2022 WI App 18

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2020AP1808-CR

Complete Title of Case: 

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

ERIC D. BOURGEOIS,

 DEFENDANT-APPELLANT.

Opinion Filed: March 23, 2022

Submitted on Briefs: September 30, 2021

Oral Argument: 

JUDGES: Gundrum, P.J., Neubauer and Grogan, JJ.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the 

briefs of Law Offices of James A. Walrath, LLC, Milwaukee. 

Respondent

ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the 

brief of Sonya K. Bice, assistant attorney general and Joshua L. Kaul, 

attorney general. 
2022 WI App 18

COURT OF APPEALS

DECISION

DATED AND FILED

March 23, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2020AP1808-CR Cir. Ct. No. 2016CF929

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

ERIC D. BOURGEOIS,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Waukesha County: LAURA F. LAU, Judge. Judgment affirmed in part; reversed 

in part; order reversed and cause remanded with directions. 

Before Gundrum, P.J., Neubauer and Grogan, JJ. 

¶1 GUNDRUM, P.J. The Fourth Amendment is about balance—as 

relevant here, balancing the government’s legitimate interest in public safety and 

security, which requires efficient, effective, and sometimes aggressive law 
No. 2020AP1808-CR

2

enforcement, with the individual’s interest in not having his or her bodily integrity, 

residence, or personal effects intruded upon through generally well-meaning but 

occasionally overzealous law enforcement efforts. See, e.g., Vernonia Sch. Dist. 

47J v. Acton, 515 U.S. 646, 652-53 (1995) (“[T]he ultimate measure of the 

constitutionality of a governmental search is ‘reasonableness.’ ... [W]hether a 

particular search meets the reasonableness standard ‘is judged by balancing its 

intrusion on the individual’s Fourth Amendment interests against its promotion of 

legitimate governmental interests.’” (citation and footnote omitted)); United States 

v. Place, 462 U.S. 696, 703 (1983); State v. Murdock, 155 Wis. 2d 217, 227, 455 

N.W.2d 618 (1990), overruled on other grounds by State v. Dearborn, 2010 WI 84, 

327 Wis. 2d 252, 786 N.W.2d 97. Our job in reviewing a Fourth Amendment case 

such as this one is to determine whether law enforcement properly maintained that 

balance.

¶2 Following officers’ warrantless entry into his hotel room and 

discovery therein of a handgun that had been reported stolen, Eric Bourgeois was 

charged with theft, threatening a law enforcement officer, and seven other criminal 

offenses. Because the entry was not supported by a warrant, Bourgeois filed a 

motion to suppress all evidence “recovered by the police from the hotel room and 

his residence, and any subsequent evidence derived therefrom.” Following an 

evidentiary hearing, the circuit court denied the motion, concluding that exigent 

circumstances justified the officers’ warrantless entry.1 A trial was held, and 

Bourgeois was convicted of theft of the handgun and threatening a law enforcement 

officer. The jury acquitted him on all other charges. 

 

1

 The Honorable Lee S. Dreyfus, Jr. presided over the hearing on the suppression motion.
No. 2020AP1808-CR

3

¶3 On appeal, as before the circuit court, Bourgeois insists that the 

officers’ entry into his hotel room violated his Fourth Amendment rights—due to 

the lack of a warrant or exigent circumstances justifying the entry—and the 

evidence procured from that unlawful entry must be suppressed. We agree that the 

entry was unlawful and evidence recovered from the search of Bourgeois’s hotel 

room must be suppressed. 

¶4 Bourgeois further asks that his “convictions” be vacated due to that 

unlawful entry. (Emphasis added.) While we agree his conviction for theft of the 

handgun must be vacated, we do not agree with vacating his threatening-a-lawenforcement-officer conviction. 

Background

¶5 Joseph Vanderlinden, a Village of West Milwaukee police officer, 

testified at the suppression hearing that the police department (“PD”) for the Village 

of Mukwonago had asked that West Milwaukee police officers look for Bourgeois 

at the Best Western Hotel in West Milwaukee across the street from a Veterans 

Administration Hospital (“VA”) “[a]nd attempt to locate, stop, hold and advise if 

we found him.” Vanderlinden had been informed that Bourgeois “may be in 
No. 2020AP1808-CR

4

possession of a stolen” handgun, “suffers from PTSD,” and “has drug problems.”2 

Vanderlinden learned that Bourgeois was an outpatient with the hospital but did not 

have a scheduled appointment there for two more weeks. 

