COURT OF APPEALS
DATED AND FILED
March 29, 2011
A. John Voelker
Acting Clerk of Court of Appeals
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.
IN COURT OF APPEALS
Devin W. Felix,
from a judgment of the circuit court for
¶1 PER CURIAM. Devin Felix appeals a judgment of conviction for second-degree intentional homicide. Felix argues the circuit court erroneously denied his motions to suppress statements and physical evidence obtained after he was arrested in his home without a warrant and his automobile was seized and searched. As to the warrantless arrest, the State abandons the rationale relied upon in the circuit court. Instead, the State argues that even if Felix’s arrest was unconstitutional, federal case law dictates that Felix is not entitled to suppression. We conclude the federal case conflicts with prior and subsequent Wisconsin Supreme Court precedent. Therefore, we reverse and direct the circuit court to suppress the statements and physical evidence obtained following Felix’s illegal arrest, except that any evidence obtained from Felix’s automobile or pursuant to the consent search of Felix’s home shall remain admissible.
¶2 Shortly after 1:00 a.m., police responded to a 911 call at 1928 Spring Street in Schofield. They found a male lying in the middle of the street with three stab wounds to his upper torso. Tara Wold, a witness located shortly thereafter, described a large fight between multiple individuals. She also reported that Devin Felix told her he stabbed someone and referenced going to prison. When Wold told Felix he was lying, he replied, “I’m not lying. I’ve got blood all over me.” Wold stated Felix was drunk and left the scene in his car. Other witnesses told a similar account, including Kyle Leder, who stated Felix left in a green Chrysler. In an application for a search warrant for 1928 Spring Street, where the individuals had been partying, Felix was identified as the sole suspect. A search warrant for that address was issued at 5:44 a.m. No arrest warrant was sought. No search warrant was sought for Felix’s home.
¶3 Police located Felix’s residence around 8:00 a.m., observing Felix’s mother’s green Chrysler parked there. Felix resided in the basement of a house that was divided into several apartments. Eight officers organized a plan to arrest Felix, and established a perimeter around the house. Multiple officers were positioned at the back of the house, where Felix’s apartment entrance was located. Detective Dennis Halkoski and officer Daniel Goff approached the door with their weapons drawn.
¶4 Goff opened the storm door and held it while Halkoski knocked hard on the entry door. The knock caused the door to swing completely open and hit the wall. Halkoski and Goff then took aim at Felix, who was sleeping in a recliner at the bottom of steps leading down from the door. They yelled at him to exit with his hands in the air. After taking a moment to wake up, Felix complied and was handcuffed outside on the ground. Meanwhile, as Felix exited, officers had immediately entered the apartment and conducted a protective sweep, removing and handcuffing Felix’s mother and younger brother.
¶5 While Felix was still “face down,” an officer patted him down for weapons, asking whether Felix had any sharp objects on him. Felix responded he had a knife in his front right pocket. After patting Felix down twice, the officer indicated to another that he did not locate a knife on Felix. Felix stated, “[W]ell, I had a knife on me. I must have gotten rid of it.” Felix was taken to the police station and read his Miranda rights. He provided further incriminating statements. At the end of the interview, Felix consented to a buccal swabbing. Felix was then transported to jail, where Halkoski collected Felix’s clothing for evidence.
¶6 Back at the house, officers spoke to another resident, Dean Kudick. Kudick sublet to the Felix family and consented to a search of the house. Officers seized a knife from a shelf near the recliner Felix was sleeping in. They also seized the green Chrysler.
¶7 Felix moved to suppress all evidence derived from his warrantless arrest in his home. Additionally, he asserted all of his statements were obtained without valid Miranda warnings and were also involuntary. Felix further asserted his vehicle was illegally seized. The State argued the warrantless home arrest was permitted by exigent circumstances.
¶8 The circuit court denied Felix’s motion with one exception, holding that, because the entry door had a history of popping open in response to a hard knock:
The Court is going to find that the arrest was valid finding that the defendant had no reasonable expectation of privacy to be protected by the [F]ourth [A]mendment because there was a voluntary submission to public view placing the recliner that he apparently slept in in a position where it could be seen from the door.
The court ordered Felix’s statements to police outside his home suppressed because he had not been given Miranda warnings. However, the court ruled the statements were voluntary and could therefore be used as impeachment evidence. The court further held that the station house statements were obtained pursuant to a valid Miranda waiver and were voluntary. Finally, the court ruled Felix’s car was legally seized under the automobile exception to the warrant requirement. Felix subsequently pled guilty. He now appeals.
¶9 Felix argues that all physical evidence and statements
derived from his warrantless arrest in his home should have been suppressed under
the federal and state constitutions, pursuant to Payton v.
¶10 Payton established that the Fourth Amendment prohibits the
police from effecting a warrantless and nonconsensual entry into a suspect’s
home in order to make a routine felony arrest.
