State v. Johnston

• Decision Date: 17 June 1994
• Docket Number: No. 92-1857-CR,92-1857-CR
• Citation: 518 N.W.2d 759,184 Wis.2d 794
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Dean JOHNSTON, Defendant-Appellant-Cross-Petitioner.
• Court: Wisconsin Supreme Court

Page 759

518 N.W.2d 759

184 Wis.2d 794

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Dean JOHNSTON, Defendant-Appellant-Cross-Petitioner.

No. 92-1857-CR.

Supreme Court of Wisconsin.

Argued April 27, 1994.

Decided June 17, 1994.

For the plaintiff-respondent-petitioner the cause was argued by Stephen W. Kleinmaier, Asst. Atty. Gen., with whom on the briefs 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 defendant, Dean Johnston (Mr. Johnston), was convicted on one count of selling alcoholic beverages to underage persons in violation of sec. 125.04(1), Stats., ¹ and one count of evading the law by giving away fermented malt beverages (beer) contrary to sec. 125.315(1), Stats., ² both misdemeanors. Mr. Johnston was also found guilty of a civil forfeiture violation for selling fermented malt beverages without a license, contrary to sec. 125.07(1), Stats. ³ The court of appeals reversed the circuit court because it concluded that the evidence used was seized during an invalid warrantless search. We reverse the court of appeals decision and reinstate the judgment of the circuit court.

On the evening of April 3, 1991, Oshkosh police raided the home of the defendant, Mr. Johnston, arresting him and others at a beer drinking party involving mostly college students. The police first gained entrance to Mr. Johnston's residence through undercover agents (and one civilian agent) posing as party-goers. Unaware that they were police officers, Mr. Johnston invited the undercover officers and the civilian agent to attend the party.

Once inside the home, the undercover officers observed a beer drinking party in progress. They observed between fifteen to twenty persons present, increasing to forty to fifty persons, milling around and drinking what the officers identified as beer. At least one of the underage drinkers present appeared to the officers to be intoxicated.

The officers were directed to Mr. Johnston who was standing behind a bar in the basement. Mr. Johnston demanded payment of three dollars from each of the officers and the civilian agent. Mr. Johnston quipped to two of the officers that the money was not for the beer, but was "for the music," and told the third officer that the money was "for the cup." The civilian agent was not told what the money was for, but understood it was for the beer. After payment was made (in marked bills), the undercover officers, including one officer under the legal drinking age, were given plastic beer cups and told that the beer was in the corner and that they should help themselves. The officers sampled the fermented malt beverage, which they identified as beer.

The officers concluded from these observations that they had established probable cause that Mr. Johnston was involved in the illegal sale and distribution of alcohol, and that the alcohol was being sold or given to underage college students who were consuming the beer on the premises.

According to the prearranged plan, the undercover officers were to remain at the party inside the house for fifteen minutes if they found probable cause that crimes were being committed. Having found probable cause, the officers remained. The uniformed officers outside the house were alerted by this signal that they should come in and assist the undercover officers by making the actual arrests. Shortly thereafter, the uniformed officers entered the house through the open back door, the entrance used by the party-goers, and proceeded to the basement where the party was taking place. The uniformed officers then checked the identification of all present, made the necessary arrests, and seized various items as evidence, including two half-barrels of beer, a beer tap, plastic beer cups, three beer signs, and the marked money which had been paid to Mr. Johnston. The undercover officers and the civilian agent continued to conceal their true identities and were handled by the uniformed officers as if they were ordinary party-goers.

Mr. Johnston was found guilty by a jury on one count of selling alcoholic beverages to underage persons in violation of sec. 125.04(1), Stats., and one count of evading the law by giving away fermented malt beverages contrary to sec. 125.315(1), Stats., both misdemeanors. Mr. Johnston was also found guilty of a civil forfeiture violation for selling malt beverages without a license, contrary to sec. 125.07(1), Stats.

Mr. Johnston raises several issues on appeal. He claims that: (1) the warrantless search and seizure of evidence by the uniformed officers violated his Fourth Amendment right to privacy; (2) the evidence cannot support his conviction on both criminal misdemeanor counts; (3) the state improperly included the civil forfeiture claim in the criminal complaint; and, (4) the trial court erred in denying his motion for sentence modification, which was based upon his change in behavior after sentencing.

