“We have held that a suspect may not walk away from an officer conducting a Terry stop, and that the officer may restrain any suspect who attempts to do so. State v. Goyer, 157 Wis. 2d 532, 538, 460 N.W.2d 424 (Ct. App. 1990) (‘[t]he right to make a Terry stop would mean little if the officer could not restrain a suspect who attempts to walk away from the investigation’). However, the circumstances presented here are distinct from Goyer. First, the police officers never identified themselves, which they must do in order to conduct a valid Terry stop. Wis. Stat. § 968.24. Second, Rodriguez was never ordered to stop by the police, as in Goyer. The only thing the officer said to Rodriguez was, ‘What’s up?’ Officer Santiago confirmed that the police officers said nothing else to Rodriguez.
“Here, the officers did not have probable cause to believe any offense had been committed. Rather, at best, the information they had supplied only reasonable suspicion… Thus, Rodriguez is entitled to the ‘special protection’ afforded by the Fourth Amendment in guarding against unreasonable searches into private homes. In that respect, if an officer is going to enter a private residence without a warrant, the exigency factors must rise well above the facts and circumstances presented here. If we sanction a warrantless entry based upon bicycle riding, three visitors in and out of the home, and Rodriguez retreating into the home when asked, ‘What’s up?’ by strangers in an unmarked police car, we may as well grab a toboggan and start sliding because the revered privacy of an individual in his/her own home will become a slippery hill.”
Judgment reversed and cause remanded with directions.
Recommended for publication in the official reports.
CONCURRING OPINION: Schudson, J. “Rodriguez maintains that under Payton v. New York, 445 U.S. 573 (1980) and its progeny, reasonable suspicion and exigent circumstances are not sufficient to justify a warrantless home entry; probable cause and exigent circumstances are required. The State concedes Rodriquez’ legal premise.
“In the trial court, the prosecutor, apparently realizing that probable cause was necessary to justify the warrantless entry, argued that the facts established probable cause. The court, however, reasonably rejected her argument and, instead, found that the facts established only reasonable suspicion. To that point, the court was correct. The trial court, however, then erred in failing to recognize that reasonable suspicion could not support a warrantless home entry. Accordingly, I would summarily reverse and, therefore, I respectfully concur.”
Dist I, Milwaukee County, Donald, J., Wedemeyer, J.
For Appellant: Diana M. Felsmann, Milwaukee
For Respondent: Robert D. Donohoo, Milwaukee; Lara M. Herman, Madison