COURT OF APPEALS
DECISION
DATED AND FILED
October 8, 2009
David
R. Schanker
Clerk of Court of Appeals
|
|
NOTICE
|
|
|
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
|
|
Appeal No.
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
DISTRICT IV
|
|
|
|
|
State of Wisconsin,
Plaintiff-Respondent,
v.
Juan M. Madrid,
Defendant-Appellant.
|
|
|
|
|
|
|
|
APPEAL
from a judgment and an order of the circuit court for Jefferson County: randy
r. koschnick, Judge. Affirmed.
¶1 BRIDGE, J. Juan
Madrid appeals a judgment of conviction for operating a motor vehicle while
under the influence of an intoxicant, third offense, and the order of the
circuit court denying his motion to suppress evidence. He contends that the porch extending from the
rear of his apartment is curtilage protected by the Fourth Amendment, and that
because a law enforcement officer was on the porch without a valid warrant or
without probable cause and exigent circumstances, the circuit court should have
suppressed all evidence obtained as a result of the illegal intrusion. We disagree and therefore affirm.
BACKGROUND
¶2 The following facts are taken from the suppression
hearing. At approximately 10:50 p.m. on
June 27, 2008, Jesse Deckert, a police officer with the City of Watertown police department, was dispatched to a noise
complaint at a four-unit apartment building in Watertown.
Deckert testified that while another officer was at the front of the
apartment building attempting to make contact with the occupants inside the
apartment, he positioned himself at the rear of the building. At the back of the apartment building are
separate rear doors for each apartment, and attached to and extending from the
building are wooden porches for each apartment.
Relevant to this case are the porches for apartment A and apartment
B. Deckert observed that the porch for
apartment A is approximately six feet by eight or ten feet and is visible from
the rear parking lot for the apartment building. The parking lot appears to run the length of
the back of the building and is separated from the building by the porches and
two grassy areas, one of which abuts the porches for apartments A and B and one
of which abuts the porches for apartments C and D. Three sidewalks lead from the parking lot to
the individual apartments—one to apartment A, one to apartment D, and one to
apartments B and C, which share a sidewalk.
Along the side of apartment A’s porch abutting the porch for apartment B
is a fence, which is used to afford the occupants of apartment A privacy from
apartment B’s porch.
¶3 Deckert testified that he positioned himself behind apartment
A in the shadow created by that apartment’s porch fence. The exact location of his position, however,
is not entirely clear. Deckert was unable
to remember whether he was originally standing on the edge of apartment A’s
porch or whether he was standing in the grassy area abutting the porch near the
porch’s fence. Madrid testified that Deckert was positioned
on the “end” of the porch but later testified that he was “standing right by
the [porch] on the corner of the fence.” The court did not make any findings clarifying
this issue.
¶4 While he was positioned behind apartment A, Deckert observed
a vehicle pull into the building’s rear parking lot. Two people exited the vehicle, one from the
driver’s seat and one from the front passenger seat. Both the driver, who was later identified as Madrid, and the passenger
began walking toward Deckert. Madrid, however, quickly
turned around and began walking back toward the vehicle. Deckert observed Madrid hand the keys to the passenger before
he began walking in Deckert’s direction again.
While Madrid was walking toward him,
Deckert overheard Madrid
place a call on his cell phone and say to the individual to whom he was speaking
something to the effect of: “Be careful
there are two police cars outside of my house.”
Deckert testified that after overhearing this statement, he stepped out
of the shadows where he had been standing and announced his presence. Deckert’s exact location once he stepped out
of the shadows is also uncertain. Deckert
testified that he stepped onto the sidewalk or the grassy area abutting the
porch. Madrid, however, testified that Deckert was on
the porch of apartment A.
¶5 After stepping out of the shadows, Deckert asked Madrid to identify the
person to whom he had been speaking. Madrid responded by
telling Deckert to get off his property.
Deckert testified that at this point Madrid became “verbally abusive” toward him—swearing
at Deckert and asking him to leave—before walking past Deckert into apartment A
through the apartment’s rear door.
Deckert testified that as Madrid walked
toward him, he observed a strong odor of intoxicants coming from Madrid.
