(dissenting). According to the majority opinion, a person's home is his or her castle, except when the home is rented. The majority opinion jeopardizes tenants' rights *995to privacy in their homes and empowers landlords and police officers to enter tenants' homes contrary to Wisconsin law.1
The fourth amendment provides that " [t]he right of the people to be secure in their . . . houses . . . shall not be violated.' Searches and seizures "inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586 (1980). The majority holds that the defendant had no legitimate expectation of privacy in the apartment in which he was an overnight guest and declares the warrantless search to be constitutional. Because I believe the majority decision conflicts with recent decisions of the United States Supreme Court interpreting the fourth amendment and the expressed policy of the Wisconsin legislature protecting tenants from unauthorized entry by landlords, I dissent.
I conclude that as an overnight guest the defendant had a legitimate expectation of privacy and had the protections of the fourth amendment. A legitimate expectation of privacy is, according to United States Supreme Court cases, an expectation that society is prepared to recognize as reasonable. State v. Rewolinski, 159 Wis. 2d 1, 17, 464 N.W.2d 401, 414 (1990) (Abrahamson, J. dissenting).
Wisconsin's landlord-tenant law recognizes and protects the defendant's expectation of privacy in this case. *996Wisconsin law protects the tenant's (and the tenant's guest's) privacy by prohibiting the landlord from entering the premises except under very limited circumstances. Wisconsin law prohibits a landlord from entering a dwelling unit during the tenancy or a holdover tenancy2 without 12 hour notice to the tenant except under circumstances not applicable here.
The landlord's "concern that the duplex may be damaged," majority op. at 985, or that property damage may have been done in the past does not under Wisconsin law or under fourth amendment law authorize the landlord's entry into a home, the landlord's consent to the police to enter the home, or the police's entry into a home without a warrant. Payton v. New York, 445 U.S. 573 (1980). The law provides the landlord the means to remove a tenant other than through the police's forced entry into a rental unit without a warrant.3 I therefore *997conclude that the state of Wisconsin has recognized as reasonable the expectation of privacy of occupants of a rented unit.
Furthermore the United States Supreme Court has held that an overnight guest has an expectation of privacy that society is prepared to recognize as reasonable. Under Minnesota v. Olson, — U.S. —, 110 S. Ct. 1684 (1990), a United States Supreme Court decision rendered after the circuit court and court of appeals decided this case, the accused's status as an overnight guest is "enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable." 110 S. Ct. at 1688.
The majority holds that Olson and the Wisconsin landlord-tenant law does not apply to this case and that the defendant had no legitimate expectation of privacy in the apartment where he was an overnight guest, for two reasons: The defendant was the guest of someone not "legitimately on the premises" and the landlord's consent justified the warrantless search.
*998I.
As the majority opinion recognizes, the "legitimately on the premises" standard was rejected in Rakas v. Illinois, 439 U.S. 128, 142-148 (1978), as too broad. Minnesota v. Olson, — U.S. —, —, 110 S. Ct. 1684, 1688 (1990). Nevertheless the majority opinion continues to use this standard. Majority at 976, 980-981.
The majority opinion errs in concluding that the defendant was the guest of someone not legitimately on the premises and therefore neither the defendant nor his host had an expectation of privacy. The only reasonable inference to be drawn from this record is that the tenant (Whaley) had not vacated or abandoned the premises as a tenant voluntarily or involuntarily, that Bakeman occupied the apartment with Whaley's permission, and that the defendant was legitimately on the premises as an overnight guest.
According to the record, Whaley had not vacated the dwelling; her personal property was on the premises.4 The landlord testified that prior to his giving consent for the police to enter he merely "felt" that Whaley had vacated the premises. Prior to the entry the landlord did not show the officers any documentary or other evidence to support his feeling that the tenant had vacated the *999apartment or that the apartment was being occupied by criminal trespassers.5 Bakeman testified that Whaley authorized him to be there. The occupants of the apartment present at the police's entry, including Bakeman and the defendant, claimed possession of the apartment and objected to the search.
