State v. Anderson

• Decision Date: 11 December 1991
• Docket Number: No. 90-0125-CR,90-0125-CR
• Citation: 477 N.W.2d 277,165 Wis.2d 441
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Scott C. ANDERSON, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 277

477 N.W.2d 277

165 Wis.2d 441

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Scott C. ANDERSON, Defendant-Appellant.

No. 90-0125-CR.

Supreme Court of Wisconsin.

Argued Oct. 4, 1991.

Decided Dec. 11, 1991.

Maureen McGlynn Flanagan, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen., for plaintiff-respondent-petitioner.

Terry W. Rose and Rose & Rose, Kenosha and oral argument by Terry W. Rose, for defendant-appellant.

CECI, Justice.

This case is before the court on petition for review of a published decision of the court of appeals, State v. Anderson, 160 Wis.2d 307, 466 N.W.2d 201 (Ct.App.1991). The court of appeals reversed a judgment of conviction entered by the circuit court for Kenosha County, Bruce E. Schroeder, Circuit Judge. Following a jury trial, the defendant was convicted of two counts of burglary. He was sentenced to an indeterminate term of not more than two years in the Wisconsin State Prison on count one and to a consecutive term of not more than four years on count two. Execution of the sentence on count two was stayed pending successful completion of four years' probation, to run consecutively to the prison term imposed in count one.

The court of appeals reversed the conviction on the grounds that the evidence obtained from the defendant's statement and consent to search his garage was tainted by two prior warrantless searches. Because we find the statement and resulting search sufficiently attenuated from the two prior searches, we reverse the decision of the court of appeals.

The facts of this case follow. During February 3-6, 1989, a series of burglaries took place at a storage warehouse in Kenosha, Wisconsin. While investigating on the morning of February 6, 1989, the police noticed fresh footprints in the snow and other tracks which led from the door of the warehouse to a location close to where the defendant lived. The investigating officer decided to question the residents in the area to ascertain if they had noticed anything peculiar the night before. While knocking on the defendant's neighbor's door, the officer noticed a shopping cart in the defendant's backyard. Thinking that the tracks leading from the warehouse could have been made by a shopping cart, the officer took the owner of the warehouse to the neighbor's driveway. Viewing the shopping cart from the neighbor's driveway, the owner identified the cart as one of the stolen items.

Between 2:00 and 3:00 p.m. that same day, two detectives knocked on the defendant's door. The defendant's 15-year-old daughter answered the door and said she was the only one home. The detectives told the girl that there had been some burglaries in the neighborhood and that the cart appeared to be one of the stolen items. They asked her if she wanted them to check her garage to see if anything was missing. She assented and accompanied the detectives to the garage. Upon entering the garage, the detectives noticed many items that matched the description of the property missing from the warehouse. The warehouse owner also identified many items in the garage as those that had been stolen. None of the items were seized at that time.

One of the detectives stayed to observe the defendant's home from a police car while the other returned to the police station to obtain a search warrant. At the station, the detective filled out a form entitled "Affidavit For Search Warrant." He took the form to an assistant district attorney who reviewed it and filled out more forms. The detective then signed the affidavit and swore to it in the presence of a circuit court judge, who acknowledged the officer's oath. The record does not contain an actual search warrant, and the circuit court did not find that a warrant was issued.

The detective returned to the defendant's home, where he and his partner attempted to gain access to search the home. No one answered the door, so the detectives waited until the defendant's wife came home between 5:00 and 5:30 p.m. The defendant's wife refused to let the detectives search the home or garage unless her husband assented or unless the police executed a search warrant. The defendant's wife telephoned the defendant at a tavern, and he told her he would be home soon. When the defendant telephoned from a second tavern, the defendant's wife led police to that tavern to look for the defendant, but he was no longer there. The police returned to the defendant's home and executed what they claimed to be a search warrant, but which was actually the previously mentioned affidavit for a search warrant. The police searched the defendant's home and garage and seized the items that they believed belonged to the warehouse owner.

