State v. Dumstrey, 2013AP857–CR.

Decision Date15 January 2016
Docket NumberNo. 2013AP857–CR.,2013AP857–CR.
Parties STATE of Wisconsin, Plaintiff–Respondent, v. Brett W. DUMSTREY, Defendant–Appellant–Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petition, there were briefs by Anthony B. Cotton and Jeffrey J. Szczewski, and Kuchler & Cotton, S.C., Waukesha, and oral argument by Anthony B. Cotton.

For the plaintiff-respondent, the cause was argued by David H. Perlman, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.


¶ 1 We review a published decision of the court of appeals,1 which affirmed the Waukesha County Circuit Court's2 denial of defendant Brett Dumstrey's (Dumstrey) motion to suppress evidence acquired after a stop and subsequent arrest. Dumstrey's motion challenged the legality of the stop and subsequent arrest on Fourth Amendment grounds.

¶ 2 After being followed by police for erratic driving, Dumstrey drove inside of the parking garage underneath his apartment building, where he was stopped by police and subsequently arrested for operating while intoxicated (OWI), contrary to Wis. Stat. § 346.63(1)(a) (2013–14).3 Dumstrey does not challenge the fact that police had reasonable suspicion to stop him. However, he argues that the officers' conduct violated the Fourth Amendment's prohibition against unreasonable searches and seizures because it occurred during a warrantless entry into a constitutionally protected area, curtilage of his home.

¶ 3 Therefore, the central question before us is whether the parking garage underneath the apartment building constitutes curtilage of Dumstrey's home such that it is protected by the Fourth Amendment. We also consider whether Dumstrey has shown a reasonable expectation of privacy in the parking garage, thereby warranting Fourth Amendment protections.

¶ 4 We conclude that the parking garage underneath this apartment building does not constitute curtilage of Dumstrey's home. We further conclude that Dumstrey has shown no reasonable expectation of privacy in the garage. Consequently, Dumstrey's stop and subsequent arrest in the garage did not violate the Fourth Amendment's prohibition against unreasonable seizures. Stated otherwise, the seizure did not occur after a warrantless entry into a constitutionally protected area. Accordingly, we affirm the decision of the court of appeals.


¶ 5 On the night of Friday, April 20, 2012, Officer DeJarlais, of the City of Waukesha Police Department, was off duty and was wearing plain clothes while operating his unmarked, personal vehicle. At approximately 10:30 p.m., Officer DeJarlais observed a vehicle, later determined to be driven by Dumstrey, pass him at a high rate of speed and then begin tailgating another vehicle. Officer DeJarlais subsequently passed both of these vehicles, at which point Dumstrey accelerated and began tailgating Officer DeJarlais. Dumstrey continued speeding and changing lanes, and at one point, he was straddling both lanes.

¶ 6 After watching Dumstrey's vehicle for some time, Officer DeJarlais called the police department dispatcher and requested a squad response to a possible intoxicated driver. Around that same time, Officer DeJarlais pulled up next to Dumstrey at a red light, rolled down his window, and made eye contact with him. Dumstrey likewise rolled down his window, at which point Officer DeJarlais displayed his police badge and photo identification card. Officer DeJarlais pointed out Dumstrey's erratic driving and instructed him to pull over and wait because the police were coming. Dumstrey stared back at him with a "blank look" and "appeared to be very intoxicated." His eyes were "sleepy looking" and "kind of glassy." After the light turned green, Dumstrey continued to sit at the intersection. When the light turned yellow, he proceeded to drive through the intersection.

¶ 7 After driving through the intersection, Dumstrey stopped in the middle of the traffic lane, and Officer DeJarlais again pulled up next to him and told him to wait for the police. Dumstrey continued to stare at Officer DeJarlais and then drove off toward his apartment complex, consisting of five or six apartment buildings. Officer DeJarlais followed Dumstrey to a parking lot outside one of the apartment buildings where Dumstrey continued to drive around, as though "trying to lose" the officer. Subsequently, Dumstrey turned toward the parking garage underneath his apartment building, raised the garage door with his remote controlled opener, and "drove down beneath the apartment building into the parking garage."

