2016 WI 96

SUPREME COURT OF WISCONSIN

CASE NO.: 2014AP304-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Richard L. Weber,

 Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED: November 29, 2016

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 6, 2016

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Wood

JUDGE: Gregory J. Potter

JUSTICES:

CONCURRED: KELLY, D., J. concurs (Opinion filed).

DISSENTED: BRADLEY, A. W., J. dissents, joined by 

ABRAHAMSON, J. (Opinion filed). 

BRADLEY, R. G., J. dissents (Opinion filed).

NOT PARTICIPATING: 

ATTORNEYS:

For the plaintiff-respondent-petitioner the cause was 

argued by Nancy A. Noet, assistant attorney general, with whom 

on the brief(s) was Brad D. Schimel, attorney general.

For the defendant-appellant, there was a brief and oral 

argument by Kara L. Mele, assistant state public defender.
2016 WI 96

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2014AP304-CR

(L.C. No. 2012CF274)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Richard L. Weber,

 Defendant-Appellant.

FILED

NOV 29, 2016

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Reversed. 

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an 

unpublished decision of the court of appeals, State v. Weber, 

No. 2014AP304-CR, unpublished slip op. (Wis. Ct. App. Oct. 8, 

2015) (per curiam), which reversed the Wood County circuit 

court's1 order denying defendant Richard Weber's ("Weber") motion 

to suppress evidence of drunk driving, possession of marijuana, 

and possession of drug paraphernalia, and remanded the case to 

the circuit court with directions to vacate its judgment of 

conviction, permit Weber to withdraw his plea, and grant Weber's 

 

1 The Honorable Gregory J. Potter presided.
No. 2014AP304-CR 

2

motion to suppress evidence. Weber, unpublished slip op., ¶¶1,

10.

¶2 A deputy of the Wood County sheriff's department 

attempted to pull Weber over on a public highway by activating 

the emergency lights on his vehicle after observing that Weber's 

vehicle had a defective high-mounted brake lamp and watching the 

vehicle weave over the highway's fog line. When Weber failed to 

yield to the traffic stop, the deputy pursued Weber into his 

driveway and apprehended him in his garage. The question before 

this court is whether the deputy's warrantless entry into 

Weber's garage and subsequent arrest of Weber violated the 

Fourth Amendment of the United States Constitution and Article 

I, Section 11 of the Wisconsin Constitution, or whether the need 

for a warrant was obviated by the exigent circumstance of the 

deputy's "hot pursuit" of a fleeing suspect who had committed 

jailable offenses. See, e.g., United States v. Santana, 427 

U.S. 38 (1976). 

¶3 We conclude that the deputy's warrantless entry into 

Weber's garage and subsequent arrest of Weber were 

constitutional because they were justified by the exigent 

circumstance of hot pursuit of a fleeing suspect who had 

committed jailable offenses. The deputy had probable cause to 

believe that Weber had committed two jailable offenses, 

immediately pursued Weber, and performed a limited entry into 

Weber's open garage for the purpose of preventing Weber's 

continued flight. Under these specific circumstances, the 
No. 2014AP304-CR 

3

deputy's actions were constitutionally reasonable. Accordingly, 

we reverse the decision of the court of appeals. 

I. FACTUAL BACKGROUND

¶4 On April 20, 2012, Deputy Calvin Dorshorst ("Deputy 

Dorshorst") of the Wood County sheriff's department and Weber 

were driving in separate vehicles in Arpin, Wisconsin. Deputy 

Dorshorst observed that the high-mounted brake lamp on Weber's 

vehicle was not working properly and saw Weber's vehicle "weave 

from its lane of travel" "[o]ver the white fog line." Deputy 

Dorshorst activated his vehicle's emergency lights in an attempt 

to conduct a traffic stop. Weber did not, however, stop his 

vehicle. Instead, he drove about 100 feet, turned into a 

driveway, and pulled into an attached garage. Deputy Dorshorst 

followed the vehicle and parked 15 to 20 feet behind it but 

outside of the garage with his vehicle's emergency lights still 

on. At some point during this process, Deputy Dorshorst 

"contact[ed] dispatch notifying them [he] had a traffic stop."

¶5 Weber and Deputy Dorshorst exited their vehicles at 

about the same time. Weber began moving toward a door of the 

attached house inside the garage. Deputy Dorshorst ran to the 

front of his vehicle and in the direction of the garage, where 

he witnessed Weber "walking slowly" and "somewhat staggering" up 

steps inside the garage leading to the door to the house. As 

Deputy Dorshorst ran toward Weber he told Weber to stop and that 
No. 2014AP304-CR 

4

he needed to speak with him.2 Weber did not stop but instead 

continued up the steps to the house. Deputy Dorshorst entered 

the garage and "secured [Weber's] arm" as Weber was "just inside 

his [house's] door" at the top of the steps. Weber stopped and 

Deputy Dorshorst explained that he had stopped Weber because of 

the defective high-mounted brake lamp on Weber's vehicle. 

Deputy Dorshorst asked Weber to accompany him to Weber's vehicle 

so that Deputy Dorshorst could "point out exactly the reason for 

the stop and which light was defective." During this time Weber 

tried to pull away from Deputy Dorshorst and enter his house. 

Deputy Dorshorst noticed that Weber had "slow, slurred speech" 

and "glassy, bloodshot eyes." Additionally, Deputy Dorshorst 

could smell "a strong odor of intoxicants."

¶6 Weber and Deputy Dorshorst eventually exited the 

garage and walked back outside, where Deputy Dorshorst asked 

Weber if he had been drinking. Weber informed Deputy Dorshorst 

that "he was drinking at his residence and a while after 

drinking a couple of beers, he left and went to the Village of 

Arpin, at which time . . . he went to another place and was 

drinking." Weber was "unable to identify" the location in Arpin 

to which he had traveled. After consuming "a few drinks" there, 

Weber explained, he had returned to his home. Weber informed 

 

2 There may be some dispute as to the deputy's position at 

the time he first spoke to Weber. For a discussion, see infra,

n.8.
No. 2014AP304-CR 

5

Deputy Dorshorst that he thought he had had "way too much" 

alcohol. 

¶7 Deputy Dorshorst asked Weber to perform field sobriety 

tests, but Weber refused. Weber then tried to leave and reenter 

his garage, but Deputy Dorshorst advised Weber he was not free 

to do so. Weber "aggressively pushed into [Deputy Dorshorst's] 

chest with his head" around the same time that a second deputy 

pulled into the driveway. Deputy Dorshorst told Weber a second 

time that he was not free to leave. Weber "continued to 

resist," and the two deputies "escorted the defendant to the 

ground and secured his arms." Weber was put in handcuffs and 

placed under arrest. 

¶8 The deputies searched Weber and he consented to a 

search of his vehicle. In the vehicle the deputies found "a 

tinfoil square folded up with [a] green leafy vegetable 

substance inside, which was later tested positive for 

[tetrahydrocannabinols]," as well as a "metal pipe in the 

ashtray of the vehicle." The pipe "had a burned residue inside 

it" and "smelled of burnt marijuana." 

¶9 Weber was eventually taken to a hospital where his 

blood was drawn. Later analysis of his blood showed a blood 

alcohol concentration of 0.24.

II. PROCEDURAL BACKGROUND

¶10 On July 9, 2012, a criminal complaint was filed 

against Weber in Wood County circuit court charging him with one 
No. 2014AP304-CR 

6

count of operating while intoxicated, contrary to Wis. Stat. 

§ 346.63(1)(a) (2011-12),3 tenth and subsequent offense, see Wis. 

Stat. § 346.65(2)(am)7.; one count of operating with a 

prohibited alcohol concentration, contrary to § 346.63(1)(b), 

tenth and subsequent offense, see § 346.65(2)(am)7.; one count 

of possession of tetrahydrocannabinols, contrary to Wis. Stat. 

§ 961.41(3g)(e); possession of drug paraphernalia, contrary to 

Wis. Stat. § 961.573(1); and resisting an officer, contrary to 

Wis. Stat. § 946.41(1). On August 14, 2012, an information was 

filed in the case.

¶11 On October 24, 2012, Weber filed a motion collaterally 

attacking one of his prior convictions for drunk driving on the 

ground that he had not properly waived his right to counsel when 

entering his plea in that case. On October 29, 2012, Weber also 

moved the circuit court 

for an order excluding [Weber's] illegal arrest and 

evidence obtained as a result of the illegal arrest, 

including but not limited to the following: the blood 

alcohol concentration, officer's observations 

including glassy eyes, slurred speech, and odor of 

intoxicants, statements made by defendant, defendant's 

refusal to perform field sobriety tests, a metal pipe 

believed to be drug paraphernalia, and tin foil 

containing a green leafy vegetable substance believed 

to be tetrahydrocannabinols.

¶12 On February 21, 2013, the circuit court granted 

Weber's motion collaterally attacking one of his prior 

convictions but denied Weber's suppression motion. As to the 

 

3 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated.
No. 2014AP304-CR 

7

latter ruling, the circuit court concluded that Deputy 

Dorshorst's actions were justified by the exigent circumstance 

of hot pursuit. Specifically, Weber was fleeing Deputy 

Dorshorst's lawful attempts to stop him, Deputy Dorshorst had 

probable cause to believe that Weber was committing a crime in 

so doing, and Deputy Dorshorst's pursuit of Weber for this 

offense was "promptly made and maintained." 

¶13 On May 23, 2013, an amended information was filed in 

the case. On the same day, Weber pleaded no contest to 

operating with a prohibited alcohol concentration, ninth 

offense, possession of tetrahydrocannabinols, and resisting an 

officer. The other two counts against Weber were dismissed. On 

August 6, 2013, the circuit court sentenced Weber to four years 

of initial confinement and four years of extended supervision on 

the operating with a prohibited alcohol concentration charge and 

ordered that Weber pay costs on the other two offenses. On 

August 12, 2013, the court's judgment of conviction of Weber was 

filed. On January 30, 2014, Weber filed a notice of appeal.

¶14 On October 8, 2015, the court of appeals reversed the 

circuit court's order denying Weber's motion to suppress 

evidence and remanded the case to the circuit court with 

directions to vacate its judgment of conviction, permit Weber to 

withdraw his plea, and grant Weber's motion to suppress. Weber, 

unpublished slip op., ¶¶1, 10. The court of appeals explained 

that "the exigent circumstances requirement means that there 

must be a potential for danger to life, risk of evidence 

destruction, or likelihood of escape." Id., ¶7. The court 
No. 2014AP304-CR 

8

added that the State failed to explain how this standard was 

met; the State instead "appear[ed] to assume that all hot 

pursuits qualify as exigent circumstances" but "provide[d] no 

legal argument to support that assumption." Id., ¶¶8-9. The 

court itself "fail[ed] to discern why an immediate warrantless 

entry was justified" and ultimately reversed on the ground that 

the State had conceded Weber's argument by failing to rebut it. 

Id., ¶9 (citing Charolais Breeding Ranches, Ltd. V. FPC Sec. 

Corp., 90 Wis. 2d 97, 108-09, 279 N.W.2d 493 (Ct. App. 1979)). 

¶15 On November 6, 2015, the State filed a petition for 

review in this court. On February 3, 2016, this court granted 

the petition. 

III. STANDARD OF REVIEW

¶16 "Our review of an order granting or denying a motion 

to suppress evidence presents a question of constitutional 

fact." State v. Iverson, 2015 WI 101, ¶17, 365 Wis. 2d 302, 871 

N.W.2d 661 (quoting State v. Robinson, 2010 WI 80, ¶22, 327 

Wis. 2d 302, 786 N.W.2d 463). In answering these types of 

questions, this court "review[s] the circuit court's findings of 

historical fact under a deferential standard, upholding them 

unless they are clearly erroneous," then "independently 

appl[ies] constitutional principles to those facts." Id., ¶18 

(quoting Robinson, 327 Wis. 2d 302, ¶22). 

IV. ANALYSIS

¶17 The Fourth Amendment to the United States Constitution 

provides:
No. 2014AP304-CR 

9

The right of the people to be secure in their 

persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and 

the persons or things to be seized.

U.S. Const. amend. IV.4 Article I, Section 11 of the Wisconsin 

Constitution is a "substantively identical provision . . . that 

this court interprets consistently with the Fourth Amendment." 

State v. Richter, 2000 WI 58, ¶27, 235 Wis. 2d 524, 612 

N.W.2d 29 (citing State v. Secrist, 224 Wis. 2d 201, 208, 589 

N.W.2d 387 (1999)).

¶18 "It is a '"basic principle of Fourth Amendment law 

that searches and seizures inside a home without a warrant are 

presumptively unreasonable."' Nevertheless, because the 

ultimate touchstone of the Fourth Amendment is 'reasonableness,'

the warrant requirement is subject to certain exceptions." 

Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (citation 

omitted) (quoting Groh v. Ramirez, 540 U.S. 551, 559 (2004)). 

Relevant to the warrantless home entry that occurred in this 

case,5 this court has recognized that "a home entry, though 

unaccompanied by a warrant, is lawful if 'exigent circumstances'

 

4 The Fourth Amendment applies to the states through the 

Fourteenth Amendment. E.g., State v. Kramer, 2009 WI 14, ¶18 & 

n.6, 315 Wis. 2d 414, 759 N.W.2d 598 (citing Mapp v. Ohio, 367 

U.S. 643 (1961)).

5 The State does not disagree with Weber's position that his 

garage was protected under the Fourth Amendment as curtilage of 

his home. See, e.g., State v. Davis, 2011 WI App 74, ¶¶9-15, 

333 Wis. 2d 490, 798 N.W.2d 902.
No. 2014AP304-CR 

10

are present," a condition satisfied when "it would be 

unreasonable and contrary to public policy to bar law 

enforcement officers at the door." State v. Ferguson, 2009 WI 

50, ¶19, 317 Wis. 2d 586, 767 N.W.2d 187 (quoting Richter, 235 

Wis. 2d 524, ¶28). 

[T]here are four well-recognized categories of exigent 

circumstances that have been held to authorize a law 

enforcement officer's warrantless entry into a home: 

1) hot pursuit of a suspect, 2) a threat to the safety 

of a suspect or others, 3) a risk that evidence will 

be destroyed, and 4) a likelihood that the suspect 

will flee.