¶6 Around 1:46 a.m. on July 12, 2016, Vanderlinden had another West

Milwaukee police officer, Steffen Pawlak, ask the hotel if Bourgeois had checked 

 

2

 At trial, evidence was presented that on July 10, 2016, Bourgeois’s downstairs duplex 

neighbor informed Mukwonago police officers not only that she suspected Bourgeois had taken her

handgun and that he has post-traumatic stress disorder but also that he had made suicidal comments. 

(According to the complaint, the neighbor also informed these officers that she had found three 

bottles of her prescription medication, Hydrocodone, hidden in Bourgeois’s apartment, which she 

had entered with Bourgeois’s consent.) On appeal, the parties discuss the import of the suicidalcomments information conveyed to the Mukwonago police officers. The State notes that “[t]he 

transcript of the suppression motion hearing makes no mention whatsoever that officers were aware 

of prior reports of suicidal ideation or threats.... [T]here is no evidence in the record that at the 

time of the warrantless entry, the officers knew Bourgeois had a history of suicidal ideation or 

relied on that.” We assume the State here is referring to West Milwaukee police officers having no 

knowledge of any possible suicidal ideations of Bourgeois at the time they entered his hotel room.

We note that the complaint indicates that after the Mukwonago police officers made contact 

with Bourgeois on July 10, they determined “there was nothing to indicate that [Bourgeois] was 

suicidal and he did not fit the criteria for a [WIS. STAT. ch.] 51 commitment.” Trial testimony 

shows that when these officers interacted with Bourgeois that day, he told them he was “fine, didn’t 

need any help, [and] was not going to hurt himself.” Bourgeois also informed them that “he had 

made arrangements to go to ... the VA Center in Milwaukee, West Milwaukee,” and the officers 

then “cleared the residence.” Our own review of the record indicates that neither the suppression 

hearing transcript nor the trial transcript suggests that Mukwonago police officers conveyed to the 

West Milwaukee PD or the West Milwaukee police officers who entered Bourgeois’s hotel room 

any information suggesting Bourgeois had suicidal ideations. 

In addition to its concession that possible suicidal ideation by Bourgeois plays no role in 

our exigent circumstances analysis, the State also makes no attempt to invoke the collective 

knowledge doctrine, see State v. Pickens, 2010 WI App 5, ¶13, 323 Wis. 2d 226, 779 N.W.2d 1 

(2009) (“[I]n a collective knowledge situation, if a defendant moves to suppress, the prosecutor 

must prove the collective knowledge that supports the stop.”), which in certain circumstances 

would allow a court considering a suppression motion to combine the knowledge of multiple 

officers, see State v. Alexander, 2005 WI App 231, ¶13, 287 Wis. 2d 645, 706 N.W.2d 191 (“Under 

the collective knowledge doctrine, there are situations in which the information in the hands of an 

entire police department may be imputed to officers on the scene to help establish reasonable 

suspicion or probable cause.” (citation omitted)). For these reasons, our analysis is limited to the 

West Milwaukee police officers knowing only that Bourgeois “may be in possession of a stolen 9 

millimeter handgun,” “suffers from PTSD,” and “has drug problems” as they entered the Best 

Western hotel in search of Bourgeois on July 12. 
No. 2020AP1808-CR

5

in, and Pawlak learned that he had. Around 2:00 a.m., Vanderlinden, not wanting 

to alert Bourgeois to their police presence, secured a key card for Bourgeois’s room 

from the front desk. Vanderlinden, Pawlak, and a third officer went to Bourgeois’s 

room, which was quiet. Despite a “Do Not Disturb” sign on the door, the officers 

attempted to enter his room using the key card. They failed in this attempt because 

“the deadbolt was engaged.” Despite being “a little worried about officer safety,”

the officers eventually began knocking, announcing “police,” and getting “louder 

and louder.” The officers received no response; Bourgeois’s room remained quiet. 

