State v. Kennedy, 94-2822-CR

Citation535 N.W.2d 43,193 Wis.2d 578
Decision Date18 April 1995
Docket NumberNo. 94-2822-CR,94-2822-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Rebecca J. KENNEDY, Defendant-Appellant.
CourtCourt of Appeals of Wisconsin

For the defendant-appellant the cause was submitted on the briefs of Suzanne Hagopian, Asst. State Public Defender.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Atty. Gen. and Peter J. Cannon, Asst. Atty. Gen..

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Rebecca Kennedy appeals a judgment of conviction for one count of food stamp fraud, contrary to § 49.127(2m), STATS. Lee LaChappelle, a Shawano County welfare fraud investigator, conducted surveillance of Kennedy's home over a one-month period. Based on evidence derived from the surveillance, LaChappelle obtained a warrant to search Kennedy's home. Kennedy now contends that the trial court erred by failing to suppress the evidence that LaChappelle obtained through his surveillance of her home because he conducted the surveillance from the curtilage of her home without a search warrant in violation of the Fourth Amendment to the United States Constitution and § 11 of the Wisconsin Constitution. Further, Kennedy argues that because the search warrant was based on evidence obtained during the surveillance of her home, the trial court erred by failing to suppress all evidence seized pursuant to the warrant as "fruit of the poisonous tree." Because we conclude that LaChappelle did not conduct his surveillance activities from within the curtilage of Kennedy's home, the judgment is affirmed.

At the time of the events giving rise to this case, Rebecca Kennedy was renting a home from Kevin Pallex on property located in rural Shawano County. The property borders County Highway H to the north and is surrounded by woods on the south, east and west. In addition to the home, which is set back approximately 400 feet from the highway, the property has several freestanding buildings, including a sauna, barn and pump house. The outhouse and sauna are located inside the treeline to the south of the house, and the barn and pump house are located inside the treeline to the southeast of the house.

Kennedy, who was receiving public assistance pursuant to ch. 49, STATS., informed the Shawano County Department of Social Services that she and her three children were living alone. In March 1992, however, Lee LaChappelle received an anonymous tip that Kennedy was living with Pallex. Relying on this tip, LaChappelle conducted his surveillance of Kennedy's home between April and May 1992 to determine the validity of the tip. On each of the nineteen times LaChappelle conducted surveillance of Kennedy's home, he did so from one of the following four locations: (1) in the treeline behind a brush pile to the west of the home; (2) in the trees from a location to the northwest of the home; (3) in the trees from a location to the south of the home and outhouse; and (4) in trees from a location to the southwest of the home and barn.

Based on observations made during the course of his surveillance, LaChappelle obtained a warrant to search Kennedy's home. During the execution of the warrant, LaChappelle and a second officer discovered Pallex in Kennedy's home, along with his clothes and other personal possessions. The officers also obtained incriminating statements from both Kennedy and Pallex.

Kennedy subsequently filed a motion to suppress all evidence obtained in the search, including the statements made by Kennedy and Pallex. Kennedy argued that LaChappelle's surveillance of her home was unconstitutional because it was conducted from within the curtilage of her home without a warrant. Kennedy further argued that because the search warrant was based on evidence gathered during LaChappelle's surveillance, all evidence seized pursuant to the warrant should be suppressed as fruit of the poisonous tree. The trial court denied Kennedy's motion, concluding that "Mr. LaChappelle never got on the so-called curtilage."

At trial, LaChappelle testified at length as to the observations he made during the course of his surveillance, and the evidence obtained during execution of the search warrant. Additionally, the incriminating statements taken from Kennedy and Pallex were admitted into evidence. At the conclusion of the trial, the jury found Kennedy guilty of welfare fraud in violation of § 49.127(2m), STATS.

The issue whether LaChappelle's surveillance of Kennedy's home was unconstitutional under the Fourth Amendment to the United States Constitution and § 11 of the Wisconsin Constitution presents a mixed question of law and fact. We review the trial court's findings of historical fact under the clearly erroneous standard. State v. Lange, 158 Wis.2d 609, 617, 463 N.W.2d 390, 392-93 (Ct.App.1990). Once the facts are established, whether the area in question is so intimately tied to the home itself that it should be considered curtilage within the protections of the Fourth Amendment is a question of constitutional fact that we review without deference to the trial court. See id. at 617, 463 N.W.2d at 393.

Kennedy contends that the evidence obtained during the course of LaChappelle's surveillance was unconstitutional because he conducted the surveillance from within the curtilage of her home without a warrant. The trial court, however, found that LaChappelle conducted his surveillance from locations outside the treeline. The trial court's finding is supported by the evidence.

At the suppression hearing, LaChappelle testified that he conducted his surveillance from four different locations that ranged from 50 to 100 yards from the home. Further, LaChappelle stated that while using binoculars at a location in the treeline approximately 100 yards from Kennedy's home, he observed dew on Pallex's vehicle. LaChappelle testified that he conducted his surveillance from behind the treeline at all four of the surveillance points. LaChappelle stated that he remained in the treeline for concealment purposes. Based on LaChappelle's testimony at the suppression hearing, we conclude that the trial court's finding that each...

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9 cases
  • State v. Martwick
    • United States
    • United States State Supreme Court of Wisconsin
    • January 19, 2000
    ...of constitutional fact reviewed without deference to the trial court." Slip op. at 3. The court relied on State v. Kennedy, 193 Wis. 2d 578, 583, 535 N.W.2d 43 (Ct. App. 1995), for its reasoning, even though Kennedy relied on State v. Lange, 158 Wis. 2d 609, 617, 463 N.W.2d 390 (Ct. App. 19......
  • State v. Thompson, 97-2744-CR
    • United States
    • Court of Appeals of Wisconsin
    • September 24, 1998
    ...524 N.W.2d at 914. However, we review the trial court's findings of historical fact only for clear error. See State v. Kennedy, 193 Wis.2d 578, 583, 535 N.W.2d 43, 45 (Ct.App.1995). The threshold question in this appeal, then, is whether Thompson may claim a reasonable expectation of privac......
  • State v. Handeland, 97-2626-CR
    • United States
    • Court of Appeals of Wisconsin
    • August 20, 1998
    ...914 (Ct.App.1994). However, we review the trial court's findings of historical fact only for clear error. See State v. Kennedy, 193 Wis.2d 578, 583, 535 N.W.2d 43, 45 (Ct.App.1995). A search occurs when the police infringe on an expectation of privacy that society considers reasonable. See ......
  • State v. Geniesse, 95-2716-CR
    • United States
    • Court of Appeals of Wisconsin
    • April 25, 1996
    ...of the circumstances. Id. The Fourth Amendment also extends protection to the curtilage of one's home. State v. Kennedy, 193 Wis.2d 578, 584, 535 N.W.2d 43, 45 (Ct.App.1995). The extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that......
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