2008 WI 85
Supreme Court of
Dwight M. Sanders,
REVIEW OF A DECISION OF THE COURT OF APPEALS 2007 WI App 174
Reported at: 304
(Ct. App. 2007-Published)
July 9, 2008
Submitted on Briefs:
December 12, 2007
Source of Appeal:
Dennis J. Barry
PROSSER, J., concurs (opinion filed).
ROGGENSACK and ZIEGLER, JJ., join the concurrence.
For the plaintiff-respondent-petitioner the cause was argued by Anne C. Murphy, 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 Patrick M. Donnelly, assistant state public defender.
2008 WI 85
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
IN SUPREME COURT
Dwight M. Sanders,
JUL 9, 2008
David R. Schanker
Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 SHIRLEY S. ABRAHAMSON, C.J. The State seeks
review of a published court of appeals decision reversing an order and judgment
of the Circuit Court for
¶2 In reversing the circuit court's order and judgment, the court of appeals concluded that the law enforcement officers' warrantless entry into the defendant's home violated the defendant's rights under the Fourth Amendment to the United States Constitution applicable to the states under the Fourteenth Amendment. We affirm the decision of the court of appeals but on different grounds.
¶3 The determinative issue on review is whether the circuit court erred in denying the defendant's motions to suppress the physical evidence that law enforcement officers obtained following a warrantless entry into the defendant's home to make a warrantless arrest and two subsequent warrantless searches of his bedroom. This issue turns on the answer to the following question: Are the law enforcement officers' two warrantless searches of the defendant's bedroom justified (respectively) under the "protective sweep" and "search incident to arrest" exceptions to the Fourth Amendment warrant requirement?
¶4 The court concludes that although the first warrantless search of the defendant's bedroom may have been justified under the "protective sweep" exception to the Fourth Amendment warrant requirement, the second search of the bedroom was not justified under the "search incident to arrest" exception to the Fourth Amendment warrant requirement. The court further concludes that the search of the canister found in the bedroom and seizure of its contents were not justified under either exception to the Fourth Amendment warrant requirement.
¶5 For the reasons set forth, we affirm the decision of the court of appeals reversing the circuit court's order denying the defendant's motion to suppress and reversing the circuit court's judgment of conviction.
¶6 We briefly summarize the facts relating to the officers' obtaining possession of the evidence that the defendant moved to suppress.
¶7 Two City of Racine police officers, Officers Garcia and Anderson, were dispatched to a residence on a complaint of cruelty to animals. As the officers arrived, they heard a dog yelping and proceeded to the yard behind the residence. There, the officers observed four people, one of whom was the defendant, along with three or four dogs. Officer Garcia testified that he did not notice any signs of mistreatment or injury to the dogs.
¶8 Officer Anderson advised the defendant of the animal cruelty complaint and made multiple requests for the defendant to identify himself. The defendant responded to each of these requests by saying that he had done nothing wrong. According to Officer Anderson, the defendant objected to the officers' conduct, saying that "this [is] bullshit."
¶9 As the officers conversed with the defendant, they observed that the defendant was holding folded-up bills of currency as well as a yellow and black canister later revealed to be a beef jerky canister.
¶10 Officer Garcia testified that the defendant's residence was not a known drug house, that Officer Garcia had had no prior dealings with the defendant, that Officer Garcia was unaware at the time whether the defendant had a history of drug trafficking, and that Officer Garcia observed neither a controlled substance nor a drug transaction in the defendant's back yard. Officer Garcia also testified that the defendant's residence is located in a known drug trafficking area and that it was "not unusual" for persons to conceal controlled substances in canisters "similar to" the beef jerky canister that the officers observed in the defendant's hand.
¶11 Officer Anderson attempted to detain the defendant with handcuffs. At oral argument in this court, the State characterized this attempted detainer not as an attempted arrest upon probable cause but instead as an attempted seizure justified under the United States Supreme Court's decision in Terry v. Ohio, 392 U.S. 1 (1968). The defendant has not challenged the lawfulness of Officer Anderson's attempt to detain the defendant, and the State has not briefed the validity of Officer Anderson's conduct as a Terry stop. For purposes of this appeal, we assume that the attempted detainer was justified under Terry.
¶12 When Officer Anderson attempted to detain the defendant, the defendant moved away from the officers and then ran into his home through the rear door. At some point while the defendant was moving toward his home, Officer Anderson ordered the defendant to stop. The defendant did not stop.
¶13 The officers pursued the defendant, following him into his home. The defendant ran into a bedroom and shut the door behind him. Officer Garcia and Officer Anderson each testified that the purpose of following the defendant into his home was to take the defendant into custody. Each officer also testified that he did not believe evidence of any crime would be discovered inside the defendant's home.
¶14 After approximately one minute or less, the defendant voluntarily exited the bedroom. Officer Garcia testified that he then ordered the defendant to the ground and that the defendant did not obey this order. Chemical spray was applied to the defendant. The defendant fell to the ground and was handcuffed.
¶15 Officer Garcia testified that after the defendant was handcuffed, Officer Garcia performed a brief "protective sweep" of the bedroom in which the defendant had just been hiding. The defendant was escorted out of the home after Officer Garcia performed this brief search of the bedroom. Officer Garcia then performed a second search of the bedroom.
¶16 Officer Garcia testified that while performing this second search, he discovered underneath the defendant's bed the canister that the officers earlier had observed in the defendant's hand. Officer Garcia opened the canister. The canister contained a substance that Officer Garcia identified as cocaine.
¶17 Officer Garcia testified that his purpose in performing the second search of the defendant's bedroom was "to search for the canister." When asked why he did not obtain a warrant before performing this second search of the defendant's bedroom, Officer Garcia testified that he "didn't think of it."
¶19 The circuit court did not make a factual finding regarding whether Officer Garcia discovered the canister and contraband during his first or second search of the defendant's bedroom. In his brief, the defendant states that the canister and contraband were discovered during the second search of the defendant's bedroom. The State asserts in its reply brief that it is unclear whether the canister was found during the first or second search of the defendant's bedroom.
¶20 Subsequent to his arrest, the defendant was transported to the Racine County Jail. The defendant allegedly made inculpatory statements to police while at the jail.
¶21 The State charged the defendant with one count of obstructing an officer and one count of second offense possession of cocaine with intent to deliver. The defendant was charged as a habitual offender under each count.
¶22 The defendant moved to suppress as evidence the contraband that Officer Garcia discovered while searching the defendant's bedroom, as well as the statements that the defendant allegedly made at the Racine County Jail. The circuit court denied the defendant's suppression motion.
