State v. Monahan

• Decision Date: 15 March 1977
• Docket Number: No. 75-537-CR,75-537-CR
• Citation: 76 Wis.2d 387,251 N.W.2d 421
• Parties: STATE of Wisconsin, Respondent, v. Thomas MONAHAN, Appellant.
• Court: Wisconsin Supreme Court

Page 421

251 N.W.2d 421

76 Wis.2d 387

STATE of Wisconsin, Respondent, v. Thomas MONAHAN, Appellant.

No. 75-537-CR.

Supreme Court of Wisconsin.

Argued Jan. 4, 1977.

Decided March 15, 1977.

Syllabus by the Court

Thomas Monahan pled guilty to a violation of secs. 161.41(3), 161.14(4)(k) and 939.61, Stats., possession of a controlled substance, marijuana, a misdemeanor. He appeals pursuant to sec. 971.31(10), which allows review of an order denying a motion to suppress evidence upon appeal from a judgment of conviction notwithstanding the judgment was entered upon a plea of guilty.

Jacobson, Sodos & Melnick, S. C. and oral argument by David A. Melnick, Milwaukee, for appellant.

Marguerite M. Moeller, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.

BEILFUSS, Chief Justice.

On the evening of January 20, 1975, federal narcotics agents received a phone call from a confidential informant who stated a sale of 500 pounds of marijuana could be arranged. The informant then had Richard Hills speak with the agent. Hills stated the "deal" could not be arranged until January 21, 1975. The informant was instructed to contact Hills on the following day. The informant contacted the agents the next morning, stating the marijuana would be taken to Hills' farm between noon and 1 p. m. The agents traveled from Milwaukee to Hills' farmhouse in Dodge county, arrived at 12:15 p. m., and established surveillance. A meeting between Hills and the agents was arranged. During the 5 p. m., meeting at the "This Place" tavern in Watertown, Hills stated that 200 "Thai sticks" would be delivered to the farmhouse at 7:30 p. m., and that he was to meet the party who was to deliver the marijuana at 9 p. m. "Thai sticks" are small bamboo shoots filled with marijuana and laced with opium. The agreed price for these Thai sticks was $21 per stick. The persons who were to deliver the marijuana and the Thai sticks were different people. Hills returned to his farmhouse; shortly after 7:30 p. m., he left and went to the Riverview Bar where he was to meet the agents. Hills stated that the "Thai sticks" had been delivered and the person who delivered them was waiting alone at the farmhouse. Enroute to the farmhouse Hills stated that this person did not want to meet anyone.

Upon arriving at the farmhouse, Hills, the informant and two agents entered. They passed through a limited area in the kitchen. Hills directed the three men into a den. He told the agents not to go into the living room; however, as they entered the house both agents observed the defendant-appellant, Thomas Monahan, seated in the living room. Following a discussion Hills left the den, went through the kitchen and into the living room. Following Hills into the kitchen, one agent observed Hills remove a bag from underneath a couch in the living room directly to the left of where Monahan was seated. In the den the sticks were counted, and after it was ascertained that there were 200, the bag with the sticks in it was returned to the hiding place in the living room. One agent left to get $4,200 from another agent waiting in the car while Hills brought the sticks back into the den. When the agent returned, both Hills and Monahan were arrested.

It was later discovered that the sticks were not laced with opium, but contained only marijuana and hashish.

Monahan brought a motion to suppress the evidence because it was obtained by an illegal search and seizure. The motion was denied on September 30, 1975. The original felony charge of possession with intent to deliver was amended on October 8, 1975, to possession of marijuana, a misdemeanor. Monahan pled guilty to this charge and was placed on probation for one year on December 15, 1975. As conditions of probation, Monahan was to spend 90 days in jail under Huber provisions, pay costs and a fine of $100. The condition imposing 90 days in the county jail was stayed pending appeal.

The basic issue agreed upon by Monahan and the state is whether the visual surveillance of the living room, where the agents saw Hills remove a bag containing marijuana-hashish sticks from under the couch and identified Monahan, was a search in the constitutional sense.

" ' "A search implies a prying into hidden places for that which is concealed." ' . . .

" 'A search implies an examination of one's premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term (search) implies exploratory investigation or quest. . . .' " State v. McDougal, 68 Wis.2d 399, 405, 228 N.W.2d 671, 674 (1975).

"A search can be conducted by one's eyes alone." Edwards v. State, 38 Wis.2d 332, 338, 156 N.W.2d 397, 401 (1968).

