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COURT OF APPEALS DECISION DATED AND FILED August 2, 2005 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No.
2004CM1637 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State
of Wisconsin, Plaintiff-Respondent, v. Michael
J. Dyer, Defendant-Appellant. |
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APPEAL from a judgment of the circuit court for Milwaukee County: john f. foley, Reserve Judge. Reversed and cause remanded with directions.
¶1 WEDEMEYER, P.J.[1] Michael
J. Dyer appeals from a judgment entered after he pled guilty to operating
a vehicle while intoxicated, contrary to Wis.
Stat. § 346.63(1)(a) (2003-04).[2] He claims the trial court erred in denying
his motion seeking to suppress evidence based on lack of probable cause and
exigent circumstances. Because there
were no exigent circumstances to support the warrantless arrest in the
curtilage of Dyer’s home, this court reverses and remands with directions to
the trial court to enter an order granting the motion to suppress.
BACKGROUND
¶2 On March 7, 2004, at
approximately 9:49 p.m., Dyer was driving his vehicle home. Off-duty Milwaukee Police Officer Dan
Zielinski, who was driving his own personal vehicle, observed Dyer commit some
traffic offenses, including deviating from his designated lane, failing to use
his turn signal, and driving in the gore area of the freeway.
¶3 Zielinski followed Dyer
three or four miles and observed him park his car in his garage. During the pursuit, Zielinski called “911”
and reported the erratic driver. Police
dispatch sent Police Officer Sandra Welsher to the scene in her squad car. She arrived shortly after Dyer had closed
his garage and walked up the sidewalk to the patio area leading to the back
door of his home. Zielinski yelled to
Welsher, “white male in red sweatshirt” and pointed in the direction of the
sidewalk. Welsher parked the squad,
jumped out, and took off running. She
spotted Dyer walking on the patio area toward the back door and yelled
“Stop.” She identified herself and
explained that there was a report about him driving erratically.
¶4 In response to Welsher,
Dyer, who had just reached his back door, turned and indicated he just got
home. Welsher asked Dyer to accompany
her back to the alley, where Zielinski confirmed that Dyer was the driver he
had followed. Welsher noted that Dyer
smelled of alcohol and had bloodshot eyes.
Dyer refused to perform field sobriety tests. He was arrested for operating a vehicle while intoxicated and
transported for blood tests.
¶5 He subsequently filed a
motion seeking to suppress evidence based on an illegal arrest. At the suppression hearing, both Welsher and
Zielinski testified. Based on their
testimony, the trial court found probable cause existed. Although there was little discussion, it
appears from the record that the trial court also found the State proved that exigent
circumstances existed—specifically, a concern for “quickly dissipating
evidence.” After the trial court’s
ruling, Dyer pled guilty and judgment was entered. He now appeals.
DISCUSSION
¶6 The issue in this case
is whether the trial court properly denied the motion seeking to suppress
evidence. This issue presents a
question of constitutional fact requiring independent appellate review and
application of constitutional principles to the trial court’s findings. See State v. Bermudez,
221 Wis. 2d 338, 346, 585 N.W.2d 628 (Ct. App. 1998). This court will not reverse a trial court’s finding unless they
are clearly erroneous. Id.
at 345. This court then independently
applies those facts to the constitutional standard. Id.
¶7 Dyer argues that his
warrantless arrest violated the Fourth Amendment and, therefore, any evidence
generated therefrom should have been suppressed. The Fourth Amendment to the United States Constitution and art.
I, § 11 of the Wisconsin Constitution prohibits unreasonable searches and
seizures. See State v.
Gonzalez, 147 Wis. 2d 165, 167, 432 N.W.2d 651 (Ct. App. 1988). The warrantless entry of a house for
purposes of search or arrest is presumptively unreasonable. See Welsh v. Wisconsin,
466 U.S. 740, 750 (1984). The
presumption applies to the curtilage of a person’s home. State v. Walker, 154 Wis. 2d
158, 184, 453 N.W.2d 127 (1990).
¶8 In order to overcome the
presumption of the unreasonableness of the seizure, the record must reflect
both that the officers had probable cause to arrest and that exigent
circumstances existed. Welsh,
466 U.S. at 747. Thus, we turn to the
trial court’s findings with respect to those findings.
¶9 The trial court found that
the officers were working as a team and that there was sufficient evidence to
establish probable cause existed to arrest Dyer. This court cannot conclude that the trial court’s probable cause
finding was clearly erroneous.
