                                                               2016 WI 96

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2014AP304-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Richard L. Weber,
                                 Defendant-Appellant.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED:         November 29, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 6, 2016

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Wood
   JUDGE:              Gregory J. Potter

JUSTICES:
   CONCURRED:          KELLY, D., J. concurs (Opinion filed).
   DISSENTED:          BRADLEY, A. W., J. dissents (Opinion filed).
                       BRADLEY, R. G., J. dissents, joined by
                       ABRAHAMSON, J. (Opinion filed).
  NOT PARTICIPATING:

ATTORNEYS:
       For      the    plaintiff-respondent-petitioner   the   cause   was
argued by Nancy A. Noet, assistant attorney general, with whom
on the brief(s) was Brad D. Schimel, attorney general.


       For the defendant-appellant, there was a brief and oral
argument by Kara L. Mele, assistant state public defender.
                                                                         2016 WI 96
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.       2014AP304-CR
(L.C. No.    2012CF274)

STATE OF WISCONSIN                             :             IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent-Petitioner,
                                                                      FILED
      v.                                                         NOV 29, 2016

Richard L. Weber,                                                   Diane M. Fremgen
                                                                 Clerk of Supreme Court

              Defendant-Appellant.




      REVIEW of a decision of the Court of Appeals.                 Reversed.



      ¶1      ANNETTE KINGSLAND ZIEGLER, J.              This is a review of an

unpublished decision of the court of appeals, State v. Weber,

No. 2014AP304-CR, unpublished slip op. (Wis. Ct. App. Oct. 8,
2015)     (per   curiam),   which   reversed       the    Wood   County      circuit

court's1 order denying defendant Richard Weber's ("Weber") motion

to suppress evidence of drunk driving, possession of marijuana,

and possession of drug paraphernalia, and remanded the case to

the circuit court with directions to vacate its judgment of

conviction, permit Weber to withdraw his plea, and grant Weber's


      1
          The Honorable Gregory J. Potter presided.
                                                                           No.     2014AP304-CR



motion to suppress evidence.                   Weber, unpublished slip op., ¶¶1,

10.

       ¶2    A   deputy       of    the     Wood      County      sheriff's        department

attempted to pull Weber over on a public highway by activating

the emergency lights on his vehicle after observing that Weber's

vehicle had a defective high-mounted brake lamp and watching the

vehicle weave over the highway's fog line.                          When Weber failed to

yield to the traffic stop, the deputy pursued Weber into his

driveway and apprehended him in his garage.                          The question before

this   court     is     whether      the    deputy's         warrantless          entry       into

Weber's     garage      and    subsequent          arrest    of     Weber    violated         the

Fourth Amendment of the United States Constitution and Article

I, Section 11 of the Wisconsin Constitution, or whether the need

for a warrant was obviated by the exigent circumstance of the

deputy's "hot pursuit" of a fleeing suspect who had committed

jailable offenses.             See, e.g., United States v. Santana, 427

U.S. 38 (1976).

       ¶3    We conclude that the deputy's warrantless entry into
Weber's      garage        and       subsequent            arrest     of         Weber        were

constitutional          because      they      were       justified    by        the     exigent

circumstance       of    hot     pursuit       of     a    fleeing     suspect          who   had

committed jailable offenses.                   The deputy had probable cause to

believe     that      Weber        had    committed         two     jailable           offenses,

immediately pursued Weber, and performed a limited entry into

Weber's     open     garage      for     the    purpose       of     preventing          Weber's

continued     flight.          Under      these       specific       circumstances,           the


                                               2
                                                                 No.     2014AP304-CR



deputy's actions were constitutionally reasonable.                     Accordingly,

we reverse the decision of the court of appeals.

                          I.    FACTUAL BACKGROUND

      ¶4   On April 20, 2012, Deputy Calvin Dorshorst ("Deputy

Dorshorst") of the Wood County sheriff's department and Weber

were driving in separate vehicles in Arpin, Wisconsin.                       Deputy

Dorshorst observed that the high-mounted brake lamp on Weber's

vehicle was not working properly and saw Weber's vehicle "weave

from its lane of travel" "[o]ver the white fog line."                        Deputy

Dorshorst activated his vehicle's emergency lights in an attempt

to conduct a traffic stop.              Weber did not, however, stop his

vehicle.     Instead,     he    drove    about    100   feet,    turned     into   a

driveway, and pulled into an attached garage.                   Deputy Dorshorst

followed the vehicle and parked 15 to 20 feet behind it but

outside of the garage with his vehicle's emergency lights still

on.   At   some   point    during       this     process,   Deputy        Dorshorst

"contact[ed] dispatch notifying them [he] had a traffic stop."

      ¶5   Weber and Deputy Dorshorst exited their vehicles at
about the same time.           Weber began moving toward a door of the

attached house inside the garage.              Deputy Dorshorst ran to the

front of his vehicle and in the direction of the garage, where

he witnessed Weber "walking slowly" and "somewhat staggering" up

steps inside the garage leading to the door to the house.                          As

Deputy Dorshorst ran toward Weber he told Weber to stop and that




                                         3
                                                                   No.     2014AP304-CR



he needed to speak with him.2                  Weber did not stop but instead

continued up the steps to the house.                  Deputy Dorshorst entered

the garage and "secured [Weber's] arm" as Weber was "just inside

his [house's] door" at the top of the steps.                     Weber stopped and

Deputy Dorshorst explained that he had stopped Weber because of

the    defective         high-mounted    brake     lamp     on   Weber's     vehicle.

Deputy Dorshorst asked Weber to accompany him to Weber's vehicle

so that Deputy Dorshorst could "point out exactly the reason for

the stop and which light was defective."                   During this time Weber

tried to pull away from Deputy Dorshorst and enter his house.

Deputy Dorshorst noticed that Weber had "slow, slurred speech"

and "glassy, bloodshot eyes."                  Additionally, Deputy Dorshorst

could smell "a strong odor of intoxicants."

       ¶6        Weber    and   Deputy    Dorshorst       eventually     exited     the

garage and walked back outside, where Deputy Dorshorst asked

Weber if he had been drinking.                 Weber informed Deputy Dorshorst

that       "he   was     drinking   at   his    residence    and   a     while    after

drinking a couple of beers, he left and went to the Village of
Arpin, at which time . . . he went to another place and was

drinking."         Weber was "unable to identify" the location in Arpin

to which he had traveled.            After consuming "a few drinks" there,

Weber explained, he had returned to his home.                      Weber informed




       2
       There may be some dispute as to the deputy's position at
the time he first spoke to Weber. For a discussion, see infra,
n.8.


                                           4
                                                                             No.    2014AP304-CR



Deputy      Dorshorst      that   he    thought         he    had    had     "way   too    much"

alcohol.

       ¶7     Deputy Dorshorst asked Weber to perform field sobriety

tests, but Weber refused.               Weber then tried to leave and reenter

his garage, but Deputy Dorshorst advised Weber he was not free

to do so.       Weber "aggressively pushed into [Deputy Dorshorst's]

chest with his head" around the same time that a second deputy

pulled into the driveway.               Deputy Dorshorst told Weber a second

time   that    he     was   not    free      to       leave.         Weber    "continued            to

resist," and the two deputies "escorted the defendant to the

ground and secured his arms."                        Weber was put in handcuffs and

placed under arrest.

       ¶8     The   deputies      searched            Weber    and    he     consented         to    a

search of his vehicle.                 In the vehicle the deputies found "a

tinfoil      square     folded     up       with       [a]     green        leafy     vegetable

substance       inside,       which         was       later        tested     positive          for

[tetrahydrocannabinols],"              as    well       as     a    "metal     pipe       in    the

ashtray of the vehicle."               The pipe "had a burned residue inside
it" and "smelled of burnt marijuana."

       ¶9     Weber was eventually taken to a hospital where his

blood was drawn.            Later analysis of his blood showed a blood

alcohol concentration of 0.24.

                            II.   PROCEDURAL BACKGROUND

       ¶10    On    July    9,    2012,      a       criminal       complaint       was    filed

against Weber in Wood County circuit court charging him with one




                                                 5
                                                               No.    2014AP304-CR



count of operating while intoxicated, contrary to Wis. Stat.

§ 346.63(1)(a) (2011-12),3 tenth and subsequent offense, see Wis.

Stat.     § 346.65(2)(am)7.;      one       count   of    operating        with   a

prohibited    alcohol   concentration,        contrary    to   § 346.63(1)(b),

tenth and subsequent offense, see § 346.65(2)(am)7.; one count

of possession of tetrahydrocannabinols, contrary to Wis. Stat.

§ 961.41(3g)(e); possession of drug paraphernalia, contrary to

Wis. Stat. § 961.573(1); and resisting an officer, contrary to

Wis. Stat. § 946.41(1).        On August 14, 2012, an information was

filed in the case.

     ¶11    On October 24, 2012, Weber filed a motion collaterally

attacking one of his prior convictions for drunk driving on the

ground that he had not properly waived his right to counsel when

entering his plea in that case.             On October 29, 2012, Weber also

moved the circuit court

     for an order excluding [Weber's] illegal arrest and
     evidence obtained as a result of the illegal arrest,
     including but not limited to the following: the blood
     alcohol    concentration,    officer's    observations
     including glassy eyes, slurred speech, and odor of
     intoxicants, statements made by defendant, defendant's
     refusal to perform field sobriety tests, a metal pipe
     believed to be drug paraphernalia, and tin foil
     containing a green leafy vegetable substance believed
     to be tetrahydrocannabinols.
     ¶12    On   February   21,    2013,      the   circuit     court      granted

Weber's    motion    collaterally       attacking        one   of    his     prior

convictions but denied Weber's suppression motion.                    As to the

     3
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.


                                        6
                                                                           No.        2014AP304-CR



latter       ruling,        the      circuit       court    concluded           that      Deputy

Dorshorst's actions were justified by the exigent circumstance

of     hot    pursuit.            Specifically,        Weber       was     fleeing        Deputy

Dorshorst's lawful attempts to stop him, Deputy Dorshorst had

probable cause to believe that Weber was committing a crime in

so    doing,       and    Deputy     Dorshorst's       pursuit      of    Weber        for    this

offense was "promptly made and maintained."

       ¶13     On May 23, 2013, an amended information was filed in

the    case.         On    the     same     day,    Weber     pleaded      no     contest       to

operating          with     a     prohibited        alcohol       concentration,             ninth

offense, possession of tetrahydrocannabinols, and resisting an

officer.       The other two counts against Weber were dismissed.                              On

August 6, 2013, the circuit court sentenced Weber to four years

of initial confinement and four years of extended supervision on

the operating with a prohibited alcohol concentration charge and

ordered that Weber pay costs on the other two offenses.                                         On

August 12, 2013, the court's judgment of conviction of Weber was

filed.       On January 30, 2014, Weber filed a notice of appeal.
       ¶14     On October 8, 2015, the court of appeals reversed the

circuit       court's        order     denying       Weber's      motion         to     suppress

evidence       and       remanded     the    case     to    the    circuit        court      with

directions to vacate its judgment of conviction, permit Weber to

withdraw his plea, and grant Weber's motion to suppress.                                  Weber,

unpublished slip op., ¶¶1, 10.                     The court of appeals explained

that    "the       exigent      circumstances        requirement         means    that       there

must    be     a    potential        for    danger    to    life,    risk        of     evidence
destruction, or likelihood of escape."                            Id., ¶7.            The court
                                               7
                                                                      No.     2014AP304-CR



added that the State failed to explain how this standard was

met;   the     State      instead     "appear[ed]       to   assume    that     all    hot

pursuits qualify as exigent circumstances" but "provide[d] no

legal argument to support that assumption."                        Id., ¶¶8-9.         The

court itself "fail[ed] to discern why an immediate warrantless

entry was justified" and ultimately reversed on the ground that

the State had conceded Weber's argument by failing to rebut it.

Id., ¶9 (citing Charolais Breeding Ranches, Ltd. V. FPC Sec.

Corp., 90 Wis. 2d 97, 108-09, 279 N.W.2d 493 (Ct. App. 1979)).

       ¶15    On November 6, 2015, the State filed a petition for

review in this court.             On February 3, 2016, this court granted

the petition.

                             III.     STANDARD OF REVIEW

       ¶16    "Our review of an order granting or denying a motion

to   suppress       evidence      presents       a    question   of    constitutional

fact."       State v. Iverson, 2015 WI 101, ¶17, 365 Wis. 2d 302, 871

N.W.2d 661 (quoting          State v. Robinson, 2010 WI 80,                    ¶22, 327

Wis. 2d 302,        786    N.W.2d 463).          In    answering      these    types   of
questions, this court "review[s] the circuit court's findings of

historical      fact      under   a   deferential       standard,      upholding      them

unless       they    are     clearly        erroneous,"      then      "independently

appl[ies] constitutional principles to those facts."                           Id., ¶18

(quoting Robinson, 327 Wis. 2d 302, ¶22).

                                      IV.   ANALYSIS

       ¶17    The Fourth Amendment to the United States Constitution

provides:


                                             8
                                                                        No.     2014AP304-CR


           The right of the people to be secure in their
      persons,   houses,   papers,   and  effects,  against
      unreasonable searches and seizures, shall not be
      violated, and no Warrants shall issue, but upon
      probable cause, supported by Oath or affirmation, and
      particularly describing the place to be searched, and
      the persons or things to be seized.
U.S. Const. amend. IV.4              Article I, Section 11 of the Wisconsin

Constitution is a "substantively identical provision . . . that

this court interprets consistently with the Fourth Amendment."

State     v.    Richter,      2000    WI    58,    ¶27,    235     Wis. 2d 524,         612

N.W.2d 29 (citing State v. Secrist, 224 Wis. 2d 201, 208, 589

N.W.2d 387 (1999)).

      ¶18      "It is a '"basic principle of Fourth Amendment law

that searches and seizures inside a home without a warrant are

presumptively        unreasonable."'               Nevertheless,          because       the

ultimate touchstone of the Fourth Amendment is 'reasonableness,'

the   warrant      requirement        is    subject   to        certain       exceptions."

Brigham     City    v.     Stuart,    547   U.S.    398,    403     (2006)       (citation

omitted) (quoting Groh v. Ramirez, 540 U.S. 551, 559 (2004)).

Relevant to the warrantless home entry that occurred in this

case,5    this     court    has   recognized       that    "a    home     entry,    though

unaccompanied by a warrant, is lawful if 'exigent circumstances'

      4
       The Fourth Amendment applies to the states through the
Fourteenth Amendment. E.g., State v. Kramer, 2009 WI 14, ¶18 &
n.6, 315 Wis. 2d 414, 759 N.W.2d 598 (citing Mapp v. Ohio, 367
U.S. 643 (1961)).
      5
       The State does not disagree with Weber's position that his
garage was protected under the Fourth Amendment as curtilage of
his home.   See, e.g., State v. Davis, 2011 WI App 74, ¶¶9-15,
333 Wis. 2d 490, 798 N.W.2d 902.


