2010 WI 80
Supreme Court of
Terion Lamar Robinson,
REVIEW OF A DECISION OF THE COURT OF APPEALS
2009 WI App 97
Reported at: 320
(Ct. App. 2009-Published)
July 15, 2010
Submitted on Briefs:
April 13, 2010
Source of Appeal:
Joseph R. Wall
BRADLEY, J., dissents (opinion filed).
ABRAHAMSON, C.J., joins dissent.
For the defendant-appellant-petitioner there were briefs and oral by Melinda A. Swartz, assistant state public defender.
For the plaintiff-respondent the cause was argued by Michael C. Sanders, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
2010 WI 80
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
Terion Lamar Robinson,
JUL 15, 2010
A. John Voelker
Acting Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a published decision of the court of appeals that affirmed a judgment of conviction entered upon a guilty plea by the Milwaukee County Circuit Court, Joseph R. Wall, Judge. Acting upon an anonymous informant's tip and what they believed to be an outstanding felony arrest warrant, police officers forcibly entered and subsequently searched the apartment of Terion Lamar Robinson (Robinson). Following the circuit court's denial of his motion to suppress, Robinson pled guilty to one count of possession with intent to deliver tetrahydrocannabinols (THC), 200 grams or less, in violation of Wis. Stat. § 961.41(1m)(h)1 (2005-06). On appeal, Robinson argues that the officers' warrantless entry into his apartment and subsequent search violated his constitutional rights against unreasonable searches and seizures. We disagree and therefore affirm the court of appeals decision.
¶2 The dispositive issue in this case is whether the police officers' warrantless entry into Robinson's apartment and subsequent search was supported by probable cause and justified by exigent circumstances when the officers corroborated three of the four details relayed by an anonymous informant, knocked and announced their presence, and immediately heard footsteps running from the door.
¶3 Assuming without deciding that the commitment order for unpaid fines did not constitute an arrest warrant and therefore was insufficient to permit the police officers' lawful entry into Robinson's apartment, we conclude that the warrantless entry was nevertheless reasonable because it was supported by probable cause and justified by exigent circumstances. First, we determine that the police officers' warrantless entry into Robinson's apartment was supported by probable cause. Because the officers corroborated each of the three preliminary details provided by the anonymous informant, it was reasonable for the officers to then believe, as the informant had alleged, that evidence of illegal drug activity would probably be found in Robinson's apartment. Second, we conclude that the police officers' warrantless entry into Robinson's apartment was justified by exigent circumstances. Once Robinson was aware of the officers' presence outside his door and footsteps were immediately heard running from the door, the officers reasonably believed that Robinson would destroy evidence of his illegal drug activity. Finally, we conclude that once inside the apartment, the officers lawfully seized the evidence in plain view and arrested Robinson.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 On November 6, 2006, an anonymous citizen walked into
¶5 Officer Yaghnam then conducted a warrant check on the Crime Information Bureau (CIB) and the National Crime Information Center (NCIC) databases. According to Officer Yaghnam's testimony at the suppression hearing, his search revealed that Robinson "had two open warrants," one for a "family offense" and another for "the possession of [or] delivery of a controlled substance." Listed on the screen were the names of the warrants, what the warrants were for, and their case numbers. The warrant for possession or delivery of a controlled substance had a felony case number.
¶6 Consistent with his usual practice, Officer Yaghnam did not pull the warrants and testified that he does not always have the capability of doing so. Instead, "[a]ll [the officers] do is  run on the system. If it comes back with a warrant, then that is in good faith, and that is how [they] arrest."
¶7 After conducting the warrant check, Officer Yaghnam and several
went to the address identified by the anonymous informant as Robinson's
apartment. The officers did not seek a
search warrant, as they were intending to conduct a "knock and talk." The officers were let into the building by
another resident. Some officers,
including Officer Yaghnam, proceeded upstairs to
¶8 According to Officer Yaghnam, the officers knocked on the door to
Q [Attorney Merten, on behalf of the State]: What happened next?
A [Officer Yaghnam]: I then knocked on the door again, and then a male voice replied, "Who is it?" I then replied, "Terion?" And he stated, "Yes," actually, "Yeah." Then I identified myself as, "The Milwaukee police department. You need to open the door." And that is when I heard footsteps running from the door.
