Waukesha County Technical College

1. In-service 2009 Legal Update Waukesha County Technical College

2. Legal Update Presented by: Sgt. Chris Jaekl, New Berlin Police Department Former DDA Mike Bundy, Waukesha County D.A.�s Office Former DDA Bob Donohoo, Milwaukee County D.A.�s Office

3. Course Philosophy Rank has no privilege Informal, relaxed atmosphere Misery is Optional Ask questions Remain open minded, and seek further clarification

4. Disclaimer All of the information that we will present is current, up to date legal information that is applicable in the State of WI. Each District Attorney can have policies in effect on how that office will handle certain types of events. These policies may differ from what we are presenting today. In all uncertain cases, consult with your District Attorney, as he or she is the legal adviser for your county!

5. Legal Update 2009 Legislative Update Arizona vs. Gant History of the Belton rule and Search Incident to Arrest Facts of the case Issues 5th and 6th Amendment law Hot Pursuit New information from State vs. Ferguson

6. Legislative Update 2009 Act 28 Changed the penalty/penalty type for certain OAR offenses. Non OWI based revocations, whether or not there is a prior violation, are now civil forfeitures. OWI based revocations, whether or not there is a prior violation, are criminal. 343.44(2)(as) Any person who violates sub (1)(b) after July 27, 2005, shall forfeit not more that $2,500, except that if the revocation identified under sub (1)(b) resulted from an offense that may be counted under S 343.307(2), the penalty under par. (b) shall apply.

7. Legislative Update Hit and Run Causing Injury (ss 346.67(1)) In State v. Brandt, 2009 WI App ____, ____ Wis. 2d ___, N.W. 2d___, the Court addressed the issue of whether the crime of hit and run causing injury is a misdemeanor or a felony. The penalty listed in sec 346.74(5)(b) is not more than 9 months imprisonment � a misdemeanor. However, sec 346.74(5)(e) states that it is a felony. The Court held that it is a felony.

8. Legislative Update 2009 WI Act 28 Effective June 30, 2009, an officer can stop a vehicle based solely on a violation of the seatbelt law (347.48(2m)(b)), including a violation by a passenger. Sec 347.48(2m)(gm) still expressly forbids an arrest based solely on a seatbelt violation. 2009 WI Act 22 Addressed the passing of parked motor vehicles by a person on a bicycle and the opening of motor vehicle doors on highways

9. Legislative Update 2009 WI Act 22 Sec 346.80(2)(c) was amended to read: Any person operating a bicycle or electric personal assistive mobility device upon a roadway shall exercise due care when passing a standing or parked vehicle or a vehicle proceeding in the same direction, and, when passing a standing or parked vehicle that is a school bus not displaying flashing red warning lights as provided in sec 346.48(1) or a motor bus, shall allow a minimum of 3 feet between the bicycle or electric personal assistive mobility device and the vehicle.

10. Legislative Update 2009 WI Act 22 Created sec 349.94(20) to read: OPENING MOTOR VEHICLE DOOR ON HIGHWAY. (a) No person may open any door of a motor vehicle located on a highway without first taking due precaution to ensure that his or her act will not interfere with the movement of traffic or endanger any other person or vehicle. (b) The operator of a motor vehicle located on a highway may not permit any person under 16 years of age to open any door of the motor vehicle without the operator first taking due precaution to ensure that opening the door will no interfere with the movement of traffic or endanger any other person or vehicle.

11. Legislative Update Mayhem � sec 940.21 In State v Quintana, 2008 WI 33, 308 Wis. 2d 615, 748 N.W. 2d 447, the Court held that the �forehead� qualifies as an �other bodily member� under WI mayhem statute. 2007 WI Act 127 (Angie�s Law) Created a specific strangulation and suffocation felony crime. Newly created sec 940.235 provides: 940.235 Strangulation and suffocation. (1) Whoever intentionally impedes the normal breathing or circulation of blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person is guilty of a Class H felony. (2) Whoever violates sub (1) is guilty of a class G felony if the actor has a previous conviction under this section or a previous conviction for a violent crime, as defined in sec 939.632(1)(e)1.

