2016 WI 3
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP857-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Brett W. Dumstrey,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 359 Wis. 2d 624, 859 N.W.2d 138)
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 5
OPINION FILED: January 15, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 8, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Donald J. Hassin, Jr.
JUSTICES:
CONCURRED: PROSSER, GABLEMAN, J.J., concur. (Opinion Filed)
DISSENTED: A.W. BRADLEY, ABRAHAMSON, J.J., dissent.
(Opinion Filed)
NOT PARTICIPATING: R.G. Bradley, J., did not participate.
ATTORNEYS:
For the defendant-appellant-petition, there were briefs by
Anthony B. Cotton and Jeffrey J. Szczewski, and Kuchler &
Cotton, S.C., Waukesha, and oral argument by Anthony B. Cotton.
For the plaintiff-respondent, the cause was argued by David
H. Perlman, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
2016 WI 3
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP857-CR
(L.C. No. 2012CT508)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JAN 15, 2016
Brett W. Dumstrey, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review a
published decision of the court of appeals,1 which affirmed the
Waukesha County Circuit Court's2 denial of defendant Brett
Dumstrey's (Dumstrey) motion to suppress evidence acquired after
a stop and subsequent arrest. Dumstrey's motion challenged the
legality of the stop and subsequent arrest on Fourth Amendment
grounds.
1
State v. Dumstrey, 2015 WI App 5, 359 Wis. 2d 624, 859
N.W.2d 138.
2
The Honorable Donald J. Hassin, Jr. of Waukesha County
presided.
No. 2013AP857-CR
¶2 After being followed by police for erratic driving,
Dumstrey drove inside of the parking garage underneath his
apartment building, where he was stopped by police and
subsequently arrested for operating while intoxicated (OWI),
contrary to Wis. Stat. § 346.63(1)(a) (2013-14).3 Dumstrey does
not challenge the fact that police had reasonable suspicion to
stop him. However, he argues that the officers' conduct
violated the Fourth Amendment's prohibition against unreasonable
searches and seizures because it occurred during a warrantless
entry into a constitutionally protected area, curtilage of his
home.
¶3 Therefore, the central question before us is whether
the parking garage underneath the apartment building constitutes
curtilage of Dumstrey's home such that it is protected by the
Fourth Amendment. We also consider whether Dumstrey has shown a
reasonable expectation of privacy in the parking garage, thereby
warranting Fourth Amendment protections.
¶4 We conclude that the parking garage underneath this
apartment building does not constitute curtilage of Dumstrey's
home. We further conclude that Dumstrey has shown no reasonable
expectation of privacy in the garage. Consequently, Dumstrey's
stop and subsequent arrest in the garage did not violate the
Fourth Amendment's prohibition against unreasonable seizures.
Stated otherwise, the seizure did not occur after a warrantless
3
All further references to the Wisconsin Statutes are to
the 2013-14 version, unless otherwise indicated.
2
No. 2013AP857-CR
entry into a constitutionally protected area. Accordingly, we
affirm the decision of the court of appeals.
I. BACKGROUND
¶5 On the night of Friday, April 20, 2012, Officer
DeJarlais, of the City of Waukesha Police Department, was off
duty and was wearing plain clothes while operating his unmarked,
personal vehicle. At approximately 10:30 p.m., Officer
DeJarlais observed a vehicle, later determined to be driven by
Dumstrey, pass him at a high rate of speed and then begin
tailgating another vehicle. Officer DeJarlais subsequently
passed both of these vehicles, at which point Dumstrey
accelerated and began tailgating Officer DeJarlais. Dumstrey
continued speeding and changing lanes, and at one point, he was
straddling both lanes.
¶6 After watching Dumstrey's vehicle for some time,
Officer DeJarlais called the police department dispatcher and
requested a squad response to a possible intoxicated driver.
Around that same time, Officer DeJarlais pulled up next to
Dumstrey at a red light, rolled down his window, and made eye
contact with him. Dumstrey likewise rolled down his window, at
which point Officer DeJarlais displayed his police badge and
photo identification card. Officer DeJarlais pointed out
Dumstrey's erratic driving and instructed him to pull over and
wait because the police were coming. Dumstrey stared back at
him with a "blank look" and "appeared to be very intoxicated."
His eyes were "sleepy looking" and "kind of glassy." After the
light turned green, Dumstrey continued to sit at the
3
No. 2013AP857-CR
intersection. When the light turned yellow, he proceeded to
drive through the intersection.
¶7 After driving through the intersection, Dumstrey
stopped in the middle of the traffic lane, and Officer DeJarlais
again pulled up next to him and told him to wait for the police.
Dumstrey continued to stare at Officer DeJarlais and then drove
off toward his apartment complex, consisting of five or six
apartment buildings. Officer DeJarlais followed Dumstrey to a
parking lot outside one of the apartment buildings where
Dumstrey continued to drive around, as though "trying to lose"
the officer. Subsequently, Dumstrey turned toward the parking
garage underneath his apartment building, raised the garage door
with his remote controlled opener, and "drove down beneath the
apartment building into the parking garage."
¶8 Officer DeJarlais followed Dumstrey and parked his
personal vehicle underneath the garage door so that the door
would not come down and lock out the police response that he had
requested. Officer DeJarlais then exited his vehicle and walked
into the parking garage, toward where Dumstrey had parked in his
assigned parking place. As Officer DeJarlais started
approaching Dumstrey's vehicle, Dumstrey exited the vehicle and
the two made contact. Officer DeJarlais instructed Dumstrey to
stay put because the police were coming. He also displayed his
police badge and photo identification, to which Dumstrey
indicated disbelief that Officer DeJarlais was actually a police
officer. Upon showing his badge and identification again,
Dumstrey finally stopped and appeared to believe Officer
4
No. 2013AP857-CR
DeJarlais. Shortly thereafter, the responding officer, Officer
Lichucki, arrived on the scene.
¶9 Officer Lichucki entered the parking garage through
the garage door under which Officer DeJarlais had parked his
vehicle. Officer Lichucki immediately made contact with
Dumstrey and began asking him investigative questions. Dumstrey
stated that he had driven home from a Milwaukee Brewers baseball
game at Miller Park and denied having consumed any alcohol.
Upon his questioning, Officer Lichucki observed that Dumstrey
was swaying back and forth and his "eyes were glassy and
somewhat bloodshot." His speech was also "slurred," and Officer
Lichucki could smell "an odor of intoxicants coming from his
person." Officer Lichucki requested that Dumstrey submit to
various field sobriety tests, all of which he refused to
perform. At that point, Officer Lichucki arrested Dumstrey for
OWI. Later, Dumstrey consented to an evidentiary blood test,
which revealed that his blood alcohol level was .178.
¶10 Dumstrey moved to suppress, challenging the legality
of the stop and subsequent arrest on the basis that his seizure
occurred after a warrantless entry, in violation of the Fourth
Amendment. At the hearing, testimony established that Dumstrey
lives in the apartment building under which the parking garage
is located. Approximately 30 tenants live in Dumstrey's
apartment building, and the parking garage has approximately 30
parking places. The residents, including Dumstrey, pay for
their assigned parking places in the garage and use the garage
only for parking rather than for storage or other uses.
5
No. 2013AP857-CR
Dumstrey testified that he can enter the parking garage only
through the remote controlled garage door or through a locked
door on the inside of the apartment building. All of the other
tenants have access to the parking garage through these same
means. In order to get from the parking garage to his home,
Dumstrey uses the building's elevator. This elevator is
likewise utilized by all other tenants.
¶11 The circuit court ultimately denied Dumstrey's motion,
and he pled guilty to OWI, second offense, in violation of Wis.
Stat. § 346.63(1)(a). The court of appeals affirmed, holding
that there was no Fourth Amendment violation because the parking
garage underneath the apartment building did not constitute
curtilage of Dumstrey's home, and he did not have a reasonable
expectation of privacy in the parking garage.4 State v.
Dumstrey, 2015 WI App 5, ¶14, 359 Wis. 2d 624, 859 N.W.2d 138.
We granted Dumstrey's petition for review.
II. STANDARD OF REVIEW
¶12 "[A] curtilage determination presents an issue of
constitutional fact," State v. Martwick, 2000 WI 5, ¶16, 231
Wis. 2d 801, 604 N.W.2d 552, as does the general question of
"whether police conduct violated the constitutional guarantee
against unreasonable searches and seizures," State v. Griffith,
2000 WI 72, ¶23, 236 Wis. 2d 48, 613 N.W.2d 72. Questions of
4
One judge dissented, indicating that he would hold that
the parking garage constituted both curtilage and an area
protected by a reasonable expectation of privacy. Dumstrey, 359
Wis. 2d 624, ¶18.
6
No. 2013AP857-CR
constitutional fact are subject to a two-step standard of
review. Id.
¶13 We uphold a circuit court's findings of historic fact
unless they are clearly erroneous. State v. Fonte, 2005 WI 77,
¶11, 281 Wis. 2d 654, 698 N.W.2d 594. A finding is clearly
erroneous if "it is against the great weight and clear
preponderance of the evidence." State v. Sykes, 2005 WI 48, ¶21
n.7, 279 Wis. 2d 742, 695 N.W.2d 277 (internal quotation marks
omitted) (quoting State v. Tomlinson, 2002 WI 91, ¶36, 254
Wis. 2d 502, 648 N.W.2d 367). We then "apply the constitutional
principles to the facts at hand to answer the question of law."
