State v. Phillips

• Decision Date: 22 May 1998
• Docket Number: No. 95-2912-CR,95-2912-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jason PHILLIPS, Defendant-Appellant. d
• Court: Wisconsin Supreme Court

Page 794

577 N.W.2d 794

218 Wis.2d 180

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jason PHILLIPS, Defendant-Appellant. ^d No. 95-2912-CR.

Supreme Court of Wisconsin.

Decided May 22, 1998.

Argued Jan. 8, 1998.

For the plaintiff-respondent-petitioner the cause was argued by Paul Lundsten, Assistant Attorney General with whom on the briefs was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief by Arthur B. Nathan and Nathan Law Office, S.C., Racine and oral argument by Arthur B. Nathan.

¶1 DONALD W. STEINMETZ, Justice

This case presents three issues for review:

(1) Should an appellate court independently review a circuit court's finding on the voluntariness of a defendant's consent to search, or must the appellate court give deference to the circuit court's determination;

(2) Did the defendant in the present case voluntarily consent to the warrantless search of his bedroom; and

(3) If the defendant voluntarily consented to the search of his bedroom, should the evidence seized during that search be suppressed because drug agents obtained it by exploiting their unlawful entry into the defendant's home.

¶2 This case is before the court on petition for review of a published decision of the court of appeals, State v. Phillips, 209 Wis.2d 559, 563 N.W.2d 573 (Ct.App.1997), reversing a judgment of conviction entered by the circuit court for Racine County, Judge Emmanuel J. Vuvunas. The circuit court denied defendant Jason Phillips' pretrial motion to suppress physical evidence that the drug agents seized during a warrantless search of his home. After the circuit court's denial of his motion to suppress, the defendant pled no contest to possession of marijuana as a repeat offender in violation of Wis. Stat. §§ 161.41(3r) and 161.48(2)(1993-94). ¹ The defendant then appealed from the judgment of conviction, and the court of appeals reversed. The court of appeals found that the search of the defendant's home violated the defendant's rights guaranteed by the Fourth Amendment to the United States Constitution ² and art. I, § 11 of the Wisconsin Constitution. ³ We accepted the State's petition for review and now reverse the decision of the court of appeals.

¶3 On September 29, 1994, three agents from the Metro Drug Unit of the Racine County Sheriff's Department went to the home of the defendant, Jason Phillips. According to the testimony of Agent Joseph Zblewski, a confidential informant had provided to the agents information that Phillips was involved in the sale of marijuana. Based on this information, the agents went to the Phillips' home to pursue a "knock and talk" encounter. The agents did not have a warrant to search defendant's home or to arrest the defendant.

¶4 The agents testified that, upon their arrival at the defendant's home, they saw a young male they believed to be Phillips at the rear of the residence. The agents then observed this individual descend an exterior stairwell to an area they believed to be a cellar. According to the testimony of the agents, they approached the open cellar doors at the top of the stairwell, and Agent Zblewski called, "Hey, Jason." Phillips responded by coming to the doorway at the bottom of the stairwell where Agent Zblewski could see him. Agent Zblewski testified that both the exterior cellar doors and the door at the base of the stairs were open.

¶5 Agent Zblewski then started down the stairs, identified himself as a drug agent, and showed Phillips his sheriff's badge and metro drug unit identification. ⁴ The three agents descended the stairs and continued through the open door into the basement area where the defendant resided. The basement was described as a small living or storage area, adjacent to which was a closed door leading to the defendant's bedroom. At that time, the defendant identified himself as Jason Phillips. Agent Zblewski did not request and never received from Phillips permission to enter the basement.

¶6 Agent Zblewski testified that once he entered the basement he explained to Phillips that the agents had received information that Phillips was in possession of drug paraphernalia and marijuana and that the agents intended to take the items from the defendant. According to Agent Zblewski, Phillips, after a short discussion, admitted that he had the items in his bedroom. Agent Zblewski then asked Phillips if the agents could enter the bedroom and collect the marijuana and any drug paraphernalia because Phillips was in violation of the law for possessing them. Agent Zblewski testified that Phillips responded to this request by opening the door to his bedroom and walking inside. The agents followed Phillips into the bedroom. Agent Zblewski admitted that the agents had not received from Phillips verbal permission to enter the bedroom, but they assumed from Phillips' conduct that they could follow him inside. Once inside the bedroom, Phillips immediately retrieved a small baggie containing marijuana, handed it to the agents, and then pointed out to the agents a number of drug paraphernalia items.

