State v. Martwick, No. 98-0101-CR.

CourtUnited States State Supreme Court of Wisconsin
Citation2000 WI 5,604 N.W.2d 552,231 Wis.2d 801
Docket NumberNo. 98-0101-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Thomas G. MARTWICK, Defendant-Appellant.
Decision Date19 January 2000

231 Wis.2d 801
2000 WI 5
604 N.W.2d 552

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Thomas G. MARTWICK, Defendant-Appellant

No. 98-0101-CR.

Supreme Court of Wisconsin.

Oral argument September 9, 1999.

Decided January 19, 2000.


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For the plaintiff-respondent-petitioner the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general

231 Wis.2d 804
For the defendant-appellant there was a brief by Robert P. Rusch and Rusch & Rusch Law Office, S.C., Medford and oral argument by Robert P. Rusch.

¶ 1. N. PATRICK CROOKS, J.

The state, as petitioner, seeks review of an unpublished decision of the court of appeals, State v. Martwick, No. 98-0101-CR, unpublished slip op. (Ct. App. July 21, 1998), which reversed a Price County Circuit Court judgment. The circuit court, the Honorable Patrick J. Madden presiding, convicted the respondent, Thomas G. Martwick (hereinafter Martwick), of manufacturing THC, contrary to Wis. Stat. § 961.41(1)(h)1 (1995-96).1 The court of appeals reversed, holding that the circuit court erroneously denied a suppression motion concerning evidence of marijuana plants seized by sheriff's deputies from the curtilage2 of Martwick's home. Martwick, Slip op. at 1-2.

¶ 2. We reverse. We hold that a curtilage determination is a question of constitutional fact subject to a two-step standard of review: a circuit court's historical findings of fact are reviewed under a clearly erroneous standard, while the ultimate question of constitutional

231 Wis.2d 805
fact is reviewed de novo. We further hold that applying this two-step process, the five marijuana plants the deputies initially found were outside of the curtilage of Martwick's home. Accordingly, we reverse the court of appeals' decision, which overturned Martwick's conviction

I.

¶ 3. The record before the circuit court reflects that on June 9, 1997, Brian Roush, a Price County Deputy Sheriff, learned of information conveyed by a confidential informant regarding drug activity occurring at the Martwick residence. On May 3, 1997, the informant apparently saw large amounts of processed and unprocessed marijuana, as well as live plants in Martwick's house. (R. at 35:5-6.) According to the informant, Martwick complained that he needed to keep his plants inside because the weather was too cold in May to transplant them outdoors.

¶ 4. After reviewing the written report with fellow Deputy Sheriff Chris Jarosinski, Deputy Roush inquired about the possibility of obtaining a search warrant of the residence with the assistance of the Price County District Attorney's office. District Attorney Patrick G. Schilling thought the confidential information was probably stale because the informant observed the marijuana at Martwick's residence in May. Because the district attorney was concerned about the information's potential staleness, Deputy Roush decided to investigate further by viewing Martwick's property himself.

¶ 5. Before even reading the confidential informant's report, Deputy Roush had suspected Martwick of growing marijuana. Two years before, a county drug officer told Deputy Roush that he had found remnants

231 Wis.2d 806
of old marijuana growth in the Town of Elk. Martwick's name appeared on the pails used to grow the marijuana. (R. at 35:37.) Then, during the summer of 1996 another small marijuana plant was found on property thought to belong to Martwick

¶ 6. Deputy Roush and Deputy Jarosinski drove to Martwick's residence on June 9, and a neighbor gave them permission to park their squad car on the neighbor's property. The boundary lines of Martwick's property are unmarked. The property is one of a group of recreational and year-round homes located along the Wilson Flowage in Price County. Approximately 20 homes fall within a one-mile radius of Martwick's home, and Martwick's nearest neighbor lives directly across the road.

¶ 7. Martwick's 1.52-acre property is irregularly shaped. According to Martwick's hand-drawn diagram, his property is approximately 122 feet long on its eastern edge, 260 feet long on its western edge, 333 feet long on its northern edge, and 413 feet long on its southern edge. (Exhibit 26.) On this diagram, Martwick's house appears near the center of the property, approximately 100 feet from E. Wilson Flowage Road, the main road bounding his property. At the extreme edge of the property farthest from the road are two ginseng sheds. Martwick also raises worms near the ginseng sheds. A gravel driveway leads up to the house from the road.

