N. PATRICK CROOKS, J.
¶ 1 This is a review of an unpublished decision of the court of appeals reversing the circuit court's judgment of conviction for second-degree intentional homicide after a plea of guilty.
¶ 3 Relevant to this appeal, the circuit court denied in part
¶ 4 We continue our usual practice of interpreting Article I, Section 11 of the Wisconsin Constitution in accord with the United States Supreme Court's interpretation of the Fourth Amendment. Thus, we adopt the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation. We hold that, where police had probable cause to arrest before the unlawful entry, a warrantless arrest from Felix's home in violation of Payton requires neither the suppression of statements made outside of the home after Felix was given and waived his Miranda rights, nor the suppression of physical evidence obtained from Felix outside of the home. Assuming without deciding that Felix's warrantless arrest from his home was in violation of Payton, we conclude that, pursuant to the Harris rule, the following evidence that police obtained outside of his home is admissible: Felix's signed statement, made after Felix was given and waived his Miranda rights, the buccal swab obtained at the police station, and Felix's clothing seized at the jail, as well as any derivative evidence.
¶ 6 In the early morning on September 8, 2007, a violent fight erupted outside of a party in the City of Schofield, Marathon County, Wisconsin. Officers responded after the fight had broken up and people had fled the scene. They discovered Davids lying bleeding in the middle of the street from multiple stab wounds. Davids was taken to the hospital and later pronounced dead. After police interviewed witnesses, they located, arrested, and obtained evidence and a statement from Felix all during the morning hours of that same day.
¶ 7 Shortly after arriving at the scene, police interviewed several people who were still present and also located several other witnesses who had attended the party. The witnesses who live near the scene stated that during the fight they had heard someone shouting about a stabbing. At the police station, detectives interviewed several people who had attended the party. T.W., a minor at the time of the homicide, described the fight that broke out among approximately six people outside of the party. T.W. stated that she heard Felix say, "I'm going to prison. I stabbed someone. I think I killed him." T.W. had responded, "[N]o you didn't, no you didn't, I think you're lying." According to T.W., Felix then stated, "I'm not lying, I've got blood all over me." T.W. told police that she was "pretty positive" or about "98" percent sure that Felix stabbed someone. T.W. also said that Felix left in a green Chrysler. A detective also interviewed Kyle Leder who reported hearing Felix say the word "stab" and also "I'm not going to prison" shortly before he saw Felix leave in a green Chrysler.
¶ 8 Based on this information, police obtained a warrant to search the residence where the party had taken place for Felix, witnesses and any evidence of the crime. Police did not find Felix at that residence, but eventually learned from Felix's father that he was living at Felix's mother's apartment. Felix's father gave the police a description of the residence and told them that the rear entrance led to the Felixes' apartment. When the police went to that residence they saw a green Chrysler parked in the driveway, which matched the description witnesses had given of the car that Felix had driven from the scene. The police had also discovered that the car was registered to Felix's mother.
¶ 9 When a detective knocked on the rear door of the residence, it popped open. The detective could immediately see someone, whom he recognized as Felix from a photo, sleeping in a recliner at the bottom of the stairs leading to the door. The detective and another officer drew their weapons and ordered Felix to come out with his hands up. Felix complied and was searched and handcuffed outside of the residence.
¶ 10 When Felix was being patted down before he was handcuffed, an officer asked Felix if he had any sharp objects on him. Felix replied that he had a knife in his pocket. When the officer did not find a knife on Felix, Felix stated that he "had a knife on [him]," but "must have gotten rid of it."
¶ 12 Felix was taken to the police department and placed in an interview room. A detective read Felix his Miranda rights and Felix signed a form waiving those rights. Felix then provided a statement detailing his involvement in the fight and Davids' death. The detective transcribed his questions and Felix's responses throughout the interview, and Felix signed this written statement after he had an opportunity to review it. Felix then agreed to submit to a buccal swab for DNA analysis.
¶ 13 Felix was transported to the jail where the detective asked Felix to remove his clothes and place each item in an individual evidence bag. The detective stated that he decided to take Felix's clothes as evidence at the jail because during the interview he had noticed that Felix had some "red spots" on his shirt that he suspected might have been blood.
¶ 14 Felix was charged with first-degree intentional homicide with the use of a dangerous weapon contrary to Wis. Stat. § 940.01(1)(a) and § 939.63(1)(b) (2005-06).
¶ 15 The Marathon County Circuit Court, the Honorable C.A. Richards presiding, granted in part and denied in part Felix's motions. The circuit court began with its conclusion that Felix was lawfully arrested. It noted that Felix was sleeping in a recliner in plain view of a door to the apartment that was known to pop open. According to the circuit court, the arrest was valid because Felix had voluntarily submitted himself to public view and thus had no reasonable expectation of privacy protected by the Fourth Amendment. The circuit court explained, quoting United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), what "a person knowingly exposes to the public, even in his own house or office, . . . is not a subject of [F]ourth [A]mendment protection."
¶ 17 Felix pleaded guilty to the charge in the amended information of second-degree intentional homicide contrary to Wis. Stat. § 940.05(1)(b).
¶ 18 Felix appealed the circuit court's denial of the suppression motion,
¶ 19 Following the State's assumption that Felix's arrest violated Payton, the court of appeals addressed whether Harris or Brown provided the proper analysis regarding the suppression of evidence later obtained from Felix. Id., ¶ 19. The court of appeals declined to apply the Harris exception to the exclusionary rule because it had not yet been adopted by this court, and because the court of appeals concluded that Harris conflicted with this court's decisions in Laasch v. State, 84 Wis.2d 587, 267 N.W.2d 278 (1978), State v. Smith, 131 Wis.2d 220, 388 N.W.2d 601 (1986), and State v. Walker, 154 Wis.2d 158, 453 N.W.2d 127 (1990). Id., ¶¶ 14-15, 19. The court of appeals also noted that after Harris was decided, this court applied the Brown analysis in State v.
¶ 20 The court of appeals affirmed the circuit court's decision to admit the knife and any evidence obtained from the green Chrysler. Id., ¶¶ 21-22. According to the court of appeals, the knife was admissible because it was seized in a search conducted pursuant to Kudick's valid consent. Id., ¶ 21. The court of appeals did not remand to suppress the evidence obtained from the green Chrysler because the police had probable cause to search and did not need a search warrant to seize the vehicle. Id., ¶ 22.
¶ 21 The State petitioned this court for review, which we granted. The State asks this court to resolve whether under Article I, Section 11 the Harris rule or the three-factor Brown attenuation analysis governs the suppression of evidence obtained following an arrest in violation of Payton. The State also asks this court to determine, under the applicable analysis, whether Felix's signed statement and the buccal swab he provided at the police station, and Felix's clothes that were obtained at the jail must be suppressed.