                                             9
                                                                      No.     2014AP304-CR



are   present,"       a      condition     satisfied        when      "it     would    be

unreasonable        and     contrary      to    public      policy       to    bar    law

enforcement officers at the door."                     State v. Ferguson, 2009 WI

50, ¶19, 317 Wis. 2d 586, 767 N.W.2d 187 (quoting Richter, 235

Wis. 2d 524, ¶28).

      [T]here are four well-recognized categories of exigent
      circumstances that have been held to authorize a law
      enforcement officer's warrantless entry into a home:
      1) hot pursuit of a suspect, 2) a threat to the safety
      of a suspect or others, 3) a risk that evidence will
      be destroyed, and 4) a likelihood that the suspect
      will flee.
Id., ¶20 (quoting Richter, 235 Wis. 2d 524, ¶29).                             The State

argues      that    the     first   of    these        categories,      hot     pursuit,

justified Deputy Dorshorst's actions in this case.

      ¶19    Before        this   court    will    uphold      Deputy       Dorshorst's

warrantless        entry    on    the   grounds        asserted,   the      State     must

"show[]     that     the     warrantless       entry     was   both     supported      by

probable      cause        and    justified       by     exigent      circumstances."




                                           10
                                                                  No.     2014AP304-CR



Robinson,    327    Wis. 2d 302,     ¶24.6      We    now   assess        these   two

components of the State's claim.

                            A.    Probable Cause

    ¶20     "The probable cause requirement in the arrest context

protects    an     individual's    interest      in   his    or     her     personal

liberty.     Thus, the proper inquiry in an arrest challenge is

whether    probable    cause     exists    to   believe     that    a     particular

suspect has committed a crime."              State v. Hughes, 2000 WI 24,

¶20, 233 Wis. 2d 280, 607 N.W.2d 621 (citing State v. Kiper, 193

Wis. 2d 69, 82, 532 N.W.2d 698 (1995)).

    Probable cause to arrest is the quantum of evidence
    within the arresting officer's knowledge at the time
    of the arrest which would lead a reasonable police
    officer to believe that the defendant probably
    committed or was committing a crime. There must be
    more than a possibility or suspicion that the
    defendant committed an offense, but the evidence need
    not reach the level of proof beyond a reasonable doubt
    or even that guilt is more likely than not.




    6
       One fact that we need not consider in this case is Deputy
Dorshorst's "subjective motivation" for entering Weber's garage.
Brigham City v. Stuart, 547 U.S. 398, 404 (2006). "An action is
'reasonable' under the Fourth Amendment, regardless of the
individual   officer's  state   of   mind,  'as   long  as   the
circumstances, viewed objectively, justify [the] action.'" Id.
(alteration in original) (quoting Scott v. United States, 436
U.S. 128, 138 (1978)). "[W]hen an officer's Fourth Amendment
search and seizure conduct is supported by an objectively
ascertainable basis for probable cause or reasonable suspicion,
the police conduct meets the Fourth Amendment's requirement of
reasonableness, thereby causing subjective motivations to be of
little concern." Kramer, 315 Wis. 2d 414, ¶27 (citing Whren v.
United States, 517 U.S. 806, 811 (1996)).


                                      11
                                                                  No.     2014AP304-CR



Secrist, 224 Wis. 2d at 212 (citations omitted).                        The test to

determine probable cause is objective, cf., e.g., Robinson, 327

Wis. 2d 302, ¶26 (search case), and requires an examination of

the totality of the circumstances.                Kiper, 193 Wis. 2d at 82

(citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).                         Further,

"probable cause eschews technicality and legalisms in favor of a

'flexible,     common-sense      measure         of     the   plausibility          of

particular    conclusions     about    human     behavior.'"         Secrist,      224

Wis. 2d at 215 (quoting Kiper, 193 Wis. 2d at 83).

    ¶21   The     State     argues     that      at     the   time       of    Deputy

Dorshorst's    entry   into   Weber's       garage,     Deputy    Dorshorst       "had

probable cause to believe that Weber had committed two jailable

offenses,"    namely      violations        of   Wis.     Stat.      §§ 346.04(2t)

("Obedience to traffic officers, signs and signals; fleeing from

officer.") and 946.41(1) ("Resisting or obstructing officer.").

The first of these statutes provides, "No operator of a vehicle,

after having received a visible or audible signal to stop his or

her vehicle from a traffic officer or marked police vehicle,
shall knowingly resist the traffic officer by failing to stop

his or her vehicle as promptly as safety reasonably permits."

§ 346.04(2t).       The     second     of    these      statutes        criminalizes

"knowingly resist[ing] or obstruct[ing] an officer while such

officer is doing any act in an official capacity and with lawful

authority."     § 946.41(1).     Each of these offenses is punishable

by a fine of $10,000, imprisonment for up to nine months, or

both.   Wis. Stat. §§ 346.17(2t), 946.41(1), 939.51(3)(a).


                                       12
                                                                            No.    2014AP304-CR



       ¶22       In   response,       Weber    argues       that    probable       cause    was

lacking       for     both    jailable       offenses       because      Deputy     Dorshorst

possessed no evidence that Weber "knowingly resist[ed]," Wis.

Stat.       §§    346.04(2t),        or   "knowingly . . . obstruct[ed],"                  Wis.

Stat. § 946.41(1), Deputy Dorshorst.7

       ¶23       We   conclude       that     at    the    time     he    entered     Weber's

garage, Deputy Dorshorst had probable cause to arrest Weber for

violations of Wis. Stat. §§ 346.04(2t) and 946.41(1).                                     Deputy

Dorshorst activated his emergency lights while driving behind

Weber's vehicle but Weber failed to pull over.                            Deputy Dorshorst

pulled his flashing vehicle into Weber's driveway and parked it

behind Weber's vehicle before Weber had even exited it, but

Weber did not acknowledge the attempted stop.                             Deputy Dorshorst

called after Weber, but Weber made no reply.                              "We evaluate the

existence of probable cause objectively, concerned with whether

law enforcement acted reasonably."                         Robinson, 327 Wis. 2d 302,

¶26 (search case).                 Our focus is not on whether Weber in fact

fled       Deputy     Dorshorst,      but     instead      whether       the   circumstances
would have led a reasonable law enforcement officer to believe

that       Weber      was    probably        fleeing       him.       See      Secrist,     224

Wis. 2d at          212.      A    reasonable       law    enforcement         officer    would

conclude         on   this        evidence    that     Weber       was    likely     feigning

ignorance          and      thus    fleeing;        most     individuals          would    have

responded to Deputy Dorshorst's obvious attempts to catch his

       7
       Weber does not develop independent arguments relating to
other portions of the statutes.


                                               13
                                                                                  No.      2014AP304-CR



attention.            Cf.     State        v.    Stewart,         143    Wis. 2d 28,          35,     420

N.W.2d 44 (1988) ("Intent may be inferred from the defendant's

conduct . . . .").

      ¶24     Our        conclusion             that        Deputy       Dorshorst          possessed

probable cause to arrest Weber is only bolstered by the circuit

court's finding that Weber was in fact "fleeing the deputy in

order   to       avoid       the   stop,"         a     finding        which    is      not    clearly

erroneous because it is not "contrary to the great weight and

clear preponderance of the evidence."                              State v. Popke, 2009 WI

37,   ¶20,    317       Wis. 2d 118,             765       N.W.2d 569       (quoting          State    v.

Turner,       136        Wis. 2d 333,              343,          401     N.W.2d 827           (1987)).

Consequently, we are "bound not to upset" the court's factual

finding.      Id. (emphasis added) (quoting Turner, 136 Wis. 2d at

343);   see      also        Iverson,       365       Wis. 2d 302,        ¶18     (characterizing

applicable        standard            of        review       as        "deferential"          (quoting

Robinson, 327 Wis. 2d 302, ¶22)).

      ¶25     Weber          contends            that       Deputy        Dorshorst's           verbal

directive        to    Weber       to      stop       as     Weber       neared      his      door    is
irrelevant        to     a    probable          cause       analysis       because         Weber      was

already     in    the        garage     when      it       was    issued.       We      reject       this

argument.        The relevant question at this stage of the analysis

is whether an officer would reasonably conclude prior to the

officer's warrantless entry that Weber had committed a jailable

offense and was now fleeing from arrest for that crime.                                              Cf.,

e.g., Santana, 427 U.S. at 42 ("In Warden v. Hayden, 387 U.S.

294 (1967), we recognized the right of police, who had probable
cause to believe that an armed robber had entered a house a few
                                                      14
                                                              No.     2014AP304-CR



minutes before, to make a warrantless entry to arrest the robber

and to search for weapons.").               Weber's failure to respond to

highly noticeable "visible [and] audible signal[s]" directed at

him while he was in the street and in his garage, Wis. Stat.

§ 346.04(2t), strongly suggested that he was in the process of

knowingly fleeing Deputy Dorshorst's lawful stop.                     We stress

that       "an   officer's   conclusions    must   be   reasonable    under   the

circumstances,         not    technically     certain."        Secrist,       224

Wis. 2d at 215.

       The process does not deal with hard certainties, but
       with   probabilities.  Long   before  the   law   of
       probabilities was articulated as such, practical
       people formulated certain common-sense conclusions
       about human behavior; jurors as factfinders are
       permitted to do the same——and so are law enforcement
       officers.
Id. (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality

opinion)). This court can properly consider Deputy Dorshorst's

oral commands.8

       8
       Weber comments that "[t]he circuit court did not make an
explicit finding as to whether the deputy was inside or outside
the garage when he first spoke to [Weber]." A fair reading of
the record makes clear that a finding that Deputy Dorshorst was
outside the garage at the time he first spoke to Weber was at
least implicit. Deputy Dorshorst specifically testified that he
was not in the garage prior to first speaking to Weber.      The
circuit court concluded that "[o]nce inside the garage, [Weber]
did not wait for the deputy to approach," but "instead attempted
to flee the deputy, even after obtaining verbal commands." The
court then continued, "because of the defendant's actions, the
deputy took pursuit."    (Emphasis added.)  In other words, the
court found that Weber's failure to respond to Deputy
Dorshorst's verbal commands partly caused and thus preceded
Deputy Dorshorst's entry into the garage.

                                                                     (continued)
                                       15
                                                                   No.     2014AP304-CR



    ¶26       Before he entered Weber's garage, the evidence before

Deputy Dorshorst suggested, at the very least, that it was as

likely as not that Weber had committed jailable offenses by

failing to pull to the side of the road as soon as reasonably

possible.       Consequently,       Deputy     Dorshorst     possessed         probable

cause to arrest Weber.            See Secrist, 224 Wis. 2d at 212 (citing

State   v.    Mitchell,     167    Wis. 2d 672,         681-82,    482     N.W.2d 364

(1992)).       To conclude that probable cause does not exist on

these facts could be construed as a sea change in the law.

Weber's defense as to why he did not pull over earlier, instead

proceeding into his garage and attempting to enter his home, all

while   the    law    enforcement       vehicle   had     its     emergency      lights

activated and despite Deputy Dorshorst calling out to him, is a

question      for    the   jury    to   weigh     and    consider        but   is   not

determinative of probable cause.                The court's determination of

probable cause is distinct from a defense.                      Neither statute at

issue prescribes a time or distance requirement.                          This court

should neither read such a requirement into the statute nor




     But even if the circuit court failed to make a specific
finding on this point, to the extent such a finding would be
outcome-determinative, we can assume the trial court made it.
See State v. Echols, 175 Wis. 2d 653, 673, 499 N.W.2d 631 (1993)
("When a trial court does not expressly make a finding necessary
to support its legal conclusion, an appellate court can assume
that the trial court made the finding in the way that supports
its decision." (citing State v. Wilks, 117 Wis. 2d 495, 503, 345
N.W.2d 498   (Ct.   App. 1984),   aff'd,  121   Wis. 2d 93,  358
N.W.2d 273 (1984)).


                                          16
                                                                  No.        2014AP304-CR



conflate       the    question     of    probable   cause      with     a     potential

defense.

                           B.     Exigent Circumstances

      ¶27      We must next examine whether the exigencies of the

situation       justified       Deputy    Dorshorst's     entry       into      Weber's

garage,        or    whether     Deputy    Dorshorst     was     constitutionally

required to obtain an arrest warrant.                  As discussed, the State

relies on Deputy Dorshorst's "hot pursuit" of Weber to validate

the entry.9

      ¶28      Both this court and the Supreme Court of the United

States have recognized that "law enforcement officers may make a

warrantless entry onto private property . . . to engage in '"hot

pursuit"'       of   a   fleeing    suspect."       Stuart,    547    U.S.      at   403

(quoting Santana, 427 U.S. at 42-43); see, e.g.,                      Ferguson, 317

Wis. 2d 586, ¶20 (characterizing "hot pursuit of a suspect" as

one       of    several        "well-recognized      categories         of      exigent

circumstances" (quoting Richter, 235 Wis. 2d 524, ¶29)).                             The

basic ingredient of the exigency of hot pursuit is "immediate or
continuous pursuit of [a suspect] from the scene of a crime."

Richter, 235 Wis. 2d 524, ¶32 (alteration in original) (quoting

State v. Smith, 131 Wis. 2d 220, 232, 388 N.W.2d 601 (1986),

abrogated on other grounds by State v. Felix, 2012 WI 36, 339

Wis. 2d 670, 811 N.W.2d 775).


      9
       Instead of relying on theories that were not briefed or
argued, we base our conclusions on the long-established doctrine
of hot pursuit.


                                           17
                                                                       No.     2014AP304-CR



       ¶29   For     example,       in    Santana,     a   seminal          case   on     hot

pursuit, the Supreme Court concluded that officers with probable

cause to arrest a defendant standing in the threshold of her

residence      and    who    "retreat[ed]         into . . . her       house"        as   the

officers attempted to seize her could enter "through the open

door" and "catch[] her in the vestibule."                       Santana, 427 U.S. at

40,   42-43.         And    in    Richter,    this    court     determined         that   an

officer responding to a report of a burglary at a trailer park

who was told by the victim upon arrival that the burglar had

entered a certain trailer could enter that trailer without a

warrant.     Richter, 235 Wis. 2d 524, ¶¶1-2.