Id., ¶20 (quoting Richter, 235 Wis. 2d 524, ¶29). The State 

argues that the first of these categories, hot pursuit, 

justified Deputy Dorshorst's actions in this case.

¶19 Before this court will uphold Deputy Dorshorst's 

warrantless entry on the grounds asserted, the State must 

"show[] that the warrantless entry was both supported by 

probable cause and justified by exigent circumstances." 
No. 2014AP304-CR 

11

Robinson, 327 Wis. 2d 302, ¶24.6 We now assess these two 

components of the State's claim.

A. Probable Cause

¶20 "The probable cause requirement in the arrest context 

protects an individual's interest in his or her personal 

liberty. Thus, the proper inquiry in an arrest challenge is 

whether probable cause exists to believe that a particular 

suspect has committed a crime." State v. Hughes, 2000 WI 24, 

¶20, 233 Wis. 2d 280, 607 N.W.2d 621 (citing State v. Kiper, 193 

Wis. 2d 69, 82, 532 N.W.2d 698 (1995)). 

Probable cause to arrest is the quantum of evidence 

within the arresting officer's knowledge at the time 

of the arrest which would lead a reasonable police 

officer to believe that the defendant probably 

committed or was committing a crime. There must be 

more than a possibility or suspicion that the

defendant committed an offense, but the evidence need 

not reach the level of proof beyond a reasonable doubt 

or even that guilt is more likely than not.

 

6 One fact that we need not consider in this case is Deputy 

Dorshorst's "subjective motivation" for entering Weber's garage. 

Brigham City v. Stuart, 547 U.S. 398, 404 (2006). "An action is 

'reasonable' under the Fourth Amendment, regardless of the 

individual officer's state of mind, 'as long as the 

circumstances, viewed objectively, justify [the] action.'" Id.

(alteration in original) (quoting Scott v. United States, 436 

U.S. 128, 138 (1978)). "[W]hen an officer's Fourth Amendment 

search and seizure conduct is supported by an objectively 

ascertainable basis for probable cause or reasonable suspicion, 

the police conduct meets the Fourth Amendment's requirement of 

reasonableness, thereby causing subjective motivations to be of 

little concern." Kramer, 315 Wis. 2d 414, ¶27 (citing Whren v. 

United States, 517 U.S. 806, 811 (1996)). 
No. 2014AP304-CR 

12

Secrist, 224 Wis. 2d at 212 (citations omitted). The test to 

determine probable cause is objective, cf., e.g., Robinson, 327 

Wis. 2d 302, ¶26 (search case), and requires an examination of 

the totality of the circumstances. Kiper, 193 Wis. 2d at 82 

(citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). Further, 

"probable cause eschews technicality and legalisms in favor of a 

'flexible, common-sense measure of the plausibility of

particular conclusions about human behavior.'" Secrist, 224 

Wis. 2d at 215 (quoting Kiper, 193 Wis. 2d at 83).

¶21 The State argues that at the time of Deputy 

Dorshorst's entry into Weber's garage, Deputy Dorshorst "had 

probable cause to believe that Weber had committed two jailable 

offenses," namely violations of Wis. Stat. §§ 346.04(2t) 

("Obedience to traffic officers, signs and signals; fleeing from 

officer.") and 946.41(1) ("Resisting or obstructing officer."). 

The first of these statutes provides, "No operator of a vehicle, 

after having received a visible or audible signal to stop his or 

her vehicle from a traffic officer or marked police vehicle, 

shall knowingly resist the traffic officer by failing to stop 

his or her vehicle as promptly as safety reasonably permits." 

§ 346.04(2t). The second of these statutes criminalizes 

"knowingly resist[ing] or obstruct[ing] an officer while such 

officer is doing any act in an official capacity and with lawful 

authority." § 946.41(1). Each of these offenses is punishable 

by a fine of $10,000, imprisonment for up to nine months, or 

both. Wis. Stat. §§ 346.17(2t), 946.41(1), 939.51(3)(a). 
No. 2014AP304-CR 

13

¶22 In response, Weber argues that probable cause was 

lacking for both jailable offenses because Deputy Dorshorst 

possessed no evidence that Weber "knowingly resist[ed]," Wis. 

Stat. §§ 346.04(2t), or "knowingly . . . obstruct[ed]," Wis. 

Stat. § 946.41(1), Deputy Dorshorst.7

¶23 We conclude that at the time he entered Weber's 

garage, Deputy Dorshorst had probable cause to arrest Weber for 

violations of Wis. Stat. §§ 346.04(2t) and 946.41(1). Deputy 

Dorshorst activated his emergency lights while driving behind 

Weber's vehicle but Weber failed to pull over. Deputy Dorshorst 

pulled his flashing vehicle into Weber's driveway and parked it 

behind Weber's vehicle before Weber had even exited it, but 

Weber did not acknowledge the attempted stop. Deputy Dorshorst 

called after Weber, but Weber made no reply. "We evaluate the 

existence of probable cause objectively, concerned with whether 

law enforcement acted reasonably." Robinson, 327 Wis. 2d 302, 

¶26 (search case). Our focus is not on whether Weber in fact 

fled Deputy Dorshorst, but instead whether the circumstances 

would have led a reasonable law enforcement officer to believe 

that Weber was probably fleeing him. See Secrist, 224 

Wis. 2d at 212. A reasonable law enforcement officer would 

conclude on this evidence that Weber was likely feigning 

ignorance and thus fleeing; most individuals would have 

responded to Deputy Dorshorst's obvious attempts to catch his 

 

7 Weber does not develop independent arguments relating to 

other portions of the statutes.
No. 2014AP304-CR 

14

attention. Cf. State v. Stewart, 143 Wis. 2d 28, 35, 420 

N.W.2d 44 (1988) ("Intent may be inferred from the defendant's 

conduct . . . ."). 

¶24 Our conclusion that Deputy Dorshorst possessed 

probable cause to arrest Weber is only bolstered by the circuit 

court's finding that Weber was in fact "fleeing the deputy in 

order to avoid the stop," a finding which is not clearly 

erroneous because it is not "contrary to the great weight and 

clear preponderance of the evidence." State v. Popke, 2009 WI 

37, ¶20, 317 Wis. 2d 118, 765 N.W.2d 569 (quoting State v. 

Turner, 136 Wis. 2d 333, 343, 401 N.W.2d 827 (1987)). 

Consequently, we are "bound not to upset" the court's factual 

finding. Id. (emphasis added) (quoting Turner, 136 Wis. 2d at 

343); see also Iverson, 365 Wis. 2d 302, ¶18 (characterizing 

applicable standard of review as "deferential" (quoting 

Robinson, 327 Wis. 2d 302, ¶22)).

¶25 Weber contends that Deputy Dorshorst's verbal 

directive to Weber to stop as Weber neared his door is 

irrelevant to a probable cause analysis because Weber was 

already in the garage when it was issued. We reject this 

argument. The relevant question at this stage of the analysis 

is whether an officer would reasonably conclude prior to the 

officer's warrantless entry that Weber had committed a jailable 

offense and was now fleeing from arrest for that crime. Cf.,

e.g., Santana, 427 U.S. at 42 ("In Warden v. Hayden, 387 U.S. 

294 (1967), we recognized the right of police, who had probable 

cause to believe that an armed robber had entered a house a few 
No. 2014AP304-CR 

15

minutes before, to make a warrantless entry to arrest the robber 

and to search for weapons."). Weber's failure to respond to 

highly noticeable "visible [and] audible signal[s]" directed at 

him while he was in the street and in his garage, Wis. Stat. 

§ 346.04(2t), strongly suggested that he was in the process of 

knowingly fleeing Deputy Dorshorst's lawful stop. We stress 

that "an officer's conclusions must be reasonable under the 

circumstances, not technically certain." Secrist, 224 

Wis. 2d at 215. 

The process does not deal with hard certainties, but 

with probabilities. Long before the law of 

probabilities was articulated as such, practical 

people formulated certain common-sense conclusions 

about human behavior; jurors as factfinders are 

permitted to do the same——and so are law enforcement 

officers.

Id. (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality 

opinion)). This court can properly consider Deputy Dorshorst's 

oral commands.8

 

8 Weber comments that "[t]he circuit court did not make an 

explicit finding as to whether the deputy was inside or outside 

the garage when he first spoke to [Weber]." A fair reading of 

the record makes clear that a finding that Deputy Dorshorst was 

outside the garage at the time he first spoke to Weber was at 

least implicit. Deputy Dorshorst specifically testified that he 

was not in the garage prior to first speaking to Weber. The 

circuit court concluded that "[o]nce inside the garage, [Weber] 

did not wait for the deputy to approach," but "instead attempted 

to flee the deputy, even after obtaining verbal commands." The 

court then continued, "because of the defendant's actions, the 

deputy took pursuit." (Emphasis added.) In other words, the 

court found that Weber's failure to respond to Deputy 

Dorshorst's verbal commands partly caused and thus preceded 

Deputy Dorshorst's entry into the garage. 

(continued)
No. 2014AP304-CR 

16

¶26 Before he entered Weber's garage, the evidence before 

Deputy Dorshorst suggested, at the very least, that it was as 

likely as not that Weber had committed jailable offenses by 

failing to pull to the side of the road as soon as reasonably 

possible. Consequently, Deputy Dorshorst possessed probable 

cause to arrest Weber. See Secrist, 224 Wis. 2d at 212 (citing 

State v. Mitchell, 167 Wis. 2d 672, 681-82, 482 N.W.2d 364 

(1992)). To conclude that probable cause does not exist on 

these facts could be construed as a sea change in the law. 

Weber's defense as to why he did not pull over earlier, instead 

proceeding into his garage and attempting to enter his home, all 

while the law enforcement vehicle had its emergency lights 

activated and despite Deputy Dorshorst calling out to him, is a 

question for the jury to weigh and consider but is not 

determinative of probable cause. The court's determination of 

probable cause is distinct from a defense. Neither statute at 

issue prescribes a time or distance requirement. This court 

should neither read such a requirement into the statute nor 

 

But even if the circuit court failed to make a specific 

finding on this point, to the extent such a finding would be 

outcome-determinative, we can assume the trial court made it. 

See State v. Echols, 175 Wis. 2d 653, 673, 499 N.W.2d 631 (1993) 

("When a trial court does not expressly make a finding necessary 

to support its legal conclusion, an appellate court can assume 

that the trial court made the finding in the way that supports 

its decision." (citing State v. Wilks, 117 Wis. 2d 495, 503, 345 

N.W.2d 498 (Ct. App. 1984), aff'd, 121 Wis. 2d 93, 358 

N.W.2d 273 (1984)). 
No. 2014AP304-CR 

17

conflate the question of probable cause with a potential 

defense.

B. Exigent Circumstances

¶27 We must next examine whether the exigencies of the 

situation justified Deputy Dorshorst's entry into Weber's 

garage, or whether Deputy Dorshorst was constitutionally 

required to obtain an arrest warrant. As discussed, the State 

relies on Deputy Dorshorst's "hot pursuit" of Weber to validate 

the entry.9

¶28 Both this court and the Supreme Court of the United 

States have recognized that "law enforcement officers may make a 

warrantless entry onto private property . . . to engage in '"hot 

pursuit"' of a fleeing suspect." Stuart, 547 U.S. at 403 

(quoting Santana, 427 U.S. at 42-43); see, e.g., Ferguson, 317 

Wis. 2d 586, ¶20 (characterizing "hot pursuit of a suspect" as 

one of several "well-recognized categories of exigent 

circumstances" (quoting Richter, 235 Wis. 2d 524, ¶29)). The 

basic ingredient of the exigency of hot pursuit is "immediate or 

continuous pursuit of [a suspect] from the scene of a crime." 

Richter, 235 Wis. 2d 524, ¶32 (alteration in original) (quoting 

State v. Smith, 131 Wis. 2d 220, 232, 388 N.W.2d 601 (1986), 

abrogated on other grounds by State v. Felix, 2012 WI 36, 339 

Wis. 2d 670, 811 N.W.2d 775).

 

9 Instead of relying on theories that were not briefed or 

argued, we base our conclusions on the long-established doctrine 

of hot pursuit.
No. 2014AP304-CR 

18

¶29 For example, in Santana, a seminal case on hot 

pursuit, the Supreme Court concluded that officers with probable 

cause to arrest a defendant standing in the threshold of her 

residence and who "retreat[ed] into . . . her house" as the 

officers attempted to seize her could enter "through the open 

door" and "catch[] her in the vestibule." Santana, 427 U.S. at 

40, 42-43. And in Richter, this court determined that an 

officer responding to a report of a burglary at a trailer park 

who was told by the victim upon arrival that the burglar had 

entered a certain trailer could enter that trailer without a 

warrant. Richter, 235 Wis. 2d 524, ¶¶1-2. 

¶30 Again, "[t]he ultimate touchstone of the Fourth 

Amendment is 'reasonableness,'" and "the warrant requirement is 

subject to certain reasonable exceptions." Kentucky v. King,

563 U.S. 452, 459 (2011) (alteration in original) (quoting

Stuart, 547 U.S. at 403). The necessity——and thus intuitive 

reasonableness——of a hot pursuit doctrine in our constitutional 

law is apparent. In many cases, hot pursuit into a residence 

will serve the purposes of protecting a home's occupants, c.f., 

e.g., Hayden, 387 U.S. at 298-99, or preventing the destruction 

of evidence. See, e.g., Santana, 427 U.S. at 43. But 

"[e]xigent circumstances exist when 'it would be unreasonable 

and contrary to public policy to bar law enforcement officers at 

the door,'" Ferguson, 317 Wis. 2d 586, ¶19 (quoting Richter, 235 

Wis. 2d 524, ¶28), and even in the absence of these additional 

benefits, the hot pursuit doctrine serves an important public 

policy purpose:
No. 2014AP304-CR 

19

Law enforcement is not a child's game of prisoner[']s 

base, or a contest, with apprehension and conviction 

depending upon whether the officer or defendant is the 

fleetest of foot. A police officer in continuous 

pursuit of a perpetrator of a crime committed in the 

officer's presence . . . must be allowed to follow the 

suspect into a private place, or the suspect's home if 

he chooses to flee there, and effect the arrest 

without a warrant.