¶ 8 Officer DeJarlais followed Dumstrey and parked his personal vehicle underneath the garage door so that the door would not come down and lock out the police response that he had requested. Officer DeJarlais then exited his vehicle and walked into the parking garage, toward where Dumstrey had parked in his assigned parking place. As Officer DeJarlais started approaching Dumstrey's vehicle, Dumstrey exited the vehicle and the two made contact. Officer DeJarlais instructed Dumstrey to stay put because the police were coming. He also displayed his police badge and photo identification, to which Dumstrey indicated disbelief that Officer DeJarlais was actually a police officer. Upon showing his badge and identification again, Dumstrey finally stopped and appeared to believe Officer DeJarlais. Shortly thereafter, the responding officer, Officer Lichucki, arrived on the scene.

¶ 9 Officer Lichucki entered the parking garage through the garage door under which Officer DeJarlais had parked his vehicle. Officer Lichucki immediately made contact with Dumstrey and began asking him investigative questions. Dumstrey stated that he had driven home from a Milwaukee Brewers baseball game at Miller Park and denied having consumed any alcohol. Upon his questioning, Officer Lichucki observed that Dumstrey was swaying back and forth and his "eyes were glassy and somewhat bloodshot." His speech was also "slurred," and Officer Lichucki could smell "an odor of intoxicants coming from his person." Officer Lichucki requested that Dumstrey submit to various field sobriety tests, all of which he refused to perform. At that point, Officer Lichucki arrested Dumstrey for OWI. Later, Dumstrey consented to an evidentiary blood test, which revealed that his blood alcohol level was .178.¶ 10 Dumstrey moved to suppress, challenging the legality of the stop and subsequent arrest on the basis that his seizure occurred after a warrantless entry, in violation of the Fourth Amendment. At the hearing, testimony established that Dumstrey lives in the apartment building under which the parking garage is located. Approximately 30 tenants live in Dumstrey's apartment building, and the parking garage has approximately 30 parking places. The residents, including Dumstrey, pay for their assigned parking places in the garage and use the garage only for parking rather than for storage or other uses. Dumstrey testified that he can enter the parking garage only through the remote controlled garage door or through a locked door on the inside of the apartment building. All of the other tenants have access to the parking garage through these same means. In order to get from the parking garage to his home, Dumstrey uses the building's elevator. This elevator is likewise utilized by all other tenants.

¶ 11 The circuit court ultimately denied Dumstrey's motion, and he pled guilty to OWI, second offense, in violation of Wis. Stat. § 346.63(1)(a). The court of appeals affirmed, holding that there was no Fourth Amendment violation because the parking garage underneath the apartment building did not constitute curtilage of Dumstrey's home, and he did not have a reasonable expectation of privacy in the parking garage. 4

State v. Dumstrey, 2015 WI App 5, ¶ 14, 359 Wis.2d 624, 859 N.W.2d 138. We granted Dumstrey's petition for review.


¶ 12 "[A] curtilage determination presents an issue of constitutional fact," State v. Martwick, 2000 WI 5, ¶ 16, 231 Wis.2d 801, 604 N.W.2d 552, as does the general question of "whether police conduct violated the constitutional guarantee against unreasonable searches and seizures," State v. Griffith, 2000 WI 72, ¶ 23, 236 Wis.2d 48, 613 N.W.2d 72. Questions of constitutional fact are subject to a two-step standard of review. Id.

¶ 13 We uphold a circuit court's findings of historic fact unless they are clearly erroneous. State v. Fonte, 2005 WI 77, ¶ 11, 281 Wis.2d 654, 698 N.W.2d 594. A finding is clearly erroneous if "it is against the great weight and clear preponderance of the evidence." State v. Sykes, 2005 WI 48, ¶ 21 n. 7, 279 Wis.2d 742, 695 N.W.2d 277 (internal quotation marks omitted) (quoting State v. Tomlinson, 2002 WI 91, ¶ 36, 254 Wis.2d 502, 648 N.W.2d 367 ). We then "apply the constitutional principles to the facts at hand to answer the question of law." Martwick, 231 Wis.2d 801, ¶ 23, 604 N.W.2d 552.


¶ 14 The Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. Article 1, Section 11 of the Wisconsin Constitution contains a substantively identical provision that we have historically interpreted in accord with the Supreme Court's interpretation of the Fourth Amendment. State v. Arias, 2008 WI 84, ¶ 20, 311 Wis.2d 358, 752 N.W.2d 748.

¶ 15 "Although our legal lexicon often presents ‘searches and seizures' as an inseparable tandem, the two are constitutionally and analytically distinct." Id., ¶ 25. Therefore, we first determine whether Dumstrey underwent a search or...

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