Martwick, 231 Wis. 2d 801, ¶23.
III. DISCUSSION
¶14 The Fourth Amendment of 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.
U.S. Const. amend. IV. Article 1, Section 11 of the Wisconsin
Constitution contains a substantively identical provision that
we have historically interpreted in accord with the Supreme
Court's interpretation of the Fourth Amendment. State v. Arias,
2008 WI 84, ¶20, 311 Wis. 2d 358, 752 N.W.2d 748.
¶15 "Although our legal lexicon often presents 'searches
and seizures' as an inseparable tandem, the two are
7
No. 2013AP857-CR
constitutionally and analytically distinct." Id., ¶25.
Therefore, we first determine whether Dumstrey underwent a
search or seizure for purposes of our Fourth Amendment analysis.
A. Search and Seizure
¶16 Searches affect privacy interests, such as bodily
integrity and invasion of those places that a person has
reserved for his or her individual use. See Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
Seizures, on the other hand, affect personal liberty interests
such as the freedom of movement and the possession of one's
property. See Delaware v. Prouse, 440 U.S. 648, 657 (1979).
¶17 We have recognized two types of seizure. State v.
Young, 2006 WI 98, ¶20, 294 Wis. 2d 1, 717 N.W.2d 729. First,
we have recognized the investigatory stop pursuant to Terry v.
Ohio, 392 U.S. 1 (1968). Under Terry, a police officer may,
under certain circumstances, temporarily detain a person for
purposes of investigating possible criminal behavior even though
there is not probable cause to make an arrest. Id. at 22. Such
an investigatory stop must be preceded by the officer's
reasonable suspicion that a crime has occurred, or is about to
occur. Id. at 21; State v. Houghton, 2015 WI 79, ¶30, 364
Wis. 2d 234, 868 N.W.2d 143. Second, an arrest is a seizure.
State v. Ferguson, 2009 WI 50, ¶17, 317 Wis. 2d 586, 767 N.W.2d
187. Generally, if the police have probable cause to make an
arrest, they may not need a warrant. United States v. Watson,
423 U.S. 411, 417-23 (1976).
8
No. 2013AP857-CR
¶18 Officer DeJarlais followed Dumstrey into the parking
garage in order to effectuate an investigatory stop as to
whether he was operating while intoxicated. Once inside the
garage, Officer DeJarlais stopped Dumstrey after he had exited
his vehicle, displaying his police badge and identification.
Dumstrey does not challenge whether Officer DeJarlais had
reasonable suspicion to stop him; therefore, we assume, without
deciding, that reasonable suspicion for the investigatory stop
existed. Once Officer DeJarlais stopped Dumstrey with
reasonable suspicion, Officer Lichucki questioned Dumstrey and
observed his physical characteristics, including his swaying,
slurred speech, glassy and bloodshot eyes, and the odor of
intoxicants emanating from his person. Dumstrey similarly does
not challenge whether these observations gave rise to probable
cause for his arrest; therefore, we likewise assume, without
deciding, that probable cause existed. Accordingly, we conclude
that Dumstrey was seized in the parking garage when he was
stopped and subsequently arrested for operating while
intoxicated.
¶19 We further conclude that Dumstrey was not subjected to
a search while stopped in the parking garage. Visual
observation in the context of a lawful stop "does not constitute
an independent search because it produces 'no additional
invasion of [the suspect's] privacy interest.'" State v.
Angiolo, 186 Wis. 2d 488, 497, 520 N.W.2d 923 (Ct. App. 1994)
(alteration in original) (quoting Arizona v. Hicks, 480 U.S.
321, 325 (1987)); see also United States v. Jones, __ U.S. __,
9
No. 2013AP857-CR
132 S. Ct. 945, 953 (2012) (acknowledging that "mere visual
observation does not constitute a search").
¶20 As set forth above, after Dumstrey was stopped,
Officer Lichucki arrested him based on observations of his
physical characteristics without further invading his bodily
integrity. Therefore, aside from the stop and arrest, there was
no additional invasion of Dumstrey's privacy interest.
Consequently, the officers effectuated a seizure of Dumstrey,
but no independent search occurred at that time.5
¶21 We now consider whether Dumstrey's seizure occurred
within a constitutionally protected area, thereby constituting a
warrantless entry in violation of the Fourth Amendment.
B. Garage Entry
¶22 "It is a 'basic principle of Fourth Amendment law'
that searches and seizures inside a home without a warrant are
presumptively unreasonable." Payton v. New York, 445 U.S. 573,
586 (1980). "Indeed, '[i]t is axiomatic that the physical entry
of the home is the chief evil against which the wording of the
Fourth Amendment is directed.'" State v. Richter, 2000 WI 58,
¶28, 235 Wis. 2d 524, 612 N.W.2d 29 (alteration in original)
(internal quotation marks omitted) (quoting Welsh v. Wisconsin,
5
However, after Dumstrey was arrested, a search occurred
when he consented to the blood draw at the hospital. As
Dumstrey does not challenge the blood draw on McNeely grounds,
we need not address it. Missouri v. McNeely, __ U.S. __, 133 S.
Ct. 1552 (2013) (discussing Fourth Amendment protections from
nonconsensual, warrantless blood draw).
10
No. 2013AP857-CR
466 U.S. 740, 748 (1984)). Given this heightened Fourth
Amendment protection, where police effectuate a warrantless
arrest inside of a home, the State must prove that the
warrantless entry was justified by exigent circumstances.
Ferguson, 317 Wis. 2d 586, ¶¶19-20.
¶23 "The protection provided by the Fourth Amendment to a
home also extends to the curtilage of a residence." Martwick,
231 Wis. 2d 801, ¶26; State v. Walker, 154 Wis. 2d 158, 183, 453
N.W.2d 127 (1990), abrogated, in part, on other grounds by State
v. Felix, 2012 WI 36, ¶42, 339 Wis. 2d 670, 811 N.W.2d 775.
"[T]he curtilage is the area to which extends the intimate
activity associated with the sanctity of a [person's] home and
the privacies of life and therefore has been considered part of
[the] home itself for Fourth Amendment purposes." Oliver v.
United States, 466 U.S. 170, 180 (1984) (internal quotation
marks and citation omitted). The Fourth Amendment's protection
against warrantless entry for arrest also has been reasoned to
extend to places where the person "has a legitimate expectation
of privacy in the invaded place." Minnesota v. Olson, 495 U.S.
91, 95 (1990) (internal quotation marks and citation omitted);
United States v. Gooch, 6 F.3d 673, 676-77 (9th Cir. 1993)
(recognizing reasonable expectation of privacy in a tent located
on public campgrounds such that warrantless arrest of inhabitant
requires exigent circumstances). We consider both
constitutional contentions in turn.
11
No. 2013AP857-CR
1. Curtilage
¶24 Prior to undertaking a case specific curtilage
analysis, however, it is necessary to first discuss existing
Wisconsin and Supreme Court law with respect to the Fourth
Amendment's protection of a home's curtilage. Dumstrey points
us to Conrad v. State, 63 Wis. 2d 616, 633, 218 N.W.2d 252
(1974), in support of the proposition that common space in the
basement of an apartment building is "clearly within the
curtilage" of the home. In Conrad, we considered whether the
police conducted an unconstitutional search when they excavated
a dead body approximately 450 feet from the defendant's house on
his 40 acre farm. Id. at 620-21. We rejected any trespassory,
curtilage analysis in favor of a reasonable expectation analysis
and held that there was no unconstitutional search because the
defendant harbored no reasonable expectation of privacy in the
area of his property in question. Id. at 633-34.
¶25 In so holding, we relied on the Supreme Court's Katz
decision, wherein the Court held that a search need not result
from a physical trespass in order to be unreasonable under the
Fourth Amendment. Katz, 389 U.S. at 352. Rather, a search may
be unconstitutional in an area where a person holds a reasonable
expectation of privacy. Id. at 352-53, 360-61 (Harlan, J.,
concurring).
¶26 We stated in Conrad that "[t]he importance of Katz is
. . . that it foretold the possibility that, even in a place
traditionally thought to be an area protected by the [F]ourth
[A]mendment, protection would not be afforded in the absence of
12
No. 2013AP857-CR
a subjective intent to exercise a reasonable expectation of
privacy." Conrad, 63 Wis. 2d at 627. Based on this
proposition, we stated that Katz modified the previous curtilage
analysis and effectively held that there could be no
unconstitutional search of curtilage unless the defendant also
held a reasonable expectation of privacy in that same area. Id.
at 630-31. As further support for this proposition, we cited a
previous opinion, Watkins v. State, 59 Wis. 2d 514, 208 N.W.2d
449 (1973) (per curiam), wherein we held that a warrantless
search of a storage room in the basement of an apartment
building did not violate the Fourth Amendment. Id. at 514-15.
In Watkins, we did not relate a curtilage analysis but, rather,
held that the defendant harbored no reasonable expectation of
privacy in the area. Id.
¶27 In Conrad, we reasoned that the Katz test limited the
curtilage test. We said,
[I]t appears that the rule of Katz, as explained by
Wattenburg, is an explication or modification based on
present-day concepts of the ancient curtilage test.
It is also a limitation of it. Under the strict
curtilage test, the subjective element of a reasonable
expectation of privacy was omitted. There was, in
effect, a legal presumption that all within the
curtilage was protected.
Conrad, 63 Wis. 2d at 630. Conrad was a search case.
