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Weber v. Hove

United States District Court, W.D. Wisconsin

March 14, 2019

RICHARD L. WEBER, Petitioner,



         Petitioner Richard L. Weber, a former state of Wisconsin prisoner currently on extended supervision, seeks a writ of habeas corpus under 28 U.S.C. § 2254. He challenges his 2013 state-court conviction for operating a vehicle while intoxicated and other charges, which was based on evidence gathered after police apprehended him by entering his garage without a warrant. Weber litigated the warrantless-entry issue all the way to the Wisconsin Supreme Court. A divided court upheld Weber's conviction, but the decisive concurrence did so by finding that Weber had implicitly consented to the search, a ground that was neither briefed nor argued at any point in the proceedings. Weber contends that this deprived him of a full and fair opportunity to litigate the issue, and that the concurring opinion's analysis was contrary to controlling United States Supreme Court precedent.

         I will deny Weber's petition. Weber was blindsided by the Wisconsin Supreme Court's eleventh-hour invocation of a previously unlitigated issue. But that does not mean that Weber was deprived of a full and fair opportunity to litigate it. I conclude that his claim is barred under Stone v. Powell, 428 U.S. 465 (1976), which sharply limits habeas review of state-court decisions on Fourth Amendment issues.


         I draw the following facts from the petition, briefs, and state court records. Weber was driving to his home in Arpin, Wisconsin, when he was spotted by Calvin Dorshorst, a deputy with the Wood County Sheriff's Department. Dorshorst noticed that Weber's car had a defective brake light and saw Weber weave from his lane of travel over the fog line. Dorshorst turned on his emergency lights to pull Weber over, but he did not activate his siren. Weber continued driving for a few seconds, traveling another hundred feet, at which point he turned into his driveway and pulled into an attached garage. Dorshorst followed and parked his vehicle in Weber's driveway, roughly 15 to 20 feet behind Weber's car.

         Weber and Dorshorst exited their vehicles around the same time. Weber, who was inside the garage, moved toward the door to the attached house. Dorshorst ran into the garage, telling Weber that he needed to speak with him. At this point, Weber was on a set of steps leading to the door to his house. Weber did not pause or otherwise respond to Dorshorst. Dorshorst grabbed Weber's arm, stopping him just as he stepped through his doorway. Dorshorst told Weber that he had stopped him because of the defective brake light. He asked Weber to accompany him to Weber's car so that Dorshorst could point out the problem, but Weber would not cooperate and tried to pull away from Dorshorst. During their interaction inside the garage, Dorshorst noticed for the first time that Weber had slow, slurred speech and glassy, bloodshot eyes. Dorshorst also smelled “a strong odor of intoxicants.” Dkt. 5-13, at 12.

         Dorshorst eventually brought Weber outside the garage and asked if he had been drinking. Weber said that he had, but he refused to perform field sobriety tests. Another deputy arrived, at which point Weber began to resist. The deputies restrained Weber. They later asked Weber if they could search his car, and Weber consented. The deputies found a tinfoil square with a green leafy substance that tested positive for THC, along with a metal pipe.

         The state charged Weber with operating while intoxicated, operating with a prohibited alcohol concentration, possession of tetrahydrocannabinols, possession of drug paraphernalia, and resisting an officer. Weber moved to suppress the evidence obtained as a result of Dorshorst's following him into his garage without a warrant, arguing that it was the fruit of an illegal arrest. See Dkt. 6-1. At the evidentiary hearing on the suppression motion, Dorshorst testified that had he not entered Weber's attached garage, he would not have noticed the glassy eyes, slurred speech, or the odor of intoxicants, Dkt. 5-13, at 20, nor would he have been able to bring Weber outside and obtain his consent to the vehicle search. Id. at 21. The circuit court denied the suppression motion, reasoning that Dorshorst had probable cause to stop Weber (because of the defective brake light and weaving over the fog line) and probable cause to arrest him (because of his noncompliance with visual and verbal commands). Because there was probable cause that a crime was being committed, the court reasoned, “that resulted in exigent circumstances arising to hot and fresh pursuit which allowed the deputy to perform a warrantless search.” Dkt. 5-14, at 11.