       ¶30   Again,        "[t]he     ultimate       touchstone        of    the     Fourth

Amendment is 'reasonableness,'" and "the warrant requirement is

subject to certain reasonable exceptions."                        Kentucky v. King,

563   U.S.   452,      459       (2011)   (alteration      in    original)         (quoting

Stuart, 547 U.S. at 403).                 The necessity——and thus intuitive

reasonableness——of a hot pursuit doctrine in our constitutional

law is apparent.            In many cases, hot pursuit into a residence
will serve the purposes of protecting a home's occupants, c.f.,

e.g., Hayden, 387 U.S. at 298-99, or preventing the destruction

of    evidence.        See,       e.g.,   Santana,      427     U.S.    at     43.        But

"[e]xigent circumstances exist when 'it would be unreasonable

and contrary to public policy to bar law enforcement officers at

the door,'" Ferguson, 317 Wis. 2d 586, ¶19 (quoting Richter, 235

Wis. 2d 524, ¶28), and even in the absence of these additional

benefits, the hot pursuit doctrine serves an important public
policy purpose:
                                             18
                                                                   No.   2014AP304-CR


       Law enforcement is not a child's game of prisoner[']s
       base, or a contest, with apprehension and conviction
       depending upon whether the officer or defendant is the
       fleetest of foot. A police officer in continuous
       pursuit of a perpetrator of a crime committed in the
       officer's presence . . . must be allowed to follow the
       suspect into a private place, or the suspect's home if
       he chooses to flee there, and effect the arrest
       without a warrant.
State   v.   Sanders,     2008    WI   85,      ¶133,    311   Wis. 2d 257,      752

N.W.2d 713    (Prosser, J., concurring) (alteration in original)

(quoting State v. Blake, 468 N.E.2d 548, 553 (Ind. Ct. App.
1984)); see also Santana, 427 U.S. at 42 (refusing to permit a

defendant to "thwart an otherwise proper arrest" by withdrawing

into her home).       "[C]reating an incentive for . . . suspects to

flee    to   the   home   to     escape     lawful      arrest,"     Sanders,    311

Wis. 2d 257,       ¶133    (Prosser,           J.,   concurring),         generates

disrespect for the law and for law enforcement, risks putting

the public and any participants in the chase in harm's way, and

expends valuable law enforcement resources.                    Consequently, the

hot pursuit doctrine helps ensure that a criminal suspect will

not be rewarded for fleeing the police and that the police will

not be penalized for completing a lawful attempt to apprehend a
suspect, who, by his own actions, has drawn the police into his

home.

       ¶31   Before   proceeding,         we     reemphasize        an    important

dimension of the hot pursuit doctrine.                  In Welsh v. Wisconsin,

466 U.S. 740 (1984), which was not a hot pursuit case, Welsh,

466 U.S. at 753, the Supreme Court characterized its earlier
decision in Santana as involving the "hot pursuit of a fleeing


                                       19
                                                                                  No.    2014AP304-CR



felon."      Id. at 750 (emphasis added) (citing Santana, 427 U.S.

at 42-43).         The court also concluded that "an important factor

to be considered when determining whether any exigency exists is

the gravity of the underlying offense for which the arrest is

being made."        Id. at 753.          After Welsh, some uncertainty existed

regarding whether the hot pursuit doctrine was limited to those

cases    where     officers       were       in    pursuit        of       a    "fleeing      felon."

Compare,      e.g.,      Sanders,     311         Wis. 2d 257,             ¶¶77-83,          122,   134

(Prosser, J., concurring), with id., ¶¶147, 149, 152 (Butler,

J., concurring).

       ¶32    In    Ferguson      this       court           concluded          that    "Welsh      and

Santana      did    not     create       a        bright-line          rule       requiring         the

underlying offense to be labeled a felony in order for exigent

circumstances to justify a warrantless home entry."                                          Ferguson,

317    Wis. 2d 586,       ¶27     (footnote            omitted)       (citing          Sanders,     311

Wis. 2d 257,        ¶71    (Prosser,          J.,           concurring)).               We    instead

clarified      that      "courts,    in       evaluating             whether       a    warrantless

entry   is    justified      by     exigent            circumstances,            should       consider
whether      the   underlying       offense            is    a   jailable         or    nonjailable

offense, rather than whether the legislature has labeled that

offense a felony or a misdemeanor."                          Id., ¶29.

       ¶33    Since then, the Supreme Court has confirmed our view

that    Welsh      and    Santana     do      not           create     a       felony-misdemeanor

distinction, stating:

       [T]hough Santana involved a felony suspect, we did not
       expressly    limit   our   holding   based   on   that
       fact. . . . Welsh . . . [did    not]   involve[]   hot
       pursuit.   Thus, despite our emphasis in Welsh on the

                                                  20
                                                                    No.     2014AP304-CR


     fact that the crime at issue was minor——indeed, a mere
     nonjailable civil offense——nothing in the opinion
     establishes that the seriousness of the crime is
     equally important in cases of hot pursuit.
Stanton v. Sims, 571 U.S. ___, 134 S. Ct. 3, 6 (2013) (per

curiam)     (citations      omitted).          While    the      Court     in    Stanton

acknowledged     a    "basic    disagreement"      among        "federal    and    state

courts nationwide . . . on the question whether an officer with

probable cause to arrest a suspect for a misdemeanor may enter a

home without a warrant while in hot pursuit of that suspect," it

did not "express [a] view" on the ultimate question.                        Id. at 5,

7.   Consequently, Ferguson remains the law and dictates that the

mere fact that the underlying offenses at issue in this case are

misdemeanors is not a bar to application of the hot pursuit

doctrine.

     ¶34    On   the    other    hand,   the     State      urges   this        court   to

establish    a   rule    that    "hot    pursuit       of   a    suspect        based   on

probable cause for a jailable offense" will always justify a

warrantless home entry and arrest.               We decline to conclude that

the confluence of hot pursuit and probable cause to arrest for a

jailable offense will always justify a warrantless entry.                               The

"touchstone      of   the   Fourth     Amendment       is   reasonableness,"            and

"[r]easonableness . . . is           measured      in       objective       terms        by

examining     the     totality    of     the     circumstances."                Ohio     v.

Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Jimeno,

500 U.S. 248, 250 (1991)).




                                         21
                                                                       No.    2014AP304-CR



         ¶35   Evaluation    of     all    the     circumstances        in    this    case

convinces us that Deputy Dorshorst's entry into Weber's garage

was constitutionally reasonable.

         ¶36   To begin with, Deputy Dorshorst was indeed engaged in

"immediate or continuous pursuit of [a suspect] from the scene

of   a    crime."        Richter,    235    Wis. 2d 524,         ¶32   (alteration       in

original)        (quoting    Smith,        131     Wis. 2d at       232).        He    was

attempting        to     apprehend        Weber,     who     was       fleeing       Deputy

Dorshorst's lawful traffic stop on a public highway.                          There was

no delay between Weber's illegal actions and Deputy Dorshorst's

pursuit of Weber.           Cf. id., ¶36 ("There is no evidence in this

record of any delay in [the deputy's] response or pursuit that

would     have    interrupted       the    immediacy       and    continuity     of    the

situation and therefore dissipated the exigency.").

         ¶37     Next, violations of the statutes at issue, Wis. Stat.

§§ 346.04(2t) and 946.41(1), are jailable offenses, Wis. Stat.

§§ 346.17(2t), 946.41(1), 939.51(3)(a), and thus significantly

grave.         Cf.     Ferguson,    317    Wis. 2d 586,          ¶29   ("[C]ourts,       in
evaluating whether a warrantless entry is justified by exigent

circumstances, should consider whether the underlying offense is

a    jailable     or    nonjailable       offense . . . .").            The    available

penalties——up to nine months in prison for violations of each

statute,       §§ 346.17(2t),        946.41(1),        939.51(3)(a)——demonstrate

that the State has a strong "interest in arresting individuals

suspected of committing [these] offense[s]."                       Welsh, 466 U.S. at

754 n.14.


                                            22
                                                               No.     2014AP304-CR



       ¶38    We   note   that   Deputy    Dorshorst's    intrusion     here   was

appropriately limited.           Cf., e.g., Santana, 427 U.S. at 42-43

("This case . . . is clearly governed by Warden [v. Hayden]; the

need to act quickly here is even greater than in that case while

the intrusion is much less." (emphasis added) (citing Hayden,

387 U.S. 294)); id. at 43-44 (White, J., concurring) ("In these

circumstances, a warrant was not required to enter the house to

make    the    arrest,    at     least    where   entry   by   force     was   not

required." (emphasis added)).10            Deputy Dorshorst did not damage




       10
       As part of its analysis in United States v. Santana, 427
U.S. 38 (1976), the Supreme Court examined whether Santana
possessed an "expectation of privacy" while standing in the
doorway of her home.    See Santana, 427 U.S. at 42. One might
argue that this reasoning is now suspect under two recent
Supreme Court cases, United States v. Jones, 565 U.S. ___, 132
S. Ct. 945 (2012), and Florida v. Jardines, 569 U.S. ___, 133 S.
Ct. 1409 (2013), to the extent those cases are read to emphasize
the idea that "for most of our history the Fourth Amendment was
understood to embody a particular concern for government
trespass    upon   the    areas . . . [the   Fourth   Amendment]
enumerates." Jones, 132 S. Ct. at 950; see Jardines, 133 S. Ct.
at 1414.

                                                                     (continued)
                                          23
                                                                No.   2014AP304-CR



any   property,      open    any   doors   or   windows,   or    pull   out   any

weapons.     He simply stepped into Weber's open garage and seized

his   arm.     The     two     actions——entry      and     apprehension——were

calculated to accomplish no more than was absolutely necessary

to halt Weber's escape.             Additionally, the entry was a last

resort.    Deputy Dorshorst had already attempted to stop Weber by

activating his emergency lights and calling after him; it was

due to Weber's actions that Deputy Dorshorst was forced to enter

the garage to accomplish the stop.               Finally, Deputy Dorshorst

ended the intrusion promptly, staying in the garage no longer

than needed.         Cf., e.g., State v. Legg, 633 N.W.2d 763, 773


     Jones and Jardines are both search cases. See Jones, 132 S.
Ct. at 949 ("We hold that the Government's installation of a GPS
device on a target's vehicle, and its use of that device to
monitor the vehicle's movements, constitutes a 'search.'"
(footnote omitted)); id. at 958 (Alito, J., concurring) ("The
Court does not contend that there was a seizure."); Jardines,
133 S. Ct. at 1414 ("We granted certiorari, limited to the
question of whether the officers' behavior was a search within
the meaning of the Fourth Amendment.").    Moreover, the Santana
court's discussion of Santana's expectation of privacy pertained
to whether she was in a public place "when the police first
sought to arrest" her at the "threshold of [her] dwelling," not
whether the area in which she was actually arrested, "the
vestibule of her house," was protected by the Fourth Amendment.
Santana, 427 U.S. at 40-43. The Supreme Court's acknowledgement
of the degree of the officers' "intrusion" in that case occurred
during its subsequent consideration of whether the police could
follow Santana into her house to effect an arrest.     Id. at 42.
Here, Weber was clearly in a public place when Deputy Dorshorst
began his pursuit.     And there is no dispute that a seizure
eventually occurred in Weber's home.    The question at issue is
thus whether, under the totality of the circumstances, the
seizure   which   undoubtedly   occurred   was   constitutionally
reasonable.


                                       24
                                                                        No.     2014AP304-CR



(Iowa 2001) ("Another important circumstance in this case is the

nature      of     the     intrusion.               [The     officer]      entered       [the

defendant's] garage, not her house proper as in Santana or her

bedroom as in Welsh. . . .                    In addition, the magnitude of the

infringement was rather slight.                     [The officer's] entry into [the

defendant's] garage was no surprise to her; he was following

closely on her heels when she entered the garage.                             In addition,

he   entered      through        an    open    door    and   took   only      three   steps

inside.     Thus, the intrusion was peaceful and restricted to that

which was necessary to allow the officer to speak with [the

defendant]." (citation omitted)); State v. Pinkard, 2010 WI 81,

¶¶41-42,         55,     327     Wis. 2d 346,          785    N.W.2d 592        (analyzing

"reasonable[ness]" of "police conduct" in community caretaker

context     by     considering,          inter      alia,    "the   degree       of   overt

authority        and     force        displayed,"     including     whether       "any     of

the . . . officers employed any force or drew their weapons" and

"the availability, feasibility and effectiveness of alternatives

to the type of intrusion actually accomplished" (quoting State
v. Kramer, 2009 WI 14, ¶41, 315 Wis. 2d 414, 759 N.W.2d 598)).11

      ¶39    Deputy        Dorshorst's           actions      in    this       case      were

manifestly reasonable.                 As the State observed at oral argument,

      11
       Our community caretaker line of cases sets forth
guidelines in a separate Fourth Amendment context for analyzing
different aspects of intrusions by the State. See, e.g., State
v. Pinkard, 2010 WI 81, ¶¶29, 41-42, 327 Wis. 2d 346, 785
N.W.2d 592. The cases are by no means controlling here, but are
instead merely a helpful tool for discussing the reasonableness
of Deputy Dorshorst's actions.


                                               25
                                                                             No.   2014AP304-CR



"this case is not about a bad brake light."                              Instead, it is

about       a   defendant,      Weber,       who    declined     to    submit      to     a   law

enforcement officer's lawful attempts to conduct a traffic stop.

Had    Weber      chosen       to    stop    on    the   highway,       or     even      in    his

driveway, Deputy Dorshorst never would have entered his garage.

This is not the type of conduct that the Fourth Amendment brands

"unreasonable";           the       Fourth    Amendment     does       not     dictate        that

officers         who    fail    to    outpace       suspects     on    their       way    to    a

residence are unable to act.                  See Sanders, 311 Wis. 2d 257, ¶133

(Prosser, J., concurring) (quoting Blake, 468 N.E.2d at 553).

Taking the time to obtain an arrest warrant in this case would

have    required        Deputy       Dorshorst      to   halt    an    arrest      which       had

already         begun    outside      of     Weber's     home,    an    arrest        lawfully

premised on probable cause that Weber had committed jailable

offenses and one which required minimal intrusion to complete.

For numerous policy reasons we have already discussed, an arrest

warrant is simply not mandated under these circumstances.                                     See,

e.g., id. (Prosser, J., concurring) ("The enforcement of our
criminal laws . . . is not a game where law enforcement officers

are 'it' and one is 'safe' if one reaches 'home' before being

tagged." (quoting Gasset v. State, 490 So. 2d 97, 98-99 (Fla.

Dist. Ct. App. 1986) (denying certiorari))).12

       12
       We are not persuaded by Weber's references to general
language in Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552
(2013). McNeely did not involve the hot pursuit doctrine.
McNeely, 133 S. Ct. at 1558 (describing question at issue as
"whether the natural dissipation of alcohol in the bloodstream
establishes a per se exigency that suffices on its own to
                                                    (continued)
                                               26
                                                             No.   2014AP304-CR



     ¶40    A counterargument could be made that Deputy Dorshorst

should nonetheless have attempted to secure a warrant to arrest

Weber.     Presumably, Deputy Dorshorst would have needed to stop

at Weber's driveway and let Weber flee into the residence, then

call for backup, secure a perimeter around the house so that

Weber did not continue his attempts to escape law enforcement,

and obtain a warrant.       And then what?        Would those who support

this argument have Deputy Dorshorst knock on the door?                  Given

that Weber was openly fleeing Deputy Dorshorst, it is far from

clear Weber simply would have turned around and opened the door

for him.    If Weber did not open the door, was Deputy Dorshorst

then to break the door in and apprehend Weber inside his actual

house as opposed to inside his open garage?            Especially compared

to that scenario, an immediate and limited entry into Weber's

open garage to complete the stop was an appropriate approach.

