Harris governs the suppression statement at of the issue physical here. evidence Both of and these written, decisions signed address whether evidence or statements obtained following some unlawful police activity must be suppressed. Brown, 422 U.S. at 591-92; New York v. Harris, 495 U.S. 14, 17 (1990). Specifically, the Harris rule applies to evidence and statements obtained from a defendant outside of the home where police had probable cause to arrest the defendant, but arrested him in his home without a warrant. 495 U.S. at 21. Thus, two threshold matters we need 18 No. 2010AP346-CR to resolve are whether the police had probable cause and whether Felix was unlawfully arrested. ¶28 We conclude that police had probable cause to arrest Felix prior to going to Felix's apartment. Police have probable cause to arrest if they have "information which would lead a reasonable police officer to believe that the defendant probably committed a crime." West v. State, 74 Wis. 2d 390, 398, 246 N.W.2d 675 (1976); see also Wis. Stat. § 968.07(1)(d). Felix does not dispute that police had probable cause to arrest him. All of the witnesses that police interviewed led them to Felix. Specifically, we note that T.W. stated that after the fight she heard Felix say "I'm going to prison. think I killed him." Also, T.W. I stabbed someone. told police that she I was "pretty positive" or about "98" percent sure that Felix stabbed someone. Kyle Leder told police that he heard Felix yell "stab" and "I'm not going to prison" before Felix left in a green Chrysler. Police had ample information to lead a reasonable officer believe to that Felix probably committed a crime by stabbing Davids. ¶29 Regarding the legality of Felix's arrest, the United States Supreme Court held in Payton v. New York that, even if police have probable cause to arrest a defendant, entering the defendant's home without a warrant violates the Fourth Amendment. to accomplish an arrest 445 U.S. 573, 590 (1980). Even before the U.S. Supreme Court decided Payton, this court held in Laasch, 84 Wis. 2d at 595-97, that a warrantless entry and arrest in a defendant's home violates Article I, Section 11 and 19 No. the Fourth Amendment. 2010AP346-CR See Payton, 445 U.S. at 575 n.3 (citing Laasch with approval). In this case, the premise that Felix's arrest was unlawful in violation of Payton underlies both of the parties' briefs and the State's petition asking this court to decide the novel issue of whether Brown or Harris applies to the suppression of Consistent with deciding, that evidence the obtained parties' Felix's after a positions, arrest at his Payton we home violation. assume, without without an arrest warrant was in violation of Payton, 445 U.S. at 590. ¶30 Because statement, unlawful the police buccal arrest, obtained swab, Felix and argues Felix's his that clothing this suppressed under the exclusionary rule. written, signed following evidence must his be The exclusionary rule provides for the suppression of evidence that "is in some sense the product of the illegal governmental activity." State v. Knapp, 2005 WI 127, ¶22, 285 Wis. 2d 86, 700 N.W.2d 899 (quoting Nix v. Williams, 467 U.S. 431, 444 (1984)). "The primary purpose of the exclusionary rule 'is to deter future unlawful police conduct.'" Id. (quoting United States v. Calandra, 414 U.S. 338, 347 (1974)). It is a judicially-created rule that is not absolute, but rather requires the balancing of the rule's remedial objectives with the "substantial social costs exacted by the exclusionary rule." Id., ¶¶22-23 (quoting Illinois v. Krull, 480 U.S. 340, 352-53 (1987)). tangible poisonous and intangible tree, or, in evidence other 20 This rule extends to both that words, is the evidence fruit of the obtained "by No. exploitation of" the illegal government 2010AP346-CR activity. Id., ¶24 (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)). ¶31 In Brown, the United States Supreme Court set forth the following three-factor test for whether evidence obtained following unlawful police conduct must be suppressed under the exclusionary rule as the fruit of the poisonous tree, or whether it is admissible as sufficiently attenuated from the illegality: (1) "[t]he temporal proximity" between the illegal activity and the evidence, (2) "the presence of intervening circumstances," and (3) "the purpose and flagrancy of the official misconduct." 422 U.S. at 603-04. ¶32 After Brown was decided in 1975, and before the United States Supreme Court decided Harris in 1990, this court applied the Brown attenuation analysis in Smith and Walker, which involved the suppression of evidence obtained from a defendant outside of the home following an arrest in violation of Payton. In Smith, police had probable cause to arrest, but unlawfully entered Smith's home and arrested him without a warrant or the presence of any exigent circumstances in violation of Article I, Section 11 and the Fourth Amendment. Smith later confessed This court suppressed during the 131 Wis. 2d at 232-35. an interrogation. statements under Id. Brown at in 226. an abbreviated analysis based on the State's concession that if the arrest was unlawful, then Smith's statements would be suppressed as insufficiently attenuated from the unlawful arrest. 241-42. 21 Id. at No. ¶33 2010AP346-CR In Walker, this court stated that Brown governed the analysis of the lineup identifications made after Walker was unlawfully arrested from the backyard of his home in violation of the Fourth Amendment prohibitions articulated in Payton and Oliver v. United States, 466 U.S. 170, 180 (1984).23 Walker, 154 Wis. 2d at 182-87. Police did not have an arrest warrant, but this that court assumed Walker for burglary. police Id. had at probable 184. cause Walker was to arrest positively identified by several eyewitnesses to the burglaries in a lineup the morning after his arrest. Id. at 162-63. Because this court lacked the necessary information in the record to examine the lineup under the Brown factors, we remanded to the circuit court to conduct a Brown analysis. ¶34 Id. at 187. After this court decided Smith and Walker, the United States Supreme Court decided Harris, 495 U.S. 14. Court held that even if an arrest violated There the Payton, evidence obtained from the defendant outside of the home while in lawful police custody is not the product of the illegal arrest, so long as police had probable cause to arrest. evidence need not be analyzed under Brown. Id. at 21. Id. at 18-19. Such In Harris, police had probable cause to arrest Harris for murder, but police went to Harris's apartment, entered and arrested him without a warrant. Id. at 15-16. 23 The Supreme Court accepted Oliver provides that Fourth Amendment protections extend to the curtilage of the home, which includes "the land immediately surrounding and associated with the home." Oliver v. United States, 466 U.S. 170, 180 (1984). 22 No. 2010AP346-CR the trial court's finding that Harris did not consent to the police officers' entry and thus he was arrested in violation of Payton. police Id. at 17. station, rights, must Harris argued that his statement at the after he was be suppressed unlawful arrest. given it waived his the fruit was Miranda Id. at 16. ¶35 because and of his The United States Supreme Court held that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Id. at 21. analysis The Supreme Court stated that the Brown "attenuation is only appropriate where, as a threshold matter, courts determine that 'the challenged evidence is in some sense the product (quoting of illegal United governmental States v. Crews, 445 activity.' U.S. 463, Id. 471 at 19 (1980)). Harris's statement, which police obtained while Harris was in legal custody at the police station, and after he was given and waived his Miranda rights, did not require suppression because it was not the product of the unlawful arrest or of any further illegal governmental activity. ¶36 We are bound to Id. follow the United States Supreme Court's interpretation of the Fourth Amendment that sets the minimum protections afforded by the federal constitution. v. Ward, 2000 WI 3, ¶39, 231 Wis. 2d 723, 604 State N.W.2d 517. However, Felix urges this court to interpret Article I, Section 11 in a manner that provides more deterrence of and protection 23 No. 2010AP346-CR against unlawful activities and seizures than that provided by the Harris particularly language rule. reluctant in interpreted As both Article we to have do so provisions.24 I, Section previously given the Rather, 11 in accord noted, nearly we we identical have with are the usually United States Supreme Court's interpretation of the Fourth Amendment.25 We have more often interpreted the Wisconsin Constitution differently than the federal constitution in regard to Article I, Sections 7 and 8 than in regard to Article 1, Section 11.26 "On only one occasion in our development of Article I, Section 11 jurisprudence have we required a showing different from that required by the Supreme Court's Fourth Amendment jurisprudence. 24 State v. Fry, 131 Wis. 2d 153, 172, 388 N.W.2d 565 (1986) ("But for a few inconsequential differences in punctuation, capitalization and the use of the singular or plural form of a word, the texts of art. I, sec. 11 and the fourth amendment are identical."), overruled on other grounds by State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97; see supra notes 20 and 21. 