State v. O'Brien
| Decision Date | 22 October 1997 |
| Docket Number | No. 96-3028-CR,96-3028-CR |
| Citation | 214 Wis.2d 328,572 N.W.2d 870 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Delano J. O'BRIEN, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the brief of Martin E. Kohler of Kohler & Hart, Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and William C. Wolford, Asst. Atty. Gen.
Before SNYDER, P.J., and BROWN and ANDERSON, JJ.
Delano J. O'Brien appeals the trial court's denial of his motion to suppress evidence obtained during a search of his premises, from judgments of conviction for two counts of third-degree sexual assault, and an order denying both his motion for a Machner 1 hearing and his motion for a new trial based upon ineffective assistance of counsel. O'Brien argues that the trial court erred when it: (1) denied his motion to suppress evidence taken from his truck; (2) denied his motion to remove exhibits for scientific testing in advance of filing a motion for postconviction relief; and (3) refused to conduct a Machner hearing relating to O'Brien's ineffective assistance of counsel claim. Following the lead of the federal courts regarding the scope of search warrants, we conclude that a warrant authorizing a search of a particularly described premises may permit the search of vehicles owned or controlled by the owner of, and found on, the premises.
We also prescribe guidelines for a trial court when a defendant seeks postconviction discovery. In the future, a defendant must show that the evidence sought to be gained from postconviction discovery is material; the motion must provide specific statements as to what the results might be and how those results create a reasonable probability of a different outcome. The decision to grant or deny the motion for postconviction discovery is within the sound discretion of the trial court. Because these guidelines are prospective in nature, they cannot be applied in this case. Nevertheless, we conclude that O'Brien's arguments are without merit.
We further conclude that O'Brien's arguments regarding ineffective assistance of counsel are speculative and unsupported in the record, and that even if trial counsel had followed O'Brien's retrospective approach, the result would not have been different. Accordingly, we affirm the judgments and the order.
On May 8, 1994, Mark reported to police that O'Brien had performed fellatio on him and had anal intercourse with him without Mark's consent. Mark was transported to the hospital where he was examined and swabs and smears were taken. A search warrant was issued and evidence was taken from O'Brien's residence and vehicle. O'Brien was arrested and charged with two counts of third-degree sexual assault.
Pretrial, O'Brien moved to suppress a pair of Hanes underwear and blue jeans that were located in his truck. 2 The trial court denied the motion. A jury thereafter found O'Brien guilty of two counts of third-degree sexual assault, contrary to § 940.225(3), STATS., 1993-94. O'Brien was sentenced to prison for an indeterminate sentence not to exceed thirty months on count one and for count two he received probation for five years, consecutive to count one. Both sentences were stayed pending appeal.
O'Brien filed notice of his intent to pursue postconviction relief pursuant to § 809.30, STATS., 1993-94. O'Brien then filed a motion to remove exhibits for purposes of physical testing in anticipation of his motion for postconviction relief. The trial court denied the motion concluding that it lacked both authority and reason to grant the motion.
Consequently, O'Brien filed the motion for postconviction relief alleging that trial counsel's representation of O'Brien was ineffective. The trial court denied the motion concluding that even if the evidence had been submitted to the jury, the result would not have been any different and that trial counsel's strategy was reasonable. O'Brien appeals. Additional facts will be included within the body of the decision as necessary.
The first issue is whether the evidence seized from O'Brien's truck should have been suppressed. The relevant facts are as follows. Based upon Mark's report of an alleged sexual assault, Detective David Guss applied for and received a warrant to search "certain premises in the town of Saukville occupied by [O'Brien]." The officers were looking for a pair of Hanes underwear and blue jeans, as well as other items which might constitute evidence of a crime.
The search of the residence failed to uncover the Hanes underwear or the blue jeans, so one of the officers went outside to search the barn and outbuilding. Adjacent to the outbuilding was a pick-up truck which was registered to O'Brien. The officer opened the door to the truck and saw a pair of blue jeans tucked behind the driver's seat. The officer had Guss retrieve the blue jeans, which were consistent with the victim's, and Guss also found a pair of Hanes underwear in one of the pockets.