State v. Sanders, 2008 WI 85, ¶133, 311 Wis. 2d 257, 752 

N.W.2d 713 (Prosser, J., concurring) (alteration in original) 

(quoting State v. Blake, 468 N.E.2d 548, 553 (Ind. Ct. App. 

1984)); see also Santana, 427 U.S. at 42 (refusing to permit a 

defendant to "thwart an otherwise proper arrest" by withdrawing 

into her home). "[C]reating an incentive for . . . suspects to 

flee to the home to escape lawful arrest," Sanders, 311 

Wis. 2d 257, ¶133 (Prosser, J., concurring), generates 

disrespect for the law and for law enforcement, risks putting 

the public and any participants in the chase in harm's way, and 

expends valuable law enforcement resources. Consequently, the 

hot pursuit doctrine helps ensure that a criminal suspect will 

not be rewarded for fleeing the police and that the police will 

not be penalized for completing a lawful attempt to apprehend a 

suspect, who, by his own actions, has drawn the police into his 

home.

¶31 Before proceeding, we reemphasize an important 

dimension of the hot pursuit doctrine. In Welsh v. Wisconsin, 

466 U.S. 740 (1984), which was not a hot pursuit case, Welsh, 

466 U.S. at 753, the Supreme Court characterized its earlier 

decision in Santana as involving the "hot pursuit of a fleeing 
No. 2014AP304-CR 

20

felon." Id. at 750 (emphasis added) (citing Santana, 427 U.S. 

at 42-43). The court also concluded that "an important factor 

to be considered when determining whether any exigency exists is 

the gravity of the underlying offense for which the arrest is 

being made." Id. at 753. After Welsh, some uncertainty existed 

regarding whether the hot pursuit doctrine was limited to those 

cases where officers were in pursuit of a "fleeing felon." 

Compare, e.g., Sanders, 311 Wis. 2d 257, ¶¶77-83, 122, 134 

(Prosser, J., concurring), with id., ¶¶147, 149, 152 (Butler, 

J., concurring).

¶32 In Ferguson this court concluded that "Welsh and 

Santana did not create a bright-line rule requiring the 

underlying offense to be labeled a felony in order for exigent 

circumstances to justify a warrantless home entry." Ferguson, 

317 Wis. 2d 586, ¶27 (footnote omitted) (citing Sanders, 311 

Wis. 2d 257, ¶71 (Prosser, J., concurring)). We instead 

clarified that "courts, in evaluating whether a warrantless 

entry is justified by exigent circumstances, should consider 

whether the underlying offense is a jailable or nonjailable 

offense, rather than whether the legislature has labeled that 

offense a felony or a misdemeanor." Id., ¶29.

¶33 Since then, the Supreme Court has confirmed our view 

that Welsh and Santana do not create a felony-misdemeanor 

distinction, stating:

[T]hough Santana involved a felony suspect, we did not 

expressly limit our holding based on that 

fact. . . . Welsh . . . [did not] involve[] hot 

pursuit. Thus, despite our emphasis in Welsh on the 
No. 2014AP304-CR 

21

fact that the crime at issue was minor——indeed, a mere 

nonjailable civil offense——nothing in the opinion 

establishes that the seriousness of the crime is 

equally important in cases of hot pursuit.

Stanton v. Sims, 571 U.S. ___, 134 S. Ct. 3, 6 (2013) (per 

curiam) (citations omitted). While the Court in Stanton

acknowledged a "basic disagreement" among "federal and state 

courts nationwide . . . on the question whether an officer with 

probable cause to arrest a suspect for a misdemeanor may enter a 

home without a warrant while in hot pursuit of that suspect," it 

did not "express [a] view" on the ultimate question. Id. at 5, 

7. Consequently, Ferguson remains the law and dictates that the 

mere fact that the underlying offenses at issue in this case are 

misdemeanors is not a bar to application of the hot pursuit 

doctrine.

¶34 On the other hand, the State urges this court to 

establish a rule that "hot pursuit of a suspect based on 

probable cause for a jailable offense" will always justify a 

warrantless home entry and arrest. We decline to conclude that 

the confluence of hot pursuit and probable cause to arrest for a 

jailable offense will always justify a warrantless entry. The 

"touchstone of the Fourth Amendment is reasonableness," and 

"[r]easonableness . . . is measured in objective terms by 

examining the totality of the circumstances." Ohio v. 

Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Jimeno, 

500 U.S. 248, 250 (1991)). 
No. 2014AP304-CR 

22

¶35 Evaluation of all the circumstances in this case 

convinces us that Deputy Dorshorst's entry into Weber's garage 

was constitutionally reasonable.

¶36 To begin with, Deputy Dorshorst was indeed engaged in 

"immediate or continuous pursuit of [a suspect] from the scene 

of a crime." Richter, 235 Wis. 2d 524, ¶32 (alteration in 

original) (quoting Smith, 131 Wis. 2d at 232). He was 

attempting to apprehend Weber, who was fleeing Deputy 

Dorshorst's lawful traffic stop on a public highway. There was 

no delay between Weber's illegal actions and Deputy Dorshorst's 

pursuit of Weber. Cf. id., ¶36 ("There is no evidence in this 

record of any delay in [the deputy's] response or pursuit that 

would have interrupted the immediacy and continuity of the 

situation and therefore dissipated the exigency."). 

¶37 Next, violations of the statutes at issue, Wis. Stat. 

§§ 346.04(2t) and 946.41(1), are jailable offenses, Wis. Stat. 

§§ 346.17(2t), 946.41(1), 939.51(3)(a), and thus significantly 

grave. Cf. Ferguson, 317 Wis. 2d 586, ¶29 ("[C]ourts, in 

evaluating whether a warrantless entry is justified by exigent 

circumstances, should consider whether the underlying offense is 

a jailable or nonjailable offense . . . ."). The available 

penalties——up to nine months in prison for violations of each 

statute, §§ 346.17(2t), 946.41(1), 939.51(3)(a)——demonstrate 

that the State has a strong "interest in arresting individuals 

suspected of committing [these] offense[s]." Welsh, 466 U.S. at 

754 n.14. 
No. 2014AP304-CR 

23

¶38 We note that Deputy Dorshorst's intrusion here was 

appropriately limited. Cf., e.g., Santana, 427 U.S. at 42-43 

("This case . . . is clearly governed by Warden [v. Hayden]; the 

need to act quickly here is even greater than in that case while 

the intrusion is much less." (emphasis added) (citing Hayden, 

387 U.S. 294)); id. at 43-44 (White, J., concurring) ("In these 

circumstances, a warrant was not required to enter the house to 

make the arrest, at least where entry by force was not 

required." (emphasis added)).10 Deputy Dorshorst did not damage 

 

10 As part of its analysis in United States v. Santana, 427 

U.S. 38 (1976), the Supreme Court examined whether Santana

possessed an "expectation of privacy" while standing in the 

doorway of her home. See Santana, 427 U.S. at 42. One might 

argue that this reasoning is now suspect under two recent 

Supreme Court cases, United States v. Jones, 565 U.S. ___, 132 

S. Ct. 945 (2012), and Florida v. Jardines, 569 U.S. ___, 133 S. 

Ct. 1409 (2013), to the extent those cases are read to emphasize 

the idea that "for most of our history the Fourth Amendment was 

understood to embody a particular concern for government 

trespass upon the areas . . . [the Fourth Amendment] 

enumerates." Jones, 132 S. Ct. at 950; see Jardines, 133 S. Ct. 

at 1414. 

(continued)
No. 2014AP304-CR 

24

any property, open any doors or windows, or pull out any 

weapons. He simply stepped into Weber's open garage and seized 

his arm. 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. Deputy Dorshorst had already attempted to stop Weber by 

activating his emergency lights and calling after him; it was 

due to Weber's actions that Deputy Dorshorst was forced to enter 

the garage to accomplish the stop. Finally, Deputy Dorshorst 

ended the intrusion promptly, staying in the garage no longer 

than needed. Cf., e.g., State v. Legg, 633 N.W.2d 763, 773 

 

Jones and Jardines are both search cases. See Jones, 132 S. 

Ct. at 949 ("We hold that the Government's installation of a GPS 

device on a target's vehicle, and its use of that device to 

monitor the vehicle's movements, constitutes a 'search.'" 

(footnote omitted)); id. at 958 (Alito, J., concurring) ("The 

Court does not contend that there was a seizure."); Jardines, 

133 S. Ct. at 1414 ("We granted certiorari, limited to the 

question of whether the officers' behavior was a search within 

the meaning of the Fourth Amendment."). Moreover, the Santana

court's discussion of Santana's expectation of privacy pertained 

to whether she was in a public place "when the police first 

sought to arrest" her at the "threshold of [her] dwelling," not

whether the area in which she was actually arrested, "the 

vestibule of her house," was protected by the Fourth Amendment. 

Santana, 427 U.S. at 40-43. The Supreme Court's acknowledgement 

of the degree of the officers' "intrusion" in that case occurred 

during its subsequent consideration of whether the police could 

follow Santana into her house to effect an arrest. Id. at 42. 

Here, Weber was clearly in a public place when Deputy Dorshorst 

began his pursuit. And there is no dispute that a seizure 

eventually occurred in Weber's home. The question at issue is 

thus whether, under the totality of the circumstances, the 

seizure which undoubtedly occurred was constitutionally 

reasonable.
No. 2014AP304-CR 

25

(Iowa 2001) ("Another important circumstance in this case is the 

nature of the intrusion. [The officer] entered [the 

defendant's] garage, not her house proper as in Santana or her 

bedroom as in Welsh. . . . In addition, the magnitude of the 

infringement was rather slight. [The officer's] entry into [the 

defendant's] garage was no surprise to her; he was following 

closely on her heels when she entered the garage. In addition, 

he entered through an open door and took only three steps 

inside. Thus, the intrusion was peaceful and restricted to that 

which was necessary to allow the officer to speak with [the 

defendant]." (citation omitted)); State v. Pinkard, 2010 WI 81, 

¶¶41-42, 55, 327 Wis. 2d 346, 785 N.W.2d 592 (analyzing 

"reasonable[ness]" of "police conduct" in community caretaker 

context by considering, inter alia, "the degree of overt 

authority and force displayed," including whether "any of 

the . . . officers employed any force or drew their weapons" and 

"the availability, feasibility and effectiveness of alternatives 

to the type of intrusion actually accomplished" (quoting State 

v. Kramer, 2009 WI 14, ¶41, 315 Wis. 2d 414, 759 N.W.2d 598)).11

¶39 Deputy Dorshorst's actions in this case were 

manifestly reasonable. As the State observed at oral argument, 

 

11 Our community caretaker line of cases sets forth 

guidelines in a separate Fourth Amendment context for analyzing 

different aspects of intrusions by the State. See, e.g., State 

v. Pinkard, 2010 WI 81, ¶¶29, 41-42, 327 Wis. 2d 346, 785 

N.W.2d 592. The cases are by no means controlling here, but are 

instead merely a helpful tool for discussing the reasonableness 

of Deputy Dorshorst's actions.
No. 2014AP304-CR 

26

"this case is not about a bad brake light." Instead, it is 

about a defendant, Weber, who declined to submit to a law 

enforcement officer's lawful attempts to conduct a traffic stop. 

Had Weber chosen to stop on the highway, or even in his 

driveway, Deputy Dorshorst never would have entered his garage. 

This is not the type of conduct that the Fourth Amendment brands 

"unreasonable"; the Fourth Amendment does not dictate that 

officers who fail to outpace suspects on their way to a 

residence are unable to act. See Sanders, 311 Wis. 2d 257, ¶133 

(Prosser, J., concurring) (quoting Blake, 468 N.E.2d at 553). 

Taking the time to obtain an arrest warrant in this case would 

have required Deputy Dorshorst to halt an arrest which had 

already begun outside of Weber's home, an arrest lawfully 

premised on probable cause that Weber had committed jailable 

offenses and one which required minimal intrusion to complete. 

For numerous policy reasons we have already discussed, an arrest 

warrant is simply not mandated under these circumstances. See, 

e.g., id. (Prosser, J., concurring) ("The enforcement of our 

criminal laws . . . is not a game where law enforcement officers 

are 'it' and one is 'safe' if one reaches 'home' before being 

tagged." (quoting Gasset v. State, 490 So. 2d 97, 98-99 (Fla. 

Dist. Ct. App. 1986) (denying certiorari))).12

 

12 We are not persuaded by Weber's references to general 

language in Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 

(2013). McNeely did not involve the hot pursuit doctrine. 

McNeely, 133 S. Ct. at 1558 (describing question at issue as 

"whether the natural dissipation of alcohol in the bloodstream 

establishes a per se exigency that suffices on its own to 

(continued)
No. 2014AP304-CR 

27

¶40 A counterargument could be made that Deputy Dorshorst 

should nonetheless have attempted to secure a warrant to arrest 

Weber. Presumably, Deputy Dorshorst would have needed to stop 

at Weber's driveway and let Weber flee into the residence, then 

call for backup, secure a perimeter around the house so that 

Weber did not continue his attempts to escape law enforcement, 

and obtain a warrant. And then what? Would those who support 

this argument have Deputy Dorshorst knock on the door? Given 

that Weber was openly fleeing Deputy Dorshorst, it is far from 

clear Weber simply would have turned around and opened the door 

for him. If Weber did not open the door, was Deputy Dorshorst 

then to break the door in and apprehend Weber inside his actual 

house as opposed to inside his open garage? Especially compared 

to that scenario, an immediate and limited entry into Weber's 

open garage to complete the stop was an appropriate approach. 