Q: And when you said you heard footsteps running from the door, was thathow quickly after the fact that you identified yourself as a Milwaukee Police Department officer did you hear that?
. . . .
Q: And when you heard those footsteps, what did you do then?
A: Then, fearing for the safety of possibly him destroying evidence or escaping, we then forced entry into the building, into the apartment.
Q: How soon did you force entry after you heard those footsteps?
Q: And how did you force entry?
A: By kicking open the door.
¶9 After Officer Yaghnam kicked open the door, he and the other officers proceeded into the apartment. Upon entering the residence, Officer Yaghnam identified a "pretty strong" odor of burnt marijuana. He described the apartment's layout as an "open concept." Immediately to the right of the door was a kitchen, which opened up to a dining room. Robinson was standing in the dining room. The dining room flowed into a living room, where the officers found a female later identified as Roxanne Reindl (Reindl). The apartment had a balcony exit, accessible by a sliding door located between the dining room and living room. Officer Yaghnam observed loose marijuana on a coffee table in the living room and several individual bags of marijuana inside an open cooler next to the couch.
¶10 Officer Yaghnam arrested Robinson, citing as the basis Robinson's "open warrants." He then searched Robinson's person and recovered "a large amount of currency" and a cell phone. The cell phone's number matched the one Officer Yaghnam previously dialed. The officers also seized two digital scales and a box of sandwich baggies; one of the scales and the baggies were taken from the kitchen counter.
¶11 On November 8, 2006, Robinson was charged with one count of possession with intent to deliver THC, more than 200 grams but not more than 1,000 grams, in violation of Wis. Stat. § 961.41(1m)(h)2. On January 7, 2007, Robinson moved to suppress all evidence obtained from his apartment on the grounds that it was the fruit of an unlawful entry.
¶12 On January 10, 2007, the circuit court conducted a hearing on Robinson's motion to suppress, at which Robinson largely corroborated Officer Yaghnam's testimony. Robinson recalled hearing knocks on his apartment door on November 6, 2006, immediately followed by his cell phone ringing. He testified that he silenced his ringer and then went to the door to look out the peep hole, but the peep hole was covered. When he asked who was there, someone responded, "Milwaukee Police Department. Open up." According to Robinson, he then replied, "'No, thank you,' and walked away from the door, and they started kicking in the door." He denied running from the door and stated that he was not wearing shoes at the time.
¶13 Robinson also denied smoking marijuana that day but testified that Reindl was. He admitted that a strong odor of marijuana was in the air in his apartment and that marijuana was on the coffee table. When asked if he was aware that marijuana was also in the cooler, he responded that he was not: "I seen the weed that was on the table. [The cooler] couldn't have been[i]t had to have been out of sight."
¶14 Reindl also testified at the suppression hearing. She recalled visiting Robinson at his apartment on November 6, 2006, and smoking "[a] little bit" of marijuana.
¶15 At the close of the suppression hearing, it came to light that what Officer Yaghnam thought was an open felony warrant for possession or delivery of a controlled substance was actually a commitment order for unpaid fines. In particular, on September 29, 2006, the Milwaukee County Circuit Court issued a commitment order for unpaid fines stemming from Robinson's 1998 conviction for manufacturing or delivering THC. According to court records, on December 18, 1998, then-circuit court Judge Kitty K. Brennan sentenced Robinson to 12 months imprisonment and ordered him to "pay a fine in the amount of $500.00 plus all costs and surcharges at $50.00 a month, starting 3/1/99 and thereafter on the first of every month or serve 60 days STRAIGHT TIME in the House of Correction consecutive to any other sentence." The commitment order was signed by an assistant to the Clerk of Circuit Court and ordered that "any law enforcement officer arrest and detain Terion L[.] Robinson Jr[.] in custody for 60 days or until $1026.50 is paid."
¶16 On March 14, 2007, the circuit court issued an oral decision
denying Robinson's motion to suppress.
The court adopted Officer Yaghnam's testimony as its findings of fact,
noting that "[e]ven Terion Robinson's version of all of this [wa]s not
that much different than the police['s]."
