State v. Whitrock

• Decision Date: 19 December 1989
• Docket Number: No. 89-1371-CR,89-1371-CR
• Citation: 452 N.W.2d 156,153 Wis.2d 707
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael J. WHITROCK, d Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 156

452 N.W.2d 156

153 Wis.2d 707

STATE of Wisconsin, Plaintiff-Respondent, v. Michael J. WHITROCK, ^d Defendant-Appellant No. 89-1371-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 14, 1989.

Opinion Released Dec. 19, 1989.

Opinion Filed Dec. 19, 1989.

Glenn L. Cushing, Asst. State Public Defender, on brief, for defendant-appellant.

Donald J. Hanaway, Atty. Gen. and Marguerite M. Moeller, Asst. Atty. Gen., on brief, for plaintiff-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Michael J. Whitrock appeals a conviction of one count of burglary contrary to sec. 943.10(1)(a), Stats. Whitrock alleges the police search of certain stereo equipment during a criminal trespass arrest was unlawful and the court's failure to suppress the evidence constituted error. Because we find that Whitrock had no reasonable expectation of privacy in either the premises or the personal property searched by the police, we affirm the judgment of conviction.

Chris Whaley had rented an apartment in the city of Eau Claire. The owner of the premises, Paul Woita, evicted Whaley from these premises. Later Woita discovered that other individuals were occupying the apartment. He contacted the police and authorized them to enter the apartment, search for evidence of trespass, and remove the trespassers.

Police officer Don Adams and Woita entered the apartment and found three individuals, including Whitrock, in the apartment. The three individuals were placed under arrest by the officer for trespass and the officer then instituted a search examining items of personal property for proof of trespass. During the course of the search, Adams moved stereo equipment to obtain the serial numbers, which subsequently disclosed that the equipment had been stolen.

During the search, Whitrock denied any of the property in the apartment was his. Whitrock later admitted that he was in possession of the stereo equipment and confessed to being one of the two people who had stolen the equipment.

James Bakeman, one of the individuals in the apartment at the time of the arrest, indicated that he did not understand that Whaley had been evicted and believed she was still living there. Bakeman stated that some of Whaley's possessions remained in the apartment and that he was under the impression that she was going to return. He further stated that Whitrock was a frequent overnight guest but did not have a key to the apartment, nor did he have the right to let people in or out of the apartment. Whitrock had stayed overnight at the apartment on the previous evening, although he resided with his uncle at another address.

It is unclear whether the three individuals in the premises owned by Woita and previously rented by Whaley were trespassers. If Whitrock was unlawfully on the premises he would have no reasonable expectation of privacy in the premises or the items of personal property located therein. See Rakas v. Illinois, 439 U.S. 128, 143 [153 Wis.2d 710] n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 (1978). Because the record is unclear as to the effect of Whaley's eviction and because Bakeman's status cannot accurately be determined from the record, we will treat Whitrock as a guest on the premises for the purpose of this opinion.

After arresting Whitrock and Bakeman for criminal trespass, the police moved the stereo equipment to obtain serial numbers as evidence of occupancy. Movement of the stereo equipment constituted a search under the fourth amendment. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 1152, 94 L.Ed.2d 347 (1987). However, the fourth amendment "does not prohibit the seizure of instrumentalities, fruits, contrabands, and 'mere evidence' of a crime which is discovered in the course of a valid search...." Myers v. State, 60 Wis.2d 248, 261, 208 N.W.2d 311, 317 (1973).

The police search of the stereo equipment was legitimate as a search for evidence of trespass. The presence of the stereo was direct evidence of trespass. Because the item under inspection was contraband the police were justified in seizing the equipment and as a result of the seizure conducting a search for the serial number in order to identify ownership. See State v. Noll, 116 Wis.2d...