State v. Whitrock, 89-1371-CR

• Decision Date: 13 May 1991
• Docket Number: No. 89-1371-CR,89-1371-CR
• Citation: 468 N.W.2d 696,161 Wis.2d 960
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael J. WHITROCK, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 696

468 N.W.2d 696

161 Wis.2d 960

STATE of Wisconsin, Plaintiff-Respondent, v. Michael J. WHITROCK, Defendant-Appellant-Petitioner.

No. 89-1371-CR.

Supreme Court of Wisconsin.

Argued Jan. 25, 1991.

Decided May 13, 1991.

[161 Wis.2d 964] Glenn L. Cushing, Asst. State Public Defender, for defendant-appellant-petitioner.

Marguerite M. Moeller, Asst. Atty. Gen., argued Donald J. Hanaway, Atty. Gen., on the briefs, for plaintiff-respondent.

CALLOW, Justice.

This is a review of a decision of the court of appeals, State v. Whitrock, 153 Wis.2d 707, 452 N.W.2d 156 (Ct.App.1989), which affirmed a judgment of conviction entered by the circuit court for Eau Claire county, Judge William D. O'Brien. The defendant-appellant-petitioner Michael J. Whitrock appeals his conviction on one count of burglary, contrary to sec. 943.10(1)(a), Stats., which was entered based on his guilty plea.

The three issues in this case are: (1) Did Whitrock waive his right to argue that he had a legitimate expectation of privacy in a searched duplex when he abandoned this argument before the lower courts?; (2) Should the stereo equipment which Whitrock was convicted of stealing be suppressed for use as evidence on the ground that police officers illegally entered the duplex?; and (3) Should the stereo equipment be suppressed for use as evidence on the ground that it was illegally searched?

We first conclude that Whitrock did not waive his right to argue before this court that he had a legitimate expectation of privacy in the duplex. In light of a recent United States Supreme Court decision, Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), it is clearly in the best interests of justice to address the merits of this issue. We next conclude that the stereo equipment should not be suppressed for use as evidence because Whitrock did not have a legitimate expectation of privacy in the searched duplex. In Olson, the defendant established that he was an overnight guest of an individual legitimately on the premises, and such was not the case here. Finally, we conclude that the stereo equipment should not be suppressed on the ground that the stereo equipment was illegally searched, because Whitrock did not have a legitimate expectation of privacy in the stolen stereo equipment.

The relevant facts follow. Chris Whaley rented the downstairs portion of a duplex at 232 Sara Street, Eau Claire, from Paul Woita, the owner of the duplex. Whaley rented the duplex ¹ according to a month-to-month lease. When Whaley did not make her rental payments, Woita served her with a "Notice Terminating Tenancy" on November 18, 1987. Believing that Whaley had vacated the premises, Woita went to the duplex on December 20, 1987 and discovered eight to ten men, including James Bakeman, in the duplex without his permission. Whaley was not on the premises. Woita told Bakeman to leave the duplex, and on the advice of an attorney served him with an eviction notice on December 21, 1987. On December 24, 1987, on the advice of Karen Johnson, the manager of another apartment complex, Woita called the police department and talked to Officer Donn Adams.

After Woita explained the situation to Officer Adams and signed a "Consent for Search" form, police officers accompanied Woita to the duplex. The officers entered the duplex without a warrant, and observed three individuals: Bakeman, Spencer Holden and Whitrock. The police officers arrested the three men for criminal trespass and then searched the duplex for evidence of occupancy. The officers discovered papers with Whaley's name on them and papers with Bakeman's name on them, as On June 14, 1988, Whitrock filed a "Motion to Suppress Evidence" on the grounds that the search and seizure of the stereo equipment violated his fourth amendment ² and state constitutional rights. At the suppression hearing on August 17, 1988, Bakeman testified that he had lived at 232 Sara Street with the permission of Whaley from the middle of November 1987, until his arrest, although he had not signed a rental agreement with Woita. He testified that Whaley had not abandoned the premises, but he did not know where she was on December 24, 1987. Bakeman testified that he had a key to the duplex, and both his and Whaley's personal effects were at the duplex. Bakeman testified that Whitrock was a friend of his and had frequently stayed overnight, although Whitrock did not have a key and could not freely let people in and out of the duplex.

well as various other items (e.g., luggage, identification cards) belonging to other people. During this search, the officers also identified two pieces of stereo equipment. None of the individuals claimed ownership of the equipment according to Officer Adams. One of the officers moved the stereo and recorded a serial number. A check of the serial number indicated that the stereo components had been stolen. Whitrock later told Officer Adams that he was one of two individuals[161 Wis.2d 967] who had stolen the stereo equipment. Whitrock was charged with one count of burglary.