In particular, the court made a threshold finding that the officers,
relying on the CIB and NCIC databases, believed that Robinson was subject to an
outstanding felony arrest warrant for manufacturing or delivering
marijuana. Citing State v. Collins,
¶17 As alternative grounds for denying Robinson's motion to suppress, the circuit court applied State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, and determined that the officers' otherwise warrantless entry into Robinson's apartment was supported by probable cause and justified by exigent circumstances. The court concluded that the officers had probable cause to believe that the apartment contained evidence of a crime because they confirmed information relayed by the anonymous informant, specifically Robinson's apartment number and his cell phone number. In addition, the court believed Officer Yaghnam's testimony that he heard footsteps running from the door and consequently feared the destruction of evidence.
¶18 Following the circuit court's denial of his motion to suppress, Robinson pled guilty to a reduced charge of one count of possession with intent to deliver THC, 200 grams or less, and the circuit court entered judgment of conviction.
¶19 Robinson appealed his conviction and the order denying his motion to
suppress. On June 30, 2009, the court of
appeals affirmed. State v. Robinson,
2009 WI App 97, 320
¶20 In addition, like
the circuit court, the court of appeals determined that the officers'
warrantless entry was alternatively justified by exigent circumstances: "Robinson
was in the identified apartment and had the cell phone number given by the
informant. When the police heard footsteps
moving away from the door suggesting a possible escape attempt or a destruction
of evidence, exigent circumstances were created permitting the officers to kick
in the door."
¶21 Robinson petitioned this court for review, which we granted on November 12, 2009. We now affirm.
II. STANDARD OF REVIEW
review of an order granting or denying a motion to suppress evidence presents a
question of constitutional fact. Hughes,
¶23 In this case, we assume without deciding that the commitment order for unpaid fines did not constitute an arrest warrant and therefore was insufficient to permit the police officers' lawful entry into Robinson's apartment. We need not determine whether the good faith exception to the exclusionary rule applies because we conclude that the officers' warrantless entry and subsequent search was justified on the more narrow grounds of probable cause and exigent circumstances.
¶24 The Fourth Amendment to the United States Constitution and Article
I, Section 11 of the Wisconsin Constitution protect "[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures."
¶25 In this case, we conclude that the State has satisfied its burden of demonstrating that the police officers' warrantless entry into Robinson's apartment was both supported by probable cause and justified by exigent circumstances. We will analyze each requirement in turn.
A. Probable Cause
¶26 The Fourth Amendment to the U.S. Constitution and Article I,
Section 11 of the Wisconsin Constitution "require probable cause to
support every search or seizure in order to 'safeguard the privacy and security
of individuals against arbitrary invasions by government officials.'" Hughes, 233
¶27 The officers were acting upon an anonymous informant's tip that
Robinson was selling marijuana out of his apartment. Considered within the totality of the
circumstances, the value and reliability of an informant's tip "may
usefully illuminate the commonsense, practical question whether there is
'probable cause' to believe that contraband or evidence is located in a
particular place." Gates,
¶28 In this case, the officers corroborated three of the four details
relayed by the anonymous informant.
According to Officer Yaghnam's testimony,
the informant provided the following four details: (1) Someone named Terion
Robinson, (2) who lived in Apartment 8 at 7233 North 38th Street in Milwaukee
(3) with cell phone number , (4) was selling marijuana out of his
apartment. While the informant failed to
explain how he came to know of the inside information, the specificity of his
information and the fact that he personally walked into the police station
supported his credibility. Indeed, the
informant was "anonymous" only to the extent that he was
nameless. He jeopardized his anonymity
by approaching Officer Yaghnam in person.
See Limon, 312
¶29 In the midst of their "knock and talk," the officers
corroborated each of the three preliminary details provided by the anonymous
informant: Robinson's name, his address, and his cell phone number. According to Officer Yaghnam's testimony,
after he knocked on the door to
[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands. . . .
