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State v. Dumstrey

Supreme Court of Wisconsin

January 15, 2016

State of Wisconsin, Plaintiff-Respondent,
Brett W. Dumstrey, Defendant-Appellant-Petitioner

Argued September 8, 2015.

Page 503

REVIEW of a decision of the Court of Appeals. (L.C. No. 2012CT508).

For the defendant-appellant-petition, there were briefs by Anthony B. Cotton and Jeffrey J. Szczewski, and Kuchler & Cotton, S.C., Waukesha, and oral argument by Anthony B. Cotton.

For the plaintiff-respondent, the cause was argued by David H. Perlman, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

PATIENCE DRAKE ROGGENSACK, C.J. REBECCA G. BRADLEY, J., did not participate. DAVID T. PROSSER, J. (concurring). ANN WALSH BRADLEY, J. (dissenting).



Page 504

[366 Wis.2d 71] [¶1] We review a published decision of the court of appeals,[1] which affirmed the Waukesha County Circuit Court's[2] denial of defendant Brett Dumstrey's (Dumstrey) motion to suppress evidence acquired after a stop and subsequent arrest. Dumstrey's motion challenged the legality of the stop and subsequent arrest on Fourth Amendment grounds.

[¶2] After being followed by police for erratic driving, Dumstrey drove inside of the parking garage underneath his apartment building, where he was stopped by

Page 505

police and subsequently arrested for operating while intoxicated (OWI), contrary to Wis. Stat. § 346.63(1)(a) (2013-14).[3] Dumstrey does not challenge the fact that police had reasonable suspicion to [366 Wis.2d 72] stop him. However, he argues that the officers' conduct violated the Fourth Amendment's prohibition against unreasonable searches and seizures because it occurred during a warrantless entry into a constitutionally protected area, curtilage of his home.

[¶3] Therefore, the central question before us is whether the parking garage underneath the apartment building constitutes curtilage of Dumstrey's home such that it is protected by the Fourth Amendment. We also consider whether Dumstrey has shown a reasonable expectation of privacy in the parking garage, thereby warranting Fourth Amendment protections.

[¶4] We conclude that the parking garage underneath this apartment building does not constitute curtilage of Dumstrey's home. We further conclude that Dumstrey has shown no reasonable expectation of privacy in the garage. Consequently, Dumstrey's stop and subsequent arrest in the garage did not violate the Fourth Amendment's prohibition against unreasonable seizures. Stated otherwise, the seizure did not occur after a warrantless entry into a constitutionally protected area. Accordingly, we affirm the decision of the court of appeals.


[¶5] On the night of Friday, April 20, 2012, Officer DeJarlais, of the City of Waukesha Police Department, was off duty and was wearing plain clothes while operating his unmarked, personal vehicle. At approximately 10:30 p.m., Officer DeJarlais observed a vehicle, later determined to be driven by Dumstrey, pass him at a high rate of speed and then begin tailgating another vehicle. Officer DeJarlais subsequently [366 Wis.2d 73] passed both of these vehicles, at which point Dumstrey accelerated and began tailgating Officer DeJarlais. Dumstrey continued speeding and changing lanes, and at one point, he was straddling both lanes.

[¶6] After watching Dumstrey's vehicle for some time, Officer DeJarlais called the police department dispatcher and requested a squad response to a possible intoxicated driver. Around that same time, Officer DeJarlais pulled up next to Dumstrey at a red light, rolled down his window, and made eye contact with him. Dumstrey likewise rolled down his window, at which point Officer DeJarlais displayed his police badge and photo identification card. Officer DeJarlais pointed out Dumstrey's erratic driving and instructed him to pull over and wait because the police were coming. Dumstrey stared back at him with a " blank look" and " appeared to be very intoxicated." His eyes were " sleepy looking" and " kind of glassy." After the light turned green, Dumstrey continued to sit at the intersection. When the light turned yellow, he proceeded to drive through the intersection.

[¶7] After driving through the intersection, Dumstrey stopped in the middle of the traffic lane, and Officer DeJarlais again pulled up next to him and told him to wait for the police. Dumstrey continued to stare at Officer DeJarlais and then drove off toward his apartment complex, consisting of five or six apartment buildings. Officer DeJarlais followed Dumstrey to a parking lot outside one of the apartment

Page 506

buildings where Dumstrey continued to drive around, as though " trying to lose" the officer. Subsequently, Dumstrey turned toward the parking garage underneath his apartment building, raised the garage door with his remote controlled opener, and " drove down beneath the apartment building into the parking garage."

