State v. Milashoski
| Decision Date | 07 November 1990 |
| Docket Number | No. 90-0412-CR,90-0412-CR |
| Citation | 464 N.W.2d 21,159 Wis.2d 99 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Steven M. MILASHOSKI, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
Steven P. Weiss, Asst. State Public Defender, for defendant-appellant.
Donald J. Hanaway, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen., for plaintiff-respondent.
Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.
Steven M. Milashoski appeals from a judgment convicting him of manufacturing a controlled substance contrary to secs. 161.41(1)(b) and 161.14(4)(n), Stats., arguing that physical evidence and crime laboratory analysis presented at trial were obtained in violation of his fourth amendment right to be free from unlawful search and seizure. Milashoski, who was sentenced to five years' imprisonment and a $15,000 fine, also appeals from an order denying his postconviction motion challenging the imposition of the fine.
The issues on appeal are three: (1) whether Milashoski has standing to appeal the propriety of the seizure; (2) whether certain containers of liquids--which were removed from Milashoski's home during the course of a warrantless search, stored at the village of Fontana fire station, and then transferred to the state crime laboratory in Milwaukee for analysis--were obtained in violation of the fourth amendment; and (3) whether the trial court improperly refused to vacate the fine imposed on Milashoski, who is indigent. Based on our review of the record in this case, we reject the state's standing argument, affirm the trial court's denial of Milashoski's motion to suppress, and decline to review the order imposing the fine, as the issue is brought before us prematurely.
The evidence against Milashoski was obtained by village of Fontana firefighters, some of whom were also police officers, following an explosion and fire at a house Milashoski was occupying on July 3, 1986. After extinguishing a blaze in the kitchen, firefighters saw what appeared to them to be laboratory equipment. Then, after noticing heat underfoot, the firefighters proceeded to the basement, where a second fire was burning. After these flames had been doused, firefighters conducted an "overhaul" of the basement. During an "overhaul," firefighters inspect the premises to make sure the fire is completely extinguished and salvage valuables if requested to do so by the owner.
While engaged in the "overhaul," firefighters again saw what appeared to be laboratory equipment together with five liquid-filled containers in an area near that where the fire had just been burning. Of the five containers, two were unmarked, one was labeled "toluene," another "vegetable oil," and another "reagent alcohol." The marked containers held liquids the firefighters knew to be combustible. When Milashoski, who was waiting in a neighbor's yard for medical help to arrive, was asked what had happened, he stated that he had been "boiling some material for perfume and it exploded."
Not knowing what the containers held, or if they were related to the "material for perfume" which Milashoski said had started the fire, firefighters removed all five containers from the house as a precaution against further outbreaks. One firefighter became ill from vapors emitted by the unmarked container he was handling.
The firefighters transferred the five containers to the village of Fontana fire station, as there seemed to be no safe way to leave them with their apparent owner: the house was damaged; Milashoski had been badly burned and was receiving treatment at a nearby hospital. A village of Fontana police officer assigned to investigate the cause of the fire interviewed Milashoski in the hospital later that day. The officer testified at trial that Milashoski said he neither owned nor knew the nature of the liquids found in the basement.
The containers remained at the fire station over the Fourth of July holiday. After the holiday ended, the containers were shipped to the state crime laboratory in Milwaukee where their contents were analyzed. One of the liquids tested contained concentrations of two controlled substances regulated under chapter 161 of the Wisconsin Statutes: phencyclidine (better known as PCP or "Angel Dust") and 1-piperidinocyclohexanecarbonitrile, which is PCP's immediate precursor in the manufacturing process.
The firefighters did not have a warrant to search the basement after extinguishing the fire. Nor did the firefighters have warrants to move the containers from the basement to the yard, from the yard to the village of Fontana fire station, or from the fire station to the state crime laboratory. Milashoski moved to suppress the physical evidence against him on the grounds that it was obtained in violation of the fourth amendment's prohibition against unreasonable searches and seizures. The trial court denied the motion, and Milashoski was convicted on one count of manufacturing a controlled substance.
