State v. Felix , 339 Wis. 2d 670 ( 2012 )

N. PATRICK CROOKS, J.

¶ 1. This is a review of an unpublished decision of the court of appeals reversing the circuit court's judgment of conviction for second-degree intentional homicide after a plea of guilty.¹ This case involves statements and physical evidence obtained from a defendant outside of the home after Miranda warnings² were given and waived following a warrantless in-home arrest made in alleged violation of Payton v. New York.³ The central issue presented in this case is which analysis governs the admissibility of such evidence: does Article I, Section 11 of the Wisconsin Constitution demand the suppression of such evidence unless it is sufficiently attenuated under Brown v. Illinois,⁴ or does this court adopt the rule developed by the United States Supreme Court in New York v. Harris⁵ under its interpretation of the Fourth Amendment to the United States Constitution? The United States Supreme Court set forth a three-factor attenuation analysis in Brown to determine whether evidence obtained following an unlawful search or seizure must be suppressed under the exclusionary rule as the fruit of a Fourth Amendment violation.⁶ In Harris, the United States Supreme Court clarified that where the Fourth Amendment violation is an unlawful arrest without a warrant, in violation of Payton, but with probable cause, evidence obtained from the defendant outside of the home is admissible because it is not "the product of illegal governmental activity."⁷

¶ 2. In the early morning of September 8, 2007, a violent fight erupted outside of a house where a party was being held. After the fight, Nathaniel Davids (Davids) was left bleeding from multiple stab wounds and later died from those wounds. Police had probable cause to arrest Devin Felix (Felix) for Davids' murder based on statements from several witnesses, but police did not obtain a warrant for his arrest. Police arrested Felix at his home, and he was charged with first-degree intentional homicide. Before trial, Felix sought to suppress statements and evidence that police obtained at the police station and the jail.

¶ 3. Relevant to this appeal, the circuit court denied in part⁸ Felix's motions to suppress statements and physical evidence obtained after police arrested him at his home without an arrest warrant. The circuit court concluded that Felix did not have a reasonable expectation of privacy because he had submitted himself to public view by sleeping in front of an unsecured door that flew open easily. The court of appeals applied a Brown attenuation analysis and reversed in part the circuit court. Following the State's assumption that the arrest was unlawful in violation of Payton and the Fourth Amendment, the court of appeals remanded for a trial with directions to suppress Felix's signed statement at the police station, a buccal swab Felix agreed to provide for DNA comparison and his clothing because the court of appeals concluded that they were not sufficiently attenuated from the unlawful arrest.⁹ The court of appeals did not apply the Harris rule because it concluded that this court had not adopted the Harris rule and that the rule conflicted with this court's precedent.¹⁰ The court of appeals suggested that this court's decisions indicate that Article I, Section 11 provides more protection than the Harris Court's interpretation of the Fourth Amendment.¹¹

¶ 4. We continue our usual practice of interpreting Article I, Section 11 of the Wisconsin Constitution in accord with the United States Supreme Court's interpretation of the Fourth Amendment. Thus, we adopt the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation. We hold that, where police had probable cause to arrest before the unlawful entry, a warrantless arrest from Felix's home in violation of Payton requires neither the suppression of statements made outside of the home after Felix was given and waived his Miranda rights, nor the suppression of physical evidence obtained from Felix outside of the home. Assuming without deciding that Felix's warrantless arrest from his home was in violation of Payton, we conclude that, pursuant to the Harris rule, the following evidence that police obtained outside of his home is admissible: Felix's signed statement, made after Felix was given and waived his Miranda rights, the buccal swab obtained at the police station, and Felix's clothing seized at the jail, as well as any derivative evidence.¹²

¶ 5. Therefore, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction.

I. FACTUAL BACKGROUND

¶ 6. In the early morning on September 8, 2007, a violent fight erupted outside of a party in the City of Schofield, Marathon County, Wisconsin. Officers responded after the fight had broken up and people had fled the scene. They discovered Davids lying bleeding in the middle of the street from multiple stab wounds. Davids was taken to the hospital and later pronounced dead. After police interviewed witnesses, they located, arrested, and obtained evidence and a statement from Felix all during the morning hours of that same day.

¶ 7. Shortly after arriving at the scene, police interviewed several people who were still present and also located several other witnesses who had attended the party. The witnesses who live near the scene stated that during the fight they had heard someone shouting about a stabbing. At the police station, detectives interviewed several people who had attended the party. T.W., a minor at the time of the homicide, described the fight that broke out among approximately six people outside of the party. T.W stated that she heard Felix say, "I'm going to prison. I stabbed someone. I think I killed him." T.W. had responded, "[N]o you didn't, no you didn't, I think you're lying." According to T.W., Felix then stated, "I'm not lying, I've got blood all over me." T.W told police that she was "pretty positive" or about "98" percent sure that Felix stabbed someone. T.W also said that Felix left in a green Chrysler. A detective also interviewed Kyle Leder who reported hearing Felix say the word "stab" and also "I'm not going to prison" shortly before he saw Felix leave in a green Chrysler.

¶ 8. Based on this information, police obtained a warrant to search the residence where the party had taken place for Felix, witnesses and any evidence of the crime. Police did not find Felix at that residence, but eventually learned from Felix's father that he was living at Felix's mother's apartment. Felix's father gave the police a description of the residence and told them that the rear entrance led to the Felixes' apartment. When the police went to that residence they saw a green Chrysler parked in the driveway, which matched the description witnesses had given of the car that Felix had driven from the scene. The police had also discovered that the car was registered to Felix's mother.

