State v. Trecroci

• Decision Date: 02 May 2001
• Docket Number: No. 00-1082-CR, No. 00-1079-CR, No. 00-1081-CR, No. 00-1080-CR, No. 00-1083-CR.
• Citation: 2001 WI App 126,630 N.W.2d 555,246 Wis.2d 261
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Matthew J. TRECROCI, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant, v. Ryan J. FRAYER, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant, v. Ronnie J. FRAYER, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant, v. Scott E. OBERST, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant, v. Amy L. WICKS, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

246 Wis.2d 261

2001 WI App 126

630 N.W.2d 555

STATE of Wisconsin, Plaintiff-Appellant,¹ v. Matthew J. TRECROCI, Defendant-Respondent.

STATE of Wisconsin, Plaintiff-Appellant,¹ v. Ryan J. FRAYER, Defendant-Respondent.

STATE of Wisconsin, Plaintiff-Appellant,¹ v. Ronnie J. FRAYER, Defendant-Respondent.

STATE of Wisconsin, Plaintiff-Appellant,¹ v. Scott E. OBERST, Defendant-Respondent.

STATE of Wisconsin, Plaintiff-Appellant,¹ v. Amy L. WICKS, Defendant-Respondent.

Nos. 00-1079-CR, 00-1080-CR, 00-1081-CR, 00-1082-CR, 00-1083-CR.

Court of Appeals of Wisconsin.

Submitted on briefs March 9, 2001.

Decided May 2, 2001.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and David J. Becker, assistant attorney general.

On behalf of the defendants-respondents, the cause was submitted on the brief of Robert E. Henak of Henak Law Office, S.C. of Milwaukee.

Before Brown, P.J., Nettesheim and Snyder, JJ.

¶ 1. NETTESHEIM, J.

The State of Wisconsin appeals from a trial court order granting a motion to suppress evidence filed by the defendants, Matthew J. Trecroci, Ryan J. Frayer, Ronnie J. Frayer, Scott E. Oberst and Amy L. Wicks. The police made a warrantless entry into an interior stairway off of an enclosed porch entry to the building. The stairway led to Trecroci's second-floor apartment and to an attic area leased by the Frayers and Oberst. We hold that the defendants had a reasonable expectation of privacy in the stairway, thereby rejecting the State's argument that the stairway was a "common area" not entitled to Fourth Amendment protection. As a result, we uphold the trial court's determination that the ensuing searches of the attic and the apartment were invalid. We also reject the State's argument that Trecroci and Wicks, a guest, did not have standing to challenge the attic search. We affirm the suppression order.

FACTS

¶ 2. Although the State does not agree with some of the trial court's findings of fact, it does not challenge them given our "clearly erroneous" standard of review.² "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." WIS. STAT. § 805.17(2) (1999-2000).³

¶ 3. The searches occurred at a building located at 2510 48th Street in the city of Kenosha. The building is a two-story residence that had been subdivided into two apartment units—one on the first floor and the other on the second floor. An attic is located above the second floor. The defendant Trecroci owns the residence and he lived in the second-floor apartment.

¶ 4. During the late evening hours of October 17, 1998, City of Kenosha Police Officer Russell Davison was investigating a hit-and-run accident. Davison learned that Edward Echols was involved in the accident, that he may have left the scene in a blue Pontiac motor vehicle, and that his last known address was 2510 48th Street in Kenosha. Davison and a fellow officer, Kenneth Clelland, traveled to that location.

¶ 5. Upon arrival, the officers observed a blue Pontiac parked near the residence. The officers also saw a man, later identified as defendant Ryan Frayer, exit from the back area of the property. The officers asked Ryan who owned the Pontiac. Ryan replied that the owner was his brother's friend and they were in the upper apartment of the residence. Davison told Ryan that he wished to speak with the owner of the vehicle. Ryan then turned around and proceeded back towards the residence with the officers following. The group walked through a gate in the fence that enclosed the rear of the property, up a short set of exterior steps, and into an enclosed porch area. Two doors led off of this area—one to the first-floor apartment unit and the other to a stairway which serviced the second-floor apartment and the attic area. The stairway door was equipped with a deadbolt lock and a spring hinge that kept the door closed. A doorbell button serviced the upstairs apartment.

¶ 6. While Ryan and the officers were in the enclosed porch area, Clelland said that he smelled marijuana. At this remark, Ryan stopped. Davison told Ryan to move out of the way. When Ryan failed to obey, Davison proceeded through the door and into the stairway area. As he climbed the stairs, Davison continued to smell marijuana and also observed a fan venting to the outside of the building. Davison knew from his experience that fans are sometimes used to vent marijuana.

