State v. Johnston, 92-1857-CR
| Decision Date | 23 June 1993 |
| Docket Number | No. 92-1857-CR,92-1857-CR |
| Citation | 178 Wis.2d 20,503 N.W.2d 346 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, d v. Dean JOHNSTON, Defendant-Appellant. dd |
| Court | Wisconsin Court of Appeals |
Before NETTESHEIM, P.J., and ANDERSON and SNYDER, JJ.
Dean Johnston appeals from a judgment of conviction on one count of selling alcoholic beverages to underage persons in violation of sec. 125.07(1), Stats., and one count of evading the law by giving away fermented malt beverages contrary to sec. 125.315(1) and (2), Stats., both misdemeanors. Johnston was also found guilty of a civil forfeiture violation for selling malt beverages without a license, contrary to sec. 125.04(1) and (3), Stats. Johnston argues the following on appeal: (1) that the warrantless search of his home and the subsequent seizure of evidence by uniformed police officers violated his fourth amendment right to privacy, (2) that the evidence cannot support his conviction on both criminal misdemeanor counts, (3) that the state improperly included the civil forfeiture claim in the criminal complaint, and (4) that the trial court erred in denying his motion for sentence modification, which was based upon his change in behavior after sentencing. Because we conclude that the warrantless search was a violation of Johnston's fourth amendment right to privacy, we reverse the judgment of the trial court and remand for a new trial.
In an attempt to gain access to illegal bars operating in the vicinity of the University of Wisconsin-Oshkosh campus, Oshkosh police assembled an undercover unit comprised of several officers. These officers were to infiltrate campus parties at which beer was being sold illegally. Johnston's residence was targeted based upon reports from campus police of illegal beer sales at that location.
The officers in the undercover unit attempted on several occasions to access Johnston's residence, but were denied entry when no one at the home recognized them. On the evening of April 3, 1991, they again attempted to enter Johnston's home with the help of a civilian, Roger Holtmeier, who knew Johnston's brother.
The officers' plan was to enter the home and purchase beer with marked bills. If they discovered any illegal activity, they were to remain inside. This would effectively signal a back-up team of uniformed officers to enter the premises approximately fifteen to twenty minutes later in order to search the residence and make any necessary arrests. There was no contingency plan to obtain a warrant before the uniformed officers' entry. An emergency plan was devised in case the undercover team encountered any danger. The plan consisted of providing one of the undercover officers with a portable radio should the team need to call for help.
The undercover team first attempted to enter Johnston's residence at approximately 6:15 p.m. Holtmeier informed residents of the home that he was acquainted with Johnston's brother. The officers were then informed to return in an hour. Upon their return at approximately 7:20 p.m., the officers were admitted through the back door of the residence and went to the basement. They estimated that between fifteen and twenty people were present, and that ultimately the party increased to approximately fifty persons.
Johnston asked the officers for identification and each officer paid Johnston three dollars in marked bills and received a beer glass. Johnston told some officers that they were paying the money for the cups and others that the money was for the music. They helped themselves to beer and joined in a dice game. At one point Johnston asked an officer if he was a police officer because he seemed unfamiliar with playing dice. The officer responded that he was not. At trial he testified that he felt it would have been detrimental to his safety to disclose his identity because there were forty to fifty people present.
After approximately fifteen minutes, the uniformed officers surrounded the residence. Two of the officers then proceeded to enter through the back door and into the basement where they conducted a search of everyone's identification and subsequently seized several beer signs, beer glasses, a roll of tickets, and two barrels of beer--one of which was half empty and the other full. In addition, the officers recovered several of the marked bills, including those in Johnston's possession.
Prior to trial, Johnston moved to suppress the evidence seized and statements made during the police raid on his home. He contested both the undercover officers' and the uniformed officers' warrantless entries and searches. 1
At the suppression hearing, Captain David Erickson testified that the police did not obtain a warrant because they did not believe that there was time to obtain one. He explained that it normally takes about two to three hours to have a search warrant issued and that he believed the beer would be gone, the party broken up and the marked bills dispersed by the time it could be obtained. There was no testimony regarding the time needed to obtain a telephone warrant pursuant to sec. 968.12(3), Stats. The trial court denied the motion to suppress, based in part on its holding that exigent circumstances existed justifying a warrantless entry. The court identified the exigent circumstances as the possible destruction of evidence and the protection of the safety of the officers.