¶ 9. When a detective knocked on the rear door of the residence, it popped open. The detective could immediately see someone, whom he recognized as Felix from a photo, sleeping in a recliner at the bottom of the stairs leading to the door. The detective and another officer drew their weapons and ordered Felix to come out with his hands up. Felix complied and was searched and handcuffed outside of the residence.

¶ 10. When Felix was being patted down before he was handcuffed, an officer asked Felix if he had any sharp objects on him. Felix replied that he had a knife in his pocket. When the officer did not find a knife on Felix, Felix stated that he "had a knife on [him]," but "must have gotten rid of it."

¶ 11. When officers located the person who was renting the apartment and subletting to the Felixes, Dean Kudick (Kudick), an officer asked Kudick for permission to search the house, which Kudick granted. Police found a knife next to the recliner where Felix had been sleeping. Police seized the knife and the green Chrysler that was parked in the driveway.

¶ 12. Felix was taken to the police department and placed in an interview room. A detective read Felix his Miranda rights and Felix signed a form waiving those rights. Felix then provided a statement detailing his involvement in the fight and Davids' death. The detective transcribed his questions and Felix's responses throughout the interview, and Felix signed this written statement after he had an opportunity to review it. Felix then agreed to submit to a buccal swab for DNA analysis.

¶ 13. Felix was transported to the jail where the detective asked Felix to remove his clothes and place each item in an individual evidence bag. The detective stated that he decided to take Felix's clothes as evidence at the jail because during the interview he had noticed that Felix had some "red spots" on his shirt that he suspected might have been blood.

II. PROCEDURAL HISTORY

¶ 14. Felix was charged with first-degree intentional homicide with the use of a dangerous weapon contrary to Wis. Stat. § 940.01(l)(a) and § 939.63(l)(b) (2005-06).¹³ Felix made several pre-trial motions including four motions to suppress statements and evidence. Specifically, Felix sought to suppress (1) the statement he made while being patted down upon his arrest that he "had a knife on [him]," but "must have gotten rid of it," (2) his signed statement at the police station, (3) the buccal swab he provided at the police station for DNA comparison, (4) the clothing he was wearing when arrested that police seized at the jail, (5) the knife police seized from his apartment, and (6) evidence obtained from his green Chrysler. The Marathon County Circuit Court, the Honorable Dorothy L. Bain presiding, held hearings on Felix's motions to suppress.

¶ 15. The Marathon County Circuit Court, the Honorable C.A. Richards presiding, granted in part and denied in part Felix's motions. The circuit court began with its conclusion that Felix was lawfully arrested. It noted that Felix was sleeping in a recliner in plain view of a door to the apartment that was known to pop open. According to the circuit court, the arrest was valid because Felix had voluntarily submitted himself to public view and thus had no reasonable expectation of privacy protected by the Fourth Amendment. The circuit court explained, quoting United States v. Santana, 427 U.S. 38, 42 (1976), what "a person knowingly exposes to the public, even in his own house or office,... is not a subject of [Fjourth [AJmendment protection."¹⁴

¶ 16. Thus, because the circuit court concluded that Felix's arrest was not a violation of his Fourth Amendment rights, it also concluded that Felix's signed statement, the buccal swab provided at the police station, and his clothing seized at the jail were not tainted by any constitutional violation and were admissible. The circuit court denied Felix's motion to suppress the knife that police discovered in his apartment because the circuit court concluded that Kudick provided valid consent to search that area. The circuit court suppressed the statement Felix made outside of his residence, that he "had a knife on [him]," but "must have gotten rid of it," because Felix had not been given Miranda warnings. While that statement could not be used in the State's case-in-chief, the circuit court determined that because the statement was made voluntarily, it could be used for impeachment purposes.¹⁵

¶ 17. Felix pleaded guilty to the charge in the amended information of second-degree intentional homicide contrary to Wis. Stat. § 940.05(l)(b).¹⁶ Felix was sentenced to 28 years of initial confinement and 20 years on extended supervision.

¶ 18. Felix appealed the circuit court's denial of the suppression motion,¹⁷ and the court of appeals affirmed in part and reversed in part the circuit court's decision. State v. Felix, No. 2010AP346-CR, unpublished slip op., ¶ 1 (Wis. Ct. App. Mar. 29, 2011). The court of appeals remanded for a trial with directions to suppress Felix's signed statement and the buccal swab provided at the police station, and his clothing that police seized at the jail. Id.

¶ 19. Following the State's assumption that Felix's arrest violated Payton, the court of appeals addressed whether Harris or Brown provided the proper analysis regarding the suppression of evidence later obtained from Felix. Id., ¶ 19. The court of appeals declined to apply the Harris exception to the exclusionary rule because it had not yet been adopted by this court, and because the court of appeals concluded that Harris conflicted with this court's decisions in Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978), State v. Smith, 131 Wis. 2d 220, 388 N.W.2d 601 (1986), and State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990). Id., ¶¶ 14-15, 19. The court of appeals also noted that after Harris was decided, this court applied the Brown analysis in State v. Anderson, 165 Wis. 2d 441, 477 N.W.2d 277 (1991), and State v. Phillips, 218 Wis. 2d 180, 577 N.W.2d 794 (1998), involving the suppression of evidence obtained following a warrantless home entry and search. Id., ¶¶ 16-17. The court of appeals concluded that it would be "peculiar" to admit evidence obtained after a warrantless home entry and arrest under Harris and to analyze evidence obtained after a warrantless home entry and search under Brown. Id., ¶ 18. Although the court of appeals recognized that Article I, Section 11 has typically been interpreted in accord with the Fourth Amendment, the court of appeals stated that it was constrained by this court's prior decisions. Id., ¶ 19. Applying Brown, the court of appeals remanded with directions to suppress Felix's signed statement, the buccal swab provided at the police station, and his clothing seized at the jail as not sufficiently attenuated from the illegal arrest.¹⁸ Id., ¶ 20.

