Submitted on Briefs: oral argument: March 12, 2018
of Appeal Circuit Court Dodge County No. 2015CM408 Steven G.
OF A DECISION OF THE COURT OF APPEALS Reported at 375 Wis.2d
799, 899 N.W.2d 738 (2017 - Unpublished)
the defendant-appellant-petitioner, there were briefs and an
oral argument by Michael J. Herbert, Madison.
the plaintiff-respondent there was a brief and an oral
argument by Jennifer R. McNamee, assistant attorney general,
with whom on the brief was Brad D. Schimel, attorney general.
SHIRLEY S. ABRAHAMSON, J.
This is a review of an unpublished decision of the court of
appeals affirming a judgment of conviction of the Circuit
Court for Dodge County, Steven G. Bauer, Judge. Steven Delap, the
defendant, was convicted of obstructing an officer in
violation of Wis.Stat. § 946.41(1) and possession of
drug paraphernalia in violation of Wis.Stat. §
961.573(1), both as a repeater.
In the circuit court, the defendant claimed that his arrest
was unlawful and that the evidence seized should be
suppressed. The defendant argued that law enforcement
officers, who had two valid warrants for his arrest,
unlawfully attempted to stop him in the driveway of his home,
unlawfully pursued him into his home to effectuate his
arrest, and unlawfully seized evidence obtained from a search
incident to his arrest.
The defendant claims that the arrest and subsequent search
violated his rights under the Fourth Amendment of the United
States Constitution and Article I, Section 11 of the
The circuit court denied the defendant's motion to
suppress the evidence. The circuit court concluded that the
hot pursuit doctrine permitted the law enforcement officers
in the instant case to follow the defendant into his home to
effectuate his arrest. Relying on the hot pursuit doctrine,
the court of appeals affirmed the circuit court's denial
of the defendant's motion to suppress evidence.
We affirm the decision of the court of appeals, but on
grounds different than those relied upon by the circuit court
and court of appeals. We conclude that the instant case is
governed by Payton v. New York, 445 U.S. 573 (1980),
and we need not address the applicability of the hot pursuit
In Payton, the United States Supreme Court declared
that "for Fourth Amendment purposes, an arrest warrant
founded on probable cause implicitly carries with it the
limited authority to enter a dwelling in which the suspect
lives when there is reason to believe the suspect is
within." Payton, 445 U.S. at 603.
In the instant case, law enforcement officers had two valid
arrest warrants based on probable cause for the arrest of the
defendant. The facts and circumstances known to the officers
at the time they located the defendant were sufficient to
form probable cause to believe that the individual they saw
entering the residence was the defendant and that the
defendant lived in the residence into which he fled.
Thus, applying the teachings of Payton, we conclude
that the law enforcement officers in the instant case
lawfully entered the defendant's residence to execute the
two valid warrants for the defendant's arrest and
lawfully seized evidence discovered in the search incident to
the defendant's arrest.
Accordingly, we affirm the decision of the court of appeals.
The following facts are taken from the testimony elicited at
the hearing on the defendant's motion to suppress
evidence and from the circuit court's findings based on
On September 6, 2015, Sergeant Michael Willmann and Deputy
Dustin Waas of the Dodge County Sheriff's Department
arrested the defendant in his home.
Approximately one month prior to the defendant's arrest,
Sergeant Willmann overheard that his colleague, Deputy John
Gallenbeck, "conduct[ed] a traffic stop on a vehicle
where the driver subsequently fled from the vehicle and went
into a wooded area and deputies were unable to locate
him." Deputy Gallenbeck had learned from a passenger in
the vehicle that the fleeing driver "was Steven Delap
[the defendant] and that he was living at 110 Milwaukee
Street in Neosho."
Approximately one week prior to the defendant's arrest,
Sergeant Willmann "received a teletype correspondence
from the Walworth County Sheriff's Office stating that
[the defendant] was involved in a very similar incident . . .
where he had fled from a traffic stop in the same type of
manner." The teletype indicated that the defendant lived
at 110 Milwaukee Street.
Sergeant Willmann ran the defendant's name through
Wisconsin Department of Transportation and National Crime
Information Center files which turned up two valid and
outstanding warrants for the defendant's arrest: one
through Jefferson County and another through the Wisconsin
Department of Corrections. Because of the defendant's
prior history of fleeing police, Sergeant Willmann requested
that Deputy Waas accompany him to arrest the defendant
pursuant to the two arrest warrants.
At about 10:00 p.m. on September 6, 2015, Sergeant Willmann
and Deputy Waas went to 110 Milwaukee Street in Neosho to
arrest the defendant pursuant to the two outstanding arrest
warrants. Sergeant Willmann was in full uniform: green pants,
tan shirt, patches, a badge, and a duty belt. The officers
parked about a block away from 110 Milwaukee Street out of
concern that the defendant "would either run or not
answer the door" if they parked closer. They left their
vehicles and walked down Milwaukee Street, counting down the
numbers on the houses as they went. Sergeant Willman recalled
that the last building number he counted was 120 before
seeing the final building on the 100 block of Milwaukee
Street. That building was a duplex, and based on his
counting, Sergeant Willmann believed that one of the two
doors at the duplex had to be 110 Milwaukee Street.
When Sergeant Willmann walked "towards what [he]
believed [was] the residence, " he saw a man standing
next to a car parked on Milwaukee Street and another man
walking down the driveway in front of the duplex towards that
car. As Sergeant Willmann and Deputy Waas approached, the man
who was walking down the driveway turned and looked at the
officers before turning around and running towards the back
of the duplex. Sergeant Willmann shined his flashlight on the
individual and shouted, "Stop, police!" but the man
did not stop and instead continued running towards the back
of the duplex.
Sergeant Willmann gave chase. Based upon the man's
proximity to 110 Milwaukee Street and his reaction upon
seeing the two police officers, Sergeant Willmann believed
that the fleeing man was the defendant, Steven Delap.
When the man got to the rear door of the residence, he went
inside and began shutting the door. Sergeant Willmann used
his shoulder to "keep the door from latching completely
shut." Sergeant Willmann and the man pushed back and
forth on the door until Deputy Waas joined Sergeant Willmann.
The two police officers together pushed the door open.
At some point, one of the officers pulled out his Taser,
"got [the defendant] to the ground, [and] got [the
defendant] in cuffs." After the arrest, the fleeing
individual was identified as Steven Delap, the defendant.
A subsequent search incident to the defendant's arrest
revealed three syringes and a silver tube used for smoking
crack cocaine in the defendant's right cargo pocket.
The defendant was charged with one count of obstructing an
officer in violation of Wis.Stat. § 946.41(1) and
possession of drug paraphernalia in violation ...