Stephan Lane v. Riley Kummet

COURT OF APPEALS

DECISION NOTICE

DATED AND FILED This opinion is subject to further editing. If

published, the official version will appear in

the bound volume of the Official Reports.

January 13, 2026

A party may file with the Supreme Court a

Samuel A. Christensen petition to review an adverse decision by the

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

and RULE 809.62.

Appeal No. 2024AP998 Cir. Ct. No. 2023CV27

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STEPHAN LANE,

PLAINTIFF-RESPONDENT,

V.

RILEY KUMMET AND ZACK DIECKMAN,

DEFENDANTS-APPELLANTS,

RUSK COUNTY,

DEFENDANT.

APPEAL from an order of the circuit court for Rusk County:

BENJAMIN J. LANE, Judge. Affirmed and cause remanded for further

proceedings.

Before Stark, P.J., Hruz, and Gill, JJ.

No. 2024AP998

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Riley Kummet and Zack Dieckman appeal a

nonfinal order denying their motion for summary judgment on claims brought

against them by Stephan Lane. On appeal, Kummet and Dieckman contend that

they are entitled to qualified immunity on Lane’s claim against them under

42 U.S.C. § 1983.1 Like the circuit court, we conclude that genuine issues of

material fact exist regarding Kummet and Dieckman’s entitlement to qualified

immunity. We therefore affirm the order denying summary judgment on that issue

and remand for further proceedings consistent with this opinion.

BACKGROUND

¶2 In January 2021, both Kummet and Dieckman were employed as

investigators with the Rusk County Sheriff’s Office. At that time, the Rusk

County Sheriff’s Office was investigating reports regarding a marijuana grow

operation at Lane’s residence, which was located on Fritz Avenue in Ladysmith,

Wisconsin.

¶3 As part of that investigation, on January 11, 2021, Kummet and

Dieckman performed a “knock and talk” at Lane’s residence. A “knock and talk”

is an investigative technique in which

1

On June 28, 2024, this court granted Kummet and Dieckman’s petition for leave to

appeal the circuit court’s nonfinal order “as to the limited issue of whether the circuit court erred

by denying [Kummet and Dieckman’s] motion for summary judgment on the issue of qualified

immunity.” See WIS. STAT. RULE 809.50(3) (2023-24); see also Arneson v. Jezwinski, 206

Wis. 2d 217, 231, 556 N.W.2d 721 (1996).

All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP998

police go to people’s residences, with or without probable

cause, and knock on the door to obtain plain views of the

interior of the house, to question the residents, to seek

consent to search, and/or to arrest without a warrant, often

based on what they discover during the “knock and talk.”

City of Sheboygan v. Cesar, 2010 WI App 170, ¶9 n.5, 330 Wis. 2d 760, 796

N.W.2d 429 (citation omitted).

¶4 Lane’s residence had a front door on the northern side of the

house—that is, the side of the house facing Fritz Avenue. There was also a door

on the back, southern side of the house, leading into a structure that the parties

refer to as a “breezeway.” The breezeway had two windows on its south wall and

had siding matching the rest of the house. The backyard area surrounding the

breezeway on the southern side of the house was enclosed with a fence, which had

a gate with a latch. There was a parking area to the west of the house, outside the

fenced-in backyard on the south side of the residence.

¶5 When Kummet and Dieckman went to Lane’s residence to perform a

“knock and talk,” they approached the southern door leading into the breezeway,

rather than the front door on the north side of the house. They entered the fenced

area on the south side of the residence through the gate, which they stated was

latched, but not locked. They then proceeded into the breezeway and made their

way to a closed door leading into the house, which had a Ring doorbell on it.

After Kummet rang the doorbell, Lane opened the door leading from the

breezeway into the house. At that point, Kummet could smell marijuana, and he

also saw three planter pots inside the house that “had large stems that appeared to

be marijuana already harvested.” Lane quicky shut the door behind him and then

walked outside of the breezeway, into the backyard, to speak with Kummet and

Dieckman.

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¶6 Based in part on his observations during the “knock and talk,”

Kummet subsequently applied for—and received—a warrant to search Lane’s

residence. During the execution of the search warrant, officers seized “THC

plants that smelled of raw marijuana,” plantlike material that field-tested positive

for THC, and other drug-related items. The State then charged Lane in Rusk

County Case No. 2021CF24 with manufacture or delivery of THC, possession

with intent to deliver THC, misdemeanor bail jumping, and possession of drug

paraphernalia.