25 We have interpreted Article I, Section 11 consistent with the Fourth Amendment in the following: Dearborn, 327 Wis. 2d 252, ¶27; State v. Ferguson, 2009 WI 50, 317 Wis. 2d 586, 767 N.W.2d 187; State v. Arias, 2008 WI 84, ¶¶1924, 311 Wis. 2d 358, 752 N.W.2d 748; State v. Malone, 2004 WI 108, ¶15, 274 Wis. 2d 540, 683 N.W.2d 1; State v. Guzman, 166 Wis. 2d 577, 586-87, 480 N.W.2d 446 (1992); Fry, 131 Wis. 2d at 172, overruled on other grounds by Dearborn, 327 Wis. 2d 252; State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210 (1977); State v. Williams, 47 Wis. 2d 242, 177 N.W.2d 611 (1970). 26 See e.g., State v. Dubose, 2005 WI 126, ¶¶39-40, 285 Wis. 2d 143, 699 N.W.2d 582 (Article I, Section 8); State v. Knapp, 2005 WI 127, ¶¶57-62, 285 Wis. 2d 86, 700 N.W.2d 899 (Article I, Section 8); State v. Hansford, 219 Wis. 2d 226, 24243, 580 N.W.2d 171 (1998) (Article I, Section 7). 24 No. 2010AP346-CR We did so in regard to our development of a good faith exception under Article I, Section 11." State v. Ferguson, 2009 WI 50, ¶17 n.6, 317 Wis. 2d 586, 767 N.W.2d 187. This remains true today.27 ¶37 The sole exception is Eason, in which this court adopted a modified good faith exception to the exclusionary rule for officers' reasonable reliance on a no-knock search warrant. 245 Wis. 2d 206, ¶¶2-3. We began by examining this court's long history of interpreting Article I, Section 11 consistent with the United States Supreme Court's interpretation of the Fourth Amendment. Id., ¶¶38-52. This court continued on that path in Eason by following the United States Supreme Court's evolving interpretation of the Fourth Amendment, but interpreting Article I, Section 11 as requiring some minimal additional assurances before triggering the good faith exception to the exclusionary rule. Id., ¶¶60-63. ¶38 customary We find no reason in this case to depart from our practice of interpreting 27 Article I, Section 11 in Justice Bradley's dissent asserts that Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978), is "another occasion in which we interpreted Article I Section 11 more expansively than the existing interpretation of the Fourth Amendment." Dissent, ¶131. To the contrary, in Laasch, this court explained that our conclusion was premised on both the Fourth Amendment and Article I, Section 11 of the Wisconsin Constitution. 84 Wis. 2d at 595. We stated that our conclusion was "in accord with decisions of this court and of the United States Supreme Court." Id. Laasch is not an example of a situation in which this court has diverged from the United States Supreme Court's interpretation of the Fourth Amendment on the basis of additional protections provided under Article I, Section 11. 25 No. accord with the Fourth Amendment. 2010AP346-CR As such, we adopt the Harris exception to the exclusionary rule because we are persuaded by the United States Supreme Court's well-reasoned decision.28 ¶39 The Harris rule appropriately balances the purposes of the exclusionary rule and the Payton rule with the social costs associated with suppressing evidence. The Payton rule was premised on the Fourth Amendment's protection of the "sanctity of the home." at 17. Payton, 445 U.S. at 588-89, 601; Harris, 495 U.S. The purposes of the exclusionary rule are to deter police misconduct and ensure judicial integrity by refusing to rely on evidence obtained through police misconduct, Eason, 245 Wis. 2d 206, ¶44, but the primary purpose is deterrence, Knapp, 285 Wis. 2d 86, ¶22. The laudable goal of deterring police misconduct is not pursued at all costs. As this court noted in its analysis of the good faith exception to the exclusionary rule, there are "substantial excluding relevant evidence. ¶40 social costs" associated with Eason, 245 Wis. 2d 206, ¶31. The United States Supreme Court reiterated in Harris that "[t]he penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve." 495 U.S. at 17. The Harris rule is based on the Supreme Court's 28 As the court of appeals noted, it has applied the Harris rule in a number of cases. Felix, No. 2010AP346-CR, ¶14 n.5. For example, the court of appeals discussed and applied Harris in State v. Roberson, 2005 WI App 195, ¶¶16-23, 287 Wis. 2d 403, 704 N.W.2d 302, which this court affirmed on other grounds, 2006 WI 80, 292 Wis. 2d 280, 717 N.W.2d 111. 26 No. conclusion from a that suppressing defendant outside evidence of the and home 2010AP346-CR statements following obtained a Payton violation does not further the purpose of the Payton rule: "the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime." Id. The Payton rule is vindicated through the suppression of any evidence or statements obtained from the defendant while officers are still inside the defendant's home unlawfully. Id. at 20. The Fourth Amendment does not require courts to exclude all evidence or forgo prosecuting a defendant following unlawful police conduct, even if doing so might have some deterrent effect. Id. sufficiently from deterred Under the Harris rule, police are violating Payton because "the principle incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found, or statements taken, inside the home." There is no compelling reason to go further and Id. suppress evidence lawfully obtained from a defendant outside of the home. ¶41 The Harris Court drew a line at the entrance to the home because that is the heart of the Fourth Amendment and the focus of Payton. Id. at 17-18. Harris provides a narrow rule: where police had probable cause before the unlawful entry and arrest, an arrest in violation of Payton does not require the suppression of evidence obtained from the defendant outside of the home, such as statements obtained after Miranda warnings and 27 No. the waiver of those rights. For this narrow 2010AP346-CR category of evidence, it is not necessary to do a Brown analysis where it is clear as it is here that the evidence is not derived from the illegality. See id. at 19-20. In other situations, this court and the United States Supreme Court continue to require a Brown analysis to following ensure police illegality. that evidence misconduct are or not statements the obtained product of the Additionally, as the Supreme Court noted in Harris, evidence will still be suppressed if it was "the product of coercion, if Miranda warnings were not given, or if there was a violation (1981)." of the Id. at rule of 20. Edwards The v. Harris Arizona, rule is 451 a U.S. 477 common-sense limitation on the exclusionary rule where excluding statements and evidence does not serve the deterrent purpose of the exclusionary rule or the purpose of the Payton rule. ¶42 While this court's decisions in Smith and Walker, which preceded Harris, applied a Brown attenuation analysis to determine the admissibility of evidence that is covered by the Harris rule, we follow the United States Supreme evolving interpretation of the Fourth Amendment.29 29 Court's In accord Felix argues that our decision in Laasch, 84 Wis. 2d 587, also conflicts with the Harris rule, but we disagree. Laasch did not involve a Brown analysis or even the suppression of evidence. In Laasch, this court held that the circuit court lacked personal jurisdiction over Laasch as a result of the unlawful entry and arrest. Id. at 597. This part of Laasch's holding was later modified by State v. Smith, 131 Wis. 2d 220, 240, 388 N.W.2d 601 (1986) (holding that an unlawful arrest does not deprive a circuit court of personal jurisdiction). 28 No. 2010AP346-CR with Harris, we hold that where police had probable cause to arrest before the unlawful entry and warrantless arrest from a defendant's home, this violation of Payton does not require the suppression of evidence obtained from a defendant outside of the home, such as statements obtained after the defendant was given and waived his Miranda rights. ¶43 This holding does not conflict with this court's post- Harris decisions in Anderson, 165 Wis. 2d 441, and Phillips, 218 Wis. 2d 180, contrary to Felix's assertions. We applied a Brown attenuation analysis in those cases because they involved the fruits of an unlawful entry and search. 441 (involving from a the consent suppression search of of Anderson, 165 Wis. 2d physical Anderson's evidence where, home obtained following unlawful searches by police, Anderson was lawfully arrested in his home pursuant to an arrest warrant and later confessed and consented to a search of his home); Phillips, 218 Wis. 2d 180 (involving the search Phillips' of suppression of bedroom evidence where obtained police following obtained consent while unlawfully inside of his home). a Phillips' As stated above, the Harris rule applies where the only illegal police conduct is an unlawful entry and arrest in violation of Payton, not where the evidence Contrary to may be tied the court of to an unlawful appeals' search conclusion by police. and Felix's argument, it is not "peculiar" to limit the application of the Harris rule to cases where the only illegal police conduct is a Payton violation. bright-line rule Rather it is logical to develop a limited, for a narrow 29 category of evidence obtained No. after an unlawful arrest in violation of Payton, 2010AP346-CR but where police had probable cause to arrest, that we can say as a matter of law does not "bear a sufficiently close relationship to the underlying illegality." ¶44 We now apply See Harris, 495 U.S. at 19. the Harris rule to determine whether there should be suppression of Felix's written, signed statement at the police station, the buccal swab provided at the police station, and his clothing seized at the jail. As we stated above, the Harris rule applies because police had probable cause to arrest Felix prior to going to his apartment, and consistent with the position of the parties, we assume, without deciding, that police unlawfully arrested Felix at his home without an arrest warrant in violation of Payton. ¶45 See supra ¶¶28-29. Felix's signed statement at the police station, after he was given and waived his Miranda rights,30 falls squarely under Harris's holding that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." 