¶41 The court of appeals below settled upon a version of 

Weber's argument, stating that "the exigent circumstances 

requirement means that there must be a potential for danger to 

life, risk of evidence destruction, or likelihood of escape," 

Weber, unpublished slip op., ¶7, and suggested that such factors 

are not present in this case. Id., ¶9. This is a form of the 

"'hot pursuit plus' approach that upholds hot pursuits for 

offenses of varying degrees of seriousness where there are other

exigent circumstances present, for example threats of violence 

 

justify an exception to the warrant requirement for 

nonconsensual blood testing in drunk-driving investigations"). 
No. 2014AP304-CR 

28

or destroyed evidence, or other emergencies or dangerous 

situations." Sanders, 311 Wis. 2d 257, ¶153 (Butler, J., 

concurring) (emphasis added). But this approach is contradicted 

by our case law. See id., ¶118 (Prosser, J., concurring) 

("There is no implication in our case law that 'hot pursuit'

cannot stand alone as an exigent circumstance justifying a 

warrantless home entry and arrest. On the contrary, our cases 

explicitly recognize that hot pursuit is a sufficient 

justification for a warrantless entry and arrest." (citing 

Smith, 131 Wis. 2d at 229; Richter, 235 Wis. 2d 524, ¶29)). 

¶42 In Richter, for example, this court upheld a 

warrantless entry into a trailer on the basis of both hot 

pursuit of a fleeing suspect and the need to protect the 

occupants of the trailer. Richter, 235 Wis. 2d 524, ¶2. But 

our analysis made clear that these were independent

justifications. Id., ¶¶32-37, 41 ("We conclude that [the 

deputy's] entry was justified by the exigent circumstance of hot 

pursuit. The State also argues that this entry was justified by 

the exigency of a threat to the safety of the suspect or 

others. . . . [W]e conclude that [the deputy] reasonably 

believed that the intruder he was pursuing posed a threat to the 

safety of the occupants of Richter's trailer." (emphasis 

added)). And it would be somewhat strange to continually list 

"hot pursuit of a suspect" as one of "four well-recognized 

categories of exigent circumstances" separate from "a threat to 

the safety of a suspect or others," "a risk that evidence will 

be destroyed," and "a likelihood that the suspect will flee" if 
No. 2014AP304-CR 

29

one of these additional categories were required in order to 

justify a warrantless entry following hot pursuit of a suspect. 

Id., ¶29 (citing Smith, 131 Wis. 2d at 229); Ferguson, 317 

Wis. 2d 586, ¶20 (quoting Richter, 235 Wis. 2d 524, ¶29). 

Although the presence of one or more of these additional 

exigencies is relevant to the question of whether a warrantless 

entry is permitted, it is not a prerequisite to application of 

the hot pursuit doctrine. See, e.g., Commonwealth v. Jewett, 31 

N.E.3d 1079, 1089 n.8 (Mass. 2015) ("The defendant also attempts 

to argue that hot pursuit is not an exigency unto itself where 

the underlying crime is not felonious, but rather additional 

factors, such as the crime being violent or the suspect being 

armed, must be satisfied in order to justify a warrantless 

entry. We disagree with this contention."); People v. Wear, 867 

N.E.2d 1027, 1045 (Ill. Ct. App. 2007) ("Most courts appear to 

take Santana's holding at face value, treating hot pursuit as an 

exception unto itself rather than as just another factor." 

(citations omitted)), aff'd, 893 N.E.2d 631 (2008); Sanders, 311 

Wis. 2d 257, ¶¶119-32 (Prosser, J., concurring) (collecting 

cases).13

 

13 The court of appeals below essentially relied on a 

discussion from this court's opinion in Smith to derive a test 

for exigent circumstances in the hot pursuit context, State v. 

Weber, No. 2014AP304-CR, unpublished slip op., ¶¶4, 7 (Wis. Ct. 

App. Oct. 8, 2015) (per curiam) (citing State v. Smith, 131 

Wis. 2d 220, 229, 231, 388 N.W.2d 601 (1986), abrogated on other 

grounds by State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811 

N.W.2d 601 (1986)), but as the Sanders concurrence explained, 

the test for exigent circumstances set forth in that case does 

not apply to the hot pursuit doctrine. See State v. Sanders,

(continued)
No. 2014AP304-CR 

30

¶43 Before we conclude, we acknowledge the concern that 

applying the hot pursuit doctrine to uphold a warrantless entry 

in a case where fleeing law enforcement was itself the violation 

giving rise to the pursuit will lead to the application of the 

hot pursuit doctrine in every case involving a fleeing suspect, 

no matter the gravity of the first offense committed, since 

flight itself can constitute a jailable offense. The objection 

is a legitimate one, but it fails to persuade for several 

reasons. First, the State will not always be able to establish 

probable cause that the suspect was knowingly fleeing. Second, 

as stated above, we decline to adopt the per se rule set forth 

by the State. The "touchstone of the Fourth Amendment is 

reasonableness," and "[r]easonableness . . . is measured in 

objective terms by examining the totality of the circumstances." 

Robinette, 519 U.S. at 39 (quoting Jimeno, 500 U.S. at 250). 

Third, application of the hot pursuit doctrine in this scenario 

is not circular (i.e., the pursuit justifying the pursuit) 

because the legislature did not have to make knowingly fleeing a 

traffic stop a jailable offense, either at all or in all 

circumstances. That it has chosen to do so means that this 

court must treat it with the seriousness that it does other 

 

311 Wis. 2d 257, ¶117 (Prosser, J., concurring) ("[Hot pursuit] 

is not part of the objective test set forth in Smith . . . ."). 

Additionally, Smith was not a hot pursuit case. See Smith, 131 

Wis. 2d at 231-32 (summarily dismissing possibility of a hot 

pursuit claim in a single paragraph because "[t]he underlying 

offense . . . occurred nearly three weeks earlier").
No. 2014AP304-CR 

31

jailable offenses.14 And fourth, a contrary holding would lead 

to the opposite problem: in every case involving a nonjailable 

offense, suspects would have an incentive to flee law 

enforcement because flight itself would not justify application 

of the hot pursuit doctrine.

¶44 The record demonstrates that Weber committed jailable 

offenses and attempted to evade lawful apprehension and that 

Deputy Dorshorst's pursuit and response was immediate and 

measured. A warrant was not necessary here; it was reasonable 

for Deputy Dorshorst to effectuate the lawful arrest he had 

begun outside of Weber's home. 

V. CONCLUSION

¶45 We conclude that the deputy's warrantless entry into 

Weber's garage and subsequent arrest of Weber were 

constitutional because they were justified by the exigent 

 

14 For example, with regard to Wis. Stat. § 946.41(1), 

"[r]esisting or obstructing officer," we note that the 

legislature provided for steeper criminal penalties when a 

violation involves aggravating circumstances, such as injury to 

an officer, § 946.41(2r)-(2t), or, after a violator has given 

false information or placed physical evidence with intent to 

mislead an officer and a trier of fact at a criminal trial has 

considered this information or evidence, conviction of an 

innocent person as a result of that trial, § 946.41(2m). The 

legislature could easily have taken similar steps in the 

opposite direction, instituting less significant penalties when 

resistance or obstruction is tied to potentially less serious 

circumstances, such as a traffic stop for a broken brake light. 

But it did not do so; any violation of § 946.41(1) is at least a 

Class A misdemeanor. § 946.41(1). Thus the legislature has 

indicated that it finds resistance or obstruction of an officer 

to be a serious matter regardless of the underlying 

circumstances.
No. 2014AP304-CR 

32

circumstance of hot pursuit of a fleeing suspect who had 

committed jailable offenses. The deputy had probable cause to 

believe that Weber had committed two jailable offenses, 

immediately pursued Weber, and performed a limited entry into 

Weber's open garage for the purpose of preventing Weber's 

continued flight. Under these specific circumstances, the 

deputy's actions were constitutionally reasonable. Accordingly, 

we reverse the decision of the court of appeals.

By the Court.—The decision of the court of appeals is 

reversed.
No. 2014AP304-CR.dk

1

¶46 DANIEL KELLY, J. (concurring). I write separately 

because I do not think there is probable cause to believe Mr. 

Weber committed jailable offenses before entering his garage, a 

conclusion that precludes deployment of the "hot pursuit" 

doctrine. I join the lead opinion's result, however, because 

there is a separate, and constitutionally-sufficient, basis for 

it.

¶47 Our task in this case is determining whether Deputy 

Dorshorst had the authority to pursue Richard L. Weber into his 

garage, and subsequently arrest and search him, without a 

warrant. Mr. Weber says the Wisconsin and United States 

Constitutions protected him from the deputy's warrantless 

intrusion (and, consequently, the search and arrest). The 

State, on the other hand, says Deputy Dorshorst was in hot 

pursuit of an individual who had committed two jailable 

offenses, and so was relieved of the obligation of obtaining a 

warrant before entering the garage and executing the arrest and 

search. I will address each of those asserted offenses 

separately, and then consider an alternative basis for Deputy 

Dorshorst's constitutionally-permissible entry into Mr. Weber's 

garage.

I

¶48 There is no evidence that, before Mr. Weber entered 

his garage, Deputy Dorshorst thought he was in hot pursuit of 

someone who had committed a jailable offense.1 Instead, the 

 

1 The lead opinion's explanation of the "hot pursuit"

doctrine is well-stated, and needs no further treatment here.
No. 2014AP304-CR.dk

2

evidence demonstrates only that he was intent on performing a 

traffic stop. That's what he told dispatch when he followed Mr. 

Weber into his driveway. That's also what he told Mr. Weber 

after he apprehended him. And there is no indication a 

different or additional rationale made its way into the report 

Deputy Dorshorst ultimately prepared.2 Nor was there any 

admissible evidence at the suppression hearing to suggest a 

different reason for entering Mr. Weber's garage.

¶49 But we don't require that a law enforcement officer 

have in mind, at the time he enters someone's home, a 

constitutionally-permissible reason for doing so. All we 

require is that the objective circumstances at the time could 

bring to mind a constitutionally-permissible basis for entry.3 

Although this standard invites post-hoc rationalizing of a law 

enforcement officer's intrusion into Fourth Amendment-protected 

spaces, we could hardly operate without such retrospective 

analyses. It would be patently unreasonable to task a law 

enforcement officer with the responsibility of being consciously 

aware, minute by minute, of every possible constitutional basis 

for the next step he takes in the discharge of his duties. We 

 

2 If Deputy Dorshorst had recorded such additional or 

different rationale in his report, I suspect it would have been 

offered at the suppression hearing to help him refresh his 

recollection of why he entered Mr. Weber's garage.

3 "[W]hen an officer's Fourth Amendment search and seizure 

conduct is supported by an objectively ascertainable basis for 

probable cause or reasonable suspicion, the police conduct meets 

the Fourth Amendment's requirement of reasonableness, thereby 

causing subjective motivations to be of little concern." State 

v. Kramer, 2009 WI 14, ¶27, 315 Wis. 2d 414, 759 N.W.2d 598.
No. 2014AP304-CR.dk

3

expect him to follow the training he receives in constitutional 

requirements, but when he executes a traffic stop it is also 

reasonable to expect he will concentrate entirely on the 

functional task at hand, while simultaneously minimizing risks 

to the person of interest, the immediately surrounding 

community, and himself. 

¶50 So, the State properly invites us to go to the record 

and consider the facts of this case like a slow-motion review of 

a football play. Having received such an invitation, we would 

be remiss if our analysis was less than precise, or we allowed 

factual nuances to escape our attention.

A

¶51 The constitutional dimension of Deputy Dorshorst's 

interaction with Mr. Weber centers on the garage's threshold: 

The legitimacy of what occurred beyond it depends on what 

occurred before it. Therefore, I will first address the facts 

as they transpired up to the point that Mr. Weber's car crossed 

the garage's threshold, and determine whether they describe 

probable cause to believe he committed a jailable offense.

¶52 On April 20, 2012, Deputy Dorshorst was driving behind 

Mr. Weber as they were both traveling northbound on County 

Highway E in the town of Arpin. Deputy Dorshorst noticed that 

Mr. Weber's high-mounted brake light was not functioning 

properly, and so decided to initiate a traffic stop. Deputy 

Dorshorst testified that "I activated my emergency lights and he 

was turning into his driveway" off of County Highway E. The 

district attorney asked Deputy Dorshorst to clarify where he was 
No. 2014AP304-CR.dk

4

in relation to Mr. Weber when he activated his emergency lights. 

His response was that "he was probably when I activated my 

emergency lights maybe 100 feet prior to his driveway." Mr. 

Weber "continued down his driveway and into his garage." Deputy 

Dorshorst followed Mr. Weber into his driveway, and stopped 

outside the garage approximately fifteen to twenty feet behind 

Mr. Weber's car (which at that point was parked inside the 

garage). During this period of time, Deputy Dorshorst was 

contacting dispatch to notify the station he was initiating a 

traffic stop. Neither Deputy Dorshorst nor Mr. Weber had, at 

that point, exited their cars.

¶53 This is the extent of the facts, up to the point Mr. 

Weber parked his car in his garage, of which we have been 

apprised. The State finds in these few, bare facts probable 

cause to believe Mr. Weber violated Wis. Stat. § 346.04(2t) 

(2011–12).4 Because violation of that statute carries a 

potential jail sentence, the State asserts the "hot pursuit" 

doctrine to justify Deputy Dorshorst's decision to enter Mr. 

Weber's garage without a warrant.

¶54 If the State is right, if there really is probable 

cause to believe this offense occurred, then it is also right

 

4 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated.

This statute commands that "[n]o operator of a vehicle, 

after having received a visible or audible signal to stop his or 

her vehicle from a traffic officer, or marked police vehicle, 

shall knowingly resist the traffic officer by failing to stop 

his or her vehicle as promptly as safety reasonably permits." 

Wis. Stat. § 346.04(2t).
No. 2014AP304-CR.dk

5

that the "hot pursuit" doctrine allowed Deputy Dorshorst to 

enter the garage and conduct the search and arrest of Mr. Weber. 

State v. Ferguson, 2009 WI 50, ¶¶26–30, 317 Wis. 2d 586, 767 

N.W.2d 187 (holding that hot pursuit may exist where an 

individual has committed a "jailable offense"). But this record 

discloses no probable cause to believe Mr. Weber violated Wis. 

Stat. § 346.04(2t).