¶ 22 This court reviews a motion to suppress under a two-prong analysis. State v. Eason, 2001 WI 98, ¶ 9, 245 Wis.2d 206, 629 N.W.2d 625. "First, we review
¶ 23 Because Felix raised multiple challenges to statements and evidence that police obtained following his arrest, we begin by clarifying the evidence at issue before this court. The State appealed the court of appeals decision regarding the suppression of Felix's written, signed statement at the police station, the buccal swab that he provided at the police station, and Felix's clothing that police seized at the jail. These are the only matters at issue in this appeal.
¶ 24 The State urges this court to interpret Article I, Section 11
¶ 25 If this court adopts the Harris rule, the State asserts that Felix's signed statement, the buccal swab he provided at the police station, and Felix's clothing seized at the jail are all admissible. While Harris dealt with a defendant's statements, the State argues that its rationale also applies to Felix's clothes, and presumes that the Harris rule applies to the buccal swab. According to the State, the court of appeals erroneously concluded that Felix's clothes must be suppressed even under Harris by relying on a Massachusetts Supreme Judicial Court case, Commonwealth v. Tyree, 455 Mass. 676, 919 N.E.2d 660 (2010), which the State asserts incorrectly interprets Harris and is distinguishable. Even if the clothing should have been suppressed under Harris, the State argues that the error was harmless because there is no reasonable probability that Felix would have decided not to plead guilty,
¶ 26 Felix argues that the Brown attenuation analysis governs the suppression of the statement and the other physical evidence because the Harris rule conflicts with this court's decisions and Article I, Section 11. According to Felix, applying a Brown analysis in this case is consistent with this court's decisions in Laasch, 84 Wis.2d 587, 267 N.W.2d 278, Smith, 131 Wis.2d 220, 388 N.W.2d 601, and Walker, 154 Wis.2d 158, 453 N.W.2d 127, which predate Harris. Felix further argues that applying Brown is consistent with Anderson, 165 Wis.2d 441, 477 N.W.2d 277, and Phillips, 218 Wis.2d 180, 577 N.W.2d 794, which applied the Brown analysis after the United States Supreme Court decided Harris. Felix asserts that this court should conclude, as it did in Eason, 245 Wis.2d 206, 629 N.W.2d 625, that this is a situation in which the United States Supreme Court's interpretation of the Fourth Amendment does not protect a defendant's Article I, Section 11 rights. Felix finds it significant that this court did not adopt Harris in Anderson because, even though that case involved the fruit of unlawful searches, it would be "peculiar" to have different analyses for unlawful searches and seizures. If this court adopts Harris, then Felix argues that his clothing should be suppressed because the Harris rule applies only to statements and not tangible evidence, see Tyree, 919 N.E.2d at 679-82. According to Felix, if this court concludes that the clothing should have been suppressed, it is unclear whether the harmless error test applies and this court should decline to apply it here. He argues that, if this court applies the Brown attenuation analysis, then the signed statement, the buccal swab, and his clothing should be suppressed.
¶ 27 We first examine whether Brown or Harris governs the suppression of the physical evidence and written, signed statement at issue here. Both of these decisions address whether evidence or statements obtained following some unlawful police activity must be suppressed. Brown, 422 U.S. at 591-92, 95 S.Ct. 2254; New York v. Harris, 495 U.S. 14, 17, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990). Specifically, the Harris rule applies to evidence and statements obtained from a defendant outside of the home where police had probable cause to arrest the defendant, but arrested him in his home without a warrant. 495 U.S. at 21, 110 S.Ct. 1640. Thus, two threshold matters we need to resolve are whether the police had probable cause and whether Felix was unlawfully arrested.
¶ 28 We conclude that police had probable cause to arrest Felix prior to going to Felix's apartment. Police have probable cause to arrest if they have "information which would lead a reasonable police officer to believe that the defendant probably committed a crime." West v. State, 74 Wis.2d 390, 398, 246 N.W.2d 675 (1976); see also Wis. Stat. § 968.07(1)(d). Felix does not dispute that police had probable cause to arrest him. All of the witnesses that police interviewed led them to Felix. Specifically, we note that T.W. stated that after the fight she heard Felix
¶ 29 Regarding the legality of Felix's arrest, the United States Supreme Court held in Payton v. New York that, even if police have probable cause to arrest a defendant, entering the defendant's home without a warrant to accomplish an arrest violates the Fourth Amendment. 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Even before the U.S. Supreme Court decided Payton, this court held in Laasch, 84 Wis.2d at 595-97, 267 N.W.2d 278, that a warrantless entry and arrest in a defendant's home violates Article I, Section 11 and the Fourth Amendment. See Payton, 445 U.S. at 575 n. 3, 100 S.Ct. 1371 (citing Laasch with approval). In this case, the premise that Felix's arrest was unlawful in violation of Payton underlies both of the parties' briefs and the State's petition asking this court to decide the novel issue of whether Brown or Harris applies to the suppression of evidence obtained after a Payton violation. Consistent with the parties' positions, we assume, without deciding, that Felix's arrest at his home without an arrest warrant was in violation of Payton, 445 U.S. at 590, 100 S.Ct. 1371.
¶ 30 Because police obtained Felix's written, signed statement, the buccal swab, and his clothing following his unlawful arrest, Felix argues that this evidence must be suppressed under the exclusionary rule. The exclusionary rule provides for the suppression of evidence that "is in some sense the product of the illegal governmental activity." State v. Knapp, 2005 WI 127, ¶ 22, 285 Wis.2d 86, 700 N.W.2d 899 (quoting Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). "The primary purpose of the exclusionary rule `is to deter future unlawful police conduct.'" Id. (quoting United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)). It is a judicially-created rule that is not absolute, but rather requires the balancing of the rule's remedial objectives with the "substantial social costs exacted by the exclusionary rule." Id., ¶¶ 22-23 (quoting Illinois v. Krull, 480 U.S. 340, 352-53, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987)). This rule extends to both tangible and intangible evidence that is the fruit of the poisonous tree, or, in other words, evidence obtained "by exploitation of" the illegal government activity. Id., ¶ 24 (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).
¶ 31 In Brown, the United States Supreme Court set forth the following three-factor test for whether evidence obtained following unlawful police conduct must be suppressed under the exclusionary rule as the fruit of the poisonous tree, or whether it is admissible as sufficiently attenuated from the illegality: (1) "[t]he temporal proximity" between the illegal activity and the evidence, (2) "the presence of intervening circumstances," and (3) "the purpose and flagrancy of the official misconduct." 422 U.S. at 603-04, 95 S.Ct. 2254.
