State v. Kirkpatrick
| Decision Date | 05 March 1998 |
| Docket Number | No. 97-1418-CR,97-1418-CR |
| Citation | 578 N.W.2d 209,218 Wis.2d 165 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Rumont KIRKPATRICK, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Dane County: JACK F. AULIK, Judge. Affirmed.
Before Eich, C.J., and Vergeront and Deininger, JJ.
Rumont Kirkpatrick appeals a judgment convicting him of possessing more than 100 grams of cocaine with intent to deliver it, within 1000 feet of a public school; and of obstructing an officer. He also appeals an order denying his postconviction motion for sentence modification. He claims the trial court erred in denying his motion to suppress as evidence the contents of a safe that were seized at the time of his arrest, and that his sentence to the maximum term of imprisonment for the felony drug offense was excessive. We conclude the trial court did not err in denying the suppression motion, and that it did not erroneously exercise its sentencing discretion. Accordingly, we affirm the judgment of conviction and the order denying sentence modification.
On January 28, 1996, two police officers responded to a complaint that a marijuana odor was emanating from an apartment in the City of Fitchburg. The officers knocked on the apartment door and a woman, later identified as Lasondra Nicholson, answered the door. After the officers explained their presence, Ms. Nicholson granted them consent to search the apartment. When the officers entered, Kirkpatrick was sitting in a bedroom watching television.
During their search of the apartment, the officers found the following items: (1) a paper bag containing smaller plastic bags that held a total of 369 grams of cocaine base (living room, under couch); (2) a small bag of marijuana (kitchen, on top of refrigerator); (3) a scale with cocaine residue (bedroom closet); and (4) a locked portable safe (bedroom closet). The bedroom in which the safe was located was shared by Nicholson and Kirkpatrick. The officers then arrested both persons, and when Kirkpatrick was searched incident to his arrest, an officer found $1,390 in cash and a set of keys in Kirkpatrick's pocket.
After reading Kirkpatrick and Nicholson their Miranda 1 rights, the officers asked each of them if they knew what was inside the safe. Both Kirkpatrick and Ms. Nicholson answered that the safe belonged to a third party, Enrico Clark, and each denied having a key to the safe. In addition, Kirkpatrick asserted that he did not know what was in the safe and thought it was empty. After receiving these disclaimers, the officers looked for keys that could potentially open the safe. Kirkpatrick watched silently as the police officers attempted to open the safe with numerous keys. The safe was ultimately opened with a key from the ring of keys that had been seized from Kirkpatrick's pocket. Inside the safe, the officers found some 328 grams of crack cocaine and a 9mm pistol.
The State charged Kirkpatrick with, among other offenses, possession of more than 100 grams of cocaine with intent to deliver it, in violation of § 161.41(1m)(cm)5, STATS., 1993-94, which carried an enhanced penalty under § 161.49, STATS., 1993-94, because the offense was alleged to have occurred within 1000 feet of a public school. 2 Kirkpatrick moved to suppress the safe's contents as evidence. Kirkpatrick testified at the suppression hearing that, although the safe belonged to Enrico Clark, he was using it at the time to store his pistol. He also admitted that he had lied when he told police officers that he did not know what was in the safe.
The State told the trial court that Kirkpatrick had "probably demonstrated" a subjective expectation of privacy with regard to the contents of the safe because he testified at the hearing to that effect. The trial court agreed, concluding:
I'm satisfied from this record that the subjective test is probably satisfied, at least by the preponderance of the evidence, and that is that this defendant testified that as to the safe itself that he made use of that safe and he placed an object into the safe, [his gun] .
The court, concluded, however that Kirkpatrick had failed to establish that the "objective test" had been satisfied, that is, that his expectation of privacy was one which society would be willing to recognize as reasonable. On this point, the court commented as follows:
If in fact there is a denial of any ownership interest, possessory interest, or interest whatsoever in an object by a person who's queried on that issue, and subsequently, that person takes the position that the invasion into that personal property was without his permission and consent, to me, that would leave us in the status of the law that in any instance where a person denied any possessory interest or expectation of privacy, that the law enforcement would not be able to invade that personal property under any form whatsoever, other than ... procuring a search warrant.
