Bies v. State, 75-746-CR

Citation76 Wis.2d 457,251 N.W.2d 461
Decision Date15 March 1977
Docket NumberNo. 75-746-CR,75-746-CR
PartiesStanley A. BIES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
CourtUnited States State Supreme Court of Wisconsin

Howard B. Eisenberg, State Public Defender, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., and Marguerite M. Moeller, Asst. Atty. Gen., for defendant in error.

ABRAHAMSON, Justice.

Stanley A. Bies, hereinafter referred to as the defendant, was charged with stealing approximately $1,100 worth of telephone cable belonging to the Wisconsin Telephone Company from a construction site in Walworth county. Sec. 943.20(1)(a), Stats. 1 He was convicted upon a plea of guilty, which was entered following denial of his motion to suppress certain evidence seized in a search of his garage on January 25, 1975. Pursuant to sec. 971.31(10), Stats., defendant obtained a writ of error to review the trial court's denial of that motion.

The chief witness at the suppression hearing was Eric M. Johnson, a police officer of the city of Burlington. The officer testified that shortly after midnight in the early morning hours of January 25, 1975, while he was on patrol, he received a radio message directing him to investigate a noise complaint in an alley in a garage in the 500 block of West State street. Defendant's residence was located at 533 West State street, but access to his garage was via an alley south of State street apparently running parallel thereto. Johnson testified that the message specified that the noise was "in the area of the Stanley Bies garage." It was brought out on cross- examination, however, that at the preliminary examination Johnson had testified that the message had not specified any particular location: "just in the alley there in one of the garages." The officer testified he was familiar with the defendant's residence and garage and had been there before.

After receiving the message he drove his squad car to the alley and proceeded into the alley in a westerly direction. The light was on inside defendant's garage at this time, but the light went out as the officer's car approached the garage. This light was the only one the officer remembered seeing in the alley. The officer pulled up in front of the garage's overhead doors, which faced the alley, set back from it about 15 feet, and got out of his car to see what was going on inside.

The officer testified that he attempted to look into the garage through the windows in the overhead doors, using his flashlight, but he was unable to see anything due to dirt and moisture on the glass. He then went to a window on the east side of the garage but again could not see through the glass. The officer then proceeded to the rear of the garage where he found a walk-in doorway, not visible from the alley, from which the door was missing. Upon shining his flashlight in the doorway he observed an estimated 25 to 50 feet of what he recognized as 3 inch telephone cable lying around, in pieces, as well as an axe, some broken concrete blocks, and a Plymouth station wagon. At this point, without having entered the garage, the officer returned to his squad car and informed police headquarters of what he had observed. He was joined at the scene by another officer, Sergeant Himberg, and the two men then entered the garage, found no one present, seized a piece of the cable for possible use as evidence, and returned to the police station. Neither officer had permission to be on the premises, nor did they have a warrant.

At no point while the officer was in the alley did he hear any noise. There had been no thefts of telephone cable (or apparently of anything else) reported to the police. The officer testified that he had formerly been employed for six months by the Western Electric Company at a plant that manufactured telephone cable, and that he recognized the cable in the defendant's garage as telephone cable. He further stated that "I realize from my past experience that the only part(y) who can obtain cable like that is the telephone company." A defense objection that the officer was not qualified to give the quoted testimony was overruled, the court stating that such testimony was proper for a lay witness.

After leaving defendant's garage the officers took the piece of cable to the police station and went out along Highway 11 to a point where the officers knew that underground cable was being laid. They found various indications that someone had chopped up and removed cable from the site.

The sole question in this case is whether the police officers' observation of the telephone cable in defendant's garage and the seizure of a piece of the cable were in violation of defendant's rights under the Fourth Amendment to the United States Constitution to be free from unreasonable search and seizure.

