State v. Garrett

• Decision Date: 05 September 2001
• Docket Number: No. 00-3183-CR.,00-3183-CR.
• Citation: 2001 WI App 240,248 Wis.2d 61,635 N.W.2d 615
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Edward GARRETT, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

248 Wis.2d 61

2001 WI App 240

635 N.W.2d 615

STATE of Wisconsin, Plaintiff-Respondent, v. Edward GARRETT, Defendant-Appellant.¹

No. 00-3183-CR.

Court of Appeals of Wisconsin.

Submitted on briefs July 3, 2001.

Decided September 5, 2001.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael P. Sessa of Law Office of Michael J. Schmidt, of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David H. Perlman, assistant attorney general.

Before Fine, Schudson and Curley, JJ.

¶ 1. CURLEY, J.

Edward Garrett appeals from the judgment of conviction entered after he pled guilty to two counts of felon in possession of a firearm, and one count of possession of a short-barreled shotgun, contrary to WIS. STAT. §§ 941.29(2)(a), 941.28(2) and 939.05.² Garrett also appeals from three orders issued by the trial court denying his motion to suppress, his motion to reconsider the suppression motion, and his motion for postconviction relief. Garrett argues that the trial court erred in denying his suppression motion because: (1) there were no exigent circumstances permitting the police officers' warrantless entry into his home; and (2) the protective sweep doctrine did not justify the officers' warrantless search of his closet where the guns were discovered. Because we conclude that the officers' warrantless entry into Garrett's home was lawful under the doctrine of exigent circumstances, and the subsequent entry into the closet was within the scope of a protective sweep, we affirm.

I. BACKGROUND.

¶ 2. In January of 2000, several Milwaukee police officers were involved in an undercover narcotics investigation in Garrett's neighborhood. Pursuant to the investigation, an undercover police officer purchased cocaine from two individuals inside Garrett's apartment building. These two suspects were arrested and questioned by an undercover officer. A few minutes after the arrest, a second undercover officer, Detective John Kaltenbrun, went into the apartment building and waited for the other officers in the hallway outside Garrett's apartment. While Detective Kaltenbrun was standing in the hallway, the door to Garrett's apartment opened, and Detective Kaltenbrun observed Garrett standing in the doorway holding a clear plastic bag containing a white substance that the officer believed to be cocaine. As Detective Kaltenbrun moved towards Garrett, Garrett quickly closed the door to his apartment.

¶ 3. The other officers then joined Detective Kaltenbrun outside Garrett's apartment. One of the officers knocked on the door, but Garrett did not answer. Another officer told Detective Kaltenbrun that a search of the suspects arrested outside had produced two corner-cut bags of cocaine. In addition, one of the suspects had informed the police that he had obtained the cocaine from "the first apartment on the first floor to the left," which was Garrett's apartment, and that the seller matched Garrett's description.

¶ 4. Another officer, Michael Crivello, then scaled the outside wall of Garrett's apartment to look through a transom³ above a second door, which led to the kitchen of Garrett's apartment. The transom was approximately seven feet, six inches above the ground. The officer looked through the transom by propping his feet on a ledge and the doorknob and then pulling himself above the doorway. From this perch, Officer Crivello observed Garrett running through the kitchen towards the back of the apartment. Detective Kaltenbrun then authorized entry into Garrett's apartment.

¶ 5. The officers entered Garrett's apartment through the first door, which led into the living room of the apartment. Two officers apprehended Garrett in a back bedroom and informed Detective Kaltenbrun that Garrett was in custody. Detective Kaltenbrun then noticed an open closet door in the living room. The door was slightly ajar and a couch was positioned approximately eight to twelve inches in front of it. Detective Kaltenbrun believed that there was enough room between the open door and the couch for someone to gain access to the closet and remain hidden inside. After moving the couch aside, Detective Kaltenbrun opened the closet door and saw a short-barreled shotgun on top of some boxes, as well as a rifle in another part of the closet.

¶ 6. Garrett was subsequently charged with two counts of felon in possession of a firearm and one count of possession of a short-barreled shotgun. Garrett filed a motion to suppress the guns seized from his apartment, which the trial court denied. Garrett then filed a motion for reconsideration, which the trial court also denied. Ultimately, Garrett pled guilty to the charges and the trial court sentenced him to three years' imprisonment with three years of extended supervision. Finally, Garrett filed a motion for postconviction relief, but he was again denied relief by the trial court.

