State v. Eskridge, 01-2720-CR.

• Decision Date: 15 May 2002
• Docket Number: No. 01-2720-CR.,01-2720-CR.
• Citation: 647 N.W.2d 434,256 Wis.2d 314,2002 WI App 158
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Garry C. ESKRIDGE, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

256 Wis.2d 314

2002 WI App 158

647 N.W.2d 434

STATE of Wisconsin, Plaintiff-Respondent, v. Garry C. ESKRIDGE, Defendant-Appellant.¹

No. 01-2720-CR.

Court of Appeals of Wisconsin.

Submitted on briefs April 12, 2002.

Decided May 15, 2002.

On behalf of the defendant-appellant, the cause was submitted on the brief of Gregory Bates of Bates Law Office, Kenosha.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Stephen W. Kleinmaier, assistant attorney general, and James E. Doyle, attorney general.

Before Nettesheim, P.J., Brown and Anderson, JJ.

¶ 1. ANDERSON, J.

Garry C. Eskridge appeals from a judgment of conviction based on a warrantless search of a common area located in the basement of a four-unit apartment building in which he resided. On appeal, he claims that he had a reasonable expectation of privacy and that the evidence was seized in violation of his rights under the Fourth Amendment to the United States Constitution.² We disagree. Therefore, we affirm.

¶ 2. On August 28, 2000, Eskridge was charged with possession of cocaine as a second or subsequent offense contrary to WIS. STAT. §§ 961.41(3g)(c) and 961.48(2) (1999-2000).³ In the ensuing prosecution, Eskridge moved to suppress the evidence. A suppression hearing was held on October 17, 2000. Both sides gave testimony, which was uncontroverted except for disagreement as to whether on August 21, 2000, the front door of the building was locked or unlocked.

¶ 3. At the suppression hearing Eskridge testified that he and his wife were renters of a second-floor apartment in the building and had lived there "a few weeks." Eskridge claimed that the front door to the building was "usually locked" and that the door to the basement was "supposed to be locked." However, Eskridge also stated that the lock on the basement door might have been broken on that day. Eskridge acknowledged that there was a common area of the basement open to all tenants of the building. He said that on August 21 the front door was locked when he came home after work.

¶ 4. Next, the court heard testimony from the two officers involved in the case, Peter Falk and Booker Bennett. Their testimonies explained that on August 21, 2000, the City of Kenosha Police Department received a tip from an informant that "a guy named D was dealing out of one of the apartments [at 4811 — 37th Avenue, a four-unit apartment building] and that he kept his dope in the upstairs hallway closet." According to the informant, the officers would find approximately a quarter ounce of crack at this address. Acting on the tip, the officers went to the apartment building.

¶ 5. Both Falk and Bennett testified that when they arrived at the building, the front door was unlocked. Falk testified that during his five years of patrolling the area, he had been in this building ten to twelve times and the door to the building had never been locked. He and Bennett both testified that they had observed a lot of nonresidents of the building coming and leaving through its unlocked front door. Falk said that this building was in a high crime area and that ninety-five percent of the four-plexes in the area had unlocked doors. Bennett testified that from his past experiences with the activities at this building, he knew the front door would be open and unlocked. Falk said that the door to the upstairs hallway was also open. Falk and Bennett proceeded through the open doors, went upstairs, checked the hallway closet and found no drugs.

¶ 6. Falk and Bennett then returned to the first-floor foyer where they saw another open door leading to the basement stairway. Through the open door, Falk could see that a light was on in the basement. The officers thought they might find drugs in the basement because it was their experience that people in apartment buildings sometimes hide drugs in basement areas. Specifically, Falk said that from past informant tips he had learned that

in these types of four plexes people that are dealing dope lots of times keep it in the basement because if the police hit the house, they won't find it in their house and they won't get in trouble for it supposedly. So I have found numerous types of contraband hidden in the rafters of the basement and furnaces and stuff like that.

Additionally, Bennett testified that they had decided to check the basement because "that was also in the tip."