B. Exigent Circumstances
¶30 Consistent with the U.S. Supreme Court, see, e.g., Brigham
City, Utah v. Stuart, 547
¶31 In this case, we conclude that the police officers' warrantless
entry into Robinson's apartment was justified by exigent circumstances because
the officers reasonably believed that a delay in procuring a warrant would risk
the destruction of evidence. Officer
Yaghnam testified that after knocking on the door to
¶32 Robinson argues that to the extent the officers' knock and
announcement led to the running footsteps, the officers manufactured the
exigent circumstances and therefore cannot rely on them. This court has recognized that police
officers may not benefit from exigent circumstances that they themselves
¶33 To complete our analysis, we conclude that once inside the
apartment, the officers lawfully seized the evidence in plain view and arrested
Robinson. Once inside, the officers
identified a strong odor of burnt marijuana and observed loose marijuana in
plain view on the coffee table, both facts that Robinson himself conceded. Officer Yaghnam also testified that a digital
scale and box of sandwich baggies were in plain view on the kitchen
counter. The officers were well within
their rights to seize the marijuana, digital scale, and sandwich baggies in
plain view. See Harris v.
United States, 390 U.S. 234, 236 (1968) ("It has long been settled
that objects falling in the plain view of an officer who has a right to be in
the position to have that view are subject to seizure and may be introduced in
evidence."); State v. Johnston, 184 Wis. 2d 794,
809, 518 N.W.2d 759
(1994). Moreover, Officer Yaghnam was
entitled to arrest Robinson because the evidence in plain view gave him
probable cause to believe that Robinson had committed a crime. See
¶34 Assuming without deciding that the commitment order for unpaid fines did not constitute an arrest warrant and therefore was insufficient to permit the police officers' lawful entry into Robinson's apartment, we conclude that the warrantless entry was nevertheless reasonable because it was supported by probable cause and justified by exigent circumstances. First, we determine that the police officers' warrantless entry into Robinson's apartment was supported by probable cause. Because the officers corroborated each of the three preliminary details provided by the anonymous informant, it was reasonable for the officers to then believe, as the informant had alleged, that evidence of illegal drug activity would probably be found in Robinson's apartment. Second, we conclude that the police officers' warrantless entry into Robinson's apartment was justified by exigent circumstances. Once Robinson was aware of the officers' presence outside his door and footsteps were immediately heard running from the door, the officers reasonably believed that Robinson would destroy evidence of his illegal drug activity. Finally, we conclude that once inside the apartment, the officers lawfully seized the evidence in plain view and arrested Robinson.
By the Court.The decision of the court of appeals is affirmed.
¶35 ANN WALSH BRADLEY, J. (dissenting). Today, this court decides three cases, each
of which involves a search of a
¶36 In State v. Artic, 2010 WI 83, ___ Wis. 2d ___, ___ N.W.2d ___, officers knock at the front door of a suspected drug house, and when the resident fails to answer, the officers kick down the door. With guns drawn, they knock on an intermediate door on the second floor, and the homeowner answers. Although the homeowner disputes that he consented to the search, this court determines that he consented, that his consent was voluntary, and that the consent exception to the warrant requirement applies.
¶37 In State v. Pinkard, 2010 WI 81, ___ Wis. 2d ___, ___ N.W.2d ___, five drug unit
officers arrive at an apartment after an anonymous tipster alerts police that
there are drugs, a scale, and money present.
After the officers knock, announce their presence, and wait for 30 to 45
seconds, they then proceed to enter the residence out of concern for the
welfare of the occupants. Although the
testimony does not reveal that the officers were concerned about the
possibility of an overdose, this court concludes that hypothetically, "an
officer could reasonably be concerned that [the occupants] may have overdosed
¶38 In this case, at least seven officers arrive at an apartment to perform a "knock and talk" after an anonymous tip providing unspecified allegations that the resident is dealing drugs out of the apartment. Officers confirm that the resident is in the apartment, the resident fails to open the door, and the officers hear running footsteps. They then proceed to kick down the door. This court determines that because the resident is aware of the officers' presence, he has every incentive to intentionally destroy evidence. Under these facts, it determines that the exigent circumstances exception to the warrant requirement applies.
should refrain from "effectively creat[ing] a situation in which
the police have no reason to obtain a warrant when they want to search a home
with any type of connections to drugs." See
¶40 If the suspect opens the door, that suspect may be found to have voluntarily consented to the search. If the suspect refuses to open the door and officers hear movement inside, there may be exigent circumstances due to the possibility of the destruction of evidence. If no one answers the door, concern for the well-being of the occupants of what sounds like a drug house may justify entry under the community caretaker exception.