¶ 32 After Brown was decided in 1975, and before the United States Supreme Court decided Harris in 1990, this court applied the Brown attenuation analysis in Smith and Walker, which involved the suppression of evidence obtained from a defendant outside of the home following an arrest in violation of Payton. In Smith, police had probable cause to arrest, but
¶ 33 In Walker, this court stated that Brown governed the analysis of the lineup identifications made after Walker was unlawfully arrested from the backyard of his home in violation of the Fourth Amendment prohibitions articulated in Payton and Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).
¶ 34 After this court decided Smith and Walker, the United States Supreme Court decided Harris, 495 U.S. 14, 110 S.Ct. 1640. There the Court held that even if an arrest violated Payton, evidence obtained from the defendant outside of the home while in lawful police custody is not the product of the illegal arrest, so long as police had probable cause to arrest. Id. at 21, 110 S.Ct. 1640. Such evidence need not be analyzed under Brown. Id. at 18-19, 110 S.Ct. 1640. In Harris, police had probable cause to arrest Harris for murder, but police went to Harris's apartment, entered and arrested him without a warrant. Id. at 15-16, 110 S.Ct. 1640. The Supreme Court accepted the trial court's finding that Harris did not consent to the police officers' entry and thus he was arrested in violation of Payton. Id. at 17, 110 S.Ct. 1640. Harris argued that his statement at the police station, after he was given and waived his Miranda rights, must be suppressed because it was the fruit of his unlawful arrest. Id. at 16, 110 S.Ct. 1640.
¶ 35 The United States Supreme Court held that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Id. at 21, 110 S.Ct. 1640. The Supreme Court stated that the Brown "attenuation analysis is only appropriate where, as a threshold matter, courts determine that `the challenged evidence is in some sense the product of illegal governmental activity.'" Id. at 19, 110 S.Ct. 1640 (quoting United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980)). Harris's statement, which police obtained while Harris was in legal custody at the police station, and after he was given and waived his Miranda rights, did not require suppression because it was not the product of the unlawful arrest or of
¶ 36 We are bound to follow the United States Supreme Court's interpretation of the Fourth Amendment that sets the minimum protections afforded by the federal constitution. State v. Ward, 2000 WI 3, ¶ 39, 231 Wis.2d 723, 604 N.W.2d 517. However, Felix urges this court to interpret Article I, Section 11 in a manner that provides more deterrence of and protection against unlawful activities and seizures than that provided by the Harris rule. As we have previously noted, we are particularly reluctant to do so given the nearly identical language in both provisions.
¶ 37 The sole exception is Eason, in which this court adopted a modified good faith exception to the exclusionary rule for officers' reasonable reliance on a no-knock search warrant. 245 Wis.2d 206, ¶¶ 2-3, 629 N.W.2d 625. We began by examining this court's long history of interpreting Article I, Section 11 consistent with the United States Supreme Court's interpretation of the Fourth Amendment. Id., ¶¶ 38-52. This court continued on that path in Eason by following the United States Supreme Court's evolving interpretation of the Fourth Amendment, but interpreting
¶ 38 We find no reason in this case to depart from our customary practice of interpreting Article I, Section 11 in accord with the Fourth Amendment. As such, we adopt the Harris exception to the exclusionary rule because we are persuaded by the United States Supreme Court's well-reasoned decision.
¶ 39 The Harris rule appropriately balances the purposes of the exclusionary rule and the Payton rule with the social costs associated with suppressing evidence. The Payton rule was premised on the Fourth Amendment's protection of the "sanctity of the home." Payton, 445 U.S. at 588-89, 601, 100 S.Ct. 1371; Harris, 495 U.S. at 17, 110 S.Ct. 1640. The purposes of the exclusionary rule are to deter police misconduct and ensure judicial integrity by refusing to rely on evidence obtained through police misconduct, Eason, 245 Wis.2d 206, ¶ 44, 629 N.W.2d 625, but the primary purpose is deterrence, Knapp, 285 Wis.2d 86, ¶ 22, 700 N.W.2d 899. The laudable goal of deterring police misconduct is not pursued at all costs. As this court noted in its analysis of the good faith exception to the exclusionary rule, there are "substantial social costs" associated with excluding relevant evidence. Eason, 245 Wis.2d 206, ¶ 31, 629 N.W.2d 625.
¶ 40 The United States Supreme Court reiterated in Harris that "[t]he penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve." 495 U.S. at 17, 110 S.Ct. 1640. The Harris rule is based on the Supreme Court's conclusion that suppressing evidence and statements obtained from a defendant outside of the home following a Payton violation does not further the purpose of the Payton rule: "the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime." Id. The Payton rule is vindicated through the suppression of any evidence or statements obtained from the defendant while officers are still inside the defendant's home unlawfully. Id. at 20, 110 S.Ct. 1640. The Fourth Amendment does not require courts to exclude all evidence or forgo prosecuting a defendant following unlawful police conduct, even if doing so might have some deterrent effect. Id. Under the Harris rule, police are sufficiently deterred from violating Payton because "the principle incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found, or statements taken, inside the home." Id. There is no compelling reason to go further and suppress evidence lawfully obtained from a defendant outside of the home.
¶ 41 The Harris Court drew a line at the entrance to the home because that is the heart of the Fourth Amendment and the focus of Payton. Id. at 17-18, 110 S.Ct. 1640. Harris provides a narrow rule: where police had probable cause before the unlawful entry and arrest, an arrest in violation of Payton does not require the
¶ 42 While this court's decisions in Smith and Walker, which preceded Harris, applied a Brown attenuation analysis to determine the admissibility of evidence that is covered by the Harris rule, we follow the United States Supreme Court's evolving interpretation of the Fourth Amendment.
¶ 43 This holding does not conflict with this court's post-Harris decisions in Anderson, 165 Wis.2d 441, 477 N.W.2d 277, and Phillips, 218 Wis.2d 180, 577 N.W.2d 794, contrary to Felix's assertions. We applied a Brown attenuation analysis in those cases because they involved the fruits of an unlawful entry and search. Anderson, 165 Wis.2d 441, 477 N.W.2d 277 (involving the suppression of physical evidence obtained from a consent search of Anderson's home where, following unlawful searches by police, Anderson was lawfully arrested in his home pursuant to an arrest warrant and later confessed and consented to a search of his home); Phillips, 218 Wis.2d 180, 577 N.W.2d 794 (involving the suppression of evidence obtained following a search of Phillips' bedroom where police obtained Phillips' consent while unlawfully inside of his home). As stated above, the Harris rule applies where the only illegal police conduct is an unlawful entry and arrest in violation of Payton, not where the evidence may be tied to an unlawful search by police. Contrary to the court of appeals' conclusion and Felix's argument, it is not "peculiar" to limit the application of the Harris rule to cases where the only illegal police conduct is a Payton violation. Rather it is logical to develop a limited, bright-line rule for a narrow category of evidence obtained after an unlawful arrest in violation of Payton, but
¶ 44 We now apply the Harris rule to determine whether there should be suppression of Felix's written, signed statement at the police station, the buccal swab provided at the police station, and his clothing seized at the jail. As we stated above, the Harris rule applies because police had probable cause to arrest Felix prior to going to his apartment, and consistent with the position of the parties, we assume, without deciding, that police unlawfully arrested Felix at his home without an arrest warrant in violation of Payton. See supra ¶¶ 28-29.