¶28 Recently, however, the Supreme Court has clarified
that "Fourth Amendment rights do not rise or fall with the Katz
formulation." Jones, 132 S. Ct. at 950. Rather, "the Katz
reasonable-expectation-of-privacy test has been added to, not
13
No. 2013AP857-CR
substituted for, the common-law trespassory test." Id. at 952.
Like Conrad, Jones is a search case.
¶29 In Florida v. Jardines, __ U.S. __, 133 S. Ct. 1409
(2013), another search case, the Supreme Court confirmed that
the curtilage of a person's home remains a constitutionally
protected area without consideration of whether a reasonable
expectation of privacy exists. There, the Court held that the
front porch of a home constitutes curtilage and that officers
executed an unconstitutional search when they conducted a
trespassory dog sniff on that constitutionally protected area.
Id. at 1415-17. In so holding, the Court harkened back to the
reasoning behind the Fourth Amendment's heightened protection of
the home, stating that at its "very core stands the right of a
[person] to retreat into his [or her] own home and there be free
from unreasonable governmental intrusion." Id. at 1414
(internal quotation marks omitted) (quoting Silverman v. United
States, 365 U.S. 505, 511 (1961)).
¶30 Given the Supreme Court's recent emphasis on the
distinction between the trespassory, curtilage analysis and the
reasonable expectation analysis, we conclude that our statements
in Conrad, 63 Wis. 2d at 627, 630-31, may be read as
inconsistent with that distinction.6 However, if we are to
6
Similarly, in State v. Martwick, 2000 WI 5, ¶31 n.13, 231
Wis. 2d 801, 604 N.W.2d 552, we stated that "the privacy issue
is interwoven with the curtilage determination and need not be
considered separately." While it may be true that the two
inquiries sometimes overlap, this approach may not accurately
relate the current state of the law.
14
No. 2013AP857-CR
employ the same trespassory, curtilage analysis to a seizure as
has been applied to a search, we must consider separate and
distinct from a reasonable expectation of privacy whether the
area in question is constitutionally protected curtilage.
¶31 We previously have conducted a curtilage analysis to
determine whether an arrest occurring within curtilage of a home
violates the Fourth Amendment's protection against warrantless
entry. Walker, 154 Wis. 2d at 182. In Walker, police entered a
resident's fenced-in backyard without a warrant in order to
arrest him. Id. In determining whether the arrest was lawful,
we stated:
Read together, Payton and Oliver require that
police obtain a warrant before entering either the
home or its curtilage to make an arrest absent
probable cause and exigent circumstances. Under
Payton and Oliver, therefore, absent probable cause
and exigent circumstances, [the defendant]'s
warrantless arrest, although not occurring in his
home, was unlawful if his fenced-in backyard falls
within the curtilage of his home.
Id. at 183. We went on to conclude that the fenced-in backyard
constituted curtilage of the home, thereby warranting the Fourth
Amendment's protection against warrantless entry for arrest.
Id. at 184. Other states and federal courts are in accord with
this approach, holding that an arrest occurring outside of the
home may be unlawful depending upon the nature of the area in
question. See, e.g., United States v. Struckman, 603 F.3d 731,
739 (9th Cir. 2010) (recognizing that curtilage garners the
home's protection against warrantless entry for arrest); United
States v. Brown, 510 F.3d 57, 64 (1st Cir. 2007) (conducting
15
No. 2013AP857-CR
curtilage analysis with respect to driveway and noting the
principles applicable to driveways when determining whether
resident was arrested in violation of protection against
warrantless entry); State v. Lewis, 675 N.W.2d 516, 523-26 (Iowa
2004) (conducting curtilage analysis for an unsecured driveway
in determining whether defendant was arrested in violation of
Fourth Amendment's protection against warrantless entry); State
v. Karle, 759 N.E.2d 815, 819-20 (Ohio Ct. App. 2001) (holding
that arrest "immediately outside" of defendant's house violated
Fourth Amendment); Jefferson v. Commonwealth, 497 S.E.2d 474,
480-81 (Va. Ct. App. 1998) (holding that arrest by the back door
of defendant's house was unlawful); State v. Mierz, 866 P.2d 65,
70-71 (Wash. Ct. App. 1994) (holding that arrest in backyard
violated Fourth Amendment).7 We now turn to the discussion of
7
We recognize that there may be an eventual difficulty in
reconciling the notion that curtilage is afforded the same
protections as the home against warrantless entry for arrest
with the Supreme Court's holding in United States v. Santana,
427 U.S. 38 (1976). In Santana, the resident of a home was
initially seen by police while standing in the doorway of her
home, which the Court characterized as a "public place" because
she was "exposed to public view, speech, hearing, and touch as
if she had been standing completely outside her house." Id. at
42. The police had probable cause to arrest the resident prior
to seeing her in the doorway and began to approach her, at which
time she "retreated into the vestibule of her house." Id. at
40. The police followed the resident into her house and
arrested her. Id. at 40-41. The Court held that, since the
police initially saw the resident standing in a "public place"
and then hotly pursued her into the home, the in-home arrest was
justified by exigent circumstances. Id. at 42-43. Santana is a
seizure case.
(continued)
16
No. 2013AP857-CR
whether the parking garage constitutes curtilage of Dumstrey's
home.
¶32 We previously have adopted four factors set forth by
the Supreme Court, United States v. Dunn, 480 U.S. 294, 301
(1987), relevant to conducting an analysis of whether an area
constitutes curtilage of a home. We consider (1) "the proximity
of the area claimed to be curtilage to the home"; (2) "whether
the area is included within an enclosure surrounding the home";
(3) "the nature of the uses to which the area is put[;] and" (4)
"the steps taken by the resident to protect the area from
observation by people passing by." Martwick, 231 Wis. 2d 801,
¶30 (quoting Dunn, 480 U.S. at 301). However, we do not
"mechanically" apply these factors as part of a "finely tuned
formula." Dunn, 480 U.S. at 301. Instead, the factors "are
useful analytical tools only to the degree that, in any given
In spite of the Supreme Court's characterization of the
front doorway as a "public place" without any reference to
curtilage, the Supreme Court also has stated that the front
porch is the "classic exemplar" of a home's curtilage. Florida
v. Jardines, __ U.S. __, 133 S. Ct. 1409, 1415 (2013). Jardines
is a search case. This causes us to wonder whether there may be
instances in which an area constitutes constitutionally
protected curtilage for one purpose, such as a warrantless
search, while not for another purpose, such as a warrantless
arrest.
While we note this interesting dichotomy and recognize that
there may be potential difficulty in reconciling Walker's
protection against warrantless arrest on curtilage with Santana,
see State v. Walker, 154 Wis. 2d 158, 184 n.16, 453 N.W.2d 127
(1990), Dumstrey's case does not present the proper factual
scenario for us to define these specific contours today.
17
No. 2013AP857-CR
case, they bear upon the centrally relevant consideration—
whether the area in question is so intimately tied to the home
itself that it should be placed under the home's 'umbrella' of
Fourth Amendment protection." Id.
¶33 As indicated above, Dumstrey relies on our passing
statement in Conrad that the common storage area in an apartment
building's basement was "clearly within the curtilage" of the
home. Conrad, 63 Wis. 2d at 633. We are not persuaded.
Notably, the apartment's common storage area was not at issue in
Conrad. See generally Conrad, 63 Wis. 2d 616. Rather, we held
in Watkins that such an area was not protected given the lack of
a reasonable expectation of privacy. Watkins, 59 Wis. 2d at
514-15. In Conrad, we engaged in no analysis of why such an
area would "clearly" constitute curtilage. See Conrad, 63
Wis. 2d at 633. Additionally, it is important to note that this
statement in Conrad was prior to the Supreme Count's delineation
of the Dunn factors. Therefore, we decline to rely upon this
passing remark in Conrad to support the proposition that a
common area beneath an apartment building constitutes curtilage
of the home. Rather, we consider the Dunn factors as set forth
by the Supreme Court.
a. proximity to the home
¶34 First, we look to the proximity of the parking garage
to Dumstrey's home. The United States Court of Appeals for the
First Circuit has held that, in an apartment building, "a
tenant's [home] cannot reasonably be said to extend beyond his
[or her] own apartment and perhaps any separate areas subject to
18
No. 2013AP857-CR
his [or her] exclusive control." United States v. Cruz Pagan,
537 F.2d 554, 558 (1st Cir. 1976). We tend to agree.
¶35 It is important to distinguish between the apartment
building and Dumstrey's actual home. While the parking garage
is located directly beneath the entire apartment building, it
does not follow that it is therefore closely proximate to
Dumstrey's home. His home cannot reasonably be said to
constitute the entire apartment building. Rather, Dumstrey
occupies only one of the 30 units located within the building.
This is a far cry from a single family home's attached garage,
which courts have consistently held constitutes curtilage. See
State v. Davis, 2011 WI App 74, ¶12, 333 Wis. 2d 490, 798 N.W.2d
902 (collecting cases and citing State v. Leutenegger, 2004 WI
App 127, ¶21 n.5, 275 Wis. 2d 512, 685 N.W.2d 536 (recognizing
that cases consistently "hold that an attached garage is part of
the curtilage")).