¶41 I am concerned that this case, along with the other two cases decided today, dilute the Fourth Amendment by allowing the knock and talk procedure to justify warrantless entry. Both law enforcement officers and courts alike should be mindful that the knock and talk technique rests on constitutionally thin ice.
¶42 In examining the facts of this case, I conclude that the majority errs in determining that probable cause and exigent circumstances were present here. Because I determine that the warrantless search of Robinson's apartment violates the constitutional protections guaranteed by the Fourth Amendment, I respectfully dissent.
¶43 The majority correctly acknowledges that the State bears the burden
of demonstrating that this warrantless home entry was supported by probable
cause and justified by exigent circumstances.
Majority op., ¶24. It determines that prior to breaking down the
¶44 The majority further determines that exigent circumstances were
present because, once Robinson was aware of the officers' presence and his
footsteps were heard running from the door, a reasonable officer would believe
that Robinson would destroy evidence.
¶45 When officers choose to execute a knock and talk rather than seeking a warrant, they are on constitutionally thin ice. The majority fails to recognize this thin ice, and instead ratifies this warrantless search.
¶46 In determining that probable cause and exigent circumstances
existed under these facts, the majority makes two distinct errors that
"cut away the core of the Fourth Amendment's protections, in a way the
Supreme Court has never sanctioned[.]"
¶47 I address first the constitutional implications of the knock and talk technique. Then, I address in turn the two distinct errors of the majority that cut at the core of Fourth Amendment protections.
¶48 The home occupies a special
place in Fourth Amendment jurisprudence.
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.
Anne Johnson v.
¶49 Here, as with the other two cases decided today, officers engaged in the competitive enterprise of ferreting out crime chose not to seek a warrant. Instead, they opted to go to a suspected drug house and perform a "knock and talk."
¶50 A recent commentator has posited that perfunctory review by courts
of law enforcement's use of the knock and talk procedure to circumvent the
warrant requirement "has severely limited the Fourth Amendment protection
afforded to homes, despite the Supreme Court's stance that homes are heavily
protected." Craig M. Bradley,
"Knock and Talk" and the Fourth Amendment, 84
courts have been critical of the knock and talk procedure. In Hayes v. State, 794 N.E.2d 492, 497
(Ind. App. 2003), the court opined that "[k]nock and talk might more aptly
be named 'knock and enter,' because it is usually the officer's goal not merely
to talk but to conduct a warrantless search of the premises." It explained that "[w]hile not per se
unlawful, the knock and talk procedure 'pushes the envelope' and can easily be
¶52 It is curious that the majority chooses to explain the knock and
talk procedure with a quotation from the Seventh Circuit case United States
v. Juan Benet Johnson, 170 F.3d 708.
See majority op., ¶7
Johnson court was critical of the use of the knock and talk procedure by
¶53 The Seventh Circuit is right. Law enforcement officers must recognize the limitations of this more informal way of attempting to gain entry to a home. The three cases decided today demonstrate that this court as well must recognize the limitations of the knock and talk procedure.
¶54 In any given case, there is a temptation to stretch and twist the exceptions to the warrant requirement to fit the facts. Often, the court will explain that the case presents a "close call," but an exception to the warrant requirement applies. The exception stretches a little further, and next time it will likely be stretched again. Over time, the narrowly defined exceptions to the Fourth Amendment become the rule.
¶55 A court that it is unwilling to provide a check on unconstitutional evidence gathering does a disfavor to law enforcement and citizens alike. It abandons its role and sends the clear message to law enforcement that no one is at the helm. When the players on a team learn that the referee will never call foul, there remains little incentive to play within the rules.
¶56 Despite reiterating that warrantless searches are presumptively unreasonable, this court has suppressed evidence procured during a warrantless home search only two times in the last 10 years.