¶ 45 Felix's signed statement at the police station, after he was given and waived his Miranda rights,
¶ 46 Felix's clothing that police seized at the jail is also admissible under a logical extension of the Harris rule. Felix argues that the Harris rule does not cover the clothes he was wearing when he was arrested, and that they must be suppressed as the fruit of his unlawful arrest. Felix argues that the warrantless arrest led directly to the seizure of his clothing because if the police had taken the time to get a warrant, he would have changed and police would not have obtained his clothing. This argument is based on the type of but-for causality that the United States Supreme Court rejected in Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). The reasoning in Hudson informs our interpretation of the Harris rule, and supports applying it to the seizure of Felix's clothes at the jail.
¶ 47 In Hudson, the Court explained that "exclusion may not be premised on the mere fact that a constitutional violation was a `but-for' cause of obtaining evidence." Id. at 592, 126 S.Ct. 2159. After highlighting the "substantial social costs" of the exclusionary rule, "which sometimes include setting the guilty free and the dangerous at large," the Supreme Court reiterated that "[w]hether the exclusionary sanction is appropriately imposed in a particular case . . . is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." Id. at 591-92, 126 S.Ct. 2159 (quoting United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)) (internal quotations omitted). The Hudson Court declined to apply the exclusionary rule for a violation of the knock-and-announce rule, because the minimal deterrent effect was far outweighed by the social
¶ 48 When we examine Harris in this light, it is clear that the Harris Court drew a line at the entrance to the home and concluded that there was sufficient deterrence for Payton violations by suppressing evidence and statements that police obtained while unlawfully inside of the home and admitting evidence police lawfully obtained outside of the home. Harris, 495 U.S. at 17-20, 110 S.Ct. 1640. Thus, we interpret Harris to apply to statements and evidence that police obtain from the defendant outside of the home. Under our interpretation of Harris, Felix's clothing that police seized at the jail when he was being booked is admissible. This interpretation is supported by the language and rationale we have noted in Harris and Hudson. We also note that several other states have interpreted Harris in this way.
¶ 49 Additionally, Felix's clothing was not taken as evidence until after Felix was lawfully in police custody and was given and waived his Miranda rights. The police did not even develop a reason to seize Felix's clothing until the detective noticed some "red spots" on Felix's shirt during questioning at the police station. That fact distinguishes this case from Tyree, 919 N.E.2d at 682, in which the Massachusetts Supreme Judicial Court held that Harris did not apply to the shoes the defendant was wearing when unlawfully arrested in his home. In Tyree, police noticed that the defendant's shoes matched the shoeprints at the scene of the crime while they were still unlawfully in his home. Id. at 668. The Massachusetts Supreme Judicial Court found it significant that police noted "the potential evidentiary relevance of a piece of a suspect's clothing while they [were] still unlawfully in the home." Id. at 682. As we explained above, the Supreme Court's reasoning in Hudson supports our reading of the Harris rule as applicable to physical evidence obtained from the defendant outside of the home, as well as to statements made after the defendant was given and waived his Miranda rights. In this case, that includes the clothes Felix was wearing when he was arrested that police seized at the jail.
¶ 50 Therefore, we conclude that, under Harris, there is no basis for suppressing Felix's written, signed statement after he was given and waived his Miranda rights at the police station, the buccal swab that he provided at the police station, and his clothing that police seized at the jail.
¶ 51 We continue our usual practice of interpreting Article I, Section 11 of the Wisconsin Constitution in accord with the United States Supreme Court's interpretation of the Fourth Amendment. Thus, we adopt the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation. We hold that, where police had probable cause to arrest before the unlawful entry, a warrantless
¶ 52 Therefore, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction.
The decision of the court of appeals is reversed.
DAVID T. PROSSER, J. (concurring).
¶ 53 In Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the United States Supreme Court held that "the Fourth Amendment to the United States Constitution . . . prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." (Emphasis added.) The Court added that it had "no occasion to consider the sort of emergency or dangerous situation, described in our cases as `exigent circumstances,' that would justify a warrantless entry into a home for the purpose of either arrest or search." Id. at 583, 100 S.Ct. 1371 (emphasis added).
¶ 54 The majority opinion in this case is based on the assumption that police officers from the Everest Metro and Wausau police departments violated the rule in Payton when they arrested Devin Felix (Felix) at the apartment of Dean Kudick in Wausau. Because I do not agree with this assumption, I write separately to explain my position—even though I join the majority opinion.
¶ 55 On September 8, 2007, officers of the Everest Metro Police Department were called to a Schofield, Wisconsin residence at about 1:10 a.m. There had been a serious fight at an underage drinking party, and when officers arrived at the residence they found a man lying in the street with multiple stab wounds and a shirt soaked with blood. The victim, Nathaniel Davids, 18, died soon after he was rushed to a local hospital.
¶ 56 The fight was observed by partygoers and neighbors but after the stabbing, many of them quickly fled the scene. Police immediately determined that they had a potential homicide on their hands. They began to gather information and called in other Everest Metro officers, including Detective Sergeant Dennis Halkoski, who became the lead investigator, and Officer Daniel Goff, both of whom had been at home. Eventually, when suspicion focused on Devin Felix, the Everest Metro police also brought in Wausau officers because Felix was thought to be living in Wausau. The involvement of Wausau police was not only helpful but also necessary to avoid any jurisdictional issues in the event of an arrest.
¶ 57 The record describes how Detective Sergeant Halkoski interviewed various witnesses beginning about 3:00 a.m. and continuing until after 7:00 a.m. Other officers, including Sergeant Terrence Peterson, also conducted interviews. At some point, Officer Goff and an Everest Metro captain left Schofield to drive to Wausau where they met up with Wausau Officer Mark
¶ 58 The three officers were looking for Felix, his brother Kylie, and the green Chrysler that Felix purportedly used to escape. They first went to an address on East Wausau Avenue where they expected to find Kylie, who had been at the party and may have left with his brother. The officers found nothing, as no one appeared to be living at that address.
¶ 59 The officers next went to an address on Prospect Avenue where Keith Felix, the boys' father, was living. They found him, interviewed him, and then followed his suggestion to look for Felix at 617 Fulton Street, a two-story building where Felix was supposed to be living in the basement.