¶11 Because the police arrested Felix in his home without a warrant,
he asserts we must apply the attenuation analysis set forth in Brown
to determine whether any evidence derived from his arrest must be suppressed. Under Brown, courts evaluate three factors
to determine whether evidence obtained following a constitutional violation is
sufficiently attenuated to be removed from the initial taint: (1) the temporal proximity of the evidence
and the violation; (2) the presence of any intervening circumstances; and (3)
the purpose and flagrancy of the official misconduct. Brown, 422
Whether Brown attenuation analysis applies
¶12 In the circuit court, the State argued Felix’s warrantless arrest was permissible due to exigent circumstances. On appeal, it abandons both that rationale and the circuit court’s reasoning that Felix had no constitutionally protected right to privacy in his home. Instead, the State now argues, “Assuming that Felix’s warrantless arrest was illegal under [Payton], neither his statements to police nor evidence derived therefrom need be suppressed as fruits of an illegal arrest,” citing New York v. Harris, 495 U.S. 14 (1990); and State v. Roberson, 2005 WI App 195, 287 Wis. 2d 403, 704 N.W.2d 302 (Roberson I), aff’d on other grounds, 2006 WI 80, 292 Wis. 2d 280, 717 N.W.2d 111 (Roberson II).
¶13 In Harris, the court distinguished the facts of that case from
prior cases such as Brown, where the warrantless home entries were not based on
probable cause. Harris, 495
¶14 The Harris rule, however, has not been adopted by the Wisconsin
Supreme Court. See Roberson II, 292
¶15 The Harris rule is contrary to our supreme court’s prior holdings
which was based on Laasch,
and in State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990). In Smith, Laasch, and Walker,
the police already had probable cause to arrest prior to entering the suspects’
homes or curtilage. See Walker, 154
¶16 Moreover, after the United States Supreme Court’s decision in Harris,
our supreme court has continued to apply the Brown attenuation
analysis to warrantless home entries—at least those involving searches. Without
distinguishing between searches and arrests, in State v.
¶17 Our supreme court also subsequently applied the Brown
analysis to a warrantless home entry, where the entry was not for the explicit
purpose of either a search or an arrest.
¶18 Thus, application of the Harris rule would lead to the
peculiar result that statements obtained after a warrantless home entry and arrest
cannot be suppressed under the Brown attenuation analysis, while
statements obtained following a warrantless home entry and search can. This result appears contrary to Laasch,
where our supreme court indicated, “[W]e believe that the warrantless entry of
a dwelling is governed by the same constitutional principles, whether the entry
is made to effect a search or an arrest.” Laasch, 84
¶19 We recognize we typically apply art. I, § 11 of our state constitution
in conformity with the United States Supreme Court’s application of the Fourth
¶20 Felix’s brief applies the three factors of the Brown
attenuation analysis to the various statements and physical evidence he sought
to suppress. For the most part, the
State chose not to respond to Felix’s arguments. The State did, however, address the factors
as they related to Kudick’s subsequent consent to search the home. Therefore, because, as explained below, we
agree with the State that the consent search was sufficiently attenuated, we
remand with directions that the statements and physical evidence obtained
following Felix’s illegal arrest be suppressed, with the exception of any
evidence discovered during the consent search.
See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90
¶21 Felix argues the search of his home was not sufficiently
attenuated because the consent itself was tainted, as Kudick was subjected to
the “shock and awe” of the arrest of Felix and his family at gunpoint. The proximity factor weighs in favor of
suppression because Kudick’s consent was obtained minutes after Felix’s arrest.
However, as to the second factor, the
consent itself is a significant intervening circumstance. Regarding the third factor, generally, the
police conduct here was both purposeful
and flagrant. See State v. Tobias, 196
Seizure and search of Felix’s automobile
¶22 The State contends that Felix’s vehicle was legally seized and
searched. It argues the vehicle could be
seized pursuant to the automobile exception to the warrant requirement and
that, moreover, it obtained a search warrant prior to searching the
vehicle. Felix concedes the State’s argument
that, pursuant to State v. Marquardt, 2001 WI App 219, 247
By the Court.—Judgment reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
also argues his statements were both involuntary and obtained without a valid
waiver of his Miranda rights. See Miranda v.
court also noted Laasch v. State, 84
a footnote in its response brief, the State asserts it is not conceding either
issue and it invites us to affirm on those grounds. However, “[t]he burden to justify warrantless
in-home entry is on the [S]tate.” Smith,
the State emphasizes, we may affirm a circuit court decision on a theory or
reasoning not presented to it. State
v. Baudhuin, 141
have also cited the Harris rule, New York v. Harris, 495 U.S. 14
(1990), in a number of other cases. See, e.g., State v. Cash, 2004 WI
App 63, ¶27 n.10, 271 Wis. 2d 451, 677 N.W.2d 709 (Harris rule would apply,
but case resolved on other grounds), abrogated
on other grounds by State
v. Popenhagen, 2008 WI 55, 309 Wis. 2d 601, 749 N.W.2d 611; State
v. Stevens, 213
and its progeny, circuit courts could not obtain personal jurisdiction over
persons who were illegally arrested in their home with probable cause but
without a warrant or exigent circumstances.
See Laasch, 84
 However, the Fry court also observed:
It is always conceivable that the Supreme Court
could interpret the [F]ourth [A]mendment in a way that undermines the
protection Wisconsin citizens have from unreasonable searches and seizures
under [art. I, § 11 of the
State v. Fry, 131
recognized in Roberson II, the Harris decision is not without its
detractors. State v. Roberson, 2006
WI 80, ¶79 n.21, 292
if we applied the Harris rule, Felix’s clothing would need to be suppressed on
remand. The clothing was seized along
with Felix at the time of his illegal arrest in the home, and it remained in
the State’s custody until removed from Felix at the jail.
 The record reveals the State did not respond to Felix’s Brown analysis in the circuit court either. Instead, the State responded with an exigent circumstances argument.
 While the police could not expect the inside door to pop open, they purposely set out to arrest Felix at his home without a warrant.