12. Legislative Update 2007 WI Act 127 Substantial Battery Act 127 increased the coverage of actions that can be the crime of substantial battery. Act 127 amended the definition of �substantial bodily harm� at 939.(38) by adding �a petechia� between a burn and a temporary loss of consciousness. The definition of petechia is set forth in newly created 939.22(23): 939.22(23) �Petechia� means a minute colored spot that appears on the skin, eye, eyelid, or mucous membrane of a person as a result of localized hemorrhage or rupture to a blood vessel or capillary

13. Legislative Update 2007 WI Act 127 Dangerous Weapon sec 939.22(10) now reads: �Dangerous weapon means any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any ligature or other instrumentality used on the throat, neck, nose, or mouth of another person to impede, partially or completely, breathing or circulation of blood; any electric weapon, as defined in sec 941.295(4); or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.

14. Legislative Update Receiving Stolen Property sec 943.34 State v Lippold, 2008 WI App 130, 313 Wis. 2d 699, 757 N.W. 2d 825, the Court held that venue for prosecution of receiving stolen property cases is in both the county where the stolen property is possessed/received and also in the county where the property was stolen. Escape 946.42 Sec 946.42(2m) was created to read: A person who is in the custody of a probation, parole, or extended supervision agent, or a correctional officer, based on an allegation or a finding that the person violated the rules or conditions of probation, parole, or extended supervision and who intentionally escapes from custody is guilty of a class H felony. Sec 946.42(4) was created to read: If a person is convicted of an escape under this section, the maximum term of imprisonment for the escape may be increased by not more than 5 years if an individual who had custody of the person who escaped is injured during the course of the escape.

15. Legislative Update Bomb Scare In State v. Robert T., 2008 WI App 22, ___ Wis. 2d ___, 746, N.W. 2d 564, the defendant was convicted of violating WI�s bomb scare crime, sec 947.015. The court provided a test to determine if a �true threat� had been made: ��a true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered.� The court also rejected the position that a threat, to be a true threat, must either be directed at a person or group of persons or that is must threaten bodily harm or death. A true threat can include a threat of destroying property by means of explosives.

16. Legislative Update 2008 WI Act 64 Creates SS 134.405(3)(a)(2): The scrap metal dealer records and maintains at the scrap metal dealer�s place of business the seller�s or deliverer�s identification information described in subd. 1., the time and date of the purchase, the number and state of issuance of the license plate on the seller�s or deliverer�s vehicle, and a description of the items received, including all of the following: a. The weight of the scrap or articles. b. A description of the scrap or articles that is consistent with guidelines promulgated by a national recycling industry trade organization

17. Legislative Update 2008 WI Act 64 Creates SS134.405(4)(a) and (b): (a) A scrap metal dealer shall make the records required under sub. (3) (a) 2. to 5. and (b) available to a law enforcement officer who presents the agent�s credentials at the scrap metal dealer�s place of business during business hours. (b) A scrap metal dealer shall maintain the records required under sub. (3) (a) 2., 4., and 5. and (b) 4. and 5. for not less than 2 years after recording it. A scrap metal dealer shall maintain the records required under sub. (3) (b) 1. to 3. regarding a commercial account for not less than 2 years after the dealer�s most recent transaction with the commercial account.

18. Legislative Update 2008 WI Act 106 This act deals with anatomical gifts. The act deals with a number of issues pertaining to what an anatomical gift is, who has the authority to grant or revoke a gift, etc. Most of this does not apply to law enforcement, however, a section has been created that does have an application for law enforcement: Creates SS 157.06(12): (12) SEARCH AND NOTIFICATION. (a) If any of the following persons reasonably believes an individual to be dead or near death, the person shall make a reasonable search of the individual for a record of gift or a record of refusal or other information identifying the individual as a donor or as an individual who has refused to make an anatomical gift. 1. A law enforcement officer, fire fighter, emergency medical technician, first responder, or ambulance service provider. 2. If no other source of information is immediately available, a hospital, as soon as practical after the individual�s arrival at the hospital. (b) If a record of gift or record of refusal is located by a search under par. (a) 1., and the individual or deceased individual to whom the record or gift or record of refusal relates is taken to a hospital, the person responsible for conducting the search shall send the record of gift or record of refusal to the hospital.

