State v. Phillips

• Citation: 563 N.W.2d 573,209 Wis.2d 559
• Decision Date: 26 March 1997
• Docket Number: No. 95-2912-CR,95-2912-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Jason PHILLIPS, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

Page 573

563 N.W.2d 573

209 Wis.2d 559

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Jason PHILLIPS, Defendant-Appellant.

No. 95-2912-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 22, 1997.

Opinion Released March 26, 1997.

Opinion Filed March 26, 1997.

On behalf of the defendant-appellant, the cause was submitted on the brief of Arthur B. Nathan of Nathan Law Office, S.C. of Racine.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Paul Lundsten, Assistant Attorney General.

Before SNYDER, P.J., and NETTESHEIM and ANDERSON, JJ.

SNYDER, Presiding Judge.

Jason Phillips appeals from a judgment of conviction for possession of THC (marijuana) as a repeat offender in violation of § 161.41(3r), STATS., 1993-94. Phillips contends that the trial court erred when it denied his motion to suppress his statements to police and the physical evidence obtained during a warrantless search. We hold that the warrantless search of Phillips' living quarters was in violation of his Fourth Amendment protections, and, consequently, the statements he made and the physical evidence obtained during that search must be suppressed. We therefore reverse the judgment of conviction and remand for further proceedings consistent with this opinion.

Three agents from the metro drug unit of the Racine County Sheriff's Department went to Phillips' home. Based on information the agents possessed from a confidential informant alleging that Phillips was involved in the sale of marijuana, the agents were pursuing a "knock and talk" encounter. According to Agent Joseph Zblewski, upon their arrival the agents saw an individual 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 Zblewski called, "Hey, Jason." Phillips responded by coming to the doorway at the bottom of the stairwell. ¹ Both the exterior cellar doors and the door at the base of the stairs were open. Zblewski walked down the stairs while identifying himself as a drug agent, continuing past the door at the base of the stairs and into the basement area. ²

Zblewski admitted at the suppression hearing that he never received permission from Phillips to enter the basement. Instead, he stated that Phillips may have "taken a step or two back because we had two other agents along as well to allow us all into there." The area which the agents entered was a basement storage area and adjacent to it was a closed door which led to Phillips' bedroom.

At this point, Zblewski stated that he explained to Phillips that they had information that he had drug paraphernalia and/or marijuana in the residence. According to Zblewski, Phillips admitted that he had those items in his bedroom. Zblewski then asked Phillips if they could collect any drug paraphernalia because Phillips was in violation of the law for possessing it. Zblewski testified that Phillips opened the door to his bedroom and walked inside. The agents followed him in while he retrieved the marijuana and pointed out numerous items of drug paraphernalia to them. Zblewski admitted that the agents had not received verbal permission to enter Phillips' bedroom; they merely assumed permission to follow him into the bedroom. ³

Because the bedroom was crowded with the presence of the three agents and Phillips, Zblewski testified that he asked for and received permission for the other two agents to continue the search of the bedroom. Zblewski and Phillips then left the bedroom. Zblewski testified that once outside the bedroom, he engaged Phillips in conversation; during that conversation Phillips denied dealing marijuana, but made several incriminating statements regarding his personal use of the substance and stated that he had previously grown marijuana behind the house.

At the conclusion of their search, the agents confiscated 11.5 grams of marijuana, pipes and other drug paraphernalia. They informed Phillips that he would receive a citation in the mail for possession of the above items. Zblewski stated that Phillips was not placed under arrest, handcuffed or given Miranda warnings by the agents.

In a pretrial proceeding, Phillips filed a motion to suppress his statements made to Zblewski and the physical evidence obtained during the search. The trial court denied the motion. Phillips subsequently pled no contest to possession of marijuana as a repeat offender. He now appeals, claiming that the trial court erred in failing to suppress the results of the warrantless search.