¶23 The defendant pled guilty to possession of cocaine with intent to deliver as a second offense and as a habitual offender. The defendant filed a motion for postconviction relief, which the circuit court denied.
¶24 The court of appeals reversed the order of the circuit court, holding that the officers' warrantless entry into the defendant's residence was unlawful. The court of appeals did not address the question whether the searches of the defendant's bedroom were lawful.
¶25 Assuming without deciding that the warrantless entry into the defendant's home was justified under the Fourth Amendment, we consider whether the warrantless search of the defendant's bedroom and the warrantless search of the canister and seizure of the contents thereof are constitutional under the Fourth Amendment. The question whether a search is constitutional is a question of constitutional fact. This court upholds the circuit court's findings of evidentiary or historical facts unless those findings are clearly erroneous. This court determines the application of constitutional principles to those evidentiary facts independently of the circuit court and court of appeals but benefiting from those courts' analyses.
¶26 Neither the record nor the circuit court's findings resolves whether the canister was found during the first or second search of the defendant's bedroom. Resolution of this factual question is unnecessary for purposes of this review. We conclude that the search of the canister and seizure of its contents were unlawful regardless of whether the canister was found during the first or second search of the bedroom.
¶27 We approach the issue of the search of the bedroom and the search of the canister and seizure of its contents with the understanding that warrantless searches are per se unreasonable under the Fourth Amendment, subject to a few carefully delineated exceptions. We must therefore determine whether the warrantless search of the defendant's bedroom and the search of the canister and seizure of the contents of the canister fall within any of the delineated exceptions. The burden is on the State to show that the search of the bedroom and search of the canister and seizure of its contents fall within one of the exceptions to the warrant requirement. "[T]he general requirement that a search warrant be obtained is not lightly to be dispensed with, and the burden is on those seeking an exemption from the requirement to show the need for it."
A. The First Search
¶28 For purposes of this part of the opinion, we assume that Officer Garcia discovered the canister and contraband during his first search of the defendant's bedroom and that the officers' presence in the home was lawful.
¶29 The record offers little information regarding what happened during the first search. Officer Garcia's testimony flatly contradicts the very premise that Officer Garcia discovered the canister and contraband during his first search of the bedroom. Officer Anderson offered no testimony describing Officer Garcia's searches.
¶30 The State's brief seems to assume that if the first warrantless search of the bedroom falls within an exception to the warrant requirement, the search of the canister and seizure of its contents during the first search of the bedroom also fall within an exception to the warrant requirement.
¶31 The State relies on the "protective sweep" exception to the search warrant requirement established in Maryland v. Buie, 494 U.S. 325 (1990), to validate the search of the bedroom.
¶32 The protective sweep doctrine applies once law enforcement officers are inside an area, including a home. Once inside an area a law enforcement officer may perform a warrantless "protective sweep," that is, "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Under Buie, a law enforcement officer is justified in performing a warrantless protective sweep when the officer possesses "a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others." Because the protective sweep exception authorizes only a limited intrusion, Buie requires the officer to have only reasonable suspicion that the area poses a danger to the officer or others; the test is not probable cause.
¶33 The protective sweep extends "to a cursory inspection of those spaces where a person may be found" and may last "no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises."
¶34 The State argues that Officer Garcia's initial search of the defendant's bedroom was justified under the Buie standard. According to the State, the officer had reasonable suspicion of drug trafficking and therefore understandably feared others may be present who would jeopardize the officers' safety. The State recounts that the defendant "was uncooperative, had fled, was carrying money and a container that looked like it could be used to conceal drugs and, in addition, the area where [the defendant's] apartment is located is noted for drug trafficking."
¶35 Accepting for the moment the State's position that articulable facts exist to demonstrate that the officer had reasonable suspicion that other persons may be lurking in the defendant's bedroom who would pose a danger to the officers and that a protective search of the bedroom was therefore justified, we nevertheless must conclude that Officer Garcia's search of the canister and seizure of its contents clearly were not within the purpose of the protective sweep. The search of the canister and seizure of its contents were not part of a search for persons who might pose a danger to law enforcement officers or to others. No person could be hiding in the canister. Furthermore, the officers had no articulable suspicion that weapons were involved in the instant case. The search of the canister and seizure of its contents therefore do not fall within the "protective sweep" exception to the search warrant requirement.
¶36 Accordingly, we determine that if the canister was searched and the contents of the canister were seized during the first search of the defendant's bedroom, the search of the canister and the seizure of its contents do not fall within the protective sweep exception to the search warrant requirement. The physical evidence is therefore the fruit of a search that violated the Fourth Amendment and must be suppressed.
¶37 The State offers no justification for the officers' search of the canister and seizure of its contents beyond the protective sweep exception to the warrant requirement. Under our case law, warrantless seizure and inspection of evidence are justified when the officer is lawfully in a position to observe the evidence, the evidence is in plain view of the officer, the discovery is inadvertent, and the item seized in itself or in itself with facts known to the officer at the time of the seizure provides probable cause to believe there is a connection between the evidence and criminal activity. The State does not, however, cite to or rely on this line of cases and does not argue in this court that Officer Garcia had probable cause to believe that there was a connection between the canister and criminal activity. The State argues in this court only that the officers had reasonable suspicion of a drug offense.
present case is reminiscent of Arizona v. Hicks, 480
¶39 Hicks teaches that even in the face of a lawful entry and reasonable suspicion that an object is evidence of a crime, a slight movement of the object is an impermissible search whenever it is "unrelated to the objectives of the authorized intrusion."
¶40 In the instant case the officers were in the home to arrest the defendant for obstructing the officers. The officer did not merely move the canister slightly and examine its exterior surface. Rather, the officer removed the canister from under the bed and opened it.
¶41 Because the officer's search of the canister and seizure of the contents were unrelated to the objectives of the authorized intrusion into the bedroom as a protective sweep in relation to arresting the defendant for obstructing the officers, the officer's search of the canister and seizure of its contents do not fall within the protective sweep exception to the warrant requirement.
¶42 Accordingly, we conclude that if the canister was searched and its contents were seized during the first search of the defendant's bedroom, the physical evidence in the canister is the fruit of a search that violated the Fourth Amendment and must be suppressed.
B. The Second Search
¶43 For purposes of this part of the opinion, we assume that Officer Garcia searched the canister and seized its contents during his second search of the defendant's bedroom and that the officers' presence in the home was lawful.
¶44 The record offers little information regarding what happened during the second search of the bedroom. Officer Garcia testified that he discovered the canister and contraband during his second search of the bedroom while he was looking under the bed.
¶45 The defendant was arrested in the living room. The parties do not dispute that the police had probable cause to arrest the defendant for obstructing an officer. The State relies on the "search incident to an arrest" exception to the Fourth Amendment warrant requirement to justify the second search of the bedroom.
