State v. Edgeberg

• Citation: 188 Wis.2d 339,524 N.W.2d 911
• Decision Date: 18 October 1994
• Docket Number: No. 94-0527-CR,94-0527-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Kris O. EDGEBERG, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

Page 911

524 N.W.2d 911

188 Wis.2d 339

STATE of Wisconsin, Plaintiff-Respondent, v. Kris O. EDGEBERG, Defendant-Appellant.

No. 94-0527-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 19, 1994.

Opinion Released Oct. 18, 1994.

Opinion Filed Oct. 18, 1994.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

Kris Edgeberg appeals a judgment of conviction for possession of a controlled substance, marijuana, with intent to manufacture or deliver. See § 161.14(4)(t) and 161.41(1)(h)(1), STATS. Edgeberg asserts that this court should reverse the trial court decision denying Edgeberg's suppression motion. Edgeberg claims the search warrant pursuant to which the evidence was found was based on police observations made during an unlawful police entry into Edgeberg's home. Because we conclude that the police observations did not constitute a search under the plain view doctrine, we affirm the judgment of conviction.

BACKGROUND

The essential facts are not in dispute. On June 15, 1990, a police officer on patrol was dispatched to investigate a complaint about a barking dog. Upon arrival in the neighborhood, the officer stopped his squad car to listen for the barking. The officer was approached by a person who stated that the barking dog lived in a nearby house and pointed to the house at which the dog was located, Edgeberg's residence.

The officer drove to the house and approached a porch or vestibule-like addition to the house, which, because of traffic patterns on the lawn, appeared to the officer to be the main entrance to the house. As he approached the house, the officer observed a large dog in the backyard. As the officer approached, the dog was barking.

Photographs indicate that there was a wooden screen door at the entrance to the porch. The wooden screen door opened with a lightweight latch. The door could be locked from the inside but was unlocked. Edgeberg acknowledged that a visitor would have to pass through two doors before entering "the living quarters of the house" and that the interior wooden door was "a second door to get into the house"; he acknowledged that the porch has an outside door and then an inside door that "leads into the residence." He also acknowledged that "it's about six feet into that enclosure before you're at the front door of the residence." The second door was flush with the original exterior wall of the house. This door was made of wood, had three windows, and led directly to the living area. Edgeberg's father, the owner of the house, identified the wooden door as the "front" door. There was no doorbell at either door. Edgeberg's washer and dryer and work clothes were inside the porch. ¹

The officer testified that looking through the screen of the outside door, he saw the inner wooden door "immediately inside." He testified that in the course of his duties he had encountered porches similar to Edgeberg's. He said it was community practice for visitors to knock on the main front door of houses with porches similar to Edgeberg's. He testified to his general procedure when approaching a house with such a porch, and stated that if he can see through the exterior door, and can see another door that appears to lead into the living room, and if that interior door is open, he knocks on the outside door; if the exterior door is closed and it is "obviously a porch type area," he enters the porch and knocks on the door that appears to lead to the living area. The officer also testified that although there were a washer and dryer with items stacked on them, the appliances appeared nonfunctional and the work clothes were stacked with other items he thought were "debris." He stated that he did not think by entering the porch he was entering anyone's "private space." ²

The officer opened the screen door, entered the porch and knocked on the inner wooden door. As he knocked, he looked through the window of the door into the house and saw marijuana plants growing in flowerpots against the living room wall opposite. Based on this observation, the officer obtained a search warrant. The next day, with the search warrant, the police seized marijuana, the marijuana plants and other contraband from Edgeberg's home.

DISCUSSION

Whether a police officer's conduct violates the fourth amendment prohibition on unreasonable searches and seizures is a question of law this court reviews without deference to the trial court. State v. Woods, 117 Wis.2d 701, 712, 345 N.W.2d 457, 463 (1984). The exclusionary rule applies only to evidence seized as the result of an illegal search or seizure. Segura v. United States, 468 U.S. 796, 804, 806, 104 S.Ct. 3380, 3385, 3386, 82 L.Ed.2d 599 (1984). We must first therefore determine whether there was a search within the meaning of the fourth amendment. See State v. Whitrock, 161 Wis.2d 960, 970-71, 468 N.W.2d 696, 700 (1991). A search occurs when the police infringe on an expectation of privacy that society considers reasonable. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). If there is no such infringement, there is no search. Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983). Thus, under the plain view doctrine: "[O]bjects falling within the plain view of an officer who has a right to be in the position to have the view are subject to valid seizure and may be introduced in evidence." State v. Bell, 62 Wis.2d 534, 540, 215 N.W.2d 535, 539 (1974) (citations omitted). A person has no reasonable expectation of privacy in an item that is in plain view. Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112 (1990). A seizure following a plain view is not the product of a search. Bell, 62 Wis.2d at 540, 215 N.W.2d at 539.

The plain view exception has three prerequisites. The officer must have a prior justification for being in the position from which the "plain view" discovery was made; the evidence must have been in plain view of the discovering officer; and the item seized, in itself or in itself with facts known to the officer at the time, provides probable cause to believe there is a connection between the evidence and criminal activity. State v. Guy, 172 Wis.2d 86, 101-02, 492 N.W.2d 311, 317 (1992).

The second and third prerequisites are plainly satisfied. Marijuana plants in themselves are evidence of a crime, and if the officer had prior justification for his presence at the inner door, the marijuana was in plain view.

The question is whether the officer had prior justification for his presence or, in other words, had a right to be where he was. The officer's right to be in the place where the view occurs is fundamental to the validity of what follows. State v. McGovern, 77 Wis.2d 203, 211, 252 N.W.2d 365, 369 (1977). Although Edgeberg hints that the officer's entry was merely a pretext to search for evidence of controlled substances, and although the officer testified that he knew who Edgeberg was and suspected Edgeberg of drug-related activities, the trial court found that, as the officer testified, the officer knocked on the door of the house for the purpose of following up on the dog complaint....