Phillips contends that the agents conducted an illegal search in violation of the Fourth Amendment and art. I, § 11 of the Wisconsin Constitution. He argues that the agents did not possess valid consent to perform a warrantless search of his living quarters. This presents a question of constitutional fact and as such is decided without deference to the trial court. See State v. Arroyo, 166 Wis.2d 74, 79, 479 N.W.2d 549 551 (Ct.App.1991). A reviewing court is duty bound to "apply constitutional principles to the facts as found in order to ensure that the scope of constitutional protections does not vary from case to case." See State v. Turner, 136 Wis.2d 333, 344, 401 N.W.2d 827, 832 (1987).

Evidence seized during a warrantless search of one's home is inadmissible unless there is a well-delineated, judicially recognized exception to the warrant requirement. See State v. Johnson, 177 Wis.2d 224, 231, 501 N.W.2d 876, 879 (Ct.App.1993). Two recognized exceptions to this clear rule against admitting evidence seized from a warrantless search are exigent circumstances and consent. See State v. Douglas, 123 Wis.2d 13, 22, 365 N.W.2d 580, 584 (1985). In this case, arguments have focused on the consent exception. If the State asserts the consent exception, it bears the burden of " 'proving by clear and positive evidence the search was the result of a free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied.' " See Johnson, 177 Wis.2d at 233, 501 N.W.2d at 879 (quoted source omitted).

In analyzing the voluntariness of the consent, a court must look at the totality of the circumstances to determine whether there was coercion. See id. Additionally, we must separate the factual determinations made by the trial court from its conclusions of law and apply the appropriate standard of review to each one. ⁴ See DOR v. Exxon Corp., 90 Wis.2d 700, 713, 281 N.W.2d 94, 101 (1979), aff'd, 447 U.S. 207, 100 S.Ct. 2109, 65 L.Ed.2d 66 (1980). Here, the trial court determined that "there [was] no doubt that [the agents] did not have actual consent to go into the basement area." We agree. The issue then turns on the State's claim that Phillips' subsequent consent to the search of his living quarters was voluntary, thereby removing the taint of the initial illegality. We now focus our analysis on that question.

In Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975), the Supreme Court considered the question of what was required "[i]n order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken." The Court noted that Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), required "not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be 'sufficiently an act of free will to purge the primary taint.' " Brown, 422 U.S. at 602, 95 S.Ct. at 2261 (quoted source omitted). The issue is whether the connection between the illegal police activity and a later statement has " 'become so attenuated as to dissipate the taint.' " See id. at 598, 95 S.Ct. at 2259 (quoted source omitted).

In Wisconsin, the attenuation theory was applied in State v. Anderson, 165 Wis.2d 441, 477 N.W.2d 277 (1991). The court there noted that "[t]he primary concern in attenuation cases is whether the evidence objected to was obtained by exploitation of a prior police illegality or instead by means sufficiently attenuated so as to be purged of the taint." Id. at 447-48, 477 N.W.2d at 281. If a defendant's statement and consent to search were obtained by exploitation of prior illegal law enforcement activity, then any statements and evidence obtained during a search must be excluded. See id. at 448, 477 N.W.2d at 281.

Under the attenuation theory, the following factors must be considered: (1) the temporal proximity of the official misconduct and the subsequent statements by a defendant; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. See id. We conclude that the instant case fails under the application of each of these factors.

When applying the temporal proximity factor, we must consider both the amount of time between the police misconduct and the conditions that existed during that time. See id. at 449, 477 N.W.2d at 281. In Brown, the Court noted that there were less than two hours between the defendant's illegal arrest and his first statement to police, and that there was no intervening event of any significance during that time span. See Brown, 422 U.S. at 604, 95 S.Ct. at 2262. The Court concluded that the defendant's first statement was inadmissible under the reasoning of Wong Sun. See Brown, 422 U.S. at 604-05, 95 S.Ct. at 2262-63. The Court also determined that a second statement "was clearly the result and the fruit of the first," see id. at 605, 95 S.Ct. at 2262, bolstered as it was by the defendant's anticipation of leniency in exchange for his cooperation with the arresting officers and the fact that he had already made one statement he believed to be admissible. See id. at 605 n. 12, 95 S.Ct. at 2262 n. 12.

In the present case, Phillips' alleged consent...