[366 Wis.2d 74] [¶8] Officer DeJarlais followed Dumstrey and parked his personal vehicle underneath the garage door so that the door would not come down and lock out the police response that he had requested. Officer DeJarlais then exited his vehicle and walked into the parking garage, toward where Dumstrey had parked in his assigned parking place. As Officer DeJarlais started approaching Dumstrey's vehicle, Dumstrey exited the vehicle and the two made contact. Officer DeJarlais instructed Dumstrey to stay put because the police were coming. He also displayed his police badge and photo identification, to which Dumstrey indicated disbelief that Officer DeJarlais was actually a police officer. Upon showing his badge and identification again, Dumstrey finally stopped and appeared to believe Officer DeJarlais. Shortly thereafter, the responding officer, Officer Lichucki, arrived on the scene.

[¶9] Officer Lichucki entered the parking garage through the garage door under which Officer DeJarlais had parked his vehicle. Officer Lichucki immediately made contact with Dumstrey and began asking him investigative questions. Dumstrey stated that he had driven home from a Milwaukee Brewers baseball game at Miller Park and denied having consumed any alcohol. Upon his questioning, Officer Lichucki observed that Dumstrey was swaying back and forth and his " eyes were glassy and somewhat bloodshot." His speech was also " slurred," and Officer Lichucki could smell " an odor of intoxicants coming from his person." Officer Lichucki requested that Dumstrey submit to various field sobriety tests, all of which he refused to perform. At that point, Officer Lichucki arrested Dumstrey for OWI. Later, Dumstrey consented to an evidentiary blood test, which revealed that his blood alcohol level was .178.

[366 Wis.2d 75] [¶10] Dumstrey moved to suppress, challenging the legality of the stop and subsequent arrest on the basis that his seizure occurred after a warrantless entry, in violation of the Fourth Amendment. At the hearing, testimony established that Dumstrey lives in the apartment building under which the parking garage is located. Approximately 30 tenants live in Dumstrey's apartment building, and the parking garage has approximately 30 parking places. The residents, including Dumstrey, pay for their assigned parking places in the garage and use the garage only for parking rather than for storage or other uses. Dumstrey testified that he can enter the parking garage only through the remote controlled garage door or through a locked door on the inside of the apartment building. All of the other tenants have access to the parking garage through these same means. In order to get from the parking garage to his home, Dumstrey uses the building's elevator. This elevator is likewise utilized by all other tenants.

[¶11] The circuit court ultimately denied Dumstrey's motion, and he pled guilty to OWI, second offense, in violation of Wis. Stat. § 346.63(1)(a). The court of appeals affirmed, holding that there was no Fourth Amendment violation because the parking garage underneath the apartment building did not constitute curtilage of Dumstrey's home, and he did not have a reasonable expectation of privacy in the parking garage.[4]

Page 507

State v. Dumstrey, 2015 WI App 5, ¶ 14, 359 Wis.2d 624, 859 N.W.2d 138. We granted Dumstrey's petition for review.

[366 Wis.2d 76] II. STANDARD OF REVIEW

[¶12] " [A] curtilage determination presents an issue of constitutional fact," State v. Martwick, 2000 WI 5, ¶ 16, 231 Wis.2d 801, 604 N.W.2d 552, as does the general question of " whether police conduct violated the constitutional guarantee against unreasonable searches and seizures," State v. Griffith, 2000 WI 72, ¶ 23, 236 Wis.2d 48, 613 N.W.2d 72. Questions of constitutional fact are subject to a two-step standard of review. Id.

[¶13] We uphold a circuit court's findings of historic fact unless they are clearly erroneous. State v. Fonte, 2005 WI 77, ¶ 11, 281 Wis.2d 654, 698 N.W.2d 594. A finding is clearly erroneous if " it is against the great weight and clear preponderance of the evidence." State v. Sykes, 2005 WI 48, ¶ 21 n.7, 279 Wis.2d 742, 695 N.W.2d 277 (internal quotation marks omitted) (quoting State v. Tomlinson, 2002 WI 91, ¶ 36, 254 Wis.2d 502, 648 N.W.2d 367). We then " apply the constitutional principles to the facts at hand to answer the question of law." Martwick, 231 Wis.2d 801, 2000 WI 5, ¶ 23.


[¶14] The Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[366 Wis.2d 77] U.S. Const. amend. IV. Article 1, Section 11 of the Wisconsin Constitution contains a substantively identical provision that we have historically interpreted in accord with the Supreme Court's interpretation of the Fourth Amendment. State v. Arias, 2008 WI 84, ¶ 20, 311 Wis.2d 358, 752 N.W.2d 748.

[¶15] " Although our legal lexicon often presents 'searches and seizures' as an inseparable tandem, the two are constitutionally and analytically distinct." Id., ¶ 25. Therefore, we first determine whether Dumstrey underwent a search or seizure for purposes of our Fourth Amendment analysis.