¶ 20. The court of appeals affirmed the circuit court's decision to admit the knife and any evidence obtained from the green Chrysler. Id., ¶¶ 21-22. According to the court of appeals, the knife was admissible because it was seized in a search conducted pursuant to Kudick's valid consent. Id., ¶ 21. The court of appeals did not remand to suppress the evidence obtained from the green Chrysler because the police had probable cause to search and did not need a search warrant to seize the vehicle. Id., ¶ 22.

¶ 21. The State petitioned this court for review, which we granted. The State asks this court to resolve whether under Article I, Section 11 the Harris rule or the three-factor Brown attenuation analysis governs the suppression of evidence obtained following an arrest in violation of Payton. The State also asks this court to determine, under the applicable analysis, whether Felix's signed statement and the buccal swab he provided at the police station, and Felix's clothes that were obtained at the jail must be suppressed.¹⁹

III. STANDARD OF REVIEW

¶ 22. This court reviews a motion to suppress under a two-prong analysis. State v. Eason, 2001 WI 98, ¶ 9, 245 Wis. 2d 206, 629 N.W.2d 625. "First, we review the circuit court's findings of historical fact, and will uphold them unless they are clearly erroneous. Second, we review the application of constitutional principles to those facts de novo." Id. Whether police conduct violated a defendant's constitutional rights under Article I, Section 11 of the Wisconsin Constitution and the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures presents a question of constitutional fact that this court independently reviews. State v. Griffith, 2000 WI 72, ¶ 23, 236 Wis. 2d 48, 613 N.W.2d 72.

IV ANALYSIS

¶ 23. Because Felix raised multiple challenges to statements and evidence that police obtained following his arrest, we begin by clarifying the evidence at issue before this court. The State appealed the court of appeals decision regarding the suppression of Felix's written, signed statement at the police station, the buccal swab that he provided at the police station, and Felix's clothing that police seized at the jail. These are the only matters at issue in this appeal.

¶ 24. The State urges this court to interpret Article I, Section 11²⁰ consistent with the Fourth Amendment²¹ and to adopt the Harris rule. The State asserts that the court of appeals erroneously concluded that this court's previous decisions conflicted with the Harris rule. The State notes that Laasch, 84 Wis. 2d 587, Smith, 131 Wis. 2d 220, and Walker, 154 Wis. 2d 158, were decided before Harris, and that Anderson, 165 Wis. 2d 441, involved an unlawful entry and search, which is not covered by the Harris rule. Instead, the State asserts that the court of appeals was bound by its decision in State v. Roberson adopting the Harris rule. 2005 WI App 195, 287 Wis. 2d 403, 704 N.W.2d 302, aff'd on other grounds, 2006 WI 80, 292 Wis. 2d 280, 717 N.W.2d 111. The State asks this court to continue with its usual past practice and interpret Article I, Section 11 consistent with the Fourth Amendment.

¶ 25. If this court adopts the Harris rule, the State asserts that Felix's signed statement, the buccal swab he provided at the police station, and Felix's clothing seized at the jail are all admissible. While Harris dealt with a defendant's statements, the State argues that its rationale also applies to Felix's clothes, and presumes that the Harris rule applies to the buccal swab. According to the State, the court of appeals erroneously concluded that Felix's clothes must be suppressed even under Harris by relying on a Massachusetts Supreme Judicial Court case, Commonwealth v. Tyree, 919 N.E.2d 660 (Mass. 2010), which the State asserts incorrectly interprets Harris and is distinguishable. Even if the clothing should have been suppressed under Harris, the State argues that the error was harmless because there is no reasonable probability that Felix would have decided not to plead guilty, given the rest of the evidence against him, and the significantly reduced exposure to jail time he received with the plea. If this court declines to adopt the Harris rule and instead applies Brown, then the State asserts that Felix's statements and the buccal swab he provided at the police station are sufficiently attenuated and admissible.²²

¶ 26. Felix argues that the Brown attenuation analysis governs the suppression of the statement and the other physical evidence because the Harris rule conflicts with this court's decisions and Article I, Section 11. According to Felix, applying a Brown analysis in this case is consistent with this court's decisions in Laasch, 84 Wis. 2d 587, Smith, 131 Wis. 2d 220, and Walker, 154 Wis. 2d 158, which predate Harris. Felix further argues that applying Brown is consistent with Anderson, 165 Wis. 2d 441, and Phillips, 218 Wis. 2d 180, which applied the Brown analysis after the United States Supreme Court decided Harris. Felix asserts that this court should conclude, as it did in Eason, 245 Wis. 2d 206, that this is a situation in which the United States Supreme Court's interpretation of the Fourth Amendment does not protect a defendant's Article I, Section 11 rights. Felix finds it significant that this court did not adopt Harris in Anderson because, even though that case involved the fruit of unlawful searches, it would be "peculiar" to have different analyses for unlawful searches and seizures. If this court adopts Harris, then Felix argues that his clothing should be suppressed because the Harris rule applies only to statements and not tangible evidence, see Tyree, 919 N.E.2d at 679-82. According to Felix, if this court concludes that the clothing should have been suppressed, it is unclear whether the harmless error test applies and this court should decline to apply it here. He argues that, if this court applies the Brown attenuation analysis, then the signed statement, the buccal swab, and his clothing should be suppressed.