¶36 In such cases, the garage is quite literally attached
to the resident's home itself. For example, in Davis, 333
Wis. 2d 490, ¶3, the garage was attached to the resident's
single family trailer home by a connecting foyer. The court of
appeals accepted the garage's characterization as curtilage, and
noted that "[t]he extent of the curtilage depends upon the
nature of the premises, and might be interpreted more liberally
in the case of a rural single-owner home, as opposed to an urban
apartment." Id., ¶9; see also State v. O'Brien, 223 Wis. 2d
303, 316, 588 N.W.2d 8 (1999) (acknowledging importance of rural
19
No. 2013AP857-CR
setting in determining that car parked 200 feet away from home
was located on curtilage).
¶37 In Dumstrey's case, the garage is not similarly
attached to his home itself but, rather, his home could be
located anywhere within the entire 30-unit apartment building.
Dumstrey takes an elevator from the parking garage, potentially
up several levels, to gain access to the floor on which his home
is located. We do not consider this to be closely proximate for
Fourth Amendment purposes. Surely, his 29 fellow tenants would
not consider their individual apartments to be a part of
Dumstrey's home, and Dumstrey could not reasonably contend
otherwise.
b. enclosure surrounding the home
¶38 Second, we consider whether the parking garage is
included within an enclosure that also surrounds Dumstrey's
home. According to testimony, the parking garage is located
within the same overall structure as the apartment building in
which Dumstrey's home is located. Tenants may gain direct
access to the parking garage through a door located within the
apartment building. From there, tenants have access to an
elevator that allows them more convenient entry to their
individual homes.
¶39 That the parking garage is included within the
enclosure of the entire apartment building could tend to favor
the garage being part of his home's curtilage. However, we note
that, under this same rationale, Dumstrey's 29 fellow tenants'
apartments are likewise included within the same enclosure as
20
No. 2013AP857-CR
his own apartment. As indicated above, it cannot reasonably be
contended that each of these tenants' homes constitutes part of
Dumstrey's home for purposes of the Fourth Amendment.
Therefore, we are not persuaded by the parking garage being
included within the overall enclosure that encompasses the
entire apartment building.
c. nature of use
¶40 Next, we look to the nature of the uses to which
Dumstrey puts the parking garage. The overall curtilage inquiry
is directed at protecting "the area to which extends the
intimate activity associated with the sanctity of a [person's]
home and the privacies of life." Oliver, 466 U.S. at 180
(internal quotation marks and citation omitted).
¶41 Dumstrey relies on the dissent from the court of
appeals decision, suggesting that he utilizes the parking garage
in the same manner as other Wisconsinites use attached garages
on their single family homes. Dumstrey, 359 Wis. 2d 624, ¶23
(Reilly, J., dissenting). Namely, Dumstrey parks his car in the
parking garage in order to be free from the elements, including
frigid winters. Id. The dissent from the court of appeals
characterizes this use as one associated with the "privacies of
life." Id. However, to the contrary, courts seem
overwhelmingly to hold that parking alone constitutes a use
associated with neither an intimate activity of the home nor a
privacy of life. See, e.g., Mack v. City of Abilene, 461 F.3d
547 (5th Cir. 2006) (collecting cases and indicating that common
parking area is not a use associated with curtilage of home);
21
No. 2013AP857-CR
Commonwealth v. McCarthy, 705 N.E.2d 1110 (Mass. 1999) (noting
that regular and intended use for tenant parking does not give
rise to curtilage designation); State v. Harnisch, 931 P.2d
1359, 1364 (Nev. 1997) (holding that parking in designated
parking space open to view does not constitute "'intimate
activities of the home' or the 'privacies of [] life'"),
disapproved of on other grounds by State v. Lloyd, 312 P.3d 467
(Nev. 2013); State v. Williford, 767 S.E.2d 139, 142-43 (N.C.
Ct. App. 2015) (collecting parking lot cases).
¶42 The uncontroverted testimony establishes that Dumstrey
utilizes the parking garage solely for parking his vehicle. He
puts the area to no other use such as storing personal
belongings in an exclusively controlled area or conducting other
personal activities such as we would equate with a garage
attached to a single family home. While we conclude that
Dumstrey's use does not warrant curtilage designation, we do not
foreclose the possibility that some additional use of a somewhat
comparable garage could constitute a use associated with
intimate activity of the home or privacy of life.
d. protection from observation
¶43 Finally, we look to the steps Dumstrey has taken to
protect the parking garage from observation by passersby within
the garage. Dumstrey asserts that the entire parking garage is
generally not open to the public since it is enclosed and
accessible only through either the remote controlled garage door
or the locked door on the inside of the apartment building. He
contends that, since he pays for his assigned parking place in
22
No. 2013AP857-CR
the garage, he has taken affirmative steps to protect the area
from observation by people passing by the apartment building and
enclosed garage.
¶44 The relevant inquiry, however, is not whether the
parking garage is generally shielded from the public at large.
Rather, we are concerned with whether Dumstrey has taken steps
to shield the parking area from the view of passersby within the
parking garage. As the Supreme Court of Massachusetts has noted
with respect to an apartment building's enclosed parking area,
"it is an enclosure encompassing a common area utilized by all
the tenants and visitors of the building." McCarthy, 705 N.E.2d
at 1113. In holding that such an enclosed parking area did not
constitute curtilage of the home, the court noted that there was
nothing preventing anyone entering the lot from observing the
individual parking places. Id. Therefore, no steps were taken
to protect the vehicle or the parking place from observation.
See id.
¶45 Similarly, all of Dumstrey's 29 fellow tenants and
their guests are free to enter the parking garage. Upon their
entrance, Dumstrey cannot prevent such individuals from
observing the parking area within the interior of the parking
garage. Each day, countless tenants are not only free to, but
are required to, pass through the parking garage in order to get
from their own vehicles to the elevator to access their homes.
Of course, this is in addition to any visitors of the 29 other
tenants or of the landlord. Consequently, Dumstrey has simply
23
No. 2013AP857-CR
taken no steps to protect the parking garage from observation by
passersby within the garage.
¶46 The foregoing factors do not weigh in favor of
curtilage designation. Accordingly, we conclude that the
parking garage is not so intimately tied to Dumstrey's home that
it warrants Fourth Amendment protection as curtilage of his
home. We now proceed to determine whether Dumstrey harbors a
reasonable expectation of privacy in the parking garage for some
other reason, such that it warrants Fourth Amendment protection
against warrantless entry for arrest. See Olson, 495 U.S. at
95.
2. Reasonable expectation of privacy
¶47 To make this determination, we consider two questions:
(1) whether the person exhibits an actual, subjective
expectation of privacy in the area; and (2) whether society is
willing to recognize such an expectation as reasonable. Smith
v. Maryland, 442 U.S. 735, 740 (1979); State v. Rewolinski, 159
Wis. 2d 1, 13, 464 N.W.2d 401 (1990); State v. Eskridge, 2002 WI
App 158, ¶11, 256 Wis. 2d 314, 647 N.W.2d 434. The ultimate
inquiry depends on the totality of circumstances. Rewolinski,
159 Wis. 2d at 17. In answering these questions, we have
identified six factors as relevant: "(1) whether the defendant
had a property interest in the premises; (2) whether he [or she]
was legitimately (lawfully) on the premises; (3) whether he [or
she] had complete dominion and control and the right to exclude
others; (4) whether he [or she] took precautions customarily
taken by those seeking privacy; (5) whether he [or she] put the
24
No. 2013AP857-CR
property to some private use; and (6) whether the claim of
privacy is consistent with historical notions of privacy." Id.
at 17-18; Eskridge, 256 Wis. 2d 314, ¶15.
¶48 We are satisfied that the first two factors cut in
favor of Dumstrey's reasonable expectation of privacy.
Specifically, Dumstrey has a personal property interest in his
parking place in the garage because he lives in the apartment
building and pays for his assigned parking location. There is
likewise no dispute over whether Dumstrey was lawfully on the
premises. He opened the garage door with his remote controlled
opener and parked his vehicle in his assigned place prior to
being seized by Officer DeJarlais. The remaining factors,
however, are not similarly helpful to Dumstrey.
¶49 Dumstrey has shown no dominion and control over the
parking garage. As set forth above, he has no right to exclude
the 29 other tenants or their guests, all of whom have the same
right of access as he. This is the antithesis of dominion and
control over the premises. Moreover, while the parking garage
is shielded from the public at large, he has taken no
precautions to seek privacy within the garage from the countless
strangers that could be present daily. Additionally, Dumstrey
puts the garage to no use in addition to parking his vehicle.
With the 29 other tenants putting the garage to this same use,
Dumstrey's use can in no way be considered "private." Finally,
we are convinced that historical notions of privacy are simply
not consistent with such a large number of people having the
same right of access to the parking garage as Dumstrey himself.
25
No. 2013AP857-CR
"[C]ommon areas in apartment buildings are, by their very
definition, not private but shared areas, accessible to and used
by other tenants." Eskridge, 256 Wis. 2d 314, ¶19.
¶50 Under the totality of circumstances, we doubt that
Dumstrey harbors any actual expectation of privacy in the
parking garage, and if he does, such an expectation is surely
not reasonable. However, we do not foreclose the possibility
that a person may exhibit a reasonable expectation of privacy in
a smaller, more intimate multi-unit dwelling. See State v.
Trecroci, 2001 WI App 126, ¶40, 246 Wis. 2d 261, 630 N.W.2d 555
(distinguishing between large apartment complex and a smaller
apartment house for purposes of reasonable expectation
analysis).
