State v. Amos

Wisconsin, Plaintiff-Respondent, STATE

v. AMOS, Defendant-Appellant.† Daniel Lee Appeals

Court 88-2235-CR, July Submitted on No. 88-2236-CR. briefs 15, 1989. 1989. Decided November 503.) (Also reported in 450 N.W.2d to review denied. Petition † plaintiff-respondent the cause was submit- For the Hanaway, attorney gen- Donald J. ted on the briefs of Moeller, eral, Marguerite attorney by M. assistant general. defendant-appellant

For the the cause was submit- of J. Leeper, ted on the briefs David of Monroe. Fine, Moser, P.J., Before Sullivan and JJ. MOSER, P.J. (Amos) Daniel Lee appeals Amos from judgments affirming jury finding verdict him guilty burglary of armed 943.10(1)(a), violation of sec. Stats., on his plea and no contest to escape violation 946.42(3)(a), of sec. Stats. appeal,

On First, the following makes claims. in failing suppress trial court erred the seizure of property. Second, himself and his the trial court erred in allowing jury to hear attempt evidence Amos's perjury suborn as such evidence was inadmissible and Third, prejudicial. the trial court denied Amos his due process rights and confrontation of presenting, and con- Fourth, fronting witnesses. the trial court denied Amos a fair it give theory trial when refused to of defense Fifth, instruction. the trial court violated Amos's double jeopardy rights sponte when it sua and without notice modified his sentence it begun. after had Because the in any claims, trial courts not err did Amos's above we affirm. Agnes

Delbert Anderson resided at 1Í03 Kriedeman Drive in city Stoughton, county, Dane 23,1985, they Wisconsin. On November arrived home at approximately p.m. Agnes 5:45 After entered the home door, through the back she bent down to take her boots footsteps coming living off when she heard from the her, room. An past intruder ran her in pushing the back pushed of the head and her down. The intruder ran out Next, through garage. Agnes the back door the called out to her husband that intruder in an had been their home. arrived, Agnes police. police After they called the the anyone if searched the Andersons' home to determine police The else was inside. No one else was inside. found of one the Andersons' kitchen knives beside Mrs. Ander- box, jewelry jewelry son's and camera and a camera in equipment plastic and other items a garbage black placed top bag, the front of a near on bedsheet was which living police Ander- also found the The in the room. door lying and recorder disconnected cassette sons' video living against tipped in the the television set on the floor room. police lighted flashlight in the snow a

The found along residence, with a set of behind the Andersons' footprints had snow from boots that a tracked the They singular lug pattern. set this of or followed waffled property to the the Andersons' the tracks across back of neighbor's property next and around of the door front residence located on Kriedeman the back another Cathy Jo This house the residence of Nelson Drive. (Nelson).1 entry footprints door The led to the rear garage had of Nelson's residence. This door been the previously partially by open, broken and was closed held against police being placed a block it. The concrete footprints opened the door noted the same of snow garage, up on concrete floor of the which led to the the entry door of residence. rear this police building

The surrounded the and waited for Stoughton police to authorization enter. The chief telephone the and if advised officers to the residence response, squad public police no use the there was system. response, If still no the address there was officers premises prop- instructed to were enter to search erty. police The on the had the authorities scene dis- patcher telephone failing the Nelson After residence. response, they squad public receive a used a address car's system, response. Finally, which also to result failed a they premises. search entered residence to police tipped davenport

First, the in the over liv- they ing lying room where face down. found The 1Amos married his trial. Nelson after arrest and before part pants lower of his sweat his and socks were notice- ably police Then, wet. the found wet boots that were partially spring hidden between the mattress and box Stough- a in a bed bedroom of Nelson the residence. The police ton arrested Amos. police station,

theAt Amos was advised of his rights.2 escaped Miranda He admitted that he from had Oakhill Correctional on Institution November 1985. He claimed that he been had at Nelson residence only forty police him, minutes before the found that and girlfriend, Nelson, not did know he inwas her resi- any complicity burglary dence. Amos denied at the Anderson residence. Amos was advised he was charged burglary with armed because of the use of the burglary battery kitchen knife in the and for the of Mrs. Anderson. Amos stated that because of the seriousness charges, attorney's of the he had better seek an at advice interrogation which time the ceased. jury guilty robbery,