21. he Harris, 495 U.S. at Felix does not argue that his statement or the buccal swab provided at the police station must be suppressed under Harris but rather that the attenuation analysis of Brown must be 30 As we noted above, Felix challenged the voluntariness of his statement and the validity of his Miranda waiver before the circuit court and court of appeals, but because he does make those arguments before this court, we do not address them. See supra note 19. 30 No. applied. 2010AP346-CR Like Felix's written, signed statement at the police station after he was given and waived his Miranda rights, the buccal swab is admissible under the Harris rule, because it was obtained from Felix while he was lawfully in police custody at the police station. ¶46 Felix's clothing that police seized at the jail is also admissible under a logical extension of the Harris rule. Felix argues that the Harris rule does not cover the clothes he was wearing when he was arrested, and that suppressed as the fruit of his unlawful arrest. they must be Felix argues that the warrantless arrest led directly to the seizure of his clothing because if the police had taken the time to get a warrant, he would have obtained his clothing. changed and police would not have This argument is based on the type of but-for causality that the United States Supreme Court rejected in Hudson v. Michigan, 547 U.S. 586 (2006). Hudson informs our interpretation of The reasoning in the Harris rule, and supports applying it to the seizure of Felix's clothes at the jail. ¶47 In Hudson, the Court explained that "exclusion may not be premised on the mere fact that a constitutional violation was a 'but-for' cause of obtaining evidence." Id. at 592. After highlighting the "substantial social costs" of the exclusionary rule, "which sometimes include setting the guilty free and the dangerous at large," the Supreme Court reiterated that "[w]hether the exclusionary sanction is appropriately imposed in a particular case . . . is an issue separate from the question 31 No. whether the Fourth Amendment rights of the 2010AP346-CR party seeking to invoke the rule were violated by police conduct." (quoting United States v. Leon, (internal quotations omitted). 468 U.S. Id. at 591-92 897, 906 (1984)) The Hudson Court declined to apply the exclusionary rule for a violation of the knock-andannounce rule, because the minimal deterrent effect was far outweighed by the social costs of suppressing the evidence. Id. at 599. ¶48 When we examine Harris in this light, it is clear that the Harris Court drew a line at the entrance to the home and concluded that there was sufficient deterrence for Payton violations by suppressing evidence and statements that police obtained while unlawfully inside of the home and admitting evidence police lawfully obtained outside of the home. 495 U.S. at 17-20. Thus, we interpret Harris to Harris, apply to statements and evidence that police obtain from the defendant outside of the home. Under our interpretation of Harris, Felix's clothing that police seized at the jail when he was being booked is admissible. This interpretation is supported by the language and rationale we have noted in Harris and Hudson. 32 No. 2010AP346-CR We also note that several other states have interpreted Harris in this way.31 ¶49 Additionally, Felix's clothing was not taken as evidence until after Felix was lawfully in police custody and was given and waived his Miranda rights. The police did not even clothing develop detective a reason noticed some to seize "red Felix's spots" questioning at the police station. on Felix's until shirt the during That fact distinguishes this case from Tyree, 919 N.E.2d at 682, in which the Massachusetts Supreme Judicial Court held that Harris did not apply to the shoes the defendant was wearing when unlawfully arrested in his home. In Tyree, police noticed that the defendant's shoes matched the shoeprints at the scene of the crime while they were still unlawfully in his home. Id. at 668. The Massachusetts Supreme Judicial Court found it significant that police noted "the potential evidentiary relevance of a piece of a suspect's clothing while they [were] still unlawfully in the home." at 682. Id. As we explained above, the Supreme Court's reasoning in 31 People v. Alexander, 571 N.E.2d 1075, 1084 (Ill. App. Ct. 1991) ("While Harris refers only to 'statements,' we see no reason why the rule it enunciates should not apply as well to other evidence obtained outside the home, as the argument for excluding statements was that they were the 'fruits of an illegal arrest' rather than that there was some basis for distinguishing between statements and other evidence."); People v. Watkins, 31 Cal. Rptr. 2d 452, 459 n.8 (Cal. Ct. App. 1994) ("Since the arrest itself is proper, physical evidence taken from the defendant's person at the police station need not be suppressed."); Timmons v. State, 734 N.E.2d 1084, 1086 (Ind. Ct. App. 2000) (concluding that the Harris rule applies to both statements and tangible physical evidence). 33 No. 2010AP346-CR Hudson supports our reading of the Harris rule as applicable to physical evidence obtained from the defendant outside of the home, as well as to statements made after the defendant was given and waived his Miranda rights. In this case, that includes the clothes Felix was wearing when he was arrested that police seized at the jail. ¶50 Therefore, we conclude that, under Harris, there is no basis for suppressing Felix's written, signed statement after he was given and waived his Miranda rights at the police station, the buccal swab that he provided at the police station, and his clothing that police seized at the jail. V. CONCLUSION ¶51 We continue our usual practice of interpreting Article I, Section 11 of the Wisconsin Constitution in accord with the United States Amendment. Supreme Thus, we Court's adopt interpretation the Harris of the exception Fourth to the exclusionary rule for certain evidence obtained after a Payton violation. We hold that, where police had probable cause to arrest before Felix's home suppression of the in unlawful entry, violation statements a warrantless of Payton outside of requires the home arrest from neither the after Miranda rights were given and waived, nor the suppression of physical evidence obtained from Felix outside of the home. Assuming without deciding that Felix's warrantless arrest from his home was in violation of Payton, we conclude that, pursuant to the Harris rule, the following evidence that police obtained outside of the home is admissible: Felix's signed statement, made after 34 No. 2010AP346-CR Felix was given and waived his Miranda rights, the buccal swab obtained at the police station, and Felix's clothing seized at the jail, as well as any derivative evidence. ¶52 Therefore, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction. By the Court. The decision reversed. 35 of the court of appeals is No. ¶53 DAVID T. PROSSER, J. (concurring). 2010AP346-CR.dtp In Payton v. New York, 445 U.S. 573, 576 (1980), the United States Supreme Court held that "the Fourth Amendment to the police Constitution . . . prohibits the United from States making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." (Emphasis added.) The Court added that it had "no occasion to consider the sort of emergency or dangerous situation, described in our cases as 'exigent circumstances,' that would justify a warrantless entry into a home for the purpose of either arrest or search." Id. at 583 (emphasis added). ¶54 The assumption majority that opinion police in officers this from case the is based Everest on the Metro and Wausau police departments violated the rule in Payton when they arrested Devin Felix (Felix) at the apartment of Dean Kudick in Wausau. Because I do not agree with this assumption, I write separately to explain my position even though I join the majority opinion. FACTUAL BACKGROUND ¶55 Police On September 8, 2007, officers of the Everest Metro Department were called residence at about 1:10 a.m. to a Schofield, Wisconsin There had been a serious fight at an underage drinking party, and when officers arrived at the residence they found a man lying in the street with multiple stab wounds and a shirt soaked with blood. The victim, Nathaniel Davids, 18, died soon after he was rushed to a local hospital. 