     ¶41    The court of appeals below settled upon a version of

Weber's    argument,   stating    that     "the    exigent     circumstances

requirement means that there must be a potential for danger to
life, risk of evidence destruction, or likelihood of escape,"

Weber, unpublished slip op., ¶7, and suggested that such factors

are not present in this case.         Id., ¶9.     This is a form of the

"'hot    pursuit   plus'   approach   that   upholds    hot    pursuits    for

offenses of varying degrees of seriousness where there are other

exigent circumstances present, for example threats of violence

justify   an   exception   to   the   warrant   requirement   for
nonconsensual blood testing in drunk-driving investigations").


                                      27
                                                                                         No.           2014AP304-CR



or     destroyed         evidence,               or        other       emergencies            or        dangerous

situations."             Sanders,                311       Wis. 2d 257,          ¶153         (Butler,          J.,

concurring) (emphasis added).                              But this approach is contradicted

by    our    case       law.           See       id.,       ¶118       (Prosser,         J.,       concurring)

("There is no implication in our case law that 'hot pursuit'

cannot      stand       alone          as    an       exigent          circumstance           justifying         a

warrantless home entry and arrest.                                     On the contrary, our cases

explicitly          recognize               that           hot     pursuit          is        a        sufficient

justification           for        a    warrantless               entry       and     arrest."            (citing

Smith, 131 Wis. 2d at 229; Richter, 235 Wis. 2d 524, ¶29)).

       ¶42    In        Richter,             for       example,           this        court            upheld     a

warrantless         entry          into      a     trailer         on     the    basis            of    both    hot

pursuit      of     a    fleeing            suspect          and       the     need      to       protect       the

occupants of the trailer.                             Richter, 235 Wis. 2d 524, ¶2.                             But

our     analysis             made           clear          that         these       were           independent

justifications.                Id.,          ¶¶32-37,            41     ("We    conclude               that    [the

deputy's] entry was justified by the exigent circumstance of hot

pursuit.      The State also argues that this entry was justified by
the    exigency         of     a       threat         to    the        safety    of      the       suspect      or

others. . . . [W]e                  conclude               that        [the     deputy]                reasonably

believed that the intruder he was pursuing posed a threat to the

safety       of    the       occupants                of     Richter's          trailer."               (emphasis

added)).          And it would be somewhat strange to continually list

"hot    pursuit         of    a        suspect"         as       one    of     "four     well-recognized

categories of exigent circumstances" separate from "a threat to

the safety of a suspect or others," "a risk that evidence will
be destroyed," and "a likelihood that the suspect will flee" if
                                                           28
                                                                         No.    2014AP304-CR



one of these additional categories were required in order to

justify a warrantless entry following hot pursuit of a suspect.

Id.,    ¶29   (citing      Smith,      131    Wis. 2d at         229);    Ferguson,     317

Wis. 2d 586,        ¶20    (quoting      Richter,         235     Wis. 2d 524,       ¶29).

Although      the     presence    of    one       or   more      of   these     additional

exigencies is relevant to the question of whether a warrantless

entry is permitted, it is not a prerequisite to application of

the hot pursuit doctrine.              See, e.g., Commonwealth v. Jewett, 31

N.E.3d 1079, 1089 n.8 (Mass. 2015) ("The defendant also attempts

to argue that hot pursuit is not an exigency unto itself where

the underlying crime is not felonious, but rather additional

factors, such as the crime being violent or the suspect being

armed,      must    be   satisfied     in    order       to    justify    a    warrantless

entry.      We disagree with this contention."); People v. Wear, 867

N.E.2d 1027, 1045 (Ill. Ct. App. 2007) ("Most courts appear to

take Santana's holding at face value, treating hot pursuit as an

exception      unto      itself   rather      than     as      just   another     factor."

(citations omitted)), aff'd, 893 N.E.2d 631 (2008); Sanders, 311
Wis. 2d 257,        ¶¶119-32      (Prosser,        J.,        concurring)      (collecting

cases).13

       13
       The court of appeals below essentially relied on a
discussion from this court's opinion in Smith to derive a test
for exigent circumstances in the hot pursuit context, State v.
Weber, No. 2014AP304-CR, unpublished slip op., ¶¶4, 7 (Wis. Ct.
App. Oct. 8, 2015) (per curiam) (citing State v. Smith, 131
Wis. 2d 220, 229, 231, 388 N.W.2d 601 (1986), abrogated on other
grounds by State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811
N.W.2d 601 (1986)), but as the Sanders concurrence explained,
the test for exigent circumstances set forth in that case does
not apply to the hot pursuit doctrine.    See State v. Sanders,
                                                     (continued)
                                             29
                                                                        No.     2014AP304-CR



         ¶43    Before we conclude, we acknowledge the concern that

applying the hot pursuit doctrine to uphold a warrantless entry

in a case where fleeing law enforcement was itself the violation

giving rise to the pursuit will lead to the application of the

hot pursuit doctrine in every case involving a fleeing suspect,

no matter the gravity of the first offense committed, since

flight itself can constitute a jailable offense.                            The objection

is   a    legitimate         one,    but    it    fails    to    persuade     for   several

reasons.        First, the State will not always be able to establish

probable cause that the suspect was knowingly fleeing.                               Second,

as stated above, we decline to adopt the per se rule set forth

by   the       State.       The     "touchstone       of   the    Fourth    Amendment     is

reasonableness,"             and     "[r]easonableness . . . is               measured     in

objective terms by examining the totality of the circumstances."

Robinette, 519 U.S. at 39 (quoting Jimeno, 500 U.S. at 250).

Third, application of the hot pursuit doctrine in this scenario

is   not       circular      (i.e.,    the       pursuit   justifying       the     pursuit)

because the legislature did not have to make knowingly fleeing a
traffic        stop     a   jailable       offense,    either      at   all    or    in   all

circumstances.              That it has chosen to do so means that this

court must treat it with the seriousness that it does other



311 Wis. 2d 257, ¶117 (Prosser, J., concurring) ("[Hot pursuit]
is not part of the objective test set forth in Smith . . . .").
Additionally, Smith was not a hot pursuit case. See Smith, 131
Wis. 2d at 231-32 (summarily dismissing possibility of a hot
pursuit claim in a single paragraph because "[t]he underlying
offense . . . occurred nearly three weeks earlier").


                                                 30
                                                                   No.     2014AP304-CR



jailable offenses.14       And fourth, a contrary holding would lead

to the opposite problem: in every case involving a nonjailable

offense,     suspects     would     have     an    incentive        to     flee     law

enforcement because flight itself would not justify application

of the hot pursuit doctrine.

     ¶44    The record demonstrates that Weber committed jailable

offenses and attempted to evade lawful apprehension and that

Deputy     Dorshorst's    pursuit     and     response     was      immediate       and

measured.     A warrant was not necessary here; it was reasonable

for Deputy Dorshorst to effectuate the lawful arrest he had

begun outside of Weber's home.

                               V.     CONCLUSION

     ¶45    We conclude that the deputy's warrantless entry into

Weber's      garage      and   subsequent         arrest      of         Weber      were

constitutional     because     they    were       justified    by        the     exigent

     14
        For example, with regard to Wis. Stat. § 946.41(1),
"[r]esisting   or  obstructing   officer,"   we  note  that   the
legislature provided for steeper criminal penalties when a
violation involves aggravating circumstances, such as injury to
an officer, § 946.41(2r)-(2t), or, after a violator has given
false information or placed physical evidence with intent to
mislead an officer and a trier of fact at a criminal trial has
considered this information or evidence, conviction of an
innocent person as a result of that trial, § 946.41(2m).      The
legislature could easily have taken similar steps in the
opposite direction, instituting less significant penalties when
resistance or obstruction is tied to potentially less serious
circumstances, such as a traffic stop for a broken brake light.
But it did not do so; any violation of § 946.41(1) is at least a
Class A misdemeanor.    § 946.41(1).    Thus the legislature has
indicated that it finds resistance or obstruction of an officer
to   be   a  serious   matter   regardless   of  the   underlying
circumstances.


                                        31
                                                                     No.     2014AP304-CR



circumstance       of   hot    pursuit      of   a    fleeing      suspect     who    had

committed jailable offenses.                The deputy had probable cause to

believe     that     Weber     had    committed        two       jailable     offenses,

immediately pursued Weber, and performed a limited entry into

Weber's   open      garage     for    the    purpose        of   preventing     Weber's

continued    flight.          Under    these     specific        circumstances,       the

deputy's actions were constitutionally reasonable.                         Accordingly,

we reverse the decision of the court of appeals.



    By    the      Court.—The    decision        of   the    court   of     appeals    is

reversed.




                                            32
                                                                       No.    2014AP304-CR.dk


      ¶46      DANIEL KELLY, J.            (concurring).             I write separately

because I do not think there is probable cause to believe Mr.

Weber committed jailable offenses before entering his garage, a

conclusion        that     precludes      deployment          of     the     "hot       pursuit"

doctrine.        I join the lead opinion's result, however, because

there is a separate, and constitutionally-sufficient, basis for

it.

      ¶47      Our task in this case is determining whether Deputy

Dorshorst had the authority to pursue Richard L. Weber into his

garage,     and     subsequently         arrest    and    search           him,     without     a

warrant.         Mr.     Weber    says    the     Wisconsin          and     United      States

Constitutions          protected    him      from       the        deputy's       warrantless

intrusion      (and,      consequently,      the    search          and     arrest).          The

State,    on     the     other   hand,    says    Deputy       Dorshorst          was    in   hot

pursuit     of      an    individual      who     had     committed           two       jailable

offenses, and so was relieved of the obligation of obtaining a

warrant before entering the garage and executing the arrest and

search.         I   will     address      each     of    those        asserted          offenses
separately, and then consider an alternative basis for Deputy

Dorshorst's constitutionally-permissible entry into Mr. Weber's

garage.

                                             I

      ¶48      There is no evidence that, before Mr. Weber entered

his garage, Deputy Dorshorst thought he was in hot pursuit of

someone who had committed a jailable offense.1                                Instead, the

      1
       The lead opinion's explanation of the "hot pursuit"
doctrine is well-stated, and needs no further treatment here.


                                             1
                                                                           No.    2014AP304-CR.dk


evidence demonstrates only that he was intent on performing a

traffic stop.             That's what he told dispatch when he followed Mr.

Weber into his driveway.                      That's also what he told Mr. Weber

after      he    apprehended           him.      And      there     is     no    indication          a

different or additional rationale made its way into the report

Deputy       Dorshorst        ultimately         prepared.2          Nor    was        there       any

admissible           evidence     at    the    suppression        hearing        to    suggest       a

different reason for entering Mr. Weber's garage.

       ¶49       But we don't require that a law enforcement officer

have       in    mind,      at    the     time       he    enters     someone's          home,      a

constitutionally-permissible                   reason       for     doing       so.          All    we

require is that the objective circumstances at the time could

bring to mind a constitutionally-permissible basis for entry.3

Although this standard invites post-hoc rationalizing of a law

enforcement officer's intrusion into Fourth Amendment-protected

spaces,         we    could      hardly    operate        without     such       retrospective

analyses.            It   would    be     patently        unreasonable      to        task    a    law

enforcement officer with the responsibility of being consciously
aware, minute by minute, of every possible constitutional basis

for the next step he takes in the discharge of his duties.                                          We

       2
       If Deputy Dorshorst had recorded such additional or
different rationale in his report, I suspect it would have been
offered at the suppression hearing to help him refresh his
recollection of why he entered Mr. Weber's garage.
       3
       "[W]hen an officer's Fourth Amendment search and seizure
conduct is supported by an objectively ascertainable basis for
probable cause or reasonable suspicion, the police conduct meets
the Fourth Amendment's requirement of reasonableness, thereby
causing subjective motivations to be of little concern." State
v. Kramer, 2009 WI 14, ¶27, 315 Wis. 2d 414, 759 N.W.2d 598.


                                                 2
                                                                     No.    2014AP304-CR.dk


expect him to follow the training he receives in constitutional

requirements, but when he executes a traffic stop it is also

reasonable      to     expect    he    will       concentrate        entirely          on   the

functional task at hand, while simultaneously minimizing risks

to    the     person     of     interest,         the    immediately         surrounding

community, and himself.

      ¶50     So, the State properly invites us to go to the record

and consider the facts of this case like a slow-motion review of

a football play.            Having received such an invitation, we would

be remiss if our analysis was less than precise, or we allowed

factual nuances to escape our attention.

                                              A

      ¶51     The    constitutional          dimension     of    Deputy      Dorshorst's

interaction with Mr. Weber centers on the garage's threshold:

The   legitimacy       of    what     occurred     beyond       it   depends       on       what

occurred before it.            Therefore, I will first address the facts

as they transpired up to the point that Mr. Weber's car crossed

the   garage's       threshold,       and    determine     whether         they    describe
probable cause to believe he committed a jailable offense.

      ¶52     On April 20, 2012, Deputy Dorshorst was driving behind

Mr.   Weber    as    they     were    both    traveling     northbound            on    County

Highway E in the town of Arpin.                   Deputy Dorshorst noticed that

Mr.   Weber's        high-mounted       brake      light    was      not     functioning

properly, and so decided to initiate a traffic stop.                                    Deputy

Dorshorst testified that "I activated my emergency lights and he

was turning into his driveway" off of County Highway E.                                     The
district attorney asked Deputy Dorshorst to clarify where he was

                                              3
                                                                            No.    2014AP304-CR.dk


in relation to Mr. Weber when he activated his emergency lights.

His   response      was    that    "he    was     probably           when     I    activated      my

emergency lights maybe 100 feet prior to his driveway."                                          Mr.

Weber "continued down his driveway and into his garage."                                   Deputy

Dorshorst      followed     Mr.     Weber     into        his    driveway,          and   stopped

outside the garage approximately fifteen to twenty feet behind

Mr.   Weber's      car    (which    at    that       point      was     parked         inside    the

garage).        During     this    period       of    time,          Deputy       Dorshorst      was

contacting dispatch to notify the station he was initiating a

traffic stop.        Neither Deputy Dorshorst nor Mr. Weber had, at

that point, exited their cars.

      ¶53      This is the extent of the facts, up to the point Mr.

Weber     parked    his    car    in   his    garage,           of    which       we   have     been

apprised.       The State finds in these few, bare facts probable

cause     to   believe     Mr.    Weber      violated        Wis.      Stat.       § 346.04(2t)

(2011–12).4         Because        violation         of    that        statute         carries     a

potential jail sentence, the State asserts the "hot pursuit"

doctrine to justify Deputy Dorshorst's decision to enter Mr.
Weber's garage without a warrant.

      ¶54      If the State is right, if there really is probable

cause to believe this offense occurred, then it is also right

      4
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.

     This statute commands that "[n]o operator of a vehicle,
after having received a visible or audible signal to stop his or
her vehicle from a traffic officer, or marked police vehicle,
shall knowingly resist the traffic officer by failing to stop
his or her vehicle as promptly as safety reasonably permits."
Wis. Stat. § 346.04(2t).


                                              4
                                                                       No.    2014AP304-CR.dk


that   the   "hot   pursuit"      doctrine        allowed     Deputy          Dorshorst    to

enter the garage and conduct the search and arrest of Mr. Weber.