The found Amos armed and jury's by verdict was affirmed the trial He court. pleaded escape charge, no contest to the which the trial accepted voluntarily court as made. The trial court found guilty escape charge. him of The trial court sen- eight years burglary tenced on the con- armed any serving, viction consecutive to sentence he was then days presentence with credit a for for incarceration. escape charge, For the the trial court him to sentenced years burglary two consecutive to the armed sentence any previous other sentence with a credit of 726 days presentence incarceration.

The sentence was entered on November 1987. by being parole/ 4, 1987, On December after notified probation agent any that Amos not entitled to sen- Arizona, (1966).

2Miranda v. 384 U.S. 436 sua sentence the credit, trial court vacated tence giving sponte after he had to Amos and notice without burglary serving begun The court sentence. the armed sentence, the same con- then reinstated but vacated exception charges with for both sentences secutive days presentence A credit. the 726 eliminated that it Judge judge, Nichol, heard the Gerald C. different but denied all relief modification for sentence motions requests. body in the of the will be recited Further facts as needed. decision THE SEARCHES TWO SUPPRESSION OF

I. AND SEIZURES argues the Nelson First, the search of Amos subsequent person property, of his the seizure of his federal and were violations of the boots seizure illegal against rights Both and seizures.3 searches state judges postconviction held that motion the trial and privacy expectation home at of Nelson's no Amos had escapee of a he was an of his arrest because the time penal institution. police

Despite to the at Amos made the statement been at the Nelson his arrest that he had the time of police only forty found before the minutes residence for living he was at Nel- him, at trial that Amos testified day after his weeks since the for the two son's home escape time of his arrest. from Oakhill until the privacy expectation argues a reasonable that he had argues he was an State that because Nelson's home. The escapee expectation arrest, he had no at the time of privacy in Nelson's home. Const, Const, I, IV; sec. 3See Wis. art. States amend. United 11. generally per

Warrantless searches of homes are se subject only unreasonable, to a few well-delineated exceptions exigent such as where circumstances exist.4 emergency exigent The doctrine or circumstances is rule police on based actions that are considered reasonable.5 supplied by The element reasonableness is the com- pelling apprehend responsible crimes, need those for Although not the need secure evidence.6 the evidence adequate supplied circumstantial, in this case was it exi- gent support circumstances to a warrantless of search Nelson's home. agree adopt

We with and the view of the Second escapee Appeals legiti- of an Circuit Court that has no expectation privacy in mate of a residence where he or hiding authority she is from lawful at the time of a exigent warrantless a circumstances search.7 As matter policy, society prepared recognize expecta- of is not an privacy tion of as reasonable under these circumstances.8 person Thus, the of in seizure Amos's Nelson's home was Pires, 4State v. 597, 603-04, 153, Wis. 55 2d Coolidge Hampshire, v. (1972) New (quoting 156-57 403 U.S. 443, [1971]). 454-55 604,

5 55 Wis. 2d at 201 at N.W.2d 157. 6Id. Roy, 7See United States v. 108, (2d 734 F.2d 110-12 cir denied, cert. 1984), (1986). . analyzed 1110 475 U.S. This case escapee legitimate expectation privacy whether an has a of in the passenger compartment trunk The or car. second circuit held privacy. See also legitimate expectation there was no Payner, v. v. United States Rakas (1980); 447 U.S. 731 Illinois, States, Jones v. United 128, 133-34 (1978); 362 U.S. (1960). U.S. States, 8Roy, (citing United Katz v. 734 F.2d at 110-12 (Harlan, J., concurring)). U.S. 361 [1967] privacy no unconstitutional, Amos had because not h¿ escapee from a since was an home interest Nelson's penal institution. reentry