¶46 The State's brief seems to assume that if the second warrantless search of the bedroom falls within an exception to the warrant requirement, the search of the canister and seizure of its contents during the second search of the bedroom also fall within an exception to the warrant requirement.
¶47 The circuit court concluded that the search of the bedroom was a valid search pursuant to an arrest.
¶48 The scope of what is conventionally termed the "search incident to arrest" exception to the Fourth Amendment warrant requirement was set forth in Chimel v. California, 395 U.S. 752 (1969). In Chimel, the United States Supreme Court held that a lawful arrest creates a situation justifying a contemporaneous, warrantless "search of the arrestee's person and the area within his immediate control." It is a search of the area within the arrestee's immediate control that is at issue here.
¶49 This exception to the warrant requirement serves two primary governmental interests. "One is the need to detect and remove any weapons that the arrestee might try to use to resist arrest or escape. Another is the need to prevent the destruction or concealment of evidence."
¶50 Significantly, while "the Chimel rule states that it is reasonable to search an area near the arrestee," the rule does not permit a warrantless search of "an area so broad as to be unrelated to the protective purposes of the search." "Thus, Chimel defines the area of 'immediate control' within which the police may reasonably search incident to arrest as 'the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.'"
¶51 The State contends that Officer Garcia's second search of the defendant's bedroom was justified as a search incident to arrest under the Chimel standard because the bedroom was "within [the defendant's] immediate presence or control when he barricaded himself in the bedroom and was out of the police officers' sight."
¶52 Although the bedroom might be considered within the defendant's immediate presence or control for Chimel purposes, we do not agree with the State that the second search of the bedroom was a search incident to arrest under the circumstances of the present case. The second search occurred after the defendant had been removed from the home. The defendant could not have gained possession of a weapon or destructible evidence from his bedroom when the defendant was not even inside the home when the bedroom and canister were searched and the contents of the canister seized.
¶53 The State relies upon State v. Murdock, 155
¶54 In Murdock, law enforcement officers performed a warrantless search of an area immediately surrounding the defendant. The search was contemporaneous with handcuffing the defendant. The search involved a pantry-type closet connected to the room in which the arrest was made. The court upheld the search notwithstanding the defendant's restrained condition and apparent inability to access the areas immediately surrounding him. The Murdock court was "unwilling to say that a defendant who is arrested in and remains in his or her dwelling as the search is conducted could never regain access to areas in his or her immediate control at the time of arrest."
¶55 The Murdock court also determined that even when an arrestee is handcuffed, "we cannot require an officer to weigh the arrestee's probability of success in obtaining a weapon or destructible evidence hidden within his or her immediate control." According to the Murdock court, Chimel authorizes a limited, contemporaneous search for weapons and evidence in the area surrounding the arrestee. "Its sanction of a contemporaneous, limited search protects the individual's privacy interests in areas outside his or her immediate control and also serves valid societal interests in protecting officer safety and preserving evidence."
¶56 The facts in the present case do not resemble those in Murdock. In the instant case, unlike in Murdock, the defendant was not in his home when the bedroom was searched. The defendant had already been removed from the home at the time of the search. No possibility existed that the defendant could obtain a weapon or destroy evidence in the home. The purposes of the search incident to arrest were achieved by removing the defendant from his home. By removing the defendant from the home, the officers eliminated the need to detect and remove any weapons that the arrestee might try to use to resist arrest or escape or to prevent the destruction or concealment of evidence.
¶57 Neither Chimel nor Murdock governs the instant case, in which the defendant was removed from the home before the search supposedly incident to the arrest.
¶58 At oral argument, the State suggested that the law enforcement officers were justified in conducting the second warrantless search of the defendant's bedroom because it was "highly likely" that persons other than the defendant would destroy evidence inside the defendant's bedroom had the officers waited to obtain a warrant before searching for the evidence. Nothing in the record supports speculation that other persons posed risks. Nothing in the record suggests that the law enforcement officers could not have maintained the status quo and could not have obtained a search warrant promptly upon a showing of probable cause to believe illicit drugs were in the home.
¶59 Accordingly, we determine that the second search of the bedroom does not fall within the search incident to arrest exception to the search warrant requirement. If the canister was searched and the contents seized during the second search of the defendant's bedroom, the search and seizure were not within the State's claimed search incident to arrest exception to the search warrant requirement. The physical evidence in the canister is therefore the fruit of a search that violated the Fourth Amendment and must be suppressed.
* * * *
¶60 For the reasons set forth, we affirm the decision of the court of appeals reversing the circuit court's order denying the defendant's motion to suppress and reversing the circuit court's judgment of conviction.
By the Court.—The decision of the court of appeals is affirmed.
¶61 DAVID T. PROSSER, J. (concurring). The court is unanimous that evidence of a yellow and black canister containing cocaine must be suppressed because the canister was obtained in a search without a warrant in violation of the Fourth Amendment. I agree with the majority opinion's analysis that police searches for that canister and its contents inside the defendant's house were not valid.
¶62 I write separately to address the real issue that brought this case before the court: namely, whether warrantless police entry into a home under the exigency of "hot pursuit" to arrest a person for a misdemeanor violates the Fourth Amendment, as stated in State v. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132, 647 N.W.2d 421.
¶63 The facts are undisputed that the defendant in this case committed a jailable criminal offense in the presence of police and that police entered the defendant's house in hot pursuit to effect the defendant's immediate arrest. Entering a home without a warrant under these circumstances is not unreasonable. Entry into a home in hot pursuit to arrest a person on probable cause for a jailable criminal offense is a longstanding, common sense exception to the warrant requirement. Accordingly, I concur.
¶64 The facts relevant to the warrantless entry of defendant Dwight Sanders' (Sanders) residence are stated below. They are based on the testimony of Officers Jorge Garcia (Officer Garcia) and Hendriel Anderson (Officer Anderson) at an August 5, 2005, hearing on Sanders' motion to suppress.
¶65 On May 6, 2005, Officers Garcia and Anderson were sent to
¶66 Officer Garcia observed that one of the men, later identified as
Sanders, was holding an unknown amount of folded
¶67 Officer Anderson advised Sanders of the animal abuse complaint and requested identification. Sanders responded that he "did not do anything wrong" and that "this [is] bullshit." Sanders repeatedly refused to give his name, address, and date of birth. Officer Anderson testified that he became "firm" with Sanders and attempted to handcuff him for officer safety. Sanders reacted by backing away, turning, and running toward the house. Officer Anderson ordered Sanders to stop, but he did not obey. Sanders ran into the house. Officer Garcia believed he had probable cause to arrest Sanders for obstructing an officer.