IV. CONCLUSION
¶51 In light of the foregoing, we conclude that the
parking garage underneath this apartment building does not
constitute curtilage of Dumstrey's home. We further conclude
that Dumstrey has shown no reasonable expectation of privacy in
the garage. Consequently, Dumstrey's stop and subsequent arrest
in the garage did not violate the Fourth Amendment's prohibition
against unreasonable seizures. Stated otherwise, the seizure
did not occur after a warrantless entry into a constitutionally
protected area. Accordingly, we affirm the decision of the
court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
¶52 REBECCA G. BRADLEY, J., did not participate.
26
No. 2013AP857-CR.dtp
¶53 DAVID T. PROSSER, J. (concurring). The majority
opinion concludes that "the parking garage underneath this
apartment building does not constitute curtilage of Dumstrey's
home." Majority op., ¶4. I join the majority opinion in this
conclusion and agree with its analysis in reaching it. In my
view, the opinion does not preclude a different conclusion if
there were materially different facts.
¶54 The majority opinion also concludes that "Dumstrey has
shown no reasonable expectation of privacy" in this parking
garage. Id. I also join the majority opinion in this
conclusion.
¶55 I write separately because the opinion states the
central question to be "whether the parking garage underneath
the apartment building constitutes curtilage of Dumstrey's home
such that it is protected by the Fourth Amendment." Id., ¶3
(emphasis added). Implicit in this question is the principle
that police may not arrest a person on probable cause if the
person is found within the curtilage of the person's home unless
the police have an arrest warrant or there is a well-recognized
exception to the warrant requirement such as exigent
circumstances. I do not agree with a broad principle that
police may not arrest a person on probable cause when the person
is within the person's own curtilage but not within the home.
In my view, a broad principle to this effect would constitute a
serious mistake of law and an impractical hardship for law
enforcement.
1
No. 2013AP857-CR.dtp
¶56 "[W]hat the Constitution forbids is not all searches
and seizures, but unreasonable searches and seizures." Elkins
v. United States, 364 U.S. 206, 222 (1960). As the majority
recognizes, "It is a 'basic principle of Fourth Amendment law'
that searches and seizures inside a home without a warrant are
presumptively unreasonable." Majority op., ¶22 (quoting Payton
v. New York, 445 U.S. 573, 586 (1980)). "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) (quoting United States v.
United States District Court, 407 U.S. 297, 313 (1972)).
¶57 In State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127
(1990), our court extended the Fourth Amendment's protection
against unreasonable seizures to curtilage:
In deciding whether Walker's arrest was lawful,
we begin by examining the nature of the protection
that the fourth amendment provides to the home and the
land next to the home. In Payton v. New York, 445
U.S. 573 (1980), the United States Supreme Court held
that the fourth amendment, made applicable to the
states by the fourteenth amendment, prohibits police
from making a warrantless and nonconsensual entry into
a felony suspect's home to arrest the suspect, absent
probable cause and exigent circumstances. The Court
has also determined that the fourth amendment
protections that attach to the home likewise attach to
the curtilage, which is defined generally as "the land
immediately surrounding and associated with the home."
Oliver v. United States, 466 U.S. 170, 180 (1984). In
Oliver, the Court reasoned that the curtilage receives
the fourth amendment protections that attach to the
home because, "[a]t common law, the curtilage is the
area to which extends the intimate activity associated
with the 'sanctity of a man's home and the privacies
of life.'" Id. (quoting Boyd v. United States, 116
U.S. 616, 630 (1886)).
2
No. 2013AP857-CR.dtp
Read together, Payton and Oliver require that
police obtain a warrant before entering either the
home or its curtilage to make an arrest absent
probable cause and exigent circumstances. Under
Payton and Oliver, therefore, absent probable cause
and exigent circumstances, Walker's warrantless
arrest, although not occurring in his home, was
unlawful if his fenced-in backyard falls within the
curtilage of his home.
Walker, 154 Wis. 2d at 182-83 (footnote omitted).
¶58 In my view, the Walker opinion took considerable
liberty with Oliver, which was a search case involving open
fields, and was striving to distinguish open fields from
curtilage. The Oliver Court noted that "the common law implies,
as we reaffirm today, that no expectation of privacy
legitimately attaches to open fields." Oliver, 466 U.S. at 180.
¶59 Surely, no expectation of privacy legitimately
attaches to a person's driveway or front yard, or even a
backyard without special fencing, that is completely open to
public view. "[T]he warrantless arrest of an individual in a
public place upon probable cause [does] not violate the Fourth
Amendment," and "[w]hat a person knowingly exposes to the
public, even in his own house or office, is not a subject of
Fourth Amendment protection." United States v. Santana, 427
U.S. 38, 42 (1976) (first citing United States v. Watson, 423
U.S. 411 (1976); then quoting Katz v. United States, 389 U.S.
347, 351 (1967)).
¶60 Even the Walker court, in distinguishing Santana,
recognized that police might make an arrest on curtilage if the
curtilage is open to public view:
The threshold of one's house is a place[,] although on
private property, that is used by various members of
3
No. 2013AP857-CR.dtp
the public and is visible to any person that passes by
the house. A fenced-in backyard, on the other hand,
is not an area accessible to the public, and one is
normally not visible to those passing by the front of
the house.
Walker, 154 Wis. 2d at 184 n.16. Consequently, the law of
arrest may well be different from the law of search in relation
to curtilage.
¶61 The Wayne LaFave treatise on search and seizure
discusses curtilage arrests in a section entitled "Basis for
Entry to Arrest":
The cases involving arrests made on the premises
(in the broad sense of that term) outside rather than
inside the threshold deserve some attention at this
point, for quite similar considerations govern there.
Typically by reliance upon the Payton declaration that
ordinarily the "threshold may not reasonably be
crossed without a warrant," the courts have upheld
warrantless arrests made in such places as the common
hallway of an apartment building, or the yard191
driveway,192 or porch193 or carport194 of a house.
(There are conceivably special circumstances, however,
in which some such place would carry with it such a
high expectation of privacy that the Payton rule
should govern.)
3 Wayne R. LaFave, Search & Seizure § 6.1(e), at 405-06 (5th ed.
2012) (footnotes omitted).
¶62 Footnotes 191-194 list multiple cases. Footnote 191
reads in part: "Contra: State v. Walker, 154 Wis. 2d 158, 453
N.W.2d 127 (1990)" and quotes a sentence from Walker.
¶63 In a later supplement to footnote 191, LaFave states:
Walker does not stand alone, as there is other
authority to the effect that the on-curtilage lawful
arrest limitations are just as stringent as those
applicable to in-premises arrest. See note 57 supra.
But, while the in-premises analogy arguably makes
sense when the arrest occurs upon a part of the
curtilage not open to visitors generally, e.g., the
4
No. 2013AP857-CR.dtp
back yard in Walker, it hardly follows that the same
should be true regarding the arrest of someone who,
e.g., steps out onto his front porch at police request
and then is apprehended there.
3 LaFave § 6.1(e) n.191, at 52 (Supp. 2015).
¶64 The majority opinion cites six cases for the
proposition that the Fourth Amendment prohibits entry onto
curtilage for the purpose of making a warrantless arrest: United
States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010); United
States v. Brown, 510 F.3d 57, 64 (1st Cir. 2007); State v.
Lewis, 675 N.W.2d 516, 523-26 (Iowa 2004); State v. Karle, 759
N.E.2d 815, 819-20 (Ohio Ct. App. 2001); Jefferson v.
Commonwealth, 497 S.E.2d 474, 480-81 (Va. Ct. App. 1998); and
State v. Mierz, 866 P.2d 65, 70-71 (Wash. Ct. App. 1994).
Additional cases may be cited. See 3 LaFave § 6.1(b) n.57, at
50 (Supp. 2015).
¶65 The ambiguity in some of these cases requires comment.
Despite making broad statements regarding Fourth Amendment
protections on curtilage, these courts have hesitated to
foreclose all arrests on curtilage that is open to public view.
For example, in the Brown case, the court dutifully observed:
The Fourth Amendment protects persons from
warrantless arrest inside their homes or other places
where they have a reasonable expectation of privacy.
One such place is the curtilage of the home. Bilida
v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000). Brown
argues that he was standing in the curtilage of his
home when he was arrested, and since the police lacked
a warrant, the arrest violated the Fourth Amendment.
Brown, 510 F.3d at 64 (citations omitted).
¶66 However, Brown was standing in his driveway, and the
court concluded that the driveway adjacent to his garage next to
5
No. 2013AP857-CR.dtp
his trailer home was not part of the home's curtilage: "[O]ur
past cases reveal a number of general principles with respect to
driveways. If the relevant part of the driveway is freely
exposed to public view, it does not fall within the curtilage."
Id. at 65.
¶67 In the Lewis case from Iowa, the court stated that
"[t]he protection provided by the Fourth Amendment has been
extended to the curtilage." Lewis, 675 N.W.2d at 523. However,
concerning the driveway adjacent to Lewis's home, "[W]e find the
driveway was not within the curtilage." Id.
¶68 In the Karle case, the Ohio Court of Appeals found an
arrest of the defendant "immediately outside his house" unlawful
because the police did not have an arrest warrant. Karle, 759
N.E.2d at 820. However, the court was quick to add:
As this court has held, "[a]n arrest in
contravention of the Fourth Amendment will not a
fortiori preclude subsequent criminal proceedings
predicated upon the arrest. Rather, the exclusionary
rule provides only that evidence derived from an
illegal seizure——fruit of the poisonous tree——is
subject to exclusion at trial.
Id. at 821 (citation omitted).