¶7 In his criminal case, Lane moved to suppress the evidence seized

during the search of his residence, arguing that Kummet and Dieckman conducted

an unlawful, warrantless search within the curtilage of his home when they entered

the home’s breezeway to perform a “knock and talk.” Following a suppression

hearing, the State conceded that Kummet and Dieckman had unlawfully entered

the curtilage of Lane’s home without a warrant and that the subsequent search

warrant was issued based on information obtained during the prior, unlawful

search. The State therefore joined Lane’s motion to suppress. The circuit court in

Lane’s criminal case granted the suppression motion and dismissed the charges

against Lane.

¶8 Lane then filed the instant lawsuit against Kummet, Dieckman, and

Rusk County, asserting a claim under 42 U.S.C. § 1983 based on Kummet and

Dieckman’s alleged violation of Lane’s rights under the Fourth Amendment to the

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No. 2024AP998

United States Constitution and article 1, section 11 of the Wisconsin Constitution.2

Lane also asserted state law claims for trespass and invasion of privacy. In

addition, he alleged that Rusk County was liable for Kummet and Dieckman’s

actions under the doctrine of respondeat superior.

¶9 Kummet, Dieckman, and Rusk County moved for summary

judgment, arguing that: (1) Lane’s § 1983 claim failed as a matter of law because

the undisputed facts showed that Kummet and Dieckman did not violate Lane’s

constitutional rights (2) alternatively, Kummet and Dieckman were entitled to

qualified immunity with respect to the § 1983 claim; (3) Lane’s state law claims

failed as a matter of law; (4) alternatively, Kummet and Dieckman were entitled to

governmental immunity with respect to the state law claims, pursuant to WIS.

STAT. § 893.80(4); and (5) Rusk County was not liable for Lane’s state law claims

under the doctrine of respondeat superior. Lane filed a response opposing the

summary judgment motion, and both sides filed affidavits in support of their

respective positions.

¶10 With respect to Lane’s § 1983 claim, the circuit court concluded that

genuine issues of material fact existed as to whether Kummet and Dieckman had

violated Lane’s constitutional rights and whether they were entitled to qualified

immunity for any such violation. The court further concluded that genuine issues

of material fact existed regarding Lane’s state law claims. The court therefore

denied the defendants’ motion for summary judgment with respect to those issues.

2

Both the Fourth Amendment to the United States Constitution and article 1, section 11

of the Wisconsin Constitution “provide protection from unreasonable searches and seizures.”

State v. Sykes, 2005 WI 48, ¶13, 279 Wis. 2d 742, 695 N.W.2d 277. “Historically, we follow the

United States Supreme Court’s interpretations when construing both constitutions’ search and

seizure provisions.” Id.

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¶11 However, the circuit court ordered the parties to file supplemental

briefs regarding Kummet and Dieckman’s entitlement to governmental immunity

for Lane’s state law claims under WIS. STAT. § 893.80(4). Additionally, the court

concluded that Rusk County could not be held liable under the doctrine of

respondeat superior for the intentional torts of its employees, and it therefore

granted Rusk County summary judgment with respect to Lane’s state law claims.

Following supplemental briefing, the court concluded that Kummet and Dieckman

were immune from Lane’s state law claims under § 893.80(4), and it granted

Kummet and Dieckman summary judgment on those claims.

¶12 Kummet and Dieckman now appeal, arguing that the circuit court

erred by denying their motion for summary judgment on the issue of their

entitlement to qualified immunity for Lane’s § 1983 claim.3 See supra note 1.

DISCUSSION

¶13 We independently review a grant or denial of summary judgment,

using the same methodology as the circuit court. See Hardy v. Hoefferle, 2007

3

We pause to note that Kummet and Dieckman’s appellate briefs are deficient in two

respects. First, they do not comply with WIS. STAT. RULE 809.19(8)(bm), which requires a brief

to “have page numbers centered in the bottom margin using Arabic numerals with sequential

numbering starting at ‘1’ on the cover.” Our supreme court has explained that this pagination

requirement “will match the page number to the page header applied by the eFiling system,

avoiding the confusion of having two different page numbers.” S. CT. ORDER 20-07, 2021 WI

37, 397 Wis. 2d xiii (eff. July 1, 2021).

