State Of Wis. v. Artic
| Decision Date | 15 July 2010 |
| Docket Number | No. 2008AP880-CR.,2008AP880-CR. |
| Citation | 786 N.W.2d 430,2010 WI 83 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent,v.Robert Lee ARTIC, Sr., Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
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For the defendant-appellant-petitioner there were briefs filed by Keith A. Findley, James D. Cooley, and the Frank J. Remington Center, University of Wisconsin Law School, Madison, and oral argument by Keith A. Findley.
For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
¶ 1 This is a review of a published decision of the court of appeals State v. Artic, 2009 WI App 12, 316 Wis.2d 133, 762 N.W.2d 436, which affirmed the judgment of the Milwaukee County Circuit Court, Timothy Witkowiak, Judge.
¶ 2 Robert Lee Artic, Sr. (Artic) moved to suppress evidence discovered during a search of his residence on grounds that police obtained the evidence in violation of the Fourth Amendment to the United States Constitution. The circuit court denied the motion, and a jury convicted Artic of one count of maintaining a drug trafficking place 1 and one count of possession with intent to deliver cocaine as party to a crime.2 Artic brought a postconviction motion alleging that trial counsel was ineffective for failing to preserve the argument that the police manufactured exigent circumstances to enter Artic's house without a warrant and for failing to object to testimony by an officer of observations she made while she was in Artic's back yard. The circuit court denied this motion, finding that even if trial counsel had made those arguments, the court would have rejected them because it was reasonable for the police to believe that evidence was being destroyed.
¶ 3 Artic appealed. The court of appeals unanimously affirmed on the alternative grounds that while exigent circumstances to enter Artic's house did not exist, the search of his upstairs residence was sufficiently attenuated from the illegal entry of the house to purge the taint of that entry.
¶ 4 We are presented with two issues: (1) whether Artic voluntarily gave consent for the police to search his upstairs residence; and (2) whether that search was sufficiently attenuated to purge the taint of the illegal entry of Artic's house.
¶ 5 We conclude that Artic voluntarily gave police officers consent to search his residence, namely, the upstairs unit of his house. We also conclude, based on the three-factor attenuation test established in Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), that the search was sufficiently attenuated to purge the taint of the illegal entry of Artic's house. For these reasons, Artic was not prejudiced by his counsel's failure in the suppression motion to raise the argument that the police created their own exigent circumstances and to object to testimony about observations made illegally from within the curtilage of Artic's house. Accordingly, we affirm the decision of the court of appeals.
¶ 6 The relevant facts are as follows. On January 29, 2006, the Milwaukee Police Department was conducting a narcotics investigation in the 3200 block of North 15th Street in Milwaukee, based on information that a person named Rob would pick up a quantity of cocaine at a house on 15th Street and deliver it to a confidential informant. The informant said that he had ordered four and a half ounces of cocaine from Rob for $3,200. He described Rob as a black male, approximately six-foot tall and 280 to 300 pounds, and said that Rob would arrive in a teal colored minivan. According to the informant, Rob would arrive in the minivan, go into the house to retrieve the cocaine, return to the minivan, and wait for the informant. Six narcotics officers were positioned to observe the house at 3206 North 15th Street.
¶ 7 At about 7:45 p.m., a van, which the informant identified as Rob's vehicle, arrived and parked several houses away from 3206 North 15th Street. Rob, later identified as Robert Artic, Jr., the son of Robert Artic, Sr., exited the vehicle. The informant identified him as the person who would have the drugs. The officers then observed Rob walk in the front door of 3206 North 15th Street. He was in the building for less than five minutes. When Rob returned to the minivan, he was arrested, and officers obtained two baggies of cocaine from the floor of his van.
¶ 8 After arresting Rob, the officers placed him in an undercover police vehicle. They planned to discreetly secure the house, obtain a search warrant for it, and talk to Rob at a different location so that they would not alert anybody to police presence on the block.