¶68 The officers immediately chased Sanders into the house where Sanders had barricaded himself in a bedroom. Sanders voluntarily emerged from the bedroom after about one minute and was arrested. Officer Anderson testified that his purpose in chasing Sanders into the house was that he saw Sanders as a threat to himself and Officer Garcia. The officers pursued Sanders into the house to take him into custody, not to search for evidence in his house. After arresting Sanders, however, Officer Garcia searched Sanders' bedroom twice and located the canister that Sanders was holding while he was in the back yard. Officer Garcia opened the canister and found crack cocaine.
¶69 The circuit court denied Sanders' motion to suppress the evidence
seized during the searches of Sanders' bedroom.
The court of appeals reversed, holding that the officers' warrantless
entry into Sanders' residence violated the Fourth Amendment. State v. Sanders, 2007 WI App 174, ¶33, 304
¶70 The issue of hot pursuit is before us because the court of appeals
applied its 2002 decision in Mikkelson to the facts of this case. Sanders, 304
¶71 In Mikkelson the court of appeals held that a warrantless
entry into a home under the exigency of "hot pursuit" to arrest a
probable misdemeanant violates the Fourth Amendment. Mikkelson, 256
¶72 Historically, the distinct exigency of hot pursuit has been sufficient to justify the warrantless entry of a dwelling to arrest a person for a misdemeanor such as obstructing an officer. Abandoning this principle creates a perverse incentive for misdemeanor defendants to flee from police officers into their homes to prevent their lawful seizure.
¶73 To address these concerns, this concurrence will first discuss the Mikkelson decision——which involved some peculiar facts regarding consent——and show that it was an aberration that did not follow either federal or state precedents interpreting and applying Welsh. The concurrence will then discuss existing law regarding "hot pursuit" as a stand-alone justification for a warrantless home entry and arrest.
A. The Mikkelson Rule
¶74 Mikkelson involved an encounter between Harold Mikkelson
(Mikkelson) and Officer Bonita Jo Johnson (Officer Johnson), a police officer
¶75 When help arrived, Officer Johnson knocked on the door, spoke with
Mikkelson's father, and was told that Mikkelson would be forthcoming.
moved to suppress all evidence obtained by the police inside the house.
court of appeals ruled that the State had waived its argument that police were
entitled to enter Mikkelson's house without a warrant because they were in hot
Even if we were to consider
the State's argument, we would reject it.
An arrest made in hot pursuit constitutes an exigent circumstance required
for a warrantless entry. State v.
Mikkelson court's reading of Welsh went too far. The
Welsh, the Court considered whether the Fourth Amendment prohibits the
police from making a warrantless night entry into a person's home to arrest him
for a nonjailable traffic offense. See
id. at 742. The defendant, Edward
Welsh (Welsh), drove his car while intoxicated, swerved off the road into an
open field, left the scene of the accident, and walked home.
Court determined that a warrantless entry under these circumstances violated
the Fourth Amendment.
Court did not state that all misdemeanors are inherently
"minor." Instead, the Court
cautioned that the critical factor in judging the impact of a particular
offense is not the nature of the crime but "the penalty that may attach to
any particular offense."
Court concluded that there were no exigent circumstances at play in Welsh
sufficient to justify a warrantless home entry and arrest; therefore, it had
"no occasion to consider whether the Fourth Amendment may impose an
absolute ban on warrantless home arrests for certain minor offenses."
Mikkelson court's mistaken reading of Welsh is confirmed by the
fact that the Supreme Court subsequently explained that Welsh drew a
distinction between jailable and nonjailable offenses, not between felony and
involved the question of whether police officers effected an unlawful
"seizure" when they prevented the defendant, Charles McArthur
(McArthur), from entering his home for two hours while police obtained a search
Court addressed the reasonableness of the seizure based on the gravity of the
misdemeanor offenses of possession of drug paraphernalia and marijuana.
We nonetheless find significant
distinctions. The evidence at issue here was of crimes that were
"jailable," not "nonjailable." See Ill. Comp. Stat., ch. 720, §
550/4(a) (1998); ch. 730, § 5/5-8-3(3) (possession of less than 2.5 grams of
marijuana punishable by up to 30 days in jail); ch. 720, § 600/3.5; ch. 730, §
5/5-8-3(1) (possession of drug paraphernalia punishable by up to one year in
jail). In Welsh, we noted that, "[g]iven
that the classification of state crimes differs widely among the States, the
penalty that may attach to any particular offense seems to provide the clearest
and most consistent indication of the State's interest in arresting individuals
suspected of committing that offense."
¶86 The highest courts of several states have interpreted Welsh——and McArthur——and concluded that the important distinction recognized by Welsh is the distinction between jailable and nonjailable offenses. For example, the Wyoming Supreme Court has stated that "[t]he unmistakable implication of the discussion in McArthur is that the distinction drawn by the Court in Welsh between minor offenses that do not justify a warrantless entry into a residence and those offenses that do is predicated upon whether the subject offense carries a potential jail term." Rideout v. State, 122 P.3d 201, 210 (Wyo. 2005).
¶87 The Iowa Supreme Court has interpreted McArthur similarly
and concluded that Welsh can be distinguished on the ground that the
civil offense at issue was not jailable.
¶88 The Minnesota Supreme Court also interpreted Welsh and
rejected a bright-line rule limiting the availability of the exigency of hot
pursuit as a warrant exception to suspected felonies. State v. Paul, 548 N.W.2d 260, 267-68 (
¶89 Many other state appellate courts have distinguished Welsh
because the offense at issue there was civil and did not include possible
incarceration. These courts have thereby rejected the Mikkelson
rule that jailable misdemeanor offenses are not sufficient to support a
warrantless home entry in hot pursuit of a fleeing suspect. See Mikkelson, 256
¶90 The jailable/nonjailable distinction noted by the authorities above
correlates with this court's discussion of Welsh in State v. Hughes,
2000 WI 24, 233
court correctly anticipated McArthur when it noted that the Welsh
Court "did not definitively say . . . that
certain categories of offenses are per se insufficiently grave to justify a
warrantless entry, only that the minor, noncriminal, nonjailable traffic
violation in that case (first offense drunk driving) was so."
¶92 The Wisconsin Legislature has determined that all
misdemeanors, regardless of class, are "serious" offenses because all
misdemeanors are jailable offenses.
¶93 A felony-only rule for hot pursuit allows the perpetrator of a serious misdemeanor offense, for which jail time is a penalty, to avoid immediate arrest merely because of the label ("felony" or "misdemeanor") chosen by the legislature. See id. This fortuity is very difficult to defend.