Second, many of the factual assertions in Kummet and Dieckman’s brief-in-chief are

unsupported by appropriate references to the record, as required by WIS. STAT.

RULE 809.19(1)(d)-(e). Instead, Kummet and Dieckman support these factual assertions with

citations to their brief’s appendix. An appendix, however, is not the record. See United Rentals,

Inc. v. City of Madison, 2007 WI App 131, ¶1 n.2, 302 Wis. 2d 245, 733 N.W.2d 322.

We admonish Kummet and Dieckman’s counsel that future violations of the Rules of

Appellate Procedure may result in sanctions. See WIS. STAT. RULE 809.83(2).

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No. 2024AP998

WI App 264, ¶6, 306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is

appropriate where “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” WIS. STAT. § 802.08(2).

¶14 “Summary judgment is a drastic remedy; therefore, the moving party

must clearly be entitled to judgment as a matter of law.” CED Props., LLC v. City

of Oshkosh, 2018 WI 24, ¶19, 380 Wis. 2d 399, 909 N.W.2d 136 (citation

omitted). When reviewing a summary judgment decision, we view the facts in the

light most favorable to the nonmoving party, and any doubts as to whether a

genuine issue of material fact exists must be resolved against the moving party.

Id. “Should the material presented on the motion be subject to conflicting

interpretations or if reasonable people might differ as to its significance, then

summary judgment must be denied.” Oddsen v. Henry, 2016 WI App 30, ¶26,

368 Wis. 2d 318, 878 N.W.2d 720.

¶15 Here, the circuit court denied Kummet and Dieckman’s motion for

summary judgment on the issue of qualified immunity. “The doctrine of qualified

immunity protects government officials ‘from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Pearson v. Callahan, 555

U.S. 223, 231 (2009) (citation omitted).

Determining whether a defendant state officer is entitled to

qualified immunity involves two inquiries: “(1) whether the

facts, taken in the light most favorable to the plaintiff, make

out a violation of a constitutional right, and (2) whether that

constitutional right was clearly established at the time of

the alleged violation.”

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No. 2024AP998

Gibbs v. Lomas, 755 F.3d 529, 537 (7th Cir. 2014) (citation omitted). “If either

inquiry is answered in the negative, the defendant official is entitled to summary

judgment.” Id. However, “[i]f there are disputed material facts—facts on which

the issue of qualified immunity turns—then … the case [must] proceed to trial on

that and other issues.” Baxter v. DNR, 165 Wis. 2d 298, 311, 477 N.W.2d 648

(Ct. App. 1991); see also Burkes v. Klauser, 185 Wis. 2d 308, 329, 517 N.W.2d

503 (1994) (“If issues of fact preclude granting the shelter of qualified immunity,

the case should proceed to trial on the merits.”).

¶16 In this case, we conclude that the circuit court properly denied

Kummet and Dieckman’s motion for summary judgment on the issue of qualified

immunity because genuine issues of material fact exist as to both prongs of the

qualified immunity analysis.

¶17 As to the first prong, there are material factual disputes that prevent

us from concluding, as a matter of law, whether Kummet and Dieckman’s

warrantless entry into the breezeway of Lane’s home violated Lane’s Fourth

Amendment rights. “It is axiomatic that the ‘physical entry of the home is the

chief evil against which the wording of the Fourth Amendment is directed.’”

Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (citation omitted). The Fourth

Amendment’s protection extends to the home’s curtilage, which is the area

“immediately surrounding and associated with the home.” State v. Cundy, 2023

WI App 41, ¶19, 409 Wis. 2d 34, 995 N.W.2d 266 (citation omitted). “Under the

Fourth Amendment, warrantless searches inside a home or its curtilage are

presumptively unreasonable and unlawful.” State v. Ionescu, 2019 WI App 68,

¶9, 389 Wis. 2d 586, 937 N.W.2d 90 (footnote omitted).