O'Brien moved to suppress this evidence. The court determined that in the case of a duplex, with two separate tenants, those portions of the premises which are not allocated to one tenant or another constitute common areas that are part of the curtilage of the place directed to be searched. The court found the area outside the direct residence occupied by O'Brien to be a common area that he shared with the other tenant and that the warrant extended to those premises. O'Brien's motion was denied.
In reviewing an order denying a motion to suppress evidence obtained as a result of an unlawful search, we will uphold a trial court's findings of fact unless they are clearly erroneous. See State v. Eckert, 203 Wis.2d 497, 518, 553 N.W.2d 539, 547 (Ct.App.1996). However, whether a search and seizure satisfies constitutional demands is a question of law subject to de novo review. See id.
Both the Fourth Amendment of the United States Constitution and Article I, § 11 of the Wisconsin Constitution guarantee that persons shall be secure from unreasonable searches and seizures. Wisconsin courts traditionally interpret the two very similar provisions in concert. See State v. Andrews, 201 Wis.2d 383, 389, 549 N.W.2d 210, 212 (1996). The development of Wisconsin law on search and seizure parallels that developed by the United States Supreme Court. See id.
The United States Supreme Court has held that search warrants authorize " 'the search of "place[s]" and the seizure of "things," and as a constitutional matter they need not even name the person from whom the things will be seized.' " Id. at 400, 549 N.W.2d at 216 (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 555, 98 S.Ct. 1970, 1976, 56 L.Ed.2d 525 (1978)). In fact, a premises search warrant authorizes the search of any items found on those premises regardless of ownership. See id.
Our supreme court has adopted the "physical proximity test," which allows "police ... [to] search all items found on the premises that are plausible repositories for objects named in the search warrant, except those worn by or in the physical possession of persons whose search is not authorized by the warrant." Andrews, 201 Wis.2d at 403, 549 N.W.2d at 218. The Andrews court looked to the following principles for guidance:
Because the search warrant and accompanying affidavit established probable cause for the search of the premises for [the named objects], and the affidavit indicates that [the defendant] was the target of the search, this court does not believe that ownership or control of the various containers searched on the premises should be a relevant consideration. The warrant authorized the search of the premises, limited only by the nature of what the agents were searching for.
Id. at 399, 549 N.W.2d at 216 (alterations added) (quoting United States v. Schmude, 699 F.Supp. 200, 202 (E.D.Wis.1988)) (evidence gathered from a vehicle located on the premises for which a valid search warrant had been issued was admissible even though the vehicle was not owned by the person who was the target of the search).
O'Brien does not argue that the search warrant and accompanying affidavit failed to establish probable cause for the search of the residence. Rather, he maintains that the search warrant only described the actual residence with particularity, and the search could go no further--it did not authorize the search of his truck. He cites to State v. Caban, 202 Wis.2d 416, 551 N.W.2d 24 (Ct.App.1996), in support of this contention. O'Brien persists that even if the truck were part of the common area of the property, the police failed to demonstrate probable cause to search the truck for evidence. We disagree.
The search warrant at issue here authorized "certain premises in the town of Saukville ... occupied by [O'Brien] and more particularly described as follows: 1618 Hawthorne Drive brown in color siding with white trim two family residence, specifically upper flat" to be searched. (Emphasis added.) The warrant approved a search of the entire premises. The specific mention of the "residence" in the search warrant does not limit the scope of the search to that area only, but instead makes the premises to be searched more identifiable. See United States v. Griffin, 827 F.2d 1108, 1114-15 (7th Cir.1987) (citing United States v. Palmisano, 386 F.Supp. 599, 599-600 (E.D.Wis.1974)) (specific reference to areas in search warrant was for the purpose of identifying the premises and was not intended to limit the area to be searched). A more limited reading of the search warrant would likely result in concealment of evidence or frustration of purpose. See Rainey v. State, 74 Wis.2d 189, 204-05, 246 N.W.2d 529, 535 (1976).
The issue then is whether the search exceeded the...
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