State v. Schwegler, SCHIER-SCHWEGLE

• Decision Date: 02 July 1992
• Docket Number: 91-2637-CR,SCHIER-SCHWEGLE,D,Nos. 91-2636-C,s. 91-2636-C
• Citation: 490 N.W.2d 292,170 Wis.2d 487
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Herman R. SCHWEGLER, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant, v. Debra L.efendant-Respondent. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 292

490 N.W.2d 292

170 Wis.2d 487

STATE of Wisconsin, Plaintiff-Appellant, v. Herman R. SCHWEGLER, Defendant-Respondent.

STATE of Wisconsin, Plaintiff-Appellant, v. Debra L. SCHIER-SCHWEGLER, Defendant-Respondent.

Nos. 91-2636-CR, 91-2637-CR.

Court of Appeals of Wisconsin.

Oral Argument July 2, 1992.

Opinion Released Aug. 5, 1992.

Opinion Filed Aug. 5, 1992.

On behalf of the plaintiff-appellant, there were briefs and oral argument by Kevin M. Osborne, Asst. Dist. Atty.

On behalf of the defendants-respondents, there was a brief by Thomas E. Brown, Marna M. Tess-Mattner and Kathryn A. Keppel of Gimbel, Reilly, Guerin & Brown of Milwaukee. There was oral argument by Marna M. Tess-Mattner.

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

SNYDER, Judge.

The state appeals from orders ¹ suppressing all evidence obtained as a result of a warrantless administrative inspection of the defendants' property by a county humane officer. The state argues that the humane officer acted within her inspection authority, resulting in a search which, although warrantless, was permissible under sec. 968.10(4), Stats., and reasonable under the fourth amendment. We agree with the trial court that the search fell short of fourth amendment reasonableness standards. We affirm.

Debra Schier-Schwegler and her husband, Herman Schwegler (the Schweglers), operate a horse-breeding operation in Waukesha county. The stable is licensed as a commercial stable pursuant to Waukesha County Code sec. 5-48 which permits inspections "at any time" by county humane officers.

On August 8, 1990, Humane Officer Anne Winkel went to the property to conduct a routine inspection, as she had done approximately every three months for the past several years. Officer Winkel determined that no one was present on the property, as sometimes was the case during prior inspections. On at least one prior occasion when the Schweglers were not on the premises, Officer Winkel left a calling card on a bulletin board in the barn to indicate that she had conducted an inspection. On this occasion, Officer Winkel noticed the sliding barn doors were partially ajar, although a board was lying across the opening. Being a large woman, she had to slide the doors open a few inches more to let herself in.

As soon as she opened the barn doors further and "lean[ed] in," Officer Winkel could smell, in her words, an "overwhelming" manure stench. The barn was hot, with little ventilation. Upon going to the individual stalls, she found the horses standing deep in manure with no food in evidence. Their hooves were substantially overgrown and many of the horses' bone structures were showing. Officer Winkel determined that well over half of the horses needed immediate medical care.

Officer Winkel went back to her vehicle, retrieved a camera, and returned to the barn to document the condition of the animals. She then left. After consulting with a veterinarian and law enforcement personnel, Officer Winkel made arrangements to remove the horses. She was informed that, because of the ordinance, no warrant was necessary to accomplish this. Herman was present when Officer Winkel arrived the next day with the necessary equipment and personnel. Thirty-six horses were removed.

The Schweglers each were charged with being party to a crime of nineteen counts of mistreatment of animals, fourteen counts of failing to provide sufficient food to animals, and three counts of failing to provide sanitary shelter to animals, contrary to secs. 939.05, 951.02, 951.13(1) and 951.14(4), Stats. The Schweglers moved to suppress the evidence obtained as a result of Officer Winkel's activities, asserting that her conduct constituted an illegal search and seizure because Officer Winkel had neither a warrant nor the Schweglers' consent to search the premises. Concluding that the Schweglers held a reasonable expectation of privacy in the premises, the trial court granted the motion. Having determined that the search was impermissible, the trial court also ruled illegal the seizure of the animals. This appeal ensued.

In reviewing an order to suppress evidence, we will sustain the trial court's factual findings unless they are against the great weight and clear preponderance of the evidence. State v. Murdock, 155 Wis.2d 217, 225, 455 N.W.2d 618, 621 (1990). We independently review, however, whether the facts as found satisfy the constitutional standard of reasonableness. Id. at 226, 455 N.W.2d at 621.