Johnston was subsequently convicted at trial of all three counts.
We first address the issue of whether the warrantless search of Johnston's home violated his constitutional right to privacy under the fourth amendment to the United States Constitution and art. I, § 11 of the Wisconsin Constitution. The historical facts are undisputed. The questions remaining are ones of constitutional fact, which are reviewed independently by the appellate court as a conclusion of law. State v. Lange, 158 Wis.2d 609, 617, 463 N.W.2d 390, 393 (Ct.App.1990).
Under the fourth amendment to the United States Constitution and art. I, § 11 of the Wisconsin Constitution, warrantless searches are per se unreasonable except under certain well-defined circumstances. State v. Milashoski, 159 Wis.2d 99, 110-11, 464 N.W.2d 21, 25-26 (Ct.App.1990), aff'd, 163 Wis.2d 72, 471 N.W.2d 42 (1991); see generally Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The exceptions to the requirement that a search be conducted with a warrant include instances where the occupant consents to a search of the premises, where probable cause for a search is attended by exigent circumstances, or where emergency situations exist. Milashoski, 159 Wis.2d at 111, 464 N.W.2d at 26. The state has the burden of proving that the search and seizure fall within one of the exceptions. Id.
The state contends that Johnston lacks standing to challenge the warrantless search because he consented to the search of his home by inviting guests to enter. In Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978), the Supreme Court declined to conduct a separate inquiry into a defendant's standing to challenge a search and focused instead on "the extent of a particular defendant's rights under the Fourth Amendment." Therefore, the issue becomes whether Johnston possessed a legitimate expectation of privacy.
The state argues that Johnston waived his fourth amendment right to privacy by effectively converting his home into a commercial center and selling beer to invited guests.
The state relies on Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966), in which the Supreme Court held:
[W]hen, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store ... or on the street. A government agent ... may accept an invitation to do business and may enter upon the premises for the very purpose contemplated by the occupant. [Emphasis added.]
Lewis, however, dealt with the express invitation of a government agent to enter the petitioner's home. In the case at bar, Johnston concedes the legality of the entry of the undercover officers who were expressly invited into the party. It is the subsequent entry of the uninvited uniformed officers and the seizures which they made that he challenges.
The state asserts, however, that the consent by invitation given to the undercover officers extended to the uniformed officers vicariously; the uniformed officers entered Johnston's residence merely to assist the undercover team in seizing the evidence. In support of this argument, the state relies upon the doctrine of "consent once removed," adopted by the Court of Appeals for the Seventh Circuit and the Eastern District of Virginia. See United States v. Diaz, 814 F.2d 454 (7th Cir, cert. denied, 484 U.S. 857, 108 S.Ct. 166, 98 L.Ed.2d 120 (1987); United States v. Paul, 808 F.2d 645 (7th Cir.1986); United States v. Janik, 723 F.2d 537 (7th Cir.1983); United States v. Samet, 794 F.Supp. 178 (E.D.Va.1992). See also United States v. Anhalt, 814 F.Supp. 750 (N.D.Ill.1993); United States v. One (1) 1984 Mercedes Benz, 673 F.Supp. 387 (D.Haw.1987); California v. Cespedes, 191 Cal.App.3d 768, 236 Cal.Rptr. 649 (1987); Pennsylvania v. Moye, 402 Pa.Super. 81, 586 A.2d 406 (1990).
A general principle in Wisconsin is that additional officers may enter an individual's home after one officer has been legally admitted provided that they do not expand the scope or intensity of the search. See State v. Pires, 55 Wis.2d 597, 604-05, 201 N.W.2d 153, 157-58 (1972); see also La Fournier v. State, 91 Wis.2d 61, 71, 280 N.W.2d 746, 751 (1979). Expanding the scope of the search includes searching for evidence beyond that which has been...
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State v. Johnston
...was James E. Doyle, Atty. Gen. DAY, Justice. This is a review of a published decision of the court of appeals, State v. Johnston, 178 Wis.2d 20, 503 N.W.2d 346 (Ct.App.1993), reversing a judgment and order of the circuit court for Winnebago county, Honorable Robert A. Haase, Judge. The defe......