State v. Ferguson, 2009 WI 50, ¶¶26–30, 317 Wis. 2d 586, 767

N.W.2d 187     (holding        that    hot       pursuit     may       exist       where   an

individual has committed a "jailable offense").                         But this record

discloses no probable cause to believe Mr. Weber violated Wis.

Stat. § 346.04(2t).

       ¶55   The lead opinion correctly notes that "probable cause"

is not a terribly high standard.                    All one needs is evidence

"sufficient to warrant a reasonable person to conclude that the

defendant . . . committed or [was] in the process of committing

an   offense."         State    v.    Blatterman,          2015    WI        46,   ¶35,    362

Wis. 2d 138,     864    N.W.2d 26       (quoting     State        v.    Richardson,        156

Wis. 2d 128, 148, 456 N.W.2d 830 (1990)).                    Here, that quantum of

evidence must show that Mr. Weber:

       1.    Operated a vehicle;

       2.    Received a visible signal to stop his vehicle
             from a traffic officer or marked police vehicle;

       3.    Failed to stop his vehicle as promptly as safety
             reasonably permitted; and

       4.    Knowingly resisted the traffic officer by failing
             to stop his vehicle as required.
Wis. Stat. § 346.04(2t).

       ¶56   Mr. Weber does not contest the sufficiency of evidence

to meet elements one            through three, and the record confirms

their satisfaction.        Deputy Dorshorst observed Mr. Weber driving

his car on a public highway, and followed him until he parked
his car in the garage.                There, Deputy Dorshorst observed Mr.

                                             5
                                                                   No.    2014AP304-CR.dk


Weber exit the vehicle.             Thus, we know Mr. Weber was operating

the vehicle.          As to element two, Deputy Dorshorst testified,

without contradiction, that he activated his emergency lights

while behind Mr. Weber on County Highway E, and that they were

still on when both vehicles came to rest.                   The third element is

a closer call, but the evidence appears sufficient to support

it.    Although it is difficult to know whether Mr. Weber could

have safely and reasonably stopped his vehicle 100 feet after

Deputy Dorshorst activated his emergency lights, we do know he

was able to slow enough to enter his driveway within that space.

And if that is true, then it must also be true that he could

have stopped in the driveway.                     That is, it was not reasonably

necessary for him to drive into his garage.

       ¶57    But that still leaves the fourth element.                       There is no

probable cause to believe Mr. Weber violated this statute unless

there is evidence that the failure to stop his vehicle on either

the county highway or his driveway would lead "a reasonable

person to conclude" Mr. Weber was knowingly resisting Deputy
Dorshorst.         On this, the record is silent.

       ¶58    It is certainly true that we do not need to wait until

Mr.    Weber       announces   he       is    intentionally       resisting        Deputy

Dorshorst before we find this element satisfied.                          We may infer

the intent to resist from conduct.                    State v. Stewart, 143 Wis.

2d    28,    35,    420   N.W.2d   44    (1988).        However,    his       conduct   in

relation      to     this   element      is       unremarkable.          So    completely

unremarkable, in fact, that it compels me to depart from the
lead opinion.

                                              6
                                                       No.    2014AP304-CR.dk


    ¶59       Maybe Mr. Weber could have stopped his car while still

on County Highway E.        He certainly could have stopped on the

driveway.      But was he knowingly resisting Deputy Dorshorst by

parking in the garage instead of the driveway?             Of course not.

Deputy Dorshorst knew how far Mr. Weber could possibly go with

his car——the garage.        And after reviewing the record, so do

we . . . unless we are to assume Mr. Weber was not planning to

stop at the back wall.        There is nothing, however, to suggest

this.     So we all know there was a sure and certain end to Mr.

Weber's travels on the 20th of April, and whether it was the

driveway or the garage, the difference is a matter of feet.

Because Deputy Dorshorst knew the stopping point of Mr. Weber's

car would be almost immediately in front of him, this gives us

nothing at all from which he (or we) may conclude an intent to

resist.     Probable cause may not be a rigorous standard, but it

still requires some plausible evidence.          These facts are simply

incapable of indicating the presence of the fourth element.

    ¶60       This is no small quibble.      If these unremarkable facts
satisfy the State's admittedly light burden, it is difficult to

imagine a traffic stop that would not provide probable cause to

believe a jailable offense has occurred.          Traffic stops normally

take place on public highways, which means there is no sure and

certain place that a law enforcement officer knows the person

will stop.      The highway environment is much less controlled than

here,   the    variables   much   greater.      Traffic,     weather,   road

conditions, road construction activity, lighting, all will play
into when and where the motorist might decide he can stop as

                                     7
                                                                          No.    2014AP304-CR.dk


"promptly as safety reasonably permit[s]."                             And that is before

we even consider how quickly the motorist might recognize he is

being    signaled        to    stop.         This         means    the      distance       a    law

enforcement officer might follow a driver before he pulls over

can vary significantly.                In the normal course of events, the

officer assuredly cannot accurately predict, within a matter of

feet, where the vehicle will come to rest (as he could here).

So, unless an observant driver immediately slams on his brakes

and comes to a screeching halt when he sees a patrol car's

emergency lights, an officer who wants to search the car or

arrest       the    driver    will    always         be    able   to   plausibly       say      the

motorist could have stopped a few feet earlier.

       ¶61     On that last point, we would do well to keep in mind

that the State is asserting there was "probable cause," not just

"reasonable         suspicion"        to    believe         Mr.    Weber        violated        this

statute.           That has consequences.                  Probable cause regarding a

jailable offense doesn't just give law enforcement officers a

basis for asserting "hot pursuit."                         It also authorizes them to
arrest       motorists       and   conduct        warrantless          searches      of        their

persons and vehicles.                Maryland v. Dyson, 527 U.S. 465 (1999)

(per    curiam)       (stating       that   probable         cause     is    sufficient          for

warrantless         search     under       the    "automobile          exception"      to       the

Fourth Amendment); State v. Paszek, 50 Wis. 2d 619, 624–25, 184

N.W.2d 836          (1971)     (holding          probable         cause     sufficient           for

arrest).       Under the State's reading, this statute is so powerful

it     can     transmogrify          the    most          minor    imaginable        equipment
malfunction——a           burnt-out          light——into             permission         for         a

                                                 8
                                                                      No.    2014AP304-CR.dk


warrantless arrest and search.                  In finding probable cause here,

we are telling Wisconsin's motorists that their protection from

warrantless searches and arrests incident to traffic stops is

not   our   constitution,        but   instead       law       enforcement         officers'

discretion.        It cannot be that easy to elide constitutional

safeguards.        Not only does this record not support probable

cause with respect to this statute, it must not.

      ¶62   The facts the State offers us reveal no probable cause

to believe Mr. Weber violated Wis. Stat. § 346.04(2t).                                   As a

result, the State may not use the "hot pursuit" doctrine to

justify Deputy Dorshorst's decision to enter Mr. Weber's garage

without a warrant——at least with respect to this statute.

                                            B

      ¶63   There is still, of course, the State's argument that

Mr.   Weber   committed      a    second         jailable        offense      capable      of

supporting its "hot pursuit" theory.                    If we include Mr. Weber's

actions after entering his garage, the State says there was

probable    cause    to    believe      Mr.       Weber        was   resisting       a    law
enforcement    officer      in    violation        of     Wis.       Stat.    § 946.41(1)

(another    jailable      offense).         So    now     we    extend       the    temporal

horizon to reach those facts in determining whether they excuse

the need for a warrant.

      ¶64   When    the    replay      of   events        paused       to    conduct      the

analysis above, Mr. Weber was in his car in his garage.                              Deputy

Dorshorst was in his patrol car on the driveway, just outside

the garage with his emergency lights activated.                              And the only
constitutionally-relevant facts ascertainable at that point were

                                            9
                                                          No.    2014AP304-CR.dk


that one of Mr. Weber's brake lights was out, and he had driven

into the garage instead of stopping on the driveway.               As already

discussed, these facts support a traffic stop, but nothing more.

The replay now picks up from there, and we learn the following.

     ¶65      Mr. Weber and Deputy Dorshorst exited their vehicles

at about the same time.             Mr. Weber started moving towards the

door from the attached garage into his house.                  Simultaneously,

Deputy Dorshorst moved towards the front of his patrol car in an

effort   to    keep   Mr.   Weber    in   view.   When   Mr.    Weber   started

walking up the stairs to the house door, Deputy Dorshorst told

Mr. Weber he "needed to speak with him."           When Mr. Weber did not

stop, Deputy Dorshorst entered the garage and again told him he

"needed to speak with him."           Because this is the point at which

Deputy Dorshorst passed into Fourth Amendment-protected space,5

the replay must pause again so we can determine whether the

objectively ascertainable facts at that point plausibly suggest

a violation of Wis. Stat. § 946.41(1).6




     5
       Technically, we count an attached garage as part of the
"curtilage" of Mr. Weber's home.    The curtilage comprises "the
land and buildings immediately surrounding a house."    State v.
Martwick, 2000 WI 5, ¶1 n.2, 231 Wis. 2d 801, 604 N.W.2d 552
(citing United States v. Dunn, 480 U.S. 294, 300 (1987)).    For
purposes of Fourth Amendment analysis, we treat the curtilage as
identical to the house itself.    State v. Dumstrey, 2016 WI 3,
¶23, 366 Wis. 2d 64, 873 N.W.2d 502.
     6
       A person violates this statute when he "knowingly resists
or obstructs an officer while such officer is doing any act in
an official capacity and with lawful authority . . . ."     Wis.
Stat. § 946.41(1).


                                          10
                                                                    No.   2014AP304-CR.dk


      ¶66     If   the     "hot     pursuit"       exception       to     the    warrant

requirement is to get Deputy Dorshorst inside the garage without

a   constitutional        violation,      there       must   be   probable      cause    to

believe Mr. Weber committed a jailable offense before he entered

the garage.        "We thus conclude that a suspect may not defeat an

arrest which has been set in motion in a public place, and is

therefore proper under Watson,7 by the expedient of escaping to a

private     place."       United     States      v.    Santana,     427   U.S. 38,       43

(1976);     see    also   State     v.    Smith,      131    Wis. 2d 220,       232,    388

N.W.2d 601 (1986) (quoting Welsh v. Wisconsin, 466 U.S. 740, 753

(1984)) (stating that hot pursuit occurs "where there is                                 an

'immediate or continuous pursuit of [a suspect] from the scene

of a crime'").        This makes sense——the entire purpose behind this

exception     is    to    prevent    an     offender's        retreat     into     Fourth

Amendment-protected         space        from    frustrating        an    arrest       that

started outside that space.

      ¶67     So the problem with the State's argument is that the

jailable offense must have commenced before Mr. Weber reached
his garage.        As discussed above, the objectively ascertainable

facts by that point only supported Deputy Dorshorst's pursuit of

Mr. Weber for a bad brake light.                   Driving with a dysfunctional

light is not a jailable offense.                  Thus, nothing happened before

Mr.   Weber    entered      his    garage       capable      of   supporting     a     "hot

pursuit" argument.

      7
       United States v. Watson, 423 U.S. 411 (1976) (finding
warrantless arrest of an individual in a public place upon
probable cause does not violate the Fourth Amendment).


                                           11
                                                                       No.   2014AP304-CR.dk


    ¶68    Even if we could consider the facts transpiring after

Mr. Weber entered the garage, there is nothing to support a

reasonable belief that a jailable offense had occurred, or was

in the process of happening.                Before Deputy Dorshorst entered

the garage, he said he told Mr. Weber that he "needed to speak

with him."       Mr. Weber, however, continued moving towards the

door into his house.            These additional facts, according to the

State, are supposed to provide probable cause to believe Mr.

Weber was knowingly resisting or obstructing an officer.                                 To

make such a showing, the State must demonstrate that Deputy

Dorshorst was acting in an official capacity, that he exercised

lawful   authority,    and       that   Mr.      Weber      knowingly        resisted    or

obstructed    what     Deputy      Dorshorst          was       lawfully       trying    to

accomplish in his official capacity.

    ¶69    The    State     says    the     action         with     which      Mr.   Weber

interfered was his refusal to stop when Deputy Dorshorst told

him he "needed to speak with him."                    This depends, in part, on

what was meant by the deputy's statement.                       "I need to speak with
you," when considered in isolation, is of dubious import.                                It

could    potentially       be    understood           as    a     request       to   speak

immediately, a command that Mr. Weber speak with him at some

point, or a command that Mr. Weber speak with him immediately.

But when a deputy sheriff makes this statement when his patrol

car is just a few feet away with its emergency lights flashing,

the only reasonable understanding is that one must immediately

cease    whatever    one    is     doing        and   give       him    your     undivided
attention.

                                           12
                                                                         No.    2014AP304-CR.dk


       ¶70       Deputy Dorshorst intended his statement to restrict

Mr. Weber's freedom to move about in his home.                                  That is, he

intended his words to effect a seizure of Mr. Weber just as

surely as if he were physically restraining him.                                  And it is

reasonable        to     understand       those     words    as    such.        Mr.     Weber's

failure to understand it that way (or heed the command) led

Deputy      Dorshorst         to    follow    his    words       into    the    garage,     and

accomplish physically what his words could not.

       ¶71       Thus,    the      question    is    whether      Deputy       Dorshorst    had

lawful authority to command Mr. Weber to stop what he was doing

and submit to questioning.                   The State's argument simply assumes

we should answer that question affirmatively, but it provided no

adequate explanation.                This is a significant shortcoming; if, by

nothing         more    than       his   command,     an    officer      has      the   lawful

authority to freeze a person in place such that the failure to

comply justifies warrantless entry of his home, then the Fourth

Amendment is a false promise.8                      An officer could manufacture a

basis for crossing into protected space simply by commanding the
occupant        to     come    out.       Failure     to    comply      would     justify    an

incursion to fetch him.                  This we do not tolerate.              See generally

City       of    Sheboygan         v.    Cesar,     2010    WI     App     170,    ¶18,     330


       8
       Sutterfield v. City of Milwaukee, 751 F.3d 542, 550 (7th
Cir. 2014) ("At the core of the privacy protected by the Fourth
Amendment is the right to be let alone in one's home."); Kylio
v. United States, 533 U.S. 27, 31 (2001) ("'At the very core' of
the Fourth Amendment 'stands the right of a man to retreat into
his own home and there be free from unreasonable governmental
intrusion.'" (quoting Silverman v. United States, 365 U.S. 505,
511 (1961))).


                                               13
                                                                  No.    2014AP304-CR.dk


Wis. 2d 760,       796      N.W.2d 429   (noting      that   people      inside    their

homes may "ignore [the officers'] requests that [they] cooperate

and choose not to speak with them," though the officers could

still seek a warrant).