¶69 In State v. Mierz, from Washington, the court
determined that there was an unlawful arrest in defendant's
backyard that "was clearly not open to public use." Mierz, 866
P.2d at 71. However, the court stated that "the police may
enter areas of the curtilage that are impliedly open," and it
cited a Washington Supreme Court decision, State v. Solberg, 861
P.2d 460 (Wash. 1993), in which the court "upheld a warrantless
6
No. 2013AP857-CR.dtp
arrest on a front porch of a home." Mierz, 866 P.2d at 71 &
n.7.
¶70 This concurrence does not attempt to be a
comprehensive exegesis of the subject of warrantless arrest on a
defendant's curtilage. It is, however, intended to suggest that
the language in the Walker case is too broad and that some
courts that "talk the talk" do not "walk the walk" because
walking the walk would make little sense in light of other
United States Supreme Court precedent.1 When the Payton rule is
followed, the law is clear. When the Payton rule is extended to
curtilage, the law will be open to constant dispute.
¶71 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this concurrence.
1
One post-2009 unpublished case by the Wisconsin court of
appeals, citable for persuasive purposes, seems to limit Walker.
In State v. Wieczorek, No. 2011AP1184-CR, unpublished slip op.
(Wis. Ct. App. Nov. 8, 2011), an officer responded to a driver's
home after receiving a dispatch regarding a hit and run.
Wieczorek, unpublished slip op., ¶¶3-5. After knocking on the
front door and engaging with the suspected drunk driver, the
officer arrested the suspect on the suspect's porch. Id., ¶6.
The circuit court concluded that the officer unconstitutionally
seized the driver "because the seizure took place in the
curtilage of his home," id., ¶8, but the court of appeals
reversed, reasoning that the circuit court "erred by determining
by reason of analogy that [the driver] had the same reasonable
expectation of privacy in his front porch as the defendant in
Walker had in his fenced-in backyard," id., ¶12. Rather than
treating Walker as creating a per se rule prohibiting arrest on
curtilage, the Wieczorek court preferred a case-by-case analysis
of the privacy interests that would support or prohibit an
arrest. Id., ¶¶11-12.
7
No.2013AP857-CR.awb
¶72 ANN WALSH BRADLEY, J. (dissenting). The majority's
application of the Fourth Amendment's protections creates a
great inequity among the people of Wisconsin. The Fourth
Amendment protects the "right of the people to be secure in
their person, houses, papers, and effects, against unreasonable
searches and seizures..."
¶73 It does not distinguish among the types of dwellings
we call home, giving one more protection than another. There is
no room in the language for this court to do otherwise.
Nevertheless, under the majority opinion, the protections of the
home now apparently depend on whether an individual lives in a
single-family or multi-family dwelling.
¶74 The majority concludes that Dumstrey's locked
underground parking garage that is attached to his apartment
building is not curtilage. Majority op., ¶51. As a result, it
allows the Government to forcibly enter Dumstrey's locked,
underground parking garage without a warrant.
¶75 The analysis of the majority is infirm in a number of
ways: (1) it conflates curtilage with a reasonable expectation
of privacy; (2) it skews the analysis by shifting the focus onto
the other tenants in Dumstrey's building, rather than on the
government; and (3) it disregards controlling Supreme Court
precedent. Perhaps its biggest infirmity is that it ignores the
collective right that residents of apartments or condominiums
have to exclude all individuals that do not have a legitimate
purpose on their property.
1
No.2013AP857-CR.awb
¶76 Contrary to the majority, I conclude that the parking
garage here is curtilage. As a result, the government’s
warrantless, non-consensual intrusion into Dumstrey's parking
garage and the resulting search and seizure, violated Dumstrey's
Fourth Amendment rights. Accordingly, I respectfully dissent.
I
¶77 The primary issue presented is whether Dumstrey’s
garage is curtilage. If it is, then it is considered part of
the home for Fourth Amendment purposes.
¶78 "[W]hen it comes to the Fourth Amendment, the home is
first among equals. At the Amendment's 'very core' stands 'the
right of a man to retreat into his own home and there be free
from unreasonable governmental intrusion.'" Florida v.
Jardines, 133 S. Ct. 1409, 1414 (2013) (quoting Silverman v.
United States, 365 U.S. 505, 511 (1961). "[T]he right to
retreat would be significantly diminished if police could enter
a man's property to observe his repose from just outside the
front window. We therefore regard the area 'immediately
surrounding and associated with the home'——what our cases call
the curtilage——as 'part of the home itself for Fourth Amendment
purposes.' That principle has ancient and durable roots." Id.
(internal citation omitted).
¶79 The determination of whether Dumstrey's parking garage
is curtilage presents a fact specific analysis. See, e.g.,
State v. Leutenegger, 2004 WI App 127, ¶21 n.5, 275 Wis. 2d 512,
685 N.W.2d 536. The facts of this case are not in dispute.
2
No.2013AP857-CR.awb
¶80 Officer DeJarlais was off-duty, on his way home from a
Milwaukee Brewers baseball game where he had a couple of beers
when he first observed Dumstrey. After observing Dumstrey
tailgating and passing other cars, Officer DeJarlais pulled up
next to Dumstrey at a red light. Officer DeJarlais was not
wearing a police uniform and was driving his own personal
vehicle.
¶81 While both vehicles were stopped at a red light,
Officer DeJarlais flashed his badge at Dumstrey, and verbally
commanded him to wait for the police. Dumstrey stared at
Officer DeJarlais with a blank look on his face. When the light
turned green, Officer DeJarlais went through the intersection
and pulled over. Dumstrey eventually proceeded through the
intersection and pulled up next to Officer DeJarlais. Again,
Dumstrey did not say anything to Officer DeJarlais, stared at
him, and drove away.
¶82 Officer DeJarlais followed Dumstrey into the driveway
of an apartment building's parking lot. He watched Dumstrey
enter an underground parking garage using a remote control to
enter the locked garage door. After following Dumstrey into the
underground parking garage, Officer DeJarlais parked his car
directly under the door to immobilize it, de-activating the
security system. When Officer DeJarlais exited his car and made
contact with Dumstrey in the parking garage, Dumstrey commented
that he did not believe DeJarlais was a police officer.
¶83 Dumstrey's parking garage is underground, locked and
secured from the general public. Only tenants who pay for a
3
No.2013AP857-CR.awb
parking spot can access the garage or use the elevator
connecting the apartment building to the underground garage.
¶84 The State acknowledged that if the garage door had
closed before DeJarlais forced it to remain open, it would have
been unreasonable under the Fourth Amendment for the State to
forcibly break and enter through the garage door to search.
Even the majority acknowledges that "Dumstrey has a personal
property interest in his parking place in the garage because he
lives in the apartment building and pays for his assigned
parking location." Majority op., ¶48.
¶85 At the outset of its curtilage analysis, the majority
at length discusses Katz v. United States, 389 U.S. 348 (1967).
Katz considered whether government conduct constituted an
unlawful search in violation of the Fourth Amendment by applying
the reasonable expectation of privacy test. Id. However,
recent United States Supreme Court precedent requires that
curtilage be analyzed separately from a reasonable expectation
of privacy. See United States v. Jones, 132 S. Ct. 945, 952-953
(2012); see also Jardines, 133 S. Ct. at 1417.
¶86 In Jones, the Supreme Court held that the installation
of a GPS unit on an individual’s vehicle, even if he had no
reasonable expectation of privacy, was a search. 132 S. Ct. at
949 (2012). The court explained that "Jones’s Fourth Amendment
rights do not rise or fall with the Katz [reasonable expectation
of privacy] formulation." Id. at 950. Jones is clear that the
"Katz reasonable-expectation-of-privacy test has been added to,
not substituted for, the common-law trespassory test." Id. at
4
No.2013AP857-CR.awb
952 (emphasis in the original). Thus, after Jones, there are
now two separate avenues for finding a violation of the Fourth
Amendment: (1) trespass of property rights; and (2) a reasonable
expectation of privacy.
¶87 In Jardines, the Supreme Court held that a police
officer’s use of a trained police dog on a homeowner’s porch was
a search within the meaning of the Fourth Amendment. 133 S. Ct.
at 1417-18. The court explained that "[a]t the Amendment’s
'very core' stands 'the right of a man to retreat into his own
home and there be free from unreasonable governmental
intrusion.'" 133 S. Ct. at 1414 (quoting Silverman, 365 U.S. at
511). The Jardines decision reinvigorated a test based on
trespass of property, emphasizing the importance of property
rights, even in an area of the home that is semi-public. See
also United States v. Burston, __ F.3d __, 2015 WL 7444379 (8th
Cir. 2015) (concluding that a grassy area surrounding an
apartment was curtilage).
¶88 As the Jardines court acknowledged, the porch of a
home is a semi-public area. "[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." Jardines, 133 S. Ct. at 1415. An
implicit license allows the general public to approach the
porch, which is curtilage, and either be received or asked to
leave. Id. 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. at 1416 (quoting
5
No.2013AP857-CR.awb
Kentucky v. King, 131 S. Ct. 1849, 1862 (2011)). "The scope of
a license–express or implied–is limited not only to a particular
area but also to a specific purpose." Id. Accordingly,
curtilage may be semi-public for certain purposes and yet still
protected from government intrusion.