¶ 60 At approximately 8:00 a.m. officers began to gather at the Fulton Street address. A green Chrysler registered to Felix's mother was spotted in the driveway. Detective Sergeant Halkoski was notified to come from Schofield, and additional back-up officers were enlisted from Wausau.
¶ 61 After eight officers had arrived and created a secure perimeter around the house, Detective Sergeant Halkoski and Officer Goff approached the entrance to the basement at the rear of the house with their guns drawn.
¶ 62 Halkoski knocked hard on the back door which popped open. The officers saw Felix apparently sleeping in a recliner, five to six feet from an open doorway at the bottom of the steps to the basement. The officers ordered Felix to put up his hands and come out, which he did. He was placed under arrest, handcuffed, and put in a squad car. The police did not have an arrest warrant for Felix.
¶ 63 In analyzing the facts to determine whether there was a Payton violation, both the majority opinion and the court record require close scrutiny.
¶ 64 First, there is no dispute that police officers had probable cause to arrest Devin Felix for the murder of Nathaniel Davids. The police had more statements than those described in the majority opinion, and they had a motive: that Nate Davids was beating up Felix's younger brother Kylie when Felix intervened.
¶ 65 Second, Everest Metro police obtained a search warrant for the Schofield party residence at 5:44 a.m. from Marathon County Circuit Judge Gregory Grau. This search warrant named a "suspect," Devin Felix, and relied for its probable cause on statements made by some of the same witnesses who provided the basis for Felix's arrest. The warrant was prepared by a Marathon County assistant district attorney who came to Schofield in the early hours of September 8.
¶ 66 Third, Everest Metro and Wausau police officers actively, continuously, searched for Devin Felix after he became the focus of the investigation. Felix was an armed homicide suspect who fled the crime scene, was overheard saying he had killed someone, and reportedly vowed he would not go to prison. To find this suspect, police pursued every lead. When they arrived at the Fulton Street address, they did not know how many people were there and whether any persons in the house would be in danger or possibly taken hostage.
¶ 67 Fourth, there is no dispute that when Detective Sergeant Halkoski firmly knocked on the back door at 617 Fulton Street, it "popped open" ("I knocked at the door and the door popped open."). This testimony was supported by Officer Goff:
¶ 68 Dean Kudick, who had rented the first floor and basement for nearly four years, testified that the back door popped open regularly:
¶ 69 Fifth, neither Detective Sergeant Halkoski nor Officer Goff entered the house to effect the arrest. Halkoski was asked:
¶ 70 On cross examination, Halkoski was asked whether his gun was beyond the doorjamb as he was covering Felix. He responded that it was.
Consequently, there is no evidence that the officers ever broke the plane of the threshold before or during the arrest.
¶ 71 Several officers did enter the house after Felix had been arrested, for a sweep of the premises for officer safety. The officers explained that they did not know the whereabouts of Kylie Felix and they detected movement on the back porch where Kylie and another brother usually slept. The officers did not conduct a search for evidence until they received written consent from the lessee of the apartment.
¶ 72 In sum, the police acted conscientiously, and there was no violation of Payton unless the rule in Payton is extended to cover a "constructive entry" and the existence of exigent circumstances is ruled out. Such a conclusion would require a change in Wisconsin law.
¶ 73 In his trial brief supporting his motion to suppress evidence, Felix contended that his warrantless arrest "from inside the home and at gunpoint" violated the federal and state constitutions. He cited Payton and Laasch v. State, 84 Wis.2d 587, 267 N.W.2d 278 (1978). However, the brief went on:
¶ 74 The LaFave treatise cited by the defendant reads in part:
Wayne R. LaFave, Search and Seizure, Basis For Entry to Arrest § 6.1 at 306-07 (4th ed.2004).
¶ 75 This theory of "constructive entry" merits careful examination in light of the actual facts and language of the Payton decision.
¶ 76 Payton v. New York was decided in 1980, with a majority opinion written by Justice John Paul Stevens. Payton, 445 U.S. at 573, 574, 100 S.Ct. 1371. Over and over the opinion emphasizes warrantless physical entry of a private residence. For example:
Payton, 445 U.S. at 585-86, 100 S.Ct. 1371.
Id. at 587-88, 100 S.Ct. 1371 (emphasis added).
Id. at 589, 100 S.Ct. 1371 (emphasis added).
Id. at 590, 100 S.Ct. 1371.
¶ 77 The dissent of Justice Byron White also emphasized entry: "The Court today holds that absent exigent circumstances officers may never enter a home during the daytime to arrest for a dangerous felony unless they have first obtained a warrant." Id. at 603, 100 S.Ct. 1371 (White, J., dissenting) (emphasis added). "Today's decision rests, in large measure, on the premise that warrantless arrest entries
¶ 78 The facts in Payton are fully aligned with these statements. Police used crowbars to break open the door and enter Payton's apartment. Id. at 576, 100 S.Ct. 1371 (majority opinion). "They had not obtained a warrant." Id. When police went to Obie Riddick's home (in the companion case), "his young son opened the door." Id. at 578, 100 S.Ct. 1371. Police "entered the house and placed [Riddick] under arrest." Id. They made an arrest and conducted a search without a warrant. Id.
¶ 79 The Court cited ten state court decisions, including Laasch, to support its opinion. Id. at 575 n. 3, 100 S.Ct. 1371.
Id. at 595-96, 267 N.W.2d 278 (footnote omitted).
¶ 80 The Payton Court also cited six United States Court of Appeals cases supporting its decision. Payton, 445 U.S. at 575 n. 4, 100 S.Ct. 1371.
¶ 81 The Payton decision stands out as one in which the dueling majority and dissenting opinions devote considerable effort buttressing their positions by reference to English common law preceding the adoption of the Fourth Amendment. Justice Stevens relied heavily on Lord Edward Coke who wrote that "[N]either the Constable, nor any other can break open any house for the apprehension of the
¶ 82 Payton has been narrowly interpreted by the Supreme Court since 1980. "[T]he rule in Payton was designed to protect the physical integrity of the home." New York v. Harris, 495 U.S. 14, 17, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990). "Payton itself emphasized that our holding in that case stemmed from the `overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.'" Id. (quoting Payton, 445 U.S. at 601, 100 S.Ct. 1371).
¶ 83 In Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), the Court said: "The purpose of the [Payton] decision was not to protect the person of the suspect but to protect his home from entry in the absence of a magistrate's finding of probable cause."
¶ 84 As will be explained, "constructive entry" to effect an arrest—that is, treating police conduct outside the home the same as police conduct inside the home when police have broken a plane or crossed the threshold of the home to make an arrest without a warrant—is not based on the common law that existed when the Fourth Amendment was adopted. It is grounded on a very different theory than the theory articulated in Payton.