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¶18 Kummet and Dieckman do not dispute that the breezeway of Lane’s

home is part of the home’s curtilage. In fact, they assert that the breezeway is

“[i]ndisputably” curtilage. They contend, however, that their entry into the

breezeway and their subsequent contact with Lane did not constitute an

impermissible warrantless search within the curtilage of Lane’s home. Instead,

they argue that they conducted a permissible “knock and talk” under Florida v.

Jardines, 569 U.S. 1 (2013).

¶19 In Jardines, the United States Supreme Court considered whether

the use of a drug-sniffing dog on a homeowner’s porch to investigate the contents

of the home was a “search” within the meaning of the Fourth Amendment.

Id. at 3. In addressing that issue, the Court noted that the homeowner’s porch fell

within the home’s curtilage and that it was undisputed the officers and canine had

entered the curtilage. Id. at 7. Accordingly, the “only question” was whether the

homeowner “had given his leave (even implicitly) for them to do so.” Id. at 8. In

answering that question, the Court explained that

“[T]he knocker on the front door is treated as an invitation

or license to attempt an entry, justifying ingress to the

home by solicitors, hawkers and peddlers of all kinds.”

This implicit license typically permits the visitor to

approach the home by the front path, knock promptly, wait

briefly to be received, and then (absent invitation to linger

longer) leave. Complying with the terms of that traditional

invitation does not require fine-grained legal knowledge; it

is generally managed without incident by the Nation’s Girl

Scouts and trick-or-treaters. Thus, a police officer not

armed with a warrant may approach a home and knock,

precisely because that is “no more than any private citizen

might do.”

Id. (citations and footnote omitted).

9

No. 2024AP998

¶20 Thus, the Jardines Court recognized that law enforcement may enter

the constitutionally protected curtilage of a home in order to perform a “knock and

talk,” which is “not a search but instead is an investigative technique premised on

the implicit license that a visitor, or neighbor, would have with regard to entering

one’s curtilage.” State v. Wilson, 2022 WI 77, ¶21, 404 Wis. 2d 623, 982 N.W.2d

67. In Wilson, our state supreme court recognized that “[t]he implicit license to

approach an individual’s home outlined in Jardines is not confined to that

individual’s front door or front porch,” and “[i]n limited scenarios, it also may

extend to an alternative approach to the house or back entryway depending on the

facts of a case.” Id., ¶26. However, “[t]here is no blanket implicit license to enter

a backyard. Rather, the inquiry is highly fact-specific.” Id.

¶21 Kummet and Dieckman argue that under the undisputed facts of this

case, they had an implicit license to enter the curtilage of Lane’s home—i.e., the

breezeway—in order to perform a “knock and talk.” Lane, however, asserts that

there are genuine issues of material fact as to whether Kummet and Dieckman had

an implicit license to enter the breezeway. We agree with Lane that genuine

issues of material fact exist regarding that issue.4

¶22 Both Kummet and Dieckman submitted affidavits in support of their

summary judgment motion. In his affidavit, Kummet averred that prior to the

4

In the alternative, Lane asserts that the breezeway was not merely part of his home’s

curtilage but was actually part of the home itself. Based on this premise, Lane contends that “a

reasonable officer would have known [that] entering [the breezeway] without a warrant violated

the Fourth Amendment.” However, Lane cites only a single, unpublished case in support of his

claim that the breezeway was part of the home itself. See State v. Basler, No. 2018AP2299-CR,

unpublished slip op. (WI App May 15, 2019). This single citation to an unpublished case is

insufficient to show that it was “clearly established” at the time of the alleged violation that the

breezeway was part of Lane’s home, rather than part of the home’s curtilage. See Gibbs v.

Lomas, 755 F.3d 529, 537 (7th Cir. 2014) (citation omitted).

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No. 2024AP998

“knock and talk,” he “conducted multiple drive-bys” of Lane’s residence and “did

not observe any foot traffic to the northern door on Fritz Avenue.” Kummet

further averred that the northern door “did not appear to be used by anyone,” that

“all foot traffic and tracks [were] at the southern door on the breezeway,” and that

“all vehicle tracks and parking for the residence [were] at the parking area near

this southern door, just outside the west side of the fence.” Both Kummet and

Dieckman also averred that prior to performing the “knock and talk,” they

consulted with officers from the Ladysmith Police Department, who stated they

had previously made contact with Lane at the southern door of his residence.