¶ 27. We first examine whether Brown or Harris governs the suppression of the physical evidence and written, signed statement at issue here. Both of these decisions address whether evidence or statements obtained following some unlawful police activity must be suppressed. Brown, 422 U.S. at 591-92; New York v. Harris, 495 U.S. 14, 17 (1990). Specifically, the Harris rule applies to evidence and statements obtained from a defendant outside of the home where police had probable cause to arrest the defendant, but arrested him in his home without a warrant. 495 U.S. at 21. Thus, two threshold matters we need to resolve are whether the police had probable cause and whether Felix was unlawfully arrested.

¶ 28. We conclude that police had probable cause to arrest Felix prior to going to Felix's apartment. Police have probable cause to arrest if they have "information which would lead a reasonable police officer to believe that the defendant probably committed a crime." West v. State, 74 Wis. 2d 390, 398, 246 N.W.2d 675 (1976); see also Wis. Stat. § 968.07(1)(d). Felix does not dispute that police had probable cause to arrest him. All of the witnesses that police interviewed led them to Felix. Specifically, we note that T.W. stated that after the fight she heard Felix say "I'm going to prison. I stabbed someone. I think I killed him." Also, T.W. told police that she was "pretty positive" or about "98" percent sure that Felix stabbed someone. Kyle Leder told police that he heard Felix yell "stab" and "I'm not going to prison" before Felix left in a green Chrysler. Police had ample information to lead a reasonable officer to believe that Felix probably committed a crime by stabbing Davids.

¶ 29. Regarding the legality of Felix's arrest, the United States Supreme Court held in Payton v. New York that, even if police have probable cause to arrest a defendant, entering the defendant's home without a warrant to accomplish an arrest violates the Fourth Amendment. 445 U.S. 573, 590 (1980). Even before the U.S. Supreme Court decided Payton, this court held in Laasch, 84 Wis. 2d at 595-97, that a warrantless entry and arrest in a defendant's home violates Article I, Section 11 and the Fourth Amendment. See Payton, 445 U.S. at 575 n.3 (citing Laasch with approval). In this case, the premise that Felix's arrest was unlawful in violation of Payton underlies both of the parties' briefs and the State's petition asking this court to decide the novel issue of whether Brown or Harris applies to the suppression of evidence obtained after a Payton violation. Consistent with the parties' positions, we assume, without deciding, that Felix's arrest at his home without an arrest warrant was in violation of Payton, 445 U.S. at 590.

¶ 30. Because police obtained Felix's written, signed statement, the buccal swab, and his clothing following his unlawful arrest, Felix argues that this evidence must be suppressed under the exclusionary rule. The exclusionary rule provides for the suppression of evidence that "is in some sense the product of the illegal governmental activity." State v. Knapp, 2005 WI 127, ¶ 22, 285 Wis. 2d 86, 700 N.W.2d 899 (quoting Nix v. Williams, 467 U.S. 431, 444 (1984)). "The primary purpose of the exclusionary rule 'is to deter future unlawful police conduct.'" Id. (quoting United States v. Calandra, 414 U.S. 338, 347 (1974)). It is a judicially-created rule that is not absolute, but rather requires the balancing of the rule's remedial objectives with the "substantial social costs exacted by the exclusionary rule." Id., ¶¶ 22-23 (quoting Illinois v. Krull, 480 U.S. 340, 352-53 (1987)). This rule extends to both tangible and intangible evidence that is the fruit of the poisonous tree, or, in other words, evidence obtained "by exploitation of' the illegal government activity. Id., ¶ 24 (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)).

¶ 31. In Brown, the United States Supreme Court set forth the following three-factor test for whether evidence obtained following unlawful police conduct must be suppressed under the exclusionary rule as the fruit of the poisonous tree, or whether it is admissible as sufficiently attenuated from the illegality: (1) "[t]he temporal proximity" between the illegal activity and the evidence, (2) "the presence of intervening circumstances," and (3) "the purpose and flagrancy of the official misconduct." 422 U.S. at 603-04.

¶ 32. After Brown was decided in 1975, and before the United States Supreme Court decided Harris in 1990, this court applied the Brown attenuation analysis in Smith and Walker.; which involved the suppression of evidence obtained from a defendant outside of the home following an arrest in violation of Payton. In Smith, police had probable cause to arrest, but unlawfully entered Smith's home and arrested him without a warrant or the presence of any exigent circumstances in violation of Article I, Section 11 and the Fourth Amendment. 131 Wis. 2d at 232-35. Smith later confessed during an interrogation. Id. at 226. This court suppressed the statements under Brown in an abbreviated analysis based on the State's concession that if the arrest was unlawful, then Smith's statements would be suppressed as insufficiently attenuated from the unlawful arrest. Id. at 241-42.

¶ 33. In Walker, this court stated that Brown governed the analysis of the lineup identifications made after Walker was unlawfully arrested from the backyard of his home in violation of the Fourth Amendment prohibitions articulated in Payton and Oliver v. United States, 466 U.S. 170, 180 (1984).²³ Walker, 154 Wis. 2d at 182-87. Police did not have an arrest warrant, but this court assumed that police had probable cause to arrest Walker for burglary. Id. at 184. Walker was positively identified by several eyewitnesses to the burglaries in a lineup the morning after his arrest. Id. at 162-63. Because this court lacked the necessary information in the record to examine the lineup under the Brown factors, we remanded to the circuit court to conduct a Brown analysis. Id. at 187.