The majority opinion properly concludes that the record does not affirmatively establish that Whaley, the tenant, had vacated the apartment. Majority op. at 984-985. The circuit court made no finding that Whaley had abandoned her interest in the apartment. At the suppression hearing the circuit court said that it was "quite clear that apparently Whaley [the tenant] allowed Bakeman [the defendant's host] to use the premises up on Sara Street. There is some question in my mind whether she had actually moved out in response to the eviction notice or had for some other reason not been spending that much time there."6
*1000Until Whaley voluntarily vacated the dwelling unit or was evicted, that is, removed from the dwelling unit by sheriffs execution of a judicial writ of restitution issued under sec. 799.44, Stats. 1989-90, Whaley was legitimately on the premises and could authorize Bakeman to be on the premises; Bakeman in turn could authorize the defendant to be an overnight guest.
On December 20, 1988, on advice of his lawyer, the landlord began an eviction action against Bakeman in small claims court. Bakeman had until December 31, 1987, to defend the landlord's complaint in the pending small claims action. The warrantless search and seizure occurred on December 24, 1987, while the civil action was pending and before Bakeman's time to respond under the civil eviction action had expired.
The circuit court and the majority opinion did not — and on this record could not — find that the defendant had no legitimate authority to be on the premises.7 *1001Under these circumstances, the defendant was, to use the majority's test, a guest of someone legitimately on the premises.
II.
The majority further errs in concluding that the landlord's consent justified the search. The warrantless search of a home is per se unreasonable unless justified by an exception to the warrant requirement. Payton v. New York, 445 U.S. 573, 586 (1980). The only exception offered by the state in this case to justify the warrantless search was the consent of the landlord.
Under Wisconsin law, as I have discussed above, the landlord in this case had no right to enter the apartment. Accordingly the landlord in this case had no authority to consent to the officers' entry. The majority's justification of the warrantless search under the doctrine of third *1002party consent is therefore incorrect.8
The majority concludes that even if the landlord's consent to search the apartment was invalid, the fruits of the search should not be suppressed because the police officers had a reasonable belief that the landlord's consent to the entry was valid. In Illinois v. Rodriguez, — U.S. —, 110 S. Ct. 2793 (1990), the United States Supreme Court held that a warrantless entry by the police is valid when based on the consent of a third party "whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not do so." 110 S. Ct. at 2796.
The majority concludes that because "the police officers had legitimate cause to question Bakeman's tenancy," Majority op. at 983 n.8, the police officers' belief that the landlord had authority to consent to the search was reasonable. The only basis for the police officer's questioning Bakeman's tenancy was the landlord's unsupported assertions. This type of reasoning is precisely what Rodriguez warns against.
According to Rodriguez, the determination of consent to enter must "be judged against an objective standard: would the facts available to the officer at the moment [of the search or the seizure] 'warrant a man of reasonable caution in the belief' that the consenting party had authority over the premises? Terry v. Ohio, 392 U.S. 1, 21-22 (1968). If not, then warrantless entry without further inquiry is unlawful unless authority actually exists." 110 S. Ct. at 2801.
Rodriguez warns that officers may not always accept a person's invitation to enter premises. "Even when the invitation is accompanied by an explicit asser*1003tion . . . the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry." 110 S. Ct. at 2801. The circumstances in this case of the landlord's consent to search the premises of a rented apartment during the pendency of an eviction action and the presence of the occupants asserting their rights presented a situation in which reasonable officers would not act without further inquiry.
Wisconsin law, which the police are charged with upholding, expressly prohibits a landlord from entering the premises of a tenant who has not voluntarily abandoned the premises or who has not been removed by sheriffs execution of a judicial writ of restitution. If a landlord wants to retake possession from a defaulting tenant in a Wisconsin residential unit, "a small claims eviction action ... is required."9 The police officers knew that the landlord's attorney advised the landlord to begin a small claims action and that the landlord did exactly that in this case. Rather than wait for the eviction to run its course in 7 more days, the landlord sought police intervention. The police officers suspicions should have been aroused.10
*1004I believe the Wisconsin law prohibiting a landlord from entering the premises of a holdover tenant creates a presumption that the landlord does not have authority to consent to an entry when the premises have been rented, the occupants claim rights as tenants, and a civil eviction action is pending. Nothing in the record, except the landlord's own statement, rebuts this presumption or supports the majority's finding that the officers had a reasonable belief that the landlord in this case had authority to permit the police to search the apartment.
