State v. Weber

372 Wis.2d 202

887 N.W.2d 554

STATE of Wisconsin, Plaintiff–Respondent–Petitioner,

v.Richard L. WEBER, Defendant–Appellant.

No. 2014AP304–CR.

Supreme Court of Wisconsin.

Argued Sept. 6, 2016.

Decided Nov. 29, 2016.

For the plaintiff-respondent-petitioner the cause was argued by Nancy A. Noet, assistant attorney general, with whom on the brief(s) was Brad D. Schimel, attorney general.

For the defendant-appellant, there was a brief and oral argument by Kara L. Mele, assistant state public defender.

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 This is a review of an unpublished decision of the court of appeals, State v. Weber, No. 2014AP304–CR, unpublished slip op., 365 Wis.2d 606, 2015 WL 5840706 (Wis.Ct.App. Oct. 8, 2015) (per curiam), which reversed the Wood County circuit court's¹ order denying defendant Richard Weber's (“Weber”) motion to suppress evidence of drunk driving, possession of marijuana, and possession of drug paraphernalia, and remanded the case to the circuit court with directions to vacate its judgment of conviction, permit Weber to withdraw his plea, and grant Weber's motion to suppress evidence. Weber, unpublished slip op., ¶¶ 1, 10.

¶ 2 A deputy of the Wood County sheriff's department attempted to pull Weber over on a public highway by activating the emergency lights on his vehicle after observing that Weber's vehicle had a defective high-mounted brake lamp and watching the vehicle weave over the highway's fog line. When Weber failed to yield to the traffic stop, the deputy pursued Weber into his driveway and apprehended him in his garage. The question before this court is whether the deputy's warrantless entry into Weber's garage and subsequent arrest of Weber violated the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution, or whether the need for a warrant was obviated by the exigent circumstance of the deputy's “hot pursuit” of a fleeing suspect who had committed jailable offenses. See, e.g., United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).

¶ 3 We conclude that the deputy's warrantless entry into Weber's garage and subsequent arrest of Weber were constitutional because they were justified by the exigent circumstance of hot pursuit of a fleeing suspect who had committed jailable offenses. The deputy had probable cause to believe that Weber had committed two jailable offenses, immediately pursued Weber, and performed a limited entry into Weber's open garage for the purpose of preventing Weber's continued flight. Under these specific circumstances, the deputy's actions were constitutionally reasonable. Accordingly, we reverse the decision of the court of appeals.

I. FACTUAL BACKGROUND

¶ 4 On April 20, 2012, Deputy Calvin Dorshorst (“Deputy Dorshorst”) of the Wood County sheriff's department and Weber were driving in separate vehicles in Arpin, Wisconsin. Deputy Dorshorst observed that the high-mounted brake lamp on Weber's vehicle was not working properly and saw Weber's vehicle “weave from its lane of travel” “[o]ver the white fog line.” Deputy Dorshorst activated his vehicle's emergency lights in an attempt to conduct a traffic stop. Weber did not, however, stop his vehicle. Instead, he drove about 100 feet, turned into a driveway, and pulled into an attached garage. Deputy Dorshorst followed the vehicle and parked 15 to 20 feet behind it but outside of the garage with his vehicle's emergency lights still on. At some point during this process, Deputy Dorshorst “contact[ed] dispatch notifying them [he] had a traffic stop.”

¶ 5 Weber and Deputy Dorshorst exited their vehicles at about the same time. Weber began moving toward a door of the attached house inside the garage. Deputy Dorshorst ran to the front of his vehicle and in the direction of the garage, where he witnessed Weber “walking slowly” and “somewhat staggering” up steps inside the garage leading to the door to the house. As Deputy Dorshorst ran toward Weber he told Weber to stop and that he needed to speak with him.² Weber did not stop but instead continued up the steps to the house. Deputy Dorshorst entered the garage and “secured [Weber's] arm” as Weber was “just inside his [house's] door” at the top of the steps. Weber stopped and Deputy Dorshorst explained that he had stopped Weber because of the defective high-mounted brake lamp on Weber's vehicle. Deputy Dorshorst asked Weber to accompany him to Weber's vehicle so that Deputy Dorshorst could “point out exactly the reason for the stop and which light was defective.” During this time Weber tried to pull away from Deputy Dorshorst and enter his house. Deputy Dorshorst noticed that Weber had “slow, slurred speech” and “glassy, bloodshot eyes.” Additionally, Deputy Dorshorst could smell “a strong odor of intoxicants.”