The court of appeals reversed the circuit court on the first issue, because it concluded that the warrantless search and seizure were invalid, and remanded to the circuit court. The court of appeals also considered the second and third claims, because they were likely to be contested on remand, and decided adversely to Mr. Johnston's position. The issue of Mr. Johnston's motion for sentence modification was not addressed.

We conclude that the search, seizure and arrest were valid, and therefore reverse the decision of the court of appeals. As to the second and third issues raised by Mr. Johnston, we conclude that they, too, must be decided adversely to Mr. Johnston. On the fourth issue, we conclude the trial court acted properly in refusing to modify Mr. Johnston's sentence.

The first issue we address is whether the warrantless search in Mr. Johnston's home and the seizure of the evidence found in the home violated Mr. Johnston's Fourth Amendment rights. This issue presents constitutional questions which we review independently of the trial or appellate courts. See, State v. Murdock, 155 Wis.2d 217, 226, 455 N.W.2d 618 (1990).

Warrantless searches are unreasonable per se under the Fourth Amendment, subject to a few carefully delineated exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Boggess, 115 Wis.2d 443, 449, 340 N.W.2d 516 (1983). The exceptions are "jealously and carefully drawn," Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). The burden is on the state to show that the search and seizure in question fall within one of the recognized exceptions to the warrant requirement. United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951).

One of the primary exceptions to the warrant requirement is consensual searches. Lewis v. United States, 385 U.S. 206, 209-210, 87 S.Ct. 424, 426-427, 17 L.Ed.2d 312 (1966); Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-2044, 36 L.Ed.2d 854 (1973). It is well established that a government agent may accept an invitation to enter a private dwelling, in the same manner as a private person, for the very purposes contemplated by the occupant. Lewis, 385 U.S. at 210-211, 87 S.Ct. at 427-428. Since it is undisputed that Mr. Johnston invited the undercover officers and the civilian agent into his home to attend the party, the entry of the undercover officers was made with consent and was therefore lawful. See, Johnston, 178 Wis.2d at 29, n. 1, 31, 503 N.W.2d 346.

It does not matter that the undercover officers obtained the consent through deceit and by concealing their identities. It has long been acknowledged that valid consent for the entry of government agents into a dwelling may be obtained even though accomplished by deceit and concealed identity. Lewis, 385 U.S. at 209-210, 87 S.Ct. at 426-427. Following Lewis, the Seventh Circuit in United States v. Scherer, 673 F.2d 176, 182 (7th Cir.1982), held that "[a] government agent may obtain an invitation onto property by misrepresenting his identity, and if invited, does not need probable cause nor warrant to enter so long as he does not exceed the scope of his invitation." See also, United States v. Paul, 808 F.2d 645, 648 (7th Cir.1986). This is what we conclude occurred here. ⁴

Once on the premises as invitees, the undercover officers were free to observe the events at the party. These observations provided the undercover officers with probable cause that crimes were being committed on the premises. Normally, "no amount of probable cause can justify a warrantless search or seizure [or arrest] absent 'exigent circumstances' " or some other exception to the warrant requirement, Coolidge, 403 U.S. at 468, 91 S.Ct. at 2039; State v. Pires, 55 Wis.2d 597, 607-608, 201 N.W.2d 153 (1972). However, as invitees, the undercover officers satisfied the consent exception to the warrant requirement. As in United States v. Ruiz-Altschiller, 694 F.2d 1104, 1107 (8th Cir.1982), "the defendants knowingly and voluntarily invited the undercover law enforcement agents into their residence for the purpose of conducting illegal business. The defendants, by extending such an invitation, voluntarily exposed themselves to a warrantless arrest." See also, United States v. Collins, 652 F.2d 735, 739 (8th Cir.1981), cert. denied 455 U.S. 906, 102 S.Ct. 1251, 71 L.Ed.2d 444; United States v. Davis, 646 F.2d 1298, 1301 (8th Cir.1981), cert. denied, 454 U.S. 868, 102 S.Ct. 333, 70 L.Ed.2d 170 (1981). ⁵

Both the events witnessed by the undercover officers and the items which were later seized were within the officers' "plain view" and well within the scope of the consent given...