¶ 34. After this court decided Smith and Walker, the United States Supreme Court decided Harris, 495 U.S. 14. There the Court held that even if an arrest violated Payton, evidence obtained from the defendant outside of the home while in lawful police custody is not the product of the illegal arrest, so long as police had probable cause to arrest. Id. at 21. Such evidence need not be analyzed under Brown. Id. at 18-19. In Harris, police had probable cause to arrest Harris for murder, but police went to Harris's apartment, entered and arrested him without a warrant. Id. at 15-16. The Supreme Court accepted the trial court's finding that Harris did not consent to the police officers' entry and thus he was arrested in violation of Payton. Id. at 17. Harris argued that his statement at the police station, after he was given and waived his Miranda rights, must be suppressed because it was the fruit of his unlawful arrest. Id. at 16.

¶ 35. The United States Supreme Court held that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Id. at 21. The Supreme Court stated that the Brown "attenuation analysis is only appropriate where, as a threshold matter, courts determine that 'the challenged evidence is in some sense the product of illegal governmental activity.'" Id. at 19 (quoting United States v. Crews, 445 U.S. 463, 471 (1980)). Harris's statement, which police obtained while Harris was in legal custody at the police station, and after he was given and waived his Miranda rights, did not require suppression because it was not the product of the unlawful arrest or of any further illegal governmental activity. Id.

¶ 36. We are bound to follow the United States Supreme Court's interpretation of the Fourth Amendment that sets the minimum protections afforded by the federal constitution. State v. Ward, 2000 WI 31, ¶ 39, 231 Wis. 2d 723, 604 N.W.2d 517. However, Felix urges this court to interpret Article I, Section 11 in a manner that provides more deterrence of and protection against unlawful activities and seizures than that provided by the Harris rule. As we have previously noted, we are particularly reluctant to do so given the nearly identical language in both provisions.²⁴ Rather, we have usually interpreted Article I, Section 11 in accord with the United States Supreme Court's interpretation of the Fourth Amendment.²⁵ We have more often interpreted the Wisconsin Constitution differently than the federal constitution in regard to Article I, Sections 7 and 8 than in regard to Article 1, Section II.²⁶ "On only one occasion in our development of Article I, Section 11 jurisprudence have we required a showing different from that required by the Supreme Court's Fourth Amendment jurisprudence. We did so in regard to our development of a good faith exception under Article I, Section 11." State v. Ferguson, 2009 WI 50 ¶ 17 n.6, 317 Wis. 2d 586, 767 N.W.2d 187. This remains true today.²⁷

¶ 37. The sole exception is Eason, in which this court adopted a modified good faith exception to the exclusionary rule for officers' reasonable reliance on a no-knock search warrant. 245 Wis. 2d 206, ¶¶ 2-3. We began by examining this court's long history of interpreting Article I, Section 11 consistent with the United States Supreme Court's interpretation of the Fourth Amendment. Id., ¶¶ 38-52. This court continued on that path in Eason by following the United States Supreme Court's evolving interpretation of the Fourth Amendment, but interpreting Article I, Section 11 as requiring some minimal additional assurances before triggering the good faith exception to the exclusionary rule. Id., ¶¶ 60-63.

¶ 38. We find no reason in this case to depart from our customary practice of interpreting Article I, Section 11 in accord with the Fourth Amendment. As such, we adopt the Harris exception to the exclusionary rule because we are persuaded by the United States Supreme Court's well-reasoned decision.²⁸

¶ 39. The Harris rule appropriately balances the purposes of the exclusionary rule and the Payton rule with the social costs associated with suppressing evidence. The Payton rule was premised on the Fourth Amendment's protection of the "sanctity of the home." Payton, 445 U.S. at 588-89, 601; Harris, 495 U.S. at 17. The purposes of the exclusionary rule are to deter police misconduct and ensure judicial integrity by refusing to rely on evidence obtained through police misconduct, Eason, 245 Wis. 2d 206, ¶ 44, but the primary purpose is deterrence, Knapp, 285 Wis. 2d 86, ¶ 22. The laudable goal of deterring police misconduct is not pursued at all costs. As this court noted in its analysis of the good faith exception to the exclusionary rule, there are "substantial social costs" associated with excluding relevant evidence. Eason, 245 Wis. 2d 206, ¶ 31.

¶ 40. The United States Supreme Court reiterated in Harris that "[t]he penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve." 495 U.S. at 17. The Harris rule is based on the Supreme Court's conclusion that suppressing evidence and statements obtained from a defendant outside of the home following a Payton violation does not further the purpose of the Payton rule: "the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime." Id. The Payton rule is vindicated through the suppression of any evidence or statements obtained from the defendant while officers are still inside the defendant's home unlawfully. Id. at 20. The Fourth Amendment does not require courts to exclude all evidence or forgo prosecuting a defendant following unlawful police conduct, even if doing so might have some deterrent effect. Id. Under the Harris rule, police are sufficiently deterred from violating Payton because "the principle incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found, or statements taken, inside the home." Id. There is no compelling reason to go further and suppress evidence lawfully obtained from a defendant outside of the home.

¶ 41. The Harris Court drew a line at the entrance to the home because that is the heart of the Fourth Amendment and the focus of Payton. Id. at 17-18. Harris provides a narrow rule: where police had probable cause before the unlawful entry and arrest, an arrest in violation of Payton does not require the suppression of evidence obtained from the defendant outside of the home, such as statements obtained after Miranda warnings and the waiver of those rights. For this narrow category of evidence, it is not necessary to do a Brown analysis where it is clear as it is here that the evidence is not derived from the illegality. See id. at 19-20. In other situations, this court and the United States Supreme Court continue to require a Brown analysis to ensure that evidence or statements obtained following police misconduct are not the product of the illegality. Additionally, as the Supreme Court noted in Harris, evidence will still be suppressed if it was "the product of coercion, if Miranda warnings were not given, or if there was a violation of the rule of Edwards v. Arizona, 451 U.S. 477 (1981)." Id. at 20. The Harris rule is a common-sense limitation on the exclusionary rule where excluding statements and evidence does not serve the deterrent purpose of the exclusionary rule or the purpose of the Payton rule.

