State v. Guard, 2011AP72–CR.

• Decision Date: 20 December 2011
• Docket Number: No. 2011AP72–CR.,2011AP72–CR.
• Citation: 808 N.W.2d 718,338 Wis.2d 385,2012 WI App 8
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Anthony D. GUARD, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

2012 WI App 8

338 Wis.2d 385

808 N.W.2d 718

STATE of Wisconsin, Plaintiff–Respondent,

v.Anthony D. GUARD, Defendant–Appellant.

No. 2011AP72–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 29, 2011.Opinion Filed Dec. 20, 2011.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Richard L. Zaffiro of Wauwatosa.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general and Sarah K. Larson, assistant attorney general.

Before CURLEY, P.J., FINE and KESSLER, JJ.

KESSLER, J.

[338 Wis.2d 390] ¶ 1 Anthony D. Guard appeals a judgment of conviction after pleading guilty to one count of being a felon in possession of a firearm and one count of cocaine possession with the intent to deliver. Guard argues that the trial court erred in denying his motion to suppress evidence because evidence against him was obtained by a warrantless entry, without exigent circumstances, without consent to enter his duplex, and without plain view of criminal activity prior to the warrantless entry. Because we conclude that evidence against Guard was obtained as a result of an unlawful warrantless entry, we reverse the trial court and remand for further proceedings.

BACKGROUND

¶ 2 According to testimony from Guard's suppression hearing, Police Officers Ryan DeWitt and Eric Rom went to the duplex located at 2432 N. 35th Street in Milwaukee on June 17, 2009, in response to a dispatch about armed drug dealing. Rom testified that a complaint had been called in to Milwaukee police naming Guard as the suspected armed dealer at the duplex. Rom testified that upon approaching the duplex, he saw two women sitting on the front porch with the front door open:

[Rom]: As we approach the house, I believe it was two women sitting on the front porch with their front door open.

Right away I'm like “How are you doing? Is there an Anthony here?”

And they're like, “Anthony?”

I'm like, “Yeah. We got sent here for an Anthony. Is there an Anthony here?”

And she's like, “No, it's just us. You probably want the back door,” and reaches back and just kind of points over her head.

[Prosecutor]: What did you do after she did that?

[Rom]: Well, first like I thought there was only one door. I was like, “Where is the door?”

She's like, “Oh, it's around back. You can use the hallway there.”

....

So we proceed to walk towards the side of the house.

On cross-examination, Rom testified as follows:

[Defense counsel]: You talked to that woman on the front steps. Did you ever find out if she lived in that apartment?

[Rom]: I actually talked to two women—

[Defense counsel]: Did you find out if either one of them—

[Rom]: I know initially one of them said she lived there. I'm not sure if the other one did, or not.

[Defense counsel]: After all this was done, was there any further discussion or talk with these women [from the front step]?

[Rom]: ... Honestly, no[.]

Rom's testimony does not establish whether the woman who directed him to the side entrance is the woman who claimed to be a resident of the duplex. DeWitt testified that he did not speak to the women at all and was unsure of the conversation between Rom and the women. Neither woman testified at the hearing.

¶ 3 While approaching the side of the house, the officers encountered three individuals who had exited from the side entrance. Rom testified that the officers stopped the three individuals because they had “a cloud of smoke around [them]. You could just see it and you could just smell all the odor of burnt marijuana from these three individuals ... as they're walking out the door.” After the officers asked the individuals whether any of them was Anthony—they all responded “[n]o”—and whether any of them had weapons in their possession, the individuals consented to a search. The officers patted the individuals down. Nothing was found during the pat downs. A third dispatched officer stayed with the individuals as DeWitt and Rom then proceeded to the side entrance, the only entrance for the upper unit.

¶ 4 Both officers testified that they could smell burnt marijuana outside of the duplex as they approached the side entrance. DeWitt testified that the side entrance consisted of two doors—a solid interior door and a security door with metal bars in front of the interior door. The metal bars extended over the entire length of the interior door. DeWitt further testified that the interior door was ajar about four or five inches. The security door was “shut all the way” but was not locked. The metal bars of the security door did not have glass behind them. The officers could smell marijuana emanating from the house and could hear conversations and laughter from the upstairs portion of the duplex, however they could not see up the stairway or into the upper duplex. From their position outside, through the four or five inch opening of the interior door, they could only see the stairway to the basement. DeWitt testified that the side entrance was the only entrance leading to the upper unit.