¶23 Kummet further averred that when he and Dieckman arrived at

Lane’s residence to perform the “knock and talk,” the door on the north side of the

residence “appeared unkempt—there was no indication of foot traffic in the snow

in the walkway leading up to the door and the snow did not appear shoveled

during [the] multiple previous drive-bys.” In contrast, Kummet averred that there

were “signs of significant foot traffic in the snow from the parking area” on the

west side of the residence “through the gate [into the fenced yard] and into the

breeze way.” Dieckman similarly averred that there were “clear tracks and signs

of foot traffic into the fence area and to the southern open doorway on the

breezeway, indicating to me this was a main thoroughfare for foot traffic at this

residence.” Dieckman also averred that the parking area along the fence

“appeared well-used and shoveled for or used by multiple vehicles.”

¶24 According to Dieckman, the fence surrounding the yard on the south

side of Lane’s residence “was latched but not locked” when he and Kummet

arrived to perform the “knock and talk.” Kummet agreed that the fence gate was

not locked. Dieckman averred that the fence appeared to be “erected for

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No. 2024AP998

containing dogs on the property versus erected for keeping people out or for

privacy.”

¶25 Both Kummet and Dieckman averred that the exterior door of the

breezeway was open when they approached the home, and it appeared to be

“nonfunctional” or broken. Kummet also averred that the breezeway door had

been open during his previous drive-bys of the residence. Kummet and Dieckman

averred that they entered the breezeway through its open door and approached the

door leading from the breezeway into Lane’s residence. That second door was

closed and had a Ring doorbell on it, which was pointed toward the breezeway’s

entrance. Kummet and Dieckman averred that based upon their observations, they

believed that the closed door leading from the breezeway into the residence was

the “door to the residence where one would approach to knock or ring the doorbell

to get Lane to come to the door.”

¶26 In summary, according to Kummet and Dieckman, when they

approached Lane’s residence to perform the “knock and talk,” they knew

that: (1) law enforcement had previously made contact with Lane at the southern

door of his residence; (2) the sidewalk leading to the residence’s northern door

was not shoveled either that day or during previous drive-bys; (3) there were signs

of significant foot traffic leading from the parking area on the west side of the

residence, through the fence, and to the southern door leading into the breezeway;

(4) the fence gate was not locked; (5) the breezeway door was open and

nonfunctional; and (6) the door leading from the breezeway to the interior of the

residence was closed and had a Ring doorbell on it. These facts, if believed by a

factfinder, could support a determination that Kummet and Dieckman had an

implicit license to enter the breezeway in order to make contact with Lane, as any

private citizen might similarly do when approaching Lane’s residence.

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¶27 The facts summarized above, however, are not entirely undisputed.

In his affidavit in opposition to summary judgment, Lane averred that the door on

the northern side of his residence is the home’s primary entrance and “clearly

appears that way,” as it bears a mailbox, the house number, and his name. Lane

further averred that he regularly shovels the walk leading to the northern door, “as

it is off the city public sidewalk and [he] would receive a ticket if [he] did not

shovel.” According to Lane, the walk leading to the northern door was shoveled

on the day that Kummet and Dieckman performed the “knock and talk.” Lane

further averred that his mail is delivered to the residence’s northern door; that

visitors and solicitors (if any) use that door; and that if anyone had asked him how

to knock at his door, he would have directed them to the northern door. Lane’s

affidavit states, “It was my intent [to], and I believe that I did, make clear to any

reasonable person visiting my home that the shoveled front steps, off the city

sidewalk, where the house number, my name, and the mailbox [were] located was

the primary entrance.”

¶28 Unlike the northern door of his residence, Lane averred that the

southern door leading into the breezeway is “not directly off of any public

sidewalk or road.” Lane further averred that one of the reasons he installed a

fence around the yard on the south side of his residence was for “privacy.” He

averred that he kept the fence’s gate latched “to discourage or deter people from

entering”; that he kept a padlock on the gate that was locked when he was not

home; and that when he was home, he did not lock the padlock but left it “hanging

on the gate/latch to show [his] intent that this was a private area.”