¶94 The continuing validity of Mikkelson fosters such injustice. Mikkelson is plainly inconsistent with McArthur. The United States Supreme Court has never held that a misdemeanor offense cannot provide justification for a warrantless home entry and arrest in hot pursuit. Mikkelson establishes such a per se rule and should be overruled.
B. Hot Pursuit
¶95 This court's decisions in State v. Smith, 131
¶96 Before setting forth the exigent circumstances standards laid out in Smith and Richter, it is helpful to put these cases in historical context with other Wisconsin and United States Supreme Court decisions recognizing the limited right of police to enter a home without a warrant to arrest a suspect when police have probable cause.
¶97 Agnello v. United States, 269 U.S. 20 (1925), illustrates an
example of a crime committed in the home and viewed by police outside. Agnello involved the question whether
the search and seizure of evidence in defendant Frank Agnello's house violated
the Fourth Amendment.
¶98 During the operation, Alba left his house and returned with
a short time, Centorino, Pace, and the Agnellos came out of
Court concluded that the warrantless search and seizure of evidence from Frank
Agnello's house violated the Fourth Amendment because these actions were not
incident to the earlier arrests.
The right without a search
warrant contemporaneously to search persons lawfully arrested while committing
crime and to search the place where the arrest is made in order to find and
seize things connected with the crime as its fruits or as the means by which it
was committed, as well as weapons and other things to effect an escape from
custody, is not to be doubted. See
¶101 Although Agnello focused primarily on the legality of the search of the Agnello home and the subsequent seizure of evidence found inside, the Court's endorsement of the warrantless arrest of several suspects in the Alba home after viewing a drug transaction through the windows illustrates the principle that a warrantless arrest can be effectuated in a home when a crime is witnessed by officers outside and an arrest is subsequently, and immediately, pursued inside.
Court first used the term "hot pursuit" to describe exigent
circumstances that might justify a warrantless home entry and arrest in Johnson
v. United States, 333 U.S. 10 (1948).
Johnson involved the warrantless entry and search of a hotel room
by an officer after the smell of burning opium emanating from within was
discovered and reported by a police informant.
Court noted that "[t]here are exceptional circumstances in which, on
balancing the need for effective law enforcement against the right of privacy,
it may be contended that a magistrate's warrant for search may be dispensed
Government argued that the warrantless entry and arrest did not violate the
Fourth Amendment because the arrest was made in "hot pursuit."
years after Johnson, the Court expanded upon this discussion in a
seminal decision concerning the exigent circumstances doctrine. In Warden, Maryland Penitentiary v. Hayden,
387 U.S. 294 (1967), police officers had probable cause to believe that an
armed robber had entered a particular house.
Court held that neither the warrantless entry of the house, nor the subsequent
warrantless search for the suspected robber, offended any constitutional
years after Warden, the Court addressed the "hot pursuit"
exigency doctrine in United States v. Santana, 427 U.S. 38 (1976). In Santana, a controlled drug purchase
was arranged in which an associate of defendant Santana was dropped off by an
undercover police officer at Santana's residence to obtain heroin.
officers proceeded to Santana's house and saw her standing in the front door
holding a brown paper bag.
Court held that the arrest did not violate the Fourth Amendment and concluded
that Santana's act of retreating into her home could not thwart an otherwise
proper arrest based on probable cause.
State v. Monahan, 76
Laasch v. State, 84
The arrest was not made in "hot pursuit"; there was no threat to the safety of other persons; there was no risk that evidence would be destroyed, since the delivered substance had been seized at the time of the previous arrest; and any suggestion that the police feared the defendant would flee is dispelled by the fact that she had been released for approximately two weeks.
¶113 In Smith, the court built upon Laasch and the federal
rule of exigent circumstances and set forth a list of factors and an objective
test to evaluate the justifications for a warrantless home entry by
police. Smith, 131
¶114 The Smith court's reliance on the Supreme Court's Steagald
decision is telling. In Steagald,
the Court stated that "a warrantless entry of a home would be justified if
the police were in 'hot pursuit' of a fugitive." Steagald, 451
¶115 Fourteen years after Smith, in Richter this court
reviewed a case involving a warrantless home entry by a police officer based on
his knowledge of an alleged recent break-in across the street. Richter, 235
¶116 The court evaluated the circumstances and concluded that the
officer's entry was "justified by the exigent circumstance of hot
¶117 An officer in "hot pursuit" does not need to make a
split-second determination about the availability of "hot pursuit" as
an exigency justifying a warrantless entry.
The officer has to make a determination whether there is probable cause
to make an arrest for a jailable crime.
Presuming probable cause, pursuit of the suspect is justified. As long as the officer has probable cause to
arrest for a jailable criminal offense, the only remaining important question
is whether a chase or pursuit satisfies the hot pursuit definition in Welsh——"immediate or continuous pursuit of
the [defendant] from the scene of a crime." Welsh, 466
¶118 There is no implication in our case law that "hot pursuit"
cannot stand alone as an exigent circumstance justifying a warrantless home
entry and arrest. On the contrary, our
cases explicitly recognize that hot pursuit is a sufficient justification for a
warrantless entry and arrest. Smith,
¶120 In Flinchum, officers saw the defendant's car waiting at a
red traffic light.
officers eventually caught up with the defendant and saw him standing outside
his parked car.
Supreme Court of Ohio held that the warrantless entry and arrest of the
defendant was justified by the exigency of hot pursuit alone.
State v. Paul the Minnesota Supreme Court declined to adopt a
bright-line rule that would prohibit officers from entering a suspected
misdemeanant's home when officers are in hot pursuit. Paul, 548 N.W.2d at 268. Paul involved a defendant charged with
the misdemeanor offense of driving under the influence of alcohol.
did not stop but continued on in spite of Gunderson's flashing lights.
Minnesota Supreme Court held that Gunderson's warrantless entry into Paul's
home was not unlawful.
Paul court next analyzed Welsh and concluded that it was
court rejected Paul's invitation to establish a bright-line rule prohibiting
the warrantless entry of a home in hot pursuit when the underlying offense is
less than a felony.
The Fourth Amendment simply cannot be stretched nor can public safety be ensured by a bright-line felony rule which would encourage drunk drivers to elude the police by racing through the streets to the sanctuary of their homes in order to "freeze" a hot pursuit or to otherwise evade a lawful arrest.
¶128 Two decisions from the Iowa Supreme Court essentially echo the conclusions reached in Paul regarding hot pursuit as an exigency sufficient to support a warrantless home entry and arrest for a misdemeanor.
