State v. Artic
| Decision Date | 09 December 2008 |
| Docket Number | No. 2008AP880-CR.,2008AP880-CR. |
| Citation | 2009 WI App 12,762 N.W.2d 436 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Robert Lee ARTIC, Sr., Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of James D. Cooley of the Criminal Appeals Project, Frank J. Remington Center, University of Madison Law School, Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Thomas J. Balistreri, assistant attorney general.
Before FINE, KESSLER and BRENNAN, JJ.
¶ 1
Robert Lee Artic, Sr. appeals from a judgment entered after a jury found him guilty of one count of maintaining a drug trafficking place, contrary to Wis. STAT. § 961.42(1) (2005-06)1 and one count of possession with intent to deliver cocaine as a party to a crime, contrary to WIS. STAT. §§ 961.41(1m)(cm)4. and 939.05. Artic claims the trial court erred in denying his suppression motion, seeks reversal of the postconviction order denying his postconviction motion alleging ineffective assistance of trial counsel and requests that we vacate the judgment.
¶ 2 Artic raises three issues: (1) defense counsel was ineffective for failing to argue at the suppression motion hearing that the police manufactured exigent circumstances; (2) defense counsel was ineffective for failing to argue at the suppression motion hearing that the police were impermissibly within the constitutionally-protected curtilage of Artic's home when they made observations of alleged exigencies; and (3) the trial court erred in denying the defendant a Machner2 hearing on the suppression motion arguments. All of Artic's arguments go to the lawfulness of the initial entry into the building at 3206 North 15th Street.
¶ 3 We hold that even if the entry to the building was unlawful, the subsequent search of Artic's upstairs residence was a lawful consensual search, which was sufficiently attenuated from the unlawful entry into the building. Therefore, even if Artic's trial counsel's performance was deficient in failing to challenge the initial entry, Artic was not prejudiced by this failure. Accordingly, we affirm.3
¶ 4 On January 29, 2006, at approximately 6:00 p.m., City of Milwaukee Police were notified by a confidential informant that a person named "Rob" would be engaged in some type of drug transaction in the 3200 block of North 15th Street on Sunday, January 29, 2006. The informant stated that Rob would go to a house on that block, retrieve the cocaine, and return to the vehicle to complete the sale. The informant also told police that Rob was a black male, approximately thirty years old, six-feet tall, who weighed about 280-300 pounds. Three undercover police vehicles were sent to the 3200 block of North 15th Street to conduct surveillance. Detective Brian Stott, Detective David Metz and the informant were in one vehicle. Officer David Lopez and Detective Mark Wagner were in a second vehicle, and Officer Michael Washington and Detective Nicole Davila were in a third vehicle. All were dressed in plain clothes, but some had police markings on their clothing.
¶ 5 At approximately 7:50 p.m., police observed a green mini-van drive up and park in front of the residence at 3214 North 15th Street. A black male, fitting the description of Rob, exited the vehicle and entered the residence at 3206 North 15th Street. After a brief time inside the residence (less than five minutes), Rob was seen leaving the residence. Immediately after Rob entered the mini-van, police approached the van. They saw two clear plastic bags, containing a white powdery substance on the floor to the right of the driver's seat. The substance was believed to be cocaine. It was subsequently tested and confirmed to be cocaine. The two bags together weighed a total of 4.67 ounces.
¶ 6 Rob, whose full name is Robert Lee Artic, Jr. (Artic, Sr.'s son), was arrested for possession of cocaine with intent to deliver. Lopez testified that Rob cooperated with police. The police testified at the suppression hearing that after arresting Rob, they cleared the scene to avoid alerting the neighborhood to their presence. Stott testified that the plan was to "secure the residence in a discreet manner, obtain a search warrant and talk to Robert Artic Jr., in a different location so no one would know the police were on the block." Stott indicated that he was going to verify with Rob that no one was in the residence, and then obtain a search warrant for the residence. As Stott was seated in the squad car with Rob waiting for a van to take him downtown, Wagner and Metz went up to the door to verify that no one else was inside. Wagner testified that they went to the house, "To conduct-to contain the residence and secure it at that point to see if anybody lived at the residence and if need be, apply for a warrant."
