State v. Guard, 808 N.W.2d 718

Guard challenged a conviction after guilty pleas to being a felon in possession of a firearm and cocaine possession with intent to deliver.
Police entered the back hallway of a duplex without a warrant, consent, or exigent circumstances, after approaching the side entrance based on a dispatch about armed drug dealing.
Officers smelled burnt marijuana from the side entrance and encountered four occupants of the upper unit after ascending stairs.
Guard was found holding a marijuana cigarette and marijuana-like gem packs; a handgun handle was observed on a refrigerator.
Trial court denied the suppression motion, concluding the entry was reasonable under the circumstances; Guard appealed.
On review, the court reversed, concluding the warrantless entry violated Guard’s Fourth Amendment rights and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Guard have a reasonable expectation of privacy in the back hallway?	Guard had a protectable expectation of privacy in the back hall as the unit entrance.	State claimed no reasonable expectation in the common hallway.	Guard had a reasonable expectation of privacy; warrantless entry violated rights.
Was there valid third-party consent to enter the back hallway?	Consent was provided by a resident or co-occupant with authority over premises.	The woman directing to the back door lacked proven authority to consent.	No clear evidence of authority to consent; third-party consent insufficient.
Were exigent circumstances or probable cause present to justify the warrantless entry?	Probable cause and exigent circumstances justified entry into the duplex.	No exigent circumstances existed before entering; plain-view later cannot cure initial entry.	No exigent circumstances or probable cause at time of entry; warrant requirement applied.
Did plain view after unlawful entry provide independent justification for the search?	Plain view of contraband and a weapon could justify further search.	Plain-view justification comes after a lawful entry; earlier entry invalidates the basis.	Plain view after unlawful entry did not validate the initial warrantless entry.

State v. Rewolinski, 159 Wis. 2d 1 (1990) (factors for reasonable expectation of privacy)
State v. Thompson, 222 Wis. 2d 179 (Ct. App. 1998) (totality of circumstances in privacy analysis)
State v. Kieffer, 217 Wis. 2d 531 (1998) (apparent common authority and third-party consent)
State v. Tomlinson, 254 Wis. 2d 502 (2002) (mutual use and authority to consent)
State v. Ferguson, 317 Wis. 2d 586 (2009) (sanctity of the home and privacy expectations)
State v. Hughes, 233 Wis. 2d 280 (2000) (exigent circumstances and probable cause framework)
State v. Smiter, 331 Wis. 2d 431 (Ct. App. 2010) (standard of review for suppression rulings)