¶7 Vanderlinden returned to the front desk and procured a master key, 

returned to Bourgeois’s room, and opened the door; however, he could only open it 

a few inches because the inside chain lock was engaged. Using a flashlight, 

Vanderlinden was able to “see a little bit in” the dark room and was able to see 

Bourgeois lying on the bed and “just staring towards the door.” Bourgeois “didn’t 

say anything,” and Vanderlinden “didn’t know if he was alive or not.” Through the 

slightly-opened door, the officers again identified themselves as police and several 

times asked Bourgeois to come to the door. Bourgeois “basically” asked the 

officers, “[W]hat do you want?” and “Why are you here?” The officers “talked him 

into coming to the door” and asked him “numerous times if he could open the door 

and talk to us, that we were concerned about him.” Bourgeois “either [asked] us 

what did we need or told us to leave. He was kind of back and forth.” Vanderlinden 

could see Bourgeois’s hands and observed he had nothing in them, including no 

firearm. Vanderlinden admitted that at that point, Bourgeois had not done anything 

alarming in their presence. 

¶8 When Vanderlinden again said, “[J]ust open the door and talk to us,” 

Bourgeois responded, “[T]hat’s not going to happen,” and he turned and walked 

away from the door. Vanderlinden “didn’t know if [Bourgeois] was going to 
No. 2020AP1808-CR

6

retrieve the gun” and “was worried about him and us,” so Vanderlinden broke open 

the door, and he, Pawlak, and the third officer secured Bourgeois in handcuffs and 

searched the room, locating a handgun on the bed. The then very-disturbed 

Bourgeois made repeated verbal threats toward the officers. Vanderlinden testified 

that approximately thirty to forty minutes passed from the time they arrived until 

they entered Bourgeois’s room. 

¶9 Officers subsequently took Bourgeois to the VA for treatment. 

During that time, Mukwonago PD informed Vanderlinden that it did not want 

Bourgeois in custody, but that it only wanted to recover the gun. Vanderlinden 

confirmed that he told the Mukwonago PD that the West Milwaukee PD “never 

would have attempted to even make contact with Mr. Bourgeois if” it had known 

that “all Mukwonago wanted was the firearm.” 

¶10 Pawlak clarified through his testimony at trial3that it was two days 

before their July 12 contact with Bourgeois—so, on July 10—that the Mukwonago 

PD had asked the West Milwaukee PD for help locating Bourgeois. Pawlak and 

members of his department first tried to locate Bourgeois at the Best Western Hotel 

on July 10, but he was not there at that time. The officers had “attempted several 

days of checking [for Bourgeois at] various businesses and the hotels around that 

area,” including the Best Western, to no avail, but when they went to the Best 

Western around 1:46 a.m. on July 12, they learned that he had checked into that 

hotel. 

 

3

 “When reviewing an order on a motion to suppress evidence, an appellate court may take 

into account the evidence at the trial, as well as the evidence at the suppression hearing.” State v. 

Griffin, 126 Wis. 2d 183, 198, 376 N.W.2d 62 (Ct. App. 1985).
No. 2020AP1808-CR

7

¶11 Other testimony at trial indicated that after the West Milwaukee police 

officers took Bourgeois to the VA Hospital for treatment, they took him to the 

Milwaukee County Mental Health Hospital because of verbal threats he continued 

to make toward the officers. After medical professionals there declined to admit 

him, the officers drove Bourgeois back to his duplex in Mukwonago and released 

him there, uncharged, hours after the entry into and search of his hotel room. 

¶12 Upon returning home, Bourgeois went upstairs to his apartment. He 

later went to the lower apartment and began “pounding” on the door of his duplexneighbor, who had reported the stolen handgun to Mukwonago police on July 10, 

demanding that she open her door. She told him to go away, but he continued, 

adding swears and threats, including that he was going to kill her, prompting her to 

call the Mukwonago PD. Bourgeois eventually returned to his upstairs apartment. 

¶13 Mukwonago police officers responded to the duplex and were 

engaging with the neighbor when Bourgeois came downstairs again. Officers 

arrested him and placed him in handcuffs, which led to him stating, as Mukwonago 

Police Officer Jason Steinbrenner testified, “[S]omething to the effect that he was 

going to kill all of us and that Dallas was nothing.” Steinbrenner presumed this to 

be a reference to “a shooting [a few days earlier] of several Dallas police officers 

... committed by a former military veteran who was singling out police officers and 

shooting them.” Bourgeois’s engagement with the police at that time—specifically 

with Steinbrenner—ultimately led to Bourgeois being charged with threatening a 

law enforcement officer, as well as the eight other criminal offenses, including theft 

of the handgun. 

