Conrad v. State

• Decision Date: 04 June 1974
• Docket Number: No. S,S
• Citation: 218 N.W.2d 252,63 Wis.2d 616
• Parties: Dennis E. CONRAD, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 50.
• Court: Wisconsin Supreme Court

Page 252

218 N.W.2d 252

63 Wis.2d 616

Dennis E. CONRAD, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 50.

Supreme Court of Wisconsin.

June 4, 1974.

Robert O. Weisel, Rice Lake, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

HEFFERNAN, Justice.

Conrad argues on this appeal, as he did at trial and at the hearing on the motion to suppress evidence, that the finding of the body of Marie should be excluded because the body was buried under the rock pile in the 'reasonable expectation of privacy.' Thus, it is reasoned that the situation in the instant case is one that is afforded the protection of the Fourth Amendment to the Constitution of the United States and the identical provision of the Wisconsin Constitution.

The reasoning is arguably derived from Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. The Katz rationale was restated in Terry v. Ohio (1968), 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889:

'We have recently held that 'the Fourth Amendment protects people, not places,' . . . and wherever an individual may harbor a reasonable 'expectation of privacy,' id., at 361, . . . he is entitled to be free from unreasonable governmental intrusion.'

A case decided by this court also relied upon the test of Katz-Terry. In Ball v. State (1973), 57 Wis.2d 653, 205 N.W.2d 353, we held illegal a warrantless search of a garbage can in which loot from a burglary had been placed. We said, 'that the trash barrel was within defendant's expectation of privacy and the search of it was unlawful.' (P. 664)

In the case before us it cannot be doubted that whoever buried Marie's body under the rock pile did so in the expectation that it would remain hidden. It was buried, arguendo, in the reasonable expectation of privacy.

Conrad argues that, if a body is concealed under those circumstances, a search could be undertaken only by warrant after a showing of probable cause.

If Conrad is correct, i.e., that evidence was within the ambit of the Constitution's protection, a warrantless search, except in circumstances not applicable here, is unreasonable per se and the evidence of the body's discovery and the evidence gleaned by exploitation of the original search by the issuance of a subsequent warrant must be suppressed.

The doctrine (the reasonable expectation of privacy) upon which Conrad relies is in contradistinction to the state's reliance upon the 'open fields' doctrine which permits a warrantless search under some circumstances.

The 'open fields' doctrine was first stated by the United States Supreme Court in Hester v. United States (1924), 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898. Therein Justice Holmes said:

'. . . the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law. 4 Bl.Comm. 223, 225, 226.'

The Hester Case originated in a revenue agent's stake-out of the home of Hester's father. Hester was seen from a distance of 50 to 100 yards handing a bottle to a person who was thought to be a customer for bootleg whiskey. Hester took alarm, went to his car, took a jug therefrom, and ran through the fields. Both the bottle carried by the customer and the jug carried by Hester were thrown into an open field. Both broke, but each contained enough liquid so it could be determined that the liquid was bootleg whiskey. The broken containers were examined by revenue agents where they had been dropped.

The United States Supreme Court held that, even though there was a trespass, the evidence was not obtained by an illegal search or seizure. The court, although pointing out that the whiskey was 'abandoned,' rested its holding on the fact that the protectional umbrella of the Fourth Amendment does not cover 'open fields.'

The reliance of Mr. Justice Holmes upon Blackstone has been criticized because the cited pages are concerned with the common law distinction between burglary of a dwelling and a theft from distant outbuildings. Be that as it may, the rule of Hester has been accepted as a definitive statement of constitutional law since that date. The fact that its precedential underpinnings are questionable in no way vitiates the clarity of the rule expressed therein, nor does it weaken the court's declaration of the appropriate standard to be applied in gleaning evidence from the examination of open fields.

Unless Hester has been altered by the United States Supreme Court, or by this court, which can give even a greater constitutional protection than the United States Supreme Court would insist upon, Hester remains authoritative.

Under Hester, even though the sheriff in this case committed an outrageous trespass, the evidence of the corpse was admissible although the body was buried in the soil under a rock pile. The 'open fields' doctrine is predicated on the theory that the protection of the Fourth Amendment is to 'persons, houses, papers and effects.' Under that theory, the Fourth Amendment affords no protection to evidence either on or in the ground, unless the particular area in question is so intimately related to a protected area that it can come within the concept of curtilage.

Under the 'open fields' doctrine, the fact that evidence is concealed or hidden is immaterial. The area is simply not within the protection of the Fourth Amendment. If the field where the body was found does not have constitutional protection, the fact that the sheriff, rather than observing the evidence that might have been in plain view, dug into the earth to find the body and committed a trespass in so doing does not confer protection.

In United States v. Brown (5th Cir. 1973), 473 F.2d 952, the 'open fields' doctrine was applied to admit evidence that the F.B.I. obtained only by digging under a chicken coop in an open field.

In Care v. United States (10 Cir. 1956), 231 F.2d 22, cert. den. 351 U.S. 932, 76 S.Ct. 788, 100 L.Ed. 1461, the 'open fields' doctrine was applied to permit the introduction of evidence relating to the discovery of a still which was concealed in a cave about 125 yards from the house. The holding emphasized that it was the curtilage that was protected, that the protection of the Fourth Amendment against unreasonable search and seizure does not apply to an open field.

'Whether the place searched is within the curtilage is to be determined from the facts, including its proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family.'

Inferentially, the defendant concedes that if the 'open fields' doctrine remains an acceptable rule of law, the search and seizure did not violate the Constitution and the evidence was properly admitted.

Defendant urges that Katz v. United States, supra, sounded the death knell of the 'open fields' doctrine, and overruled, sub silentio, Hester. We do not see that such a broad sweep can be given to the language of Katz. Katz involved the eavesdropping on a telephone conversation--a wire tap on a phone booth that was apparently an isolated structure. In that case, the government argued that there was no violation of a constitutional right because there was no physical intrusion of any device into the booth. This argument was rejected on the reasoning of Silverman v. United States (1961), 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, that a technical trespass under property law was irrelevant to the question of Fourth Amendment protection--a position that was also stated in Hester, supra. In Katz, however, the trespass doctrine was definitively rejected. The court held that:

'The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment.' (Emphasis supplied.) (389 U.S. at p. 353, 88 S.Ct. at p. 512.)

What Katz emphasized is the right of a person--the caller from the phone booth--to be secure from an unreasonable search and seizure, the interception of his conversation. Katz spells out the not very novel idea that a person, clearly protected by the Constitution, is afforded the protection of the Constitution wherever he may be, and that protection is afforded even if there is no technical trespass in a common law property sense. Once it was conceded, as the majority of the United States Supreme Court has, Justice Black notwithstanding, that a verbal communication is a 'thing' subject to seizure, the Katz ruling was inevitable. Where the person was when he uttered the 'seized' statement is irrelevant and the person's utterance is protected. True, as Katz makes clear, he could waive the right by evincing an election not to keep his utterances private--an election clearly not made when calling from a closed telephone booth. Hence the language:

'. . . the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' Katz, p. 351, 88 S.Ct. at p. 511.

The importance of Katz is not that it spreads the umbrella of the Fourth Amendment to a telephone booth, but that it foretold the possibility that, even in a place traditionally thought to be an area protected by the Fourth Amendment, protection would not be afforded in the absence of a subjective intent to exercise a reasonable expectation of privacy. The concept of a protected area remains. A home is such an area, and so is the curtilage surrounding a home; but as noted in Katz (fn. 9, p. 351, 88 S.Ct. at p. 511), the United States Supreme Court has 'never suggested that this concept can...