State v. Milashoski

Decision Date25 June 1991
Docket NumberNo. 90-0412-CR,90-0412-CR
Citation471 N.W.2d 42,163 Wis.2d 72
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Steven M. MILASHOSKI, Defendant-Appellant-Petitioner. d
CourtWisconsin Supreme Court

Steven P. Weiss, Asst. State Public Defender, for defendant-appellant-petitioner.

Thomas J. Balistreri, Asst. Atty. Gen., with whom, on the brief, was James E. Doyle, Atty. Gen., for plaintiff-respondent.

DAY, Justice.

This case is before the court on a grant of a petition for review by Steven M. Milashoski of a court of appeals' decision. State v. Milashoski, 159 Wis.2d 99, 464 N.W.2d 21 (Ct.App.1990). The court of appeals affirmed a judgment and sentence of the circuit court of Walworth county, the Honorable Robert J. Kennedy and the Honorable John R. Race, judges, ruling that physical evidence taken from a fire scene, and a crime laboratory analysis of that evidence were not obtained in violation of Milashoski's fourth amendment rights. The court of appeals also upheld the circuit court's $15,000 fine against Milashoski for manufacturing a controlled substance contrary to secs. 161.41(1)(b) and 161.14(4)(n), Stats.1987-88. 1

The issues presented for review are: (1) Were Milashoski's right to be free from unreasonable search and seizure violated when firefighters removed several containers from a fire scene at Milashoski's father's residence and later sent them to the state crime laboratory for testing? and (2) Did the circuit court abuse its discretion in fining Milashoski, an indigent defendant, $15,000 for manufacturing a controlled substance?

We hold that Milashoski's fourth amendment rights were not violated because he had no reasonable expectation of privacy in the containers. Additionally, we hold that the $15,000 fine imposed on Milashoski was not an abuse of discretion.

The facts of this case are as follows. On July 3, 1986, an explosion occurred in the Milashoskis' vacation home in the Village of Fontana. Upon the arrival of the volunteer firefighters, some of whom were police officers, 2 the first floor of the structure was engulfed in flames, with some "combustion" visible on the second floor as well. After extinguishing a blaze in the kitchen, firefighters noticed heat underfoot and proceeded to the basement, where another fire was burning. After these flames had been doused, the firefighters conducted an "overhaul" of the basement. In an overhaul, the firefighters inspect the premises to make sure the fire is completely extinguished. They also salvage valuables if requested to do so by the owner.

During the overhaul, the firefighters saw what appeared to be laboratory equipment together with several liquid-filled containers in the immediate area where the fire had just been burning. The containers included two sealed one-gallon jugs labeled reagent alcohol and vegetable oil, one sealed five-gallon metal can of toluene, and two unmarked unsealed containers containing a clear liquid.

Milashoski, who had been occupying the house when the explosion occurred, had been burned, and was waiting in a neighbor's yard for medical help to arrive. When the firefighters asked him what had happened, he stated that he "was boiling some material for perfume and it exploded." (Transcript of Proceedings, January 17, 1989, p. 42).

Knowing that the liquids in the labeled containers were combustible, and not knowing what was in the unlabeled containers, the firefighters removed all five containers from the basement to the yard next door as a precaution against further outbreaks. One firefighter, who had not been in the basement but was handed an unlabeled container, later became ill from the vapors the container emitted.

By the time the building was rendered safe, Milashoski had already been taken to the hospital. Upon leaving the scene, the firefighters took the containers to the Fontana safety building because they believed it was unsafe to put potentially dangerous chemicals back into a badly burned building or leave them in the yard "where somebody might have gotten hurt." The containers were placed in an area behind the safety building alongside a concrete retaining wall. They were kept outside because of the effect the contents of one of the containers had on the firefighter who became ill. To protect the containers from the elements, and to conceal them from the public, they were covered with a fifty-five gallon metal drum.

Later that evening, a Fontana police officer assigned to investigate the fire interviewed Milashoski in the hospital. The officer testified at trial that Milashoski told him he did not know the nature of the containers found in the basement. Milashoski speculated that the containers may have been left in the basement by the previous owner of the home and that his father had not yet cleaned the items out. 3 He also told the officer that he would be in the hospital overnight for observation and that he would be returning to Illinois the following day. 4

Four days later, the first working day after the fourth of July weekend, the authorities shipped the unmarked containers to the state crime laboratory in Milwaukee where their contents were analyzed. Two of the containers were filled with a concentrated form of bromobenzene, a carcinogenic substance. The third container held bromobenzene mixed with biphenyl and cyclohexanone, and phencyclidine, a controlled substance commonly known as PCP. See sec. 161.14(4)(n), Stats.