It is not disputed that the interior of defendant's garage was within the Fourth Amendment's protection. The garage was located within the curtilage of his dwelling, and it was not in any sense a semi-public area. The overhead garage door facing on the public alley was shut, reflecting a reasonable expectation of privacy as to the interior of the garage. The open door at the rear of the garage, facing toward the interior of defendant's lot and invisible from the street, did not indicate the contrary. See Conrad v. State, 63 Wis.2d 616, 625-634, 218 N.W.2d 252 (1974); Ball v. State, 57 Wis.2d 653, 659-664, 205 N.W.2d 353 (1973).

The United States Supreme Court has stated that "the most basic constitutional rule in this area" of search and seizure is that searches conducted without a warrant are per se unreasonable, subject only to a few specific and well-delineated exceptions; the exceptions to the rule are "jealously and carefully drawn;" and the burden of showing that a case falls within an exception is upon the state. Coolidge v. New Hampshire, 403 U.S. 443, 454, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Pires, 55 Wis.2d 597, 603, 201 N.W.2d 153 (1972).

There was no warrant issued to search defendant's garage. The trial court was of the opinion that if the seizure herein was to be upheld, it would be under the "plain view" doctrine, and the state does not here urge any other justification. This seems correct.

The "plain view" exception to the warrant requirement may justify a seizure only where the following criteria are met: 2

(1) The officer must have a prior justification for being in the position from which the "plain view" discovery was made;

(2) The evidence must be in plain view of the discovering officer;

(3) The discovery of the evidence must be inadvertent; and

(4) The item seized, in itself or in itself with facts known to the officer at the time of the seizure, provides probable cause to believe there is a connection between the evidence and criminal activity. Coolidge v. New Hampshire, supra, 403 U.S. at 464-473, 91 S.Ct. 2022; State v. Elam, 68 Wis.2d 614, 621, 622, 229 N.W.2d 664 (1975); Day v. State, 61 Wis.2d 236, 248, 212 N.W.2d 489 (1973). 3

The key question here is that of prior justification: Did Officer Johnson have a right to go to the rear of defendant's garage and place himself in a position such that he could, with the aid of his flashlight, observe objects in plain view on the garage floor? We note at the outset and defendant does not dispute that Fourth Amendment questions do not turn on whether a civil trespass was committed by the police. 4 The trial court took the view, urged here by the state, that the officer's conduct was justifiable as a reasonable investigation in response to the noise complaint radio message and the extinguishment of the garage light as the officer approached the garage. In urging the contrary defendant emphasizes that the noise complaint was anonymous and unspecific, that the officer heard no noise and saw no evidence of improper activity when he arrived, and that there had been no reports of crime in the area. Defendant appears to concede that the officer could properly have approached the garage and looked into the windows in the overhead door, which faced the street, but defendant disputes his right to have gone around behind the garage to the rear doorway.

It is undisputed that Officer Johnson did not have probable cause to believe that a crime was being committed by defendant or anyone else when he arrived at the garage. However, the freedom of the police to act is not limited to cases where there is probable cause as to the commission of crime. Police have the right to undertake "legitimate and restrained investigative conduct . . . on the basis of ample factual justification" even though that justification falls short of what would be required to support arrest or formal search. Terry v. Ohio, 392 U.S. 1, 15, 88 S.Ct. 1868, 1876, 20 L.Ed.2d 889 (1968). In Terry the Court recognized the existence of

"(a) rubric of police conduct . . . which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved . . . must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." 392 U.S., at 20, 88 S.Ct., at 1879.

In Browne v. State, 24 Wis.2d 491, 507, 129 N.W.2d 175, 182 (1964), cert. den. 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 706, this court acknowledged that police may investigate claims of crime on evidence not sufficient to justify an arrest, and stated "Although both the Fourth Amendment and sec. 11, art. I (Wis.Const.) protect against police invasion of personal privacy, police officers should be permitted to conduct a reasonable investigation when their suspicion has been reasonably aroused. Whether an inquiry is considered reasonable must depend upon the facts in each case and must turn on the application of what is essentially an indeterminate and flexible test."

The standard is an objective one:

"(W)ould the facts available to the...

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