¶ 42. While this court's decisions in Smith and Walker, which preceded Harris, applied a Brown attenuation analysis to determine the admissibility of evidence that is covered by the Harris rule, we follow the United States Supreme Court's evolving interpretation of the Fourth Amendment.²⁹ In accord with Harris, we hold that where police had probable cause to arrest before the unlawful entry and warrantless arrest from a defendant's home, this violation of Payton does not require the suppression of evidence obtained from a defendant outside of the home, such as statements obtained after the defendant was given and waived his Miranda rights.

¶ 43. This holding does not conflict with this court's post -Harris decisions in Anderson, 165 Wis. 2d 441, and Phillips, 218 Wis. 2d 180, contrary to Felix's assertions. We applied a Brown attenuation analysis in those cases because they involved the fruits of an unlawful entry and search. Anderson, 165 Wis. 2d 441 (involving the suppression of physical evidence obtained from a consent search of Anderson's home where, following unlawful searches by police, Anderson was lawfully arrested in his home pursuant to an arrest warrant and later confessed and consented to a search of his home); Phillips, 218 Wis. 2d 180 (involving the suppression of evidence obtained following a search of Phillips' bedroom where police obtained Phillips' consent while unlawfully inside of his home). As stated above, the Harris rule applies where the only illegal police conduct is an unlawful entry and arrest in violation of Payton, not where the evidence may be tied to an unlawful search by police. Contrary to the court of appeals' conclusion and Felix's argument, it is not "peculiar" to limit the application of the Harris rule to cases where the only illegal police conduct is a Payton violation. Rather it is logical to develop a limited, bright-line rule for a narrow category of evidence obtained after an unlawful arrest in violation of Payton, but where police had probable cause to arrest, that we can say as a matter of law does not "bear a sufficiently close relationship to the underlying illegality." See Harris, 495 U.S. at 19.

¶ 44. We now apply the Harris rule to determine whether there should be suppression of Felix's written, signed statement at the police station, the buccal swab provided at the police station, and his clothing seized at the jail. As we stated above, the Harris rule applies because police had probable cause to arrest Felix prior to going to his apartment, and consistent with the position of the parties, we assume, without deciding, that police unlawfully arrested Felix at his home without an arrest warrant in violation of Payton. See supra ¶¶ 28-29.

¶ 45. Felix's signed statement at the police station, after he was given and waived his Miranda rights,³⁰ falls squarely under Harris's holding that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Harris, 495 U.S. at 21. Felix does not argue that his statement or the buccal swab he provided at the police station must be suppressed under Harris but rather that the attenuation analysis of Brown must be applied. Like Felix's written, signed statement at the police station after he was given and waived his Miranda rights, the buccal swab is admissible under the Harris rule, because it was obtained from Felix while he was lawfully in police custody at the police station.

¶ 46. Felix's clothing that police seized at the jail is also admissible under a logical extension of the Harris rule. Felix argues that the Harris rule does not cover the clothes he was wearing when he was arrested, and that they must be suppressed as the fruit of his unlawful arrest. Felix argues that the warrantless arrest led directly to the seizure of his clothing because if the police had taken the time to get a warrant, he would have changed and police would not have obtained his clothing. This argument is based on the type of but-for causality that the United States Supreme Court rejected in Hudson v. Michigan, 547 U.S. 586 (2006). The reasoning in Hudson informs our interpretation of the Harris rule, and supports applying it to the seizure of Felix's clothes at the jail.

¶ 47. In Hudson, the Court explained that "exclusion may not be premised on the mere fact that a constitutional violation was a 'but-for' cause of obtaining evidence." Id. at 592. After highlighting the "substantial social costs" of the exclusionary rule, "which sometimes include setting the guilty free and the dangerous at large," the Supreme Court reiterated that "[w]hether the exclusionary sanction is appropriately imposed in a particular case ... is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." Id. at 591-92 (quoting United States v. Leon, 468 U.S. 897, 906 (1984)) (internal quotations omitted). The Hudson Court declined to apply the exclusionary rule for a violation of the knock- and-announce rule, because the minimal deterrent effect was far outweighed by the social costs of suppressing the evidence. Id. at 599.

¶ 48. When we examine Harris in this light, it is clear that the Harris Court drew a line at the entrance to the home and concluded that there was sufficient deterrence for Payton violations by suppressing evidence and statements that police obtained while unlawfully inside of the home and admitting evidence police lawfully obtained outside of the home. Harris, 495 U.S. at 17-20. Thus, we interpret Harris to apply to statements and evidence that police obtain from the defendant outside of the home. Under our interpretation of Harris, Felix's clothing that police seized at the jail when he was being booked is admissible. This interpretation is supported by the language and rationale we have noted in Harris and Hudson. We also note that several other states have interpreted Harris in this way.³¹

¶ 49. Additionally, Felix's clothing was not taken as evidence until after Felix was lawfully in police custody and was given and waived his Miranda rights. The police did not even develop a reason to seize Felix's clothing until the detective noticed some "red spots" on Felix's shirt during questioning at the police station. That fact distinguishes this case from Tyree, 919 N.E.2d at 682, in which the Massachusetts Supreme Judicial Court held that Harris did not apply to the shoes the defendant was wearing when unlawfully arrested in his home. In Tyree, police noticed that the defendant's shoes matched the shoeprints at the scene of the crime while they were still unlawfully in his home. Id. at 668. The Massachusetts Supreme Judicial Court found it significant that police noted "the potential evidentiary relevance of a piece of a suspect's clothing while they [were] still unlawfully in the home." Id. at 682. As we explained above, the Supreme Court's reasoning in Hudson supports our reading of the Harris rule as applicable to physical evidence obtained from the defendant outside of the home, as well as to statements made after the defendant was given and waived his Miranda rights. In this case, that includes the clothes Felix was wearing when he was arrested that police seized at the jail.

