Bruce Vielmetti

Milwaukee Journal Sentinel

In a splintered decision, the state Supreme Court this week broadened the circumstances when a police officer can enter someone's home garage without a warrant, a ruling the dissenters called a dangerous encroachment on privacy protections.

The 77-page decision, composed of four opinions, reversed a Court of Appeals ruling that a driver's arrest violated his Fourth Amendment right against unreasonable search and seizure, that the deputy involved should have obtained a search warrant to enter the man's garage, and the driver's convictions should be thrown out.

The high court said no warrant was needed because of the "exigent circumstances" of the deputy's "hot pursuit." The limited entry into an open garage was only to prevent the suspect's continued flight, the court ruled.

The Court of Appeals had said the incident was merely a traffic stop, not a life-and-death situation, or one that raised the likelihood of evidence destruction or further escape.

In April 2013, a Wood County sheriff's deputy tried to stop Richard L. Weber in Arpin for a broken brake light. But Weber ignored the deputy's emergency lights behind him and drove another 100 feet before turning into his home's attached garage. The deputy parked on the driveway. After Weber didn't respond to a request to come out and talk, the deputy walked into the garage and grabbed Weber by the arm as he was stepping into his house.

That's when the deputy thought Weber appeared intoxicated. Weber later admitted he had consumed some drinks that day. He refused to do field sobriety tests and tried to pull away from the deputy. He did allow a search of his car, where deputies found some marijuana and a pipe.

Weber was taken to a hospital for a blood draw that showed a 0.24 blood-alcohol concentration, three times the legal limit for driving. He pleaded no contest to operating with a prohibited alcohol concentration, resisting an officer and possession of marijuana, and appealed on the basis that his arrest was unlawful because the deputy entered his garage without a warrant.

Justice Annette Ziegler wrote the lead opinion, joined by justices Michael Gableman and Patience Roggensack. They found the deputy had probable cause that Weber was fleeing or resisting, or obstructing an officer, "jailable offenses" for which the deputy was in "hot pursuit."

"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," Ziegler wrote, because the deputy had activated his emergency lights, then called out to Weber to stop.

Justice Daniel Kelly concurred separately, joining the lead opinion's result, but for a different reason. He did not believe the record supported the conclusion Weber was committing either "jailable offense."

"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 warrantless arrest and search," Kelly wrote. "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."

But he said Weber's convictions should be upheld on the grounds that Weber effectively consented to the deputy entering his garage when Weber chose to park there, instead of outside, for the traffic stop.

Three justices dissented. Justice Ann Walsh Bradley wrote one dissent, joined by Justice Shirley Abrahamson.

Bradley wrote, "By lowering the standard to meet the facts in this case, the lead opinion would erode the constitutional rights of us all."

She agreed with Kelly that the facts do not reasonably support an emergency exception to Fourth Amendment protections, and that the state failed to overcome the presumption that entry to the home, or its "curtilage," like an attached garage, is unconstitutional without a warrant.

Justice Rebecca Bradley dissented separately. She warned that the lead opinion is a stealthy erosion of the traditional protections afforded to people's home.

"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," she wrote, and later stated flatly that the Fourth Amendment does not allow government intrusion into a home premised on a minor traffic violation like a broken tail light.