State v. Herrmann

• Decision Date: 19 January 2000
• Docket Number: No. 99-0589-CR., No. 99-0325-CR
• Citation: 2000 WI App 38,608 N.W.2d 406,233 Wis.2d 135
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. Kenneth M. HERRMANN, Defendant-Respondent-Cross-Appellant.
• Court: Wisconsin Court of Appeals

233 Wis.2d 135

2000 WI App 38

608 N.W.2d 406

STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent,¹ v. Kenneth M. HERRMANN, Defendant-Respondent-Cross-Appellant.

Nos. 99-0325-CR, 99-0589-CR.

Court of Appeals of Wisconsin.

Submitted on briefs December 14, 1999.

Decided January 19, 2000.

On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of James E. Doyle, attorney general, and Susan M. Crawford, assistant attorney general.

On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the brief of Peter J. Morin of Menomonie.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. CANE, C.J.

The State of Wisconsin appeals from that part of an order granting Kenneth Herrmann's motion to suppress evidence. Herrmann cross-appeals from the part of the order denying his motion to suppress evidence.² The State argues that the trial court erred by suppressing certain statements and evidence because: (1) Herrmann's incriminatory statements and consent to the disclosure of marijuana located under a couch were voluntarily given; and (2) even if Herrmann did not voluntarily consent to a limited search of his apartment, there was sufficient untainted evidence to support the warrant under which his apartment was later searched. On cross-appeal, Herrmann argues that the trial court erred by admitting into evidence nine marijuana plants found as a result of the initial warrantless search of his apartment.

¶ 2. Because the officers, though mistaken, reasonably believed that they were still executing a valid search warrant on an adjacent apartment when they discovered the nine marijuana plants in Herrmann's apartment, we affirm that part of the circuit court's order admitting the nine marijuana plants into evidence. Further, because the officers were required to cease all searching once they reasonably believed that they were no longer operating within the scope of the search warrant, we affirm that part of the circuit court's order suppressing Herrmann's incriminating statements and evidence seized from under the living room couch. Finally, because there was sufficient untainted evidence to support the search warrant issued for Herrmann's apartment, we reverse that part of the circuit court's order suppressing all evidence obtained as a result of the subsequent search pursuant to a warrant. Therefore the order is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

BACKGROUND

¶ 3. On April 9, 1998, Dunn County law enforcement officers executed a search warrant for Tracy Landis's apartment. Landis's apartment was located adjacent to Herrmann's apartment on the second floor of a multi-unit building. At the suppression motion hearing, investigator Russell Cragin and West Central Drug Task Force volunteer Ed Frawley testified that at the time they executed the warrant, they did not know that there was more than one apartment on the second floor. The officers further testified that Landis's apartment was large and contained many rooms. Frawley further compared the apartment's layout to that of a catacomb, with rooms leading to other rooms. The officers discovered approximately five pounds of marijuana in the closet of what was described as the sewing room.

¶ 4. Both Cragin and Frawley testified that directly to the right of the closet containing the marijuana, they encountered another closed door, secured only with a chain lock.³ In the officers' continued execution of the search warrant on Landis's apartment, they unchained and opened the door, which swung toward them. The officers passed through the door into what they thought was a storage room for Landis's apartment. The officers described the room as being full of "junk." When asked why he believed the "storage room" was still in Landis's apartment, Cragin testified:

It was just another storage room. There [were] so many rooms in her apartment; that door was adjacent to the other door—I mean it was a 90-degree wall. In one closet door we find approximately five pounds of marijuana. Naturally we're going to open up the next closet door, in which we observed a—what I for lack of better words called a storage room, which we did enter to search for more drugs or illegal property.

Once in the "storage room," the officers opened the door to a closet and saw what they believed to be a marijuana grow operation consisting of nine withered marijuana plants.

¶ 5. The officers then walked through the "storage room" to a hallway and proceeded down the corridor. Upon discovering a bathroom on the corridor's right-hand side and a kitchen at the end of the hallway, the officers claimed they suspected for the first time that they were no longer in Landis's apartment. Once in the kitchen, Cragin repeatedly yelled, "sheriff's department, search warrant." The officers then made contact with Herrmann, who emerged from a darkened room off of the kitchen.

