State v. Washington

1

State of Wisconsin, Plaintiff-Appellant, v. Dontay J. Washington, Defendant-Respondent.

No. 2022AP1919-CR

Court of Appeals of Wisconsin, District II

March 20, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL from an order of the circuit court for Waukesha County No 2022CF725: MICHAEL O. BOHREN, Judge.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

Before Gundrum, P.J., Grogan and Lazar, JJ.

PER CURIAM.

¶1 The State appeals from an order granting Dontay J Washington's motion to suppress evidence obtained following the warrantless entry into his friend's apartment. We affirm.

I. BACKGROUND

¶2 In April 2022, shortly after 1:00 a.m., police were dispatched to an apartment in Brookfield after a neighbor called 911 to report a potential domestic dispute. According to an officer's testimony at the suppression hearing, the neighbor reportedly informed the 911 dispatcher that there had been "yelling, banging, someone saying ow, and [the neighbor] had attempted to knock on the door themselves, but the arguing inside was so loud that nobody came to the door so they left and then called 9-1-1." Police arrived a few minutes later and located the apartment but did not hear anything coming from the apartment at all-no screaming yelling, nothing. Police knocked on the door for about one minute, knocking five times with pauses in between each knocking. The only noise they heard was a dog barking, which began after they had knocked multiple times. After the fifth knock, F.S.,^[1] who resided in the apartment, opened the door. As soon as the door was open, the first officer, Austin Haase, stepped into F.S.'s apartment.

¶3 Prior to entering the apartment, the officers did not ask F.S. if she was in need of aid, they did not ask her if she was injured, and they did not observe any injuries on her. They did not initially see anyone else in the apartment, and they did not see or hear anything that indicated there was or had been a recent domestic disturbance in her apartment. The only question police asked was whether someone called 911, but they did not wait for F.S. to respond before stepping into her apartment. When officers stepped into the apartment, F.S. stepped back out of their way. It is undisputed that F.S. did not verbally invite the officers to step in, nor did the officers ask for her consent before doing so.

¶4 When the officers entered the apartment and began to perform a protective sweep, they found Washington hiding in a bathroom in the lofted area of the apartment. They also saw what appeared to be illegal drugs in plain view inside the apartment, and the substances were later confirmed to be fentanyl and cocaine. The State charged Washington with two counts of possession with intent to deliver and one count of obstruction.^[2] Washington filed a motion seeking to suppress on the basis that the initial entry into the apartment was unconstitutional under article 1, section 11 of the Wisconsin Constitution and the Fourth Amendment to the United States Constitution.^[3]

¶5 The State opposed Washington's motion, arguing that either the emergency aid or consent exceptions to the Fourth Amendment applied.^[4] The circuit court held an evidentiary hearing during which two of the officers testified. At the conclusion of the hearing, the circuit court found: (1) police responded to F.S.'s apartment in response to a third party's 911 report of a potential domestic disturbance; (2) when police entered the apartment building just after 1:00 a.m., "there [was] no noise coming from the building"; (3) when police arrived outside F.S.'s apartment, there was "no noise either"-"nothing coming from the apartment"; and (4) the officers knocked on the door "I think three times loudly."^[5]

¶6 The circuit court then addressed the critical point when F.S. opened the door and found: (1) "there [were] at least three officers at the door"; (2) as soon as F.S. opened the door, Officer Haase (or another officer) stepped into the apartment; (3) the officer who stepped in was a tall, big person; (4) F.S. was "at the edge of the door," and as the officer walked into the apartment, "she move[d] back"; (5) as the officer passed her, "that's when the conversation or the statement was about a 911 call"; and (6) at that point, F.S. told the officers that her television broke and offered to show the police and started walking toward the bedroom, inviting them to come and see.^[6] It further found that the officers were "immediately moving in" to the apartment as soon as F.S. opened the door-"there wasn't a second of hesitation."

