Police did not create exigent circumstances, rules Wisconsin Court of Appeals: Suspect created exigency by fleeing into home.

AuthorZiemer, David

Byline: David Ziemer

The Wisconsin Court of Appeals on Nov. 3 declined to decide whether police unlawfully create exigent circumstances when they approach a home for a knock and talk, even though they already have the probable cause necessary to obtain a search warrant.

Instead, the court held that because the suspect retreated into his home before the police got to the knock part, exigent circumstances justified following him inside.

An undercover Milwaukee police officer purchased $60 worth of cocaine from Antonio K. Phillips at a residence. But instead of getting a search warrant, other officers decided to initiate a knock and talk with Phillips.

Phillips, who was standing in the doorway, retreated into his home when he saw the officers approaching. The police kicked in the door and arrested him.

Based on the controlled buy and the subsequent search, Phillips was charged with delivery of cocaine, possession of marijuana and possession of cocaine with intent to deliver.

Phillips moved to suppress the evidence found in the house after his arrest. The circuit court denied the motion. After his conviction, he appealed, but the Court of Appeals affirmed in an opinion written by Judge Patricia S. Curley and joined by Judge Kitty K. Brennan. Judge Joan F. Kessler dissented.

It is long-established law that, although police may conduct a warrantless entry to prevent the destruction of evidence, they may not do so if they created the exigent circumstances themselves.

However, it is unsettled law in Wisconsin whether officers create exigent circumstances when they instigate a knock and talk, rather than get a warrant.

The court noted that federal circuits are divided on this issue, with the Seventh Circuit holding that they do.

But the court concluded that it need not decide the issue in this case, because Phillips retreated into the residence before the officers ever knocked.

The court concluded, Phillips, not the police, created the exigency that resulted in the warrantless search when, after seeing the police outside the residence, [he] retreated into the residence and shut the door after the police ordered him to stop. Those actions created the exigency in this matter - namely, the risk that evidence would be destroyed.

The court cited two cases for support: State v. Hughes, 2000 WI 24, 233 Wis.2d 280, 607 N.W.2d 621; and State v. Garrett, 2001 WI App 240, 248 Wis.2d 61, 635 N.W.2d 615.

In Hughes, officers knocked on the door of an apartment...

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