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BENCH BLOG: Hot pursuit for a brake-light violation?

By: Jean DiMotto//December 23, 2016

BENCH BLOG: Hot pursuit for a brake-light violation?

By: Jean DiMotto//December 23, 2016

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at
Judge Jean DiMotto retired in 2013 after
16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected].

In its first non-disciplinary case of the term, the Wisconsin Supreme Court issued a 3-1-3 decision for the second time in six months despite the presence of a new justice.

State v. Weber involved a warrantless entry into a man’s garage. It examined probable cause and hot pursuit as justifications for the entry.

Traffic stop in a garage

Richard Weber was driving on a county highway when a deputy sheriff observed that the high-mounted brake lamp on Weber’s vehicle was not working properly and that Weber’s vehicle had strayed over the white line.

Deciding to pull Weber over, the deputy turned on his emergency lights but not his siren. It’s unclear whether Weber noticed the emergency lights. It was daylight. Also, he did not increase his speed and did not use his side or rearview mirrors to make furtive glances at the squad car.

Weber instead continued a mere 30 yards farther down the road, then turned onto his driveway and drove into the attached garage of his home. The deputy followed and parked on the driveway.

The deputy and Weber both left their vehicles at about the same time. The deputy ran to the front of his squad car. Weber, in contrast, walked slowly to climb the steps to the door of his home.

If the deputy initially said anything to Weber, the words are not included in the record. Only when the deputy had entered the garage did he tell Weber to stop and that he wanted to talk.

Weber ignored him and continued up the steps.

The deputy seized Weber by the arm and told him he had stopped him because he had seen the defective brake lamp on Weber’s vehicle. He asked Weber to accompany him so he could “point out exactly the reason for the stop and which light was defective.”

In the midst of all this, he noticed that Weber’s speech was slurred, his eyes glassy and bloodshot and that his breath smelled strongly of intoxicants. Weber made admissions about drinking that day but refused to perform field sobriety tests.

Weber began resisting arrest. By this point, a second deputy had arrived on the scene. The second deputy helped the first deputy bring Weber to the ground so he could be cuffed.

Motion to suppress

Weber was charged with OWI, BAC, resisting, and possession of both marijuana and drug paraphernalia. He was not charged with fleeing and was not cited for the defective brake lamp.

He brought a motion to suppress all evidence from the point of the deputy’s entry into the garage. Wood County Circuit Judge Gregory Potter denied the motion, ruling that the entry was justified by the exigent circumstance of hot pursuit.

He reasoned that Weber was fleeing from the officer’s lawful attempt to stop him, and the deputy therefore had probable cause to believe Weber was committing the crime of fleeing as he pursued him into the garage.

Weber pleaded guilty to some of the charges, was sentenced to prison and appealed. In a per curiam decision, the Court of Appeals reversed. The Supreme Court granted the state’s petition for review.

Lead opinion

Justice Annette Ziegler wrote for the three justices who agreed with the state that the deputy had probable cause to believe Weber had committed two jailable offenses — fleeing and resisting — based on the few seconds it took Weber to travel 30 yards on the highway.

They also agreed with the state that the warrantless entry was justified by the exigency of hot pursuit, the “basic ingredient” of which is “immediate or continuous pursuit of a suspect from the scene of a crime.”

Again, because the three justices concluded that Weber was fleeing and resisting by driving an additional 30 yards on a public highway, they found that this behavior justified the deputy’s “hot pursuit” of him into his garage.

The three justices went on to express the opinion that the deputy’s intrusion was “appropriately limited” since he only walked into the garage and seized Weber, and also because Weber “forced” the intrusion.

Moreover, they argued, the process of getting a warrant, the possibility that Weber might not answer the deputy’s knock at his door and therefore the possibility of a forced entry through a home’s closed door instead of an open garage made the “immediate and limited entry into Weber’s garage … an appropriate approach.”


Justice Daniel Kelly’s concurrence was actually a dissent. Its primary thrust was that there was no probable cause to believe Weber had committed a jailable offense. As the deputy told dispatchers when he followed Weber into his driveway, and as he told Weber when he seized him, this was a traffic stop.

Furthermore, the knowledge element of both resisting and fleeing is absent; the record is silent about whether Weber knowingly resisted or fled.

Still, Kelly found that Weber’s driving into his garage was conduct-evincing consent that the traffic stop take place in the garage. Unsurprisingly, no other justice agreed with this.

Nonetheless, because Kelly found what he regarded to be a constitutional justification for the entry, he joined the mandate to reverse the Court of Appeals.


Separate dissents were written by Justice Ann Walsh Bradley and Justice Rebecca Bradley.

Both dissents were in agreement with the concurrence that there was no probable cause to believe Weber had committed a jailable offense.

Both dissenters criticized the lead opinion’s circular logic that the jailable offense was the alleged flight itself. And both dissenters asserted that the facts did not show hot pursuit.


Significantly, both dissenters trenchantly warned of the dangers in the lead opinion.

From Justice Ann Walsh Bradley: “Facts shape the contours of our constitutional guarantees. By lowering the standard to meet the facts in this case, the lead opinion would erode the constitutional rights of us all. It sets a trajectory where, bit by bit, almost unnoticed, we may awaken one day to discover that the freedoms for which so many have fought and sacrificed have been severely curtailed.”

Justice Rebecca Bradley wrote: “Merely because the officer’s actions in this case may not strike us as particularly offensive does not mean this court should lower its guard over constitutional rights.

“Precisely because the absence of alarming facts in this case may render the court’s encroachment on the Fourth Amendment a stealthy one, I write to caution against this latest contribution to the gradual depreciation of the right of a person to retreat into the home, free from unreasonable physical entry,” she added.


Four justices concluded there was no probable cause for the entry into Weber’s garage. Had Justice Kelly not gone out on a limb by dubiously finding consent, this 3-1-3 opinion would have been a 4-3 opinion fully consonant with the Fourth Amendment.

As it is, every aspect of the lead opinion’s analysis is constitutionally scary.

The opinion bruises the Fourth Amendment’s quintessential guarantee of being free from government intrusion into one’s home and its curtilage.

Fortunately, the decision has no precedential value because, although four justices agreed on the reversal mandate, only three could agree on a rationale.

All this because of a broken brake light.


Should Justice Protasiewicz recuse herself on gerrymandering cases that go before the Wisconsin Supreme Court?

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