¶6 After Madrid entered the apartment, Deckert spoke to the
passenger of the vehicle who informed Deckert that Madrid was drunk. During this conversation, Deckert was either standing
on the sidewalk leading from the parking lot to the porch or on the grassy area
abutting the sidewalk and porch. After
his conversation with the passenger, Deckert knocked on the rear door of the
apartment, which was accessible only by walking across the porch. When Madrid
did not answer the door, Deckert began walking back toward the parking lot and
engaged in another conversation with the passenger. At this point, Deckert was standing on the
porch and the passenger was standing approximately two or three feet away on
either the sidewalk or grassy area.
While Deckert was still standing on the porch, Madrid came out of the apartment and told
Deckert to get off of his porch. Deckert
did so and walked down to the sidewalk where he and Madrid spoke.
¶7 During this conversation with Madrid,
Deckert observed that Madrid’s
eyes were bloodshot and glassy. Madrid also acknowledged
that he had consumed four beers before driving to his apartment. Deckert then administered field sobriety
tests and a preliminary breath test, before placing Madrid under arrest and charging him with
driving under the influence of an intoxicant, third offense, in violation of Wis. Stat. § 346.63(1)(a), and
operating a motor vehicle with a prohibited alcohol concentration, third
offense, in violation of § 346.63(1)(b).
¶8 Madrid moved to suppress all
evidence obtained by law enforcement officers subsequent to Madrid’s
initial contact with Deckert on the basis that Deckert was on the curtilage of Madrid’s property
without a valid warrant or without probable cause and exigent
circumstances. The court denied Madrid’s motion. The court ruled that the area where Deckert
was standing when he first observed Madrid—whether it was the area surrounding
the porch or the porch itself—was not curtilage protected by the Fourth
Amendment. With respect to the sidewalk
leading up to the porch and the grassy area abutting the sidewalk and porch,
the court ruled that neither area was “connected directly to the intimate area
or internal section of the apartment.”
With respect to the porch, the court explained its ruling as follows:
This is not an enclosed porch. This is this privacy fence that basically blocks
the view of people on the porch for Apartment A looking over to the porch for
Apartment B and vice versa.
It is
not an enclosed area, and someone in the parking lot area where the defendant
had parked, based on the diagrams today, would be able to observe the entirety
of the defendant’s porch and grassy area, assuming that there was sufficient
light.
….
Based
upon the testimony also, I conclude that the officer, when he is at the edge of
the defendant’s porch, is at least ten feet from the wall of the defendant’s
apartment. He is at least ten feet from
the window, if there is a window there, or the wall that separates the interior
of the apartment from the exterior where the porch is located.
I find
given these factors, and considering the elements referred to by the State, and
the curtilage balances, that the area where the officer was first observed by the
defendant is not a part of the curtilage.
It is a part of the structure that is occupied by the defendant.
¶9 Following the denial of his motion to suppress, Madrid pled guilty to
operating a motor vehicle while under the influence of an intoxicant, third
offense. Madrid appeals.
STANDARD OF REVIEW
¶10 A curtilage determination presents a question of constitutional
fact. State v. Martwick, 2000
WI 5, ¶16, 231 Wis.
2d 801, 604 N.W.2d 552. In reviewing questions of constitutional
fact, we will uphold a circuit court’s factual findings unless they are clearly
erroneous, but we will independently decide whether those facts meet the
constitutional standard. State
v. Samuel, 2002 WI 34, ¶15, 252 Wis.
2d 26, 643 N.W.2d 423.
DISCUSSION
¶11 Madrid
contends that evidence obtained following his initial contact with Deckert
should have been suppressed because it derived from Deckert’s illegal intrusion
onto his porch, which he maintains is curtilage protected by the Fourth
Amendment. The State contends that the circuit court
considered the appropriate facts and legal factors when making a curtilage
determination and “properly determined that the porch area from which Officer
Deckert observed Madrid is not part of Madrid’s
curtilage.”
