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Officers did not constructively enter home

Hon. Lisa Neubauer

Hon. Lisa Neubauer

The Wisconsin Court of Appeals on Nov. 24 recognized that police could violate the Fourth Amendment by “constructive entry” of a home — being so intrusive that a reasonable person would not feel free to deny entry.

Nevertheless, it found that, where the officers told the suspect they would get a warrant if he did not cooperate, they implicitly told him he was free to disregard them.

In 2006, police officers in Sheboygan investigated a report of a vehicle striking a fire hydrant.

Arriving at the home of the suspect, Brian J. Cesar, two officers knocked on the doors and windows for five to 10 minutes, while a third officer guarded the back door.

They asked Cesar to come out and talk to them, but Cesar refused. The officers told Cesar that they were going to stay there until they either got a warrant or Cesar came out.

Cesar eventually exited and spoke to the police, after which he was arrested for driving while intoxicated and hit and run of property.

Cesar moved to suppress the evidence, arguing that the officers constructively seized him within his home unlawfully. The circuit court denied the motion, and Cesar appealed.

In an opinion by Judge Lisa Neubauer, the Court of Appeals affirmed.

The court noted that no Wisconsin cases address whether police constructively seized a defendant in his home, but federal cases hold that a constructive entry occurs when police do not enter, but “deploy overbearing tactics that essentially force the individual out of the home.” U.S. v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005).

The court distinguished two cases that Cesar argued supported his contention that he was constructively seized, U.S. v. Jerez, 108 F.3d 684 (7th Cir. 1997), and U.S. v. Reeves, 524 F.3d 1161 (10th Cir. 2008).

In Reeves, officers were able to obtain entry into the defendant’s motel room only after pounding on the door and window and yelling loudly for more than 20 minutes at 2:30 a.m.

In Jerez, officers knocked on the defendant’s motel room door for several minutes at 11 p.m. They also commanded, “Police. Open up the door.”

In both cases, the circuit court held that a seizure occurred, because a reasonable person would not have felt free to terminate the encounter.

But the Court of Appeals held that the officers’ conduct outside Cesar’s home did not rise to the same level.

The court noted that the encounter did not occur late at night, and the officers did not wake Cesar up from sleeping. In addition, the officers did not threaten to enter the residence or request entry into the residence.

Judge Neubauer wrote, “The officers simply requested Cesar to speak with them, and informed Cesar that if he chose not to speak with them, they would obtain a warrant. Implicit in this information is that Cesar could, in fact, ignore their requests that he cooperate and choose not to speak with them.”

What the Court Held

Case: City of Sheboygan v. Cesar, No. 2009AP3049

Issue: Did police constructively seize a suspect by trying to get him to exit his home and talk to them?

Holding: No. Where a reasonable person would believe he was free not to exit, there was no constructive entry.

Attorneys: For Plaintiff: Charles C. Adams, Sheboygan; For Defendant: Andrew Mishlove, Lauren Stuckert, Glendale

David Ziemer can be reached at david.ziemer@wislawjournal.com.

3 comments

  1. Since when do Constitutional rights depend on what time of day it is?

  2. i guess its the specter of the proverbial knock in the middle of the night.

  3. Interesting, if so, I would place this in the “tyranny of the majority/personal opinion” analysis that is like a cancer on the body of Constitutional law. It relies on the assumption that “everybody” lives a “normal” 9-5 life. It interjects the personal preferences and beliefs of judges into a Constitution that makes no such provision. I think the Constitution provides limits on government 24/7, 365 days a year. It has no “9-5” provisions and reading them into the document is simply wrong. The answer to this problem is to go back to the original warrant requirement and eliminate the 40+ judicially created exceptions to the 4th Amendment.

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