19. Legislative Update 2008 WI Act 124 This act amended a number of the sections that deal with temporary restraining orders and injunctions. The main thing that has been added is the concept of constructive knowledge. Many of the sections that you will see state that a person who has not appeared in court, but has been served, should know of the TRO or injunction, and has constructive knowledge of it. Section 813.12(7)(c) is amended to read: A respondent who does not appear at a hearing at which the court orders an injunction under (4) but who has been served with a copy of the petition and notice of the time for hearing under s. 813.12 (3) sub. (4) (a) 2. has constructive knowledge of the existence of the injunction and shall be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction. Creates 813.122(10)(c): A respondent who does not appear at a hearing at which the court orders an injunction under sub. (5) but who has been served with a copy of the petition and notice of the time for hearing under sub. (5) (a) 2. has constructive knowledge of the existence of the injunction and shall be arrested for violation of the injunction regardless of whether he or she has been served with a copy of the injunction.�

20. Legislative Update 2008 WI Act 193 This Act created the following section: � 940.208 Battery to certain employees of counties, cities, villages, or towns. Whoever intentionally causes bodily harm to an employee of a county, city, village, or town under all of the following circumstances is guilty of a Class I felony: (1) At the time of the act, the actor knows or should know that the victim is an employee of a county, city, village, or town. (2) The victim is enforcing, or conducting an inspection for the purpose of enforcing, a state, county, city, village, or town zoning ordinance, building code, or other construction law, rule, standard, or plan at the time of the act or the act is in response to any such enforcement or inspection activity. (2p) The enforcement or inspection complies with any law, ordinance, or rule, including any applicable notice requirement. (3) There is no consent by the victim.

21. Arizona v. Gant History/background of Search Incident to Arrest Chimel v. California established the concept of conducting a search incident to the arrest of a person. A lawful arrest creates a situation justifying a contemporaneous, warrantless "search of the arrestee's person and the area within his immediate control.� {Chimel v. California, 395 U.S. 752 (1969)} The Chimel rule states that it is reasonable to search �an area near the arrestee,� the rule does not permit a warrantless search of an area so broad as to be unrelated to the protective purposes of the search. Thus, Chimel defines the area of 'immediate control' within which the police may reasonably search incident to arrest as 'the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.�

22. Arizona v. Gant History/Background of Search Incident to Arrest The Belton Rule established a �bright line rule� allowing police officers to search the interior passenger compartment of a vehicle incident to arrest every time. The court, however, did not specify when such a search could be made. When a police officer has made a lawful custodial arrest of the occupant of an automobile, he may ,as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. It follows from this conclusion that the police may examine the contents of any containers found within the passenger compartment.....Such a container may, of course, be searched whether it is open or closed.....{New York v. Belton, 453 U.S. 454, 460-461 (1981)}

23. Arizona v. Gant History/Background of Search Incident to Arrest Fact of the Belton case: Officer stops a vehicle with 4 occupants for speeding. Officer determined that none of the occupants owned the vehicle. He also smelled the odor of burnt marijuana. Officer saw marijuana cigarette on floor. Ordered all occupants out of the vehicle. He placed them all under arrest, but was only able to handcuff one. Officer then ordered the subjects to stand with some distance between them. Officer search vehicle and found cocaine in respondents jacket. Court ruled that search was legal as a search incident to arrest as respondent was �within reach� of the passenger compartment at time of arrest.

24. Arizona v. Gant Current status of the law Arizona v. Gant, 129 S.Ct.1710 (2009). Held that the police may search the passenger compartment of a vehicle incident to a recent occupant�s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe (there is reason to believe) that the vehicle contains evidence of the offense of arrest.� From this, we must understand that we can not automatically search a vehicle after we have arrested a recent occupant of the vehicle.

25. Arizona v. Gant When can we search a vehicle incident to the arrest of a recent occupant? When the arrestee is unsecured and within reaching distance of the passenger compartment of the vehicle at the time of the search. ***OFFICER SAFETY TAKES PRECEDENT*** A person is considered secured when: The person is handcuffed and in the back of a squad car. (Gant search is definitely not authorized) The person is handcuffed and standing near his/her vehicle. (Most likely, Gant search is not authorized, however, there is uncertainty.) The person is not handcuffed but is surrounded by multiple officers, and the person would not reasonably be able to gain access to the passenger compartment of the vehicle.