¶55 The lead opinion correctly notes that "probable cause" 

is not a terribly high standard. All one needs is evidence 

"sufficient to warrant a reasonable person to conclude that the 

defendant . . . committed or [was] in the process of committing 

an offense." State v. Blatterman, 2015 WI 46, ¶35, 362 

Wis. 2d 138, 864 N.W.2d 26 (quoting State v. Richardson, 156 

Wis. 2d 128, 148, 456 N.W.2d 830 (1990)). Here, that quantum of 

evidence must show that Mr. Weber:

1. Operated a vehicle;

2. Received a visible signal to stop his vehicle 

from a traffic officer or marked police vehicle;

3. Failed to stop his vehicle as promptly as safety 

reasonably permitted; and

4. Knowingly resisted the traffic officer by failing 

to stop his vehicle as required.

Wis. Stat. § 346.04(2t).

¶56 Mr. Weber does not contest the sufficiency of evidence 

to meet elements one through three, and the record confirms 

their satisfaction. Deputy Dorshorst observed Mr. Weber driving 

his car on a public highway, and followed him until he parked 

his car in the garage. There, Deputy Dorshorst observed Mr. 
No. 2014AP304-CR.dk

6

Weber exit the vehicle. Thus, we know Mr. Weber was operating 

the vehicle. As to element two, Deputy Dorshorst testified, 

without contradiction, that he activated his emergency lights 

while behind Mr. Weber on County Highway E, and that they were 

still on when both vehicles came to rest. The third element is 

a closer call, but the evidence appears sufficient to support 

it. Although it is difficult to know whether Mr. Weber could 

have safely and reasonably stopped his vehicle 100 feet after 

Deputy Dorshorst activated his emergency lights, we do know he 

was able to slow enough to enter his driveway within that space. 

And if that is true, then it must also be true that he could 

have stopped in the driveway. That is, it was not reasonably 

necessary for him to drive into his garage.

¶57 But that still leaves the fourth element. There is no 

probable cause to believe Mr. Weber violated this statute unless 

there is evidence that the failure to stop his vehicle on either 

the county highway or his driveway would lead "a reasonable 

person to conclude" Mr. Weber was knowingly resisting Deputy 

Dorshorst. On this, the record is silent.

¶58 It is certainly true that we do not need to wait until 

Mr. Weber announces he is intentionally resisting Deputy 

Dorshorst before we find this element satisfied. We may infer 

the intent to resist from conduct. State v. Stewart, 143 Wis. 

2d 28, 35, 420 N.W.2d 44 (1988). However, his conduct in 

relation to this element is unremarkable. So completely 

unremarkable, in fact, that it compels me to depart from the 

lead opinion.
No. 2014AP304-CR.dk

7

¶59 Maybe Mr. Weber could have stopped his car while still 

on County Highway E. He certainly could have stopped on the 

driveway. But was he knowingly resisting Deputy Dorshorst by 

parking in the garage instead of the driveway? Of course not. 

Deputy Dorshorst knew how far Mr. Weber could possibly go with 

his car——the garage. And after reviewing the record, so do 

we . . . unless we are to assume Mr. Weber was not planning to 

stop at the back wall. There is nothing, however, to suggest 

this. So we all know there was a sure and certain end to Mr. 

Weber's travels on the 20th of April, and whether it was the 

driveway or the garage, the difference is a matter of feet. 

Because Deputy Dorshorst knew the stopping point of Mr. Weber's 

car would be almost immediately in front of him, this gives us 

nothing at all from which he (or we) may conclude an intent to 

resist. Probable cause may not be a rigorous standard, but it 

still requires some plausible evidence. These facts are simply 

incapable of indicating the presence of the fourth element.

¶60 This is no small quibble. If these unremarkable facts 

satisfy the State's admittedly light burden, it is difficult to 

imagine a traffic stop that would not provide probable cause to 

believe a jailable offense has occurred. Traffic stops normally 

take place on public highways, which means there is no sure and 

certain place that a law enforcement officer knows the person 

will stop. The highway environment is much less controlled than 

here, the variables much greater. Traffic, weather, road 

conditions, road construction activity, lighting, all will play 

into when and where the motorist might decide he can stop as 
No. 2014AP304-CR.dk

8

"promptly as safety reasonably permit[s]." And that is before 

we even consider how quickly the motorist might recognize he is 

being signaled to stop. This means the distance a law 

enforcement officer might follow a driver before he pulls over 

can vary significantly. In the normal course of events, the 

officer assuredly cannot accurately predict, within a matter of 

feet, where the vehicle will come to rest (as he could here). 

So, unless an observant driver immediately slams on his brakes 

and comes to a screeching halt when he sees a patrol car's 

emergency lights, an officer who wants to search the car or 

arrest the driver will always be able to plausibly say the 

motorist could have stopped a few feet earlier.

¶61 On that last point, we would do well to keep in mind 

that the State is asserting there was "probable cause," not just 

"reasonable suspicion" to believe Mr. Weber violated this 

statute. That has consequences. Probable cause regarding a 

jailable offense doesn't just give law enforcement officers a 

basis for asserting "hot pursuit." It also authorizes them to 

arrest motorists and conduct warrantless searches of their 

persons and vehicles. Maryland v. Dyson, 527 U.S. 465 (1999) 

(per curiam) (stating that probable cause is sufficient for 

warrantless search under the "automobile exception" to the 

Fourth Amendment); State v. Paszek, 50 Wis. 2d 619, 624–25, 184 

N.W.2d 836 (1971) (holding probable cause sufficient for 

arrest). 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 
No. 2014AP304-CR.dk

9

warrantless arrest and search. 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. It cannot be that easy to elide constitutional 

safeguards. Not only does this record not support probable 

cause with respect to this statute, it must not.

¶62 The facts the State offers us reveal no probable cause 

to believe Mr. Weber violated Wis. Stat. § 346.04(2t). As a 

result, the State may not use the "hot pursuit" doctrine to 

justify Deputy Dorshorst's decision to enter Mr. Weber's garage 

without a warrant——at least with respect to this statute.

B

¶63 There is still, of course, the State's argument that 

Mr. Weber committed a second jailable offense capable of 

supporting its "hot pursuit" theory. If we include Mr. Weber's 

actions after entering his garage, the State says there was 

probable cause to believe Mr. Weber was resisting a law 

enforcement officer in violation of Wis. Stat. § 946.41(1) 

(another jailable offense). So now we extend the temporal 

horizon to reach those facts in determining whether they excuse 

the need for a warrant.

¶64 When the replay of events paused to conduct the 

analysis above, Mr. Weber was in his car in his garage. Deputy 

Dorshorst was in his patrol car on the driveway, just outside 

the garage with his emergency lights activated. And the only 

constitutionally-relevant facts ascertainable at that point were 
No. 2014AP304-CR.dk

10

that one of Mr. Weber's brake lights was out, and he had driven 

into the garage instead of stopping on the driveway. As already 

discussed, these facts support a traffic stop, but nothing more. 

The replay now picks up from there, and we learn the following.

¶65 Mr. Weber and Deputy Dorshorst exited their vehicles 

at about the same time. Mr. Weber started moving towards the 

door from the attached garage into his house. Simultaneously, 

Deputy Dorshorst moved towards the front of his patrol car in an 

effort to keep Mr. Weber in view. When Mr. Weber started 

walking up the stairs to the house door, Deputy Dorshorst told 

Mr. Weber he "needed to speak with him." When Mr. Weber did not 

stop, Deputy Dorshorst entered the garage and again told him he 

"needed to speak with him." Because this is the point at which 

Deputy Dorshorst passed into Fourth Amendment-protected space,5 

the replay must pause again so we can determine whether the 

objectively ascertainable facts at that point plausibly suggest 

a violation of Wis. Stat. § 946.41(1).6

 

5 Technically, we count an attached garage as part of the 

"curtilage" of Mr. Weber's home. The curtilage comprises "the 

land and buildings immediately surrounding a house." State v. 

Martwick, 2000 WI 5, ¶1 n.2, 231 Wis. 2d 801, 604 N.W.2d 552

(citing United States v. Dunn, 480 U.S. 294, 300 (1987)). For 

purposes of Fourth Amendment analysis, we treat the curtilage as 

identical to the house itself. State v. Dumstrey, 2016 WI 3, 

¶23, 366 Wis. 2d 64, 873 N.W.2d 502.

6 A person violates this statute when he "knowingly resists 

or obstructs an officer while such officer is doing any act in 

an official capacity and with lawful authority . . . ." Wis. 

Stat. § 946.41(1).
No. 2014AP304-CR.dk

11

¶66 If the "hot pursuit" exception to the warrant 

requirement is to get Deputy Dorshorst inside the garage without 

a constitutional violation, there must be probable cause to 

believe Mr. Weber committed a jailable offense before he entered 

the garage. "We thus conclude that a suspect may not defeat an 

arrest which has been set in motion in a public place, and is 

therefore proper under Watson,

7 by the expedient of escaping to a 

private place." United States v. Santana, 427 U.S. 38, 43 

(1976); see also State v. Smith, 131 Wis. 2d 220, 232, 388 

N.W.2d 601 (1986) (quoting Welsh v. Wisconsin, 466 U.S. 740, 753 

(1984)) (stating that hot pursuit occurs "where there is an 

'immediate or continuous pursuit of [a suspect] from the scene 

of a crime'"). This makes sense——the entire purpose behind this 

exception is to prevent an offender's retreat into Fourth 

Amendment-protected space from frustrating an arrest that 

started outside that space.

¶67 So the problem with the State's argument is that the 

jailable offense must have commenced before Mr. Weber reached 

his garage. As discussed above, the objectively ascertainable 

facts by that point only supported Deputy Dorshorst's pursuit of 

Mr. Weber for a bad brake light. Driving with a dysfunctional 

light is not a jailable offense. Thus, nothing happened before 

Mr. Weber entered his garage capable of supporting a "hot 

pursuit" argument.

 

7 United States v. Watson, 423 U.S. 411 (1976) (finding 

warrantless arrest of an individual in a public place upon 

probable cause does not violate the Fourth Amendment).
No. 2014AP304-CR.dk

12

¶68 Even if we could consider the facts transpiring after 

Mr. Weber entered the garage, there is nothing to support a 

reasonable belief that a jailable offense had occurred, or was 

in the process of happening. Before Deputy Dorshorst entered 

the garage, he said he told Mr. Weber that he "needed to speak 

with him." Mr. Weber, however, continued moving towards the 

door into his house. These additional facts, according to the 

State, are supposed to provide probable cause to believe Mr. 

Weber was knowingly resisting or obstructing an officer. To 

make such a showing, the State must demonstrate that Deputy 

Dorshorst was acting in an official capacity, that he exercised 

lawful authority, and that Mr. Weber knowingly resisted or 

obstructed what Deputy Dorshorst was lawfully trying to 

accomplish in his official capacity. 

¶69 The State says the action with which Mr. Weber 

interfered was his refusal to stop when Deputy Dorshorst told 

him he "needed to speak with him." This depends, in part, on 

what was meant by the deputy's statement. "I need to speak with 

you," when considered in isolation, is of dubious import. It 

could potentially be understood as a request to speak 

immediately, a command that Mr. Weber speak with him at some 

point, or a command that Mr. Weber speak with him immediately. 

But when a deputy sheriff makes this statement when his patrol 

car is just a few feet away with its emergency lights flashing, 

the only reasonable understanding is that one must immediately 

cease whatever one is doing and give him your undivided 

attention.
No. 2014AP304-CR.dk

13

¶70 Deputy Dorshorst intended his statement to restrict 

Mr. Weber's freedom to move about in his home. That is, he 

intended his words to effect a seizure of Mr. Weber just as 

surely as if he were physically restraining him. And it is 

reasonable to understand those words as such. Mr. Weber's 

failure to understand it that way (or heed the command) led 

Deputy Dorshorst to follow his words into the garage, and 

accomplish physically what his words could not. 

¶71 Thus, the question is whether Deputy Dorshorst had 

lawful authority to command Mr. Weber to stop what he was doing 

and submit to questioning. The State's argument simply assumes 

we should answer that question affirmatively, but it provided no 

adequate explanation. This is a significant shortcoming; if, by 

nothing more than his command, an officer has the lawful 

authority to freeze a person in place such that the failure to 

comply justifies warrantless entry of his home, then the Fourth 

Amendment is a false promise.8 An officer could manufacture a 

basis for crossing into protected space simply by commanding the 

occupant to come out. Failure to comply would justify an 

incursion to fetch him. This we do not tolerate. See generally

City of Sheboygan v. Cesar, 2010 WI App 170, ¶18, 330 

 

8 Sutterfield v. City of Milwaukee, 751 F.3d 542, 550 (7th 

Cir. 2014) ("At the core of the privacy protected by the Fourth 

Amendment is the right to be let alone in one's home."); Kylio 

v. United States, 533 U.S. 27, 31 (2001) ("'At the very core' of 

the Fourth Amendment 'stands the right of a man to retreat into 

his own home and there be free from unreasonable governmental 

intrusion.'" (quoting Silverman v. United States, 365 U.S. 505, 

511 (1961))).
No. 2014AP304-CR.dk

14

Wis. 2d 760, 796 N.W.2d 429 (noting that people inside their 

homes may "ignore [the officers'] requests that [they] cooperate 

and choose not to speak with them," though the officers could 

still seek a warrant).

¶72 The State's argument doesn't hit true because it does 

not explain why Deputy Dorshorst can lawfully command a man in 

his own home to do anything under these circumstances. Without 

that, there can be no violation of Wis. Stat. § 946.41(1). And 

in the absence of a violation, the State cannot argue Deputy 

Dorshorst was in hot pursuit when he entered Mr. Weber's garage 

(even if we were to consider Mr. Weber's conduct after he 

entered his garage, which we may not do). If this was the end 

of the analysis, I would have to conclude that Deputy Dorshorst 

unconstitutionally entered Mr. Weber's garage. But it is not 

the end.

II

¶73 The reason Deputy Dorshorst could enter Mr. Weber's 

garage without violating constitutional guarantees is that Mr. 

Weber consented to his entry. Warrantless searches and seizures 

are not "unreasonable" within the meaning of the Fourth 

Amendment when the suspect consents. State v. Artic, 2010 

WI 83, ¶29, 327 Wis. 2d 382, 786 N.W.2d 430.

¶74 When we consider this exception to the warrant 

requirement, we first look for words, gestures, or conduct that 

one can reasonably understand to manifest consent to the search. 