Milashoski made postconviction motions renewing the suppression of the evidence issue and challenging the imposition of a fine as part of his sentence. The trial court denied the suppression motion, and declined to set aside the fine, but modified the judgment to allow Milashoski sixty days from his release from prison to pay the fine, or move the court to assess his contemporary ability to pay.
Here on appeal, the state first argues that Milashoski lacks standing to challenge the seizure of physical evidence in this case. The essence of the standing inquiry is whether the parties seeking to invoke the court's jurisdiction have alleged a personal stake in the outcome which is at once related to a distinct and palpable injury and a fairly traceable causal connection between the claimed injury and the challenged conduct. Bence v. City of Milwaukee, 107 Wis.2d 469, 479, 320 N.W.2d 199, 203-04 (1982) (quoting Duke Power Co. v. Carolina Env. Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978)). This court will not construe the law of standing in Wisconsin narrowly or restrictively. Wisconsin's Envtl. Decade, Inc. v. Public Service Comm'n of Wis., 69 Wis.2d 1, 13, 230 N.W.2d 243, 249 (1975).
The state bases its position on statements Milashoski made to police while in the hospital recovering from the burns he received in the fire. At trial, the interviewing officer testified that when questioned as to the source of the containers, Milashoski said that:
[a]s far as he could recall they were possibly still down there from before, from the previous owner ... and his father [who owned the house] hadn't gotten down there to clean out those items.
This statement, according to the state, indicates an affirmative disclaimer of ownership, and hence constitutes an effective abandonment of any privacy interest that Milashoski may have had in the property.
Although we agree with Milashoski that if the state were to prevail on its standing argument, it would be in the awkward position of having argued for a result which calls into question the connection between Milashoski and the evidence used to convict him, we decide this issue on the strength of another observation. Milashoski argues that because the state conceded the existence of standing in the trial court, it has forfeited the right to make such an objection here on appeal. We agree. At the suppression hearing, limited testimony on the question of standing was presented. The following exchange then took place between the trial judge and the district attorney:
We have permitted a respondent on appeal to offer grounds for affirmance which may be inconsistent with the stand taken at trial. See State v. Holt, 128 Wis.2d 110, 125, 382 N.W.2d 679, 687 (Ct.App.1985). Holt, the seminal case for this proposition, concluded that the state could argue on appeal that there was no error in failing to give an intoxication instruction even though it requested the instruction in the trial court. Id. We did so because the principle underlying the waiver rule--efficient judicial administration--was not served by barring a respondent from asserting a valid ground for affirming the trial court ruling. Id. at 123-24, 382 N.W.2d at 686.
In Holt, the question of whether an intoxication instruction should have been given presented a question of law. See id. at 126, 382 N.W.2d at 687. We conclude that the Holt approach ought not to apply in a case such as this where further fact finding on the underlying question is necessary to a resolution of the issue. In light of the state's concession to standing below, there was no need for either party to develop a full factual basis on the question of Milashoski's ownership of the containers.
Therefore, the only factual predicate upon which we could base a review of standing is the police officer's testimony, set forth above, to the effect that Milashoski said he was not the owner of the containers. The alleged statement of abandonment strikes us as equivocal, at best. We hesitate to tether the abandonment of a constitutional right to statements employing such terms as "possibly" and "as far as he could recall," especially where the declarant was in pain and, according to the officer, under medication.
As noted, the waiver rule is one addressed to the efficient administration of judicial business. Id. at 124, 382 N.W.2d at 686. Whether we apply the waiver rule is addressed to our discretion. Ford Motor Co. v. Lyons, 137 Wis.2d 397, 417, 405 N.W.2d 354, 362 (Ct.App.1987). We may do so where the interests of justice require. Id. If the state had not consented to Milashoski's standing to challenge the...
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