Today, this court ratifies three more warrantless home searches, based on three different exceptions to the warrant requirement. With this track record and the failure of the courts to place meaningful limitations on the knock and talk technique, I fear that the presumption that warrantless home searches are unreasonable has become an example of a rule that has been swallowed by its exceptions.
¶57 The majority errs when it dilutes the requirement that officers assess the reliability of an anonymous tip. It relies heavily on the fact that the informant jeopardized his anonymity by walking into the police station, rather that relaying the tip over the phone. Majority op., ¶28.
¶58 Yet, that fact alone is not sufficient indicia of reliability to
establish probable cause.
¶59 The majority is correct that corroboration of innocent, although significant details may provide indicia of the reliability of an anonymous tip. I agree with the majority that Robinson's name, address, and telephone number are "innocent" details corroborated by the officers prior to their decision to kick in Robinson's door.
¶60 However, the corroboration of innocent details is not enough. To support a determination that the anonymous informant is reliable, the details must also be "significant."
¶61 Unlike the majority, I cannot conclude that the details about Robinson's name, address, and cell phone number are "significant." Various individuals likely have access to this type of identifying information about all of us.
¶62 The innocent details provided by this anonymous informant are a far
cry from the innocent details that the Supreme Court relied on in Illinois
v. Gates, 462 U.S. 213 (1983), to corroborate an anonymous tip. In Gates, an anonymous letter asserted
that Gates was planning a trip to
¶63 Similarly, in State v. Williams, an anonymous caller
described the scene of a purported crime in great detail, including the
location of the vehicle, a general description of the vehicle, and the layout
of the surroundings. 2001 WI 21, ¶39, 241
¶64 In both Gates and Williams, the corroboration of innocent but significant details provided indicia of reliability for the uncorroborated assertions of criminal conduct. The "corroboration" in this case is of an entirely different nature. The fact that the anonymous informant accurately provided Robinson's identifying information is not indicia that the informant has insight into any criminal behavior. It corroborated only that the anonymous informant knew Robinson, or perhaps knew of Robinson.
¶65 Reasonable suspicion is a lower standard than probable cause. Yet, the Court has held that the kinds of innocent details provided here are insufficient to establish reasonable suspicion of criminal conduct. Rather than containing "significant" details, the anonymous tip in this case looks like the type of "bare-bones tip" that was rejected in Florida v. J.L., 529 U.S. 266 (2000).
¶66 In J.L., an anonymous caller reported to the Miami-Dade
Police that "a young black male standing at a particular bus stop and
wearing a plaid shirt was carrying a gun."
¶67 The Court determined that "the Fourth Amendment is not so
¶68 Similar to the tip in J.L., the anonymous tip here provided information sufficient to identify the person that the tipster meant to accuse. However, it did not demonstrate that the tipster had any knowledge of concealed criminal activity. I conclude that corroboration of innocent details provided by this bare-bones tip did not provide these officers with reasonable suspicion, much less probable cause.
¶69 Like its determination about probable cause, the majority's
analysis of exigent circumstances is also incompatible with controlling
law. The majority recognizes that under
¶70 The majority's logic appears to be as follows: We know that
officers cannot benefit from manufacturing exigent circumstances, thereby
circumventing the warrant requirement.
However, MacDonald holds that officers do not manufacture exigent
circumstances when they are in a lawful place.
Given that the officers were executing a lawful knock and talk, it must
not have been their knock and announcement that created the exigency. Majority op., ¶32. Therefore,
someone else must have created the exigency.
It must have been Robinson, who invited the police to announce their
presence by asking "Who's there?" and who ran from the door rather
than answering it.
¶71 The MacDonald decision is not supported by the law of
¶72 In a recent decision, the Seventh Circuit explained that it is
lawful "for the government to knock on the front door of [a] home and ask
to come in." Ellis, 499 F.3d
at 692. However, "once [the resident] said no, the government could not
save its case by kicking in the side door."
¶73 The facts in the Ellis case are very similar to the facts
before the court today. There, five
¶74 Officer Lopez was identified as the officer who was standing at the
side of the house.