State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998). 
No. 2014AP304-CR.dk

15

We then examine the facts to ensure the suspect gave consent 

voluntarily——that is, "in the absence of duress or coercion, 

either express or implied." Id.

¶75 Here, Mr. Weber gave Deputy Dorshorst consent to enter 

his garage for the purpose of completing the traffic stop that 

had commenced on a public highway. As discussed above, Deputy 

Dorshorst initiated the traffic stop while both he and Mr. Weber 

were on County Highway E. Mr. Weber then slowed and pulled into 

his driveway. He did not, however, stop there. He instead 

pulled into his garage.

¶76 Had Mr. Weber chosen to stop in his driveway, which he 

clearly could have done, this case would not be before us. 

Deputy Dorshorst would have approached the car, spoken with Mr. 

Weber, observed the indicia of intoxication, and the remaining 

events would likely have unfolded as they actually did. But 

with one exception——it all would have happened outside 

constitutionally-protected space, and the sanctity of Mr. 

Weber's home would have remained intact.

¶77 The reason the events at issue took place in Mr. 

Weber's garage is because that is where Mr. Weber chose for them 

to take place. He was, without question, obligated to stop so 

that Deputy Dorshorst could investigate the defective brake 

light. State v. Gaulrapp, 207 Wis. 2d 600, 605, 558 N.W.2d 696 

(1996) ("A traffic stop is generally reasonable if the officers 

have probable cause to believe that a traffic violation has 

occurred, or have grounds to reasonably suspect a violation 

has been or will be committed." (citation omitted)); see also
No. 2014AP304-CR.dk

16

Terry v. Ohio, 392 U.S. 1, 22 (1968) ("[A] police officer may in 

appropriate circumstances and in an appropriate manner approach 

a person for purposes of investigating possibly criminal 

behavior even though there is no probable cause to make an 

arrest"). That obligation attached when Deputy Dorshorst 

activated his emergency lights, and it persisted thereafter 

until the lawful incidents to a traffic stop were complete.

¶78 So as Mr. Weber continued from his driveway into his 

garage, he was operating under a continuing obligation to allow 

Deputy Dorshorst to complete the traffic stop that had commenced 

on County Highway E. Entering the garage did not terminate the 

obligation——it followed him inside. And because we presume that 

Wisconsin's citizens know the law,9 we can conclude that Mr. 

Weber knew he was under this obligation.

¶79 Knowing his obligation, Mr. Weber chose where he would 

stop, and in doing so also chose where Deputy Dorshorst would 

perform his duties. His conduct would communicate to a 

reasonable observer that he preferred to complete the traffic 

stop in his garage, rather than on the driveway. Having 

extended that invitation, Mr. Weber may not fault Deputy 

Dorshorst for accepting it.

¶80 The next step in the "consent" analysis is to 

determine whether Mr. Weber was under any duress or coercion 

 

9 State v. Neumann, 2013 WI 58, ¶50 n.29, 348 Wis. 2d 455, 

832 N.W.2d 560. This is the legal maxim of ignorantia juris 

neminem excusat, or "ignorance of the law excuses no one."

Ignorantia Juris Non Excusat, Black's Law Dictionary, (10th ed. 

2014). 
No. 2014AP304-CR.dk

17

(whether express or implied) to provide that consent. There are 

no facts of record to indicate he might have been. Indeed, 

quite the opposite is true. To the extent there was any duress 

or coercion in these facts, it was to prevent Mr. Weber from 

offering this conduct-based invitation to Deputy Dorshorst. The 

patrol car's emergency lights were an unequivocal command to 

submit to a traffic stop. Mr. Weber could have complied by 

stopping in his driveway. To the extent the emergency lights 

exerted coercion or duress, they certainly weren't encouraging 

Mr. Weber to proceed into his garage. Thus, Mr. Weber's consent 

was voluntary.

¶81 Consequently, it was not constitutionally unreasonable 

for Deputy Dorshorst to enter Mr. Weber's garage for the purpose 

of performing the traffic stop that had commenced on a public

highway. A law enforcement officer may, during a lawful traffic 

stop, detain everyone in the vehicle. Brendlin v. California, 

551 U.S. 249, 255 (2007) ("The law is settled that in Fourth 

Amendment terms a traffic stop entails a seizure of the driver 

'even though the purpose of the stop is limited and the 

resulting detention quite brief.'" (quoting Delaware v. Prouse, 

440 U.S. 648, 653 (1979))). The scope and duration of the stop 

are limited by the purpose for effecting the stop: "Like a Terry

stop, the tolerable duration of police inquiries in the trafficstop context is determined by the seizure's 'mission'——to 

address the traffic violation that warranted the stop, and 

attend to related safety concerns." Rodriguez v. United States, 

135 S. Ct. 1609, 1614 (2015) (citations omitted). Because of 
No. 2014AP304-CR.dk

18

the invitation Mr. Weber extended, Deputy Dorshorst was 

authorized to do all of this in the garage.

¶82 It is at this point that I rejoin the lead opinion. 

My need to write separately stemmed only from the State's 

constitutionally-insufficient (in my view) basis for justifying 

Deputy Dorshorst's presence in the garage. Because he did, in 

fact, have that authority (by virtue of the conduct-based 

invitation), he also had the lawful authority to command Mr. 

Weber to stop moving towards the house door so that he could 

complete the traffic stop. When Mr. Weber failed to comply, 

Deputy Dorshorst lawfully and appropriately restrained Mr. 

Weber's further progress. The discovery of incriminating 

evidence appropriately followed, as well as the conviction. For 

that reason, I join the lead opinion's conclusion that the court 

of appeals must be reversed.
No. 2014AP304-CR.awb

1

¶83 ANN WALSH BRADLEY, J. (dissenting). Facts shape the 

contours of our constitutional guarantees. By lowering the 

standard to meet the facts in this case, the lead opinion would 

erode the constitutional rights of us all.1 It sets a trajectory 

where, bit by bit, almost unnoticed, we may awaken one day to 

discover that the freedoms for which so many have fought and 

sacrificed have been severely curtailed.

¶84 Among those freedoms is the sanctity of the home and 

its curtilage. "It is axiomatic that the 'physical entry of the 

home is the chief evil against which the wording of the Fourth 

Amendment is directed.'" Welsh v. Wisconsin, 466 U.S. 740, 748 

 

1 I use the term "lead" opinion for two reasons. First, I 

am concerned that without this cue, the reader may mistakenly 

believe that the lead opinion has any precedential value. 

Although four justices join in the mandate of the opinion to 

reverse the court of appeals (Zeigler, J., joined by Roggensack, 

C.J., Gableman, J. and Kelly, J.), it represents the reasoning 

of only three justices (Ziegler, J., joined by Roggensack, C.J., 

and Gableman, J.). Justice Kelly joined in the mandate, but 

would reverse on other grounds.

Although set forth in three separate opinions, four 

justices——a majority of the court——disagree with the reasoning 

of the lead opinion. Contrary to the lead opinion, four 

justices determine that there was neither probable cause nor 

exigent circumstances here (Abrahamson, J., Ann Walsh Bradley, 

J., Rebecca Grassl Bradley, J., and Kelly, J.).

Second, I use the term "lead" opinion because although it 

is undefined in our Internal Operating Procedures, its use here 

is consistent with past description. We have said "that a lead 

opinion is one that states (and agrees with) the mandate of a 

majority of the justices, but represents the reasoning of less 

than a majority of the participating justices." State v. Lynch, 

2016 WI 66, ¶143, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson & Ann 

Walsh Bradley, J.J., concurring in part, dissenting in part) 

(citing Hoffer Props., LLC v. State, Dep't of Transp., 2016 WI 

5, 366 Wis. 2d 372, 874 N.W.2d 533).
No. 2014AP304-CR.awb

2

(1984) (citing United States v. United States Dist. Ct., 407

U.S. 297, 313 (1972)).

¶85 Ignoring that the State has the burden to overcome the 

presumption of unreasonableness that attaches to warrantless 

physical entries of the home, the lead opinion determines that 

Deputy Dorshorst's warrantless entry into Richard Weber's garage 

and his subsequent arrest met the constitutional standard. It 

posits that Dorshorst was "justified by the exigent circumstance 

of hot pursuit of a fleeing suspect who had committed jailable 

offenses." Lead op., ¶3.

¶86 I agree with both Justice Daniel Kelly and Justice 

Rebecca Grassl Bradley that there was no probable cause to 

believe that Weber committed a jailable offense. Additionally, 

I agree that under no reasonable view of the facts of this case 

was there an emergency justifying an exception to the Fourth 

Amendment's warrant requirement. The alleged "hot pursuit" 

occurred for no more than a few seconds and emanated from a 

routine traffic violation, a mere non-jailable civil offense.

¶87 The lead opinion further errs by failing to apply the 

proper analysis for determining whether exigent circumstances 

justify warrantless entry into a suspect's home. Instead, it 

advances a per se rule that contravenes United States Supreme 

Court precedent.

¶88 Contrary to the lead opinion, and like a unanimous 

court of appeals, I conclude that the State failed to overcome 

the presumption of unreasonableness that attaches to a 

warrantless entry into a constitutionally protected area. Here,
No. 2014AP304-CR.awb

3

the government's warrantless, non-consensual intrusion into 

Weber's garage and the resulting search and seizure violated the 

Fourth Amendment of the United States Constitution. 

Accordingly, I respectfully dissent.

I

¶89 During the daylight hours of April 20, 2012, Deputy 

Dorshorst noticed that Weber's vehicle had a defective highmounted brake lamp.2 He also observed Weber's vehicle weave in 

its lane, deviating over the fog line. The State concedes that 

Dorshorst did not have probable cause to initiate a traffic stop 

based upon the lane deviation, but instead asserts that he 

initiated the stop because of Weber's defective high-mounted 

brake lamp.

¶90 One hundred feet before Weber turned into his 

driveway, Deputy Dorshorst activated his emergency lights, but 

 

2 A toxicology report (Exhibit 1) was offered and received 

into the record at the preliminary hearing. It provides that 

blood was "recovered from Richard L. Weber on April 20, 2012 at 

1955 hours."

Judicial notice may be taken of matters of common 

knowledge, such as the time of sunset on April 20. See, e.g., 

State ex rel. Schilling v. Baird, 65 Wis. 2d 394, 399, 222 

N.W.2d 666 (1974). On April 20, 2012, in the city of Arpin, 

Wood County, sunset began at 7:51 p.m and civil twilight ended 

at 8:21 p.m. See Sunrise Sunset Calendar, Wisconsin Locations, 

http://www.sunrisesunset.com/usa/Wisconsin.asp (last visited 

Nov. 16, 2016).

Given the intervening events that occurred from the time 

Dorshorst initiated the traffic stop to when he placed Weber 

under arrest, it is reasonable to conclude that Dorshorst 

initiated the traffic stop during daylight, well before Weber's 

blood was drawn at 7:55 p.m.
No. 2014AP304-CR.awb

4

did not turn on the siren in his squad car. The record does not 

reflect any of the usual indicia of fleeing, such as an increase 

in speed, a furtive glance back at the deputy or running from 

the vehicle. Instead, the record reflects that Weber continued 

to drive for a few seconds, turned into his driveway and entered 

his attached garage.

¶91 The one bit of testimony the State attempted to offer 

regarding an indicia of fleeing was excluded as speculative. 

Without any foundation, Deputy Dorshorst testified that "it 

seemed to me that he was attempting to evade me." Defense 

counsel immediately objected and the circuit court agreed, 

concluding that the testimony was speculative.

¶92 Leaving his emergency lights on, Deputy Dorshorst 

parked his squad car in Weber's driveway. He then got out of 

his squad car and saw Weber walking up the steps in his attached 

garage leading to the house door. Dorshorst followed him.

¶93 According to Deputy Dorshorst's subsequent testimony, 

he "was just entering the garage" when he told Weber he needed 

to speak to him. Weber did not respond, but continued up the 

steps within his garage toward the house door. While in the 

garage Dorshorst "secured [Weber's] arm" as Weber was "just 

inside his [house's] door" at the top of the steps. Deputy 

Dorshorst again advised Weber that he needed to talk to him.

¶94 Deputy Dorshorst testified that he then told Weber 

that "I needed to talk to him and the reason why I was stopping 

him was for his high mounted brake lamp." Dorshorst asked Weber 
No. 2014AP304-CR.awb

5

"to come out to his car so that I could point out exactly the 

reason for the stop and which light was defective."

¶95 After Dorshorst made contact with Weber he observed 

that Weber had slow, slurred speech, a strong odor of 

intoxicants, and glassy, bloodshot eyes. During their 

conversation, Weber admitted that he had been drinking.

¶96 Deputy Dorshorst testified that had he not entered 

Weber's garage he "would still have attempted to make contact 

with him." According to Dorshorst, "I would have still 

attempted either way knocking on his door or I would have 

attempted other means. I wouldn't have——I would not have just 

left." It is unclear from the record whether the "other means" 

referred to obtaining a search warrant.

¶97 Weber was never cited for the defective high-mounted 

brake lamp and the bit of testimony the State attempted to offer 

regarding an indicia of fleeing was excluded as speculative. 

Nevertheless, he was charged with resisting an officer by 

fleeing and other offenses. Ultimately, he pleaded no contest 

to operating with a prohibited alcohol concentration as a 9th or 

subsequent offense, resisting an officer and possession of 

marijuana.

II

¶98 As observed above, "(i)t is axiomatic that the 

'physical entry of the home is the chief evil against which the 

wording of the Fourth Amendment is directed.'" Welsh, 466 U.S. 

at 748 (citing United States Dist. Ct., 407 U.S. at 313). 

Accordingly, it is a basic principle of Fourth Amendment law 
No. 2014AP304-CR.awb

6

that warrantless searches and seizures inside a home are 

"presumptively unreasonable." Id. at 749.

¶99 Under the Fourth Amendment, an attached garage has the 

same protections as the home. Florida v. Jardines, 133 S. Ct. 