The defendant later testified that he returned home at 1:00 a.m. His wife informed him of the two searches the police had conducted and of the items the police had seized.

The next morning, the detectives went to the defendant's home to arrest him on an outstanding traffic warrant and to question him about the burglaries. They awoke the defendant at 7:30 a.m., and he stated that he had intended to telephone the police when he awoke. While transporting the defendant to the police station, the detectives and the defendant had some humorous conversation about one of the detectives dipping his tie into a bucket of oil in the defendant's garage the previous day. The defendant testified that the joke during the ride was that "I owe him a tie."

At the police station the defendant received Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) and signed a waiver of constitutional rights form. At 8:15 a.m., the defendant began to give his statement in which he admitted having taken the items from the storage warehouse. After being shown the items that the detectives had seized during the second search, the defendant volunteered that there were more items in the garage that had come from the warehouse that the police had missed. The defendant signed a consent to search and seize form and returned to his home with the detectives for a third search of his garage. During the third search, the police seized the remaining items which the defendant had admitted taking from the warehouse.

At the conclusion of the third search, the defendant returned to the police station with the detectives. The defendant's statement was typed, and he signed it.

Prior to trial the circuit court conducted a suppression hearing to determine if the searches and evidence seized during the searches were admissible. The defendant's wife and 15-year-old daughter both testified that the daughter could not have friends over or let anyone into the house without her parents' permission. The circuit court ruled that the first search was invalid as the defendant's daughter did not have common authority over the premises and therefore could not legally give consent to search the garage. The circuit court ruled that the second search and the evidence seized in that search were invalid because the police did not have a search warrant and because the affidavit for the warrant was based on information obtained during the first illegal search. The first two searches and evidence obtained during those searches were therefore excluded.

The circuit court ruled that the third search and the evidence seized during the third search were admissible, as the shopping cart in the defendant's backyard would have led to a continuing police investigation even in the absence of the two illegal searches. The circuit court also reasoned that the defendant had failed to demonstrate any police exploitation of the two prior searches. The third search and the defendant's statement were, therefore, sufficiently attenuated from the two illegal searches. Following a jury trial, the circuit court entered a finding of guilty on both counts of burglary, in violation of sec. 943.10(1)(a), Stats.

The court of appeals reversed the conviction on the grounds that the third search was the product of the two prior illegal searches. The court of appeals' opinion concluded that the defendant's "confession and consent were the products of the fourth amendment violation because Anderson would not have confessed or consented to the third search of his garage if the police had not already searched his garage twice without a warrant." Anderson, 160 Wis.2d at 323, 466 N.W.2d 201. The court of appeals rejected the attenuation analysis performed by the circuit court. The state petitioned for review.

The defendant argues that the first two searches of his home were contrary to the Fourth Amendment of the United States Constitution. He also argues that his statement and the third search of the home were obtained by police exploitation of the two previous searches. He concludes that because the statement and evidence obtained during the third search were fruits of the two prior illegal searches, they should have been suppressed.

Whether evidence should be suppressed because it was obtained pursuant to a fourth amendment violation is a question of constitutional fact. We independently review constitutional fact questions. State v. Woods, 117 Wis.2d 701, 715-16, 345 N.W.2d 457 (1984), habeas corpus granted sub nom. Woods v. Clusen, 605 F.Supp. 890 (E.D.Wis.1985), aff'd 794 F.2d 293 (7th Cir.1986).

The court of appeals' opinion did not apply the attenuation analysis found in Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975). We discussed Brown in State v. Walker, 154 Wis.2d 158, 186-87, 453 N.W.2d 127 (1990), and reversed and remanded with directions to the circuit court to apply the factors set forth in Brown. Today we reaffirm that the Brown analysis is the proper test to follow in attenuation cases.

The primary concern in attenuation cases is whether the evidence objected to was obtained by exploitation of a prior police illegality or instead by means sufficiently attenuated...