¶14 As indicated, Bourgeois was found guilty of theft of the handgun and 

threatening Officer Steinbrenner and found not guilty on the other charges, and he 
No. 2020AP1808-CR

8

was later sentenced. Bourgeois appeals, challenging the circuit court’s denial of his 

suppression motion and his convictions that followed. Additional facts will be 

provided as necessary.

Discussion

The Theft Conviction

¶15 Bourgeois contends the West Milwaukee police officers’ entry into 

his hotel room was unlawful because the officers entered without a warrant and 

exigent circumstances did not otherwise justify the entry. Because of this, 

Bourgeois asserts, evidence found in his hotel room, such as the stolen handgun, 

must be suppressed. We agree.

¶16 When, as in this case, the relevant facts are undisputed, we 

independently apply constitutional principles to those facts. See State v. Delap, 

2018 WI 64, ¶¶26-27, 382 Wis. 2d 92, 913 N.W.2d 175.

¶17 “Warrantless entry into a residence is generally prohibited by the 

Fourth Amendment to the United States Constitution.” State v. Parisi, 2014 WI

App 129, ¶9, 359 Wis. 2d 255, 857 N.W.2d 472. This rule also applies to hotel 

rooms. State v. Munroe, 2001 WI App 104, ¶7, 244 Wis. 2d 1, 630 N.W.2d 223.

Courts have recognized, however, that “in certain circumstances it would be 

unreasonable and contrary to public policy to bar law enforcement officers at the 

door,” State v. Richter, 2000 WI 58, ¶28, 235 Wis. 2d 524, 612 N.W.2d 29 (citations 

omitted), such as when a warrantless entry is “both supported by probable cause and 

justified by exigent circumstances,” State v. Robinson, 2010 WI 80, ¶24, 327 Wis. 
No. 2020AP1808-CR

9

2d 302, 786 N.W.2d 463.4 “In such circumstances, we weigh the urgency of the 

officer’s need to enter against the time needed to obtain a warrant.” Richter, 235 

Wis. 2d 524, ¶28.

 There 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....

 As in other Fourth Amendment cases, the determination 

of whether exigent circumstances are present turns on 

considerations of reasonableness, and we apply an objective 

test. The test is “[w]hether a police officer under the 

circumstances known to the officer at the time [of entry] 

reasonably believes that delay in procuring a warrant would 

gravely endanger life or risk destruction of evidence or 

greatly enhance the likelihood of the suspect’s escape.”

Id., ¶¶29-30 (alterations in original; emphasis added). 

¶18 The exigent circumstances test is not easily met. The State must show 

“by clear and convincing evidence that exigent circumstances justified [an] officer’s 

lack of effort to secure a warrant.” State v. Hay, 2020 WI App 35, ¶22, 392 Wis. 

2d 845, 946 N.W.2d 190. “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.” State v. Smith, 131 

Wis. 2d 220, 235, 388 N.W.2d 601 (1986) (emphasis added; citation omitted),

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

N.W.2d 775. The burden rests “with those seeking exemption from the warrant 

 

4

 The facts of this case also raise question as to whether the West Milwaukee police 

officers had probable cause to enter Bourgeois’s hotel room. Bourgeois, however, does not argue 

on appeal that the officers lacked probable cause. In light of our holding today, the end result would 

be the same regardless of our determination of probable cause. For these reasons, we assume 

without deciding that there was probable cause, and we discuss it no further.
No. 2020AP1808-CR

10

requirement to prove that the exigencies made that course imperative.” State v. 

Guard, 2012 WI App 8, ¶14, 338 Wis. 2d 385, 808 N.W.2d 718 (2011) (emphasis 

added; citation omitted).

¶19 In this case, the officers were not in hot pursuit of Bourgeois, the State 

does not suggest there was a risk he would destroy evidence, and, as the circuit court 

found following the suppression hearing, he was not a flight risk (assuming of 

course that officers remained outside his hotel room once they announced their 

police presence). Instead, we “weigh the urgency of the officer[s’] need to enter 

against the time needed to obtain a warrant” based upon the second exigency 

exception—whether “life” “would” have been “gravely endanger[ed]” if the officers 

had taken the time to procure a warrant instead of simply entering without one, as 

they did. See Richter, 235 Wis. 2d 524, ¶¶28-30.

¶20 In defending the circuit court’s denial of Bourgeois’s suppression 

motion, the State relies upon Richter and State v. Kirby, 2014 WI App 74, 355 Wis. 

