The core Fourth Amendment protection is the right to be secure in one’s home. Thus, warrantless searches and seizures, including arrest, inside a home are presumed unreasonable. Law enforcement officers must have consent or exigent circumstances to enter a home without a warrant to effectuate an arrest. In Milbeck v. George, the Seventh Circuit found there was probable cause supporting Ryan Milbeck’s (“Milbeck” or “Plaintiff”) arrest, but that this did not warrant dismissal of Milbeck’s claim of warrantless entry.

Background

In July 2020, Milbeck was arrested by two officers of the Village of Rothschild (the “Village”) Police Department (the “Police Department”) at his home. He was transported from Marathon County to Kenosha County and charged with stalking, which was later voluntarily dismissed by the prosecutor.

Leading up to his arrest, Milbeck’s ex-wife, Kendra, informed the Kenosha County Sheriff’s Department (the “Sherrif’s Department”) that Milbeck was violating a restraining order. Kendra provided records of attempted hacking tracing back to the former marital home in the Village and expressed to Detective Allison George that she feared he was attempting to learn her new address. Milbeck previously threatened to kill Kendra.

Detective George contacted the Police Department, whose officers spoke with Milbeck. He denied the attempted hacking. Detective George requested to file stalking charges, and the Police Department stated they required a warrant to place Milbeck under arrest. Detective George indicated she placed a “temporary felony warrant” for Milbeck.

In Wisconsin, a “temporary felony want” is akin to a “wanted” poster and is used when officers believe there is sufficient information to support a warrant, but no warrant has been issued yet. State v. Subdiaz-Osorio, 849 N.W.2d 748, 755 n.8 (Wis. 2014). However, Wisconsin officers often use “temporary felony warrant” and “temporary felony want” interchangeably.

After these events, Milbeck sued under Section 1983 and claimed: (1) he was arrested with a defective warrant; (2) the officers entered his home unlawfully; (3) he was falsely arrested; (4) and falsely imprisoned. He also sued supervisors in the Police Department and Sheriff’s Department for municipal liability and failure to train, as well as a claim against all defendants for malicious prosecution.

District’s Dismissal

The Western District of Wisconsin (the “District Court”) found no claims were plausibly alleged under Rule 12(b)(6) and dismissed the case. The District Court treated the claims of defective warrant, unlawful entry, false arrest, and false imprisonment as duplicative of the Fourth Amendment claims of false arrest and imprisonment. False arrest and imprisonment allegations are defeated by probable cause, even at the pleading stage. Probable cause was evident from the pleadings and the exhibits attached to Plaintiff’s Complaint, serving to bar the false arrest and imprisonment claims. The District Court extended the dismissal to the remaining claims based on probable cause.

Seventh Circuit Appeal

On appeal, the Seventh Circuit disagreed with the decision to treat certain claims as duplicative. While recognizing the false arrest and imprisonment claims relied on the same operative facts and same injury as the unlawful warrantless entry claim, the Seventh Circuit stated, “unlawful entry pursuant to a defective or non-existent warrant is an actionable wrong distinct from an allegedly unlawful arrest.” Milbeck v. George, No. 25-1061, at pg. 6 (7th Cir., Mar. 30, 2026).

With Fourth Amendment principles in mind, the Seventh Circuit found the warrantless entry claim was plausibly alleged. Milbeck asserted Detective George informed the Police Department she had a “temporary warrant,” which did not meet the Fourth Amendment requirements for an arrest warrant.  Milbeck alleged he was arrested in his home without a valid warrant and absent consent or exigent circumstances.

The Seventh Circuit also found the Monell claims were sufficiently pled against the Village and Kenosha County for purportedly failing to train officers on the constitutional limits of home entry and discerning the difference between a police-issued temporary felony “want” and a judge-issued warrant.

Probable cause did justify dismissal of the unlawful arrest, false imprisonment, and malicious prosecution claims. As a result, the case was affirmed in part, vacated in part, and remanded.

Key Takeaways

                When collaborating across law enforcement agencies, communication is key. Agencies should carefully review information received from other law enforcement agencies to ensure all protocols are met. Prior to effectuating an arrest inside a person’s home, officers should consider:

• Whether an exigent circumstance permits entry without an arrest warrant
• Whether there is consent from an authorized person, like the homeowner, to enter the home
• If a warrant is issued, whether it was issued by a neutral and detached magistrate with a supporting affidavit to establish probable cause and describing the person to be arrested. Note: The magistrate should be a judicial judge, creating a judicial warrant, as opposed to an administrative judge issuing an administrative warrant.

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