1 No. ¶56 2010AP346-CR.dtp The fight was observed by partygoers and neighbors but after the stabbing, many of them quickly fled the scene. Police immediately determined that they had a potential homicide on their hands. other They began to gather information and called in Everest Metro officers, including Detective Sergeant Dennis Halkoski, who became the lead investigator, and Officer Daniel Goff, both of whom had been at home. Eventually, when suspicion focused on Devin Felix, the Everest Metro police also brought in Wausau living in Wausau. officers because Felix was thought to be The involvement of Wausau police was not only helpful but also necessary to avoid any jurisdictional issues in the event of an arrest. ¶57 The record describes how Detective Sergeant Halkoski interviewed continuing various until witnesses after 7:00 beginning a.m. about Other 3:00 officers, Sergeant Terrence Peterson, also conducted interviews. a.m. and including At some point, Officer Goff and an Everest Metro captain left Schofield to drive to Wausau where they met up with Wausau Officer Mark Klein. The two Everest Metro officers arrived at approximately 7:00 a.m. ¶58 The three officers were looking for Felix, his brother Kylie, and the green Chrysler that Felix purportedly used to escape. They first went to an address on East Wausau Avenue where they expected to find Kylie, who had been at the party and may have left with his brother. The officers found nothing, as no one appeared to be living at that address. 2 No. ¶59 The officers next went to an 2010AP346-CR.dtp address on Prospect Avenue where Keith Felix, the boys' father, was living. They found him, interviewed him, and then followed his suggestion to look for Felix at 617 Fulton Street, a two-story building where Felix was supposed to be living in the basement. ¶60 the At approximately 8:00 a.m. officers began to gather at Fulton Street address. A green Chrysler Felix's mother was spotted in the driveway. registered to Detective Sergeant Halkoski was notified to come from Schofield, and additional back-up officers were enlisted from Wausau. ¶61 perimeter After eight officers had arrived and created a secure around the house, Detective Sergeant Halkoski and Officer Goff approached the entrance to the basement at the rear of the house with their guns drawn. ¶62 open. Halkoski knocked hard on the back door which popped The officers saw Felix apparently sleeping in a recliner, five to six feet from an open doorway at the bottom of the steps to the basement. and come out, The officers ordered Felix to put up his hands which he did. He handcuffed, and put in a squad car. was placed under arrest, The police did not have an arrest warrant for Felix. ANALYSIS ¶63 In analyzing the facts to determine whether there was a Payton violation, both the majority opinion and the court record require close scrutiny. ¶64 First, there is no dispute that police officers had probable cause to arrest Devin Felix for the murder of Nathaniel 3 No. Davids. 2010AP346-CR.dtp The police had more statements than those described in the majority opinion, and they had a motive: that Nate Davids was beating up Felix's younger brother Kylie when Felix intervened. ¶65 Second, Everest Metro police obtained a search warrant for the Schofield party residence at 5:44 a.m. from Marathon County Circuit Judge Gregory Grau. This search warrant named a "suspect," Devin Felix, and relied for its probable cause on statements made by some of the same witnesses who provided the basis for Marathon Felix's County arrest. assistant The warrant district was prepared attorney who by came a to Schofield in the early hours of September 8. ¶66 Third, Everest Metro and Wausau police officers actively, continuously, searched for Devin Felix after he became the focus of the investigation. Felix was an armed homicide suspect who fled the crime scene, was overheard saying he had killed someone, and reportedly vowed he would not go to prison. To find this suspect, police pursued every lead. When they arrived at the Fulton Street address, they did not know how many people were there and whether any persons in the house would be in danger or possibly taken hostage. ¶67 Fourth, there is no dispute that when Detective Sergeant Halkoski firmly knocked on the back door at 617 Fulton Street, it "popped open" ("I knocked at the door and the door popped open."). This testimony was supported by Officer Goff: Q. And he knocked on the door and what happened? A. The thing opened. 4 No. Q. Okay. The thing being the door? A. Yes, the door opened. knocked on it. ¶68 Dean 2010AP346-CR.dtp Kudick, who It just swung open when he had rented the first floor and basement for nearly four years, testified that the back door popped open regularly: Q. And when someone knocks on the back door, does the door stay closed all the time? A. I'm not sure what you mean by that. Q. Okay. open? If you knock on the door, will it pop A. It is possible it could pop open. to this day. Q. So it had in the past? A. It still does Yes, it had. . . . . Q. A. No. ¶69 Goff So it doesn't take much pressure then . . . Fifth, neither Detective Sergeant Halkoski nor Officer entered the house to effect the arrest. Halkoski was asked: Q. A. No. ¶70 gun Did you cross the threshold or enter the house? On cross examination, Halkoski was asked whether his was beyond the doorjamb as responded that it was. Q. Outside or inside? A. Outside. 5 he was covering Felix. He No. 2010AP346-CR.dtp Consequently, there is no evidence that the officers ever broke the plane of the threshold before or during the arrest. ¶71 Several officers did enter the house after Felix had been arrested, for a sweep of the premises for officer safety. The officers explained that they did not know the whereabouts of Kylie Felix and they detected movement on the back porch where Kylie and another brother usually slept. conduct a search for evidence until The officers did not they received written consent from the lessee of the apartment. ¶72 In sum, the police acted conscientiously, and there was no violation of Payton unless the rule in Payton is extended to cover a "constructive entry" and the existence of exigent circumstances is ruled out. Such a conclusion would require a change in Wisconsin law. ¶73 evidence, In his trial brief supporting his motion to suppress Felix contended that his warrantless arrest "from inside the home and at gunpoint" violated the federal and state constitutions. He cited Payton Wis. 2d 587, 267 N.W.2d 278 (1978). and Laasch v. State, However, the brief went on: The Payton case did emphasize the sanctity of the home and made reference to the threshold as being one point of significance. However, subsequent federal cases have had the opportunity to examine the circumstances by which the defendant's presence was acquired, outside and across the threshold. It has been uniformly held that a warrantless arrest will be illegal if the defendant's presence outside was acquired by coercion. See [LaFave], Search and Seizure at section 6.1, note 188. Wisconsin has no reported case directly on point. However, several circuits of the U.S. Court of Appeals have examined this issue. The universal conclusion is 6 84 No. 2010AP346-CR.dtp that the 4th Amendment could be too easily circumvented if law enforcement is allowed to simply point a gun at a home and order the occupants out, in order to achieve a valid warrantless arrest. The requirement of a judicially-reviewed warrant is so fundamental that this can not be tolerated. . . . . It is clear that while the [officers] physically remained outside the doorway, the reach of the officers extended into the residence by the use of firearms and by the use of commands to exit. ¶74 The LaFave treatise cited by the defendant reads in part: The cases involving arrests made on the premises (in the broad sense of that term) outside rather than inside the threshold deserve some attention at this point, for quite similar considerations govern there. . . . [T]he warrantless arrest will be illegal if the defendant's presence outside was acquired by coercion. Wayne R. LaFave, Search and Seizure, Basis For Entry to Arrest § 6.1 at 306-07 (4th ed. 2004). ¶75 This theory of "constructive entry" merits careful examination in light of the actual facts and language of the Payton decision. ¶76 Payton v. New York was decided in 1980, majority opinion written by Justice John Paul Stevens. 445 U.S. at 573, 574. with a Payton, Over and over the opinion emphasizes warrantless physical entry of a private residence. As the Court reiterated just "physical entry of the home is which the wording of the directed." United States v. Court, 407 U.S. 297, 313. procedure minimizes the danger of that sort. 7 For example: a few years ago, the the chief evil against Fourth Amendment is United States District . . . [T]he warrant of needless intrusions No. 2010AP346-CR.dtp Payton, 445 U.S. at 585-86. Judge Leventhal [in Dorman v. United States, 435 F.2d 385, 389 (D.C. Cir. 1970)] first noted the settled rule that warrantless arrests in public places are valid. He immediately recognized, however, that . . . "Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment." . . . . Judge Leventhal concluded that an entry to arrest and an entry to search for and seize property implicate the same interest in preserving the privacy and the sanctity of the home, and justify the same level of constitutional protection. Id. at 587-88 (emphasis added). [A]ny differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual's home. . . . [Nowhere] is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home. Id. at 589 (emphasis added). [T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. Id. at 590. ¶77 The dissent of Justice Byron White also emphasized entry: "The Court today holds that absent exigent circumstances officers may never enter a home during the daytime to arrest for a dangerous felony unless they have first obtained a warrant." Id. at 603 (White, J., dissenting) (emphasis added). decision rests, in large measure, 8 on the "Today's premise that