State v. Rodgers

339 N.W.2d 605, 115 Wis. 2d 118, 1983 Wisc. App. LEXIS 3858

Opinions

FOLEY, P.J.

The state appeals the circuit court’s order dismissing a criminal complaint against Michael Rodgers. The court concluded that the warrantless arrest of Rodgers in his home was unlawful and deprived the court of personal jurisdiction.¹ Because the consent obtained by the arresting officers to enter Rodgers’ home was invalid, we affirm the circuit court order.

The court found that the arresting officers went to Rodgers’ home intending to arrest him. When Rodgers’ mother met them at the door, the officers identified themselves, told her that they wanted to talk to her son, and asked whether he was home. Neither officer told her that they wanted to arrest Rodgers. Rodgers’ mother then admitted the officers and led them to him. The officers told Rodgers that they wanted to talk to him, but when he started to say something he was told that he was under arrest. The state does not contest these findings.

Absent exigent circumstances or consent, police may not enter a private dwelling to effect a warrantless arrest. Payton v. New York, 445 U.S. 573, 577 (1980); Laasch v. State, 84 Wis. 2d 587, 595, 267 N.W.2d 278, 284 (1978). Consent is not to be lightly inferred, but rather the state must show by clear and convincing evidence that a free, intelligent, unequivocal, and specific waiver was made. Laasch, 84 Wis. 2d at 592, 267 N.W.2d at 282.²

Based on the circuit court’s findings, the consent obtained by the officers to enter Rodgers’ home was invalid because the officers obtained it by deception. See McCall v. People, 623 P.2d 397, 403 (Colo. 1981); State v. Bailey, 417 A.2d 915, 919 (R.I. 1980). The officers went to Rodgers’ home intending to arrest him, yet they told his mother that they wanted to talk to him. Their statement carried the clear implication that they merely wanted to question Rodgers, not arrest him. The only possible reason for this subterfuge was to obtain a consent to enter Rodgers’ home that they doubted they could obtain if they stated the true purpose of their visit. If we were to approve this type of conduct by upholding Rodgers’ arrest, we would permit an important state and federal constitutional right to be vitiated by the guile of those on whom we depend to protect our rights.³

By the Court. — Order affirmed.

Footnotes

1

See Walberg v. State, 73 Wis. 2d 448, 457-59, 243 N.W.2d 190, 195-96 (1976).

2

Although Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978), speaks in terms oí waiver, the state argues convincingly that the question is not controlled by the intentional relinquishment of a known right test of Johnson v. Zerbst, 304 U.S. 458, 464 (1938), but rather by the “voluntariness” test of Schneckloth v. Bustamonte, 412 U.S. 218 (1973). “Voluntariness” in this context means the absence of explicit or implicit coercion. Id. at 228. Even if this is the case, we would still conclude that a warrant-less entry of a home, based on consent obtained by deception, was unreasonable and was prohibited by Wis. Const, art. I, § 11.

3

We do not hold that police must state the purpose of their visit to a home in order to obtain a valid consent to enter, only that they may not gain entry through deception.