2d 423, 851 N.W.2d 796, but those cases provide it little support. Fourth 

Amendment considerations, including exigent circumstances, frequently turn on the 

specific facts of the particular case. Where relied-upon precedent involves facts 

very different from those in the case under review, such precedent often provides 

little guidance. The facts of both Richter and Kirby differ significantly from this 

case. 

¶21 In Richter, a responding sheriff’s deputy was aware that an intruder

had just broken into a trailer in the middle of the night, had fled that trailer upon 

being discovered, and had run into a second trailer across the street. Richter, 235 

Wis. 2d 524, ¶1. When the deputy arrived at the second trailer, he observed signs 

of forced entry and learned there were several people asleep inside. Id. Seeking the 
No. 2020AP1808-CR

11

intruder, the deputy entered the trailer without a warrant. While inside, the deputy

found drug-related evidence that led to several charges against the owner of the 

trailer. Id., ¶¶1-2. The owner moved to suppress the evidence based upon the 

warrantless entry, and the State claimed that the exigent circumstances of hot pursuit 

of the intruder and threat to the safety of those sleeping in the second trailer justified 

the entry. Id., ¶31. The Richter court concluded that “[i]n a situation such as this, 

involving an unknown male intruder who forcibly entered not one but two occupied 

homes in the middle of the night, a reasonable officer would be completely 

warranted in the belief that a threat to safety existed.” Id., ¶42. The facts of Richter

are nothing like those now before us and thus are not at all informative for our case.

¶22 In Kirby, the two officers who arrived at an apartment were 

outnumbered by five males who, reliable reports indicated, had recently displayed 

aggression and violence as the males had been involved in a nearby fight shortly 

before the officers arrived. Kirby, 355 Wis. 2d 423, ¶¶5-6, 10. Kirby, the “main 

aggressor” of the fight, who was identified at the apartment, had reportedly 

threatened “to come back to the area [of the fight] with a gun.” Id., ¶3. The doorway 

to the apartment was wide open when the officers arrived, and one of the officers 

stood in the doorway while speaking with several of the males in the apartment. Id., 

¶¶6, 8. This officer received a call from an investigator who indicated, again based 

upon reliable information, that if there was a black backpack in the apartment, “it 

had ‘a sawed-off shotgun and a handgun’ inside.” Id., ¶9. When she received the 

call, the officer moved a few steps into the apartment “to better see the ‘family room 

area,’” and she observed a black backpack, leading her and the other officer to 

handcuff those present until the backpack could be searched. Id., ¶¶9-11. A sawedoff shotgun was found in the backpack, and related charges were issued against 

Kirby, the owner of the backpack. Id., ¶¶3, 12. Kirby moved to suppress the 
No. 2020AP1808-CR

12

shotgun based upon the warrantless entry into the apartment and search of the 

backpack. Because of the reliable information that an illegal weapon, the sawedoff shotgun, was present if a black backpack was on site, we determined that officer 

safety was at risk and that that exigent circumstance justified the immediate,

warrantless entry and search. Id., ¶¶1, 9-10, 13, 20.

¶23 The facts of Kirby also differ greatly from those in the case now before 

us. The apartment door in Kirby was wide open when the officers arrived, and one 

of the officers stood in the open threshold while engaging with the male suspects, 

who obviously were well aware from the get-go that officers were on the scene and 

investigating. In the instant case, the door to Bourgeois’s room was bolted and 

chained shut, with a “Do Not Disturb” sign visible on the door—clearly indicating 

“do not enter or even look in.” Before they started knocking and announcing their 

police presence, Bourgeois would have had no idea police were on the scene. The 

officers in Kirby were outnumbered by the individuals they were investigating, 

individuals who had just displayed aggression and their penchant for violence 

through fighting, with the main aggressor having threatened to return to the area of 

the fight with a gun. Id., ¶¶6, 10. Here, the three officers had no reason to believe 

they were outnumbered as they had no reason to believe anybody except possibly 

Bourgeois was in the room. Furthermore, and significantly, Bourgeois had 

exhibited neither aggression nor a penchant for violence toward anyone nor 

threatened the law enforcement officers prior to them opening the door to his room. 

Like Richter, Kirby is not persuasive in convincing us exigent circumstances existed 

in this case.