II. ANALYSIS.

[1, 2]

¶ 7. On review of a trial court's denial of a motion to suppress, we will uphold the trial court's findings of fact unless they are clearly erroneous. WIS. STAT. § 805.17(2); State v. Williamson, 113 Wis. 2d 389, 401, 335 N.W.2d 814 (1983). Whether a search is valid, however, is a question of constitutional law which we review de novo. State v. Guzman, 166 Wis. 2d 577, 586, 480 N.W.2d 446 (1992)

.

[3-5]

¶ 8. "The Fourth Amendment to the United States Constitution and art. I, § 11, of the Wisconsin Constitution both protect against unreasonable searches and seizures." State v. Phillips, 218 Wis. 2d 180, 195, 577 N.W.2d 794 (1998). The Fourth Amendment was primarily intended to protect against physical entry into the home, see id. at 195-96, and, therefore, warrantless searches "are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967) (footnotes omitted). "These exceptions have been `jealously and carefully drawn,' and the burden rests with those seeking exemption from the warrant requirement to prove that the exigencies made that course imperative." State v. Boggess, 115 Wis. 2d 443, 449, 340 N.W.2d 516 (1983) (citations omitted).

A. Entry Into Garrett's Apartment

[6]

¶ 9. An exception to the warrant requirement arises when the State can demonstrate "both probable cause and exigent circumstances that overcome the individual's right to be free from government interference." State v. Hughes, 2000 WI 24, ¶ 17, 233 Wis. 2d 280, 607 N.W.2d 621. "To determine whether the entry was lawful, we must answer two questions: first, did the officers have probable cause to believe that [Garrett's] apartment contained evidence of a crime, and second, did exigent circumstances exist at the time of the entry to establish an exception to the warrant requirement?" Id. at ¶ 18.

[7]

¶ 10. Here, Garrett does not dispute the existence of probable cause to search his apartment; instead, he contends there were no exigent circumstances justifying the warrantless entry and search of his apartment. Based on the information given to the officers by the individual arrested outside Garrett's apartment implicating Garrett in the drug deal, and Detective Kaltenbrun's observation of Garrett with what appeared to be a baggie containing cocaine, we conclude that there was a fair probability that contraband or evidence of a crime would be found in Garrett's apartment and, therefore, the officers had probable cause to enter. Id. at ¶ 21. We must now answer the second question and determine whether exigent circumstances provided an exception to the warrant requirement, justifying the officers' warrantless entry into and search of Garrett's apartment.

[8]

¶ 11. In determining whether exigent circumstances existed, we apply an objective test to decide "whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of the suspect's escape." Id. at ¶ 24. Our supreme court has identified four exigent circumstances necessary to justify a warrantless entry: "(1) an arrest made in `hot pursuit,' (2) a threat to safety of a suspect or others, (3) a risk that evidence will be destroyed, and (4) a likelihood that the suspect will flee." Id. at ¶ 25. Here, both sides focus their arguments on the risk of destruction of evidence.

[9]

¶ 12. The State argues that exigent circumstances existed because the officers reasonably believed that any delay in procuring a search warrant would risk the destruction of evidence based on: (1) Detective Kaltenbrun's observation, through the open apartment door, of Garrett holding a baggie of cocaine, which justified a warrantless entry under Hughes; and (2) Officer Crivello's observation, through the transom above the door to Garrett's kitchen, of Garrett running towards the back of the apartment. Conversely, Garrett argues that the State fails to demonstrate exigent circumstances because Hughes is distinguishable and Officer Crivello violated his expectation of privacy when he scaled the wall outside his apartment to look through the transom. We are satisfied that the warrantless entry of Garrett's apartment was justified under Hughes based on Detective Kaltenbrun's encounter with Garrett and the surrounding circumstances. We reach that conclusion, however, absent Officer Crivello's observations through the transom.⁴

¶ 13. Garrett argues that Hughes is not controlling because he was not aware that the police were outside his door. Garrett further asserts that there were exigent circumstances justifying a warrantless entry only after Officer Crivello scaled the wall outside the apartment and looked into the apartment through the transom. Garrett concludes that without this improperly obtained information, there were no...