In Waukesha county, all barns or stables rented out for the purpose of keeping horses are required to be licensed by the county. WAUKESHA COUNTY, WIS., CODE sec. 5-41(a) (1983). A related ordinance sets forth conditions for licensure:

It shall be a condition of the issuance of a license under this division that the licensed premises shall be open to inspection at any time by the sheriff or the county humane agent who is duly vested with police power pursuant to section 58.07, Wisconsin Statutes.

WAUKESHA COUNTY, WIS., CODE sec. 5-48 (1983) (emphasis added). ² The state argues that the ordinance grants humane officers the authority to conduct warrantless inspections at any time, as long as they are conducted in a reasonable manner. The state also argues that the condition explicitly stated in the ordinance and the Schweglers' annual renewal of the license reflect their implied consent to such inspections.

The primary objective of the fourth amendment is the protection of privacy. State v. Bauer, 127 Wis.2d 401, 405, 379 N.W.2d 895, 897 (Ct.App.1985). Only those government intrusions that infringe upon a privacy interest violate the fourth amendment. Id. We use a two-prong test to determine whether a search or seizure is unreasonable. Id. at 405-06, 379 N.W.2d at 897 (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). First, the complainant must have exhibited an actual expectation of privacy. Id. at 406, 379 N.W.2d at 897. Second, the expectation must be one that society is prepared to recognize as reasonable. Id.

The fourth amendment reasonableness standard applies to administrative inspections of commercial premises. See See v. City of Seattle, 387 U.S. 541, 545-46, 87 S.Ct. 1737, 1740-41, 18 L.Ed.2d 943 (1967). The expectation of privacy in commercial premises is somewhat less than that in a person's home. New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 2642, 96 L.Ed.2d 601 (1987). Nonetheless, an owner or operator of a business has an expectation of privacy in commercial property which society is prepared to consider to be reasonable. Id. at 699, 107 S.Ct. at 2642. This expectation exists with respect to traditional police searches conducted for the gathering of criminal evidence as well as to administrative inspections designed to enforce regulatory statutes, id. at 699-700, 107 S.Ct. at 2642, because a person's privacy interest suffers regardless of the government's motivation. Marshall v. Barlow's, Inc., 436 U.S. 307, 312-13, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978).

As with searches of private residences, a warrantless search of commercial premises is presumptively unreasonable. See, 387 U.S. at 543, 87 S.Ct. at 1739. ³ It may be permissible, however, if the search is made with the authority and within the scope of a right of lawful inspection. Section 968.10(4), Stats. The state asserts that a warrantless inspection was permissible here because it was conducted pursuant to this exception, did not entail a forced entry, and occurred during regular business hours.

These reasons do not salvage the inspection. A "right of lawful inspection" depends upon a determination that the ordinance either permits warrantless inspections to be conducted without the consent of the owners or acts as evidence of their consent. See does not permit such a determination.

In See, the Supreme Court upheld an owner's refusal to permit a warrantless inspection of his locked commercial warehouse. The attempted inspection was not founded on probable cause to believe that any violations existed; rather, it was part of a program of routine, periodic administrative inspections meant to achieve compliance with the city's fire code. ⁴ The Court acknowledged that governmental regulation of businesses depends upon effective investigative techniques and that "[o]fficial entry upon commercial property is a technique commonly adopted by administrative agencies at all levels of government to enforce a variety of regulatory laws." See, 387 U.S. at 543-44, 87 S.Ct. at 1739.

Nonetheless, the Court disagreed with the city that the ordinance established a reasonable scheme for the warrantless inspection of commercial premises. Id. at 542-43, 87 S.Ct. at 1738-39. The Court saw "no justification for so relaxing Fourth Amendment safeguards where the official inspection is intended to aid enforcement of laws prescribing minimum physical standards for commercial premises," id. at 543, 87 S.Ct. at 1739, and held that in the absence of consent, warrants are a "necessary and a tolerable limitation on the right to enter upon and inspect commercial premises." Id. at 544, 87 S.Ct. at 1740. Such a limitation safeguards against the danger that an entry and inspection could be "the product of the unreviewed discretion of the enforcement officer in the field." Id. at 545, 87 S.Ct. at 1740.

Our next question, therefore, must be whether the Schweglers consented to the inspection. The state vigorously contends that the Schweglers did consent. It argues that the Schweglers consented by annually renewing their license under an ordinance which clearly states that, as a condition of licensure, their premises "shall be open to inspection at any time." The state also contends that consent can be inferred from the Schweglers' failure to object to prior inspections conducted in their absence.

The burden is on the state to prove that the Schweglers did, in fact, consent...