¶ 85 The Fourth Amendment reads as follows:
U.S. Const. amend. IV.
¶ 86 By its plain terms, the Fourth Amendment governs searches and seizures, including seizures of the person, i.e., arrests. In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the Supreme Court held that a police officer may, without warrant, arrest a person who is believed by the officer, upon probable cause, to be guilty of a felony. Id. at 415-17, 96 S.Ct. 820. Payton placed a geographic limitation on this power to arrest. It identified a place—the suspect's home—where probable cause, no matter how compelling, is not sufficient to make an arrest without a warrant, except in exigent circumstances. Absent exigent circumstances, police are required to have a warrant or consent before they may enter a suspect's home to make an arrest.
¶ 87 Analytically, an arrest warrant may confirm police power to make an arrest, but it does not create it. With probable cause, the police already have that power. If the police come to a suspect's home with probable cause but no warrant, they may surround the house and stay there until they get a warrant. They do not have to absent themselves from the area until they get a warrant. They may arrest their suspect as he comes to the house, and they may arrest him if he attempts to leave the house. The police know and the suspect knows that he is not free to go somewhere else simply because the police do not have a warrant. If he leaves, he will be arrested.
¶ 88 The warrant, then, serves as a judicially-approved ticket to enter the house to arrest or search.
¶ 90 This analysis is grounded in the law of trespass, as perfectly illustrated in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Defendants were convicted at trial based on conversations "overheard by means of an electronic listening device." Id. at 506, 81 S.Ct. 679.
Id. at 506-07, 81 S.Ct. 679 (emphasis added).
¶ 91 The Supreme Court declared that "Eavesdropping accomplished by means of such a physical intrusion is beyond the pale of even those decisions in which a closely divided Court has held that eavesdropping accomplished by other electronic means did not amount to an invasion of Fourth Amendment rights." Id. at 509-10, 81 S.Ct. 679. The Court observed that in On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952)—in contrast to Silverman—"no trespass was committed." Silverman, 365 U.S. at 510, 81 S.Ct. 679 (quoting On Lee, 343 U.S. at 751, 72 S.Ct. 967) (internal quotation marks omitted).
¶ 92 The Court's reliance on trespass and property law in interpreting the Fourth Amendment was suspect when a government search invaded a person's reasonable expectation of privacy but the person had no discernible property interest to serve as an obstacle to the invasion. The dilemma came to a head in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), where the court suppressed evidence obtained from eavesdropping by means of an electronic listening device attached to a public telephone booth.
¶ 93 Justice Potter Stewart, who was part of the majority in Payton, wrote the majority opinion in Katz, taking issue at once with the questions posed to the Court:
Katz, 389 U.S. at 349-50, 88 S.Ct. 507.
¶ 94 The Court rejected this formulation of the issues, making two critical points. First, "the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase `constitutionally protected area.'" Id. at 350, 88 S.Ct. 507. Second, "the Fourth Amendment cannot be translated into a general constitutional `right to privacy.'" Id. The Fourth Amendment "protects individual privacy against certain kinds of governmental intrusion, but its protections. . . often have nothing to do with privacy at all." Id. These critical passages are frequently overlooked because of Justice Stewart's oft-quoted aphorism that "the Fourth Amendment protects people, not places," id. at 351, 88 S.Ct. 507, and his critique of property interests as the basis for certain Fourth Amendment protections:
Id. at 352-53, 88 S.Ct. 507 (citations omitted). As a result, many Court decisions link Fourth Amendment violations to individual privacy.
¶ 95 But Katz did not consistently send that signal. The Court said:
Id. at 353, 88 S.Ct. 507 (emphasis added). The phrase "not simply `areas'" means that the Fourth Amendment does not apply only in the context of trespass. However, by its explicit terms, the Fourth Amendment does protect some "areas"— e.g., "houses"—and that protection is based largely on trespass law.
¶ 96 In addition, the Court emphasized that Katz was a search case when it said: "We do not deal in this case with the law of detention or arrest under the Fourth Amendment." Id. at 353 n. 13, 88 S.Ct. 507 (emphasis added).
¶ 97 The Court has moved away from property law in search cases involving sophisticated technology. For instance, in Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the majority was troubled by technology that permitted the police to "obtain[] by sense-enhancing technology any information regarding the interior of the home," which it described as "the prototypical . . . area of protected privacy." Id. at 34, 121 S.Ct. 2038. Even though the Kyllo Court recognized that the police did not physically enter the home, the Court stressed the importance of protecting the intimate details of the home from what could have been accomplished, at the time of the adoption of the Fourth Amendment, only
¶ 98 Both the majority opinion, id. at 40, 121 S.Ct. 2038, and Justice Stevens' dissent, id. at 43, 121 S.Ct. 2038, focused on protecting the home of the defendant. They were concerned that technology, in effect, had permitted the police to enter and search the home without physical intrusion. Hence, the decision did not eliminate the Fourth Amendment's link to property law.
¶ 99 The Court recently reiterated and reemphasized this link in a case involving a GPS device placed on an automobile. In United States v. Jones, 565 U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), the Court was accused of resolving a case involving "a 21st-century surveillance technique" by resorting to "18th-century tort law" involving trespass to chattels. Id. at 957 (Alito, J. concurring). But the majority author, Justice Antonin Scalia, was unapologetic:
Id. at 949-50 (majority opinion) (footnote omitted).
¶ 100 In her concurrence, Justice Sonia Sotomayor observed that "Katz's reasonable-expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it." Id. at 955.
¶ 101 In an informative article in the New England Law Review, Professor Steven B. Dow makes a case for constructive entry as a constitutional doctrine. Steven B. Dow, "Step Outside, Please": Warrantless Doorway Arrests and the Problem of Constructive Entry, 45 New Eng. L.Rev. 7 (2010). Part of his argument reads as follows:
Id. at 19 (footnotes omitted).
¶ 102 Contrary to Professor Dow's analysis, the Supreme Court's opinion in Jones unquestionably affirms the Court's continuing recognition of the Fourth Amendment's roots in property law and the Court's willingness to adhere to a property rationale except in searches involving sophisticated technology. The Supreme
¶ 103 If the Court were to treat arrests outside the home the same as arrests inside the home after police entry without a warrant, the Court would be creating law inconsistent with Harris as well as Payton. Harris permits police to obtain voluntary confessions from suspects off premises after an arrest is made in the home in violation of Payton. Unless Harris were repudiated, adoption of the doctrine of constructive entry in arrest cases would incentivize police to enter houses without a warrant because, by doing so, they would be able to seize their suspects in the home, be able to prosecute them even after unlawful arrests (if they had probable cause to arrest), and still retain the possibility of obtaining voluntary confessions from these suspects off premises after giving them Miranda warnings.