Also, the later warrantless contests partially boots, were hid- which retrieval of wet spring box of a bed exigent the mattress and den between probable cir- cause and Nelson's home. Since police present, made a warrantless cumstances were entry violating Amos's fourth amendment without reasonably rights. that is seizure Evidence search and danger removal or destruc- be in imminent believed to exception justifying well-recognized warrantless tion is a police entry allowing action where there is a immediate " 'compelling no time to need for official action and "9 looking reviewing court, A when at secure a warrant.' exigent existed, must concern whether circumstances police had reason to itself with what the authorities entry.10 believe at the time of their police case, In this the record indicates that the were officers were concerned with the fact that the boots probably still wet and whether the boots had the same pattern lug in the waffle or on the soles as that found exigent made snow. The circumstances as noted above the second warrantless intrusion into Nelson's home necessary. Thus, and seizure of the was the search boots constitutionally proper postcon- and and the trial court judges' suppression proper. viction motion denial of was escapee, especially Amos, This is true since an like can Peardot, 404, 172, 175 400, 9State v. 119 Wis. 2d (quoting Michigan Tyler, (Ct. 1984) v. App. 436 U.S. 509 Kulcsar, [1978]). See also United States v. 586 F.2d (8th 1978). Cir.

10Peardot, 119 Wis. 2d at 351 N.W.2d at 175. only penal reside in the institution he or she is sent to anywhere purposes and cannot reside else for of search protestations.11 and seizure II. SUBORNATION OF PERJURY argues Next, Amos the that trial court abused its allowing discretion in cerning into evidence information con- attempt pequry. his to suborn Amos contacted a person thought give who he would him an alibi. The tape conversation was attempted recorded and it that Amos stated purchase to a alibi "Dave."12 false from Prior to at Amos trial made in limine motions prohibit tape employing to the State from recorded perjury attempt. evidence of the subornation of Amos argued that the evidence If was irrelevant. the evidence argued relevant, was found to be Amos that evidence prejudicial was inadmissible was because it too to be jury. received into evidence as it would Fur- confuse argued impeach- ther, he that the evidence constituted by ment on extrinsic evidence a collateral issue. The argued State if that Amos testified on cross-examina- they tape impeach

tion, would introduce the his credi- bility guilt. his show consciousness

The trial court held that the evidence of the sub- orning "goes perjury was to the relevant because it credibility." waiving Thereafter, defendant's without Roy, ("an See escapee F.2d at 111 constructive [is] custody determining expecta purposes legitimate for the his privacy"). tions county jail, Amos

12While the Dane discussed case police police with a fellow inmate who was informant. The contact a driver informant advised he could truck named who, price, give for the "Dave" for a would an alibi time of telephoned burglary. inmate "Dave" armed This fellow who Mahoney. deputy sheriff David

271 stipulation a rights, Amos and the State filed any appeal Mahoney testify would that Amos deputy stating: Maho- testimony; him for his "that give to agreed $500 the date of the Anderson ney Nelson's home on called and, p.m.; spoke 4 5 that he with burglary between stipulation employed This as Amos at that time." in this case. rebuttal evidence not find an abuse of discretion Appellate courts will if grounds there is a receipt for of evidence on relevance reasonable basis for the trial court's determination.13 having any tendency is to Relevant evidence "evidence any consequence is of to make the existence of fact that probable or less the determination of the action more probable than it would be without the evidence."14 "The relevancy of sought criterion is whether evidence any light subject be introduced would shed on the Tingley Hanley, hearsay In State ex rel. v. inquiry."15 influ- showing attempted evidence that a defendant testimony co-conspirator to make all the ence the trial stories coincide with the defendant's was found to be relevant and admissible.16 The court held that " degree evidence tends 'to show some a consciousness "17Likewise, attempt guilt.' evidence of an to suborn perjury degree tended to show some a consciousness of guilt, though stipulation protes- even stated Amos's tations of The innocence. evidence identified Amos as Denny, 614, 626, 12,

13State v. 120 Wis. 2d 357 N.W.2d 18 (Ct. 1984). App. 904.01,

14Sec. Stats. State, 15Rogers 682, v. 774, 2d 93 Wis. 776 (1980). 578, 583, (1946).

