State v. McNeal, 2014AP2283–CR.

• Decision Date: 19 August 2015
• Docket Number: No. 2014AP2283–CR.,2014AP2283–CR.
• Citation: 870 N.W.2d 247 (Table),365 Wis.2d 195
• Parties: STATE of Wisconsin, Plaintiff–Appellant, v. Christopher D. McNEAL, Defendant–Respondent.
• Court: Wisconsin Court of Appeals

365 Wis.2d 195
870 N.W.2d 247 (Table)

STATE of Wisconsin, Plaintiff–Appellant
v.
Christopher D. McNEAL, Defendant–Respondent.

No. 2014AP2283–CR.

Court of Appeals of Wisconsin.

Aug. 19, 2015.

Opinion

¶ 1 PER CURIAM.

The State of Wisconsin appeals the circuit court's order granting Christopher McNeal's motion to suppress and the related exclusion of all evidence gathered by the State following city of Kenosha police officers' unlawful entry into McNeal's residence. We affirm.

¶ 2 The following undisputed facts are from the testimony presented at the hearing on McNeal's motion to suppress. McNeal is the upper unit tenant of the duplex where the search at issue occurred. On October 12, 2012, 911 dispatch received a call from a woman claiming to be the lower unit tenant stating she was smelling a strong odor of marijuana coming from the upper unit, there was significant “traffic” going into and out of the upper unit, and access to that unit was through a door at the rear of the duplex. City of Kenosha police officers responded and before reaching the rear entry noted the strong odor of marijuana. Officers noticed that the entry had a storm door and inner door, both with handle-only locks, and that the inner door was open several inches. There was also a doorbell on the outside wall next to the storm door with the words “UP” posted nearby.

¶ 3 Officers entered through the unlocked doors, and at that time observed in the entryway two closed doors¹ in addition to a staircase they had previously seen, prior to entry, through the windows of the exterior doors. Officers proceeded up the staircase where they encountered another door. The officers knocked on that door and McNeal answered. Through the open door, police saw drug paraphernalia. Upon seeing the police, McNeal attempted to close the door but police blocked it and then entered the room and handcuffed McNeal. McNeal was ultimately arrested and officers subsequently obtained a search warrant and discovered illegal drugs. At no time did McNeal consent to law enforcement entering through the rear exterior doors of the duplex and into the entryway or proceeding up the stairs.

¶ 4 The defense called the owner of the duplex, who testified regarding its configuration and which tenants had occupancy and control over the various areas of the duplex. He testified McNeal was the tenant of the upper unit, and at the time he rented that unit to McNeal, he informed McNeal that the rear entry was exclusively for access to McNeal's unit; access from the basement to the inside of the rear entryway was restricted by a door that could be locked by only the upper unit tenant; and the only person with keys to the rear exterior doors was McNeal. A city of Kenosha detective also verified in his testimony that he spoke with the lower unit tenant months after the search and she advised him she never used and had no access to the rear entryway. The detective also confirmed that the owner of the duplex had informed him the rear exterior doors were “exclusively the entrance of the upstairs apartment.”

¶ 5 McNeal was charged with possession of THC with intent to deliver near a school, possession of narcotics near a school, possession of drug paraphernalia, maintaining a drug trafficking place, and misdemeanor bail jumping, all as a repeater. He moved to suppress all the evidence gathered by police, arguing inter alia that the police illegally entered his home when they proceeded through the rear exterior doors without a warrant or lawful exception thereto. After the hearing, the circuit court granted the motion to suppress and, based on the lack of admissible evidence, granted McNeal's motion and suppressed all evidence. The State appeals.

¶ 6 The State makes three main arguments on appeal. First, McNeal failed to meet his burden of proof that he had a reasonable expectation of privacy in the rear entryway and stairway of the duplex. Second, if we determine McNeal had met his burden, we should conclude that “the Fourth Amendment was not implicated because the officers' actions were reasonable.” And finally, even if we conclude there was a constitutional violation in the officers' entry, the exclusionary rule should not be applied in this case. We conclude McNeal did have a reasonable expectation of privacy in the rear entryway and stairwell, the officers illegally entered McNeal's residence when they proceeded through the rear exterior doors into the entryway and up the stairs, and the circuit court properly applied the exclusionary rule.

¶ 7 In reviewing a circuit court's order granting a motion to suppress evidence, we uphold the court's factual findings unless they are clearly erroneous; whether those facts satisfy a particular constitutional standard is a question of law we determine independently. State v. Parisi, 2014 WI App 129, ¶ 9, 359 Wis.2d 255, 857 N.W.2d 472. “Whether a search or seizure ... passes constitutional muster [is a] question[ ] of law, subject to independent review.” State v. Guard, 2012 WI App 8, ¶ 14, 338 Wis.2d 385, 808 N.W.2d 718 (2011). The State has the burden of proving, by clear and convincing evidence, that an exception to the warrant requirement existed. State v. Kieffer, 217 Wis.2d 531, 541, 577 N.W.2d 352 (1998).

¶ 8 The first issue is whether McNeal met his burden to show he had a reasonable expectation of privacy in the rear entryway and stairway. “A criminal defendant bears the burden of establishing both that he manifested a subjective expectation of privacy that was invaded by government action and that that expectation was legitimate.” Guard, 338 Wis.2d 385, ¶ 17 (citations omitted); State v. Trecroci, 2001 WI App 126, ¶ 35, 246 Wis.2d 261, 630 N.W.2d 555 (stating...