¶75 The Seventh Circuit held that, under those facts, the officers could not justify their warrantless home entry based upon an exigency that they had created by informing the occupants of their presence:
It was the government's decision to inform the
occupants of the
¶76 The court explained that "once Ellis refused to consent, the
occupants knew of the government's investigation of the home and so the
government was concerned that the occupants might destroy any drugs that could
be in the home."
¶77 "[T]he problem in this case," it explained, "is that
the officers and agents lacked a warrant when they approached the home and
utilized tactics that, if allowed to go unchecked, would eliminate the Fourth
Amendment warrant requirement for a home with any connection to
¶78 The Third Circuit Court of Appeals employed a similar analysis in United
States v. Coles, 437 F.3d 361 (3d Cir. 2006). There, officers were conducting surveillance
on a motel room due to suspected drug activity.
After knocking on the door and announcing their presence, they heard the
"sounds of rustling and running footsteps," and they attempted to
open the door using an electronic passkey.
¶79 In determining whether exigent circumstances were present, the
court emphasized that "the officers decided to enter room 511 without a
¶80 The Third Circuit concluded that the officers could not justify their entry with an exigency that did not exist before officers decided to alert the occupants to their presence:
We emphasize that the record reveals no urgency or need for the officers to take immediate action, prior to the officers' decision to knock on Coles's hotel room door and demand entry. It is, of course, true that once the officers knocked on the door and announced, "open the door, this is the police," they heard sounds indicating that evidence was being destroyed. But that exigency did not arise naturally or from reasonable police investigative tactics. Quite to the contrary, the officers, after their pretextual announcements had failed to gain entry to room 511, deliberately created the exigency by knocking on the door to room 511 and demanding entry.
¶81 Like these other courts, I conclude that the MacDonald
analysis, which has not been previously adopted in
¶82 For the reasons stated above, I respectfully dissent.
¶83 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.
 State v. Robinson,
2009 WI App 97, 320
 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.
Except as authorized by this chapter, it is unlawful for any person to possess, with intent to manufacture, distribute or deliver, a controlled substance or a controlled substance analog. Intent under this subsection may be demonstrated by, without limitation because of enumeration, evidence of the quantity and monetary value of the substances possessed, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance or a controlled substance analog prior to and after the alleged violation. Any person who violates this subsection is subject to the following penalties:
. . . .
(h) Tetrahydrocannabinols. If a person violates this subsection with respect to tetrahydrocannabinols, included under s. 961.14(4)(t), or a controlled substance analog of tetrahydrocannabinols, and the amount possessed, with intent to manufacture, distribute, or deliver, is:
1. Two hundred grams or less, or 4 or fewer plants containing tetrahydrocannabinols, the person is guilty of a Class I felony.
 The CIB operates and manages a law enforcement message switch and network system that provides criminal justice employees with a wide variety of information, including "wants and warrants, driver license and vehicle registration information, criminal histories, protection order and injunction files, sex offender and corrections information, stolen property, missing persons and more." Wisconsin Department of Justice, Law Enforcement Services: CIB, http://www.doj.state.wi.us/dles/cib/ (last visited July 6, 2010).
The NCIC, described by the Federal Bureau of Investigation (FBI) as "the lifeline of law enforcement," is an electronic clearinghouse of crime data that enables criminal justice agencies nationwide to "apprehend fugitives, locate missing persons, recover stolen property, and identify terrorists." FBI, NCIC: The National Crime Information Center, http://www.fbi.gov/hq/cjisd/ncic.htm (last visited July 6, 2010).
 According to Officer Yaghnam's testimony, he and his partner were joined by five other squads for a total of eight officers.
 The Seventh Circuit Court of Appeals explained the "knock and talk" technique in United States v. Johnson, 170 F.3d 708, 711 (7th Cir. 1999):
[I]n a "knock and talk," the police approach a house or apartment in which they suspect drug dealing is occurring. They listen outside the door for a brief period of time, and then they knock on the door and attempt to persuade whoever answers to give them permission to enter. If consent is forthcoming, they enter and interview the occupants of the place; if it is not, they try to see from their vantage point at the door whether drug paraphernalia or contraband is in plain view. If it is, then they make a warrantless entry. As this description makes plain, the "knock and talk" procedure typically does not involve the prior issuance of a warrant.