      ¶72     The State's argument doesn't hit true because it does

not explain why Deputy Dorshorst can lawfully command a man in

his own home to do anything under these circumstances.                          Without

that, there can be no violation of Wis. Stat. § 946.41(1).                             And

in the absence of a violation, the State cannot argue Deputy

Dorshorst was in hot pursuit when he entered Mr. Weber's garage

(even    if   we     were    to   consider     Mr.    Weber's     conduct      after   he

entered his garage, which we may not do).                    If this was the end

of the analysis, I would have to conclude that Deputy Dorshorst

unconstitutionally entered Mr. Weber's garage.                          But it is not

the end.



                                          II

      ¶73     The reason Deputy Dorshorst could enter Mr. Weber's
garage without violating constitutional guarantees is that Mr.

Weber consented to his entry.             Warrantless searches and seizures

are     not   "unreasonable"        within      the     meaning     of    the     Fourth

Amendment     when     the    suspect    consents.        State     v.    Artic,    2010

WI 83, ¶29, 327 Wis. 2d 382, 786 N.W.2d 430.

      ¶74     When    we      consider   this        exception     to    the    warrant

requirement, we first look for words, gestures, or conduct that

one can reasonably understand to manifest consent to the search.
State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998).

                                          14
                                                                       No.    2014AP304-CR.dk


We then examine the facts to ensure the suspect gave consent

voluntarily——that is, "in the absence of duress or coercion,

either express or implied."             Id.

       ¶75     Here, Mr. Weber gave Deputy Dorshorst consent to enter

his garage for the purpose of completing the traffic stop that

had commenced on a public highway.                     As discussed above, Deputy

Dorshorst initiated the traffic stop while both he and Mr. Weber

were on County Highway E.              Mr. Weber then slowed and pulled into

his driveway.          He did not, however, stop there.                           He instead

pulled into his garage.

       ¶76     Had Mr. Weber chosen to stop in his driveway, which he

clearly      could    have     done,   this     case    would    not     be       before   us.

Deputy Dorshorst would have approached the car, spoken with Mr.

Weber, observed the indicia of intoxication, and the remaining

events would likely have unfolded as they actually did.                                    But

with     one     exception——it         all    would      have         happened       outside

constitutionally-protected              space,     and    the         sanctity       of    Mr.

Weber's home would have remained intact.
       ¶77     The    reason    the    events     at   issue     took        place   in    Mr.

Weber's garage is because that is where Mr. Weber chose for them

to take place.          He was, without question, obligated to stop so

that   Deputy        Dorshorst    could      investigate        the    defective          brake

light.       State v. Gaulrapp, 207 Wis. 2d 600, 605, 558 N.W.2d 696

(1996) ("A traffic stop is generally reasonable if the officers

have probable cause to believe that a traffic violation has

occurred,      or    have    grounds    to    reasonably        suspect       a    violation
has been or will be committed." (citation omitted)); see also

                                             15
                                                                           No.   2014AP304-CR.dk


Terry v. Ohio, 392 U.S. 1, 22 (1968) ("[A] police officer may in

appropriate circumstances and in an appropriate manner approach

a   person        for     purposes       of     investigating            possibly        criminal

behavior        even     though    there       is    no    probable      cause    to     make   an

arrest").             That      obligation      attached          when    Deputy       Dorshorst

activated        his     emergency       lights,          and   it   persisted      thereafter

until the lawful incidents to a traffic stop were complete.

       ¶78      So as Mr. Weber continued from his driveway into his

garage, he was operating under a continuing obligation to allow

Deputy Dorshorst to complete the traffic stop that had commenced

on County Highway E.               Entering the garage did not terminate the

obligation——it followed him inside.                         And because we presume that

Wisconsin's citizens know the law,9 we can conclude that Mr.

Weber knew he was under this obligation.

       ¶79      Knowing his obligation, Mr. Weber chose where he would

stop, and in doing so also chose where Deputy Dorshorst would

perform         his     duties.       His      conduct          would    communicate       to    a

reasonable observer that he preferred to complete the traffic
stop       in   his     garage,     rather      than       on    the     driveway.        Having

extended         that     invitation,         Mr.     Weber      may     not     fault    Deputy

Dorshorst for accepting it.

       ¶80      The      next     step    in        the    "consent"       analysis       is    to

determine whether Mr. Weber was under any duress or coercion

       9
       State v. Neumann, 2013 WI 58, ¶50 n.29, 348 Wis. 2d 455,
832 N.W.2d 560.   This is the legal maxim of ignorantia juris
neminem excusat, or "ignorance of the law excuses no one."
Ignorantia Juris Non Excusat, Black's Law Dictionary, (10th ed.
2014).


                                                16
                                                             No.   2014AP304-CR.dk


(whether express or implied) to provide that consent.                   There are

no facts of record to indicate he might have been.                        Indeed,

quite the opposite is true.            To the extent there was any duress

or coercion in these facts, it was to prevent Mr. Weber from

offering this conduct-based invitation to Deputy Dorshorst.                    The

patrol car's emergency lights were an unequivocal command to

submit to a traffic stop.              Mr. Weber could have complied by

stopping in his driveway.           To the extent the emergency lights

exerted coercion or duress, they certainly weren't encouraging

Mr. Weber to proceed into his garage.               Thus, Mr. Weber's consent

was voluntary.

       ¶81    Consequently, it was not constitutionally unreasonable

for Deputy Dorshorst to enter Mr. Weber's garage for the purpose

of performing the traffic stop that had commenced on a public

highway.      A law enforcement officer may, during a lawful traffic

stop, detain everyone in the vehicle.                Brendlin v. California,

551 U.S. 249, 255 (2007) ("The law is settled that in Fourth

Amendment terms a traffic stop entails a seizure of the driver
'even   though      the   purpose   of    the    stop   is   limited     and   the

resulting detention quite brief.'" (quoting Delaware v. Prouse,

440 U.S. 648, 653 (1979))).            The scope and duration of the stop

are limited by the purpose for effecting the stop: "Like a Terry

stop, the tolerable duration of police inquiries in the traffic-

stop    context     is    determined     by   the    seizure's     'mission'——to

address      the   traffic   violation    that      warranted    the   stop,   and

attend to related safety concerns."              Rodriguez v. United States,
135 S. Ct. 1609, 1614 (2015) (citations omitted).                      Because of

                                         17
                                                                  No.   2014AP304-CR.dk


the     invitation        Mr.   Weber    extended,       Deputy       Dorshorst    was

authorized to do all of this in the garage.

       ¶82    It is at this point that I rejoin the lead opinion.

My    need    to   write    separately    stemmed        only    from    the   State's

constitutionally-insufficient (in my view) basis for justifying

Deputy Dorshorst's presence in the garage.                      Because he did, in

fact,    have      that    authority    (by     virtue    of    the     conduct-based

invitation), he also had the lawful authority to command Mr.

Weber to stop moving towards the house door so that he could

complete the traffic stop.              When Mr. Weber failed to comply,

Deputy       Dorshorst     lawfully     and     appropriately      restrained      Mr.

Weber's      further      progress.       The     discovery      of     incriminating

evidence appropriately followed, as well as the conviction.                        For

that reason, I join the lead opinion's conclusion that the court

of appeals must be reversed.




                                          18
                                                       No.   2014AP304-CR.awb


     ¶83   ANN WALSH BRADLEY, J.       (dissenting).     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.1      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.

     ¶84   Among those freedoms is the sanctity of the home and

its curtilage.    "It is axiomatic that the 'physical entry of the

home is the chief evil against which the wording of the Fourth

Amendment is directed.'"      Welsh v. Wisconsin, 466 U.S. 740, 748

     1
       I use the term "lead" opinion for two reasons. First, I
am concerned that without this cue, the reader may mistakenly
believe that the lead opinion has any precedential value.
Although four justices join in the mandate of the opinion to
reverse the court of appeals (Zeigler, J., joined by Roggensack,
C.J., Gableman, J. and Kelly, J.), it represents the reasoning
of only three justices (Ziegler, J., joined by Roggensack, C.J.,
and Gableman, J.).    Justice Kelly joined in the mandate, but
would reverse on other grounds.

     Although set forth in three separate opinions, four
justices——a majority of the court——disagree with the reasoning
of the lead opinion.      Contrary to the lead opinion, four
justices determine that there was neither probable cause nor
exigent circumstances here (Abrahamson, J., Ann Walsh Bradley,
J., Rebecca Grassl Bradley, J., and Kelly, J.).

     Second, I use the term "lead" opinion because although it
is undefined in our Internal Operating Procedures, its use here
is consistent with past description. We have said "that a lead
opinion is one that states (and agrees with) the mandate of a
majority of the justices, but represents the reasoning of less
than a majority of the participating justices." State v. Lynch,
2016 WI 66, ¶143, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann
Walsh Bradley, J.J., concurring in part, dissenting in part)
(citing Hoffer Props., LLC v. State, Dep't of Transp., 2016 WI
5, 366 Wis. 2d 372, 874 N.W.2d 533).


                                   1
                                                             No.    2014AP304-CR.awb


(1984) (citing United States v. United States Dist. Ct., 407

U.S. 297, 313 (1972)).

      ¶85    Ignoring that the State has the burden to overcome the

presumption     of   unreasonableness      that   attaches         to   warrantless

physical entries of the home, the lead opinion determines that

Deputy Dorshorst's warrantless entry into Richard Weber's garage

and his subsequent arrest met the constitutional standard.                        It

posits that Dorshorst was "justified by the exigent circumstance

of hot pursuit of a fleeing suspect who had committed jailable

offenses."     Lead op., ¶3.

      ¶86    I agree with both Justice Daniel Kelly and Justice

Rebecca     Grassl   Bradley    that   there   was   no     probable      cause   to

believe that Weber committed a jailable offense.                    Additionally,

I agree that under no reasonable view of the facts of this case

was there an emergency justifying an exception to the Fourth

Amendment's     warrant     requirement.       The   alleged       "hot    pursuit"

occurred for no more than a few seconds and emanated from a

routine traffic violation, a mere non-jailable civil offense.
      ¶87    The lead opinion further errs by failing to apply the

proper analysis      for determining whether exigent circumstances

justify warrantless entry into a suspect's home.                        Instead, it

advances a per se rule that contravenes United States Supreme

Court precedent.

      ¶88    Contrary to the lead opinion, and like a unanimous

court of appeals, I conclude that the State failed to overcome

the   presumption      of      unreasonableness      that     attaches       to    a
warrantless entry into a constitutionally protected area.                     Here,

                                       2
                                                                      No.   2014AP304-CR.awb


the     government's     warrantless,              non-consensual       intrusion       into

Weber's garage and the resulting search and seizure violated the

Fourth      Amendment         of     the           United      States       Constitution.

Accordingly, I respectfully dissent.

                                               I

      ¶89    During the daylight hours of April 20, 2012, Deputy

Dorshorst noticed that Weber's vehicle had a defective high-

mounted brake lamp.2          He also observed Weber's vehicle weave in

its lane, deviating over the fog line.                       The State concedes that

Dorshorst did not have probable cause to initiate a traffic stop

based     upon   the   lane    deviation,           but     instead    asserts    that   he

initiated    the   stop   because         of       Weber's    defective      high-mounted

brake lamp.

      ¶90    One   hundred         feet    before           Weber     turned     into    his

driveway, Deputy Dorshorst activated his emergency lights, but


      2
       A toxicology report (Exhibit 1) was offered and received
into the record at the preliminary hearing.    It provides that
blood was "recovered from Richard L. Weber on April 20, 2012 at
1955 hours."

     Judicial notice may be taken of matters of common
knowledge, such as the time of sunset on April 20.   See, e.g.,
State ex rel. Schilling v. Baird, 65 Wis. 2d 394, 399, 222
N.W.2d 666 (1974).   On April 20, 2012, in the city of Arpin,
Wood County, sunset began at 7:51 p.m and civil twilight ended
at 8:21 p.m. See Sunrise Sunset Calendar, Wisconsin Locations,
http://www.sunrisesunset.com/usa/Wisconsin.asp (last    visited
Nov. 16, 2016).

     Given the intervening events that occurred from the time
Dorshorst initiated the traffic stop to when he placed Weber
under arrest, it is reasonable to conclude that Dorshorst
initiated the traffic stop during daylight, well before Weber's
blood was drawn at 7:55 p.m.


                                               3
                                                            No.   2014AP304-CR.awb


did not turn on the siren in his squad car.            The record does not

reflect any of the usual indicia of fleeing, such as an increase

in speed, a furtive glance back at the deputy or running from

the vehicle.     Instead, the record reflects that Weber continued

to drive for a few seconds, turned into his driveway and entered

his attached garage.

    ¶91     The one bit of testimony the State attempted to offer

regarding an indicia of fleeing was excluded as speculative.

Without    any   foundation,     Deputy   Dorshorst    testified          that   "it

seemed to me that he was attempting to evade me."                          Defense

counsel    immediately    objected    and   the    circuit        court    agreed,

concluding that the testimony was speculative.

    ¶92     Leaving    his   emergency    lights   on,      Deputy     Dorshorst

parked his squad car in Weber's driveway.              He then got out of

his squad car and saw Weber walking up the steps in his attached

garage leading to the house door.         Dorshorst followed him.

    ¶93     According to Deputy Dorshorst's subsequent testimony,

he "was just entering the garage" when he told Weber he needed
to speak to him.       Weber did not respond, but continued up the

steps within his garage toward the house door.                     While in the

garage    Dorshorst   "secured    [Weber's]   arm"    as     Weber    was    "just

inside his [house's] door" at the top of the steps.                         Deputy

Dorshorst again advised Weber that he needed to talk to him.

    ¶94     Deputy    Dorshorst   testified   that     he    then    told    Weber

that "I needed to talk to him and the reason why I was stopping

him was for his high mounted brake lamp."             Dorshorst asked Weber



                                      4
                                                                           No.       2014AP304-CR.awb


"to come out to his car so that I could point out exactly the

reason for the stop and which light was defective."

       ¶95    After Dorshorst made contact with Weber he observed

that     Weber     had    slow,     slurred          speech,          a     strong          odor     of

intoxicants,       and      glassy,      bloodshot           eyes.                During        their

conversation, Weber admitted that he had been drinking.

       ¶96    Deputy     Dorshorst    testified         that          had       he    not     entered

Weber's garage he "would still have attempted to make contact

with     him."      According       to   Dorshorst,              "I       would        have     still

attempted      either     way    knocking       on    his    door          or    I      would      have

attempted other means.             I wouldn't have——I would not have just

left."       It is unclear from the record whether the "other means"

referred to obtaining a search warrant.

       ¶97    Weber was never cited for the defective high-mounted

brake lamp and the bit of testimony the State attempted to offer

regarding an indicia of fleeing was excluded as speculative.

Nevertheless,       he    was     charged    with       resisting               an     officer       by

fleeing and other offenses.                Ultimately, he pleaded no contest
to operating with a prohibited alcohol concentration as a 9th or

subsequent       offense,       resisting    an       officer             and    possession          of

marijuana.