16 248Wis. N.W.2d State, 17Id. Scott v. 548, 556, (quoting 211 Wis. 248 N.W. [1933]). perpetrator burglary. the of This evidence made it likely Thus, more that he committed crime. it was relevant and the trial court did not abuse its discretion allowing stipulation jury. to be read to the

Amos also contends that the use of this evidence impeaching exculpa- constituted extrinsic evidence tory testimony. Generally, may a witness not be impeached specific on of the basis instances of collateral by facts introduced extrinsic evidence because such evi- tendency issues, time, to dence has confuse waste jury's focus the attention on But trivial matters.18 where corrupt the extrinsic evidence introduced tends show hand,19 testimonial intent for the case at such as subor- perjury, nation of which tends to show a consciousness guilt,20 evidentiary proscription then there nois for its relevancy regarding use. The of this Amos's evidence depends upon suborning perjury other conduct its place, alleged time, nearness in and circumstances to the crime.21 attempt perjury

The to suborn occurred this while pending and, such, action was as is available to the State guilt though this show consciousness even was extrinsic evidence of collateral facts. The trial court's ruling allowing of this an use evidence not abuse of discretion. Sonnenberg, 906.08(2), State v.

18Secs. 904.03 and Stats. 159, 176, 95, 103 (1984). Wis. 2d 1005(c) (Chadbourne Evidence sec. Wigmore, 19 3AJ. rev. ed. (Chadbourne 1970); Evidence sec. 1070 Wigmore, 4 J. rev. ed. 1972). supra

20See 21 accompanying note text. 17 and Sonnenberg, 2d 101. 117 Wis. at N.W.2d at argues receipt Next, that the of evidence of perjury attempt other subornation of crimes—the —was error because crimes evidence cannot other be utilized to prove type the character of the defendant. This of testi- mony proffered "proof is not excluded if to show opportunity, preparation, plan, motive, edge, intent, knowl- identity, or absence of mistake or accident."22This statutory listing wrongs of other or acts is not exclusive exhaustive, or attempt is but illustrative.23 The of an evidence perjury

to suborn was admissible to show a con- guilt principal charge.24 sciousness of of the criminal The stipulation allowing trial did not err in court the of the perjury subornation of statement into evidence. Finally, argues that this "other crimes" evi- prejudicial dence was so that it undermined Amos's con- right to a stitutional fair trial. Tried courts and this court apply two-step analysis must a to determine whether First, "other acts" evidence is admissible. the court must exceptions find that the evidence fits within one of the 904.04(2), employ Second, to sec. Stats.25 the court must 904.03, Stats., discretion to determine under sec. probative outweighs any prejudice whether the value resulting from such If evidence.26 the trial court fails procedure, appellate indepen- followthis the court "must dently supports if reviewthe evidence to determine it the 904.04(2),

22Sec. Stats. Shillcutt, 23State v. 227, 236, 116 Wis. 2d 341 N.W.2d (Ct. 1983). App. 720 Bettinger, 691, 698,

24State v. 100 Wis. 2d 303 N.W.2d (1981). Conley, 384, 399-400, 25State v. Wis. 2d (Ct. 1987). App. 26Id.

trial court's decision to admit the other acts evidence."27

We note that the trial court failed to this follow two- analysis. step already We have determined that the sub- ornation pexjury excep- evidence fits within one of the 904.04(2), Stats., tions to sec. since this evidence shows guilt. Amos's consciousness of Under the second prong two-step analysis, we probative hold that value of the far evidence out- weighs any prejudice resulting from such evidence for First, two prejudice reasons. of the subornation evi- dence by was ameliorated the other facts noted in the stipulation. Those facts included: Amos advised "Dave" that he did not commit the burglary, only that he was doing it because he was scared that he would be con- victed, person and that another committed the crime. All of these facts were consistent with Amos's trial testi- Second, mony. in the trial court's instructions to the jury, gave jury cautionary the court instruction. specifically The instruction was not directed to this evi- dence, yet sufficiently it was general apply broad and to to this evidence.

