State v. Dumstrey, 2013AP857–CR

• Citation: 359 Wis.2d 624,859 N.W.2d 138
• Decision Date: 23 December 2014
• Docket Number: 2013AP857–CR
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Brett W. DUMSTREY, Defendant–Appellant.
• Court: Court of Appeals of Wisconsin

359 Wis.2d 624

859 N.W.2d 138

STATE of Wisconsin, Plaintiff–Respondent

v.Brett W. DUMSTREY, Defendant–Appellant.^†

2013AP857–CR

Court of Appeals of Wisconsin.

Oral Argument Oct. 1, 2014.

Opinion Filed Dec. 23, 2014.

On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Anthony D. Cotton of Kuchler & Cotton, S.C., Waukesha.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Bryan C. Bayer, assistant district attorney of Waukesha and brief of David H. Perlman, assistant attorney general, and J.B. Van Hollen, attorney general. There was oral argument by David H. Perlman.

Before BROWN, C.J., NEUBAUER, P.J., and REILLY, J.

Opinion

NEUBAUER, P.J.¹

Brett W. Dumstrey appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), second offense. Dumstrey argues that the off-duty officer who pursued him in traffic violated Dumstrey's Fourth Amendment rights when the officer followed Dumstrey into the parking garage of Dumstrey's apartment complex and blocked the garage door so that on-duty officers could enter and arrest Dumstrey. We conclude that the warrantless and nonconsensual entry into Dumstrey's apartment complex parking garage did not violate Dumstrey's Fourth Amendment right to be free from unreasonable search and seizure because the area was not curtilage of Dumstrey's apartment home. It was not an area in which he had a reasonable expectation of privacy. The judgment of the circuit court is affirmed.

FACTS

¶ 2 Officer Paul DeJarlais of the City of Waukesha Police Department testified regarding the events leading up to Dumstrey's arrest. DeJarlais encountered Dumstrey in traffic when he, DeJarlais, was off duty and driving his personal vehicle. DeJarlais noticed in his rearview mirror that a car, which turned out to be driven by Dumstrey, was approaching at a “very high rate of speed.” Dumstrey passed DeJarlais at a high rate of speed and then slowed down and tailgated another vehicle. More than once, DeJarlais observed Dumstrey swerve into the adjacent lane, accelerate rapidly, and begin tailgating. Dumstrey was “driving directly in between the two lanes” before he “just took off very rapidly.” At this point, around 11:30 p.m., DeJarlais called the police department and reported his observations. DeJarlais pulled up alongside Dumstrey at an intersection, where he made eye contact with Dumstrey and attempted to identify himself as a police officer by displaying his badge and photo identification. DeJarlais told Dumstrey that he had called the police and that Dumstrey should “wait here.” Dumstrey did not respond and stared at DeJarlais with a “blank look on his face.” DeJarlais saw that Dumstrey's eyes “were very like sleepy looking and they had a sheen to them. They were kind of glassy.” DeJarlais testified that “from [his] training and experience over the years [Dumstrey] appeared to be very intoxicated.”

¶ 3 Still stopped at the intersection, DeJarlais told Dumstrey to pull over. When the light turned green, DeJarlais went through the intersection and pulled over. Dumstrey stayed at the intersection for almost the entire green light, then went through the intersection and pulled alongside DeJarlais, in the middle of the traffic lane. DeJarlais again asked Dumstrey to wait; Dumstrey waited “a couple seconds” and then drove off and turned into a driveway at the Riverwalk Apartments. DeJarlais followed the vehicle to the apartments, where Dumstrey drove around a parking lot before entering the parking garage through the remote-controlled door. DeJarlais parked his car partway through the door opening so that the door could not close. DeJarlais then entered the garage and made contact with Dumstrey. He again identified himself as a police officer and displayed his wallet with his badge. At that point, Officer Joseph Lichuki, an on-duty city of Waukesha police officer, arrived. Lichuki testified that Dumstrey's eyes were glassy and bloodshot, that his speech was slurred, that Lichuki could smell an odor of intoxicants coming from Dumstrey, and that Dumstrey was swaying back and forth. Dumstrey refused to perform field sobriety tests and refused to provide a preliminary breath test. Lichuki arrested Dumstrey for OWI.

¶ 4 Dumstrey moved to suppress the evidence obtained subsequent to DeJarlais' entrance into the apartment parking garage, arguing that such evidence was acquired in violation of the Fourth Amendment. The circuit court denied Dumstrey's motion. Dumstrey pleaded guilty to OWI, second offense, and this appeal followed.

