‘Jailable’ offense allows entry

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If a suspect commits a “jailable” offense, then officers may make a warrantless entry into the suspect’s home to make an arrest.

In so holding on June 16, the Wisconsin Supreme Court overruled State v. Mikkelson, 2002 WI App 152, 256 Wis.2d 132, 647 N.W.2d 421, which permitted warrantless entry only if the offense was a felony.

Justice Patience Drake Roggensack explained, “To hold otherwise would allow ‘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 [L]egislature (cite omitted).’”

When Wausau police responded to a report of an attempted break-in, they were informed by the resident of the lower floor that his upstairs neighbor, Kelly R. Ferguson, was pounding on his door threatening to evict him, even though Ferguson is not the landlord.

While the officers were investigating upstairs, Ferguson became belligerent, yelling and swearing at the officers and her nephew, and told her nephew to pack and leave.

Based on this conduct, the officers entered the apartment and arrested Ferguson for disorderly conduct. Based on her subsequent resistance to arrest, she was also charged with obstructing an officer and two counts of battery by a prisoner.

The jury convicted Ferguson of disorderly conduct and obstruction, and she appealed. In an unpublished opinion, the Wisconsin Court of Appeals reversed, concluding that the circuit court improperly instructed the jury on the obstructing charge.

The Wisconsin Supreme Court reinstated the convictions. Chief Justice Shirley S. Abrahamson and Justice N. Patrick Crooks each wrote concurrences joined by Justice Ann Walsh Bradley.

Precedents

Whether an obstruction conviction is valid depends on whether the officers were acting with lawful authority — in this case, whether the officers’ warrantless entry was justified by exigent circumstances.

Longstanding law holds that hot pursuit of a fleeing felon is an exigent circumstance. U.S. v. Santana, 427 U.S. 38 (1976). When the underlying offense is “relatively minor,” though, courts should be “hesitant” to find exigent circumstances. Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).

In Welsh, the U.S. Supreme Court held that exigent circumstances did not justify a warrantless entry to make an arrest for driving while intoxicated, where, in Wisconsin, it was, as a first offense, only a civil forfeiture.

The Court of Appeals in Mikkelson interpreted Santana and Welsh to create a bright-line rule that police are justified in making a warrantless entry in hot pursuit only when the underlying offense is a felony. Because Mikkelson had only committed a misdemeanor, the court reversed his conviction.

Jailable Offenses

The Supreme Court, however, concluded that Mikkelson incorrectly stated the law and overruled it.

Instead of a distinction between felonies and misdemeanors, the court concluded that the “critical factor” is whether or not the offense is “jailable.”

In support, the court cited dozens of precedents from other jurisdictions rejecting the felony/misdemeanor distinction.

Because the disorderly conduct offense that initiated the warrantless entry is jailable, the court held that exigent circumstances justified it.

Since the entry was lawful, the court thus concluded that, even if the circuit court erred in denying Ferguson’s requested jury instructions on “lawful authority,” the error was harmless.

Concurrences

Justice Bradley wrote separately, criticizing, “The majority exhibits an unbridled exercise of power” by overruling a prior decision that was not raised by the parties. “Why does the majority do this? Because it can.”

Bradley noted that the parties did not even argue over the hot pursuit doctrine; instead, the parties disputed whether Ferguson posed a threat to her young nephew.

“What makes the majority’s overreach even worse is that it does not deal with some trifling, penny-ante issue,” Bradley concluded. “Rather, it dilutes the protections guaranteed to all of us by the Fourth Amendment of the United States Constitution.”

Justice Crooks also wrote a concurrence, criticizing the jailable-nonjailable offense distinction as unworkable.

“Knowing that in many communities charging decisions involve a choice between a criminal offense or an ordinance violation — e.g., possession of marijuana — this new test appears to be totally unworkable,” Crooks wrote. “It offers the police officers on the front line almost no real guidance in deciding whether a warrantless entry into someone’s home will ultimately be justified.”

In a footnote, the majority defended its overruling of Mikkelson as fulfilling its responsibility to overrule an incorrect interpretation of a U.S. Supreme Court precedent.

The majority called Justice Bradley’s language “really code words for not wanting the majority of the court to comply with the directive of the United States Supreme Court.” In a press release, Attorney General J.B. Van Hollen defended the result: “When the defendant pushed her young housemate in her doorway while yelling and swearing at him and the police standing outside, police properly stepped in the home to arrest her and protect the young man. When she kicked at the officers and otherwise resisted their lawful instructions, she obstructed an officer.”