26. Arizona v. Gant When can we search a vehicle incident to the arrest of a recent occupant? When the arrestee is unsecured and within reaching distance of the passenger compartment of the vehicle at the time of the search. �because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee�s vehicle remains. But in such a case, a search incident to arrest is reasonable under the Fourth Amendment.� This shows that the Court is not expecting that a lot of searches will be legal under this theory.

27. Arizona v. Gant When can we search a vehicle incident to the arrest of a recent occupant? Multiple Occupants in the vehicle: In his dissenting opinion, Judge Alito stated ��First, it is not uncommon for an officer to arrest some but not all of the occupants of a vehicle.� Does this mean if there are other occupants of a vehicle, who would have the ability to access weapons or destroy evidence, the police would be able to search the vehicle incident to the arrest of a recent occupant?

28. Arizona v. Gant When can we search a vehicle incident to the arrest of a recent occupant? When the officer �reasonably believes� that the vehicle will contain evidence of the offense of arrest. What does �reasonably believe mean? Most D.A.�s believe that this is less than the probable cause standard Is it the same as reasonable suspicion? Is reasonably believes a new standard?? Many routine vehicle related arrest will no longer support a search of the vehicle incident to the arrest. However, police may still search the person arrested incident to the arrest!

29. Arizona v. Gant The Gant decision did not invalidate any of the other acceptable vehicle search doctrines. Police may still search a vehicle: With probable cause to believe that the vehicle contains items of evidence or contraband. With consent Is Miranda necessary to obtain consent to search after a person has been arrested? Most D.A.�s will answer no! Vehicle frisk/protective search Inventory search Inspection

30. Arizona v. Gant Strategies A person is arrested for OAR. Nearly everyone agrees that there is no �reason to believe� that the vehicle will contain evidence of OAR. A person is arrested for OWI. Most D.A.�s in the state agree that you may search the vehicle incident to the arrest under Gant as it is reasonable to believe that the vehicle will contain evidence that will support the OWI charge, such as open intoxicants which can be used to substantiate the OWI curve. A search incident to the arrest of the person reveals drugs. Should you re-arrest the person for possession? Will you now be able to articulate that there is a reason to believe the vehicle will contain evidence of drug possession, and search the vehicle??

31. Arizona v. Gant Direction of lower court decisions regarding Gant People v. Osborne, California Court of Appeal: an officer stopped a subject near a parked vehicle, believing he was stealing. During a pat-down, the officer located a handgun in the suspect�s waistband. The suspect was arrested, and the officer searched the vehicle, finding drugs. The court concluded that the vehicle could be searched incident to the suspect�s arrest. The court stated: [G]iven the crime for which the officer had probable cause to arrest (illegal possession of a firearm), it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle�although the firearm found on the defendant was loaded, it was reasonable to believe that the vehicle might contain additional items related to the crime of gun possession such as more ammunition or a holster.� The court also stated, �the Gant court specifically requires only a �reasonable basis to believe� the vehicle contains relevant evidence, a standard less than full probable cause.� So, even though the officer did not express any specific reason to believe additional evidence was in the vehicle, the nature of the offense for which the arrest was made justified the vehicle search.

32. Arizona v. Gant United States v. Oliva, U.S. District Court for the Southern District of Texas: Officers arrested a female for OMVWI and searched her vehicle. The search yielded marijuana, resulting in an additional charge. The court upheld the search: �it would be reasonable for officers to search the vehicle for evidence of driving while intoxicated, including open or empty containers.�

33. Arizona v. Gant United States v. Grote, U.S. District Court for the Eastern District of Washington: Officers arrested an individual for OMVWI, and observed a brown paper bag wrapped around a bottle lying on the passenger seat. The officer searched the vehicle. The court upheld the search: �it was objectively reasonable for (the officer) to search defendant�s vehicle for evidence of driving under the influence, including open or empty containers of alcohol.�

34. Confession Law The 5th and 6th Amendment to the U.S. Constitution govern police conduct during interrogations. Each amendment covers a different stage of the interrogation process 5th Amendment covers the protection against self incrimination. 6th Amendment guarantees the right to representation in criminal proceedings.

35. Confession Law 5th Amendment to the U.S. Constitution No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

36. Confession Law 6th Amendment to the U.S. Constitution In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

37. Confession Law How do we protect a person�s 5th and 6th Amendment rights during a criminal investigation? The warnings that the U.S. Supreme Court outlined in Miranda v. Arizona, 384 U.S. 436 (1966) serve as the safeguard of the 5th (and more recently, the 6th) Amendment rights.