         Weber ultimately pleaded no contest to operating with a prohibited alcohol concentration, possession of tetrahydrocannabinols, and resisting an officer; the other two counts were dismissed. The circuit court sentenced him to four years of initial confinement and four years of extended supervision on the prohibited-alcohol-concentration charge, and ordered that he pay costs on the other two offenses. Weber then appealed the circuit court's order on the suppression motion to the court of appeals, arguing that the circuit court's exigent-circumstances finding was erroneous. The court of appeals reversed. See State v. Weber, 2015 WI.App. 90, 365 Wis.2d 606, 871 N.W.2d 866 (per curiam). It reasoned that a finding of exigent circumstances requires that there “be a potential for danger to life, risk of evidence destruction, or likelihood of escape, ” Id. ¶ 7, and that the state had failed to rebut Weber's assertion that none of those circumstances were present in his case. Id. ¶¶ 8-9.

         The state appealed to the Wisconsin Supreme Court. The court granted review and instructed the state not to “raise or argue issues not set forth in the petition for review unless otherwise ordered by the court.” Dkt. 6-4, at 1. The sole issue litigated, both in the briefs and at oral argument, was whether Dorshorst's warrantless entry was justified by the exigent circumstance of hot pursuit.

         The court issued its decision on November 29, 2016. Three of the seven justices concluded that the warrantless entry was justified by exigent circumstances; they reasoned that Dorshorst had probable cause to believe that Weber had committed jailable offenses prior to entering the garage (i.e., failing to stop when signaled and resisting or obstructing an officer), and that his hot pursuit of Weber was a sufficient justification for warrantless entry and arrest under the circumstances. State v. Weber, 2016 WI 96, ¶¶ 21-44, 372 Wis.2d 202, 887 N.W.2d 554 (lead opinion). The four other justices concluded that Dorshorst's warrantless entry was not justified by exigent circumstances, because Dorshorst lacked probable cause to believe that Weber had committed jailable offenses prior to entering the garage, thereby precluding application of the hot pursuit doctrine. Id. ¶¶ 54-72 (Kelly, J., concurring); ¶¶ 102-111 (Ann Walsh Bradley, J., joined by Abrahamson, J., dissenting); ¶¶ 143-149 (Rebecca Grassl Bradley, J., dissenting).

         But the court nonetheless reversed the court of appeals and affirmed Weber's conviction, because concurring Justice Daniel Kelly concluded that there was a separate basis for dispensing with the warrant requirement-consent. That is, Justice Kelly concluded that Weber consented to Dorshorst's entry into the garage for the purpose of completing the traffic stop, which obviated the need for a warrant and eliminated any Fourth Amendment problem. Id. ¶ 75. He reasoned that Weber was obligated to stop when Dorshorst turned on his emergency lights, Id. ¶ 77; that Weber could be presumed to know that the law required him to stop, Id. ¶ 78; and that by driving into his garage, Weber “communicate[d] to a reasonable observer that he preferred to complete the traffic stop in his garage, rather than on the driveway.” Id. ¶ 79. No. other justice joined Justice Kelly's reasoning. But because his concurrence provided a fourth vote in favor of reinstating the conviction, it proved dispositive.

         Weber moved for reconsideration. See Dkt. 5-10. He argued that the court had overlooked basic principles of due process by failing to provide him notice and the opportunity to be heard on the issue of consent, and that the dispositive concurrence was wrong as a matter of law. The court denied his motion in March of 2017. State v. Weber,2017 WI 32, 374 Wis.2d 163, 897 N.W.2d 54. Two justices dissented from the denial; both said they would have ordered a letter-brief response from the state on Weber's consent and due process arguments, as well as letter briefs from both parties ...

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