¶ 8. Martwick does not cultivate a traditional mowed lawn. As defense counsel admitted to the circuit court, his "client's home would not win a Martha Stewart award." (R. at 35:48.) Instead, a twenty-foot clearing surrounds the house in which only low-lying weeds, brush, and wildflowers grow. Woods cover the remainder of the property past the clearing. A footpath

231 Wis.2d 807
begins within ten feet of the house and extends into the wooded section leading to the ginseng sheds. Martwick occasionally clears the path with a brush cutter.

¶ 9. After parking their squad car, the two deputies walked onto Martwick's property from the neighboring property. According to Martwick's hand-drawn diagram, the deputies entered his property from the southern edge at a point between the house and the ginseng sheds. (Exhibit 26.) In the woods, Deputy Roush tripped over what he thought was some sort of wire placed no more than one foot above the ground. Then, the deputies observed five marijuana plants in four five-gallon plastic pails. Deputy Roush estimated that the pails were located between 50 and 75 feet from the house along the path leading to the ginseng sheds. The plants were approximately two and one-half to three and one-half feet tall. Deputy Roush and Deputy Jarosinski cut a leaf slip off of one of the suspected marijuana plants and returned immediately to the district attorney's office to conduct a Duquenois-Levine test. The leaf slip produced a positive result indicating that it contained THC, the active ingredient in marijuana.

¶ 10. Based on their observations and the test results, that same day the deputies applied for and obtained a search warrant. Within approximately three hours the deputies executed the search warrant and seized the plastic pails with the five marijuana plants, 29 smaller marijuana plants, baggies with green plant material and marijuana seeds, and plant cultivation products, among other items. Deputy Roush also took photographs of Martwick's property. Deputy Roush testified that from the vantage point of the potted plants, he could see the top of Martwick's

231 Wis.2d 808
house in the distance. (R. at 35:9.)(Exhibit 27.) However, from the house, a person could not see the plants.

¶ 11. The state charged Martwick with manufacturing marijuana contrary to Wis. Stat. § 961.41(1)(h)2. On August 21, 1997, Martwick moved to suppress the evidence the deputy sheriffs obtained on the basis that the search warrant for his residence was not supported by probable cause, since the deputies improperly obtained evidence supporting probable cause to search the entire property by illegally entering the curtilage of his residence. Martwick later moved to suppress on the basis that the search warrant was not issued by a neutral and detached magistrate.3

¶ 12. The circuit court denied the defendant's first motion to suppress, stating that the deputies' initial warrantless search on Martwick's premises was valid because they had searched outside the property's curtilage. Therefore, the search warrant they subsequently obtained was properly supported by probable cause. While retaining his right to appeal,4 Martwick pleaded guilty to and was convicted of manufacturing marijuana in violation of Wis. Stat. § 961.41(1)(h)1.5 The circuit court withheld his sentence and ordered 18 months of probation.6

231 Wis.2d 809
¶ 13. Martwick appealed the conviction. The court of appeals first held that "the scope of curtilage for Fourth Amendment purposes is a question 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. 1990), a case that left the issue of standard of review unanswered. Slip. op. at 3. Citing Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997), the court explained that it is bound by its own prior decisions. Slip op. at 3.

¶ 14. The court then concluded that the leaf slip was seized in an area that was part of the curtilage surrounding Martwick's home. Slip op. at 4. In coming to this conclusion, the court analyzed the four factors that determine the extent of curtilage surrounding a home as set forth in United States v. Dunn,7 480 U.S. 294, 300 (1987). Slip op. at 4. In regard to the Dunn factors, the court felt that the marijuana was in close proximity to the home, and because the marijuana grew in a garden setting, it appeared to be growing in an area "`use[d] for intimate activities of the home.'" Slip op. at 5-6 (quoting Lange, 158 Wis. 2d at 619). Moreover, the overgrown nature of the property indicated

231 Wis.2d 810
that Martwick wished to prevent public observation. Slip op. at 6. Finally, the court stated that the "lack of a barrier more formal than heavy flora overgrowth" was insufficient "to diminish Martwick's expectation of privacy." Slip op. at 6.