Bakeman testified that when Woita had first come to the duplex on December 20, he offered to pay him rent, although he had no income. He also testified that when Woita and the officers arrived on December 24, he objected to their entry and search. He also testified that the stereo equipment did not belong to Whitrock, but he did not know who owned it.

At the suppression hearing, Whitrock confirmed Bakeman's assertion that Whitrock had frequently stayed at 232 Sara Street at Bakeman's invitation, and stated that he considered the duplex to be Bakeman's home. Whitrock also alleged that he had originally claimed ownership of the stereo equipment, that Bakeman was just using it, and that Bakeman knew that the stereo equipment belonged to Whitrock.

The circuit court denied the motion to suppress based on its reasoning that the occupants were there without Woita's permission, that the police officers went to the duplex on a criminal trespass complaint and that they searched the duplex for evidence of occupancy, not stolen property. On August 31, 1988, Whitrock pled guilty to one count of burglary. Section 943.10(1)(a), Stats.

Whitrock appealed his conviction and the circuit court's denial of his motion for post-conviction relief. In affirming Whitrock's conviction, the court of appeals held that Whitrock did not have a reasonable expectation of privacy in either the premises or the stereo equipment. Whitrock, 153 Wis.2d at 708, 452 N.W.2d 156. This case is before this court as a result of a petition for review, pursuant to sec. (Rule) 809.62, Stats.

I.

In support of his "Motion to Suppress Evidence," Whitrock argued that he had a legitimate expectation of privacy in the duplex, and thus had standing to object to the warrantless search conducted by the police officers. See Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428-29, 58 L.Ed.2d 387 (1978). In his motion for post-conviction relief, before the court of appeals, and initially before this court, Whitrock abandoned his contention that he had a legitimate expectation of privacy in the duplex. He conceded that he could not contest the police officers' entry into the duplex and argue that he had a legitimate expectation of privacy in the duplex because of our holding in State v. Fillyaw, 104 Wis.2d 700, 312 N.W.2d 795 (1981). ³ Instead, he argued that he had a legitimate Subsequently, the United States Supreme Court held that an overnight guest could have a legitimate expectation of privacy in his or her host's home. Olson, 110 S.Ct. 1684. Whitrock filed, and we granted, a motion for supplemental briefing, to address (1) the impact of Olson on this case, and (2) whether Whitrock had waived his right to argue that he had an expectation of privacy in the duplex.

expectation of privacy in the stereo equipment.

The State has vigorously argued that this court should not reach the merits of whether Whitrock had a legitimate expectation of privacy in the duplex, primarily on the ground that Whitrock did not have to concede this argument, but could have distinguished this case from Fillyaw. When examining this issue in light of applicable Wisconsin case law, however, it is apparent that it is in the best interests of justice to address this issue.

First, the general rule in Wisconsin is that the court will not consider an issue raised for the first time on appeal, because, "[i]f the question had been raised below, the situation might have been met by the opposite party by way of amendment or of additional proof." Terpstra v. Soiltest, Inc., 63 Wis.2d 585, 593, 218 N.W.2d 129 (1974) (quoting Cappon v. O'Day, 165 Wis. 486, 490, 162 N.W. 655 (1917)). In this case, Whitrock argued before the circuit court, and the circuit court addressed in its decision, the question of whether he had a legitimate expectation of privacy in the premises. The question was raised earlier, and the rule repeated in Terpstra is not strictly applicable.

Second, this court may consider a constitutional issue raised for the first time on appeal at its discretion. In Interest of Baby Girl K., 113 Wis.2d 429, 448, 335 N.W.2d 846 (1983). This court will exercise this discretion if, "it is in the best interests of justice to do so, if both parties have had the opportunity to brief the issue and if there are no factual issues that need resolution." Baby Girl K., 113 Wis.2d at 448, 335 N.W.2d 846 (quoting Laufenberg v. Cosmetology Examining Bd., 87 Wis.2d 175, 187, 274 N.W.2d 618 (1979); State v. Yellow Freight System, Inc., 101 Wis.2d 142, 158, 303 N.W.2d 834 (1981)). In light of the significance of Olson, and its potential effect on Fillyaw, it is clearly in the best interests of justice to decide this issue on the merits. Both parties were given the opportunity to fully brief this issue before this court, and there are no factual issues which need resolution. See also State v. Dyess, 124 Wis.2d...