The state has the burden of establishing the police officers' reasonable belief that the landlord had authority to consent to the search. On the basis of this record the only reasonable inference is that at the moment of entry the landlord's authority to consent was problematic at best. On the basis of this record it is clear that the state has not sustained its burden.
According to the landlord's testimony, the officers at the police station disagreed whether the landlord could consent to a search of the apartment. The captain refused to enter the premises upon the landlord's request. The landlord had to "shop" for an officer who would agree to enter the premises.11
This record contains significant evidence from which the police should have reasonably concluded that a tenant still claimed rights in the apartment and that the landlord may be attempting to evade the eviction *1005laws (upon which he was proceeding in civil court) by resorting to the police. In this case the facts available to the police when they entered the dwelling should have alerted reasonable police officers that further inquiry was necessary to determine whether the landlord had actual authority to consent to the entry.12
I am dismayed that the majority opinion apparently takes the position that as a matter of law police officers are reasonable in relying on the word of a landlord who claims the right to enter an apartment over the word of an occupant of a rental unit who claims the rights of a tenant. The majority opinion characterizes Bakeman's and the defendant's testimony as self-serving, majority op. at 975, n.4, but accepts the landlord's testimony as truth. Nothing in Wisconsin law or in my experience justifies a per se rule favoring the word of a property owner over the word of a nonproperty owner.
I conclude that because the landlord did not have authority to consent to the search and the officers could not have an objectively reasonable belief that the landlord had authority to consent to the search, the search of the apartment violated the fourth amendment and the evidence obtained from the search must be suppressed.
I also conclude that Arizona v. Hicks, 480 U.S. 321 (1987), governs this case. The officers here did not have probable cause to believe the stereo was stolen and therefore the separate search of the stereo violated the fourth amendment.
For the reasons set forth, I dissent.
*1006Appendix
Pertinent Parts of Landlord's Testimony at Suppression Hearing
Direct Examination by Mr. Lenz
Q. The downstairs portion of the duplex, had that been rented out in the fall of 1987?
A. [the landlord] Yes.
Q. And was that to a person by the name of Christine Whaley?
A. Yes, I did.
Q. What was the term of the lease?
A. I believe it was month-to-month.
Q. Do you have a copy of that lease?
A. Yes, I do.
Q. And where would that be?
A. At my office.
Q. You didn't bring a copy with you today?
A. No, I didn't. No.
Q. On, had you had any, experienced any problems in getting rent at this property?
A. From her?
Q. Yes.
A. Yes.
Q. And you had sent an eviction notice to her, is that correct?
A. That's correct.
Q. Or delivered?
*1007A. Yeah, I delivered one and then I also had one served, I believe.
Q. And the one served would have been the middle of the month?
A. I believe so.
Q. On or about December 20 you went to the residence there at 232 Sara Street, is that correct?
A. Yes.
Q. And you found James Bakeman and some others perhaps present at the lower unit of 232 Sara Street, is that right?
A. I don't remember the exact date, but I believe it was a Saturday and there were probably eight to 10 fellows there sitting around. It was about eleven o'clock in the morning.
Q. Okay.
Q. And Mr. Bakeman informed you that he was there with Whaley's permission?
A. I don't remember that being said. I, I can't really remember the conversation. It's been quite awhile.
Q. And you were upset to still find folks living there, is that right?
A. That's correct.
Q. And did Mr. Bakeman offer to make up and pay the rent?
A. Gee's, I can't remember this. He might have. I, but that was not acceptable.
Q. Okay, it was then that you filed for eviction action against Mr. Bakeman, is that right, after you had the conversation with him?