III. CONFRONTATION RIGHTS Next, right to Amos contends that he was denied his First, refused argues a fair trial. that the trial court Barry Livingston (Livingston) witness to allow defense testify concerning jail to house conversation because it Second, hearsay. argues Amos also the trial was refusing testimony attorney court to allow erred (Frank) by or use of a letter written Frank Ted N. Frank Shilleutt, 400, Id. 75. See State v. at N.W.2d at 235-36, (Ct. 1983). App. Wis. 2d 719-20 declining representation to Amos of Amos in this case due to a conflict of interest. right present

The fundamental of a defendant to pro- witnesses on one's own behalf is based on the due cess clause of the fourteenth amendment and the sixth right compel amendment's to witnesses on one's own against behalf to defend the state's accusations.28Under hearsay may circumstances, these rule not be employed mechanistically29 proffered where the testi- mony persuasive is critical to the defense and bears assurances of trustworthiness.30 Living- case,

In this the trial court refused to allow testify (who ston to that another cellmate was also a police informant) you told Amos: "Dan are in trouble. going get yourself You are to lose the trial. You better help. get you." some I have an alibi I witness can for The Livingston testify trial court did allow that Amos appeared nervous as a result of the conversation. The evidentiary ruling refusing trial court's to allow the hearsay employ- above into evidence was a mechanistic hearsay ment of the rule. The trial court erred because trying prove Amos was not the truth of the above through Livingston's testimony. statement Rather, he trying to show that the statements were made and Livingston what noted as Amos's reaction to the state- " hearsay prevent ments. 'The rule does not a witness testifying from heard; as to what he it is rather a restric- proof through extrajudicial tion on the of fact Mississippi, Chambers v. 28See (1973). 410 U.S. 294-98 29Id. at 302.

30Id; Sharlow, State v. 226, 233, 692, 110 Wis. 2d (1983). 696

276 "31 statements.' in though refusing

Even the tried court erred to testify Livingston concerning allow to what he had heard, jury testimony did hear his that Amos was upset nervous and as a result of the conversation. This testimony may corroborate testimony Amos's that he Yet, pressured by felt the cellmate's statements. it does in any way exculpate not Amos from attempt to bribe him give someone to an alibi for the time that the bur- glary 23,1985. Thus, occurred on November even though in evidentiary ruling, trial court erred its such error was not so critical to his him deny defense as to a fair trial.32 him argues

Amos also the trial court denied fair trial when it denied him the right to have Frank behalf, testify on his it receipt when denied the into evidence of a letter Frank wrote to Amos refusing represent him because of a conflict of interest. The letter hearsay.33 testify privileged Frank could not acquiescence,34 information without his former client's testimony and such would involve a violation of the rules professional attorneys by conduct for Frank.35 There- fore, allowing the trial court did not err not Frank to testify refusing or to allow the letter into evidence. Curbello-Rodriguez, 31State v. 414, 427, 119 Wis. 2d 351 Evans, (quoting Dutton v. 758, (Ct. 1984) App. N.W.2d 765 400 [1970]). U.S. 88 Valenzuela-Bernal, States v. 32United 458 U.S. (1982); Shadow, 2d at at 697. Wis. N.W.2d

33See sec. 908.01(3), Stats. 905.03(3),

34See Stats. sec.

35See (1986). 20.22 S.C.R.

IV. THEORY OF DEFENSE next the contends that trial court committed proposed because refused accept reversible error it to beginning written instruction tendered at the of the trial. Further, Amos argues that the trial court also erred when rejected theory it the amended defense instruction during Ralph the trial that Axelson committed the made burglary.