¶ 7. When Falk and Bennett entered the basement, they saw no one else there. The basement contained a laundry area and locker bins fenced off with chicken wire. While searching the rafters with their flashlights, the officers heard someone (Eskridge) coming down the stairs. Falk said that he heard paper ripping and that he then heard Bennett confront Eskridge. The noise Falk heard was Eskridge tearing paper away from some insulation in order to reach his hand into it. Bennett confronted Eskridge while his hand was still reaching into the insulation. Bennett asked Eskridge why he had his hand up in the insulation and he responded by stating that he was looking for the light switch. Bennett looked into the insulation area where Eskridge's hand had been and located a plastic baggie containing a rock of what appeared to be cocaine. Falk field tested the rock, which tested positive for the presence of cocaine. The officers said it was at this point that they arrested Eskridge.

¶ 8. At the conclusion of the hearing, the trial court stated that it believed the testimonies of the officers over the testimony of Eskridge. The court made a finding that Eskridge's front door was not locked when the officers arrived and entered the building on August 21, 2000. The court further found that once inside the building, the officers came upon and went through a wide open door into the basement. Finally, the court found that, under the circumstances, Eskridge had no expectation of privacy in the common area of the apartment building basement. The trial court denied Eskridge's motion to suppress. Eskridge pled guilty and now appeals the judgment of conviction.

Standard of Review

[1-4]

¶ 9. When reviewing a trial court's ruling on a motion to suppress evidence on Fourth Amendment grounds, we will uphold the trial court's factual findings unless clearly erroneous. State v. Trecroci, 2001 WI App 126, ¶ 23, 246 Wis. 2d 261, 630 N.W.2d 555,review denied, 2001 WI 117, 247 Wis. 2d 1033, 635 N.W.2d 782 (Wis. Sep. 19, 2001) (No. 00-1083-CR). However, whether a search is reasonable under the Fourth Amendment is a question of law that we review de novo. Id. Whether a defendant has standing to raise a Fourth Amendment claim also presents a question of law. Id. The same is true as to whether a defendant has consented to a search. Id.

Discussion

[5]

¶ 10. On appeal, Eskridge does not dispute the trial court's factual findings. Under the clearly erroneous standard, we have no reason to upset these findings. Eskridge disputes only the trial court's ultimate ruling: that the search passed constitutional muster. We first address the State's request that we adopt a bright-line rule that a tenant in an unlocked apartment building with at least four units does not have a reasonable expectation of privacy in the common areas of the stairways, hallways and basement. The State apparently wants us to create a legal gulf between cases where officers enter a two-unit residence (Trecroci) and apartments containing four units or more (this case). In the State's view, while there may be a historical notion of privacy in the former, there is no such historical notion in the latter. This is seemingly so because Trecroci-type buildings do not usually have common stairways and hallways, while buildings of four or more units usually do. We decline to adopt such a bright-line rule because the suppositions integral to the State's claim often change with the particular facts. The number of units in a building does not define, ipso facto, all the variables that must be considered when deciding whether a tenant has a reasonable expectation of privacy in a certain area of the building. Some buildings are always locked, and some are rarely or never locked. Some buildings have common basements and some do not. Some have common areas and some do not. Some have a history of outside traffic and some do not. The number of units in a building is only one factor to consider. For these reasons, we are convinced that a bright-line rule would be inappropriate. Rather, we adhere to the reasoning we provided in Trecroci, where we explained that:

[A case-by-case approach] assures that certain cases do not slip between the cracks of a general rule, causing the suppression of evidence which, under closer scrutiny, should have been admitted, or allowing for the admission of evidence which, under similar scrutiny, should have been disallowed. Moreover, whether a person has a reasonable expectation of privacy seems by its very nature to call for an examination of the particular facts of each case.

Id. at ¶ 33 (citation omitted).

[6, 7]

¶ 11. We now turn to the particular facts of this case and look to whether Eskridge had a reasonable expectation of privacy in the common area of the basement in the apartment building in which he lived. Eskridge bears the burden of establishing his reasonable expectation of privacy by a preponderance of the evidence. Id. at ¶ 35. Whether a person has a reasonable expectation of privacy depends on a two-pronged test as to (1) whether the individual has exhibited an actual, subjective expectation of privacy in the area inspected and in the item seized; and (2) whether society is willing to recognize such an expectation of privacy as reasonable. Id.

¶ 12. We are guided by our decision in Trecroci, where, like here, the defendants were charged with drug offenses and moved to suppress evidence obtained during a search of an apartment building. Id. at ¶ 1. In Trecroci, we held that the defendants exhibited a subjective...