No. warrantless arrest entries constitute invasion of personal privacy." ¶78 The facts statements. in a 2010AP346-CR.dtp particularly severe Id. at 615 (emphasis added). Payton are fully aligned with these Police used crowbars to break open the door and enter Payton's apartment. Id. at 576 (majority opinion). had not obtained a warrant." Id. "They When police went to Obie Riddick's home (in the companion case), "his young son opened the door." Id. at 578. [Riddick] under arrest." Police "entered the house and placed Id. a search without a warrant. ¶79 They made an arrest and conducted Id. The Court cited ten state court decisions, including Id. at 575 n.3.1 Laasch, to support its opinion. In all these cases, police entered a house or apartment without a warrant, sometimes forcing open or kicking provides a representative example. arrested in her without down Wis. 2d at 588. later, when she apartment, the "[T]he a home, she found Laasch defendant warrant." Thereafter, she was released. returned door. Laasch, was 84 Thirteen days "police officers waiting inside her apartment," having been admitted by her fiveyear-old son. Id. at 589. apartment, without a warrant. She Id. was arrested, inside the The court quoted the Supreme Court's decision in Johnson v. United States, 333 U.S. 10, 14 1 See State v. Cook, 564 P.2d 877 (Ariz. 1977); People v. Ramey, 545 P.2d 1333 (Cal. 1976); People v. Moreno, 491 P.2d 575 (Colo. 1971); State v. Jones, 274 N.W.2d 273 (Iowa 1979); State v. Platten, 594 P.2d 201 (Kan. 1979); Commonwealth v. Forde, 329 N.E.2d 717 (Mass. 1975); State v. Olson, 598 P.2d 670 (Or. 1979); Commonwealth v. Williams, 396 A.2d 1177 (Pa. 1978); State v. McNeal, 251 S.E.2d 484 (W. Va. 1978); Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978). 9 No. 2010AP346-CR.dtp (1948), that "The right of officers to thrust themselves into a home is . . . a grave concern." Laasch, 84 Wis. 2d at 594. Then it concluded: In the absence of exigent circumstances . . . the entry of one's dwelling to effect an arrest is subject to a warrant requirement no less exacting than that applicable where the entry is made to effect a search for one's papers and effects. . . . . We conclude that, absent exigent circumstances, the entry of one's dwelling without consent to effect a warrantless felony arrest on probable cause, is unlawful. Id. at 595-96 (footnote omitted). ¶80 The Payton Court also cited six United States Court of Appeals cases supporting its decision. n.4.2 Each of these cases also Payton, 445 U.S. at 575 involved actual entry into private residential property without a warrant. ¶81 dueling The Payton decision stands out as one in which the majority and effort buttressing common law dissenting their preceding the opinions positions adoption by of devote considerable reference the Fourth to English Amendment. Justice Stevens relied heavily on Lord Edward Coke who wrote that "[N]either the Constable, nor any other can break open any house for the apprehension of the party suspected or charged with the felony. . . ." Id. at 594 n.37 (quoting 4 E. Coke, 2 See United States v. Houle, 603 F.2d 1297 (8th Cir. 1979); United States v. Reed, 572 F.2d 412 (2d Cir. 1978); United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978); United States v. Killebrew, 560 F.2d 729 (6th Cir. 1977); United States v. Shye, 492 F.2d 886 (6th Cir. 1974); Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970). 10 No. 2010AP346-CR.dtp Institutes 177). William Blackstone and other commentators had different views. However, none of the opinion writers in Payton cited common law authority for "constructive entry." Indeed, if "constructive entry" had been at issue, the result in Payton might have been different. ¶82 Payton has been narrowly interpreted by the Supreme Court since 1980. "[T]he rule in Payton was designed to protect the physical integrity of the home." U.S. 14, 17 (1990). in that case New York v. Harris, 495 "Payton itself emphasized that our holding stemmed from the 'overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.'" Id. (quoting Payton, 445 U.S. at 601). ¶83 In Minnesota v. Olson, 495 U.S. 91, 95 (1990), the Court said: "The purpose of the [Payton] decision was not to protect the person of the suspect but to protect his home from entry in the absence of a magistrate's finding of probable cause." ¶84 As will be explained, "constructive entry" to effect an arrest that is, treating police conduct outside the home the same as police conduct inside the home when police have broken a plane or crossed the threshold of the home to make an arrest without a warrant is not based on the common law that existed when the Fourth Amendment was adopted. It is grounded on a very different theory than the theory articulated in Payton. ¶85 The Fourth Amendment reads as follows: The right of the people to be secure in their persons, houses, papers, and effects, against 11 No. 2010AP346-CR.dtp unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. ¶86 By its plain terms, the Fourth Amendment governs searches and seizures, including seizures of the person, i.e., arrests. In United States v. Watson, 423 U.S. 411 (1976), the Supreme Court held that a police officer may, without warrant, arrest a person who is believed by the officer, upon probable cause, to be guilty of a felony. Id. at 415-17. Payton placed a geographic limitation on this power to arrest. It identified a place the suspect's home where probable cause, no matter how compelling, warrant, is not except sufficient in exigent to make an arrest circumstances. without Absent a exigent circumstances, police are required to have a warrant or consent before they may enter a suspect's home to make an arrest. ¶87 power to Analytically, make an an arrest, arrest warrant but does it not may confirm create it. police With probable cause, the police already have that power. If the police but come to a suspect's home with probable cause no warrant, they may surround the house and stay there until they get a warrant. They do not have to absent themselves from the area until they get a warrant. They may arrest their suspect as he comes to the house, and they may arrest him if he attempts to leave the house. The police know and the suspect knows that he is not free to go somewhere else simply because the police do not have a warrant. If he leaves, he will be arrested. 12 No. ¶88 The warrant, then, serves as a 2010AP346-CR.dtp judicially-approved ticket to enter the house to arrest or search. ¶89 When the purpose of the warrant is to facilitate an arrest, the warrant is not really protecting a suspect's privacy so much as it is protecting the sanctity of the home. supra. See ¶31, The sanctity of the home, in turn, must yield when the suspect creates exigent circumstances. ¶90 This analysis is grounded in the law of trespass, as perfectly illustrated in Silverman v. United States, 365 U.S. 505 (1961). conversations device." Defendants "overheard were by convicted means of an at trial electronic based on listening Id. at 506. The instrument in question was a microphone with a spike about a foot long attached to it, together with an amplifier, a power pack, and earphones. The officers inserted the spike under a baseboard in a second-floor room of the vacant house and into a crevice extending several inches into the party wall, until the spike hit something solid "that acted as a very good sounding board." The record clearly indicates that the spike made contact with a heating duct serving the house occupied by the petitioners, thus converting their entire heating system into a conductor of sound. Conversations taking place on both floors of the house were audible to the officers through the earphones, and their testimony regarding these conversations, admitted at the trial over timely objection, played a substantial part in the petitioners' convictions. Id. at 506-07 (emphasis added). ¶91 The Supreme Court declared that "Eavesdropping accomplished by means of such a physical intrusion is beyond the pale of even those decisions in which a closely divided Court has held that eavesdropping accomplished 13 by other electronic No. 2010AP346-CR.dtp means did not amount to an invasion of Fourth Amendment rights." Id. at 509-10. States, 343 The Court observed that in On Lee v. United U.S. 747 (1952) in trespass was committed." contrast to Silverman "no Silverman, 365 U.S. at 510 (quoting On Lee, 343 U.S. at 751) (internal quotation marks omitted).3 added that the petitioner's "absence premises" of was a a physical "vital United States, 277 U.S. 438 (1928). But in Silverman, "the officers invasion factor" in of Olmstead It the v. Silverman, 365 U.S. at 510. overheard the petitioners' conversations only by usurping part of the petitioners' house or office a premises." ¶92 heating system which was an integral part of the Id. at 511. The Court's reliance on trespass and property law in interpreting the Fourth Amendment was suspect when a government search invaded a person's reasonable expectation of privacy but the person had no discernible property interest to serve as an obstacle to the invasion. The dilemma came to a head in Katz v. United States, 389 U.S. 347 (1967), where the court suppressed evidence obtained from eavesdropping by means of an electronic listening device attached to a public telephone booth. ¶93 Justice Potter Stewart, who was part of the majority in Payton, wrote the majority opinion in Katz, taking issue at once with the questions posed to the Court: 3 Even the concurrences by Justice Douglas and Justices Clark and Whittaker recognize the Court making a distinction based solely upon invasion into property. Silverman v. United States, 365 U.S. 505, 512-13 (1961). 