38. Confession Law Miranda v. Arizona, 384 U.S. 436 (1966) ��. (d) In the absence of other effective measures, the following procedures to safeguard the Fifth Amendment privilege must be observed: the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

39. Confession Law-5th Amendment Primary requirements for Miranda to apply in a 5th Amendment setting: The suspect must be in custody. The police are interrogating the suspect Custody, for Miranda purposes, is a totality of circumstances approach from the standpoint of a reasonable person. Would a reasonable person feel that he/she is under arrest or not free to leave. In order for a court to conclude that a suspect was in custody, it must be evident that, under the totality of the circumstances, a reasonable person in the suspect's position would feel a restraint of his or her freedom of movement, fairly characterized, so that the suspect would not feel free to leave or to terminate the encounter with police.� {Connor, 803 So.2d at 605} Wisconsin courts have stated that the ultimate inquiry when determining whether a person has been placed in custody for Miranda purposes is whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. {Goetz, 2001 WI App 294 at � 11, 249 Wis.2d at 384}

40. Confession Law-5th Amendment Custody is not necessarily an easy status to determine. However, a number of factors have been identified by several courts to help determine if a person is in custody: When and where the interrogation occurred Whether the person consented to speak with the officers Whether the person was told that he/she was not under arrest and was free to leave How long the interrogation lasted How many police officers were present What the officers and the defendant did The presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door Whether the defendant is being questioned as a suspect or a witness How the defendant got to the place of questioning, that is, whether he came completely on his own in response to a police request or was escorted by police officers What happened after the interrogation-whether the defendant left freely, was detained, or was arrested.

41. Confession Law- 5th Amendment When is a person �not� in custody? Most courts will use the totality of circumstances approach to determine custody status. The subjective intent/belief of the officer and suspect are not necessarily the deciding factor. Some situations where courts have determined a person is �not� in custody: �Terry� Stop. However, if the �Terry� stop requires multiple officers with guns drawn, it will most likely be considered a custody situation. Traffic Stop Crime scene questioning/investigatory questioning Confinement to a hospital bed

42. Confession Law-5th Amendment Interrogation Interrogation can be considered police initiated custodial questioning designed to elicit an incriminating response. Courts use an objective test to determine whether specific questioning is interrogation: �Whether an objective observer could foresee that the officer�s conduct or words would elicit an incriminating response.� {State v. Mitchell, 167 Wis 2d 672, 482 N.W. 2d 364 (1992)}

43. Confession Law-6th Amendment 6th Amendment Right to Counsel The core of the Sixth amendment right to counsel has historically been, and remains today, the opportunity for a defendant to consult with an attorney and to have him/her investigate the case and prepare a defense for trial. {Ventris, 556 U.S. at ____, 129 S.Ct. at 1845-46.} The Sixth Amendment right to counsel also is applicable to having counsel present at various pretrial critical interactions between the defendant and the state including the deliberate elicitation by the police and their agents of statements pertaining to the charge (pretrial interrogations). { Dagnall, 2000 WI at � 30, 236 Wis.2d at 357}

44. Confession Law � 6th Amendment 6th Amendment Right to Counsel The Sixth amendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings once the adversary judicial process has been initiated and interrogation by the state is such a stage. {Montejo, 556 U.S. at ____, 129 S.Ct. at 2085 (2009)} The Sixth Amendment right to counsel covers pretrial interrogations to ensure that police manipulation does not render counsel entirely impotent�depriving the defendant of effective representation of counsel at the only stage when legal aid and advice would help him. {Ventris, ____ U.S. at ____, 129 S.Ct. at 1845.}

45. Confession Law � 6th Amendment The Sixth Amendment right to counsel is offense specific. Cole, 2008 WI App at � 26 n.8, ____ Wis.2d at ____ n.8; Dagnall, 2000 WI at �� 32, 52, 236 Wis.2d at 359, 369; Ventris, ____ U.S. at ____, 129 S.Ct. at 1846. The Fifth Amendment Miranda right to counsel, unlike the Sixth amendment right to counsel, is not offense specific. Cole, 2008 WI App at � 26, ____ Wis.2d at ____; Coerper, 199 Wis.2d at 223