¶ 104 Constructive entry to effect an arrest is not grounded in the English common law. It represents a departure from the established bright line rule against breaking a plane to physically enter a protected premises, and it would, if adopted, create uncertainty in the law about what police conduct outside the home is so "coercive" or "deceptive" to a suspect inside the home that it compels or induces the suspect to come out and surrender and thus requires some sort of suppression of evidence. To deter "constructive entry" in arrest cases in which the police have probable cause to arrest, the law might have to suppress more than subsequent confessions and physical evidence. It might have to bar prosecution of persons seized "unlawfully" both inside and outside the home. This would inevitably lead to an expansion of exigent circumstances authorizing entry without a warrant.
¶ 105 The court assumes a Payton violation for its analysis in this case. While this assumption is understandable given how the case evolved, it is nonetheless somewhat troubling because the court adopts and follows Harris under the Wisconsin Constitution. Harris is simply inconsistent with the notion of a Payton "violation" on the facts of this case where there was no physical entry into the home. Moreover, the Supreme Court may someday decide that Harris does not apply to physical evidence—like bloody clothing—that a suspect brings with him when he comes out of the house. Even though the Supreme Court has repeatedly moved beyond property law and "place" in a search context, it is unlikely to stray from Payton principles and property law when it comes to the seizure of a person in the home.
¶ 106 Payton was more about places than people. However, focusing on people, surprise and even coercion is sometimes preferable for both suspects and police officers than the violence that may accompany service of a judicially sanctioned warrant.
¶ 107 For the reasons stated, I respectfully concur.
ANN WALSH BRADLEY, J. (dissenting).
¶ 108 To be clear, contrary to the concurrence's assertions, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) was violated when officers arrested Felix in his home without a warrant.
¶ 109 The question before this court is not whether there was a violation of Payton, as the concurrence suggests. The State has conceded a Payton violation at every stage of this case, and during oral argument in this court, it expressly disavowed
¶ 110 Rather, the question we address is whether we should interpret our state constitution as providing greater protection of our liberty interests than the protection provided by the United States Constitution. The majority answers the question no, embracing the rationale of New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990).
¶ 111 Because I conclude that the Harris decision does not sufficiently deter illegal government activity and because that decision may instead create powerful new incentives encouraging illegal arrests, I would accord the people of this state greater protection of their liberty interests under our state constitution. Accordingly, I respectfully dissent.
¶ 112 The majority "find[s] no reason" to interpret the Wisconsin Constitution any differently than the Supreme Court has interpreted the United States Constitution. Majority op., ¶ 38. It asserts that "the Harris Court drew a line at the entrance to the home," and following Harris, it declines to suppress the statements made by Felix outside of his home following his warrantless home arrest. Id., ¶ 48.
¶ 113 Although the Harris rule pertains only to statements obtained outside the home, the majority goes further. It extends the Harris rule to physical evidence obtained outside the home, even though the physical evidence would not have been seized "but for" the illegal entry. Id., ¶¶ 25, 46. Its rationale appears to be grounded in the Harris Court's assurances that "there is no compelling reason" to suppress this evidence because suppression would have little deterrent effect. Id., ¶ 40.
¶ 114 Unlike the majority, a unanimous court of appeals declined to apply the Harris rule in this case. State v. Felix, Case No. 2010AP346-CR, unpublished slip op., 2011 WL 1124400 (Wis.Ct.App. Mar. 29, 2011). The court of appeals explained that the 5-4 Harris decision has been the subject of substantial criticism. Id., ¶ 19 n. 9. In particular, it "was the subject of a vigorous dissent" which advanced that the Harris majority's "reasoning amounts to nothing more than an analytical sleight of hand, resting on errors in logic, misreadings of our cases, and an apparent blindness to the incentives the Court's ruling
¶ 115 The Harris decision has also been criticized on various grounds by a leading scholar of Fourth Amendment jurisprudence, Professor Wayne LaFave. 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4(b), at 304 (4th ed. 2004) ("The trouble with [Harris], as the Harris dissenters pointed out . . . is that . . . the detrimental consequences of illegal police action . . . do not inevitably cease simultaneously with the illegality itself.").
¶ 116 Several state courts have criticized the Harris decision and have explicitly refused to apply its rationale to their state constitutions. When the Supreme Court remanded Harris to New York's highest court, for example, the New York court refused to adopt the Supreme Court's rationale. It explained: "We conclude that the Supreme Court's rule does not adequately protect the search and seizure rights of citizens of New York. Accordingly, we hold that our State Constitution requires that statements obtained from an accused following a Payton violation must be suppressed unless the taint resulting from the violation has been attenuated." People v. Harris, 77 N.Y.2d 434, 568 N.Y.S.2d 702, 570 N.E.2d 1051, 1052-53 (1991).
¶ 117 Although state courts have split on the question, several states have followed New York's lead. In State v. Mariano, 114 Haw. 271, 160 P.3d 1258, 1268 (Haw. Ct.App.2007), the court of appeals of Hawaii stated: "We cannot condone the parsimonious Fourth Amendment protection the Supreme Court doled out in Harris." Likewise, the Supreme Court of Connecticut concluded that the Harris rule does not provide the protection required by that state's constitution. State v. Luurtsema, 262 Conn. 179, 811 A.2d 223, 233 (2002), overruled on other grounds by State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). See also State v. Eserjose, 171 Wn.2d 907, 259 P.3d 172, 178 (2011) (concluding that the Harris rule "falls short of the protection afforded by our state constitution"). Indeed, we have previously declined to adopt Harris in the past, even though we were given an occasion to do so. State v. Roberson, 2006 WI 80, 292 Wis.2d 280, 717 N.W.2d 111.
¶ 118 Despite the substantial criticism, the majority today embraces the Harris rule and declines to afford greater protection of liberty interests under our state constitution. Both the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution provide that "[t]he right of the people to be secure in their . . . houses . . . shall not be violated." Even if officers have probable cause to arrest a suspect, they are required to secure a warrant before effectuating the arrest at the suspect's home. Payton, 445 U.S. 573, 100 S.Ct. 1371.
¶ 119 Absent exigent circumstances, warrantless home arrests are unconstitutional. For years, American courts have
¶ 120 Driven by the purpose of deterring illegal government activity, the United States Supreme Court has recognized the reality that it is often necessary to suppress derivative evidence. This type of evidence is not obtained during the actual illegal search or seizure, but rather, it is the later product of an initial illegal intrusion. Derivative evidence is often referred to as "fruit of the poisonous tree."