*1008I orally told him that I wanted him to get out of the apartment since I had not rented to him, and he said, "Well, I guess I'll see you in court." So then what I did, I contacted a friend of mine who is an attorney, and he said, "Well," and maybe I didn't explain the whole situation. He said, "Well, you have to go through the eviction process, " so that's what I did. . . . [exhibits marked]
And the action is for eviction and it's dated the 21st day of December, 1987, is that correct? O’
That's correct. >
And the return date when Mr. Bakeman would be called to answer the question of whether he should be evicted was December 31,1987, is that correct? «0
That's correct.
. . . [exhibits marked]
Now, on or about, on, not or about, on December 24th, did you have any conversation with a Karen Johnson? <©
Yes, I did. >
And she's a manager for another landlord in town, is that right? JO
I believe so. >
And she called you and told you to contact the police about getting these folks out of here, out of that premises? JO
That's correct. <
And you subsequently called the police and talked to a Officer Donn Adams? <y
Well, can I tell the whole story or—
*1009Q. Sure.
A. Okay.
COURT: Well, he's leading you well enough, but go ahead. You might as well put it in your own words rather than Lenz' words.
A. All right, yeah. Well, I had, I assumed that those fellows were going to be out of the apartment. I thought they had already been gone, being the day before Christmas. Of course, we were getting ready to leave to go visit relatives. And I get a call like two o'clock, eight o'clock in the morning from Karen Johnson and she said, "Well, the boys wild again last night," something to that effect.
And being close to the holidays, of course, I was upset, so immediately I, I went down to the police station because I only live a block or two away. And I talked to, I believe, a captain at the police station, talked to him a little bit. And he said, "Well, there is not a heck of a lot you can do," you know, not really, I guess, not relaying the whole story to me, or him, not being versed in the law.
So I went back home and then Karen called me again, and we talked a little bit more, and she said, "Well, did you give permission to those people?" And I said, "No, I did not." I didn't even realize they were in the apartment. I thought I had taken care of that problem. And she said, "Well, you can probably have them evicted today because of trespassing." And that seemed very plausible to me, I mean, make sense to me because I did not give them permission to be in there.
*1010So then she said, "Call the police department," and she gave me the name. Yes, she gave me two names, and Donald Adams was one of them, and he's the fellow I, I, I talked to.
BY MR. LENZ [defense counsel]:
And Mr. Adams requested you to come down to the police station? O
Yes. >
And you came, you went down there? <©
You bet. ¡>
And you basically explained the circumstances to Mr. Adams and any other folks that might have been present during that conversation? <o
That's correct. <
Do you remember who else was there when you explained the circumstances at the police station? O’
Well, there were a lot of police. I don't know. >
Okay, yes, in, and you were requested then to go to 232 Sara Street with the police? <©
Yes.
And you went with them?
Yes, I did.
And you signed a piece of paper which was a consent to search this premises?
I signed something. I can't remember exactly whether it was, I don't know whether it was to search it or to, yeah, I wanted, I wanted the fellows out of there because I did not give them permission to be in there. They had already done probably over a thousand dollars worth of dam*1011age to the place now, you know. I did nothing but lose money.
Q. It hasn't been a money-making property?
A. No, just like sitting there.
Q. You gave the police permission to search this residence, do you recall that? You don't really remember, okay.
A. I wanted them out of there, you know.
Cross-examination by Assistant District Attorney Miller
Q. Now, you had Christine Whaley evicted in the middle of November of 1987, is that right?
A. That's correct.
. . . [exhibits marked]
Q. And I'm going to show you what's been marked as Exhibit No. 3. can you identify that?
A. Yes, I believe he, I think I had two served on her. I think the one that I personally served, I just put it on her door, and she was not home at the time, and then there was another one.
Q. Okay, and this was dated November 18th of 1987?
A. Right.
. . . [exhibit marked]
Q. And then when you came down to the police station, you said you signed a piece of paper. I am going to ask, give you what is marked Exhibit 4 and ask you if that looks like your signature on that paper?
A. Okay.
Q. Does it?
*1012A. Yes.