¶89 After Jones and Jardines, courts must analyze first
the trespass doctrine separately from the Katz "reasonable
expectation of privacy test." Prior federal and state precedent
holding that an area is not curtilage based on the Katz
"reasonable expectation of privacy test" is no longer
controlling. Under the current state of the law, we must weigh
property rights more heavily than privacy considerations. The
analysis is not whether the area is completely private. Rather,
it is whether Dumstrey has a sufficient property interest that
would entitle him to be free from government intrusion in this
area.
¶90 In examining the contours of curtilage, courts look to
United States v. Dunn, where the court identified four factors
for determining whether an area is curtilage protected by the
Fourth Amendment: (1) the proximity of the area to the home; (2)
whether the area was within an enclosure surrounding the home;
(3) the nature of the uses to which the area was put; and (4)
the steps taken to protect the area from observation by passers-
by. 480 U.S. 294, 301 (1987).
¶91 The Dunn factors are not a precise formula, but are
"useful analytical tools only to the degree that, in any given
case, they bear upon the centrally relevant consideration——
6
No.2013AP857-CR.awb
whether the area in question is so intimately tied to the home
itself that it should be placed under the home’s 'umbrella' of
Fourth Amendment protection." Id. Although they fail to
consider some of the realities of modern urban living, the
factors nevertheless are helpful and Dunn remains a
quintessential curtilage case.
A.
¶92 With the relevant facts and law in mind, we begin our
curtilage discussion with the first Dunn factor: proximity to
the home. Analyzing the garage's proximity to the home, the
majority relies on United States v. Cruz Pagan, 537 F.2d 554,
558 (1st Cir. 1976), for the proposition that in an apartment
building "a tenant's [home] cannot reasonably be said to extend
beyond his [or her] own apartment and perhaps any separate areas
subject to his [or her] exclusive control." Majority op., ¶34.
¶93 In applying Cruz Pagan, the majority conflates a
curtilage analysis with a reasonable expectation of privacy
analysis. Cruz Pagan rests its determination of curtilage on
the Katz reasonable expectation of privacy test. Cruz Pagan,
537 F.2d at 557 (citing Katz, 389 U.S. 347). According to Cruz
Pagan, "[t]he legal question which we must resolve is whether
the agents' entry into the garage defeated the reasonable
expectation of privacy of any of the appellants." Id. at 557.
¶94 In addition, the Cruz Pagan court explicitly rejected
the trespass analysis which we must now apply. Id. at 558
("Whether or not the agents' entry was a technical trespass is
not the relevant inquiry."). Based on the Katz test which no
7
No.2013AP857-CR.awb
longer applies to a curtilage analysis under Dunn, the Cruz
Pagan court concluded that "a person cannot have a reasonable
expectation of privacy... in such a well travelled common area
of an apartment house or condominium." Id. at 588.
¶95 The majority's analysis of proximity to the home is
based on the premise, set forth in Cruz Pagan, that Dumstrey's
home "cannot reasonably be said to constitute the entire
apartment building." Majority op., ¶35. It explains that "his
29 fellow tenants would not consider their individual apartments
to be a part of Dumstrey's home, and Dumstrey could not
reasonably contend otherwise." Id., ¶37. Rather than analyze
the distance from the apartment building to the parking garage,
the majority analyzes proximity in terms of where in the
apartment building Dumstrey has a reasonable expectation of
privacy.
¶96 According to the majority, if Dumstrey's individual
apartment rather than the apartment building is his home, it is
not proximate because he has to travel though shared hallways
and use a shared elevator to get to the garage. Thus, the
majority concludes that "[w]hile the parking garage is located
directly beneath the entire apartment building, it does not
follow that it is therefore closely proximate to Dumstrey's
home." Majority op., ¶35.
¶97 Given that Cruz Pagan is not controlling as to a
curtilage determination, the majority missteps in analyzing
proximity only in terms of Dumstrey's individual apartment.
Even if Dumstrey has to travel though common areas of his
8
No.2013AP857-CR.awb
apartment to get to the garage, the real question here is
distance, rather than the privacy he has in the hallway or
elevator while he travels to the parking garage. Additionally,
Cruz Pagan pre-dates Dunn and the court did not apply the
requisite Dunn curtilage factors.
¶98 In this case, the parking garage is located directly
underneath Dumstrey's apartment building. Dumstrey travels from
his apartment to the parking garage through a locked hallway and
elevator, without ever going outside. As this Court has
explained, "no bright-line rule exists for ascertaining when a
distance is in close proximity, and cases are often inconsistent
in this regard." State v. Martwick, 2000 WI 5, ¶33, 231 Wis. 2d
801, 604 N.W.2d 552. For example, in State v. Williford, which
is cited by the majority, the court concluded that an uncovered
parking lot located in front of the defendant's apartment
building "was in close proximity to the building." 767 S.E.2d
139, 143 (N.C. Ct. App. 2015). If an uncovered lot in front of
an apartment building is in close proximity to the home, then an
underground garage that is accessible without exiting the
building is surely in close proximity. Accordingly, I conclude
that the parking garage is proximate to Dumstrey's home.
B.
¶99 The majority's analysis of the second Dunn factor,
whether the area is enclosed, is also based on the Cruz Pagan
premise that Dumstrey's home is limited to his own apartment.
It reasons that even though the underground parking garage is
part of the same enclosure as the apartment building,
9
No.2013AP857-CR.awb
"Dumstrey's 29 fellow tenants' apartments are likewise included
within the same enclosure as his own apartment." Majority op.,
¶39. According to the majority's analysis, the parking garage
must be enclosed within the same four walls of Dumstrey's
apartment only, because "it cannot reasonably be contended that
each of these tenants' homes constitutes part of Dumstrey's
home." Id. This logic finds no support in the law.1
¶100 In United States v. Perea-Rey, a post-Jones case that
applied the Dunn factors, the Ninth Circuit found that a carport
met the enclosure factor. 680 F.3d 1179, 1184 (2012). The
carport was enclosed by a fence, blocking passersby from
entering the driveway and carport. Id. at 1184-85. Although
Dumstrey’s parking garage was not enclosed by a fence, the
locked underground parking garage could only be accessed with a
garage door opener or a key for a locked door. A fence may make
sense in a rural environment, but a locked garage door serves
the same purpose in an urban environment.2
1
Although not cited in support of its "enclosure" analysis,
the majority cites to a string of cases allegedly supporting its
"nature of use" analysis that hold that unenclosed parking lots
are not curtilage. Majority op., ¶41. Not a single case cited
by the majority analyzes the enclosure in terms of whether it is
contained within the four walls of an individual tenant's
apartment.
2
Although we must apply the Dunn factors, I observe that
this framework is imperfect in determining curtilage in an urban
setting. The curtilage factors in Dunn arose in, and apply
primarily to, rural dwellings. See Carrie Leonetti, Open Fields
in The Inner City: Application of the Curtilage Doctrine to
Urban and Suburban Areas, 15 Geo. Mason U. Civ. Rts. L.J. 297,
311 (2005) (explaining "[o]ne of the difficulties in the
application of the Dunn factors to urban areas is their
epistemological reliance upon a suburban conceptual framework.
(continued)
10
No.2013AP857-CR.awb
¶101 In Coffin v. Brandau, the Eleventh Circuit determined
that "entering the garage as [the defendant] attempted to close
it was a violation of the Fourth Amendment." 642 F.3d 999, 1013
(11th Cir. 2011). The Brandau court concluded that the garage
was enclosed because "the attached garage has walls on three
sides and has the capability, if the outside door is rolled
down, of being closed to maintain privacy." Id. at 1012. It is
clear from Officer DeJarlais's actions that the locked garage
door blocked passersby from entering Dumstrey's parking garage.
The only reason Officers DeJarlais and Lichucki were able to
access Dumstrey's garage was because Officer DeJarlais used his
vehicle to forcibly keep the garage door open. Thus, I conclude
that Dumstrey's parking garage is enclosed.
C.
¶102 In analyzing the nature of the use, the third Dunn
factor, the majority cites to a string of cases that conclude
unattached, unenclosed parking garages are not curtilage. See
Majority Op., ¶41 (citing Williford, 767 S.E.2d at 142-43 (entry
into a parking lot directly adjacent to a multi-unit apartment
building); Mack v. City of Abilene, 461 F.3d 547, 554 (5th Cir.
2006) ("the parking space was in an open parking lot, the lot is
a common area used for parking with multiple spaces, and a
vehicle parked in the lot is not shielded from view by others");
Commonwealth v. McCarthy, 705 N.E.2d 1110, 1113 (Mass. 1999)
(common parking lot with guest spaces freely visible to anyone
Factors like proximity to the home or the existence of a fence
make sense only in a relatively rural area.").
11
No.2013AP857-CR.awb
entering the lot); State v. Harnish, 931 P.2d 1359, 1364 (Nev.
1997) (parking lot was open to view of the general public and
not enclosed)). Based solely on this, the majority concludes
that "parking alone constitutes a use associated with neither an
intimate activity of the home nor a privacy of life." Majority
op., ¶41.
¶103 As the dissent in the court of appeals decision
recounted, "Dumstrey uses his garage in many of the same ways
that middle America utilizes its garages in the 'privacies of
life'–the keeping and storing of his vehicle in a secure
setting, the ability to have a relatively warm vehicle during
Wisconsin's frigid winters, the avoidance of wind and rain when
accessing his vehicle, the safety and security of an elevator
from garage to residence, and the avoidance of crime in the open
streets." Dumstrey, 359 Wis. 2d 624, ¶23 (Reilly, J.,
dissenting). None of these uses would apply to an unenclosed,
unattached lot. Accordingly, I conclude that Dumstrey's parking
garage is used for the intimate activities of the home.