¶ 121 In the landmark case Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the United States Supreme Court acknowledged that not all derivative evidence must be suppressed to fulfill the deterrent purpose of the exclusionary rule. Some derivative evidence may be so attenuated from the underlying illegal conduct that "the deterrent effect of the exclusionary rule no longer justifies its cost." Id. at 609, 95 S.Ct. 2254 (Powell, J., concurring in part). Nevertheless, the Court indicated that persistent refusal to suppress fruits of the poisonous tree would "substantially dilute[ ]" the "effect of the exclusionary rule."
¶ 122 The United States Supreme Court has repeatedly rejected per se rules which would provide that suppression of certain
¶ 123 Harris marked a significant departure from this line of cases. The Harris opinion gave a nod toward the "familiar proposition that the indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality." Harris, 495 U.S. at 17, 110 S.Ct. 1640. However, the Court proceeded to abandon that "familiar proposition" altogether when it came to statements procured outside the threshold of the home following an illegal warrantless home arrest.
¶ 124 Instead of applying the familiar attenuation test, the Harris Court adopted the following categorical rule: Statements obtained outside the home following a warrantless arrest are not "the product of illegal governmental activity." Id. at 19, 110 S.Ct. 1640. Accordingly, "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by a defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Id. at 21, 110 S.Ct. 1640. The Harris Court's per se rule is a startling departure from Brown's attenuation analysis. See LaFave, Search & Seizure § 11.4(b), at 304.
¶ 125 As justification for its new rule, the Harris Court declared that its holding would not lead to any significant reduction in deterrence: "[T]he principal incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found, or statements taken, inside the home. If we did suppress statements like Harris', moreover, the incremental deterrent value would be minimal." 495 U.S. at 20, 110 S.Ct. 1640.
¶ 126 As the dissent in Harris quipped, "The Court's saying it may make it law [for purposes of the Fourth Amendment], but it does not make it true." Id. at 29, 110 S.Ct. 1640 (Marshall, J., dissenting). Indeed, the Harris Court's declaration that deterrence would not be diminished is belied by the facts underlying that case.
¶ 127 The following example, proffered by the dissent, illustrates how officers have much to gain and little to lose when they illegally perform a warrantless home arrest in the wake of Harris:
Id. at 32, 110 S.Ct. 1640. Ultimately, the dissent persuasively argued that rather than deterring illegal government conduct, the Harris majority actually "create[d] powerful incentives for police officers to violate the Fourth Amendment." Id.
¶ 128 I agree with the Harris dissenters that "[a] regime that suppresses only some fruits of constitutional violations" does not go far enough to "eliminate the incentives to violate the Constitution." Id. at 23, 110 S.Ct. 1640. I find the Harris dissent's clear explanation of the necessity of continuing to apply Brown much more persuasive than the rationale for abandoning Brown proffered by the Harris majority.
¶ 129 In the wake of Harris, I fail to see how the exclusionary rule serves its purpose as an effective deterrent of warrantless home arrests. An officer familiar with Payton and Harris, but wishing to avoid the hassle of securing an arrest warrant, has little incentive to do so. Rather, the officer need only usher the suspect out of the house as quickly as possible so that anything the suspect accidentally blurts out will be admissible under Harris's categorical rule.
¶ 130 Harris's limitation on the exclusionary rule may be the law of the land with regard to the Fourth Amendment of the United States Constitution. But that fact does not compel this court to similarly engraft this limitation of our liberty onto Article I, Section 11 of the Wisconsin Constitution.
¶ 131 If we declined to adopt the Harris rationale, it would not be the first time we interpreted Article I, Section 11 of our state constitution to provide greater protection of liberty interests than are provided by the United States Supreme Court's existing interpretation of the Fourth Amendment. The majority acknowledges that in State v. Eason, 2001 WI 98, ¶¶ 60-63, 245 Wis.2d 206, 629 N.W.2d 625, we concluded that the federal good faith exception to the exclusionary rule did not sufficiently deter illegal government activity. Majority op., ¶ 37. But contrary to its assertion, Eason is not the only case in which we declined to follow lockstep the Supreme Court.
¶ 132 Here, the officers had probable cause to arrest Felix. See id., ¶ 28. Additionally, they had ample time to secure a warrant for his arrest, given that they secured a warrant to search the crime scene, and the affidavit in support of that warrant named Felix as the suspect. Id., ¶ 8. Nevertheless, despite ample opportunity and the constitutional protections afforded to the home, the officers apparently decided that there was no need to secure an arrest warrant prior to confronting Felix at his apartment.
¶ 133 Under these circumstances, the officers' illegal conduct should not be sanctioned with a categorical exception to the exclusionary rule. I conclude that the Harris per se rule is an ineffective deterrent for Payton violations, and that any advantage of the rule does not outweigh the potential loss of liberty to the people of this state. I would remand to the circuit court to determine whether, under the Brown attenuation analysis, Felix's signed statement, the buccal swab, and Felix's clothing were sufficiently attenuated from the illegal arrest that they should not be suppressed.
¶ 134 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.
Wisconsin Statute § 939.63 provides: "Penalties; use of a dangerous weapon. (1) If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased as follows: . . . (b) If the maximum term of imprisonment for a felony is more than 5 years or is a life term, the maximum term of imprisonment for the felony may be increased by not more than 5 years."
All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.
The court of appeals declined to address these issues because it remanded to suppress Felix's signed statement on other grounds. Felix, No. 2010AP346-CR, ¶ 1 n. 1. Felix did not ask this court, in his briefs or at oral argument, for a remand to the court of appeals to allow it to address these issues. Thus, we do not address the voluntariness of Felix's statements or the validity of his Miranda waiver nor do we remand to the court of appeals to address these issues because Felix apparently has abandoned these arguments and has not asked for a remand to the court of appeals.
This suggestion is mistaken. The flaw in the concurrence's analysis is that it confuses the legal concept of arrest with the factual, physical act of handcuffing a suspect. "[T]he standard used to determine the moment of arrest is whether a reasonable person in the defendant's position would have considered himself or herself to be in custody, given the degree of restraint under the circumstances." State v. Kiekhefer, 212 Wis.2d 460, 485, 569 N.W.2d 316 (Ct.App.1997).
The State has conceded that the officers' "constructive entry" of Felix's apartment violated Payton (absent exigent circumstances). This concession is on firm footing. See United States v. Saari, 272 F.3d 804 (6th Cir. 2001); Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997); United States v. Maez, 872 F.2d 1444 (10th Cir. 1989); United States v. Curzi, 867 F.2d 36 (1st Cir.1989); United States v. Al-Azzawy, 784 F.2d 890 (9th Cir. 1985); Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982); State v. Dahl, 323 Or. 199, 915 P.2d 979 (1996); see also City of Sheboygan v. Cesar, 2010 WI App 170, ¶ 13, 330 Wis.2d 760, 796 N.W.2d 429.
Id. at 181, 69 S.Ct. 1302 (Jackson, J., dissenting).