State v. Legg the Iowa Supreme Court upheld a warrantless "hot
pursuit" home entry by police who possessed probable cause to believe a
suspect had committed the "serious misdemeanors" of interference with
official acts and first offense operating while intoxicated. Legg, 633 N.W.2d at 766,
772. The court reviewed Santana, Welsh,
and McArthur and concluded that, on balance, the competing privacy and
law enforcement concerns weighed in favor of allowing the minimal intrusion at
¶130 Following Legg, the Iowa Supreme Court reiterated its position that hot pursuit of a fleeing misdemeanant can provide a justification for a warrantless entry and arrest in State v. Pink, 648 N.W.2d 107, 109 (Iowa 2002) (per curiam).
¶131 Recently, the Illinois Appellate Court, Fourth District refused to
adopt a rule that hot pursuit, standing alone, was insufficient to justify an
exception to the warrant requirement. People
v. Wear, 867 N.E.2d 1027, 1045-46 (
¶132 Courts from several other jurisdictions are in accord with these
¶133 These jurisdictions represent a common sense approach to the "hot pursuit" doctrine that avoids creating an incentive for misdemeanant suspects to flee to the home to escape lawful arrest. The home should not be viewed as a "sanctuary" or "safe zone" for a suspected misdemeanant in these circumstances. Such a view equates law enforcement to sport. Judge Joel C. Neal of the Indiana Court of Appeals may have put it best when he stated:
Law enforcement is not a child's game of prisoner[']s base, or a contest, with apprehension and conviction depending upon whether the officer or defendant is the fleetest of foot. A police officer in continuous pursuit of a perpetrator of a crime committed in the officer's presence, be it a felony or a misdemeanor, must be allowed to follow the suspect into a private place, or the suspect's home if he chooses to flee there, and effect the arrest without a warrant.
State v. Blake, 468 N.E.2d 548, 553 (Ind. Ct. App. 1984). See also Gasset v. State, 490 So.2d 97, 98-99 (Fla. Dist. Ct. App. 1986) ("The enforcement of our criminal laws . . . is not a game where law enforcement officers are 'it' and one is 'safe' if one reaches 'home' before being tagged.") (citing Blake, 468 N.E.2d at 553).
¶134 In sum, hot pursuit of a fleeing misdemeanant, premised upon
probable cause, is an exigency sufficient to justify a warrantless home entry
and arrest. This view is amply supported
¶135 The majority opinion's conclusion that the circuit court erred when it denied Sanders' motion to suppress is correct. The searches of Sanders' bedroom and seizure of the evidence found there violated the Fourth Amendment.
¶136 I write separately to address the issue that brought this case before us, namely the continuing validity of Mikkelson. The facts are undisputed that the defendant in this case committed a jailable criminal offense in the presence of police and that police entered the defendant's house in hot pursuit to effect the defendant's immediate arrest. Entering a home without a warrant under these circumstances is not unreasonable. Entry into a home in hot pursuit to arrest a person on probable cause for a jailable criminal offense is a longstanding, common sense exception to the warrant requirement. Accordingly, I concur.
¶137 I am authorized to state that Justices PATIENCE DRAKE ROGGENSACK and ANNETTE KINGSLAND ZIEGLER join this concurrence.
1. Excerpt from Warden, Md. Penitentiary
v. Hayden, 387
Our Constitution envisions that searches will ordinarily follow procurement by police of a valid search warrant. Such warrants are to issue only on probable cause, and must describe with particularity the persons or things to be seized. There are exceptions to this rule. Searches may be made incident to a lawful arrest, and——as today's decision indicates——in the course of "hot pursuit." . . . The use in evidence of weapons seized in a "hot pursuit" search or search incident to arrest satisfies this criterion because of the need to protect the arresting officers from weapons to which the suspect might resort. The search for and seizure of fruits are, of course, justifiable on independent grounds.
2. Excerpt from Warden, Md. Penitentiary
v. Hayden, 387
The right of privacy protected by the Fourth Amendment
relates in part of course to the precincts of the home or the office. But it does not make them sanctuaries where
the law can never reach. There are such
places in the world. A mosque in
3. Excerpt from
is not disputed here that the officers had probable cause to arrest Santana and
to believe that she was in the house. In
these circumstances, a warrant was not required to enter the house to make the
arrest, at least where entry by force was not required. This has been the longstanding statutory or
judicial rule in the majority of jurisdictions in the
¶138 LOUIS B. BUTLER, JR., J. (concurring). The majority does not determine whether the warrantless entry into Sanders' home to make a warrantless arrest was justified as an exception to the Fourth Amendment warrant requirement. Because this case is resolved on other grounds, we need not (and should not) decide whether the warrant requirement exception for warrantless entry into a home by police engaged in hot pursuit should continue to be limited to warrantless felony arrests or if it should be extended to warrantless serious misdemeanor arrests. While I join the majority opinion, I write separately to address Justice Prosser's concurrence's misreading of pertinent and controlling case law addressing the constitutionality of warrantless home entries.
¶139 This case involves one of the most fundamental liberties guaranteed
by our federal and state constitutions:
the right to privacy in the sanctity of one's home. The United States Supreme Court has explained
that "[t]he Fourth Amendment, and the personal rights which it secures,
have a long history. At the very core stands the right of a man to retreat
into his own home and there be free from unreasonable governmental
intrusion." Silverman v. United
We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home.
¶140 In a later case, the Supreme Court elaborated:
It is axiomatic that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." And a principle protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest.
. . . .
"The right of officers to thrust themselves into a home is . . . a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance."
Welsh v. Wisconsin, 466
U.S. 740, 748 & n.10 (1984)(quoting United States v. United States
District Court, 407 U.S. 297, 313 (1972); Johnson v. United States,
¶141 Whether viewed in terms of the protections accorded by the Fourth
Amendment to the United States Constitution or by Article I, Section 11 of the
Wisconsin Constitution, warrantless entries into the homes of Wisconsin
residents are presumptively unreasonable and unconstitutional, with a heavy
burden on the government to justify such intrusions of personal liberty and the
right to privacy and security in one's home and effects. See Payton v.
¶142 In Smith, this court described the exigent circumstances test
as follows: "[w]hether a police
officer under the circumstances known to the officer at the time reasonably
believes that delay in procuring a warrant would gravely endanger life or risk
destruction of evidence or greatly enhance the likelihood of the suspect's
four factors which, when measured against the time
needed to obtain a warrant, would constitute the exigent circumstances required
for a warrantless entry: (1) An arrest
made in "hot pursuit," (2) a threat to safety of a suspect or others,
(3) a risk that evidence would be destroyed, and (4) a likelihood that the
suspect would flee. See Laasch
[v. State, 84
¶143 In its Welsh decision addressing the constitutional
limitations on warrantless home entries, the United States Supreme Court
emphasized its hesitation to find exigent circumstances "when warrantless
arrests in the home are at issue," and particularly when the underlying
offense giving rise to probable cause to arrest "is relatively
minor." Welsh, 466 U.S. at
749-50 (citing United States v. Santana, 427
¶144 Welsh explained the difference between how courts should
treat serious and minor offenses in the context of warrantless entry cases in
the following terms: "When the
government's interest is only to arrest for a minor offense, that presumption
of unreasonableness is difficult to rebut, and the government usually should be
allowed to make such arrests only with a warrant issued upon probable cause by
a neutral and detached magistrate."