A presenting trial court has wide discretion in If jury. adequately instructions the its instructions applied facts, reviewing cover the law to the a court will special not find error refusing instructions even though the refused instructions would not be errone- A ous.36 defendant is entitled to an on a instruction valid defense,37 theory of but not to an that merely instruction evidentiary highlights factors.38 Such instructions are improper, trial they courts are if reject correct them.39 employed Jury

The trial court Wisconsin Instruc- 141 tion —Criminal which states: "The identification of is in defendant issue in case .... If you this find that committed, alleged the crime you may before find guilty, you beyond defendant must be satisfied person reasonable doubt that the defendant is the who committed the crime." is a That correct statement Roubik, 301, 308-09,

36State v. 2d 137 Wis. 404 N.W.2d (Ct. 1987). App. State, v. 45, 51, 37Turner 2dWis. 218 N.W.2d (1974). Pruitt, 69, 81, 38See State v. 2d 95 Wis. (Ct. App. 1980). 348-49 39Id. subject

law on the of identification. While Amos is enti- instruction, theory tled to a of defense he is not entitled requested to the instructions he they improperly because evidentiary highlighted matter. The trial court was cor- proffered rect reject instructions.

V. RESENTENCING 19, 1987, Byrne, On November William D. Judge eight years burglary Amos to charge sentenced on the years escape charge, and two on the both consecutive to preexisting consecutive to a sentence each other and Byrne serving. Judge gave Amos was then also Amos 726 days presentence incarceration credit to both sentences. burglary Both sentences were consecutive to the sen- serving, recog- which the trial court tence he was then completed would be on November 24. On Novem- nized Byrne probation/parole agent Judge wrote to ber a any him Amos not entitled to informing that credit. On December with- presentence incarceration any hearing, the trial out notice to Amos and without vacating amended order sponte court sua entered an Amos to the same original resentencing sentence and days presentence incarceration sentence without the serving commenced This occurred after Amos credit. in involved this case. burglary sentence 22, 1988, post- Amos's Nichol heard July Judge On to reinstate for sentence modification conviction motion Judge incarceration credits. day presentence the 726 Amos was but he found that the motion Nichol denied credit. incarceration days presentence five entitled to Amos was days five that on the This credit was based escape after burglary charges on the held on bond burglary sen- previous for the his release date maximum serving. he was tence appeal, argues Byrne

On this Judge that vio- in him process rights resentencing lated due sua sponte hearing. argues without notice and Amos further Judge Byrne punished him for that twice the same crime in jeopardy violation of both double under the federal It is and state constitutions. to be noted that Amos argued presentence never any he was entitled to incar- conclusory ceration credit other than statement appellate Byrne brief Judge appropriately that deter- initially mined sentence credit that was given. A. Sentence Credit person

A given convicted should be sentence credit presentence for spent incarceration for time custody in connection with the course of conduct for which sen- But, imposed.40 tence was he is to be given no presentence for credit incarceration time is unre- presently lated to the crimes charged.41 Amos was charges arrested on of burglary and 23, on escape November 1985. He was on convicted 28, burglary charge 1987, August on and on escape 31, on charge August He 1987. was for sentenced those on crimes November 1987. At the time of the initial bail hearing escape for the burglary and he charge, was completing a previous sentence for burglary conviction for which he was incarcerated at The Oakhill. record reflects that Amos did complete not the sentence for that burglary earlier until comple- November 1987. The tion of the prison previous sentence for burglary 973.155(1), 40Sec. Stats. 41 Beets, State v. 372,369 See (1985); 2dWis. N.W.2d 382 Gavigan, State v. (Ct. App. Wis. 2d 362 N.W.2d 162 1984). burglary or completely was unrelated to the

sentence Therefore, involved in this case. he was escape charge any statutory presentence incarceration not entitled his being jailed credit for from the time of arrest on involved this case until the time he was sen- charges charges, except tenced those for the above noted five for days. Judge Byrne claim that respect

With to Amos's process him his due because he received no rights denied hearing the modification of his sen- concerning notice tence, is argument we note that Amos's correct on this Amos, however, process did receive due with his point. postconviction given opportu- motion where he was an " nity meaningful to be heard 'at a time a mean- ',42 motion, postconviction ingful manner.' On the presentence of the incar- arguments against elimination on the record completely credit were aired ceration denying the modification before a trial court. The order meaningful in a manner request accomplished of his 726 if he were entitled to reinstatement because credit, he was days presentence incarceration which not, trial court sentence original reinstatement of the timely. would have been

B. Jeopardy Double sponte sua elimina- contends that

Amos next credit days presentence incarceration tion of the 726 Under the double jeopardy rights. violated his double once clause, can be increased jeopardy punishment no (1976) Eldridge, 424 U.S. 319, (quoting 42Mathews v. 333 Manzo, Armstrong 545, [1965]). v. 552 380 U.S.