¶29 Lane also averred that there is a functional door leading into the

breezeway of his home, which was closed at the time Kummet and Dieckman

approached his residence to perform the “knock and talk.” Lane averred that there

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No. 2024AP998

is a padlock on the breezeway’s door, which he keeps unlocked when he is home

so that he can exit in the event of an emergency, “[b]ut [the padlock] hangs there

so others will see [that the breezeway] is not open to the public.” Lane further

averred that he stores personal property in the breezeway and that he “fully

intended that people would not pass that southern-most doorway, open or closed.”

¶30 The aforementioned facts, if accepted as true, would support a

determination that Kummet and Dieckman did not have an implicit license to enter

the breezeway to knock on the door of Lane’s home because a private citizen—

such as a Girl Scout or trick-or-treater—would not have had a license to do so

under these circumstances. As Lane aptly explains, accepting his version of the

facts as true,

Would a Girl Scout approaching Mr. Lane’s house to sell

cookies bypass the front door, off the public sidewalk, with

the house number and mailbox, and go around to the

backyard, through the latched gate and fence with a

padlock hanging there, open the closed breezeway door,

also with a padlock hanging there, cross through the

breezeway and then knock on that door? The answer is

clearly, and objectively, no.

¶31 Absent an implicit license to enter the curtilage of Lane’s home—

i.e., the breezeway—to knock on Lane’s door, Kummet and Dieckman’s

warrantless entry into the curtilage violated Lane’s rights under the Fourth

Amendment. Consequently, “the facts, taken in the light most favorable to [Lane],

make out a violation of a constitutional right.” See Gibbs, 755 F.3d at 537

(citation omitted).

¶32 Turning to the second prong of the qualified immunity analysis, the

factual disputes outlined above also preclude a determination, as a matter of law,

as to whether the constitutional right at issue was “was clearly established at the

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time of the alleged violation.” See id. (citation omitted); see also Penterman v.

Wisconsin Elec. Power Co., 211 Wis. 2d 458, 471, 565 N.W.2d 521 (1997)

(explaining that, for purposes of the second prong of the qualified immunity

analysis, “the test is whether the law was clear in relation to the specific facts

confronting the defendant at the time of his action”). We agree with Lane that at

the time of Kummet and Dieckman’s actions in this case, the limits of a

permissible “knock and talk” were well established pursuant to Jardines, which

clearly required Kummet and Dieckman to “restrict their movements on private

property to those places where visitors could be expected to go.” See Jardines,

569 U.S. at 8. Due to the factual disputes summarized above, it is impossible to

determine, at present, whether the breezeway constituted an area where visitors

could be expected to go. These factual disputes must therefore be resolved before

a determination on the second prong of the qualified immunity analysis can be

made.5

¶33 In support of their argument that the constitutional right at issue in

this case was not clearly established at the time of the alleged violation, Kummet

and Dieckman rely primarily on Alvarez v. Montgomery County, 147 F.3d 354

(4th Cir. 1998). There, law enforcement arrived at the Alvarezes’ home to

investigate a complaint regarding an underage drinking party. Id. at 356-57. As

one officer approached the front door of the home, another officer noticed a sign

affixed to a lamppost in the driveway that read “Party In Back,” with an arrow

5

Kummet and Dieckman assert that Lane has cited “no case that would have clearly

established that [Kummet and Dieckman’s] conduct on the night in question … violated [Lane’s]

Fourth Amendment rights.” We disagree, as Lane has cited Florida v. Jardines, 569 U.S. 1

(2013), which clearly established the bounds of a permissible “knock and talk.” The issue of

whether Kummet and Dieckman’s conduct fell within those bounds cannot be resolved on the

existing record, due to the material factual disputes summarized above.

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pointing toward the backyard. Id. at 357. The officers then entered the backyard,

without knocking on the home’s front door, and found evidence of underage

drinking, which led to the issuance of a citation against the Alvarezes’ son. Id. at

357.

¶34 The Alvarezes sued the officers, asserting that their warrantless entry

into the Alvarezes’ backyard violated the Fourth Amendment. Id. On appeal, the

United States Court of Appeals for the Fourth Circuit rejected the Alvarezes’

proposed rule “requiring police under all circumstances to knock at the front door

before attempting to contact the occupant elsewhere on the premises.” Id. at 358.

