ID admissible, although arrest unlawful

Listen to this article

Even if an identification is the fruit of an illegal arrest, the identification may be admissible, the Wisconsin Court of Appeals held on Aug. 25.

According to the decision’s facts, on Dec. 1, 2002, a drug enforcement unit of the Milwaukee Police Department conducted surveillance on Lindsey Edwards and David Roberson. Later, Officer Michael Terrell purchased three cuts of cocaine from them, and radioed Detective Mark Wagner about the buy.

Other officers located, and followed the vehicle in which the transaction occurred to a private home. The occupants entered the home, and officers converged upon it. Roberson was removed from the home and identified by Terrell as the person who sold him the cocaine.

Roberson was charged with delivery of a controlled substance. His attorney did not file a suppression motion. At trial, the state’s witnesses and Roberson’s witnesses disputed the facts leading up to the entry, and whether it was consensual.

Roberson was convicted, and filed a post-conviction motion, claiming his attorney was ineffective for not objecting to the identification. Milwaukee County Circuit Court Judge Elsa C. Lamelas denied the motion without an evidentiary hearing, determining that the witnesses who testified at trial provided "essentially the same testimony the court would have heard had a motion to suppress been filed by trial counsel prior to trial," and that there was "not a reasonable probability that counsel’s failure to file a suppression motion would have altered the result of the proceedings."

The court stated that, based on the trial testimony, the search would have been found consensual. Roberson appealed, but the court of appeals affirmed in a decision by Judge Charles P. Dykman, although on different grounds.

The court held that the trial court should have held an evidentiary hearing, because Roberson’s motion was factually sufficient. The court wrote, "The trial court based its denial of the motion on trial testimony and the court’s own observation of witnesses. We disagree that trial testimony provided ‘essentially the same testimony the court would have heard’ in a hearing on a motion to suppress. [The witnesses] were not questioned thoroughly at trial about whether [Roberson’s mother] consented to the entry. And other officers who witnessed the entry did not testify."

Nevertheless, the court affirmed, concluding that, even if the identification was the fruit of an illegal entry, suppression of the identification was not required.

The court acknowledged that, under New York v. Harris, 495 U.S. 14, 19, 110 S. Ct. 1640 (1990), the remedy for a warrantless arrest, in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct.1371 (1980), is suppression of any evidence that "bear[s] a sufficiently close relationship to the underlying illegality."

In Harris, the court established the following per se rule: "[W]here the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Harris, 495 U.S. at 21.

To this rule, the court of appeals adopted the following "common-sense clarification" from LaFave, Search and Seizure, 4th Ed. 11.4(4), and Bryant v. United States, 599 A.2d 1107 (D.C. 1991): "Actually, this [rule] should be read as meaning probable cause developed apart from the illegal entry."

The facts in Bryant were similar: an undercover officer purchased cocaine from Bryant, then provided other officers a physical description of Bryant and the address of the house where he made the buy. The arresting officers conducted an unlawful entry, detained Bryant, and brought him onto the street, where the undercover officer drove by and identified him.

The Bryant court held the officer’s identification inadmissible, reasoning as follows:

"We conclude that Harris differs from this case in a critical respect. The difference is that in Harris the discovery of the defendant inside his home contributed nothing to the evidentiary basis for detaining him. Harris, in essence, is a case in which the forbidden entry and search were legally irrelevant to the admissibility of the later-acquired evidence — the defendant’s station house confession — because nothing flowed from the illegality. The police had probable cause to arrest Harris regardless of where they found him, and thus the legal basis for seizing him was independent of the fact he was arrested in the home rather than somewhere else. …

"Unlike the situation in Harris, it is not true here that the police acquired nothing from the unlawful entry legally relevant to their ability to detain appellant for a showup identification. On the contrary, it is apparent that the police acquired the evidentiary basis for detaining him only by discovering him in the house as a result of the illegal search. Unlike in Harris, it is decisive in this case that the police seized appellant in the house rather than someplace else, because until they found him there they lacked even the minimal level of objective justification, necessary to support a detention." Bryant, 599 A.2d at 1111-12.

The court of appeals agreed with the court in Bryant that, when the defendant’s location in the home at the time of the illegal arrest provides the legal basis for an ar
rest, officers must develop an evidentiary basis to arrest, apart from the illegal entry, for the identification to be admissible.

The court wrote, "To determine whether officers had probable cause to arrest the suspect, the evidentiary significance of the suspect’s presence in the home must be subtracted from the accumulated evidence supporting an arrest. The question then is whether the remaining evidence, developed apart from and untainted by the illegal entry, adds up to probable cause."

The court also agreed with Roberson that his presence inside the home had evidentiary significance at the time of the arrest, because officers had followed him from the crime scene to the home. Thus, his presence in the home provided additional evidentiary support for an arrest.

The court noted, "Other individuals with physical characteristics resembling Roberson were likely present in Milwaukee on that day. But it is likely that the only individual resembling Roberson at that home on that day was Roberson."

Nevertheless, the court concluded that Bryant was distinguishable, because, even without the evidentiary significance of his presence at the home, the officers had probable cause to arrest him.

	Related Links Wisconsin Court System Related Article Case Analysis

The court reasoned, "Unlike in Bryant, … officers had a sufficient evidentiary basis to arrest Roberson developed apart from the evidence of his location in the home. Detective Wagner observed Roberson engaging in drug activity for approximately 25 minutes. Officer Terrell purchased drugs from Roberson. Moreover, they observed him as he left the street corner and observed the vehicle in which he left as a passenger. Detective Wagner’s extended observation of Roberson and Terrell’s up-close contact with him during the drug buy were enough to develop probable cause necessary for an arrest apart from Roberson’s location in the home."

The court also rejected Roberson’s argument that probable cause was lacking because only Wagner and Terrell — not the particular officers executing the entry and arrest — personally observed him. The court reasoned, "Where officers are working in concert as they were here, the arresting officers need not have personal knowledge sufficient to establish probable cause for the arrest and may rely on the collective information of the police department."

Accordingly, the court held that, even if the entry was unlawful, the failure of Roberson’s attorney to bring a suppression motion was not prejudicial, and affirmed his conviction.

Click here for Case Analysis.

David Ziemer can be reached by email.