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COURT OF
APPEALS DECISION DATED AND
RELEASED April
25, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound volume
of the Official Reports. |
No. 95-2716-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
FRANK
J. GENIESSE,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dodge County: ANDREW P. BISSONNETTE, Judge. Affirmed.
VERGERONT,
J.[1] Frank Geniesse appeals from a judgment of
conviction for operating a motor vehicle while under the influence of an
intoxicant, second offense, in violation of § 346.63(1)(a), Stats.
He contends that a warrantless entry into his garage violated the Fourth
Amendment and, therefore, all the fruits of his arrest should be
suppressed. We conclude that the trial
court correctly decided that the warrantless entry did not violate the Fourth
Amendment. We affirm.
Geniesse
was seated in his vehicle, which was parked in a lot behind Charlie Brown's
Tavern, at 1:10 a.m. on May 19, 1994.
Officer Terrence Gebhardt approached the car, believing that a sick or
intoxicated person was in the car.
Gebhardt was accompanied by his partner, Officer Cory Johnson. The car engine was running. Geniesse indicated that he was talking to
his brother on his cellular phone.
Gebhardt noticed that Geniesse had glassy, bloodshot eyes, drastically
slurred speech and a strong odor of intoxicants coming from his person or from
inside his vehicle. Gebhardt also
noticed an open can of beer sitting in a holder inside the vehicle. In response to Gebhardt's questions,
Geniesse said he had been drinking beer in the tavern. Gebhardt told Geniesse that he could be
arrested for driving while intoxicated and that he should not drive home. Geniesse told Gebhardt that he lived
approximately three blocks away.
Gebhardt offered to drive him home, but Geniesse declined and said he
would walk home. Gebhardt told Geniesse
to turn off his car engine, and when the officers left the parking lot, the
engine was off. At some point during
the stop, Gebhardt administered a portable breath test and received a result of
.17.
At
approximately 1:30 a.m. the same morning,
Gebhardt and Johnson were traveling in their squad car and passed
Geniesse's vehicle on the road.
Gebhardt turned on his squad's emergency lights and began to pursue
Geniesse's car. At the time, Geniesse's
car was approximately one-half block or fifty yards from his garage. According to Gebhardt, Geniesse had an
opportunity to pull his car over to the side of the road. Geniesse testified that he saw the lights of
the squad car when he was about one-half block or fifty yards from his
residence. Geniesse did not stop there,
but continued driving and drove into his garage. The garage is not an attached garage, but is separated from the
house by a six-foot walkway.
When
Geniesse pulled into his driveway, he opened the garage door with an electric
garage door opener. Gebhardt and Johnson
got out of their squad car and entered the garage through the open garage
door. They did not have a warrant and
they did not have Geniesse's consent.
The officers asked or told Geniesse to get out of his car, which he
did. The three left the garage. The officers performed field sobriety tests
outside the garage. Shortly thereafter,
Geniesse was arrested for driving while under the influence of an intoxicant.
Geniesse's
motion to suppress challenged:
(1) the lawfulness of the first stop in the parking lot because it
was not supported by reasonable suspicion; (2) the lawfulness of the
second stop because it was not supported by probable cause; and (3) the
warrantless entry into the garage.
The
trial court concluded the first stop was lawful. The court found that Gebhardt observed Geniesse slumped over
towards the middle of the car with the engine running. The court concluded that it therefore was
reasonable to inquire whether the person was sick, unconscious or dead. Once the officer observed the odor of
alcohol, slurred speech and an open container of beer, the court continued, the
officer had reasonable grounds to continue to question Geniesse relative to a
possible charge of operating while intoxicated or having a prohibited blood
alcohol concentration. The information
the officer had, including the admission that Geniesse had been drinking,
justified conducting a preliminary breath test, which registered .17. The court concluded there was probable cause
to permit the preliminary breath test.
The
court also ruled that the second stop was lawful. The court agreed with the district attorney that the fact that
the officers did not arrest Geniesse in the parking lot did not prove that they
did not have probable cause to arrest him; rather, they were giving him a break
because he lived nearby and said he would walk home. The court concluded that when the officers saw Geniesse driving
soon thereafter, they had "plenty of grounds on which to suspect"
that he was operating a vehicle with a prohibited blood alcohol concentration[2]
and operating while intoxicated.
Although the trial court uses the term "suspect" in this
statement, the court begins its written decision by phrasing the issue as
whether the officer had "reasonable grounds, probable cause" to stop
Geniesse a second time. Reading the
written decision together with the oral rulings made after the hearing on the
suppression motion, we understand the trial court to be ruling that when the
officers saw Geniesse driving, they had probable cause to arrest him for either
driving with a prohibited blood alcohol concentration or driving while
intoxicated.
With
respect to the warrantless entry into the garage, the court found that the
officer was in continuous hot pursuit from the time he observed Geniesse
driving on the street. The court found
that Geniesse could have stopped sooner than he did after observing the red
lights. The court also found that the
officer arrived at the garage a few seconds after Geniesse, entering through
the main overhead garage doorway left open by the defendant. The court concluded that the warrantless
entry under all the circumstances did not violate the Fourth Amendment.
On
appeal, Geniesse challenges only the warrantless entry. It appears that he is not challenging either
the trial court's ruling that the initial stop in the parking lot was lawful
under Terry v. Ohio, 392 U.S. 1 (1968), or the ruling that the
officers had probable cause to arrest when they saw Geniesse driving less than
twenty minutes later.
A
circuit court's findings of evidentiary and historical fact will not be
overturned unless they are clearly erroneous.