The court explained that reasonableness is the touchstone of a Fourth Amendment

analysis, and “[i]n line with this reasonableness approach, this circuit has

permitted law enforcement officers to enter a person’s backyard without a warrant

when they have a legitimate law enforcement purpose for doing so.” Id. The

court then determined that the officers’ entry into the Alvarezes’ backyard was

reasonable because they had a legitimate law enforcement purpose for

approaching the residence—i.e., investigating a complaint regarding an underage

drinking party—and “in light of the sign reading ‘Party In Back’ with an arrow

pointing toward the backyard, it surely was reasonable for the officers to proceed

there directly as part of their effort to speak with the party’s host.” Id. at 358-59.

¶35 Kummet and Dieckman assert that like the officers in Alvarez, they

had a legitimate law enforcement purpose for entering Lane’s property—namely,

investigating reports that Lane had been growing and distributing marijuana.

Thus, Kummet and Dieckman contend that it was not clearly established at the

time of the entry that their actions violated the Fourth Amendment.

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¶36 We reject this argument because Alvarez is materially

distinguishable from the instant case in at least two ways. First, in Alvarez, the

court concluded that it was reasonable for the officers to enter the Alvarezes’

backyard without first knocking on the front door based, in part, on the sign

reading “Party In Back” with an arrow pointing toward the backyard. No similar

sign was present in this case directing visitors into Lane’s backyard or breezeway.

Second, Alvarez involved an entry into a home’s backyard, not an entry into an

enclosed breezeway attached to a home. Nothing in Alvarez would have

supported a reasonable belief by Kummet and Dieckman that they could enter

Lane’s breezeway, as opposed to his backyard, without a warrant simply because

they had a legitimate law enforcement purpose for doing so. See Chan v.

Wodnicki, 123 F.3d 1005, 1008 (7th Cir. 1997) (explaining that an official is

entitled to qualified immunity “if, at the time he acted, he reasonably could have

determined that his actions did not violate clearly established law”).

¶37 Citing Wilson, Kummet and Dieckman also note that “the Fourth

Amendment is not implicated ‘when officers go to the back door reasonably

believing it is used as a principal entrance to the dwelling.’” Wilson, 404 Wis. 2d

623, ¶28 (citation omitted). Kummet and Dieckman then assert that “[t]he record

is replete with support for [their] reasonable belief that Lane’s southern door was

used as a principal entrance to his residence.” This argument, however, rests

entirely on Kummet and Dieckman’s averments regarding the factual

circumstances surrounding their entry into the breezeway, and it completely

ignores the material factual disputes summarized above. In light of those factual

disputes, this court cannot determine, as a matter of law, whether it was reasonable

17

No. 2024AP998

for Kummet and Dieckman to believe that the southern door leading into the

breezeway was the principal entrance to Lane’s residence.6

¶38 Finally, Kummet and Dieckman assert that “whether a public official

is entitled to qualified immunity is a question of law for the court—not a

determination of fact for the jury.” Accordingly, Kummet and Dieckman contend

that “this Court (or the Circuit Court on remand) is to decide the question of

whether [Kummet and Dieckman] are entitled to qualified immunity based on the

undisputed facts.” As discussed above, however, the material facts are disputed,

which prevents either this court or the circuit court from determining, as a matter

of law, whether Kummet and Dieckman are entitled to qualified immunity. As

already noted, if there are disputed material facts on which the issue of qualified

immunity turns, then “the case [must] proceed to trial on that and other issues.”

See Baxter, 165 Wis. 2d at 311; see also Burkes, 185 Wis. 2d at 329.

¶39 For these reasons, we affirm the circuit court’s order denying

Kummet and Dieckman summary judgment on the issue of qualified immunity

with respect to Lane’s § 1983 claim. We remand this matter to the circuit court

for further proceedings consistent with this opinion.

6

Kummet and Dieckman assert that any factual disputes are not “material” because

“determining whether [Kummet and Dieckman] are entitled to qualified immunity hinges on what

[they] reasonably believed at the time—even if those reasonable beliefs were mistaken.”

(Formatting altered.) However, determining the reasonableness of Kummet and Dieckman’s

alleged belief that the southern door was the main entrance to Lane’s residence requires the

resolution of factual disputes, such as whether the walkway leading to the northern door was

shoveled and whether the door to the breezeway was closed and/or functional.

18

No. 2024AP998

By the Court.—Order affirmed and cause remanded for further

proceedings.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.

19