¶ 5 The officers opened the closed security door, further opened the interior door, and entered the back hallway of the duplex. The hallway connected both the upper and lower units with the basement. DeWitt went into the basement. He stated that “[i]t was clear that that wasn't the point where the marijuana smoke was coming from.” He tried to open the door to the lower unit of the duplex, which was locked.

¶ 6 The officers then went up the stairs to the upper unit. DeWitt stated that the staircase leading to the upper unit “[wound] around,” and that the marijuana odor got stronger as the officers went up the stairs. He further stated that the officers continued to hear a “party ruckus” as they proceeded up the stairs. Rom stated that the occupants of the upper unit were probably unaware of police presence “because it sounded like normal conversation. The tone didn't change from like normal conversation.... It continued actually as we were going up the stairs.” Upon reaching the landing, the officers saw that the door to the upper unit was fully open. Four people were seated around a kitchen table, with Guard seated closest to the door.

¶ 7 DeWitt entered the unit first. He saw Guard holding a marijuana cigarette and two green “gem packs” ¹ filled with what the officer thought was marijuana. Rom followed and noticed the handle of a handgun on top of a refrigerator within Guard's reach. DeWitt testified that the individuals in the upper unit “looked to be pretty shocked” when the officers entered. In addition, when Rom said “Police. Put your f[------] hands up[,]” he believed that “everybody seemed to be startled.”

¶ 8 Guard was taken into custody. DeWitt found twenty suspected corner cuts of cocaine while patting Guard down. Guard was subsequently charged with possession of a firearm by a felon and possession of cocaine with intent to deliver. Guard filed a motion to suppress all evidence obtained as a result of the officers' warrantless entry into the duplex. The trial court denied the motion, finding the officers' warrantless entry reasonable “under all the circumstances.” Specifically, the trial court made findings as to the nature of the back hallway, whether the officers had consent to enter the duplex, and whether the officers had probable cause to enter the duplex without a warrant.

¶ 9 Regarding the back hallway, the trial court stated: “that certainly is a common hallway. It is not exclusive to any resident. There was an access to the common basement. There was access to the first floor. There was access to the second floor apartment; and so that is a common hallway.” The trial court also found that the side entrance to the duplex had both a closed security door and a solid interior door, the latter of which was open enough for the officers to see into the common basement.

¶ 10 Regarding whether the officers had consent to enter the back hallway, the court said:

And the women outside on the porch didn't know an Anthony and pointed to go around to the back ... they kind of pointed back and up to other tenants.

....

[T]he fact that it was a common hallway [,] if there was any consent, certainly I think the action of the women on the front porch could be interpreted as consent.

I think it [is] reasonable to conclude they said, “Go ahead, go in the back. That is where you would find the upper apartment,” ² and since this is a common hallway, they would have [ ]the ability to consent also.

¶ 11 The trial court also found that probable cause existed to allow the officers to enter the duplex, stating:

[T]hey had already confronted the women on the front porch and knew that the subject of their complaint was not in that location.

They had encountered three individuals who had come out of that door who had a strong odor of marijuana who said they had been smoking....

I think they had probable cause to enter to follow that and to follow both the dispatch and to follow the odor that they smelled.

¶ 12 Guard pled guilty to the charges. He was sentenced to three years of initial confinement and four years of extended supervision on each count, concurrent with each other but consecutive to any other sentence. This appeal follows pursuant to Wis. Stat. § 971.31(10) (2009–10) (motion to suppress may be challenged on appeal after entering guilty plea).³

¶ 13 On appeal, Guard argues that the police were not authorized to enter the duplex because he had a reasonable expectation of privacy in the only entrance to his dwelling. He also argues that the officers entered the hallway without a search warrant, without consent to enter the building, and without exigent circumstances. The State responds that Guard did not have a reasonable expectation of privacy in the common area of the duplex, thus permitting police entry regardless of whether police had a warrant. The State also contends that the officers had valid third-party consent to enter...