See State v. Turner, 136 Wis.2d 333, 343-44, 401
N.W.2d 827, 832 (1987). However,
questions of constitutional fact are subject to an independent appellate
review, requiring an independent application of the constitutional principles
involved to the facts as found by the trial court. Id. at 344, 401 N.W.2d at 832.
The
Fourth Amendment analysis is based on the reasonableness of the governmental
intrusion into a citizen's personal security.
Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977). A warrantless nonconsensual entry of a home
is reasonable under the Fourth Amendment where there is probable cause to
arrest coupled with exigent circumstances.
State v. Smith, 131 Wis.2d 220, 228, 388 N.W.2d 601, 605
(1986). An arrest made in "hot
pursuit" can constitute the exigent circumstances required for a
warrantless entry. Id. at
229, 388 N.W.2d at 605. Exigent
circumstances are reviewed by a flexible test of reasonableness under the
totality of the circumstances. Id.
The
Fourth Amendment also extends protection to the curtilage of one's home. State v. Kennedy, 193 Wis.2d
578, 584, 535 N.W.2d 43, 45 (Ct. App. 1995).
The extent of the curtilage is determined by factors that bear upon
whether an individual reasonably may expect that the area in question should be
treated as the home itself. Id.
Geniesse
argues the entry into his garage is no different than entry into his home
because the garage is within the curtilage of his home. Relying on Welsh v. Wisconsin,
466 U.S. 740 (1984), Geniesse argues that the officers were not in hot pursuit
of him. Alternatively, Geniesse argues
that even if they were, the hot pursuit exception applies only in very narrow
circumstances in the context of the commission of an ongoing felony where the
police do not have the opportunity to get a warrant.
In
Welsh, a witness observed the defendant's car swerve off the road
and into an open field. Welsh,
466 U.S. at 742. Before police arrived,
the defendant left the accident scene. Id. When the police arrived, the witness told
the police about the accident and that the defendant appeared very sick or very
intoxicated. Without obtaining a
warrant, the police went to the home of the registered owner of the car at 9:00
p.m., gained entry and arrested the defendant who was found lying in his bed. Id. at 743. The Court rejected the claim of hot pursuit
because there was no immediate or continuous pursuit of the defendant from the
scene of the crime. Id.
at 753.
The
facts in Welsh are distinguishable from those in this case. In Welsh, the defendant had
already left the scene by the time the police arrived. The police did not follow the defendant from
the scene of the accident. Here, the
trial court found that the officers were in continuous pursuit of Geniesse from
the time they observed him driving on the street. This finding is supported by the record. From the time the officers observed Geniesse
driving on the street until they entered the garage, they were following
him.
Geniesse
focuses on the statement in Welsh that the appropriateness of
finding exigent circumstances is affected by the severity of the offense for
which there was probable cause to arrest.
Id. at 750. The Welsh
court considered that the offense of driving a motor vehicle while intoxicated
was minor because it was a non-jailable traffic offense that constituted only a
civil violation under applicable state law.
In this case, although Geniesse was charged with driving while under the
influence of an intoxicant, second offense, the record does not indicate that
the officers knew this was a second offense when they entered the garage. The penalty for a first offense is a fine,
§ 346.65(2), Stats., while
the penalty for a second offense within a five-year period is a fine and
imprisonment of not less than five days nor more than six months, id. We agree with Geniesse that we must consider
only what the record shows the officers knew at the time they entered the
garage. Under the Welsh
analysis, the offense the officers knew of would be considered minor because it
is punishable only by a fine.
However,
Welsh does not hold that exigent circumstances can never be found
when an offense is minor. In this case,
there are significant facts, not present in Welsh, that are part
of the totality of the circumstances we must examine. The findings of the trial court are that Geniesse could have
stopped sooner than he did after observing the red lights. Had he stopped on the street, it is clear
that he could have been arrested without a warrant because the officers had reasonable
grounds to believe that he had been driving while intoxicated or driving with a
prohibited blood-alcohol concentration.
Section 345.22, Stats. A suspect may not defeat an arrest which has
been set in motion in a public place by the expedient escaping to a private
place. United States v. Santana,
427 U.S. 38, 43 (1976).
In
Santana, the defendant was standing in the doorway of her house
and retreated into her house when she saw several police officers
approaching. The officers followed her
without a warrant. The Court stated
that the threshold of the defendant's dwelling, although private under the
common law of property, was nevertheless a public place because she was exposed
to public view, speech, hearing and touch as if she had been standing
completely outside her house. Santana,
427 U.S. at 42. The Court concluded
that the warrantless entry to follow her into the house to effectuate the
arrest did not violate the Fourth Amendment.
Id. at 42-43.
When
the officers attempted to stop Geniesse on the street, he was in a public
place. Under Santana, his
retreat to his garage did not defeat the officers' ability to arrest him.
We
also agree with the trial court that it is pertinent that the officers did not
enter Geniesse's home, but only his garage, through the garage door that
Geniesse had just opened and left open, and that they left the garage almost
immediately with Geniesse. Assuming
that the garage was situated closely enough to the house such that it would be
within the curtilage, we do not agree with Geniesse's implicit assumption that
the officers' entry involves the same degree of invasion of privacy as did the
officers' entry in Welsh into the defendant's bedroom. The ultimate determination under the Fourth
Amendment is one of reasonableness. See
State v. Jackson, 147 Wis.2d 824, 833, 434 N.W.2d 386, 390
(1989). We conclude that Geniesse did
not have a reasonable expectation that the officers would not follow him into
his garage under the circumstances.
Considering the totality of the circumstances, we conclude the entry was
reasonable and did not violate Geniesse's Fourth Amendment rights.
By
the Court.—Judgment affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.