¶ 15. The court of appeals concluded that the marijuana pails were within the curtilage of Martwick's home. Therefore, the deputies had improperly seized the leaf slip, and it could not serve as the basis for probable cause to obtain a search warrant for the premises. Because the search warrant was invalid, the circuit court erred in failing to suppress all of the evidence seized....

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111 practice notes
  • State v. Stietz, No. 2014AP2701-CR
    • United States
    • Wisconsin Supreme Court
    • June 13, 2017
    ...activity chased suspects who ran when police arrived; suppression of evidence tossed in open field not required); State v. Martwick , 2000 WI 5, ¶¶9, 10, 12, 32, 37, 43, 231 Wis. 2d 801, 604 N.W.2d 552 (evidence admissible where informant reports marijuana plants, police see plants in open ......
  • State v. Greve, No. 02-2332-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 10, 2004
    ...WI 48, ¶ 19, 243 Wis. 2d 173, 626 N.W.2d 712; State v. Pallone, 2000 WI 77, ¶¶ 26-27, 236 Wis. 2d 162, 613 N.W.2d 568; State v. Martwick, 2000 WI 5, ¶ 17, 231 Wis. 2d 801, 604 N.W.2d 272 Wis.2d 453 B. Sentencing Background ¶ 8. In order to explain our answers to the questions presented, we ......
  • State v. Dubose, No. 2003AP1690-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 14, 2005
    ...of fact. We will uphold these findings unless they are against the great weight and clear preponderance of the evidence. State v. Martwick, 2000 WI 5, ¶18, 231 Wis. 2d 801, 604 N.W.2d 552. "In reviewing an order suppressing evidence, appellate courts will uphold findings of evidentiary or h......
  • State v. Dubose, No. 2003AP1690-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 14, 2005
    ...of fact. We will uphold these findings unless they are against the great weight and clear preponderance of the evidence. State v. Martwick, 2000 WI 5, ¶ 18, 231 Wis. 2d 801, 604 N.W.2d 552. "In reviewing an order suppressing evidence, appellate courts will uphold findings of evidentiary or ......
  • Request a trial to view additional results
112 cases
  • State v. Stietz, No. 2014AP2701-CR
    • United States
    • Wisconsin Supreme Court
    • June 13, 2017
    ...activity chased suspects who ran when police arrived; suppression of evidence tossed in open field not required); State v. Martwick , 2000 WI 5, ¶¶9, 10, 12, 32, 37, 43, 231 Wis. 2d 801, 604 N.W.2d 552 (evidence admissible where informant reports marijuana plants, police see plants in open ......
  • State v. Greve, No. 02-2332-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 10, 2004
    ...WI 48, ¶ 19, 243 Wis. 2d 173, 626 N.W.2d 712; State v. Pallone, 2000 WI 77, ¶¶ 26-27, 236 Wis. 2d 162, 613 N.W.2d 568; State v. Martwick, 2000 WI 5, ¶ 17, 231 Wis. 2d 801, 604 N.W.2d 272 Wis.2d 453 B. Sentencing Background ¶ 8. In order to explain our answers to the questions presented, we ......
  • State v. Dubose, No. 2003AP1690-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 14, 2005
    ...of fact. We will uphold these findings unless they are against the great weight and clear preponderance of the evidence. State v. Martwick, 2000 WI 5, ¶18, 231 Wis. 2d 801, 604 N.W.2d 552. "In reviewing an order suppressing evidence, appellate courts will uphold findings of evidentiary or h......
  • State v. Dubose, No. 2003AP1690-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 14, 2005
    ...of fact. We will uphold these findings unless they are against the great weight and clear preponderance of the evidence. State v. Martwick, 2000 WI 5, ¶ 18, 231 Wis. 2d 801, 604 N.W.2d 552. "In reviewing an order suppressing evidence, appellate courts will uphold findings of evidentiary or ......
  • Request a trial to view additional results

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