14 No. 2010AP346-CR.dtp A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth. B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution. Katz, 389 U.S. at 349-50. ¶94 The Court rejected making two critical points. Fourth Amendment incantation of Id. at 350. problems the phrase this formulation of the First, "the correct solution of is not necessarily 'constitutionally promoted protected by area.'" Second, "the Fourth Amendment cannot be translated into a general constitutional 'right to privacy.'" Fourth issues, Amendment "protects individual privacy Id. against The certain kinds of governmental intrusion, but its protections . . . often have nothing to do with privacy at all." Id. These critical passages are frequently overlooked because of Justice Stewart's oft-quoted aphorism that "the Fourth Amendment protects people, not places," id. at 351, and his critique of property interests as the basis for certain Fourth Amendment protections: It is true that the absence of . . . penetration was at one time thought to foreclose further Fourth Amendment inquiry for that Amendment was thought to limit only searches and seizures of tangible property. But "[t]he premise that property interests control the right of the Government to search and seize has been discredited." Id. at 352-53 (citations omitted). decisions link Fourth Amendment privacy. 15 As a result, many Court violations to individual No. ¶95 2010AP346-CR.dtp But Katz did not consistently send that signal. The Court said: [O]nce it is recognized that the Fourth Amendment protects people and not simply "areas" against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure. Id. at 353 (emphasis added). means that the Fourth context of trespass. Amendment does The phrase "not simply 'areas'" Amendment does not apply only in the However, by its explicit terms, the Fourth protect some "areas" e.g., "houses" and that protection is based largely on trespass law. ¶96 In addition, the Court emphasized that Katz was a search case when it said: "We do not deal in this case with the law of detention or arrest under the Fourth Amendment." Id. at 353 n.13 (emphasis added). ¶97 cases The Court has moved away from property law in search involving sophisticated technology. For instance, in Kyllo v. United States, 533 U.S. 27, 34 (2001), the majority was troubled by technology that permitted the police to "obtain[] by sense-enhancing interior of technology the home," any information which it described prototypical . . . area of protected privacy." though the Kyllo Court recognized that regarding the as Id. at 34. police did the "the Even not physically enter the home, the Court stressed the importance of protecting the intimate details of the home from what could have been accomplished, at the time of the adoption of the Fourth 16 No. 2010AP346-CR.dtp Amendment, only by physical intrusion into the home. Id. at 38- 40. ¶98 Both the majority opinion, id. at 40, and Justice Stevens' dissent, id. at 43, focused on protecting the home of the defendant. They were concerned that technology, in effect, had permitted the police to enter and search the home without physical intrusion. Hence, the decision did not eliminate the Fourth Amendment's link to property law. ¶99 The Court recently reiterated and reemphasized this link in a case involving a GPS device placed on an automobile. In United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012), the Court was accused of resolving a case involving "a 21stcentury surveillance technique" by resorting tort law" involving trespass to chattels. concurring). to "18th-century Id. at 957 (Alito, J. But the majority author, Justice Antonin Scalia, was unapologetic: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a "search" within the meaning of the Fourth Amendment when it was adopted. . . . The text of the Fourth Amendment reflects its close connection to property. . . . . [O]ur Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. . . . . [F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas ("persons, houses, 17 No. papers, and effects") it enumerates. repudiate that understanding. 2010AP346-CR.dtp Katz did not Id. at 949-50 (majority opinion) (footnote omitted). ¶100 In her concurrence, Justice Sonia Sotomayor observed that "Katz's reasonable-expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it." ¶101 In an Id. at 955. informative article in the New England Law Review, Professor Steven B. Dow makes a case for constructive entry as a constitutional doctrine. Steven B. Dow, "Step Outside, Please": Warrantless Doorway Arrests and the Problem of Constructive Entry, 45 New Eng. L. Rev. 7 (2010). Part of his argument reads as follows: At one point the Court's "Fourth Amendment jurisprudence was tied to common-law trespass," but for more than half a century the Court has made it clear that "[i]nherent Fourth Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law." More recently, the Court has expressly "decoupled violation of a person's Fourth Amendment rights from trespassory violation of his property." Any lingering doubts about whether Fourth Amendment privacy rights stop at the physical line that marks a home's boundaries should have come to an end with the Court's 2001 decision in Kyllo v. United States. Id. at 19 (footnotes omitted). ¶102 Contrary Court's opinion continuing in to Professor Jones recognition of Dow's analysis, unquestionably the Fourth affirms the Supreme the Court's Amendment's roots in property law and the Court's willingness to adhere to a property rationale except in searches involving sophisticated technology. 18 No. 2010AP346-CR.dtp The Supreme Court has not adopted a constructive entry doctrine in cases of arrest. ¶103 If the Court were to treat arrests outside the home the same as arrests inside the home after police entry without a warrant, Harris the as Court well as would be Payton. creating Harris law inconsistent permits police to with obtain voluntary confessions from suspects off premises after an arrest is made in the home in violation of Payton. Unless Harris were repudiated, adoption of the doctrine of constructive entry in arrest cases would incentivize police to enter houses without a warrant because, by doing so, they would be able to seize their suspects in the home, be able to prosecute them even after unlawful arrests (if they had probable cause to arrest), and still retain the possibility of obtaining voluntary confessions from these suspects off premises after giving them Miranda warnings. ¶104 Constructive entry to effect an arrest is not grounded in the English common law. established bright line It represents a departure from the rule against breaking a plane to physically enter a protected premises, and it would, if adopted, create uncertainty in the law about what police conduct outside the home is so "coercive" or "deceptive" to a suspect inside the home that it compels or induces the suspect to come out and surrender and evidence. To thus requires some deter "constructive sort of entry" in suppression arrest cases of in which the police have probable cause to arrest, the law might have to suppress more than subsequent confessions and physical 19 No. evidence. 2010AP346-CR.dtp It might have to bar prosecution of persons seized "unlawfully" inevitably both lead inside to an and outside expansion the of home. This exigent would circumstances authorizing entry without a warrant.4 ¶105 The court assumes a Payton violation for its analysis in this case. While this assumption is understandable given how the case evolved, it is nonetheless somewhat troubling because the court adopts Constitution. and follows Harris under the Wisconsin Harris is simply inconsistent with the notion of a Payton "violation" on the facts of this case where there was no physical entry into the home. may someday decide that Moreover, the Supreme Court Harris does not apply to physical evidence like bloody clothing that a suspect brings with him when he comes out of the house. Even though the Supreme Court has repeatedly moved beyond property law and "place" in a search context, it is unlikely to stray from Payton principles and property law when it comes to the seizure of a person in the home. ¶106 Payton was more about places than people. focusing on preferable people, for both surprise suspects and even and coercion police is officers However, sometimes than the violence that may accompany service of a judicially sanctioned warrant. ¶107 For the reasons stated, I respectfully concur. 