¶ 9 Before obtaining a warrant, Detective Mark Wagner and Officer David Lopez went to the front door to perform a “knock and talk” to determine if anybody was in the house. Wagner knocked on the front door for approximately 20 seconds, announcing “Milwaukee Police” in a loud voice. In the process, Wagner noticed that a window was covered with cardboard and that a video camera was pointed toward the front porch.
¶ 10 Meanwhile, Detective Nicole Davila went around to the back of the house to ensure that no one attempted to escape. Davila walked into a fenced-in back yard to a door at the rear of the house.3 She saw a light on through a small window on the second floor. While Wagner was knocking at the front door, Davila saw the light go off. Davila also heard what sounded like multiple people scurrying up and down the stairs inside the house. On separate occasions she heard a phone in the upstairs unit begin to ring and then stop ringing. She conveyed these observations to Detective Wagner and Officer Lopez, who were at the front of the building, by yelling and utilizing a Nextel police radio.
¶ 11 After Wagner knocked on the door for more than 30 seconds, and upon hearing Davila's reports of movement, the officers decided to force entry into the building. To enter the building, the officers were required to pass through two doors. Lopez forced the outer front door open by kicking it. However, he was unable to force the inner door after numerous attempts. He then broke the window on the door, reached in, and unlocked the inner door from the inside.
¶ 12 After opening the inner door, the officers began to search the first floor of the building. They located a person named Matthew sleeping in a rear bedroom. The first floor appeared to be in the process of renovation. The officers found a dining room that was being renovated, a bedroom that appeared to belong to a female, and a kitchen area that was being remodeled. In the kitchen area they observed drywall, the absence of furniture, exposed plumbing, and a garbage can containing work supplies and tools. Just off this kitchen area was a newly renovated bathroom.
¶ 13 Wagner followed a separate hallway in the back of the first floor that led up to the second floor. At the top of the stairs, he encountered a closed door. Wagner was unsure whether the second floor was a separate unit or part of a single-family residence. Because of his uncertainty, he knocked on the upstairs door and announced “Milwaukee Police.” A male voice answered “Just a minute,” and shortly afterwards, Artic answered the door. Wagner testified that he had his weapon drawn when he first entered the building, but holstered it either when he was knocking on the upstairs door or when Artic answered the door. Artic testified that Wagner had his gun drawn when he answered the door, but holstered it after the police entered the upstairs unit.
¶ 14 Wagner asked if he could come in and talk to Artic; Artic responded yes. 4 Wagner asked if anyone else was in the residence. Artic responded that he had a lady friend in the back room who was not dressed. Wagner asked Artic to ask her to get dressed and come out to the kitchen. The officers waited for the woman, later identified as Winnie Grafton. After Grafton arrived, Wagner began to speak with Artic and Grafton while they were seated at the kitchen table. Wagner asked Artic if he owned the building, and Artic replied that he did. He explained that it was a duplex and that he was converting the entire building into a single-family residence. During the initial conversation with Artic, Wagner was accompanied by only one other officer. Lopez entered the upstairs unit as Artic and Wagner were speaking. Several other officers entered the unit afterwards.
¶ 15 Wagner explained to Artic that his son had just been arrested with a large amount of cocaine. He asked whether Artic believed his son would have left any cocaine in the house because the officers observed him enter and then leave the building. Artic said he did not think his son would do something like that and told the officers it was okay for them to search the residence. Artic stated that he had nothing to hide and wanted to be forward with the police. He also explained to them that he was on supervisory release.
¶ 16 After gaining oral consent from Artic, Wagner asked if Artic would consent in writing, and he began writing out a consent agreement. Artic stated that he would not sign anything without his lawyer, but reaffirmed that it was okay for the police to search. Wagner testified that he made no promises or threats to Artic in order to gain consent. After Artic refused to sign the form, Wagner and Artic continued to speak about “family and stuff” in the kitchen.
¶ 17 The officers then searched Artic's residence. During the search, they discovered a “California safe” of Gunk Big Puncture seal, which was a fake pressurized can with a screw-off bottom. The can contained coffee grounds and a plastic baggie containing a white residue. The officers also recovered sandwich baggies, latex gloves, a razor...
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