¶145 Justice Prosser's concurrence recognizes that Welsh
distinguishes between different types of offenses. The context in which that distinction was
made in Welsh was limited, however, to noting that the Court "[did
not have] to consider whether the Fourth Amendment may impose an absolute ban
on warrantless home arrests for certain minor offenses."
¶146 The Court quoted Justice Jackson's concurrence in McDonald in discussing why a finding of exigent circumstances to justify a warrantless home entry should be severely restricted, if allowed at all, when a minor offense has been committed:
It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it. While I should be human enough to apply the letter of the law with some indulgence to officers acting to deal with threats or crimes of violence which endanger life or security, it is notable that few of the searches found by this Court to be unlawful dealt with that category of crime. . . . While the enterprise of parting fools from their money by the "numbers" lottery is one that ought to be suppressed, I do not think its suppression is more important to society than the security of the people against unreasonable searches and seizures. When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant.
¶147 Justice Prosser's concurrence strives to go in a direction never
adopted, nor even contemplated, by the Supreme Court. Justice Prosser's concurrence would establish
a rule that police in hot pursuit can enter the sanctity of one's home without
a warrant for any jailable misdemeanor offense, notwithstanding the fact that
the Payton rule allowing warrantless entry into the home in some cases
was expressly limited to felony arrests.
See Welsh, 466
¶148 Welsh, while not a hot pursuit case itself, discussed hot
pursuit along with the other exigent circumstances that may be factors in a
warrantless entry analysis. Welsh,
¶149 Justice Prosser's concurrence suggests that the distinction to be drawn in warrantless entry cases is between jailable and nonjailable offenses, completely ignoring the Payton limitation. Justice Prosser's concurrence, ¶¶83-85. Justice Prosser's concurrence then boldly states that because all misdemeanors are potentially jailable in Wisconsin, then all crimes in Wisconsin are "serious" offenses, see id., ¶¶92-94, leading to the necessary conclusion that warrantless entry during hot pursuit is justified for any type of crime whatsoever.
¶150 Justice Prosser's concurrence errs by completely misconstruing the
case of Illinois v. McArthur, 531 U.S. 326 (2001). McArthur did not involve a warrantless
home entry by police based on probable cause and exigent circumstances for a
jailable misdemeanor offense. To the
contrary, the police in McArthur prevented a defendant from entering his
home outside of their presence, precisely so the police could secure a
warrant prior to entering the home.
Temporarily keeping a person from entering his home . . . is considerably less
intrusive than police entry into the home in order to make a warrantless arrest
or conduct a search. Cf. Payton v.
¶151 In addition to misinterpreting Welsh and McArthur by concluding that warrantless entry is constitutionally permissible for any misdemeanor as long as hot pursuit exists, the analysis in Justice Prosser's concurrence collapsing the distinctions between different types of crimes ignores language to the contrary in other controlling precedents as well. The majority of cases that have addressed the issue of exigent circumstances justifying warrantless home entries distinguish between different types of crimes.
¶152 Some cases have maintained the distinction between felonies and
misdemeanors. See, e.g., Welsh,
466 U.S. at 749 n.11 ("Our decision in Payton, allowing warrantless
home arrests upon a showing of probable cause and exigent circumstances, was
also expressly limited to felony arrests."); State v. Mikkelson, 2002 WI App 152, ¶17, 256
¶153 Other cases adopt what may be viewed as a "hot pursuit plus" approach that upholds hot pursuits for offenses of varying degrees of seriousness where there are other exigent circumstances present, for example threats of violence or destroyed evidence, or other emergencies or dangerous situations. See Warden, 387 U.S. at 297-99 (upholding hot pursuit on the grounds that an armed robbery suspect who had entered a house might "gravely endanger" the lives of officers or other individuals, with speed being of the essence to ensure "that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape"); Hughes, 233 Wis. 2d 280, ¶¶26-27, 33-35, 39 (The "immediate and compelling" exigent circumstances in that case included probable cause to believe that apartment occupants would intentionally destroy evidence of drug-related offense.); Butler v. State, 829 S.W.2d 412, 415 (Ark. 1992)(interpreting the Fourth Amendment as requiring an "exigent circumstance requiring immediate aid or action" beyond a mere hot pursuit where the suspected crime is a minor offense); State v. Bolte, 560 A.2d 644, 652-53 (N.J. 1989)(concluding that hot pursuit alone was an insufficient justification for a warrantless arrest in the suspect's home, and describing a series of other cases in which hot pursuit alone was not sufficient without additional exigencies such as the alleged commission of a felony, the potential destruction of evidence, or concern for the safety of others); State v. Wren, 768 P.2d 1351, 1352, 1356 & n.5 (Idaho App. 1989)(holding in part "that if an arrest is not initiated in a public place, but is made after a warrantless entry into the home, it may not be justified solely upon a theory of 'hot' or 'fresh' pursuit. Other exigent circumstances must exist." The court, in rejecting a misdemeanor-felony distinction, also rejected hot pursuit as sufficient by itself to justify warrantless entry, explaining that "any simplistic equation of a hot pursuit with an exigent circumstance is conceptually unsound and is at variance with pronouncements of the United States Supreme Court."). See also Payton, 445 U.S. at 583 ("[W]e have 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.").