¶ 7 Wagner and Lopez went to the front, downstairs door of the building. Wagner knocked first, and when there was no answer, he knocked and announced "Milwaukee Police" multiple times. The police observed a video camera in the front porch area, which they learned later was connected to a monitor on the second floor. The video camera allowed the second-floor resident to see who was at the front door of the residence.
¶ 8 Davila went to the rear, southeast corner of the residence. Her responsibility was to make sure no one escaped out the back of the residence. Upon approaching the southeast rear of the home, Davila noticed a light coming from the second floor. She also heard footsteps, going up and/or down a staircase and a phone ringing from the upstairs and then stop ringing. She noticed the second floor light go off sometime during the time Wagner was knocking and announcing at the front door. She relayed all of this information to Wagner and Lopez, either by radio or by shouting. She then heard the police at the front of the residence break open the front door and enter the residence. The police found an individual identified as Matt Whaylon, asleep in one of the downstairs bedrooms. The downstairs was dark, but appeared to be in a state of construction or remodeling.
¶ 9 While some of the police officers secured the first floor, Wagner ascended the stairway to the second level flat and knocked on the door. Wagner testified that he had his gun drawn when he entered the residence and as he knocked on the second-floor door. He testified that he holstered it as Robert Artic, Sr. opened the door. There were other officers behind him who also entered the apartment. What happened after Artic opened the door was disputed. Wagner testified at the suppression hearing that after he knocked and announced "Milwaukee Police," he heard Artic say "Just a minute." Wagner then waited. Artic opened the door "after not too long a time." Wagner asked if he could come in and talk. Artic said yes. Wagner asked if anybody else was present in the residence. Artic said his lady friend was in the back room. Wagner asked if he would call her out to the kitchen where they were seated. Artic told Wagner that she was not dressed. Wagner waited for her to dress and enter the kitchen. They started talking.
¶ 10 Wagner identified himself and asked if Artic owned the residence and if anyone lived downstairs. Artic told him that he owned it and was converting it into a duplex. He said that his handyman lived downstairs. Wagner explained that they had just arrested Artic's son (Rob) outside the residence in a vehicle with a large amount of cocaine. Wagner asked Artic if his son would have left any cocaine in the residence. He explained that the police had seen Rob enter and leave the residence. Artic said he did not believe his son would do something like that.
¶ 11 Wagner said he asked for permission to search and Artic said, "Yes, I have nothing to hide." Artic told Wagner that he was on supervisory release. Wagner asked Artic when he had last seen his son. Artic said he did not recall. Wagner testified that he made no threats or promises to Artic. Wagner asked Artic to acknowledge his consent to search in writing. Artic said he had no problem with the police searching, they could go ahead and check, but he refused to sign anything without a lawyer being present. Then the police searched and found cocaine.
¶ 12 Artic's version at the suppression hearing was different, but he did agree that the police knocked, identified themselves and waited when he said "just a minute." He agreed he opened the door to the police and that the first officer holstered his gun after entering. But then his version differs. He claimed he did not give consent to search and the police searched anyway.
¶ 13 During the search, they found a "California safe" of Gunk Big Pressure seal, which is a fake, pressurized can with a screw-off bottom. The can contained coffee grounds and a clear plastic bag containing a white residue, which later tested positive for cocaine residue. The police also recovered two boxes of sandwich baggies, an open box of latex gloves, a silver Stanley-brand razor blade, a seven-inch gold metal wire, a five-pound digital scale and a shoebox with suspected cocaine residue inside. Moreover, the police noticed that the black sweater Artic was wearing had three white powdery fingerprints on the upper chest portion. This was sent to the State Crime Lab and tested positive for cocaine residue.
¶ 14 Artic was then arrested and charged. He pled not guilty and filed a motion seeking to suppress the evidence discovered during the search on the grounds that the search violated the Fourth Amendment, as it was done without a warrant, without lawful exigencies and without consent. The trial court conducted an evidentiary hearing, at which the trial court heard testimony from Wagner, Lopez, Davila and Artic. After listening to all the testimony and arguments from...
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State Of Wis. v. Artic
...attorney general.DAVID T. PROSSER, J. ¶ 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. ......