See also State v. Phillips, 2009 WI App 179, ¶11 n.6, 322 Wis. 2d 576, 778 N.W.2d 157.
 The officers also arrested Reindl. Her arrest is not at issue in this case.
 According to the complaint, Robinson was in possession of $1,800.
 Officer Yaghnam acknowledged that the second scale was not in plain view and was instead located in a closet adjacent to Robinson's bedroom. The circuit court deemed that scale inadmissible.
 Robinson initially denied residing at the apartment, testifying that it was not his residence but instead his girlfriend's. He has since abandoned that argument.
 Prior to oral argument before this court, the State filed a letter informing us that Judge Brennan was a member of the court of appeals panel that decided this case. The matter was not brought to the court of appeals' attention, and neither Robinson nor the State has briefed or filed a motion on the issue before this court. We therefore will not address it further.
 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.
Article I, Section 11 of the Wisconsin Constitution similarly states:
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 warrant 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.
As a general rule, we historically interpret the
search and seizure provision of our state's constitution consistent with the
United States Supreme Court's interpretation of the Fourth Amendment. See State v. Pallone, 2000 WI
77, ¶28, 236
 The circuit court
adopted Officer Yaghnam's testimony as its findings of fact. We uphold those findings as they are not
clearly erroneous. See Pallone, 236
 Officer Yaghnam also testified that he feared Robinson's escape. Our conclusion that the officers reasonably believed that a delay in procuring a warrant would risk the destruction of evidence is alone sufficient to give rise to exigency. We therefore need not decide whether the officers reasonably believed that a delay in procuring a warrant would enhance the likelihood of Robinson's escape.
 Relying instead on United
States v. Ellis, 499 F.3d 686 (7th Cir. 2007), see dissent, ¶¶72-77,
the dissent makes no mention of United States v. Collins, 510 F.3d 697
(7th Cir. 2007), the more recent Seventh Circuit decision in which the court
Moreover, in its discussion of the Seventh Circuit's earlier decision in Ellis, see dissent, ¶¶72-77, the dissent leaves out the key facts that distinguish the complicated analysis in Ellis from the facts of this case. Among other things, in Ellis, the police officer who kicked in the side door made no showing to differentiate the movement he heard inside the home from the reasonable type of movement that could be found in any home following a knock at the door. 499 F.3d at 691.
 [T]here is a large swath of police activity that intrudes into dwellings that has been widely allowed by the courts and that often renders the search and arrest warrant requirements nugatory. . . . Under "knock and talk," police go to people's residences, with or without probable cause, and knock on the door to obtain plain views of the interior of the house, to question the residents, to seek consent to search, and/or to arrest without a warrant, often based on what they discover during the "knock and talk." When combined with such other exceptions to the warrant requirement as "plain view," consent, and search incident to arrest, "knock and talk" is a powerful investigative technique.
Craig M. Bradley, "Knock
and Talk" and the Fourth Amendment, 84
 In United States v. Juan Benet Johnson, 170 F.3d 708, 711 (7th Cir. 1999), the court explained that the knock and talk procedure was often employed by officers in the hopes that they would be able to conduct a warrantless home entry:
[I]n a "knock and talk," the police approach a house or apartment in which they suspect drug dealing is occurring. They listen outside the door for a brief period of time, and then they knock on the door and attempt to persuade whoever answers to give them permission to enter. If consent is forthcoming, they enter and interview the occupants of the place; if it is not, they try to see from their vantage point at the door whether drug paraphernalia is in plain view. If it is, then they made a warrantless entry. As this description makes plain, the "knock and talk" procedure typically does not involve the prior issuance of a warrant.
 State v. Sanders, 2008 WI 85, 311
 Unlike an officer's on-the-spot probable cause determination, an issuing-magistrate's probable cause determination is presumptively reasonable.
 Similarly, an amici
argued that "a stop and frisk should be permitted 'when (1) an anonymous
tip provides a description of a particular person at a particular location
illegally carrying a concealed firearm, (2) police promptly verify the
pertinent details of the tip except the existence of the firearm, and (3) there
are no factors that cast doubt on the reliability of the tip. . .