4 A persuasive argument circumstances in this case. can 20 be made for exigent No. 21 2010AP346-CR.dtp No. ¶108 ANN WALSH BRADLEY, J. 2010AP346-CR.awb (dissenting). To be clear, contrary to the concurrence's assertions, Payton v. New York, 445 U.S. 573 (1980) was violated when officers arrested Felix in his home without a warrant. ¶109 The question before this court is not whether there was a violation of Payton, as the concurrence suggests. The State has conceded a Payton violation at every stage of this case, and during oral argument in this court, it expressly disavowed the argument advanced by the concurrence.1 ¶110 should Rather, interpret our the state question we constitution address as is whether providing we greater protection of our liberty interests than the protection provided 1 The concurrence opines that Payton was not violated when the officers, with guns drawn, ordered Felix out of his home where he was placed in handcuffs. It suggests that Felix was arrested "outside the home" because the arresting officers never "broke the plane of the threshold [of Felix's home] before or during the arrest." Concurrence, ¶¶103, 70. This suggestion is mistaken. The flaw in the concurrence's analysis is that it confuses the legal concept of arrest with the factual, physical act of handcuffing a suspect. "[T]he standard used to determine the moment of arrest is whether a reasonable person in the defendant's position would have considered himself or herself to be in custody, given the degree of restraint under the circumstances." State v. Kiekhefer, 212 Wis. 2d 460, 485, 569 N.W.2d 315 (Ct. App. 1997). The State has conceded that the officers' "constructive entry" of Felix's apartment violated Payton (absent exigent circumstances). This concession is on firm footing. See United States v. Saari, 272 F.3d 804 (6th Cir. 2001); Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997); United States v. Maez, 872 F.2d 1444 (10th Cir. 1989); United States v. Curzi, 867 F.2d 36 (1st Cir. 1989); United States v. Al-Azzawy, 784 F.2d 890 (9th Cir. 1985); Scroggins v. State, 633 S.W.2d 33 (Ark. 1982); State v. Dahl, 915 P.2d 979 (Or. 1996); see also City of Sheboygan v. Cesar, 2010 WI App 170, ¶13, 330 Wis. 2d 760, 796 N.W.2d 429. 1 No. by the United States Constitution. 2010AP346-CR.awb The majority answers the question no, embracing the rationale of New York v. Harris, 495 U.S. 14 (1990). ¶111 Because I conclude that the Harris decision does not sufficiently deter illegal government activity and because that decision may instead create powerful new incentives encouraging illegal arrests, I would accord the people of this state greater protection of constitution. their liberty interests under our state Accordingly, I respectfully dissent. I ¶112 The majority "find[s] no reason" to interpret the Wisconsin Constitution any differently than the Supreme Court has interpreted the United States Constitution. ¶38. Majority op., It asserts that "the Harris Court drew a line at the entrance to the home," suppress the and statements following made by Harris, Felix following his warrantless home arrest. it outside declines of his to home Id., ¶48. ¶113 Although the Harris rule pertains only to statements obtained outside the home, the majority goes further. It extends the Harris rule to physical evidence obtained outside the home, even though the physical evidence would not have been seized "but rationale for" appears the to illegal be entry. grounded Id., in the ¶¶25, 46. Harris Its Court's assurances that "there is no compelling reason" to suppress this evidence because suppression would have little deterrent effect. Id., ¶40. II 2 No. ¶114 Unlike the majority, a unanimous 2010AP346-CR.awb court declined to apply the Harris rule in this case. of appeals State v. Felix, Case No. 2010AP346-CR, unpublished slip op. (Wis. Ct. App. Mar. 29, 2011). The court of appeals explained that the 5-4 Harris decision has been the subject of substantial criticism. ¶19 n.9. Id., In particular, it "was the subject of a vigorous dissent" which advanced that the Harris majority's "reasoning amounts to nothing more than an analytical sleight of hand, resting on errors in logic, misreadings of our cases, and an apparent blindness to the incentives the Court's ruling creates for knowing police." and intentional constitutional violation by the Id. (citing Harris, 495 U.S. at 21-22 (Marshall, J., dissenting)). ¶115 The various Harris grounds jurisprudence, Search and by decision a leading Professor Seizure: has A Wayne also scholar LaFave. Treatise on been of 6 criticized Fourth Wayne the on Amendment R. Fourth LaFave, Amendment § 11.4(b), at 304 (4th ed. 2004) ("The trouble with [Harris], as the Harris dissenters pointed out . . . is that . . . the detrimental consequences of illegal police action . . . do not inevitably cease simultaneously with the illegality itself."). ¶116 Several state courts have criticized the Harris decision and have explicitly refused to apply its rationale to their state constitutions. When the Supreme Court remanded Harris to New York's highest court, for example, the New York court refused to adopt the Supreme Court's rationale. It explained: "We conclude that the Supreme Court's rule does not 3 No. 2010AP346-CR.awb adequately protect the search and seizure rights of citizens of New York. Accordingly, we hold that our State Constitution requires that statements obtained from an accused following a Payton violation must be suppressed unless the taint resulting from the violation has been attenuated." People v. Harris, 570 N.E.2d 1051, 1052-53 (N.Y. 1991). ¶117 Although several states state have courts followed have New split the lead. York's on question, In State v. Mariano, 160 P.3d 1258, 1268 (Haw. Ct. App. 2007), the court of appeals of Hawaii stated: "We cannot condone the parsimonious Fourth Amendment Harris." protection the Supreme Court doled out in Likewise, the Supreme Court of Connecticut concluded that the Harris rule does not provide the protection required by that state's constitution. 233 (Conn. Salamon, 2002), 949 A.2d State v. Luurtsema, 811 A.2d 223, overruled 1092 on (Conn. other grounds 2008). See by State v. also State v. Eserjose, 259 P.3d 172, 178 (Wash. 2011) (concluding that the Harris rule "falls short of the protection afforded by our state constitution"). Indeed, we have previously declined to adopt Harris in the past, even though we were given an occasion to do so. State v. Roberson, 2006 WI 80, 292 Wis. 2d 280, 717 N.W.2d 111. ¶118 Despite the substantial criticism, the majority today embraces the Harris rule and declines to afford greater protection of liberty interests under our state constitution. Both the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution provide that 4 No. "[t]he right of the people their . . . houses . . . shall not officers to have probable cause to be 2010AP346-CR.awb be secure violated." arrest a in Even they suspect, if are required to secure a warrant before effectuating the arrest at the suspect's home. Payton, 445 U.S. 573.2 The warrant requirement reflects the framers' conviction that the decision to effectuate a home arrest should not be made on the spot by a police officer ferreting out engaged crime. in the Rather, competitive the framers enterprise provided that of the decision should be made by a neutral and detached magistrate. Id. at 582, n. 17. ¶119 Absent exigent circumstances, warrantless home arrests are unconstitutional. suppressed Amendment evidence and Constitution.3 to deter For years, obtained Article I, in American violation Section 11 courts of of the the have Fourth Wisconsin One purpose furthered by the exclusionary rule is future constitutional violations by "compel[ling] respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard Elkins v. United States, 364 U.S. 206, 217 (1960).4 it." Deterrence 2 See also Laasch v. State, 84 Wis. 2d 587, 595, 267 N.W.2d 278 (1978) (concluding that both the Fourth Amendment and Article I, section 11 of the Wisconsin Constitution require officers to secure a warrant before arresting a suspect in his or her home). 3 See, e.g., Weeks v. U.S., 232 U.S. 383 (1914); Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923). 4 Another purpose served by the exclusionary rule is the preservation of the integrity of the judicial process. State v. Hess, 2010 WI 82, ¶¶3, 64-65, 327 Wis. 2d 524, 785 N.W.2d 568. 5 No. 2010AP346-CR.awb through suppression of illegally obtained evidence is necessary to safeguard the constitutional rights of all citizens.5 ¶120 Driven by the purpose of deterring illegal government activity, the United States Supreme Court has recognized the reality evidence. that it is often necessary to suppress derivative This type of evidence is not obtained during the actual illegal search or seizure, but rather, it is the later product of an initial illegal intrusion. Derivative evidence is often referred to as "fruit of the poisonous tree."6 5 In Brinegar v. United States, 338 U.S. 160 (1949), Justice Jackson cogently explained why suppression of illegally obtained evidence was necessary to safeguard not only the rights of criminal defendants, but also, the rights of the public at large: Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear. Courts can protect the innocent against such invasions indirectly and through the medium of excluding evidence obtained against those who frequently are guilty. Id. at 181 (Jackson, J., dissenting). 6 For the origin of this phrase, States, 308 U.S. 338, 341 (1939). 6 see Nardone v. United No. 2010AP346-CR.awb ¶121 In the landmark case Brown v. Illinois, 422 U.S. 590 (1975), the United States Supreme Court acknowledged that not all derivative evidence must be suppressed deterrent purpose of the exclusionary rule. evidence may be so attenuated from the to fulfill the Some derivative underlying illegal conduct that "the deterrent effect of the exclusionary rule no longer justifies its cost." in part). refusal Id. at 609 (Powell, J., concurring Nevertheless, the Court indicated that persistent to suppress fruits of the poisonous tree would "substantially dilute[]" the "effect of the exclusionary rule."7 Id. at 602. ¶122 The United States Supreme Court has repeatedly rejected per se rules which would provide that suppression of certain categories of derivative evidence is no longer justified by the cost of deterrence.8 Rather, derivative evidence must be suppressed, when a deciding court must whether make a determination "on the facts of each case" and guided by three 7 Brown v. Illinois, 422 U.S. 590, 602-03 (1975) ("Arrests made without warrant or probable cause, for questioning or 'investigation,' would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expendent of giving Miranda warnings. Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a 'cure-all,' and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to 'a form of words.'"). 8 See, e.g., Brown, 422 U.S. at 603 ("While we therefore reject the per se rule which the Illinois courts appear to have accepted, we also decline to adopt any alternative per se or 'but for' rule."); see also Wong Sun v. United States, 371 U.S. 471, 487 (1963); United States v. Leon, 468 U.S. 897, 911 (1984). 7 No. 2010AP346-CR.awb factors set forth in Brown: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Id. at 603-04. ¶123 Harris marked a significant departure from this line of cases. The Harris opinion gave a nod toward the "familiar proposition that the indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality." 17. However, proposition" outside the the Court altogether proceeded when threshold of to it came the home Harris, 495 U.S. at abandon to that "familiar statements following an procured illegal warrantless home arrest. ¶124 Instead of applying the familiar attenuation test, the Harris Court adopted the following categorical rule: Statements obtained outside the home following a warrantless arrest are not "the product of illegal governmental activity." Id. at 19. Accordingly, "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by a defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Id. at 21. The Harris Court's per se rule is a startling departure from Brown's attenuation analysis. See LaFave, Search & Seizure § 11.4(b), at 304. ¶125 As justification for its new rule, the Harris Court declared that reduction in its holding deterrence: would "[T]he 8 not lead principal to any significant incentive to obey No. 2010AP346-CR.awb Payton still obtains: the police know that a warrantless entry will lead to the statements taken, statements like suppression inside Harris', value would be minimal." the of any home. moreover, evidence If the we found, did incremental or suppress deterrent 495 U.S. at 20. ¶126 As the dissent in Harris quipped, "The Court's saying it may make it law [for purposes of the Fourth Amendment], but it does not dissenting). deterrence make it Indeed, would not true." the be Id. Harris diminished at 29 Court's is (Marshall, J., declaration belied by the that facts underlying that case.9 ¶127 The following example, proffered by the dissent, illustrates how officers have much to gain and little to lose when they illegally perform a warrantless home arrest in the wake of Harris: [T]he officer knows that if he breaks into the house without a warrant and drags the suspect outside, the suspect, shaken by the enormous invasion of privacy he has just undergone, may say something incriminating. . . . [T]he officer envisions the following best-case scenario if he chooses to violate the Constitution [by making a warrantless home arrest in violation of Payton]: He avoids a major expenditure of time and effort, ensures that the suspect will not escape, and procures the most damaging evidence of 9 In Harris, the state court concluded that the police department had a policy of knowingly and intentionally violating Payton, and that the policy was "a device used to avoid restrictions on questioning a suspect until the police had strengthened their case with a confession." People v. Harris, 72 N.Y. 2d 614, 622 (1988). Under these circumstances, there can be no doubt that the suppression of confessions obtained following Payton violations would help deter the department's policy of knowingly and intentionally violating Payton. 9 No. 2010AP346-CR.awb all, a confession. His worst-case scenario is that he will avoid a major expenditure of effort, ensure that the suspect will not escape, and will see evidence in the house (which would have remained unknown absent the constitutional violation) that cannot be used in the prosecution's case in chief. Id. at 32. rather than majority Ultimately, the dissent persuasively argued that deterring actually illegal "create[d] government powerful conduct, incentives officers to violate the Fourth Amendment." the Harris for police Id. III ¶128 I agree with the Harris dissenters that "[a] regime that suppresses only some fruits of constitutional violations" does not go far enough to "eliminate the incentives to violate the Constitution." Id. at 23. I find the Harris dissent's clear explanation of the necessity of continuing to apply Brown much more persuasive than the rationale for abandoning Brown proffered by the Harris majority. ¶129 In the wake of Harris, I fail to see how the exclusionary rule serves its purpose as an effective deterrent of warrantless home arrests. and Harris, but wishing to An officer familiar with Payton avoid the hassle of arrest warrant, has little incentive to do so. securing an Rather, the officer need only usher the suspect out of the house as quickly as possible so that anything the suspect accidentally blurts out will be admissible under Harris's categorical rule. ¶130 Harris's limitation on the exclusionary rule may be the law of the land with regard to the Fourth Amendment of the United States Constitution. But that fact does not compel this 10 No. 2010AP346-CR.awb court to similarly engraft this limitation of our liberty onto Article I, Section 11 of the Wisconsin Constitution. ¶131 If we declined to adopt the Harris rationale, it would not be the first time we interpreted Article I, Section 11 of our state constitution to provide greater protection of liberty interests than are provided by the United States Supreme Court's existing interpretation of the Fourth Amendment. The majority acknowledges that in State v. Eason, 2001 WI 98, ¶¶60-63, 245 Wis. 2d 206, 629 N.W.2d 625, we concluded that the federal good faith exception to the exclusionary rule did not sufficiently deter illegal government activity. Majority op., ¶37. But contrary to its assertion, Eason is not the only case in which we declined to follow lockstep the Supreme Court.10 The majority's own discussion admits of another occasion in which we interpreted Article I Section 11 more expansively existing interpretation of the Fourth Amendment. than the See majority op., ¶29 (discussing Laasch v. State, 84 Wis. 2d 587, 595-97; 267 N.W.2d 278 (1978)). 10 See also State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899 (excluding evidence under Article I, Section 8 of the Wisconsin Constitution, even though it would not have been excluded under the United States Supreme Court's interpretation of the Fifth Amendment). In Knapp, we stated: "This 'lock-step' theory of interpreting the Wisconsin Constitution no broader than its federal counterpart appears to be aimed at promoting uniformity in the law. Uniformity may be advantageous, but it cannot be indispensable. It is the prerogative of the State of Wisconsin to afford greater protection to the liberties of persons within its boundaries under the Wisconsin Constitution than is mandated by the United States Supreme Court." Id., ¶59. 11 No. 2010AP346-CR.awb ¶132 Here, the officers had probable cause to arrest Felix. See id., ¶28. Additionally, they had ample time to secure a warrant for his arrest, given that they secured a warrant to search the crime scene, and the affidavit in support of that warrant named Felix as the suspect. despite ample opportunity and the Id., ¶8. Nevertheless, constitutional protections afforded to the home, the officers apparently decided that there was no need to secure an arrest warrant prior to confronting Felix at his apartment.11 ¶133 Under these circumstances, the officers' illegal conduct should not be sanctioned with a categorical exception to the exclusionary rule. I conclude that the Harris per se rule is an ineffective deterrent for Payton violations, and that any advantage of the rule does not outweigh the potential loss of liberty to the people of this state. I would remand to the circuit court to determine whether, under the Brown attenuation analysis, Felix's signed statement, the buccal swab, and Felix's clothing were sufficiently attenuated from the illegal arrest 11 The officers procured additional evidence against Felix when they searched the apartment his family was renting. Apparently, a man named Dean Kudick rented the apartment and sublet it to the Felix family, and it was Kudick who consented to the officers' request to search. See majority op., ¶11. This court has not been asked to decide whether Kudick had common authority over the apartment so that he could consent to the search, see Georgia v. Randolph, 547 U.S. 103 (2006), and accordingly the majority does not decide that issue. 12 No. that they should not be suppressed.12 2010AP346-CR.awb Accordingly, I respectfully dissent. ¶134 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent. 12 See State v. Walker, 154 Wis. 2d 158, 187-88, 453 N.W.2d 127 (1990) (remanding for the fact-finding necessary to conduct the Brown attenuation analysis). 13
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