46. Confession Law � 6th Amendment When does the 6th Amendment right to counsel attach? The 6th Amendment right to counsel does not attach until a prosecution is commenced. {Rothgery, ____ U.S. at ____, 128 S.Ct. at 2583.} Commencement of a prosecution, for Sixth Amendment right to counsel purposes, is the initiation of adversary judicial criminal proceedings�whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Dagnall, 2000 WI at � 30, 236 Wis.2d at 357 (the right to counsel under the Sixth Amendment arises after adversary judicial proceedings have been initiated); Rothgery, ____ U.S. at ____, 128 S.Ct. at 2583; Cobb, 532 U.S. at 167-68, 121 S.Ct. at 1340.

47. Confession Law Miranda Procedures Person invokes the �right to silence� and there is continuous custody. Immediately cease interrogation. Police may not re-initiate interrogation until at least 2 hours. After 2 hours, police may re-initiate interrogation, but must first re-advice person of Miranda rights. {State v. Turner, 136 Wis. 2d 333, 401 N.W. 2d 827 (1987)} If the person re-initiates the conversation with the police, re-advice of Miranda and continue if a valid waiver is given. If the person is released from custody, the right no longer applies. Person invokes �right to an attorney� for 5th Amendment purposes and remains in continuous custody. Invocation of the right must be unequivocal, and can only be asserted by the person arrested. Immediately cease interrogation. Police may not re-initiate interrogation at all, for the current offense or any other offense, until the person has his/her attorney present.

48. Confession Law Miranda Procedures Person invokes �right to an attorney� for 6th Amendment purposes Police may not interrogate person without attorney present for the charged offense. Police may interrogate person about a different offense. Advise person of Miranda rights, and if valid waiver is obtained, police may question person about different offense. Police may re-initiate interrogation of person if valid waiver of 6th Amendment right to counsel is obtained.

49. Confession Law

50. State v. Ferguson Making a warrantless entry to a home while in Hot Pursuit is one of the recognized exceptions to the 4th Amendment warrant requirement. In WI, State v. Mikkelson, {2002 WI App 152, 256 Wis.�2d 132, 647 N.W.2d 421.}, stated that officers may only enter a home without a warrant while in hot pursuit for a felony. This has now changed! State v. Ferguson, 2009 WI 50, over-rules State v. Mikkelson, stating that the proper determination for exigent circumstances is the penalty that attaches to the offense, not whether it is labeled as a felony or misdemeanor.

51. State v. Ferguson A warrantless home entry is presumptively unreasonable, unless the entry is made pursuant to an exigent circumstance. Destruction of evidence. Threat to the safety of the suspect or others. A possibility that the suspect will flee. While in hot pursuit. Interestingly, this case did not deal with a �hot pursuit� issue, rather a �threat to the safety of the suspect or others� issue.

52. State v. Ferguson Facts of the case. Ferguson banged on a lower tenants apartment early in the morning. When officers went to investigate, they spoke to her through the open door of her apartment, however, the were in the hallway and not her apartment. Ferguson was uncooperative, yelling and swearing at the officers. Her nephew tried to grab her arm to calm her down, and she pushed him away and began yelling and swearing at him. The officers then entered the apartment to arrest Ferguson for disorderly conduct. She continued her abusive behavior and was eventually charged with DC, Obstructing, and Resisting

53. State v. Ferguson The Supreme Court, in analyzing Ferguson, needed to determine if the exigent circumstances allowed the officers to make a warrantless entry to Ferguson�s apartment. The Court noted that in Welsh v. WI, the U.S. Supreme Court stated ��"[w]hen the government's interest is only to arrest for a minor offense, .�.�. the government usually should be allowed to make such arrest only with a warrant issued upon probable cause by a neutral and detached magistrate."

54. State v. Ferguson The Court reasoned that the gravity of the underlying offense is an important factor to consider when determining whether an exigency exists. Welsh does not create a felony/misdemeanor distinction for finding exigent circumstances. The Court stated that exigent circumstances can exist when officers attempt to make an arrest for a jailable offense.

55. State v. Ferguson What does this mean for WI law enforcement officers? Officers may enter a home while in hot pursuit for a jailable offense.