A. Search and Seizure

[¶16] Searches affect privacy interests, such as bodily integrity and invasion of those places that a person has reserved for his or her individual use. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Seizures, on the other hand, affect personal liberty interests such as the freedom of movement and the possession of one's property. See Delaware v. Prouse, 440 U.S. 648, 657, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

[¶17] We have recognized two types of seizure. State v. Young, 2006 WI 98, ¶ 20, 294 Wis.2d 1, 717 N.W.2d 729. First, we have recognized the investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, a police officer may, under certain circumstances, temporarily detain a person for purposes of investigating possible criminal behavior even though there

Page 508

is not probable cause to make an arrest. Id. at 22. Such an investigatory stop must be preceded by the [366 Wis.2d 78] officer's reasonable suspicion that a crime has occurred, or is about to occur. Id. at 21; State v. Houghton, 2015 WI 79, ¶ 30, 364 Wis.2d 234, 868 N.W.2d 143. Second, an arrest is a seizure. State v. Ferguson, 2009 WI 50, ¶ 17, 317 Wis.2d 586, 767 N.W.2d 187. Generally, if the police have probable cause to make an arrest, they may not need a warrant. United States v. Watson, 423 U.S. 411, 417-23, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

[¶18] Officer DeJarlais followed Dumstrey into the parking garage in order to effectuate an investigatory stop as to whether he was operating while intoxicated. Once inside the garage, Officer DeJarlais stopped Dumstrey after he had exited his vehicle, displaying his police badge and identification. Dumstrey does not challenge whether Officer DeJarlais had reasonable suspicion to stop him; therefore, we assume, without deciding, that reasonable suspicion for the investigatory stop existed. Once Officer DeJarlais stopped Dumstrey with reasonable suspicion, Officer Lichucki questioned Dumstrey and observed his physical characteristics, including his swaying, slurred speech, glassy and bloodshot eyes, and the odor of intoxicants emanating from his person. Dumstrey similarly does not challenge whether these observations gave rise to probable cause for his arrest; therefore, we likewise assume, without deciding, that probable cause existed. Accordingly, we conclude that Dumstrey was seized in the parking garage when he was stopped and subsequently arrested for operating while intoxicated.

[¶19] We further conclude that Dumstrey was not subjected to a search while stopped in the parking garage. Visual observation in the context of a lawful [366 Wis.2d 79] stop " does not constitute an independent search because it produces 'no additional invasion of [the suspect's] privacy interest.'" State v. Angiolo, 186 Wis.2d 488, 497, 520 N.W.2d 923 (Ct. App. 1994) (alteration in original) (quoting Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987)); see also United States v. Jones, __U.S.__, 132 S.Ct. 945, 953, 181 L.Ed.2d 911 (2012) (acknowledging that " mere visual observation does not constitute a search" ).

[¶20] As set forth above, after Dumstrey was stopped, Officer Lichucki arrested him based on observations of his physical characteristics without further invading his bodily integrity. Therefore, aside from the stop and arrest, there was no additional invasion of Dumstrey's privacy interest. Consequently, the officers effectuated a seizure of Dumstrey, but no independent search occurred at that time.[5]

[¶21] We now consider whether Dumstrey's seizure occurred within a constitutionally protected area, thereby constituting a warrantless entry in violation of the Fourth Amendment.

B. Garage Entry

[¶22] " It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). " Indeed, '[i]t

Page 509

is axiomatic that the physical entry of the home is [366 Wis.2d 80] the chief evil against which the wording of the Fourth Amendment is directed.'" State v. Richter, 2000 WI 58, ¶ 28, 235 Wis.2d 524, 612 N.W.2d 29 (alteration in original) (internal quotation marks omitted) (quoting Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)). Given this heightened Fourth Amendment protection, where police effectuate a warrantless arrest inside of a home, the State must prove that the warrantless entry was justified by exigent circumstances. Ferguson, 317 Wis.2d 586, 2009 WI 50, ¶ ¶ 19-20.

[¶23] " The protection provided by the Fourth Amendment to a home also extends to the curtilage of a residence." Martwick, 231 Wis.2d 801, 2000 WI 5, ¶ 26; State v. Walker, 154 Wis.2d 158, 183, 453 N.W.2d 127 (1990), abrogated, in part, on other grounds by State v. Felix, 2012 WI 36, ¶ 42, 339 Wis.2d 670, 811 N.W.2d 775. " [T]he curtilage is the area to which extends the intimate activity associated with the sanctity of a [person's] home and the privacies of life and therefore has been considered part of [the] home itself for Fourth Amendment purposes." Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (internal quotation marks and citation omitted). The Fourth Amendment's protection against warrantless entry for arrest also has been reasoned to extend to places where the person " has a legitimate expectation of privacy in the invaded place." Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (internal quotation marks and citation omitted); United States v. Gooch, 6 F.3d 673, 676-77 (9th Cir. 1993) (recognizing reasonable expectation of privacy in a tent located on public campgrounds such that warrantless arrest of inhabitant requires exigent circumstances). We consider both constitutional contentions in turn.