Q. And what does this document purport to be?
A. Search.
Q. Does it indicate that it's consent to search?
A. Yes.
Q. And you signed that then on—
A. Yes, I did.
Q. —December 24th of 1987?
A. Right.
Q. At 10:12 a.m.?
A. Right.
. . . [exhibit marked]
BY MS. MILLER:
Q. And now you indicated that you felt that Christine Whaley had vacated the premises?
A. Right.
Q. And what was the reason that you went to the premises in December and you found Hugh Bakeman, Jim Bakeman there?
A. Well, Karen Johnson, our friend down the block, had called and she had indicated that they had another loud party. The police were over there or whatever, I don't know, and I had, I had assumed that she was out of there, and I had just had not had time to get over there and get it ready to have it rented again. And then she called and also the fellow that lived upstairs all through this time, there was a guy living upstairs. He had also called me and said that there is somebody living down there. And so I went over there, and I believe it was a Saturday. *1013I can't remember the exact date, and I believe it was in the morning, and that's when I found eight to 10 guys sitting around and verbally told them, "Now, I want you out of here," because I didn't ever consent to them being in there. And there, that was sometime in December. What date actually, I can't remember.
Q. Okay, so then the reason you went, went through the legal process of evicting Mr. Bakeman was through advice from your attorney?
A. Right.
MS. MILLER: That's all the questions I have.
REDIRECT EXAMINATION
BY MR. LENZ:
Q. Now, you said that you, say that you gave a second eviction notice to Christine Whaley?
A. I believe so, yes.
Q. And that was left on the door or hand-delivered?
A. I hand-delivered one, and she was not there, so my counsel or attorney, or whatever, I had talked to somebody, and he said, "Well, if she's not there, put it on her door and that serves as," you know, having her served as a party, so I was just going by what he says.
Q. Okay.
MR. LENZ: I have no further questions.
COURT: Just one question. When you went over there that morning and saw these six or *1014eight guys there, was Christine Whaley anyplace around?
A. No.
The search in this case occurred on December 24, 1987, when the landlord went to the police station and gave the police his consent to search the apartment occupied by Bakeman and Whaley. Seven officers went to the apartment without a warrant and entered without knocking, ignoring the occupants' demand to see a warrant and the occupants' assertion of their rights. The officers immediately arrested the three men they found in the apartment and then proceeded to search the premises.
A "tenant" is defined to include "persons holding over after termination of tenancy until removed from the dwelling unit by sheriffs execution of a judicial writ of restitution." Wis. Adm. Code, sec. Ag 134.02(12).
"No landlord may enter a dwelling unit during tenancy except to inspect the premises, make repairs, or show the premises to prospective tenants or purchasers, except as authorized under s. 704.05(2), Stats. Entry may not be made except upon advance notice and at reasonable times. Advance notice means at least 12 hours advance notice unless the tenant, upon being notified of the proposed entry, consents to a shorter time period. This subsection does not apply to situations where the tenant requests or consents to a proposed entry at a specified time, a health or safety emergency exists, the tenant is absent and the landlord reasonably believes that entry is necessary to protect the premises from damage, or entry is otherwise authorized in writing other than a form provision." Wis. Adm. Code, sec. Ag 134.09(2).
The state has never argued that the entry in this case was based on a health or safety emergency, or the tenant's absence *997and the landlord's need to protect the premises from damage. See also, 3 LaFave Search and Seizure sec. 8.5(a), p. 289 (2d ed. 1987) " [T]he landlord of a house is not authorized to consent to a police search of those premises merely because he is empowered under the law to enter for the purpose of viewing waste . . .." Nor does the landlord's suspecting property damage constitute exigent circumstances that would justify an entry into a home without a warrant for search and seizure purposes. Cf. Payton v. New York, 445 U.S. 573, 583 (1980).
The pertinent parts of the landlord's testimony at the suppression hearing are appended to this opinion. Officer Adams did not testify what the landlord had told the police. Bakeman and the defendant testified that Whaley lived in the apartment, had property there, and had given them permission to be there.
The majority opinion, at 966, the state's brief, p. 23, and the officer's testimony assert that the police's search was to find evidence of the "trespasser's" occupancy. The police found evidence of Whaley's and Bakeman's occupancy, namely personal property and letters, some addressed to Whaley and others to Bakeman. This evidence of Whaley's and Bakeman's occupancy is further proof that the defendant had a reasonable expectation of privacy in the apartment. The court determines reasonable expectation of privacy on the basis of everything it learns in the suppression hearing.