I think that the officers under this set of facts were within their province and within the province of society to conclude that this defendant did not exercise any expectation of privacy in that safe, and therefore, they were not violating his constitutional rights by opening it open up, and that he has no standing to challenge it in any respect.
The trial court thus denied Kirkpatrick's motion to suppress and his subsequent motion to reconsider. A jury found him guilty of the penalty-enhanced felony drug offense and of obstructing an officer, a misdemeanor. 3 The court sentenced Kirkpatrick to the maximum imprisonment of thirty years for the drug offense, plus the maximum five years imprisonment for the school zone enhancement. A six-month concurrent sentence was imposed on the obstructing charge. Kirkpatrick moved postconviction for sentence modification, which was denied. He appeals the judgment of conviction and the order denying his motion for sentence modification.
The search and seizure provisions of the United States and Wisconsin Constitutions guarantee the right of citizens to be free from unreasonable searches and seizures. "[We] follow [ ] the United States Supreme Court's interpretation of the search and seizure provision of the Fourth Amendment in construing the same provision of the Wisconsin Constitution." State v. Roberts, 196 Wis.2d 445, 452-53, 538 N.W.2d 825, 828 (Ct.App.1995). Although the question at hand is sometimes referred to in terms of "standing" to raise a Fourth Amendment challenge to a particular seizure, the inquiry is directed toward whether State v. Harris, 206 Wis.2d 243, 251, 557 N.W.2d 245, 249 (1996). The issue is thus "a matter of substantive Fourth Amendment law." State v. Dixon, 177 Wis.2d 461, 467, 501 N.W.2d 442, 445 (1993).
Whether Kirkpatrick had an interest protected by the Fourth Amendment in the interior of the safe "depends, in the first place, on whether [he] had a legitimate, justifiable or reasonable expectation of privacy" in that space. State v. Rewolinski, 159 Wis.2d 1, 12, 464 N.W.2d 401, 405 (1990). And, unless he had a legitimate expectation of privacy, the constitutionality of the police conduct in seizing the items from the safe "does not come into question." Id. Our threshold inquiry, moreover, involves two separate questions:
The determination of whether the defendant had a reasonable expectation of privacy depends on two separate questions. The first question is whether the individual by his conduct exhibited an actual, subjective expectation of privacy. The second question is whether such an expectation is legitimate or justifiable in that it is one that society is willing to recognize as reasonable.
Id. at 13, 464 N.W.2d at 405. Kirkpatrick bears the burden of proving, "by a preponderance of the credible evidence," both that he manifested a subjective expectation of privacy in the contents of the safe and that his expectation was reasonable. Id. at 16, 464 N.W.2d at 406-07.
Here, the State all but conceded at the suppression hearing, and the trial court subsequently determined, that Kirkpatrick met his burden of establishing a subjective expectation of privacy in the safe's interior because he testified at the suppression hearing that he was using Clark's safe to store his pistol. On appeal, however, the State argues that "by disclaiming ownership of the safe, the defendant did not, by his conduct, exhibit an actual subjective expectation of privacy" (emphasis in original). See id. at 13, 464 N.W.2d at 405. For reasons we discuss below, we agree. We first address, however, Kirkpatrick's assertions that this court may not make an independent determination regarding Kirkpatrick's subjective expectation of privacy in the interior of the safe, and further, that we should not even consider the issue on appeal because the state failed to raise it in the trial court.
Kirkpatrick argues that the court's finding on the issue was one of fact which we may not disturb unless it was "clearly erroneous." We agree that we may not disturb a trial court's findings regarding evidentiary or historical facts unless they are contrary to the great weight and clear preponderance of the evidence. State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457, 465 (1984). 4 However, we independently determine questions of "constitutional fact," which are not actually "facts" in themselves, but are questions which require the " 'application of constitutional principles to the facts as found.' " Id. (quoted source omitted). Our overall inquiry into whether the...
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