D.
¶104 With respect to the final Dunn factor, the steps taken
to protect the area from observation by passers-by, the majority
attempts to skew the focus from the government intrusion to the
other tenants in the building. The majority claims that "[t]he
relevant inquiry [] is not whether the parking garage is
generally shielded from the public at large. Rather, we are
concerned with whether Dumstrey has taken steps to shield his
12
No.2013AP857-CR.awb
assigned parking space from the view of passersby within the
parking garage." Majority op., ¶44.
¶105 The majority’s shift of exclusive focus on the other
tenants finds no support in the law. Even the case the majority
cites for this proposition states the opposite: "We have held
that an area is not within the curtilage if it is open to public
view, and is one which 'visitors and tenants on the property
would pass on the way to the front door.'" Commonwealth v.
McCarthy, 705 N.E.2d at 1111 (Mass. 1999) (quoting Commonwealth
v. Simmons, 466 N.E.2d 85, cert. denied, 469 U.S. 861 (1984)).
Dumstrey's parking garage is not open to public view, nor is it
an entrance to the building though which visitors would pass
because it is locked and fully enclosed.
¶106 Under Jones and Jardines, the focus ought to be on
whether the garage is private property on which the government
cannot trespass, not whether other tenants who share private
property also have a right to be there. "The fact that Dumstrey
and his cotenants share the garage does not defeat the fact that
each of the tenants has secured the garage from the general
public and the government through their collective actions.
Dumstrey may have a lessened amount of privacy among his fellow
tenants, but he and his fellow tenants retain their
constitutional right to be free from unreasonable government
intrusion." Dumstrey, 359 Wis. 2d 624, ¶25 (Reilly, J.,
dissenting).
¶107 In its attempt to bolster its skewed focus, the
majority relies on McCarthy, yet the actual facts of that case
13
No.2013AP857-CR.awb
make it readily distinguishable. It addressed a visitor's
parking space in an open parking lot. In McCarthy, the court
explained that "[t]he parking space in which the defendant's car
was situated when searched is not only an area that visitors
would normally pass through on the way to the building, it is an
area specifically designed to accommodate such use by visitors."
McCarthy, 705 N.E.2d at 1113. The McCarthy court reasoned that
"[b]ecause the defendant had no reasonable expectation of
privacy in the visitor's parking space, the space was not within
the curtilage of the defendant's apartment."3 Id. at 1114.
¶108 Mistakenly, the majority twice describes the parking
lot in McCarthy as an "enclosed parking area." Majority op.,
¶44. However, in discussing McCarthy, the Supreme Judicial
Court of Massachusetts commented that "the space was not
enclosed in any manner." Commonwealth v. Fernandez, 934 N.E.2d
810, 816 (Mass. 2010). In fact, none of the cases cited by the
majority involve a locked, enclosed parking garage. See
Majority op., ¶41.
¶109 In conclusion, a curtilage analysis with the
application of the Dunn factors is based on property rights and
trespass, not a reasonable expectation of privacy. The proper
analytical framework ought to be whether the area is protected
from government intrusion, not whether other tenants also have a
3
As discussed above with respect to United States v. Cruz
Pagan, the McCarthy case was decided prior to Jones and is of
limited analytical value because its curtilage analysis is based
in part on the Katz reasonable expectation of privacy test.
14
No.2013AP857-CR.awb
right to use the garage. Based on the facts of this case as
analyzed above, I conclude that Dumstrey's parking garage is
curtilage.4 It was in close proximity to his home, enclosed, was
used for the intimate activities of home, and was protected from
public view. Thus, the officers' entry into Dumstrey's garage
was a trespass in violation of the Fourth Amendment.
II
¶110 From the outset, the majority needlessly
differentiates between whether a search or a seizure occurred in
this case.5 Although it concludes that Dumstrey was seized in
the parking garage, the majority contends that "Dumstrey was not
subjected to a search while stopped in the parking garage."
Majority op., ¶19. In concluding that no search occurred, the
majority opinion disregards controlling United States Supreme
Court precedent. See Jones, 132 S. Ct. 945. "Jones provides
the bright-line rule: when government agents physically touch a
person's property, then a search occurs under the Fourth
4
After concluding that Dumstrey's garage is curtilage and
that the police trespassed in violation of the Fourth Amendment,
I do not need to reach the issue of whether Dumstrey had a
reasonable expectation of privacy in the garage. Under Jones,
the Katz reasonable expectation of privacy test is only
applicable to cases when there was no trespass onto a
constitutionally protected area. See, e.g., United States v.
Jones, 132 S. Ct. 945, 953-54 (2012) (explaining that situations
in which there is no trespass are still subject to the Katz
reasonable expectation of privacy test).
5
This issue was not briefed or argued by either of the
parties, nor is it necessary to the outcome of the case.
15
No.2013AP857-CR.awb
Amendment." Paul A. Clark, Do Warrantless Breathalyzer Tests
Violate the Fourth Amendment, 44 N.M. L. Rev. 89, 105 (2014).
¶111 In Jones, "[t]he Government physically occupied
private property for the purpose of obtaining information." 132
S. Ct. 945, 949 (2012). The Jones court determined that "[w]e
have no doubt that such a physical intrusion would have been
considered a 'search' within the meaning of the Fourth Amendment
when it was adopted." Id.; see also United States v. Perea-Rey,
680 F.3d 1179, 1185 (2012) ("Warrantless trespasses by the
government into the home or its curtilage are Fourth Amendment
searches."); see also Florida v. Jardines, 133 S. Ct. 1409, 1417
("That the officers learned what they learned only by physically
intruding on Jardines' property to gather evidence is enough to
establish that a search occurred.").
¶112 The court in Perea-Rey, which is factually similar to
this case, determined that a border agent's trespass into a
carport was a warrantless search that violated the Fourth
Amendment. 680 F.3d at 1189. In that case, a border patrol
agent entered a carport attached to the side of a house. Id. at
1183. The border agent made contact with Perea-Rey in the
carport and instructed him to wait in the carport until other
agents arrived and arrested him. Id. Following the Supreme
Court's holdings in Jones and Jardines, the Perea-Rey court
applied the Dunn factors. It determined that because the
carport was curtilage, the border agent had conducted a search
in violation of the Fourth Amendment when he occupied the
carport without a warrant. Id. at 1189.
16
No.2013AP857-CR.awb
¶113 Similarly, in this case, Officers DeJarlais and
Lichuki occupied private property when they entered Dumstrey's
parking garage without a warrant. DeJarlais deactivated the
locked underground garage's security system by forcibly
preventing the garage door from closing. As he testified:
My vehicle was partially outside and the front end was
inside. That way I knew when the officers got there
they would be able to get into the garage otherwise
the garage door would have come down and they wouldn't
have been able to get in. So I purposefully stayed in
the center so the garage door wouldn't come down.
Officer Lichucki arrived and entered Dumstrey's garage through
the door that was forcibly kept open by Officer DeJarlais's car.
¶114 The officers also entered the garage for the purpose
of obtaining information. Lichucki testified that he entered
the garage in order to begin "the investigation as far as what
happened." As the majority explains, "Officer Lichucki
questioned Dumstrey and observed his physical characteristics,
including his swaying, slurred speech, glassy and bloodshot
eyes, and the odor of intoxicants emanating from his person."
Majority op., ¶18. He asked Dumstrey to perform three field
sobriety tests and submit to a breathalyzer test.6 Dumstrey
refused and was arrested for operating while intoxicated.
¶115 The majority contends that no search occurred because
Officer Lichucki arrested Dumstrey "based on observations of his
physical characteristics without further invading his bodily
6
The majority concedes that a blood draw is a search under
the Fourth Amendment, but contends that no search occurred here
because Dumstrey refused to submit to a breathalyzer test.
Majority op., ¶20 n.5.
17
No.2013AP857-CR.awb
integrity." Majority op., ¶20. It incorrectly relies on the
"plain view" doctrine, which allows police to seize evidence in
plain view without a warrant under certain circumstances.
Arizona v. Hicks, 480 U.S. 321, 325 (1987). However, the "plain
view" exception does not apply when officers encroach on a
protected area. See, e.g., Jones, 132 S. Ct. 945, 952 ("the
officers in this case did more than conduct a visual
inspection... officers encroached on a protected area.")
(emphasis supplied).
¶116 The correct determination of whether a search occurred
depends on whether the parking garage is curtilage. The
majority's analysis is backwards because it concluded that no
search occurred before determining whether the garage is
curtilage. It disregards controlling Supreme Court precedent by
ignoring the rule of Jones and Jardines that trespass onto a
protected area in order to obtain information is a search in
violation of the Fourth Amendment. See Jones, 132 S. Ct. at
949; see also Jardines, 133 S. Ct. at 1417. As set forth above,
Dumstrey's garage is curtilage. Thus, the officers conducted a
warrantless search in violation of the Fourth Amendment when
they occupied a protected area of Dumstrey's home in order to
obtain information.
¶117 In sum, for the reasons set forth above, I conclude
that the parking garage here is curtilage. As a result, the
warrantless intrusion into Dumstrey's locked underground parking
garage, and the resulting search and seizure, violated
18
No.2013AP857-CR.awb
Dumstrey's Fourth Amendment rights. Accordingly, I respectfully
dissent.
¶118 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
19
No.2013AP857-CR.awb
1