¶ 50. Therefore, we conclude that, under Harris, there is no basis for suppressing Felix's written, signed statement after he was given and waived his Miranda rights at the police station, the buccal swab that he provided at the police station, and his clothing that police seized at the jail.

V CONCLUSION

¶ 51. We continue our usual practice of interpreting Article I, Section 11 of the Wisconsin Constitution in accord with the United States Supreme Court's interpretation of the Fourth Amendment. Thus, we adopt the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation. We hold that, where police had probable cause to arrest before the unlawful entry, a warrantless arrest from Felix's home in violation of Payton requires neither the suppression of statements outside of the home after Miranda rights were given and waived, nor the suppression of physical evidence obtained from Felix outside of the home. Assuming without deciding that Felix's warrantless arrest from his home was in violation of Payton, we conclude that, pursuant to the Harris rule, the following evidence that police obtained outside of the home is admissible: Felix's signed statement, made after Felix was given and waived his Miranda rights, the buccal swab obtained at the police station, and Felix's clothing seized at the jail, as well as any derivative evidence.

¶ 52. Therefore, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction.

By the Court.

The decision of the court of appeals is reversed.

1 State v. Felix, No. 2010AP346-CR, unpublished slip op. (Wis. Ct. App. Mar. 29, 2011).

2 See Miranda v. Arizona, 384 U.S. 436 (1966).

3 445 U.S. 573 (1980).

4 442 U.S. 590 (1975).

5 495 U.S. 14 (1990).

6 Brown, 442 U.S. at 603-04.

7 Harris, 495 U.S. at 17-19 (quoting United States v. Crews, 445 U.S. 463, 471 (1980)).

8 The circuit court granted in part Felix's motion to suppress the statement that he made outside of his residence immediately after he was arrested because police had not read Felix his Miranda warnings. The circuit court concluded that this statement could not be used in the State's case-in-chief, but could be used for impeachment purposes because it was made voluntarily.

9 Felix, No. 2010AP346-CR, ¶¶ 1, 20.

10 Id., ¶¶ 14-19.

11 Id., ¶ 19.

12 The parties focused their arguments on the suppression of the buccal swab and the clothes themselves. The record does not indicate whether DNA or blood evidence was taken from the swab or the clothing nor does it provide the results of any DNA or blood comparison with the victim. It is reasonable to infer that Felix sought to suppress the DNA from the swab, the blood derived from the clothing and the results of tests on those samples, as well as the swab and the clothing themselves. Thus, when we refer to the suppression of the buccal swab and Felix's clothing, we include any evidence derived therefrom or the results of any tests on that evidence.

13 Wisconsin Statute §940.01 (2005-06) provides: "First-degree intentional homicide. (1) Offenses, (a) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony."

Wisconsin Statute § 939.63 provides: "Penalties; use of a dangerous weapon. (1) If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased as follows: . .. (b) If the maximum term of imprisonment for a felony is more than 5 years or is a life term, the maximum term of imprisonment for the felony may be increased by not more than 5 years."

All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.

14 Before this court, the State does not advance the argument that the arrest was lawful based on the reasoning of the circuit court. Rather, the State's argument before this court presumes that the arrest was made in violation of Payton, 445 U.S. at 590. Consistent with the parties' positions, we assume, without deciding, that Felix's arrest at his home without an arrest warrant was in violation of Payton. See infra ¶ 29.

15 State v. Mendoza, 96 Wis. 2d 106, 118, 291 N.W.2d 478 (1980) ("A statement of the defendant made without the appropriate Miranda warnings, although inadmissible in the prosecution's case-in-chief, may be used to impeach the defendant's credibility if the defendant testifies to matters contrary to what is in the excluded statement." (citing Harris v. New York, 401 U.S. 222 (1971))).

16 Wisconsin Statute § 940.05 provides: "Second-degree intentional homicide. (1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if: . . . (b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes."

17 A defendant may appeal an order denying a motion to suppress despite the fact that the final judgment was entered upon the defendant's guilty plea. Wis. Stat. § 971.31(10).

18 The court of appeals declined to address Felix's argument that both of his statements were involuntary and that his Miranda waiver at the police station was invalid because the court of appeals remanded for suppression on other grounds. Felix, No. 2010AP346-CR, ¶ 1 n.l.

19 Felix did not file a cross-petition in this court for review. While he argued before the circuit court and the court of appeals that his statements were involuntary and his Miranda waiver invalid, he did not raise these issues in his briefs or at oral argument before this court. In fact, in Felix's brief he clarified that he "is no longer arguing before this court that his statement to [the detective] was involuntary due to police misconduct." The circuit court suppressed the statement Felix made in his yard because he had not been given Miranda warnings, but concluded that it was voluntary. The circuit court denied Felix's motion to suppress his signed statement at the police station because it concluded that his arrest was lawful and that prior to making this statement he was given and waived his Miranda rights. The circuit court did not address Felix's argument that his signed statement at the police station was involuntary.