281 person serving has commenced sentence.43 "Modifi- sentencing cation to runs correct flaws afoul of the provisions jeopardy amending double when the court already to being seeks increase sentences served."44 The trial court's sentence modification eliminating original days presentence 726 incarceration occurred after had the burglary sen- commenced case, therefore, tence involved in this jeopardy double proscripts implicated. case, were But this the sentence presentence was modified to eliminate incarceration credit that he was not entitled to and same sentence Thus, existed before the modification as after. double jeopardy implicated. was not

Finally, Amos argues that because of the State's acquiescence days in the of presentence 726 credit at trial, equitable the State's conduct should serve anas bar to sentence modification because of waiver.45 Because is no dispute there factual that Amos was not entitled to credit, days of it be impose would to absurd some equitable form relief ground on a waiver to per allow a se wrong sentence credit to stand.

By the Judgments and orders affirmed. Court. — FINE, J. I (concurring). write for separately two First, explain reasons. for my rationale joining on court's decision the critical issue of whether rule, exclusionary crafted to vindicate Fourth Amend- Powell, rights, 465, ment Stone v. 428 U.S. 482-483 (1976), expanded should be an con- escaped shelter Benz, v. (1931).

43United States 282 U.S. North, v. 507, 509-10, 44State Wis. 2d 283 N.W.2d (Ct. 1979). App. 458-59 State,

45See Struzik v. 357, 367-68, 90 Wis. 2d (1979). 926-27 Second, the majority's discussion of Chambers v. vict. Mississippi, (1973), 284 410 U.S. is unwarranted.

rH Amos' challenge to the entries of Nelson's home and property presents seizure of his an issue of first impression in Wisconsin.1 Resolution of issue that requires analysis an of the interests the Fourth Amend- designed protect. ment was purpose The fundamental of the Fourth Amend- prohibition against ment's unreasonable searches and seizures, I, in counterpart and the found article section Constitution, pri- 11 of the is to protect Wisconsin "the vacy security arbitrary of individuals against inva- Boggess, officials." State v. by government 115 sions 443, 448-449, 516, (1983). The Wis. 2d 340 N.W.2d 520 exclusionary rule bars trial use of evidence obtained that judicially- Fourth Amendment is a violation illegal police mechanism to deter designed constructed Janis, 433, activity, United States v. 428 U.S. 446 Walker, Linkletter v. (1976); 618, 381 U.S. 636-637 (1965), efficacy though empirical support for the rule's Janis, 428 U.S. at 449-454. regard problematic. that is however, clear, imposition of the exclu- What is is that social cost" since sionary rule "exacts a substantial unlawful, Amos 1Although arguing arrest was does that his personal jurisdiction over that the trial court lacked not contend Smith, 236, 601, See State v. him. 131 Wis. 2d ("A immunity prosecu (1986) from 608 defendant cannot claim by appearance precipitated in court was 'simply because his tion arrest,' illegal as a defense to arrest serve an unlawful nor does an Crews, v. [quoting United States U.S. a valid conviction." Rather, fruits of the (1980)]). contends he Smith, 240-241, See suppressed. 131 Wis. 2d at entries should be 388 N.W.2d at 610. kept

"[r]elevant and reliable evidence is from the trier of fact and the for truth is search at trial deflected." Rakas (1978). Illinois, Indeed, v. exclusionary 439 U.S. since the only in kicks rule when evidence of crime is "only person by uncovered, it benefits a incriminated illegally Studying evidence," Oaks, the obtained Exclu- sionary Seizure, and Rule in Search 37 U. Chi. L. Rev. (1970), guilty." 665, 736 "and often frees the Stone v. Powell, Thus, U.S. 428 at 490.2 there appropriately—serious "misgivings as to the bene- are— fit of exclusionary] persons may enlarging class of [the the who invoke Rakas, rule." 439 U.S. at 138. State v. Cf. (Ct. Rush, 225, 230, 688, 147 Wis. 2d 691 App. 1988) exclusionary ("Applying the rule to sentenc- ing unduly would also restrict a court's trial access to a range determining proper broad tence."). of a evidence sen- misgivings legitimate