[366 Wis.2d 81] 1. Curtilage

[¶24] Prior to undertaking a case specific curtilage analysis, however, it is necessary to first discuss existing Wisconsin and Supreme Court law with respect to the Fourth Amendment's protection of a home's curtilage. Dumstrey points us to Conrad v. State, 63 Wis.2d 616, 633, 218 N.W.2d 252 (1974), in support of the proposition that common space in the basement of an apartment building is " clearly within the curtilage" of the home. In Conrad, we considered whether the police conducted an unconstitutional search when they excavated a dead body approximately 450 feet from the defendant's house on his 40 acre farm. Id. at 620-21. We rejected any trespassory, curtilage analysis in favor of a reasonable expectation analysis and held that there was no unconstitutional search because the defendant harbored no reasonable expectation of privacy in the area of his property in question. Id. at 633-34.

[¶25] In so holding, we relied on the Supreme Court's Katz decision, wherein the Court held that a search need not result from a physical trespass in order to be unreasonable under the Fourth Amendment. Katz, 389 U.S. at 352. Rather, a search may be unconstitutional in an area where a person holds a reasonable expectation of privacy. Id. at 352-53, 360-61 (Harlan, J., concurring).

[¶26] We stated in Conrad that " [t]he importance of Katz is . . . that it foretold the possibility that, even in a place traditionally thought to be an area protected by the [F]ourth [A]mendment, protection would not be afforded in the absence of a subjective intent to exercise a reasonable expectation of privacy." Conrad, 63 Wis.2d at 627.

Page 510

Based on this proposition, we stated [366 Wis.2d 82] that Katz modified the previous curtilage analysis and effectively held that there could be no unconstitutional search of curtilage unless the defendant also held a reasonable expectation of privacy in that same area. Id. at 630-31. As further support for this proposition, we cited a previous opinion, Watkins v. State, 59 Wis.2d 514, 208 N.W.2d 449 (1973) (per curiam), wherein we held that a warrantless search of a storage room in the basement of an apartment building did not violate the Fourth Amendment. Id. at 514-15. In Watkins, we did not relate a curtilage analysis but, rather, held that the defendant harbored no reasonable expectation of privacy in the area. Id.

[¶27] In Conrad, we reasoned that the Katz test limited the curtilage test. We said,

[I]t appears that the rule of Katz, as explained by Wattenburg, is an explication or modification based on present-day concepts of the ancient curtilage test. It is also a limitation of it. Under the strict curtilage test, the subjective element of a reasonable expectation of privacy was omitted. There was, in effect, a legal presumption that all within the curtilage was protected.

Conrad, 63 Wis.2d at 630. Conrad was a search case.

[¶28] Recently, however, the Supreme Court has clarified that " Fourth Amendment rights do not rise or fall with the Katz formulation." Jones, 132 S.Ct. at 950. Rather, " the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." Id. at 952. Like Conrad, Jones is a search case.

[¶29] In Florida v. Jardines, U.S., 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), another search case, the Supreme Court confirmed that the curtilage of a person's home remains [366 Wis.2d 83] a constitutionally protected area without consideration of whether a reasonable expectation of privacy exists. There, the Court held that the front porch of a home constitutes curtilage and that officers executed an unconstitutional search when they conducted a trespassory dog sniff on that constitutionally protected area. Id. at 1415-17. In so holding, the Court harkened back to the reasoning behind the Fourth Amendment's heightened protection of the home, stating that at its " very core stands the right of a [person] to retreat into his [or her] own home and there be free from unreasonable governmental intrusion." Id. at 1414 (internal quotation marks omitted) (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)).

[¶30] Given the Supreme Court's recent emphasis on the distinction between the trespassory, curtilage analysis and the reasonable expectation analysis, we conclude that our statements in Conrad, 63 Wis.2d at 627, 630-31, may be read as inconsistent with that distinction.[6] However, if we are to employ the same trespassory, curtilage analysis to a seizure as has been applied to a search, we must consider separate and distinct from a reasonable expectation of privacy whether the area in question is constitutionally protected curtilage.

[¶31] We previously have conducted a curtilage analysis to determine whether an

Page 511

arrest occurring within curtilage of a home violates the Fourth Amendment's protection against warrantless entry. Walker, [366 Wis.2d 84] 154 Wis.2d at 182. In Walker, police entered a resident's fenced-in backyard without a warrant in order to arrest ...

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