The court of appeals declined to address these issues because it remanded to suppress Felix's signed statement on other grounds. Felix, No. 2010AP346-CR, ¶ 1 n.l. Felix did not ask this court, in his briefs or at oral argument, for a remand to the court of appeals to allow it to address these issues. Thus, we do not address the voluntariness of Felix's statements or the validity of his Miranda waiver nor do we remand to the court of appeals to address these issues because Felix apparently has abandoned these arguments and has not asked for a remand to the court of appeals.

20 Article I, Section 11 of the Wisconsin Constitution provides: "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 warrant 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."

21 The Fourth Amendment to the United States Constitution provides: "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."

22 The State makes no argument in regard to the application of the Brown attenuation analysis to Felix's clothes.

23 Oliver provides that Fourth Amendment protections extend to the curtilage of the home, which includes "the land immediately surrounding and associated with the home." Oliver v. United States, 466 U.S. 170, 180 (1984).

24 State v. Fry, 131 Wis. 2d 153, 172, 388 N.W.2d 565 (1986) ("But for a few inconsequential differences in punctuation, capitalization and the use of the singular or plural form of a word, the texts of art. I, sec. 11 and the fourth amendment are identical."), overruled on other grounds by State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97; see supra notes 20 and 21.

25 We have interpreted Article I, Section 11 consistent with the Fourth Amendment in the following: Dearborn, 327 Wis. 2d 252, ¶ 27; State v. Ferguson, 2009 WI 50, 317 Wis. 2d 586, 767 N.W.2d 187; State v. Arias, 2008 WI 84, ¶¶ 19-24, 311 Wis. 2d 358, 752 N.W.2d 748; State v. Malone, 2004 WI 108, ¶ 15, 274 Wis. 2d 540, 683 N.W.2d 1; State v. Guzman, 166 Wis. 2d 577, 586-87, 480 N.W.2d 446 (1992); Fry, 131 Wis. 2d at 172, overruled on other grounds by Dearborn, 327 Wis. 2d 252; State v. Doe, 78 Wis. 2d 161, 254 N.W.2d 210 (1977); State v. Williams, 47 Wis. 2d 242, 177 N.W.2d 611 (1970).

26 See e.g., State v. Dubose, 2005 WI 126, ¶¶ 39-40, 285 Wis. 2d 143, 699 N.W.2d 582 (Article I, Section 8); State v. Knapp, 2005 WI 127, ¶¶ 57-62, 285 Wis. 2d 86, 700 N.W.2d 899 (Article I, Section 8); State v. Hansford, 219 Wis. 2d 226, 242-43, 580 N.W.2d 171 (1998) (Article I, Section 7).

27 Justice Bradley's dissent asserts that Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978), is "another occasion in which we interpreted Article I Section 11 more expansively than the existing interpretation of the Fourth Amendment." Dissent, ¶ 131. To the contrary, in Laasch, this court explained that our conclusion was premised on both the Fourth Amendment and Article I, Section 11 of the Wisconsin Constitution. 84 Wis. 2d at 595. We stated that our conclusion was "in accord with decisions of this court and of the United States Supreme Court." Id. Laasch is not an example of a situation in which this court has diverged from the United States Supreme Court's interpretation of the Fourth Amendment on the basis of additional protections provided under Article I, Section 11.

28 As the court of appeals noted, it has applied the Harris rule in a number of cases. Felix, No. 2010AP346-CR, ¶ 14 n.5. For example, the court of appeals discussed and applied Harris in State v. Roberson, 2005 WI App 195, ¶¶ 16-23, 287 Wis. 2d 403, 704 N.W.2d 302, which this court affirmed on other grounds, 2006 WI 80, 292 Wis. 2d 280, 717 N.W.2d 111.

29 Felix argues that our decision in Laasch, 84 Wis. 2d 587, also conflicts with the Harris rule, but we disagree. Laasch did not involve a Brown analysis or even the suppression of evidence. In Laasch, this court held that the circuit court lacked personal jurisdiction over Laasch as a result of the unlawful entry and arrest. Id. at 597. This part of Laasch's holding was later modified by State v. Smith, 131 Wis. 2d 220, 240, 388 N.W.2d 601 (1986) (holding that an unlawful arrest does not deprive a circuit court of personal jurisdiction).

30 As we noted above, Felix challenged the voluntariness of his statement and the validity of his Miranda waiver before the circuit court and court of appeals, but because he does make those arguments before this court, we do not address them. See supra note 19.

31 People v. Alexander, 571 N.E.2d 1075, 1084 (Ill. App. Ct. 1991) ("While Harris refers only to 'statements,' we see no reason why the rule it enunciates should not apply as well to other evidence obtained outside the home, as the argument for excluding statements was that they were the 'fruits of an illegal arrest¹ rather than that there was some basis for distinguishing between statements and other evidence."); People v. Watkins, 31 Cal. Rptr. 2d 452, 459 n.8 (Cal. Ct. App. 1994) ("Since the arrest itself is proper, physical evidence taken from the defendant's person at the police station need not be suppressed."); Timmons v. State, 734 N.E.2d 1084, 1086 (Ind. Ct. App. 2000) (concluding that the Harris rule applies to both statements and tangible physical evidence).

1 See State v. Cook, 564 P.2d 877 (Ariz. 1977); People v. Ramey, 545 P.2d 1333 (Cal. 1976); People v. Moreno, 491 P.2d 575 (Colo. 1971); State v. Jones, 274 N.W.2d 273 (Iowa 1979); State v. Platten, 594 P.2d 201 (Kan. 1979); Commonwealth v. Forde, 329 N.E.2d 717 (Mass. 1975); State v. Olson, 598 P.2d 670 (Or. 1979); Commonwealth v. Williams, 396 A.2d 1177 (Pa. 1978); State v. McNeal, 251 S.E.2d 484 (W. Va. 1978); Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978).