These are considerations analysis scope in our expanded of whether the rule's should be protect Rakas, to Amos. See 439 U.S. at 138. " rights It is now settled that 'Fourth Amendment personal rights which, are like some other constitutional " rights, may vicariously asserted,' not be Id. at 133-134 (quoting States, v. 165, Alderman United 394 U.S. 174 [1969]), "[c]onferring standing because to raise vicarious necessarily Fourth Amendment claims would mean a widespread exclusionary more ing invocation of the rule dur may trials," Thus, criminal Id. at 137. Amos not "privacy security," assert Nelson's interest Boggess, 448, 115 Wis. 2d at 340 N.W.2d at of her question Rather, home. the critical here is whether persons subjected illegal gain 2Innocent searches no succor from exclusionary irrespective rule flagrant of how and outra geous violation, Oaks, the Fourth Amendment see 37 U. Chi. L. 736-739; Rev. at "Reparation" it them "rup offers no for their Linkletter, privacy." See tured 381 637. U.S. at police entry infringed into Nelson's home "has an inter- of designed est the Fourth Amendment was [Amos that] Rakas, is, protect," see at 439 U.S. whether entry his legitimate expectation pri- "invaded vacy," Payner, see United v. States 447 U.S. (1980) (emphasis in original).3

In expectation order for an of privacy to be "legiti- mate," there must be "more expecta- than a subjective Rakas, being tion of not discovered." 143 n. U.S. at 12. A person who is on the premises unlawfully searched "legitimate" has no expectation privacy in those ("A premises. Id. at 143-144 n. burglar plying his trade in a during may summer cabin the off have season thoroughly justified expectation privacy, but it is "). not one which the recognizes law as 'legitimate.' police home, When the entered Nelson's fugitive justice; lawfully from he was not in Nelson's Roy, 108, home. See United States v. 734 F.2d 110-111 (2d 1984). Indeed, any Cir. he lawfully could not be place escaped. but the institution from which he had Id. "legitimate expectation privacy" at 111. He had no home, Payner, Nelson's see 447 U.S. at and thus the exclusionary him see v. gives refuge, rule no Jones States, (1960) (The United U.S. exclusion who, ary may by rule not be asserted by "those virtue of wrongful presence, privacy their cannot invoke the of the searched."), premises grounds, overruled on other Salvucci, (1980) United States (rejecting v. 448 U.S. 83 Jones). standing the automatic rule in v. Wis Cf. Griffin consin, (1987) (A probationer legal 483 U.S. 868 custody Department of Health and Social Services is subject by probation to warrantless of his home search Rakas, analysis "standing" inquiry.

3Prior to this was a Rakas, 700, 710, 312 140; Fillyaw, 439 U.S. at State v. 104 Wis. 2d (1981), denied, (1982). N.W.2d cert. 455 U.S. 1026 pursuant officer department regulations found reason- Amendment.). able under Fourth The trial prop- court erly held that the exclusionary rule did not receipt bar the evidence seized in Nelson's home.

HHHH The majority's discussion of Chambers superflu- is ous. A analysis Chambers is appropriate only when a defendant's theory of stymied defense is by the mechan- application istic of a technical hearsay. rule of See 410 Here, U.S. at 302. as the majority recognizes, majority at 276, Livingston's testimony about what Amos' cellmate told Amos was not hearsay because it was not being introduced for the truth of its assertion. See Rule 908.01(3), Stats. Chambers is not material to our decision.

Case Details

Case Name: State v. Amos

Court Name: Court of Appeals of Wisconsin

Date Published: Nov 15, 1989

Citation: 450 N.W.2d 503

Docket Number: 88-2235-CR, 88-2236-CR

Court Abbreviation: Wis. Ct. App.