¶12 Under the Fourth Amendment, police are prohibited from making
warrantless and nonconsensual entry into a suspect’s home absent probable cause
and exigent circumstances. Martwick,
231 Wis. 2d
801, ¶26. This Fourth Amendment
protection also extends to the curtilage of a home. Oliver v. United
States, 466 U.S. 170, 180, 104 S.Ct. 1735
(1984). Curtilage is the area
immediately adjacent to a home to which the inhabitants have extended “the
intimate activity associated with the ‘sanctity of a man’s home and the privacies
of life’” and is considered part of the home for purposes of the Fourth
Amendment. Martwick, 231 Wis. 2d
801, ¶26 (quoting Oliver, 466 U.S. at 180).
Areas outside the home and curtilage, however, are not afforded the
protections of the Fourth Amendment. Id., ¶27.
¶13 In United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134
(1987), the Supreme Court explained that the extent of curtilage is determined
by whether the inhabitant could reasonably expect the area in question to be
treated as the home itself. Whether the
inhabitant had such an expectation depends on an affirmative answer to the following
two questions: “whether the individual
by his conduct exhibited an actual, subjective expectation of privacy … [and]
whether such an expectation is legitimate or justifiable in that it is one that
society is willing to recognize as reasonable.”
State v. Rewolinski, 159 Wis.
2d 1, 13, 464 N.W.2d 401 (1990). To help
answer these questions, the Supreme Court articulated in Dunn four factors
relevant to determining the extent of a home’s curtilage: (1) the proximity of the area to the home; (2)
whether the area is within an enclosure surrounding the home; (3) the nature of
the uses to which the area is put; and (4) the steps the resident takes to
protect the area from observation by passers-by. Dunn, 480 U.S. at 301. It is the defendant’s burden to prove, at the
very least inferentially, that he or she had a subjective expectation of
privacy that was objectively reasonable.
Rewolinski, 159 Wis. 2d at
13-14; Conrad v. State, 63 Wis.
2d 616, 631, 218 N.W.2d 252 (1974).
¶14 Madrid
does not contend that the circuit court’s factual findings were erroneous. We therefore apply the Dunn factors to the undisputed
facts at hand and determine independently whether Madrid has proven that he exhibited an
actual subjective expectation of privacy and, if so, whether that expectation
of privacy was legitimate or justifiable.
See Martwick, 231 Wis. 2d 801,
¶16; Rewolinski,
159 Wis. 2d
at 13-14. After reviewing all the facts
and applying the Dunn factors to the facts, we conclude that Madrid has not met his burden of proving he
demonstrated an actual subjective expectation of privacy over the porch.
¶15 There is no dispute that the porch is within close proximity to
Madrid’s
apartment. The back porch immediately adjoins the apartment and Deckert
observed Madrid
walk directly from the porch into the apartment. See,
e.g., State v. Wilson, 229 Wis.
2d 256, 600 N.W.2d 14 (Ct. App. 1999) (holding that the pavement area adjoining
back entrance satisfies the proximity factor).
The porch, however, is not within an enclosure surrounding the
home. One side of the porch abuts the
apartment building and another side is protected by a fence designed to afford
the occupants of apartment A privacy from the occupants of apartment B. The other two sides of the porch, however,
are not enclosed or protected in any manner and the porch is wholly visible to
those outside, with the exception of the view available to the occupants of
apartment B by virtue of the privacy fence.
As to the use that Madrid
put to the porch, we infer from the evidence that the porch was used to access
the back of the residence and thus provided a direct path of egress and
ingress. No other evidence, however, was
presented regarding Madrid’s
use of the porch. There is also no
indication in the record that Madrid
took any physical steps to protect the privacy of the porch. To the contrary, Deckert testified that the
porch was plainly visible from the building’s parking lot. Thus, the only evidence indicative of a
subjective expectation of privacy on Madrid’s
part is the porch’s close proximity to the apartment, the existence of a fence
bordering one side of the porch, and the fact that it was used on at least one
occasion as a means of entering and exiting the apartment.
¶16 We conclude that when the facts are viewed in their totality,
they do not support the conclusion that Madrid
exhibited a subjective expectation of privacy over the porch. Because Madrid has not established his subjective
expectation of privacy, we need not address whether such an expectation of
privacy over the porch in question would be legitimate or justifiable. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334
N.W.2d 559 (Ct. App. 1983) (if a decision on one point disposes of the appeal,
the court will not decide other issues raised).
CONCLUSION
¶17 For the reasons discussed above, we affirm the order of
suppression and judgment of conviction.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)4.