                                            II

       ¶98    As   observed       above,     "(i)t          is    axiomatic              that      the

'physical entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed.'"                                  Welsh, 466 U.S.

at   748     (citing     United    States    Dist.       Ct.,         407        U.S.     at    313).
Accordingly, it is a basic principle of Fourth Amendment law

                                            5
                                                                      No.   2014AP304-CR.awb


that     warrantless        searches    and       seizures      inside       a    home    are

"presumptively unreasonable."             Id. at 749.

       ¶99    Under the Fourth Amendment, an attached garage has the

same protections as the home.                 Florida v. Jardines, 133 S. Ct.

1409, 1414 (2013) (the curtilage of the house "enjoys protection

as part of the home itself."); see also State v. Dumstrey, 2016

WI     3,    ¶35,    366     Wis. 2d 64,         873    N.W.2d 502          (courts      have

consistently        concluded    that    a       single      family    home's      attached

garage      constitutes      curtilage).           This      basic     premise      is    not

disputed by the parties because the State concedes that Weber's

attached garage is curtilage.

       ¶100 The State has the burden to demonstrate both probable

cause and "exigent circumstances that overcome the presumption

of     unreasonableness        that    attaches         to    all     warrantless         home

entries."      Welch, 466 U.S. at 750.                 I examine first whether the

State has met its burden of demonstrating that Deputy Dorshorst

had probable cause to arrest Weber for a jailable offense.

       ¶101 Probable        cause     exists      where       "the    totality      of    the
circumstances within the arresting officer's knowledge at the

time of the arrest would lead a reasonable police officer to

believe that the defendant probably committed a crime."                                  State

v.   Koch,    175    Wis. 2d 684,       701,      499     N.W.2d 152        (1993).        The

totality of the circumstances that constitute probable cause to

arrest "must be measured by the facts of the particular case."

State v. Paszek, 50 Wis. 2d 619, 625, 184 N.W.2d 836 (1971).

       ¶102 The      lead    opinion    concludes            that    "at    the    time    he
entered Weber's garage, Deputy Dorshorst had probable cause to

                                             6
                                                                       No.   2014AP304-CR.awb


arrest     Weber       for    violations        of     Wis.       Stat.      §§ 346.04(2t)

[resisting by fleeing] and 946.41(1) [obstructing]."                             Lead op.,

¶23.       Jailable      offenses     of   resisting             and    obstructing      both

require a suspect to "knowingly resist" an officer.3                              According

to the lead opinion, it is reasonable to conclude that "Weber

was likely feigning ignorance and thus fleeing" and that "most

individuals would have responded to Deputy Dorshorst's obvious

attempts to catch his attention."                    Lead op., ¶23.            But this is

the    very    type     of   assertion     that        the       circuit     court   deemed

inadmissible because it was speculative.                           Any assertion that

Weber on that day knew he had a duty to stop and intentionally

chose to comply with that obligation by pulling into his garage

is likewise speculative.

       ¶103 The lead opinion is left with only one fact that is

relevant      to   a   determination       of    whether         Deputy      Dorshorst    had

probable      cause    to    arrest   Weber      for    "knowingly"           resisting    an

officer.       This     is   the   fact    that      for     a    few    seconds     "Deputy

Dorshorst activated his emergency lights while driving behind
Weber's vehicle but Weber failed to pull over."                          Lead op., ¶23.



       3
       Wis. Stat. § 346.04(2t) provides:    "No operator of a
vehicle, after having received a visible or audible signal to
stop his or her vehicle from a traffic officer or marked police
vehicle, shall knowingly resist the traffic officer by failing
to stop his or her vehicle as promptly as safety reasonably
permits."

     Wis. Stat. § 946.41(1) provides: " . . . whoever knowingly
resists or obstructs and officer while such officer is doing any
act in an official capacity and with lawful authority is guilty
of a Class A misdemeanor."


                                            7
                                                                       No.    2014AP304-CR.awb


      ¶104 Although Weber does not dispute that Deputy Dorshorst

activated his emergency lights, he does dispute whether he saw

those lights in the seconds before he turned into his driveway

and   parked   his    vehicle.         Thus,       when       Weber    disputes        that    he

"knowingly" resisted an officer, he is in fact disputing that he

received a visible signal or failed to stop promptly.

      ¶105 The record reflects that Deputy Dorshorst activated

his emergency lights, but he did so only a few seconds before

Weber turned into his driveway and parked his vehicle.                                 Turning

on the siren in his squad car may have given credence to the

lead opinion’s speculation about Weber’s intent, but there is no

dispute that Deputy Dorshorst failed to turn it on.

      ¶106 Additionally, the record does not reflect any of the

usual   indicia      of    fleeing,        such    as    an    increase        in     speed,   a

furtive glance back at the deputy or running from the vehicle.

The one bit of testimony the state attempted to offer regarding

Weber’s intent was excluded as speculative.

      ¶107 Deputy         Dorshorst    did        not    enter      the      garage    because
Weber   was    fleeing      from     the    scene       of    two     jailable      offenses.

Rather, he followed Weber into his garage because of a minor

traffic   violation.            According           to       Deputy       Dorshorst's         own

testimony, "the reason why I was stopping him was for his high

mounted brake lamp."

      ¶108 When      Weber     did    not     respond          to     Deputy    Dorshorst's

request to talk, Dorshorst followed Weber up the stairs of his

attached garage and grabbed Weber's arm as he was just inside
his house door.           He then told Weber "to come out to his car so

                                             8
                                                               No.     2014AP304-CR.awb


that I could point out exactly the reason for the stop and which

light was defective."

       ¶109 There are no additional facts in the record supporting

a reason for the stop other than the defective high mounted

brake    lamp.      Thus,     the     State    has   not    met    its    burden    of

establishing that Deputy Dorshorst had probable cause to arrest

Weber for a knowing violation of either Wis. Stat. §§ 346.04(2t)

(resisting) or 946.41(1) (obstructing).

       ¶110 Without      probable     cause     to   arrest    for     resisting    or

obstructing an officer, the government's interest at the time

Deputy Dorshorst entered Weber's home without a warrant was for

a minor traffic violation.             This minor offense does not justify

"the    chief    evil"   of   entry    into    the   home     "against     which   the

wording of the Fourth Amendment is directed."                      Welsh, 466 U.S.

at 748 (citing United States Dist. Ct., 407 U.S. at 313).

                                         III

       ¶111 The lead opinion's discussion of exigent circumstances

is analytically unnecessary.              There is no need to reach the
issue of exigent circumstances unless as a threshold matter at

least four Justices have determined that probable cause exists.

Nevertheless, I address exigent circumstances to respond to the

assertions of the lead opinion.

       ¶112 The State failed to meet its burden that there were

exigent circumstances justifying Deputy Dorshort's warrantless

intrusion into Weber's home.                  It bears "the heavy burden of

trying    to    demonstrate    exigent        circumstances       to   overcome    the
presumption of unreasonableness" that attaches to warrantless

                                          9
                                                           No.    2014AP304-CR.awb


home entries.         State v. Rodriguez, 2001 WI App 206, ¶9, 247

Wis. 2d 734, 634 N.W.2d 844 (citing Welsh, 466 U.S. at 750).

      ¶113 Under both Wisconsin and United States Supreme Court

jurisprudence, it is well-established that "[w]arrentless entry

is permissible only where there is urgent need to do so, coupled

with insufficient time to secure a warrant."                 State v. Smith,

131 Wis. 2d 220, 228, 388 N.W.2d 601 (1986) abrogated on other

grounds by State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811

N.W.2d 775; see also Missouri v. McNeely, 133 S. Ct. 1552, 1559

(2013) (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978) (a

warrantless search is potentially reasonable only when "there is

compelling need for official action and no time to secure a

warrant.")).         To determine whether a law enforcement officer

faced      an   emergency   that    justified   acting   without     a   warrant,

courts examine the "totality of circumstances."                    McNeely, 133

S. Ct. at 1559.

      ¶114 The facts here cannot support a conclusion that Deputy

Dorshorst had an urgent need to act with no time to support a
warrant.        For example, the facts of this case stand in stark

contrast to the facts in United States v. Santana, 427 U.S. 38

(1976), which the lead opinion relies upon as a seminal case on

the exigent circumstance of hot pursuit.

      ¶115 In Santana, the hot pursuit occurred when undercover

officers rushed to Santana's residence after being informed that

she had marked bills from their investigation in her possession.

Id.   at    39-40.     When   the    officers   arrived,   they    saw   Santana
standing in the doorway with a brown paper bag in her hand.                   Id.

                                        10
                                                                    No.      2014AP304-CR.awb


at 40.       As the officers shouted "police" and displayed their

identification,       Santana    retreated          into    the    vestibule          of    her

house.   Id.

      ¶116 As the Santana court explained, once Santana saw the

police there was "a realistic expectation that any delay would

result   in    destruction      of   evidence."            Id.    at     43.       Thus,     in

Santana, there was both an urgent need to act and no time to

secure   a     warrant    because    delay      would       lead       to    the     loss    of

evidence in an undercover drug investigation.

      ¶117 The facts of this case could not be more different

from those in Santana.          Here, Deputy Dorshorst stopped Weber for

a defective high-mounted brake lamp.                       In Santana, the police

were in pursuit of a suspected drug dealer.                        Here, there was no

evidence      to   destroy    regardless       of    whether       the      focus     of    the

analysis is on a defective high-mounted brake lamp or Weber’s

alleged flight from the police.                In Santana, the police had to

act immediately or evidence would be destroyed.

      ¶118 Any analysis of whether the State met the required
showing that Deputy Dorshorst had an urgent need to act and no

time to secure a warrant is completely absent from the lead

opinion.      Why?   Because under the facts of this case it would be

unable to meet the test.

      ¶119 Instead,       the   lead      opinion     shifts       the       analysis       and

contends      that   it      would   be    unreasonable            to       expect    Deputy

Dorshorst to knock on Weber's front door or take the time to

obtain a warrant, rather than invade his home.                              Lead op., ¶40.
The   lead    opinion     asserts    that      "Deputy      Dorshorst          would       have

                                          11
                                                                       No.    2014AP304-CR.awb


needed to stop at Weber’s driveway and let Weber flee into the

residence, then call for backup, secure a perimeter around the

house so that Weber did not continue his attempts to escape law

enforcement, and obtain a warrant."                     Lead op., ¶40.                 "And then

what?      Would     those    who        support       this    argument           have    Deputy

Dorshorst knock on the door?"                 Lead op., ¶40.

    ¶120 The answer is yes, because this is both what the law

requires    and     what   Deputy           Dorshorst     testified          he     would       do.

According    to     Dorshorst's        own     testimony,       had      he       not    entered

Weber's garage he "would still have attempted to make contact

with him."        He explained, "I would have still attempted either

way knocking on his door or I would have attempted other means.

I wouldn't have——I would not have just left."                                 Attempting to

secure a warrant would not have allowed Weber to escape arrest

or conviction.

    ¶121 In essence, Deputy Dorshorst assumed the role of a

magistrate.        "When     an    officer        undertakes      to    act       as     his    own

magistrate,    he    ought        to   be    in    a   position    to        justify      it     by
pointing to some real immediate and serious consequences if he

postponed action to get a warrant."                           Welsh, 46 U.S. at 751

(quoting McDonald v. United States, 335 U.S. 451, 460 (1948)).

That is simply not possible here, when even Deputy Dorshorst

acknowledged that he could have pursued alternative routes.                                     He

testified    that    had     he    not      entered     the    garage        he    would       have

knocked on the door or pursued some other means to make contact

with Weber.



                                              12
                                                                             No.    2014AP304-CR.awb


       ¶122 Under these facts, the State has failed to show that

Deputy Dorshorst had no time to get a warrant and that there was

an urgent need to act.                    Accordingly, I conclude that the State

has not met its burden of demonstrating exigent circumstances

sufficient to overcome the presumption of unreasonableness that

attaches to warrantless home entries.

                                                  IV

       ¶123 By        advancing       a    per    se    rule         that   hot     pursuit    of   a

fleeing        suspect       is    always    an    exigent           circumstance,       the    lead

opinion contravenes United States Supreme Court precedent.                                          A

per se exception to the Fourth Amendment is contrary to the

United States Supreme Court's recent decision in McNeely, 133

S. Ct. at 1558-59.                 In McNeely, the Supreme Court declined to

adopt a rule that the dissipation of alcohol in the bloodstream

presents a per se exigency that justifies an exception to the

Fourth Amendment's warrant requirement for non-consensual blood

testing in drunk driving cases.                             Id. at 1556.            Declining to

adopt      a    categorical         rule     for       drunk         driving      investigations,
McNeely        refused        to     "depart       from          a     careful       case-by-case

assessment of exigency . . . ."                    Id. at 1561.

       ¶124 The lead opinion would create a per se exception while

simultaneously asserting that it is doing no such thing.4                                        See

lead       op.,       ¶43.          Initially,          it       acknowledges          and     calls

"legitimate" the concern "that applying the hot pursuit doctrine

to   uphold       a    warrantless         entry       in    a   case       where    fleeing     law

       4
       At oral argument, the State conceded that it was seeking a
bright-line rule in this case.


                                                  13
                                                                No.   2014AP304-CR.awb


enforcement was itself the violation giving rise to the pursuit

will lead to the application of the hot pursuit doctrine in

every case involving a fleeing suspect . . .."                   Lead op., ¶43.

      ¶125 Then, in attempting to explain away the legitimacy of

the concern, the lead opinion contends that it does not support

a per se rule for four reasons:                 (1) the State will not always

be   able   to    establish      probable       cause;   (2)    reasonableness      is

measured in objective terms by examining the totality of the

circumstances; (3) application of the hot pursuit doctrine is

not circular because the legislature chose to make knowingly

fleeing a jailable offense; and (4) a contrary holding would

incentivize       flight    in     every    case     involving        a   nonjailable

offense.    Id.

      ¶126 The     lead     opinion's      first    reason      fails     because   it

conflates probable cause with exigent circumstances.                       According

to the lead opinion, it is not creating a per se rule in every

case involving flight from an officer because "the State will

not always be able to establish probable cause that the suspect
was knowingly fleeing."            Lead op., ¶43 (emphasis in original).

However, as set forth above, the state must separately prove

both probable cause to arrest and exigent circumstances in order

to justify warrantless entry into Weber's home.                       Payton v. New

York, 445 U.S. 573, 587-90 (1980).                 Thus, the lead opinion has

created a per se rule because in every case where an officer has

probable    cause,    the    act   of   fleeing     from   an    officer     will   be

considered an exigent circumstance.



                                           14
                                                                    No.    2014AP304-CR.awb


       ¶127   The lead opinion's second reason fails because there

is no legal support for the proposition that Dorshort's entry

was reasonable under the totality of the circumstances because

it was a limited intrusion.                In recent years, the United States

Supreme Court has reaffirmed that the Fourth Amendment embodies

"a particular concern for government trespass upon the areas

('persons, houses, papers, and effects') it enumerates."                             United

States v. Jones, 132 S. Ct. 945, 950 (2012).