¶24 When they arrived at the hotel on July 12, the West Milwaukee police 

officers had been looking for Bourgeois for two days after being informed he “may”

be in possession of a stolen handgun, “suffers from PTSD,” and “has drug 
No. 2020AP1808-CR

13

problems.” Poised just outside his hotel room door around 2:00 a.m., they also were 

aware Bourgeois had checked into the hotel—and thus that he was likely in his room 

at that time of night—and that no sounds were coming from his room. Based on the 

record before us, when the officers knocked on the door to Bourgeois’s silent hotel 

room and the room remained silent thereafter, the most likely conclusions of a 

reasonable officer would be that Bourgeois either was not in the room, was in the 

room but sleeping through the noise created by the officers, or was in the room and 

awake but desired to exercise his right to not interact with the officers. The officers 

heard no noises inside the room that would have suggested that harm to Bourgeois 

or the officers was a “real immediate and serious” risk—and likely to occur before 

a warrant could be secured. 

¶25 As we have stated, “the State bears the ‘heavy burden’ to show by 

clear and convincing evidence that exigent circumstances justified [an] officer’s 

lack of effort to secure a warrant.” Hay, 392 Wis. 2d 845, ¶22. Here, the State 

directs us to no evidence suggesting that after learning Bourgeois had checked into 

the hotel—or even after attempting to open Bourgeois’s door with the key card or 

after knocking on the door and announcing their police presence—the officers could 

not have presented a warrant application to a magistrate in a timely manner and done 

so without “gravely endanger[ing]” Bourgeois or the officers. Even if the officers 

had reason to believe it would take a substantial amount of time to present a warrant 

application to a magistrate—a fact which the State made no attempt to show at the 

suppression hearing—the State still failed to demonstrate that the opening of 

Bourgeois’s door was justified as there was no clear and convincing showing of 

“real immediate and serious” risk of harm to Bourgeois or the officers if officers 

had waited outside Bourgeois’s door while a warrant was sought. See Smith, 131 

Wis. 2d at 235. The State failed to show that exigencies made the warrantless-entry 
No. 2020AP1808-CR

14

course of action taken by the officers “imperative,” see Guard, 338 Wis. 2d 385, 

¶14 (citation omitted), and thus that exigent circumstances justified Vanderlinden 

opening Bourgeois’s door without a warrant.

¶26 The State discusses what Vanderlinden observed after opening the 

door as much as the chain lock would allow, despite identifying no legal basis for 

doing so. Lacking a warrant or exigent circumstances, the officers had no lawful 

basis to open the door—even just the few inches they initially could—and peer 

inside or even speak to Bourgeois through that opening. As the United States 

Supreme Court has stated:

[A]ny physical invasion of the structure of the home, “by 

even a fraction of an inch,” [is] too much, and there is 

certainly no exception to the warrant requirement for the 

officer who barely cracks open the front door and sees 

nothing but the nonintimate rug on the vestibule floor. In the 

home, ... all details are intimate details, because the entire 

area is held safe from prying government eyes.

Kyllo v. United States, 533 U.S. 27, 37 (2001) (quoting Silverman v. United States, 

365 U.S. 505, 512 (1961)). Thus, Vanderlinden did not lawfully observe Bourgeois 

lying on the bed staring at him, and the officers’ utilization of the opening to more 

effectively coax Bourgeois to come to the door was also unlawful. The peering in 

the room and the more effective coaxing, due to the direct visual and verbal contact, 

directly led to Vanderlinden’s subsequent observation of Bourgeois walking toward 

the officers at the door and then turning away after refusing to let them in. Absent 

Vanderlinden’s unlawful opening of Bourgeois’s door and utilization of that 

opening, there is no reason to believe Bourgeois ever would have even gotten out 

of bed much less been in a position to visibly turn away from the officers at the 

door. Under the facts of this case, the officers’ forced entry into the room—leading 

to the discovery of the gun—cannot be legitimized by Bourgeois’s turning away 
No. 2020AP1808-CR

15

from the door because Vanderlinden’s observation of this action was not lawfully 

grounded. See State v. Buchanan, 2011 WI 49, ¶23, 334 Wis. 2d 379, 799 N.W.2d 

775 (An officer’s observations of something in plain view are lawful—and 

admissible—only if the officer “has a right to be in the position to have the view.”); 

see also Kentucky v. King, 563 U.S. 452, 462-63 (2011) (“[T]he Fourth Amendment 

requires ... that the steps preceding the seizure be lawful.”); Robinson, 327 Wis. 2d 

302, ¶32 (“[P]olice officers may not benefit from exigent circumstances that they 

themselves create.”); Guard, 338 Wis. 2d 385, ¶30 (“[T]he government cannot 

justify a search on the basis of exigent circumstances that are of the law enforcement 

officers’ own making.” (citation omitted)). Thus, for the foregoing reasons, we 

conclude the circuit court erred in denying the motion to suppress as it relates to 

items found by the officers in Bourgeois’s hotel room.