1409, 1414 (2013) (the curtilage of the house "enjoys protection 

as part of the home itself."); see also State v. Dumstrey, 2016 

WI 3, ¶35, 366 Wis. 2d 64, 873 N.W.2d 502 (courts have 

consistently concluded that a single family home's attached 

garage constitutes curtilage). This basic premise is not 

disputed by the parties because the State concedes that Weber's 

attached garage is curtilage.

¶100 The State has the burden to demonstrate both probable 

cause and "exigent circumstances that overcome the presumption 

of unreasonableness that attaches to all warrantless home 

entries." Welch, 466 U.S. at 750. I examine first whether the 

State has met its burden of demonstrating that Deputy Dorshorst

had probable cause to arrest Weber for a jailable offense.

¶101 Probable cause exists where "the totality of the 

circumstances within the arresting officer's knowledge at the 

time of the arrest would lead a reasonable police officer to 

believe that the defendant probably committed a crime." State 

v. Koch, 175 Wis. 2d 684, 701, 499 N.W.2d 152 (1993). The 

totality of the circumstances that constitute probable cause to 

arrest "must be measured by the facts of the particular case." 

State v. Paszek, 50 Wis. 2d 619, 625, 184 N.W.2d 836 (1971).

¶102 The lead opinion concludes that "at the time he 

entered Weber's garage, Deputy Dorshorst had probable cause to 
No. 2014AP304-CR.awb

7

arrest Weber for violations of Wis. Stat. §§ 346.04(2t) 

[resisting by fleeing] and 946.41(1) [obstructing]." Lead op., 

¶23. Jailable offenses of resisting and obstructing both 

require a suspect to "knowingly resist" an officer.3 According 

to the lead opinion, it is reasonable to conclude that "Weber 

was likely feigning ignorance and thus fleeing" and that "most 

individuals would have responded to Deputy Dorshorst's obvious 

attempts to catch his attention." Lead op., ¶23. But this is 

the very type of assertion that the circuit court deemed 

inadmissible because it was speculative. Any assertion that 

Weber on that day knew he had a duty to stop and intentionally 

chose to comply with that obligation by pulling into his garage 

is likewise speculative.

¶103 The lead opinion is left with only one fact that is 

relevant to a determination of whether Deputy Dorshorst had 

probable cause to arrest Weber for "knowingly" resisting an 

officer. This is the fact that for a few seconds "Deputy 

Dorshorst activated his emergency lights while driving behind 

Weber's vehicle but Weber failed to pull over." Lead op., ¶23.

 

3 Wis. Stat. § 346.04(2t) provides: "No operator of a 

vehicle, after having received a visible or audible signal to 

stop his or her vehicle from a traffic officer or marked police 

vehicle, shall knowingly resist the traffic officer by failing 

to stop his or her vehicle as promptly as safety reasonably 

permits."

Wis. Stat. § 946.41(1) provides: " . . . whoever knowingly 

resists or obstructs and officer while such officer is doing any 

act in an official capacity and with lawful authority is guilty 

of a Class A misdemeanor."
No. 2014AP304-CR.awb

8

¶104 Although Weber does not dispute that Deputy Dorshorst

activated his emergency lights, he does dispute whether he saw 

those lights in the seconds before he turned into his driveway 

and parked his vehicle. Thus, when Weber disputes that he 

"knowingly" resisted an officer, he is in fact disputing that he 

received a visible signal or failed to stop promptly.

¶105 The record reflects that Deputy Dorshorst activated 

his emergency lights, but he did so only a few seconds before 

Weber turned into his driveway and parked his vehicle. Turning 

on the siren in his squad car may have given credence to the 

lead opinion’s speculation about Weber’s intent, but there is no 

dispute that Deputy Dorshorst failed to turn it on.

¶106 Additionally, the record does not reflect any of the 

usual indicia of fleeing, such as an increase in speed, a 

furtive glance back at the deputy or running from the vehicle. 

The one bit of testimony the state attempted to offer regarding 

Weber’s intent was excluded as speculative.

¶107 Deputy Dorshorst did not enter the garage because 

Weber was fleeing from the scene of two jailable offenses. 

Rather, he followed Weber into his garage because of a minor 

traffic violation. According to Deputy Dorshorst's own 

testimony, "the reason why I was stopping him was for his high 

mounted brake lamp."

¶108 When Weber did not respond to Deputy Dorshorst's 

request to talk, Dorshorst followed Weber up the stairs of his 

attached garage and grabbed Weber's arm as he was just inside 

his house door. He then told Weber "to come out to his car so 
No. 2014AP304-CR.awb

9

that I could point out exactly the reason for the stop and which 

light was defective."

¶109 There are no additional facts in the record supporting 

a reason for the stop other than the defective high mounted 

brake lamp. Thus, the State has not met its burden of 

establishing that Deputy Dorshorst had probable cause to arrest 

Weber for a knowing violation of either Wis. Stat. §§ 346.04(2t) 

(resisting) or 946.41(1) (obstructing).

¶110 Without probable cause to arrest for resisting or 

obstructing an officer, the government's interest at the time 

Deputy Dorshorst entered Weber's home without a warrant was for 

a minor traffic violation. This minor offense does not justify 

"the chief evil" of entry into the home "against which the 

wording of the Fourth Amendment is directed." Welsh, 466 U.S. 

at 748 (citing United States Dist. Ct., 407 U.S. at 313).

III

¶111 The lead opinion's discussion of exigent circumstances 

is analytically unnecessary. There is no need to reach the 

issue of exigent circumstances unless as a threshold matter at 

least four Justices have determined that probable cause exists. 

Nevertheless, I address exigent circumstances to respond to the 

assertions of the lead opinion.

¶112 The State failed to meet its burden that there were 

exigent circumstances justifying Deputy Dorshort's warrantless 

intrusion into Weber's home. It bears "the heavy burden of 

trying to demonstrate exigent circumstances to overcome the 

presumption of unreasonableness" that attaches to warrantless 
No. 2014AP304-CR.awb

10

home entries. State v. Rodriguez, 2001 WI App 206, ¶9, 247 

Wis. 2d 734, 634 N.W.2d 844 (citing Welsh, 466 U.S. at 750).

¶113 Under both Wisconsin and United States Supreme Court 

jurisprudence, it is well-established that "[w]arrentless entry 

is permissible only where there is urgent need to do so, coupled 

with insufficient time to secure a warrant." State v. Smith, 

131 Wis. 2d 220, 228, 388 N.W.2d 601 (1986) abrogated on other 

grounds by State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811 

N.W.2d 775; see also Missouri v. McNeely, 133 S. Ct. 1552, 1559 

(2013) (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978) (a 

warrantless search is potentially reasonable only when "there is 

compelling need for official action and no time to secure a 

warrant.")). To determine whether a law enforcement officer 

faced an emergency that justified acting without a warrant, 

courts examine the "totality of circumstances." McNeely, 133 

S. Ct. at 1559.

¶114 The facts here cannot support a conclusion that Deputy 

Dorshorst had an urgent need to act with no time to support a 

warrant. For example, the facts of this case stand in stark 

contrast to the facts in United States v. Santana, 427 U.S. 38 

(1976), which the lead opinion relies upon as a seminal case on 

the exigent circumstance of hot pursuit.

¶115 In Santana, the hot pursuit occurred when undercover 

officers rushed to Santana's residence after being informed that 

she had marked bills from their investigation in her possession. 

Id. at 39-40. When the officers arrived, they saw Santana 

standing in the doorway with a brown paper bag in her hand. Id.
No. 2014AP304-CR.awb

11

at 40. As the officers shouted "police" and displayed their 

identification, Santana retreated into the vestibule of her 

house. Id.

¶116 As the Santana court explained, once Santana saw the 

police there was "a realistic expectation that any delay would 

result in destruction of evidence." Id. at 43. Thus, in 

Santana, there was both an urgent need to act and no time to 

secure a warrant because delay would lead to the loss of 

evidence in an undercover drug investigation.

¶117 The facts of this case could not be more different 

from those in Santana. Here, Deputy Dorshorst stopped Weber for 

a defective high-mounted brake lamp. In Santana, the police 

were in pursuit of a suspected drug dealer. Here, there was no 

evidence to destroy regardless of whether the focus of the 

analysis is on a defective high-mounted brake lamp or Weber’s 

alleged flight from the police. In Santana, the police had to 

act immediately or evidence would be destroyed.

¶118 Any analysis of whether the State met the required 

showing that Deputy Dorshorst had an urgent need to act and no 

time to secure a warrant is completely absent from the lead 

opinion. Why? Because under the facts of this case it would be 

unable to meet the test.

¶119 Instead, the lead opinion shifts the analysis and 

contends that it would be unreasonable to expect Deputy 

Dorshorst to knock on Weber's front door or take the time to 

obtain a warrant, rather than invade his home. Lead op., ¶40. 

The lead opinion asserts that "Deputy Dorshorst would have 
No. 2014AP304-CR.awb

12

needed to stop at Weber’s driveway and let Weber flee into the 

residence, then call for backup, secure a perimeter around the 

house so that Weber did not continue his attempts to escape law 

enforcement, and obtain a warrant." Lead op., ¶40. "And then 

what? Would those who support this argument have Deputy 

Dorshorst knock on the door?" Lead op., ¶40.

¶120 The answer is yes, because this is both what the law 

requires and what Deputy Dorshorst testified he would do. 

According to Dorshorst's own testimony, had he not entered 

Weber's garage he "would still have attempted to make contact 

with him." He explained, "I would have still attempted either 

way knocking on his door or I would have attempted other means. 

I wouldn't have——I would not have just left." Attempting to 

secure a warrant would not have allowed Weber to escape arrest 

or conviction.

¶121 In essence, Deputy Dorshorst assumed the role of a 

magistrate. "When an officer undertakes to act as his own 

magistrate, he ought to be in a position to justify it by 

pointing to some real immediate and serious consequences if he 

postponed action to get a warrant." Welsh, 46 U.S. at 751 

(quoting McDonald v. United States, 335 U.S. 451, 460 (1948)). 

That is simply not possible here, when even Deputy Dorshorst 

acknowledged that he could have pursued alternative routes. He 

testified that had he not entered the garage he would have 

knocked on the door or pursued some other means to make contact 

with Weber.
No. 2014AP304-CR.awb

13

¶122 Under these facts, the State has failed to show that 

Deputy Dorshorst had no time to get a warrant and that there was 

an urgent need to act. Accordingly, I conclude that the State

has not met its burden of demonstrating exigent circumstances 

sufficient to overcome the presumption of unreasonableness that 

attaches to warrantless home entries.

IV

¶123 By advancing a per se rule that hot pursuit of a 

fleeing suspect is always an exigent circumstance, the lead 

opinion contravenes United States Supreme Court precedent. A 

per se exception to the Fourth Amendment is contrary to the 

United States Supreme Court's recent decision in McNeely, 133 

S. Ct. at 1558-59. In McNeely, the Supreme Court declined to 

adopt a rule that the dissipation of alcohol in the bloodstream 

presents a per se exigency that justifies an exception to the 

Fourth Amendment's warrant requirement for non-consensual blood 

testing in drunk driving cases. Id. at 1556. Declining to 

adopt a categorical rule for drunk driving investigations, 

McNeely refused to "depart from a careful case-by-case 

assessment of exigency . . . ." Id. at 1561.

¶124 The lead opinion would create a per se exception while 

simultaneously asserting that it is doing no such thing.4 See

lead op., ¶43. Initially, it acknowledges and calls 

"legitimate" the concern "that applying the hot pursuit doctrine 

to uphold a warrantless entry in a case where fleeing law 

 

4 At oral argument, the State conceded that it was seeking a 

bright-line rule in this case.
No. 2014AP304-CR.awb

14

enforcement was itself the violation giving rise to the pursuit 

will lead to the application of the hot pursuit doctrine in 

every case involving a fleeing suspect . . .." Lead op., ¶43.

¶125 Then, in attempting to explain away the legitimacy of 

the concern, the lead opinion contends that it does not support 

a per se rule for four reasons: (1) the State will not always 

be able to establish probable cause; (2) reasonableness is 

measured in objective terms by examining the totality of the 

circumstances; (3) application of the hot pursuit doctrine is 

not circular because the legislature chose to make knowingly 

fleeing a jailable offense; and (4) a contrary holding would 

incentivize flight in every case involving a nonjailable 

offense. Id.

¶126 The lead opinion's first reason fails because it 

conflates probable cause with exigent circumstances. According 

to the lead opinion, it is not creating a per se rule in every 

case involving flight from an officer because "the State will 

not always be able to establish probable cause that the suspect 

was knowingly fleeing." Lead op., ¶43 (emphasis in original). 

However, as set forth above, the state must separately prove 

both probable cause to arrest and exigent circumstances in order 

to justify warrantless entry into Weber's home. Payton v. New 

York, 445 U.S. 573, 587-90 (1980). Thus, the lead opinion has 

created a per se rule because in every case where an officer has 

probable cause, the act of fleeing from an officer will be 

considered an exigent circumstance.
No. 2014AP304-CR.awb

15

¶127 The lead opinion's second reason fails because there 

is no legal support for the proposition that Dorshort's entry 

was reasonable under the totality of the circumstances because 

it was a limited intrusion. In recent years, the United States 

Supreme Court has reaffirmed that the Fourth Amendment embodies 

"a particular concern for government trespass upon the areas 

('persons, houses, papers, and effects') it enumerates." United 

States v. Jones, 132 S. Ct. 945, 950 (2012).

¶128 Prior to Jones, courts employed the Katz "reasonable 

expectation of privacy" test in analyzing the Fourth Amendment's 

protections. See Katz v. United States, 389 U.S. 347, 351 

(1967) (What a person "seeks to preserve as private, even in an 

area accessible to the public, may be constitutionally 

protected."). However, Jones clarified that "the Katz

reasonable-expectation-of-privacy test has been added to, not 

substituted for, the common-law trespassory test." Jones, 132 

S. Ct. at 952.

¶129 Additionally, in Jardines, the Supreme Court further 

explained that "an officer's leave to gather information is 

sharply circumscribed when he steps off [public] thoroughfares 

and enters the Fourth Amendment's protected areas." 133 S. Ct. 

at 1415. Jardines acknowledged that the porch of a home is a 

semi-public area, but nonetheless determined that the use of a 

trained police dog on Jardines' porch was a search within the 

meaning of the Fourth Amendment. Id. at 1415-18.