       ¶128 Prior to Jones, courts employed the Katz "reasonable

expectation of privacy" test in analyzing the Fourth Amendment's

protections.          See    Katz    v.   United     States,    389       U.S.    347,   351

(1967) (What a person "seeks to preserve as private, even in an

area    accessible          to     the    public,     may      be     constitutionally

protected.").           However,          Jones     clarified       that      "the       Katz

reasonable-expectation-of-privacy test has been                           added to, not

substituted for, the common-law trespassory test."                               Jones, 132

S. Ct. at 952.

       ¶129 Additionally, in Jardines, the Supreme Court further
explained      that    "an       officer's   leave    to    gather        information     is

sharply circumscribed when he steps off [public] thoroughfares

and enters the Fourth Amendment's protected areas."                              133 S. Ct.

at 1415.       Jardines acknowledged that the porch of a home is a

semi-public area, but nonetheless determined that the use of a

trained police dog on Jardines' porch was a search within the

meaning of the Fourth Amendment.                  Id. at 1415-18.

       ¶130 Thus,       Fourth        Amendment       jurisprudence          emphasizing
privacy       over    trespass       is   now     inconsistent       with        Jones   and

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Jardines.5       In Santana, 427 U.S. at 42, on which the lead opinion

relies    in     making    its    limited     intrusion      argument,       the      court

determined       that     even    though      Santana       was    arrested      in      the

threshold of her home, her Fourth Amendment rights were not

violated because she "was not in an area where she had any

expectation       of    privacy."           Id.   However,         under    Jones        and

Jardines,       the    reasonable      expectation     of    privacy      test     may   be

"unnecessary to consider when the government gains evidence by

physically       intruding       on     constitutionally          protected      areas."

Jardines, 133 S. Ct. at 1417; see also Jones, 132 S. Ct. at 951-

52.

      ¶131 Nevertheless, the lead opinion turns a blind eye to

current       Fourth    Amendment      jurisprudence     when      it    suggests      that

limited intrusions into the constitutionally protected areas are

just fine.       Conflating this case with community caretaker cases,

the   lead     opinion    deems       the   trespass    here      reasonable     because

Deputy Dorshorst did not:

              damage any property;


      5
       In a footnote, the lead opinion attempts to distinguish
this case from Jones and Jardines by emphasizing that the latter
two are "search cases."   Lead op., ¶38 n.10.   This distinction
fails because a search occurred when Deputy Dorshorst physically
occupied Weber's private property for the purpose of obtaining
information.   See United States v. Jones, 132 S. Ct. 945, 949
(2012); see also Florida v. Jardines, 133 S. Ct. 1409, 1417
(2013) ("That the officers learned what they learned only by
physically intruding on Jardines' property to gather evidence is
enough to establish that a search occurred."); United States v.
Perea-Ray, 680 F.3d 1179, 1185 (9th Cir. 2012) ("Warrantless
trespasses by the government into the home or its curtilage are
Fourth Amendment searches.").


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             open any doors or windows;

             pull out any weapons;

             stay   in    the    constitutionally        protected        area       longer

              than necessary; or

             enter the house proper, but instead entered only the

              curtilage of the house.            Lead op., ¶38.6

    ¶132      What   the    lead       opinion   misses       is   that    we    are    not

examining     the    reasonableness        of    the    conduct     once     inside     the

constitutionally protected area, but rather whether the officer

should    have   been      in    the   protected       area   at   all.         The   legal

analysis for determining whether exigent circumstances justify

warrantless entry is entirely unrelated to the reasonableness

factors considered under the community caretaker doctrine.

    ¶133 The third reason the lead opinion offers is logically

flawed.       It asserts that the application of the hot pursuit

doctrine in this case is not circular because the legislature

chose    to   make   knowingly         fleeing   a     traffic     offense      jailable.

Although the lead opinion is correct that the seriousness of the

    6
       The lead opinion relies on community caretaker cases.
See, e.g., State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785
N.W.2d 592; State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759
N.W.2d 598. Yet, the legal analysis of exigent circumstances is
distinct from the community caretaker doctrine.          Compare
Michigan v. Tyler, 436 U.S. 499, 509 (1978) ("Our decisions have
recognized that a warrantless entry by criminal law enforcement
officials may be legal when there is compelling need for
official action and no time to secure a warrant."), with
Pinkard, 327 Wis. 2d 346, ¶49 ("In considering the second
reasonableness factor [under the community caretaker doctrine],
we assess whether the time, location, the degree of overt
authority and force displayed were appropriate under the
circumstances.") (quotations and citation omitted).


                                           17
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underlying offense is a factor in determining whether there are

exigent      circumstances,       the       jailable       offenses          in    this      case

emanate from the flight itself.                     This is circular reasoning

because it departs from a case-by-case analysis and creates an

exigency in every case where there is a flight, no matter how

minor the underlying offense.

      ¶134       According to the lead opinion, exigent circumstances

exist    because      Deputy   Dorshorst          had    probable         cause    to     arrest

Weber for "two jailable offenses."                        Lead op., ¶3.                 The two

jailable offenses the lead opinion references here are resisting

an officer and obstructing an officer.                     Lead op., ¶23.               It then

reasons that Deputy Dorshorst was in hot pursuit because Weber

was "a fleeing suspect who had committed jailable offenses."

Lead op., ¶3.          Thus, according to the lead opinion's circular

logic,    the      crime   from   which      Weber       was       fleeing       was   his   own

flight.

      ¶135 Finally,        the       lead    opinion's             fourth    reason        fails

because      a    case-by-case       rule   is    required,          even    if    the     State
wishes to discourage suspects from fleeing the police.                                 The lead

opinion is correct that police officers and the communities they

protect have a compelling interest in discouraging suspects from

fleeing to their homes, but that interest must be balanced with

the   Fourth       Amendment's    fundamental           protections.              However,    as

McNeely      explained,        the     State's          interests         are      adequately

addressed under a case-by-case analysis and do not justify "the

'considerable        overgeneralization'            that       a    per     se    rule    would



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reflect."      133 S. Ct. at 1561 (quoting Richards v. Wisconsin,

520 U.S. 385, 393 (1997)).

      ¶136 Ultimately,    every        rationale      offered      by    the   lead

opinion in defense of its assertion that it has not created a

per se rule is logically and legally unsound.                In order to reach

its   conclusion,   the   lead    opinion     conflates      legal      doctrines,

disregards controlling United States Supreme Court precedent and

engages in flawed circular reasoning.

      ¶137 Accordingly,    for    the       reasons    set    forth      above,    I

respectfully dissent.

      ¶138 I   am   authorized    to    state   that     Justice        SHIRLEY   S.

ABRAHAMSON joins this dissent.




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       ¶139 REBECCA GRASSL BRADLEY, J.                      (dissenting).         I agree

with the lead opinion's holding that hot pursuit for a jailable

offense     can   itself      present     exigent          circumstances      justifying

warrantless entry into a citizen's home.                     This court has already

said so.      See State v. Ferguson, 2009 WI 50, ¶¶19-20, 26–30, 317

Wis. 2d 586,      767    N.W.2d 187;       State      v.     Sanders,      2008    WI   85,

¶¶117-118, 311 Wis. 2d 257, 133-134 752 N.W.2d 713 (Prosser, J.,

concurring).      I cannot join the lead opinion, however, because

the facts in this record (1) do not show hot pursuit and (2)

fail to establish that probable cause to arrest for a jailable

offense existed before the deputy entered Weber's garage.                               The

lead   opinion——without         precedent——extends            the   exigency       of   hot

pursuit to the situation here where the jailable offense is the

alleged "flight" itself.           This circular expansion of hot pursuit

doctrine      violates    the     Fourth    Amendment,          which      the    Founding

Fathers enshrined in our Constitution to protect the people from

unwarranted government intrusion.                    Accordingly, I respectfully

dissent.
       ¶140 The objective facts here do not support probable cause

for    a    jailable     offense    and    do        not    establish      any    exigent

circumstance.      Instead, the facts show a deputy concerned about

a broken brake light who nevertheless had no urgent or immediate

need   to    breach     the   threshold     of       Weber's    home      without   first

securing a warrant.             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:

                                           1
                                                                        No.    2014AP304-CR.rgb

    [I]llegitimate and unconstitutional practices get
    their first footing . . . by silent approaches and
    slight deviations from legal modes of procedure. This
    can only be obviated by adhering to the rule that
    constitutional provisions for the security of person
    and property should be liberally construed.     A close
    and literal construction deprives them of half their
    efficacy, and leads to gradual depreciation of the
    right, as if it consisted more in sound than in
    substance.    It is the duty of the courts to be
    watchful for the constitutional rights of the citizen,
    and against any stealthy encroachments thereon.
    Boyd v. United States, 116 U.S. 616, 635 (1886).

    ¶141 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.        The    Fourth      Amendment         does   not      permit       governmental

intrusion into a person's home premised on a de minimis traffic

law violation like a broken brake light.                            Entering the home

without a warrant and absent any exigency is the "chief evil"

against which the Fourth Amendment protects the people.                                     See

Welsh v. Wisconsin, 466 U.S. 740, 748 (1984).
    ¶142 Setting aside Fourth Amendment concerns, the deputy's

actions do not seem egregious; if the deputy had done the same

thing    in   a     public     place,    his       actions    undoubtedly          would    not

violate the Fourth Amendment.                  But seizing Weber inside Weber's

protected     curtilage        absent     any      exigency     triggers         the     Fourth

Amendment's protection and makes the deputy's warrantless entry




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constitutionally unreasonable.1                     Although the deputy's actions

may seem less intrusive because he entered Weber's open garage

rather than Weber's home, entering the garage is the constitutional

equivalent of entering the home. The lead opinion's reasoning

ignores this principle and opens the door for a future court to

endorse an officer's warrantless entry into a home for a mere

traffic violation.

                                               I

       ¶143 The lead opinion concludes that this case involved hot

pursuit.      I disagree.         Hot pursuit means "some sort of a chase."

Sanders, 311 Wis. 2d 257, ¶109 (Prosser, J. concurring) (quoting

United States v. Santana, 427 U.S. 38, 43 (1976)).                            "Hot pursuit

describes the situation when the police are pursuing a suspect

who    is    in    the    process   of    fleeing      from      a   recently     committed

crime."           State   v.   Naujoks,    637       N.W.2d 101,       109    (Iowa    2001)

(citing Warden v. Hayden, 387 U.S. 294, 298-99 (1967)).                               It is

the "immediate or continuous pursuit of the [suspect] from the

scene of the crime."                Welsh, 466 U.S. at 753.                  Although hot
pursuit is not defined in terms of a particular length of time,

it    does    involve      some   sort    of       chase   and    requires      the   recent

commission of a jailable crime.                      The chase commences from the

scene of the crime, triggering the hot pursuit.

       1
       There is no dispute that Weber's attached garage is the
equivalent of his home and therefore receives the same Fourth
Amendment protections.    See Florida v. Jardines, 133 S. Ct.
1409, 1414 (2013) (explaining that the curtilage "enjoys [the
same] protection as part of the home itself"); see also State v.
Dumstrey, 2016 WI 3, ¶35, 366 Wis. 2d 64, 873 N.W.2d 502 (noting
that a single family home's attached garage is curtilage).


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       ¶144 Calling           what   happened     here    "hot    pursuit"      stretches

that term too far.               "[A]pplication of the exigent-circumstances

exception         in    the    context   of   a   home    entry    should    rarely    be

sanctioned when there is probable cause to believe that only a

minor offense, such as the kind at issue in this case, has been

committed."            Welsh, 466 U.S. at 753 (involving first-offense

drunk driving).               The facts here show there was no chase.                 The

deputy followed Weber 100 feet while Weber slowed his car down to

turn       into    his    driveway.       There     was    no     recently    committed

jailable crime prompting the pursuit, nor was there a crime

scene from which Weber fled.                  Weber was driving with a broken

brake light.           That is not a jailable crime.

       ¶145 It may be tempting to validate the deputy's actions

here       in   order     to    discourage      traffic    violators      and    serious

criminals from ignoring the police and racing home to avoid

traffic         stops    or     police   investigation.            Fourth     Amendment

protections, however, cannot be jettisoned based on fear that

some citizens may attempt to run home and hide.                          The 100 feet
Weber travelled did not create an exigency because the deputy

was not "chasing" Weber for a jailable crime recently committed.2

There are, however, factual scenarios where a pursuit of 100



       2
       Although the information discovered after the deputy
breached the garage threshold revealed that Weber had been
drinking and driving, our Constitutional decisions must not be
influenced by evidence obtained after an unlawful entry.  See,
e.g., Missouri v. McNeely, 133 S. Ct. 1552 (2013) (excluding
warrantless blood test showing driver had illegal BAC because
search was unlawful under Fourth Amendment).


                                              4
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feet or an even shorter distance will justify warrantless entry.

See, e.g., Santana, 427 U.S. at 43.

      ¶146 We         need    not    identify       a   precise    distance          that    is

acceptable or unacceptable because the Fourth Amendment draws

the   line       at    probable      cause,        exigency,     and      reasonableness.

Police may enter a person's home without a warrant only if there

is    probable        cause    to    believe        a   jailable       crime    has     been

committed,       a    suspect's      flight    creates      an    exigency      such    that

there is no time to get a warrant, and the search or seizure is

reasonable.

                                              II

      ¶147 The lead opinion essentially                     concludes the jailable

offense     at       issue    here    was     Weber's      "flight."           The     Fourth

Amendment, however, does not support warrantless entry into a

home when the jailable offense justifying entry is the flight

itself.      To condone warrantless entry into the home, Fourth

Amendment jurisprudence requires probable cause that a jailable

offense occurred before the flight began.                        If the flight itself
creates the jailable offense that serves as an exigency and

overcomes Fourth Amendment protections, a police officer can in

essence create a jailable offense out of any attempted traffic

stop or any attempt to speak with a citizen——even though no

other jailable offense has occurred.                       At the point the deputy

entered   Weber's        garage,      all     he    knew   was    that      Weber      had   a

defective    high-mounted            brake    lamp,      pulled    into     his       garage,

walked to the door of his house inside the garage, and did not
respond to the deputy's request to talk.

                                              5
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      ¶148 At the time the deputy seized Weber, the deputy's sole

concern was the defective high-mounted brake lamp.                   When asked

why he tried to stop Weber, the deputy answered, "I attempted to

stop him for defective high mounted brake lamp," and he added

that he notified dispatch he "had a traffic stop."                  Clearly, to

the deputy this stop was not about pursuing Weber for a jailable

offense.   It was about a broken brake light and the need to tell

Weber about it.

      ¶149 The    lead     opinion   points    out   that     the     officer's

subjective motivation does not govern our review; instead, we

review the objective facts.          See lead op., ¶19 n.6.               But the

objective facts are clear:           There was no recently committed

jailable offense that sparked a hot pursuit into Weber's home.

There was an attempted traffic stop for a broken brake light.

The   motorist    showed     no   indication    of   knowing        the    deputy

activated his squad car's emergency lights.           The motorist slowed

down, drove 100 feet, turned into his driveway, pulled into his

garage, and walked to the door of the house.                Because the law
does not support warrantless entry under these circumstances, I

respectfully dissent.




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