¶ 6. Cragin asked Herrmann if he lived with Landis, to which Herrmann replied that he did not. Cragin then asked if they were standing in Landis's apartment, to which Herrmann replied that they were not and that Landis lived next door. Cragin advised Herrmann that they had discovered withered marijuana plants in the storage room's closet and asked if the storage room was located in his or Landis's apartment. Herrmann replied that it was his apartment. Cragin detected a strong odor of marijuana and then asked Herrmann if he had any marijuana in the apartment, to which Herrmann answered that he did. Cragin asked Herrmann if he would turn the marijuana over to him and Herrmann subsequently led Cragin to the living room, indicating that the marijuana was under the couch. Cragin recovered approximately one ounce of marijuana and related drug paraphernalia from under the couch. ¶ 7. Cragin then told Herrmann that he smelled raw marijuana and asked Herrmann if he had any marijuana growing in his apartment. Herrmann intimated that he did, but then denied Cragin's request for consent to search the apartment. Herrmann was thereafter placed under arrest and a search warrant was obtained for his apartment, based on the discovery of the marijuana grow operation in the storage room's closet, Herrmann's incriminatory statements, the marijuana from under the couch and Cragin's ability to detect the smell of raw marijuana while standing in the kitchen. While executing the search warrant on Herrmann's apartment, officers discovered approximately fifty more marijuana plants and a "sophisticated" marijuana grow operation.

¶ 8. Herrmann was charged with one count of unlawfully manufacturing a controlled substance and one count of unlawfully possessing a controlled substance, contrary to WIS. STAT. § 961.41(1)(h)2 and (3g)(e).⁴ Herrmann moved the circuit court to suppress all statements and physical evidence seized from his apartment. The circuit court subsequently ordered the suppression of all statements and evidence obtained from Herrmann's apartment except for the nine marijuana plants found in the closet adjacent to Landis's sewing room.⁵ This appeal and cross-appeal followed.

ANALYSIS

[1, 2]

¶ 9. In reviewing an order granting or denying a motion to suppress evidence, a circuit court's findings will be upheld unless clearly erroneous. See WIS. STAT. § 805.17(2); State v. Secrist, 224 Wis. 2d 201, ¶ 11, 589 N.W.2d 387 (1999). However, we will independently examine the circumstances of the case to determine whether the constitutional requirements of reasonableness have been satisfied. See State v. Callaway, 106 Wis. 2d 503, 511, 317 N.W.2d 428 (1982)

. "[I]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." State v. Phillips, 218 Wis. 2d 180, ¶ 22, 577 N.W.2d 794 (1998).

¶ 10. Herrmann argues that the circuit court erred by failing to suppress the nine marijuana plants discovered in the "storage room" of his apartment. He contends that suppression is required under the Fourth Amendment because: (1) the officers had neither a valid search warrant for Herrmann's apartment nor a valid exception to the warrant requirement; and (2) the officers failed to stop all search-related activity when they discovered they were in the wrong apartment.

¶ 11. The facts of this case are similar to those of Maryland v. Garrison, 480 U.S. 79 (1987). In Garrison, Baltimore police officers obtained a warrant to search premises "known as 2036 Park Avenue third floor apartment." Id. at 80. When applying for and executing the warrant, the officers believed that there was only one apartment located on the third floor; however, the third floor was, in fact, divided into two apartments—one occupied by McWebb and the other by Garrison. As here, "before the officers executing the warrant became aware that they were in a separate apartment occupied by [Garrison], they had discovered [incriminating evidence]." Id.

¶ 12. The Garrison Court addressed first whether the warrant was valid given its broad description of the premises to be searched, a description based on the mistaken belief that there was only one apartment on the third floor of the building to be searched. See id. at 84-85. The Court held that "if the officers had known, or even if they should have known, that there were two separate dwelling units on the third floor of 2036 Park Avenue, they would have been obligated to exclude [Garrison's] apartment from the scope of the requested warrant." Id. at 85. The Court ultimately concluded that although the warrant turned out to be ambiguous in scope, it was valid when it was issued, based on the information the officers disclosed or had a duty to discover and disclose. See id. at 85-86.

¶ 13. In viewing the execution of the warrant in Garrison, the Court held that if the officers knew or should have known of the error in the warrant, "they would have been obligated...