State v. Stevens
| Decision Date | 30 April 1985 |
| Docket Number | No. 83-2098-CR,83-2098-CR |
| Citation | 367 N.W.2d 788,123 Wis.2d 303 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. David G. STEVENS, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Thomas J. Balistreri, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.
This is a review of a published decision of the court of appeals, State v. Stevens, 120 Wis.2d 334, 354 N.W.2d 762 (Ct.App.1984) affirming in part and reversing in part a judgment of the circuit court for Milwaukee county, Honorable Ralph Adam Fine, circuit judge, convicting the defendant, David G. Stevens, of the following crimes: Possession of cocaine with intent to deliver, 1 party to the crime; 2 possession of marijuana with intent to deliver, 3 party 1. Was the Defendant's right to be protected from unreasonable searches and seizures under the fourth and fourteenth amendments to the United States Constitution 6 and under Article I, section 11, of the Wisconsin Constitution, 7 violated by the warrantless search and seizure of garbage which he allowed to be taken from his garage by the regular collector who was acting pursuant to a deputy sheriff's request to obtain the Defendant's garbage?
to the crime; possession of cocaine; 4 and possession of marijuana. 5 The issues on review are
2. Did the Defendant's multiple convictions subject him to double jeopardy in violation of ARTICLE I, SECTION 8(1) OF THE WISCONSIN CONSTITUTION8 or violate the provisions of section 939.66, Stats. 1981-1982 9 or section 939.71? 10
We hold that the search and seizure of the defendant's garbage, (The terms "garbage" and "trash" are used interchangeably in this opinion) 11 under the facts of this case, did not violate his rights under the United States or Wisconsin Constitutions. We also hold that the defendant's multiple convictions did not violate Wisconsin's constitutional or statutory law. Therefore, we affirm in part and reverse in part the decision of the court of appeals.
The defendant, after being charged with the four offenses, entered a guilty plea to the crimes of possession of cocaine and possession of marijuana and was convicted. He was tried on the more serious offenses of possession with intent to deliver cocaine and possession with intent to deliver marijuana. On appeal the court of appeals struck down the convictions of mere possession but affirmed the conviction of possession with intent to deliver cocaine and marijuana. The defendant's petition to this court for review was granted. This court granted review to determine whether the search of bags of garbage in trash belonging to the defendant was proper, because it was such search that brought forth the evidence on which a search warrant was issued authorizing the search of defendant's home. It was the cocaine and marijuana in the home that led to the charges of possession with intent to deliver. It was this evidence that prompted the arrest of the defendant when he returned to his home and resulted in the additional charges of possession based on evidence found in a shoulder bag, belonging to defendant. The facts giving rise to the charges are as follows.
Deputy Sheriff David Iushewitz of the Drug Enforcement Unit of the Milwaukee County Sheriff's office was in charge of an investigation concerning alleged drug dealing activities of the defendant at his residence in River Hills, Milwaukee county. Deputy Iushewitz was informed by the Department of Public Works for River Hills that garbage at the defendant's residence was normally picked up every second Friday morning at about 9:00 a.m. and the next scheduled pickup was December 14, 1979.
On December 14, 1979, Iushewitz met with the garbage collector employed by the Department of Public Works and told him to go about his normal routine of picking up the garbage at the defendant's house. After he picked up the defendant's garbage, he was to turn it over to Iushewitz.
The usual procedure was that the defendant put bags of garbage in cans outside of his garage and in the driveway for collection. The garbage collector for the Department of Public Works would come up the driveway and collect the garbage. The garage door was not normally left open and the garbage collector did not have general access to the garage.
On December 14th, the garbage had not been placed outside the garage for collection and the garage door was locked. The garbage collector went to the door of the defendant's house, knocked or rang the doorbell, the defendant opened the door and the collector asked if he could get the garbage. The defendant then opened the garage door, allowing the garbage collector access to the garbage. The defendant testified that he opened the garage door so the collector could do "what he wanted to do."
The garbage collector picked up four plastic garbage bags and loaded them into the truck. After leaving the defendant's property, the collector gave the defendant's garbage to Iushewitz who searched the bags.
The same procedure was repeated on December 28, 1979, the next regularly scheduled pick up. Once again the garbage collector went to the defendant's door and asked for the garbage and the defendant opened the garage door. After obtaining Later that same day, December 28, 1979, a circuit judge issued a search warrant for the search of the defendant's River Hills residence based in part on the evidence turned up in the garbage bags. On December 29, 1979, when the defendant was not home, his house was searched. This search resulted in the seizure of cocaine, marijuana, drug paraphernalia, money and other miscellaneous objects.
the garbage and leaving the defendant's property, the collector again turned the defendant's garbage over to Iushewitz.
Iushewitz had information that the defendant, who had been on vacation for "a couple of days," would be returning home on December 30, 1979. When the defendant did return home on that day, the deputies arrested him on the driveway outside his home.
The defendant was advised that he would be taken downtown for booking and that it might take some time before he could make bail. Deputy Iushewitz testified as follows:
This bag was found in the automobile in which the defendant had just returned from his vacation. When the defendant arrived at the station, his bag was subjected to an inventory search. Approximately two grams of marijuana and approximately one gram of cocaine were found.
The defendant was charged on four different counts. Count one was possession of cocaine with intent to deliver, party to the crime. Count two was possession of marijuana with intent to deliver, party to the crime. Count three was possession of cocaine. Count four was possession of marijuana. Counts one and two were based upon the discovery of the marijuana and cocaine in the defendant's home on December 29, 1979. Counts three and four were based upon the discovery of cocaine and marijuana in the defendant's shoulder bag on December 30, 1979.
The defendant moved to suppress the evidence seized from his garbage and the evidence seized from his home pursuant to the warrant which was issued based, in part, upon the items discovered in the garbage. The defendant claimed that the warrantless search of his garbage was unlawful and, therefore, the issuance of the warrant was also improper. The trial court denied the motion holding that the defendant did not have a reasonable expectation of privacy in his garbage.
On September 14, 1981, the defendant entered a guilty plea to the simple possession charges. The assistant district attorney did not object to the plea as long as it was understood that the events of December 30, 1979, and not the prior discovery of drugs in the defendant's home on December 29, 1979, formed the factual basis for the plea. The trial court accepted the plea, withholding sentencing until resolution of the charges of possession with intent to deliver.
The defendant then moved to dismiss the charges of possession with intent to deliver. He argued that jeopardy attached after he pled guilty to the charges of simple possession, that these charges were lesser-included offenses of the charges of possession with intent to deliver, and the prosecution for possession with intent to deliver after the guilty plea would violate his double jeopardy rights. In support of this motion, the defendant filed an affidavit in which he said that the marijuana and cocaine which he possessed in his shoulder bag were from the same supplies of marijuana and cocaine seized from his home on December 29, 1979. This motion was also denied.
On May 6, 1982, a jury returned guilty verdicts on both counts of possession with On July 24, 1984, the court of appeals filed its decision in which it affirmed in part and reversed in part the judgment of the trial court. This court accepted review to determine whether the defendant's garbage was unlawfully searched and seized and to determine if the defendant's double jeopardy rights under Wisconsin's constitutional and statutory law were violated.
intent to deliver. On July 6, 1982, the defendant was sentenced. 12
Because the historical facts of this case are not in dispute and because the dispute concerns the constitutional and statutory significance of those facts, this case is subject to independent appellate review. State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457 (1984).
The state in this case concedes that the garbage collector's prior...
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