¶ 7. At the top of the stairs, Davison heard voices coming from the attic area and he observed a door leading to this area. This door was equipped with a padlock, but the door was partially ajar. Davison opened the door by pulling outward, revealing a further stairway leading to the attic area. Davison observed marijuana leaves in the stairway. He also saw a man, later identified as defendant Oberst, coming down the stairs with his hand in his pocket. Davison told Oberst to remove his hand, but Oberst did not obey. When the two met, Davison conducted a pat down of Oberst and discovered a cutting shears in Oberst's pocket. When Davison reached the top of the attic stairs, he observed defendants Ronnie Frayer and Wicks. Later investigation revealed that Wicks was on the premises as a guest of her fiancé, Ronnie Frayer.

¶ 8. All of the subjects were placed under arrest.⁴ Additional officers were called to the scene and a search of the attic turned up evidence that the attic was being used for drying and processing marijuana.

¶ 9. Trecroci was not present at the time of the events we have described. However, after the police learned that Trecroci owned the residence, Officer Michael Wilkinson, who knew Trecroci, was dispatched to look for him. Wilkinson located Trecroci and transported him back to the residence.⁵ About the same time, Officer Thomas Vieth, the field supervisor of the Kenosha County Controlled Substances Unit, arrived on the scene. Vieth and Trecroci had a conversation, after which Trecroci talked with Wilkinson. Trecroci told Wilkinson that he had been asked to consent to a search of his apartment and he wanted Wilkinson's advice. Wilkinson told Trecroci to look around, and that they (the officers) were not going anywhere. The police also told Trecroci that if he did not consent to the search, they would obtain a search warrant. Trecroci then consented to the search of his apartment, which turned up additional marijuana evidence.

¶ 10. Oberst later gave a written statement at the police department indicating that he and the Frayers had rented the attic area from Trecroci. In exchange, they provided marijuana to Trecroci. Oberst also stated that Trecroci knew that the attic area was used to process marijuana.

TRIAL COURT PROCEEDINGS

¶ 11. Following a preliminary hearing, the State filed an information charging all the defendants with party to the crime of the manufacture of a controlled substance pursuant to WIS. STAT. §§ 939.05 and 961.41(1)(h)3 and party to the crime of possession of a controlled substance with intent to deliver pursuant to §§ 939.05 and 961.41(1m)(h)3.⁶

¶ 12. All of the defendants filed motions to suppress, challenging the search of the attic. Trecroci additionally filed a motion to suppress, challenging the search of his apartment. These motions challenged each sequential step of the police procedure, starting with the entry into the curtilage of Trecroci's backyard and ending with the search of Trecroci's apartment. The trial court conducted lengthy evidentiary hearings on the motions. The court also received written briefs from the parties.

¶ 13. On March 2, 2000, the trial court issued a written decision granting the motions to suppress. The court rejected the State's argument that the warrantless police entry into the stairway was valid based on Ryan's consent. Instead, the court held that Ryan's consent terminated when he stopped at the door leading to the stairway in response to Clelland's statement that he smelled marijuana. The court also held that the search could not be justified under the law of "plain view" because the police were actively engaged in investigating the possible presence of marijuana based on their observations.⁷

¶ 14. In addition, the trial court rejected the State's arguments that the defendants did not have standing to challenge the attic search. Instead, the court held that the defendants had a reasonable expectation of privacy in the attic area. Finally, the trial court ruled that Trecroci's consent to the search of his apartment was involuntary.

¶ 15. Following the trial court's ruling, the State filed a motion for reconsideration arguing, for the first time, that the police entry into the stairway leading to the second story was justified by the combination of probable cause based on the smell of marijuana and exigent circumstances based on the presence of some of the defendants in the dwelling. In support, the State cited to State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, a decision released after the trial court's ruling. The trial court distinguished the Hughes case and denied the State's motion for reconsideration.

¶ 16. The State appeals. However, the State's notice of appeal embraces only the trial court's initial order granting the defendants' motions to suppress. The notice does not reference the court's later order denying the State's motion for reconsideration.

DISCUSSION

Scope of Our Review

¶ 17. In large measure, the State relies on the argument it made on the reconsideration motion—that the circumstances confronting the police established both probable cause and exigent circumstances under Hughes to justify the police entry into the stairway and the subsequent entry into the attic. See id. at ¶ 18. The defendants respond that we should not countenance the State's arguments under Hughes because those issues were first introduced into this case by...