¶7 According to Agent Zblewski, he again asked Phillips for permission to search the bedroom after Phillips handed over the baggie of marijuana and pointed out the drug paraphernalia. Agent Zblewski testified that Phillips then gave his verbal consent for the agents to search the rest of his bedroom. At that time, Agent Zblewski took Phillips out of the bedroom and into the common storage area of the basement. The other two agents continued to search Phillips' bedroom. While in the common area of the basement, Agent Zblewski and Phillips had a conversation in which Phillips denied dealing marijuana, but made a number of incriminating statements.

¶8 At the conclusion of their search, the agents confiscated 11.5 grams of marijuana, pipes, and other drug paraphernalia. Agent Zblewski testified that, during the encounter, Phillips was not placed in handcuffs and that Phillips was not arrested that day. When leaving, the agents informed Phillips that he would be receiving in the mail citations for possession of marijuana and for possession of drug paraphernalia.

¶9 Phillips was subsequently charged with possession of marijuana as a repeat offender, in violation of Wis. Stat. §§ 161.41(3r) and 161.48(2). In a pretrial proceeding, Phillips filed a motion to suppress the statements he made to Agent Zblewski and the physical evidence obtained during the warrantless search of his home. The circuit court denied the motion.

¶10 Phillips eventually pled no contest to possession of marijuana as a repeat offender. He then appealed from the judgment of conviction, claiming that the circuit court erred in failing to suppress the results of the warrantless search. Phillips argued that the agents' search violated his rights guaranteed by the Fourth Amendment to the United States Constitution and art. I, § 11 of the Wisconsin Constitution.

¶11 The court of appeals reversed, holding that the search of Phillips' home violated his Fourth Amendment protections. The court concluded that the evidence seized during the search should have been excluded by the circuit court because the consent given by Phillips to search his bedroom was not so attenuated as to purge the taint from the agents' unlawful entry into his home. Upon review of the facts before us, we conclude that Phillips did voluntarily consent to the search of his bedroom and that the agents did not exploit their unlawful entry into Phillips' home. We therefore hold that the agents' warrantless search of Phillips' bedroom and the seizure of evidence therefrom did not violate Phillips' constitutional protections under either the Fourth Amendment or art. I, § 11. Accordingly, we reverse the decision of the court of appeals.

¶12 The first issue we address is whether we should review de novo, or grant deference to, the circuit court's finding that the defendant voluntarily consented to the warrantless search of his home. This court has traditionally treated questions of constitutional fact as mixed questions of fact and law, and it has applied a two-step standard when reviewing lower court determinations of constitutional fact. See State v. Owens, 148 Wis.2d 922, 926, 436 N.W.2d 869 (1989); State v. Rodgers, 119 Wis.2d 102, 107-08, 349 N.W.2d 453 (1984); State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457 (1984); Bies v. State, 76 Wis.2d 457, 469, 251 N.W.2d 461 (1977); State v. Pires, 55 Wis.2d 597, 602-03, 201 N.W.2d 153 (1972).

¶13 As we explained in Woods, ⁵ an appellate court reviewing issues of constitutional fact examines two determinations made by the circuit court, but applies a different standard of review to each. The circuit court first determines the evidentiary or historical facts relevant to the issue. The circuit court then applies those facts to resolve the constitutional questions. See Woods, 117 Wis.2d at 714, 345 N.W.2d 457.

The standard of review by the appellate court of the trial court's findings of evidentiary or historical facts is that those findings will not be upset on appeal unless they are contrary to the great weight and clear preponderance of the evidence. This standard of review does not apply, however, to the trial court's determination of constitutional questions. Instead, the appellate court independently determines the questions of 'constitutional' fact.

Id. at 715, 345 N.W.2d 457 (citations omitted). Wisconsin appellate courts have employed this two-step standard when reviewing circuit courts' conclusions concerning a variety of constitutional challenges. See, e.g., State v. McMorris, 213 Wis.2d 156, 165, 570 N.W.2d 384 (1997)(reviewing whether an independent source existed for an in-court identification made after a lineup that violated an accused's Sixth Amendment right to counsel); State v. Cummings, 199 Wis.2d 721, 748, 546 N.W.2d 406 (1996)(reviewing whether Sixth Amendment right to assistance of counsel was denied); State v....