The majority implies that the landlord's claim that the occupants of the apartment were trespassers justifies the police officers' reasonable belief in the landlord's consent. This reasoning is not supported by the record. Section 943.14, Stats. 1989-90, defines criminal trespass as follows:
Whoever intentionally enters the dwelling of another without the consent of some person lawfully upon the premises, under circumstances tending to create or provoke a disturbance of the peace, is guilty of a Class A misdemeanor.
There is no claim that the landlord's call to the police was provoked by a "disturbance of the peace." The landlord testified at the suppression hearing that he "wanted the fellows out of there" because he had not given them permission to be there. See transcript appended hereto.
Furthermore, probable cause to believe a misdemeanor has occurred is not sufficient exigent circumstances for police to enter a dwelling without a warrant.
The majority opinion nevertheless states that it was reason*1000able for the landlord and for the police to believe that Whaley had vacated the premises and that Bakeman's presence was unauthorized. Majority op. at 984-985. The majority opinion does not state the facts from which this belief may reasonably be inferred.
For an extended discussion of the privacy interests of persons whose tenancy status is uncertain, see 1 LaFave Search and Seizure sec. 2.3(a) and sec. 8.5(a) (2d ed. 1987). The state in this case argues that Whaley had been properly served with a notice to terminate even though the state concedes that the court cannot determine whether the landlord had complied with the statutory procedures because no exhibits, including the notice, are part of the record.
The circuit court's memorandum opinion makes no explicit findings of fact about the defendant's status. The circuit court opinion contains conflicting comments about the defendant. At one point the circuit court opinion states that the status of people who were arrested is "unclear." At another point the circuit court opinion seems to state that the defendant was on the premises *1001illegally. At another point the circuit court opinion characterizes the defendant as a guest.
The record is clear that (1) Chris Whaley was a tenant; (2) the landlord had served Whaley with some notice terminating tenancy; (3) James Bakeman, an occupant of the apartment at the time of arrest had a key to the apartment and claimed that Whaley was still living in the apartment, that he had Whaley's permission to be there, and that he did not know of the notice to Whaley terminating tenancy; (4) Whaley had papers, letters and other personal property on the premises; (5) the landlord did not know whether Whaley had vacated the premises in compliance with the notice, but merely "felt she had vacated the premises"; (6) the landlord served Bakeman with papers initiating a small claims court action for eviction; (7) Bakeman and the defendant said that the defendant was a frequent overnight guest at the apartment; and (8) the defendant did not know of the dispute between the landlord and Whaley and Bakeman.
See generally, Professor Lafave's discussion of problems involved in a landlord's consent to search in 3 LaFave Search and Seizure sec. 8.5(a) (2d ed. 1987).
Kitzke, Representing Residential Landlords in Wisconsin, 55 Wis. Bar Bull. 22, 58 (Nov. 1982). See also Wisconsin State Bar (ATS-CLE), Representing Residential Landlords and Tenants in Wisconsin, in Residential Leases at 25 (1982); ch. 799, Stats. 1989-90.
The landlord testified that he "explained the circumstances to [Officer] Adams" when he went to the police station. The inference is that the landlord told the police what he told the court at the suppression hearing about his dealings with the tenants, including his small claims eviction action pending against Bakeman. See testimony of landlord appended hereto.
The landlord had to speak to the police twice before he could convince them to search the apartment. According to the landlord's testimony at the suppression hearing, he talked first to the captain at the police station who told him "there is not a heck of alot you can do." The landlord left, and upon advice of a friend returned to speak to a different officer, Officer Adams. Officer Adams asked the landlord to sign a consent for them to search the apartment. See testimony of landlord appended hereto.
At a minimum this court should remand this case for the circuit court to determine whether the officers could have reasonably believed that the landlord had authority to consent to entry to the dwelling. The United States Supreme Court remanded the Rodriguez case for just such a determination. Illinois v. Rodriguez, — U.S. —, 110 S. Ct. 2793, 2801-02 (1990).