¶130 Thus, Fourth Amendment jurisprudence emphasizing 

privacy over trespass is now inconsistent with Jones and 
No. 2014AP304-CR.awb

16

Jardines.

5 In Santana, 427 U.S. at 42, on which the lead opinion 

relies in making its limited intrusion argument, the court 

determined that even though Santana was arrested in the 

threshold of her home, her Fourth Amendment rights were not 

violated because she "was not in an area where she had any 

expectation of privacy." Id. However, under Jones and 

Jardines, the reasonable expectation of privacy test may be 

"unnecessary to consider when the government gains evidence by 

physically intruding on constitutionally protected areas." 

Jardines, 133 S. Ct. at 1417; see also Jones, 132 S. Ct. at 951-

52.

¶131 Nevertheless, the lead opinion turns a blind eye to 

current Fourth Amendment jurisprudence when it suggests that 

limited intrusions into the constitutionally protected areas are 

just fine. Conflating this case with community caretaker cases, 

the lead opinion deems the trespass here reasonable because 

Deputy Dorshorst did not:

 damage any property;

 

5 In a footnote, the lead opinion attempts to distinguish 

this case from Jones and Jardines by emphasizing that the latter 

two are "search cases." Lead op., ¶38 n.10. This distinction 

fails because a search occurred when Deputy Dorshorst physically 

occupied Weber's private property for the purpose of obtaining 

information. See United States v. Jones, 132 S. Ct. 945, 949 

(2012); see also Florida v. Jardines, 133 S. Ct. 1409, 1417 

(2013) ("That the officers learned what they learned only by 

physically intruding on Jardines' property to gather evidence is 

enough to establish that a search occurred."); United States v. 

Perea-Ray, 680 F.3d 1179, 1185 (9th Cir. 2012) ("Warrantless 

trespasses by the government into the home or its curtilage are 

Fourth Amendment searches.").
No. 2014AP304-CR.awb

17

 open any doors or windows;

 pull out any weapons;

 stay in the constitutionally protected area longer 

than necessary; or 

 enter the house proper, but instead entered only the 

curtilage of the house. Lead op., ¶38.6

¶132 What the lead opinion misses is that we are not 

examining the reasonableness of the conduct once inside the 

constitutionally protected area, but rather whether the officer 

should have been in the protected area at all. The legal 

analysis for determining whether exigent circumstances justify 

warrantless entry is entirely unrelated to the reasonableness 

factors considered under the community caretaker doctrine.

¶133 The third reason the lead opinion offers is logically 

flawed. It asserts that the application of the hot pursuit 

doctrine in this case is not circular because the legislature 

chose to make knowingly fleeing a traffic offense jailable. 

Although the lead opinion is correct that the seriousness of the 

 

6 The lead opinion relies on community caretaker cases. 

See, e.g., State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 

N.W.2d 592; State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 

N.W.2d 598. Yet, the legal analysis of exigent circumstances is 

distinct from the community caretaker doctrine. Compare

Michigan v. Tyler, 436 U.S. 499, 509 (1978) ("Our decisions have 

recognized that a warrantless entry by criminal law enforcement 

officials may be legal when there is compelling need for 

official action and no time to secure a warrant."), with

Pinkard, 327 Wis. 2d 346, ¶49 ("In considering the second 

reasonableness factor [under the community caretaker doctrine], 

we assess whether the time, location, the degree of overt 

authority and force displayed were appropriate under the 

circumstances.") (quotations and citation omitted).
No. 2014AP304-CR.awb

18

underlying offense is a factor in determining whether there are 

exigent circumstances, the jailable offenses in this case 

emanate from the flight itself. This is circular reasoning 

because it departs from a case-by-case analysis and creates an 

exigency in every case where there is a flight, no matter how 

minor the underlying offense.

¶134 According to the lead opinion, exigent circumstances 

exist because Deputy Dorshorst had probable cause to arrest 

Weber for "two jailable offenses." Lead op., ¶3. The two 

jailable offenses the lead opinion references here are resisting 

an officer and obstructing an officer. Lead op., ¶23. It then 

reasons that Deputy Dorshorst was in hot pursuit because Weber 

was "a fleeing suspect who had committed jailable offenses." 

Lead op., ¶3. Thus, according to the lead opinion's circular 

logic, the crime from which Weber was fleeing was his own 

flight.

¶135 Finally, the lead opinion's fourth reason fails 

because a case-by-case rule is required, even if the State 

wishes to discourage suspects from fleeing the police. The lead 

opinion is correct that police officers and the communities they 

protect have a compelling interest in discouraging suspects from 

fleeing to their homes, but that interest must be balanced with 

the Fourth Amendment's fundamental protections. However, as 

McNeely explained, the State's interests are adequately 

addressed under a case-by-case analysis and do not justify "the 

'considerable overgeneralization' that a per se rule would 
No. 2014AP304-CR.awb

19

reflect." 133 S. Ct. at 1561 (quoting Richards v. Wisconsin, 

520 U.S. 385, 393 (1997)).

¶136 Ultimately, every rationale offered by the lead 

opinion in defense of its assertion that it has not created a 

per se rule is logically and legally unsound. In order to reach 

its conclusion, the lead opinion conflates legal doctrines, 

disregards controlling United States Supreme Court precedent and 

engages in flawed circular reasoning.

¶137 Accordingly, for the reasons set forth above, I 

respectfully dissent.

¶138 I am authorized to state that Justice SHIRLEY S. 

ABRAHAMSON joins this dissent.
No. 2014AP304-CR.rgb

1

¶139 REBECCA GRASSL BRADLEY, J. (dissenting). I agree 

with the lead opinion's holding that hot pursuit for a jailable 

offense can itself present exigent circumstances justifying 

warrantless entry into a citizen's home. This court has already 

said so. See State v. Ferguson, 2009 WI 50, ¶¶19-20, 26–30, 317 

Wis. 2d 586, 767 N.W.2d 187; State v. Sanders, 2008 WI 85, 

¶¶117-118, 311 Wis. 2d 257, 133-134 752 N.W.2d 713 (Prosser, J., 

concurring). I cannot join the lead opinion, however, because 

the facts in this record (1) do not show hot pursuit and (2) 

fail to establish that probable cause to arrest for a jailable 

offense existed before the deputy entered Weber's garage. The 

lead opinion——without precedent——extends the exigency of hot 

pursuit to the situation here where the jailable offense is the 

alleged "flight" itself. This circular expansion of hot pursuit 

doctrine violates the Fourth Amendment, which the Founding 

Fathers enshrined in our Constitution to protect the people from 

unwarranted government intrusion. Accordingly, I respectfully 

dissent.

¶140 The objective facts here do not support probable cause 

for a jailable offense and do not establish any exigent 

circumstance. Instead, the facts show a deputy concerned about 

a broken brake light who nevertheless had no urgent or immediate 

need to breach the threshold of Weber's home without first 

securing a warrant. 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:
No. 2014AP304-CR.rgb

2

[I]llegitimate and unconstitutional practices get 

their first footing . . . by silent approaches and 

slight deviations from legal modes of procedure. This 

can only be obviated by adhering to the rule that 

constitutional provisions for the security of person 

and property should be liberally construed. A close 

and literal construction deprives them of half their 

efficacy, and leads to gradual depreciation of the 

right, as if it consisted more in sound than in 

substance. It is the duty of the courts to be 

watchful for the constitutional rights of the citizen, 

and against any stealthy encroachments thereon.

Boyd v. United States, 116 U.S. 616, 635 (1886).

¶141 Precisely because the absence of alarming facts in 

this case may render the court's encroachment on the Fourth 

Amendment a stealthy one, I write to caution against this latest 

contribution to the gradual depreciation of the right of a 

person to retreat into the home, free from unreasonable physical 

entry. The Fourth Amendment does not permit governmental 

intrusion into a person's home premised on a de minimis traffic 

law violation like a broken brake light. Entering the home 

without a warrant and absent any exigency is the "chief evil" 

against which the Fourth Amendment protects the people. See

Welsh v. Wisconsin, 466 U.S. 740, 748 (1984).

¶142 Setting aside Fourth Amendment concerns, the deputy's 

actions do not seem egregious; if the deputy had done the same 

thing in a public place, his actions undoubtedly would not 

violate the Fourth Amendment. But seizing Weber inside Weber's 

protected curtilage absent any exigency triggers the Fourth 

Amendment's protection and makes the deputy's warrantless entry 
No. 2014AP304-CR.rgb

3

constitutionally unreasonable.1 Although the deputy's actions 

may seem less intrusive because he entered Weber's open garage 

rather than Weber's home, entering the garage is the constitutional 

equivalent of entering the home. The lead opinion's reasoning 

ignores this principle and opens the door for a future court to 

endorse an officer's warrantless entry into a home for a mere 

traffic violation.

I

¶143 The lead opinion concludes that this case involved hot 

pursuit. I disagree. Hot pursuit means "some sort of a chase." 

Sanders, 311 Wis. 2d 257, ¶109 (Prosser, J. concurring) (quoting 

United States v. Santana, 427 U.S. 38, 43 (1976)). "Hot pursuit 

describes the situation when the police are pursuing a suspect 

who is in the process of fleeing from a recently committed 

crime." State v. Naujoks, 637 N.W.2d 101, 109 (Iowa 2001) 

(citing Warden v. Hayden, 387 U.S. 294, 298-99 (1967)). It is 

the "immediate or continuous pursuit of the [suspect] from the 

scene of the crime." Welsh, 466 U.S. at 753. Although hot 

pursuit is not defined in terms of a particular length of time, 

it does involve some sort of chase and requires the recent 

commission of a jailable crime. The chase commences from the 

scene of the crime, triggering the hot pursuit.

 

1 There is no dispute that Weber's attached garage is the 

equivalent of his home and therefore receives the same Fourth 

Amendment protections. See Florida v. Jardines, 133 S. Ct. 

1409, 1414 (2013) (explaining that the curtilage "enjoys [the 

same] protection as part of the home itself"); see also State v. 

Dumstrey, 2016 WI 3, ¶35, 366 Wis. 2d 64, 873 N.W.2d 502 (noting 

that a single family home's attached garage is curtilage).
No. 2014AP304-CR.rgb

4

¶144 Calling what happened here "hot pursuit" stretches 

that term too far. "[A]pplication of the exigent-circumstances 

exception in the context of a home entry should rarely be 

sanctioned when there is probable cause to believe that only a 

minor offense, such as the kind at issue in this case, has been 

committed." Welsh, 466 U.S. at 753 (involving first-offense 

drunk driving). The facts here show there was no chase. The 

deputy followed Weber 100 feet while Weber slowed his car down to 

turn into his driveway. There was no recently committed 

jailable crime prompting the pursuit, nor was there a crime 

scene from which Weber fled. Weber was driving with a broken 

brake light. That is not a jailable crime.

¶145 It may be tempting to validate the deputy's actions 

here in order to discourage traffic violators and serious 

criminals from ignoring the police and racing home to avoid 

traffic stops or police investigation. Fourth Amendment 

protections, however, cannot be jettisoned based on fear that 

some citizens may attempt to run home and hide. The 100 feet 

Weber travelled did not create an exigency because the deputy 

was not "chasing" Weber for a jailable crime recently committed.2 

There are, however, factual scenarios where a pursuit of 100 

 

2 Although the information discovered after the deputy 

breached the garage threshold revealed that Weber had been 

drinking and driving, our Constitutional decisions must not be 

influenced by evidence obtained after an unlawful entry. See, 

e.g., Missouri v. McNeely, 133 S. Ct. 1552 (2013) (excluding 

warrantless blood test showing driver had illegal BAC because 

search was unlawful under Fourth Amendment).
No. 2014AP304-CR.rgb

5

feet or an even shorter distance will justify warrantless entry. 

See, e.g., Santana, 427 U.S. at 43.

¶146 We need not identify a precise distance that is 

acceptable or unacceptable because the Fourth Amendment draws 

the line at probable cause, exigency, and reasonableness. 

Police may enter a person's home without a warrant only if there 

is probable cause to believe a jailable crime has been 

committed, a suspect's flight creates an exigency such that 

there is no time to get a warrant, and the search or seizure is 

reasonable.

II

¶147 The lead opinion essentially concludes the jailable 

offense at issue here was Weber's "flight." The Fourth 

Amendment, however, does not support warrantless entry into a 

home when the jailable offense justifying entry is the flight 

itself. To condone warrantless entry into the home, Fourth 

Amendment jurisprudence requires probable cause that a jailable 

offense occurred before the flight began. If the flight itself 

creates the jailable offense that serves as an exigency and 

overcomes Fourth Amendment protections, a police officer can in 

essence create a jailable offense out of any attempted traffic 

stop or any attempt to speak with a citizen——even though no 

other jailable offense has occurred. At the point the deputy 

entered Weber's garage, all he knew was that Weber had a 

defective high-mounted brake lamp, pulled into his garage, 

walked to the door of his house inside the garage, and did not 

respond to the deputy's request to talk.
No. 2014AP304-CR.rgb

6

¶148 At the time the deputy seized Weber, the deputy's sole 

concern was the defective high-mounted brake lamp. When asked

why he tried to stop Weber, the deputy answered, "I attempted to 

stop him for defective high mounted brake lamp," and he added 

that he notified dispatch he "had a traffic stop." Clearly, to 

the deputy this stop was not about pursuing Weber for a jailable

offense. It was about a broken brake light and the need to tell 

Weber about it.

¶149 The lead opinion points out that the officer's 

subjective motivation does not govern our review; instead, we 

review the objective facts. See lead op., ¶19 n.6. But the 

objective facts are clear: There was no recently committed 

jailable offense that sparked a hot pursuit into Weber's home. 

There was an attempted traffic stop for a broken brake light. 

The motorist showed no indication of knowing the deputy 

activated his squad car's emergency lights. The motorist slowed 

down, drove 100 feet, turned into his driveway, pulled into his 

garage, and walked to the door of the house. Because the law 

does not support warrantless entry under these circumstances, I 

respectfully dissent.
No. 2014AP304-CR.rgb

1