On June 18, 1987, the Walworth County District Attorney's office filed a criminal complaint against Milashoski, charging him with the manufacture of PCP, contrary to secs. 161.41(1)(b) and 161.14(4)(n), Stats. Following a preliminary hearing, Milashoski was bound over for trial, and an information was filed, alleging the same offense.

On May 31, 1988, Milashoski filed a motion to suppress physical evidence on the grounds that the evidence was seized without a warrant and in violation of the state and federal constitutions.

Following a hearing on September 19, 1988, the circuit court denied the suppression motion, stating:

I find that they had a right to seize it because it was seized during the fire and as a precaution. They had a right not to leave it in the yard, but to take it with them. The right of privacy is gone at that point. And they have a right, if they want to, to test it for any possible reason they have. Such as, they thought that maybe the combination of these three items had something to do with the bottle that caused the problem; or they felt it might shed some light on why the fire occurred; or whatever.

There is no particular right of privacy that the defendant has at that point.

(Transcript of Proceedings, September 19, 1988, pp. 19-20).

The case proceeded to trial, and on January 19, 1988, a jury found the defendant guilty of manufacturing a controlled substance, as charged in the information.

On March 13, 1988, Milashoski appeared in court for sentencing. Before sentencing, the court considered, among other things, the presentence report, the sentencing guidelines, Milashoski's record, 5 his demeanor, the gravity of the offense, 6 the protection of the public, and Milashoski's rehabilitative needs. The court also considered Milashoski's debts, amounting to $14,200; his only asset, a truck which he valued at $800; and his employment record, which the court described as "excellent." 7 The court stated:

Therefore, under the circumstance, I have to accept the recommendation of the District Attorney and that is for a five year prison term in the Wisconsin State Prison, plus a $15,000 fine. The quantity gives me no other alternative.

(Transcript of Proceedings, March 13, 1989, p. 50). The court also sentenced Milashoski to an additional six months in jail, consecutive to his criminal sentence, if he failed to pay the $15,000 fine by May 13, 1989.

On December 20, 1989, Milashoski filed a motion for post-conviction relief. The motion stated that the circuit court abused its discretion by imposing the $15,000 fine on Milashoski, an indigent defendant, and by failing to consider Milashoski's ability to pay the fine when it was imposed. Milashoski also objected to the six months in jail as a penalty for nonpayment of the fine by May 13, 1989.

The court amended the judgment of conviction, allowing Milashoski sixty days after his discharge from prison to pay the fine of $15,000. If Milashoski was unable to pay the fine within sixty days after his discharge, the judge said he could bring an appropriate motion before the court, and the court would exercise its discretion to determine whether the fine should be modified to reflect Milashoski's then current ability to pay. The court also vacated the penalty for nonpayment of the fine by May 13, 1989.

Milashoski appealed the judgment of conviction and post-conviction order. The court of appeals, addressing the question of the seizure and testing of the containers removed from the Milashoski basement, held that at trial, the State conceded the issue of standing to object to a search and seizure. Milashoski, 159 Wis.2d at 108, 464 N.W.2d 21. The court also held that the containers were lawfully seized and tested pursuant to the "render safe" doctrine. Under the "render safe" doctrine:

an owner forfeits any reasonable expectation of privacy that may inhere in his or her property when it is discovered by authorities responding to an emergency, and the property is either known to be dangerous or believed potentially dangerous to the investigating authorities or the public.

Id. at 116, 464 N.W.2d 21.

Milashoski petitioned this court for review which was granted on January 10, 1991.

Milashoski does not dispute the assertion that the firefighters had a right to remove the containers from the residence because they thought they might be dangerous. He claims, however, that once the containers were removed, he did not lose all property interests in them, allowing the...

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    • United States
    • Wisconsin Supreme Court
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    ...421, 430, 430-31 n. 12, 58 L.Ed.2d 387 (1981); State v. Whitrock, 161 Wis.2d 960, 974, 468 N.W.2d 696 (1991).6 State v. Milashoski, 163 Wis.2d 72, 85, 471 N.W.2d 42 (1991) (quoting State v. Rewolinski, 159 Wis.2d 1, 13, 464 N.W.2d 401 (1990)). See also California v. Ciraolo, 476 U.S. 207, 2......
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    ...reasonable or legitimate expectation of privacy in the place invaded. State v. Dixon , 177 Wis. 2d 461, 468, citing State v. Milashoski , 163 Wis. 2d 72, 85 (1991). Courts have looked to see if “(1) whether the individual has by his or her conduct exhibited an actual (subjective) expectatio......
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