¶7 With respect to whether the emergency aid exception applied, the circuit court concluded it did not because there was not "any emergency depicted whatsoever[.]" It found that although the 911 caller described a loud argument, the caller did not describe "screaming" or a violent episode. The court also noted that when the officers arrived, there was no evidence of an emergency. As far as whether F.S. consented to the initial entry, the circuit court found she did not: "I don't think that she even thought about consenting. I think the officers were on, basically on top of her [as the police] mov[ed] into the apartment. I think she accepted it as a fait accompli and then went on with the officers moving through."

¶8 The circuit court granted Washington's suppression motion. The State appeals.

II. DISCUSSION

¶9 On appeal, the State argues that the emergency aid exception justified the police entry into F.S.'s apartment. It contends that because the police responded to a 911 call for a potential domestic disturbance, it was reasonable for the officers to believe that a person inside might need immediate assistance.^[7]

¶10 "[A]n order granting or denying a motion to suppress evidence" presents "a question of constitutional fact, which requires a two-step analysis" on appellate review. State v. Asboth, 2017 WI 76, ¶10, 376 Wis.2d 644, 898 N.W.2d 541. "First, we review the circuit court's findings of historical fact under a deferential standard, upholding them unless they are clearly erroneous. Second, we independently apply constitutional principles to those facts." State v. Robinson, 2010 WI 80, ¶22, 327 Wis.2d 302, 786 N.W.2d 463 (internal citations omitted).

¶11 The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" and that "no Warrants shall issue, but upon probable cause[.]" U.S. CONST, amend. IV. Article I, section 11 of the Wisconsin Constitution likewise provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated" and that "no warrant shall issue but upon probable cause[.]" WIS. CONST, art. I, § 11.

¶12 "A [search or] seizure conducted without a valid warrant is presumptively unreasonable." State v. Brereton, 2013 WI 17, ¶24, 345 Wis.2d 563, 826 N.W.2d 369 (citing United States v. Ross, 456 U.S. 798, 824-25 (1982)). "[T]he ultimate touchstone of the Fourth Amendment is 'reasonableness[.]'" Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Whether a search is exempt from the warrant requirement involves balancing "the degree to which it intrudes upon an individual's privacy and ... the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U.S. 295, 300 (1999).

¶13 In balancing these interests, courts have concluded that warrantless searches may comport with the Fourth Amendment if a search falls within a recognized exception. See, e.g., Kentucky v. King, 563 U.S. 452, 459 (2011). One well-established exception to the Fourth Amendment is the emergency aid exception. Police may enter a home without a warrant if they reasonably believe such an entry is necessary '"to assist persons who are seriously injured or threatened with such injury.'" Michigan v. Fisher, 558 U.S. 45, 47 (2009) (citation omitted); State v. Ware, 2021 WI.App. 83, ¶20, 400 Wis.2d 118, 968 N.W.2d 752.

¶14 For this exception to apply, the State must prove: (1) the police had an immediate need to provide aid due to an actual or threatened serious injury; and (2) the immediate entry was necessary to provide that aid. See Brigham City, 547 U.S. at 403; see also State v. Rome, 2000 WI.App. 243, ¶16, 239 Wis.2d 491, 620 N.W.2d 225. Whether the police acted reasonably is an objective test. Ware, 400 Wis.2d 118,¶21. "The objective test of the emergency rule requires that the officer be able to point to specific facts that, taken with the rational inferences from those facts, reasonably warranted the intrusion into an area in which a person has a reasonable expectation of privacy." State v. Boggess, 115 Wis.2d 443, 451, 340 N.W.2d 516 (1983).

¶15 The State argues the circuit court erred in finding that there was no emergency. Specifically, it asserts that the officers' act of immediately entering F.S.'s apartment when she opened the door was reasonable because the 911 call reported a potential domestic dispute, the officers responded to the apartment within minutes, and domestic disputes carry the threat of violence. The State asks us to reject the circuit court's finding that no emergency existed based on the police finding the apartment quiet. It contends that in many domestic disputes, police may find it "all quiet" when they arrive and that the quietness does not necessarily mean that there is no emergency. The State says this case is analogous to Boggess, 115...