The agents were invited by Hills into his house. Implicit in this invitation is a right to look around. Any observations that they made as they entered were not a search. Observations made in this way were not a "prying into hidden places." Once in the house the agents were directed to the den and instructed not to go into the living room. After a discussion concerning price of the sticks, Hills left the den and went to the living room. One agent followed Hills as far as the kitchen where he observed Hills in the living room removing the sticks from under a couch directly to the left of where Monahan was sitting. Monahan's claim is essentially the same as that presented in State v. Gums, 69 Wis.2d 513, 517, 230 N.W.2d 813, 815 (1975): "(T)he officers had no right to stand where they stood when they saw what they saw." If the agent was entitled to be in the kitchen and could easily see Hills' activities in the living room, no search took place. ¹

To determine whether a search took place we must answer the question whether the undercover agent had a right to be in the kitchen. To answer this question we must examine the conduct of the parties and rely on common sense. When one invites another into one's home the invitation may implicitly extend to all areas of the home or it may be limited to a specific area. The extent of the invitation usually depends upon the relationship of the parties and the particular circumstances of the visit. The door-to-door salesperson invited into the home knows he or she is limited to the room they are brought into. One's family or close friends may understand that they may move freely from room to room.

There was no statement that the agents were not to enter the kitchen. Did this mean they were entitled to enter the kitchen without invitation from Hills or in his absence? We do not believe so. The conduct of Hills demonstrates that the agents were to remain in the den. He specifically directed them to this room. He gave no indication that the agents were entitled to roam at will, on the contrary he stated they were not to go into the living room. The conduct of the agents is also of assistance in answering this question. The agent who entered the kitchen to view the living room did not do so with Hills. He waited until Hills was in the living room before entering the kitchen; he knew he was not to be in the kitchen to make observation into the living room. When the agent followed Hills into the kitchen he was on an "exploratory investigation" examining Hills' premises with a view to the discovery of contraband or evidence of guilt. In looking into the living room the agent was prying into hidden places for that which is concealed. We conclude that the entry into the kitchen and the visual surveillance of the living room was a search.

Having determined that a search took place, the issue becomes whether the search was circumscribed by either the Fourth Amendment to the United States Constitution or Art. I, sec. 11 of the Wisconsin Constitution. State v. Davidson, 44 Wis.2d 177, 194 (n. 12), 170 N.W.2d 755, 764 (1969). The Fourth Amendment requires searches and seizures be reasonable. State v. Tarrell, 74 Wis.2d 647, 653, 247 N.W.2d 696, 700 (1976), citing State v. Bell, 62 Wis.2d 534, 539-40, 215 N.W.2d 535, 539 (1974): "The fundamental rule applicable to searches and seizures is that warrantless searches are per se unreasonable under the Fourth Amendment except under certain well-defined circumstances." Id. There was no warrant to search Hills' house. If this warrantless search is to be found reasonable it must fall within one of the "specifically established and well-delineated exceptions" to the warrant requirement. ²

Before examining these exceptions we note that there are recognized distinctions in the appropriate levels of protection afforded by the Fourth Amendment to different forms of intrusion. Wendricks v. State, 72 Wis.2d 717, 722, 242 N.W.2d 187, 190 (1976). The highest level of protection is afforded to a dwelling place. See State v. Pires, 55 Wis.2d 597, 604, 201 N.W.2d 153, 157 (1972).

Contraband in plain view, ³ consent, ⁴ lawful arrest, ⁵ exigent circumstances, ⁶ hot pursuit ⁷ or a "stop and frisk" ⁸ present circumstances which may justify an exception to the warrant requirement.

A warrant is unnecessary if contraband is in plain view. But the plain view doctrine does not apply when an officer does not have a right to be in the place where he viewed the contraband. State v. Spraggin, 71 Wis.2d 604, 610, 239 N.W.2d 297, 304 (1976). Even if the agent had authority to be in the kitchen, plain view would not apply because plain view requires that discovery of the object be inadvertent. State v. O'Brien, 70 Wis.2d 414, 419 (n. 2), 234 N.W.2d 362, 364 (1975). The agent neither had authority to be in the kitchen nor was the view of the contraband being removed while Monahan was present inadvertent.

This case is unlike State v. O'Brien, supra, where police officers went to a farmhouse to execute an arrest warrant. In the process they obtained marijuana which was in plain view in the kitchen and which was in plain view in a third floor closet which was checked for hidden persons. There...