¶ 5 At the hearing on the motion to suppress, DeJarlais estimated that the Riverwalk Apartments had five or six buildings with thirty apartments in each. He believed there were thirty stalls in the parking garage. Dumstrey testified that he used a garage door opener to get into the garage and otherwise “ha[d] a key for a locked door.” While Dumstrey testified that the parking garage was not a common area for all the tenants, he also testified that other tenants could walk in and park in the parking garage. Dumstrey testified that he would take an elevator to get to his apartment from the parking garage. “[I]t's a locked building. You have to live there to use [the elevator].” “[E]veryone pays for their space.”

DISCUSSION

¶ 6 Dumstrey challenges his conviction on Fourth Amendment grounds, arguing that DeJarlais committed a warrantless entry without probable cause or exigent circumstances. Specifically, he appeals the circuit court's denial of his motion to suppress evidence. Dumstrey does not contest that DeJarlais had reasonable suspicion to stop him, and the State concedes that “if the garage is curtilage, Officer DeJarlais improperly entered it to seize Dumstrey.” Thus, we address the narrow question whether Dumstrey's parking garage was curtilage such that DeJarlais' entry into the parking garage was a warrantless and unreasonable search and seizure prohibited by the Fourth Amendment.

Standard of Review

¶ 7 Our review of a circuit court's denial of a motion to suppress is mixed. We uphold the circuit court findings of fact unless they are clearly erroneous and review de novo the application of constitutional principles to those facts. See State v. Grady, 2009 WI 47, ¶ 13, 317 Wis.2d 344, 766 N.W.2d 729. The determination of whether an area lies within a home's curtilage and is protected by the Fourth Amendment is an issue of constitutional fact to which we apply a two-step standard of review. State v. Martwick, 2000 WI 5, ¶ 16, 231 Wis.2d 801, 604 N.W.2d 552. We first review the court's findings of evidentiary or historical facts under the clearly erroneous standard. Id., ¶ 18. We then review de novo the ultimate decision as to the extent of curtilage. Id., ¶ 24. It is the defendant's burden to show a Fourth Amendment violation occurred by an invasion of protected curtilage. Harney v. City of Chicago, 702 F.3d 916, 924–25 (7th Cir.2012) ; see also State v. Guard, 2012 WI App 8, ¶ 17, 338 Wis.2d 385, 808 N.W.2d 718 (burden of establishing reasonable expectation of privacy is on defendant).

Curtilage and the Reasonable Expectation of Privacy

¶ 8 “The Fourth Amendment provides that ‘people [are] to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ... and [that] no Warrants shall issue, but upon probable cause....’ ” Martwick, 231 Wis.2d 801, ¶ 26, 604 N.W.2d 552 (quoting U.S. Const. amend. IV ; alterations in original); see also Wis. Const. art. 1, § 11. This Fourth Amendment protection extends to the curtilage of the home, which is the area immediately adjacent to the home that harbors “the intimate activity associated with the sanctity of [one's] home and the privacies of life” and is considered part of the home for the purpose of the Fourth Amendment.² Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (citation omitted); Martwick, 231 Wis.2d 801, ¶ 26, 604 N.W.2d 552 (noting that for purposes of the Fourth Amendment the curtilage is considered part of the home itself). The determination of whether an area is curtilage is fact specific. State v. Leutenegger, 2004 WI App 127, ¶ 21 n. 5, 275 Wis.2d 512, 685 N.W.2d 536. We must examine the facts of this case and decide whether Dumstrey's apartment parking garage was curtilage of his apartment home.

¶ 9 Whether Dumstrey's parking garage in his multiunit apartment complex was curtilage of his apartment home appears to be an unanswered question in Wisconsin. In State v. Davis, 2011 WI App 74, ¶¶ 3, 12, 333 Wis.2d 490, 798 N.W.2d 902, we accepted the parties' characterization that a garage attached to a trailer home was curtilage. “Indeed, aside from viewing it as the home itself, it is difficult to imagine a scenario where the typical attached garage could be considered not curtilage.” Id., ¶ 12. On the other hand, in Watkins v. State, 59 Wis.2d 514, 208 N.W.2d 449 (1973) (per curiam), our supreme court held that a common storage room in the basement of an apartment building “was not within the defendant's constitutionally protected sphere of contemplated personal privacy.” “This room was not for the exclusive use of the defendant and not even for the exclusive use of the tenants of the building,” and therefore the entry into the room by the police was proper and reasonable. Id. at 514–15, 208 N.W.2d 449. To address whether Dumstrey's parking garage was part of the curtilage of his apartment home, we look to factors used to examine curtilage and reasonable expectation of privacy and case law from other jurisdictions applying those factors and then turn to a property-rights based trespass analysis.

¶ 10 In United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), the Supreme Court set forth four factors that a court should consider when defining the extent of a home's curtilage:

the proximity of the area claimed to be curtilage to the home, whether the

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