¶154 Santana, relied upon by Justice Prosser's concurrence and
described by that concurrence as a case that does not limit "hot
pursuit" warrantless entries to felonies, involved a felony arrest upon
probable cause of criminal heroin sales activity, with the Supreme Court
holding that in such a context, a defendant cannot defeat an otherwise proper
arrest that commenced in a public place by retreating into a private
place. Santana, 427
¶155 However, Santana has not been applied to warrantless
misdemeanor arrests inside a home by the Supreme Court; notwithstanding Santana,
the Court in Welsh did emphasize that Payton was limited to
felonies. Welsh, 466
¶156 In denying all criminal suspects in
¶157 Finally, Justice Prosser's concurrence confuses and conflates "minor" with "petty" misdemeanors, in its analysis that our legislature "has determined that all misdemeanors, regardless of class, are 'serious' offenses" simply "because all misdemeanors are jailable offenses." Justice Prosser's concurrence, ¶92. Justice Prosser's concurrence ignores the fact that the United States Supreme Court has already distinguished "serious" offenses from "petty offenses," not in terms of whether any jail time at all may be a penalty, but in terms of how much maximum jail time may be imposed. Specifically, the Supreme Court has explained that:
[i]n deciding whether an offense is "petty," we have sought objective criteria reflecting the seriousness with which society regards the offense, and we have found the most relevant such criteria in the severity of the maximum authorized penalty. Applying these guidelines, we have held that a possible six-month penalty is short enough to permit classification of the offense as "petty," but that a two-year maximum is sufficiently "serious" to require an opportunity for jury trial. . . .
¶158 In closing, although the proposal of Justice Prosser's concurrence——denying the Fourth Amendment right to be protected from literally unwarranted intrusions into the sanctity of one's home in any misdemeanor involving hot pursuit——is contrary to established legal standards, I again emphasize that we need not decide whether a warrantless entry into a home by police officers in the context of hot pursuit should continue to be limited to warrantless felony arrests or if the hot pursuit exception to the warrant requirement should be extended to serious misdemeanor arrests. The majority correctly decided this case on narrower grounds.
¶159 For the foregoing reasons, I respectfully concur.
 State v. Sanders,
2007 WI App 174, 304
 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
 The Fourth Amendment to the United States Constitution provides in full:
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.
 Accordingly, we need not address the issue the court of appeals decided, namely, whether the law enforcement officers' warrantless entry into the defendant's home to make a warrantless arrest was justified as an exception to the Fourth Amendment warrant requirement.
The initial entry into the defendant's home to arrest the defendant, the searches of the defendant's bedroom, the search of a canister in the defendant's bedroom, and the seizure of the contents of the canister were all nonconsensual in the instant case. The instant case does not address consensual searches or seizures.
The State's brief concentrates on suppression of the physical evidence and makes little mention of the defendant's statements. The assumption seems to be that if the physical evidence is suppressed so are the defendant's alleged statements.
 The record does not indicate how much money the officers observed in the defendant's hand.
 The record does not show which officer applied the chemical spray.
 The record does not show which officer handcuffed the defendant.
 See Brief and Appendix of Defendant-Appellant at 5-6.
 See Reply Brief of [State] Plaintiff-Respondent-Petitioner at 8.
 State v.
 State v. Hughes,
2000 WI 24, ¶15, 233
 State v. Murdock,
 Chimel v. California,
 See id. at 336 (characterizing a protective sweep as a "limited intrusion," not as a "full-blown search"; requiring "reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene"); id. at 334 n.2 ("Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted. That approach is applied to the protective sweep of a house.").
 Buie, 494
 Reply Brief of [State] Plaintiff-Respondent-Petitioner at 8.
 Brief and Appendix of [State] Plaintiff-Respondent-Petitioner at 33.
 See State v.
McGill, 2000 WI 38, ¶40, 234
 The State unsuccessfully argued before the court of appeals that the officers had probable cause to believe that Sanders was involved in a drug offense. Sanders, 2007 WI App 174, ¶1.
 Chimel v. California,
 Murdock, 155
 Brief and Appendix of [State] Plaintiff-Respondent-Petitioner at 36.
 In its brief, the State asserts that Officer Garcia's second search of the defendant's bedroom "occurred just after [the defendant] was handcuffed and removed from [his residence]." Brief and Appendix of [State] Plaintiff-Respondent-Petitioner at 36.
Nothing in the record suggests that the defendant was still in his residence at the time that Officer Garcia performed his second search of the defendant's bedroom. The record instead shows that the State was correct to assert in its brief that the second search occurred after the defendant had been handcuffed and removed from his residence.
 Murdock, 155
 These searches were not valid for the reasons explained in the majority opinion. See majority op., ¶¶25-59.
 The Welsh majority
pointedly disqualified the exigency of "hot pursuit" because there
"was no immediate or continuous pursuit of the [defendant] from the scene
of a crime." Welsh v.
 One commentator has observed that the Court's holding in Welsh can be read to distinguish between the "civil" or "criminal" nature of an offense:
[T]he Welsh Court specifically disavowed
any judicial judgment about the significance of the actual violation in
question and deferred instead to Wisconsin's classification of the offense as "civil"
in deciding the case. If
Sherry F. Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness", 98 Colum. L. Rev. 1642, 1683 (1998) (footnotes omitted).
 Two recognized criminal law treatises note that the conclusion drawn by the Wyoming Supreme Court in Rideout v. State, 122 P.3d 201 (Wyo. 2005), is correct. See 2 Wayne R. LaFave, et al., Criminal Procedure § 3.6(a), at 243 n.24 (3d ed. 2007); 3 Wayne R. LaFave, Search and Seizure § 6.1(f), at 38-39, 39 n.211.2 (4th ed. Supp. 2007).
 See, e.g., People
v. Lavoyne M., 270
 Several states have classes of misdemeanor offenses not subject to potential imprisonment. Some examples:
 Asking law enforcement officers to draw a line between criminal offenses and civil offenses is one thing; asking them to remember whether an offense is categorized as a felony or a misdemeanor, or to assess whether an offense will be charged as a felony or a misdemeanor based on incomplete evidence, is quite another. The impracticality of the distinction is obvious.
 The Minnesota Supreme
Court also questioned the idea that a bright line felony-only rule would aid
law enforcement. State v. Paul,
548 N.W.2d 260,
The determination of whether an offense is a
felony or a serious misdemeanor is not one that we should force officers to
make on the spot in the tense and often dangerous circumstances of hot
pursuit. See Payton [v.
Paul, 548 N.W.2d at 268.
 In United States v.
Santana, 427 U.S. 38 (1976), the Court observed that "Warden
was based upon the 'exigencies of the situation,' and did not use the term 'hot pursuit.'"
 Recently, in Brigham
City v. Stuart, 547 U.S. 398 (2006), the Court reiterated that "hot
pursuit" can constitute a sufficient exigency for law enforcement to make
a warrantless entry. The Court stated:
"We have held, for example, that law enforcement officers may make a
warrantless entry onto private property . . . to engage in 'hot
pursuit' of a fleeing suspect."
 Payton v.
 See, e.g., People
v. Lloyd, 265
 Indeed, there was no
literal chase involved in Santana; as Justice Marshall's dissent points
out, Santana was already standing in her doorway when the police approached her
home to arrest her. United States v.
 Welsh v. Wisconsin, 466 U.S. 740 (1984), was decided subsequent to Santana.