¶ 6 Weber and Deputy Dorshorst eventually exited the garage and walked back outside, where Deputy Dorshorst asked Weber if he had been drinking. Weber informed Deputy Dorshorst that “he was drinking at his residence and a while after drinking a couple of beers, he left and went to the Village of Arpin, at which time ... he went to another place and was drinking.” Weber was “unable to identify” the location in Arpin to which he had traveled. After consuming “a few drinks” there, Weber explained, he had returned to his home. Weber informed Deputy Dorshorst that he thought he had had “way too much” alcohol.

¶ 7 Deputy Dorshorst asked Weber to perform field sobriety tests, but Weber refused. Weber then tried to leave and reenter his garage, but Deputy Dorshorst advised Weber he was not free to do so. Weber “aggressively pushed into [Deputy Dorshorst's] chest with his head” around the same time that a second deputy pulled into the driveway. Deputy Dorshorst told Weber a second time that he was not free to leave. Weber “continued to resist,” and the two deputies “escorted the defendant to the ground and secured his arms.” Weber was put in handcuffs and placed under arrest.

¶ 8 The deputies searched Weber and he consented to a search of his vehicle. In the vehicle the deputies found “a tinfoil square folded up with [a] green leafy vegetable substance inside, which was later tested positive for [tetrahydrocannabinols],” as well as a “metal pipe in the ashtray of the vehicle.” The pipe “had a burned residue inside it” and “smelled of burnt marijuana.”

¶ 9 Weber was eventually taken to a hospital where his blood was drawn. Later analysis of his blood showed a blood alcohol concentration of 0.24.

II. PROCEDURAL BACKGROUND

¶ 10 On July 9, 2012, a criminal complaint was filed against Weber in Wood County circuit court charging him with one count of operating while intoxicated, contrary to Wis. Stat. § 346.63(1)(a) (2011–12),³ tenth and subsequent offense, see Wis. Stat. § 346.65(2)(am) 7. ; one count of operating with a prohibited alcohol concentration, contrary to § 346.63(1)(b), tenth and subsequent offense, see § 346.65(2)(am) 7. ; one count of possession of tetrahydrocannabinols, contrary to Wis. Stat. § 961.41(3g)(e) ; possession of drug paraphernalia, contrary to Wis. Stat. § 961.573(1) ; and resisting an officer, contrary to Wis. Stat. § 946.41(1). On August 14, 2012, an information was filed in the case.

¶ 11 On October 24, 2012, Weber filed a motion collaterally attacking one of his prior convictions for drunk driving on the ground that he had not properly waived his right to counsel when entering his plea in that case. On October 29, 2012, Weber also moved the circuit court

for an order excluding [Weber's] illegal arrest and evidence obtained as a result of the illegal arrest, including but not limited to the following: the blood alcohol concentration, officer's observations including glassy eyes, slurred speech, and odor of intoxicants, statements made by defendant, defendant's refusal to perform field sobriety tests, a metal pipe believed to be drug paraphernalia, and tin foil containing a green leafy vegetable substance believed to be tetrahydrocannabinols.

¶ 12 On February 21, 2013, the circuit court granted Weber's motion collaterally attacking one of his prior convictions but denied Weber's suppression motion. As to the latter ruling, the circuit court concluded that Deputy Dorshorst's actions were justified by the exigent circumstance of hot pursuit. Specifically, Weber was fleeing Deputy Dorshorst's lawful attempts to stop him, Deputy Dorshorst had probable cause to believe that Weber was committing a crime in so doing, and Deputy Dorshorst's pursuit of Weber for this offense was “promptly made and maintained.”

¶ 13 On May 23, 2013, an amended information was filed in the case. On the same day, Weber pleaded no contest to operating with a prohibited alcohol concentration, ninth offense, possession of tetrahydrocannabinols, and resisting an officer. The other two counts against Weber were dismissed. On August 6, 2013, the circuit court sentenced Weber to four years of initial confinement and four years of extended supervision on the operating with a prohibited alcohol concentration charge and ordered that Weber pay costs on the other two offenses. On August 12, 2013, the court's judgment of conviction of Weber was filed. On January 30, 2014, Weber filed a notice of appeal.

¶ 14 On October 8, 2015, the court of appeals reversed the circuit court's order denying Weber's motion to suppress evidence and remanded the case to the circuit court with directions to vacate its judgment of conviction, permit Weber to withdraw his plea, and grant Weber's motion to suppress. Weber, unpublished slip op., ¶¶ 1, 10. The court of appeals explained that “the exigent circumstances requirement means that there must be a potential for danger to life, risk of evidence destruction, or likelihood of escape.” Id., ¶ 7. The court added that the State failed to explain how this standard was met; the State instead “appear[ed] to assume that all hot pursuits qualify as exigent circumstances” but “provide[d] no legal argument to...