¶10 Probable cause in the
context of an arrest is well defined in the case law. It refers to that quantum of evidence that would lead a
reasonable police officer to believe that a person probably committed a crime. State v. Paszek, 50 Wis. 2d
619, 624, 184 N.W.2d 836 (1971). The evidence does not have to be sufficient to
prove guilt beyond a reasonable doubt; rather, it must only convince a
reasonable officer that guilt is more than a possibility. Id. at 625.
¶11 Here, Dyer was observed
committing repeated traffic violations for several miles and Zielinski was
concerned that he was intoxicated.
Zielinski saw him unsteady on his feet when he exited his car. Welsher observed the odor of alcohol and
bloodshot eyes. The officers’ combined
information is sufficient to sustain the trial court’s finding that probable
cause existed.
¶12 The next issue, however,
is whether there was any evidence to uphold the trial court’s finding that
exigent circumstances existed. This
court concludes that the trial court’s finding that the exigency of quickly
dissipating evidence was clearly erroneous.
¶13 This court reviews
exigent circumstances using a flexible test of reasonableness under the
totality of the circumstances. State
v. Smith, 131 Wis. 2d 220, 229, 388 N.W.2d 601 (1986). One factor this court considers when
determining whether any exigency exists is the gravity of the offense for which
an arrest is being made. Welsh,
466 U.S. at 750. The state bears the
burden of proving that the warrantless entry into a residence or its curtilage
occurred under exigent circumstances. See State v. Milashoski,
159 Wis. 2d 99, 110-11, 464 N.W.2d 21 (Ct. App. 1990).
¶14 At trial, the State
argued that the exigency was “quickly dissipating evidence.” The trial court agreed. The law, however, does not support this
finding. In Welsh, the
Supreme Court held that
a
warrantless home arrest cannot be upheld simply because evidence of the
petitioner’s blood-alcohol level might have dissipated while the police
obtained a warrant. To allow a
warrantless home entry on these facts would be to approve unreasonable police
behavior that the principles of the Fourth Amendment will not sanction.
Id.
at 754. The violation of the sanctity
of one’s home is “the chief evil against which the wording of the Fourth
Amendment is directed.” Id.
at 748 (citation omitted). Clearly
then, “quickly dissipating evidence” cannot constitute the exigent circumstance
in the instant case.
¶15 Although this arrest
occurred just outside Dyer’s home, the same principles apply to the “curtilage”
of one’s home. Dyer was in his
backyard, just about to enter his back door, when Welsher ordered him to
“Stop.” The State does not address, and
apparently concedes, that Dyer was within the curtilage of his home. Accordingly, this court concludes that Dyer
was within the curtilage of his home.
¶16 The State, perhaps
recognizing the invalidity of the dissipating evidence exigency, raises a
different exigent circumstances argument on appeal––that the exigent
circumstance in this case was “hot pursuit.”
This court cannot agree with the State’s characterization. In Welsh, the Supreme Court
held that “the claim of hot pursuit is unconvincing because there was no
immediate or continuous pursuit of the petitioner from the scene of a
crime.” Id. at 753. The facts in the instant case are slightly
different; nevertheless, this too, was not a “hot pursuit” case.
¶17 Although the record
reflects that off-duty officer Zielinski followed Dyer home after observing him
driving erratically, Zielinski’s pursuit cannot be characterized as “hot
pursuit.” Zielinski was in his own
personal vehicle and testified at the suppression hearing that Dyer did not
appear to know that he was being followed.
This was not a situation where a squad car, with sirens activated, was
chasing down a suspect who had just committed a crime. This is not a case where a suspect was
fleeing from the officers.
¶18 In concluding that this
case does not involve “hot pursuit,” this court also notes that the underlying
offense for which the officers had probable cause was a civil forfeiture
violation. Although this court does not
condone driving while intoxicated, the offense at issue here was a
non-criminal, traffic offense. There is
no evidence that injuries resulted from Dyer’s erratic driving, or that he was
armed or dangerous. When Dyer arrived
at his home, whatever risk arose from his apparent intoxication was
substantially reduced. There was little
remaining threat to the public safety.
There was no longer any potential emergency.
¶19 Based on the foregoing,
this court cannot conclude that the State has proven the existence of any
exigent circumstances. Absent that
proof, the warrantless arrest of Dyer in the curtilage of his home was
unreasonable under the Fourth Amendment to the United States Constitution. Accordingly, the trial court should have
granted Dyer’s motion to suppress.
By
the Court.—Judgment reversed and cause remanded with directions.
This
opinion will not be published. See
Wis. Stat. Rule
809.23(1)(b)4.