¶27 But even if we were to consider Vanderlinden’s observations 

following his unlawful slight-opening of Bourgeois’s hotel room door, we would 

still conclude that no exigency justified the officers’ forced entry into the room. 

Once the door was opened a few inches, Vanderlinden could see that Bourgeois was 

just lying on the bed “staring towards the door.” He could also see that when 

Bourgeois rose from the bed and proceeded toward the door, he had nothing in his 

hands. Vanderlinden acknowledged that when Bourgeois told the officers to leave 

and he was not going to let them in, he had done nothing alarming in their presence. 

Ultimately, the record fails to show any reason why a reasonable officer would have 

believed Bourgeois had any intention of harming the officers as no testimony 

suggested that the manner in which he turned away from the door was threatening, 

that he had made any threatening statements toward any officers at or before that 

time, or that he had ever committed a violent act against anyone, much less law 

enforcement. Nor is there any evidence to suggest Bourgeois was injured in any 
No. 2020AP1808-CR

16

way, was in an otherwise medically-concerning condition, or was in a state of 

significant personal, self-harming distress. 

¶28 Our supreme court has clearly stated that “[w]arrantless entry is 

permissible only where there is urgent need to [enter], coupled with insufficient time 

to secure a warrant.” Smith, 131 Wis. 2d at 228 (emphasis added). Here, the State 

did not demonstrate by clear and convincing evidence that this standard was met. 

As a result, the evidence recovered by the West Milwaukee police officers from 

Bourgeois’s hotel room—most notably the handgun—must be suppressed. See 

Smith v. Carroll, 2010 WI 8, ¶19, 322 Wis. 2d 299, 778 N.W.2d 1 (“[T]he 

exclusionary rule requires courts to suppress evidence obtained through the 

exploitation of an illegal search or seizure.”). 

The Threatening-A-Law-Enforcement-Officer Conviction

¶29 Bourgeois suggests that his threatening-a-law-enforcement-officer 

conviction also should be vacated if we conclude, as we do, that the West 

Milwaukee police officers’ warrantless entry was unlawful. Neither party 

sufficiently develops an argument on this issue or on the more pointed question of 

whether evidence related to the threatening-a-law-enforcement-officer conviction 

must be suppressed. In a footnote, Bourgeois does quote Carroll, 322 Wis. 2d 299, 

¶19, as stating that the exclusionary rule of suppressing evidence obtained through 

an illegal search or seizure “applies not only to primary evidence seized during an 

unlawful search, but also to derivative evidence acquired as a result of the illegal 

search, unless the State shows sufficient attenuation from the original illegality to 

dissipate that taint.” After a thorough review of the record, we conclude that the 

evidence underpinning the threatening-a-law-enforcement-officer conviction—for 
No. 2020AP1808-CR

17

threatening Mukwonago Police Officer Steinbrenner—is not “derivative evidence 

acquired as a result of the illegal search” of Bourgeois’s hotel room. Id.

¶30 Black’s Law Dictionary defines derivative evidence as “[e]vidence 

that is later discovered by using evidence that was illegally obtained.” Derivative 

evidence, BLACK’S LAW DICTIONARY (10th ed. 2014) (emphasis added). In this 

case, law enforcement did not “use” the handgun or any other evidence seized from 

Bourgeois’s hotel room to “discover” the evidence related to the threatening-a-lawenforcement-officer charge. Rather, Bourgeois created new criminal evidence when 

he committed this new crime against Officer Steinbrenner separate from the 

unlawful entry into Bourgeois’s hotel room.5

¶31 We reverse and remand for a new trial on the theft-of-a-handgun 

charge, with evidence from the illegal entry and search of Bourgeois’s hotel room 

suppressed. The conviction for threatening a law enforcement officer stands.

By the Court.—Judgment affirmed in part; reversed in part; order 

reversed and cause remanded with directions.

 

5

 We further observe that from a harmless error perspective, none of the evidence 

recovered in the hotel room, such as the handgun, would have been necessary to secure a conviction 

on this threatening-a-law-enforcement-officer charge.