¶ 1. Ralph Davis appeals a judgment of conviction for possession of a firearm by a felon. Davis argues the search warrant for his home was invalid because it was based on an officer's prior warrantless entry into his home through an attached garage. The circuit court concluded the officer's warrantless entry was excused by the good faith exception, because the officer did not subjectively intend to enter the home or intend to search for evidence of any crime. The State abandons the good faith rationale on appeal. We conclude that the officer unreasonably invaded the home's curtilage when he entered the attached garage. We therefore reverse the judgment and direct the circuit court to suppress all evidence discovered during the initial warrantless entry or the subsequent search.
BACKGROUND
¶ 2. Davis filed a complaint alleging his property had been stolen by a forest service employee. In July 2008, deputy Jason Fischer and a forest service officer visited Davis's residence on State Highway 32 in Oconto County. Fischer gave Davis a statement form and said he would return the following day to collect it. The next day, Fischer and deputy Ryan Zahn returned to the residence to retrieve the statement form.
¶ 3. Davis's residence consists of a modified trailer home, with an attached foyer connecting to a two-car garage. The home's windowless front entry door opens to the foyer, which is approximately four to six feet wide and runs lengthwise alongside much of the trailer. All three components — the trailer, foyer, and garage — are sided with white panels, and they outwardly appear to constitute a single structure. Below, we include a photograph of the front of the home, with the garage on the left, foyer and entry door in the middle, and trailer on the right; and a close-up photograph of the door and entryway:
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¶ 5. Across from that doorway from the garage into the foyer was another doorway, leading into the trailer. Because the foyer was dark, Zahn shined his flashlight to light his way. He also shined it down the foyer to the front door, where Fisher was still knocking, and observed a rifle leaning against the wall. Zahn then reached the doorway leading into the trailer. At that point, Davis appeared. Zahn explained he was there to collect the statement,
¶ 6. After returning to the station that day, Zahn learned Davis had a felony conviction for failure to pay child support. A search warrant was obtained forty-nine days later, resulting in a search of Davis's home and seizure of multiple firearms.
¶ 7. Davis was charged with twelve counts of felony possession of a firearm, contrary to Wis. Stat. § 941.29(2)(a).
Zahn's entry into the open garage door to look for the defendant was legal. However, when the deputy entered the partitioned and enclosed porch area, it was part of the defendant's residence and the deputy did not have any authority to be there. Any evidence obtained as a result of that entry will be suppressed.
However, the court later granted the State's motion for reconsideration, concluding the good faith exception applied because "Zahn did not do anything intentionally or willfully wrong." The court observed:
[I have] seen all the diagrams, all the pictures, and to be honest with you, it's very difficult with those diagrams and those pictures and the testimony of both [Davis] and [Zahn] to really kind of figure out, if you've never been in there before, exactly where an open garage ends and the house actually begins.
Davis subsequently pled guilty to one count of possession of a firearm, with the remaining counts read in. Davis now appeals.
DISCUSSION
¶ 8. The Fourth Amendment to the United States Constitution and art. I, § 11 of the Wisconsin Constitution guarantee that persons shall be free from unreasonable searches and seizures. Whether a police officer's conduct violates the prohibition on unreasonable searches and seizures is a question of law we review without deference to the trial court. State v. Edgeberg,
¶ 9. The protections of the Fourth Amendment extend beyond the walls of the home to the "curtilage." Oliver v. United States,
¶ 10. Law enforcement is not, however, completely prohibited from entering the curtilage. See Edgeberg,
¶ 11. Here, Davis argues Zahn unreasonably entered the attached garage. Failing that, Davis further contends Zahn unreasonably entered the foyer.
¶ 12. We accept the parties' characterization of the attached garage as part of the home's curtilage. Indeed, aside from viewing it as the home itself, it is difficult to imagine a scenario where the typical attached garage could be considered not curtilage. See State v. Leutenegger,
¶ 13. While the parties agree the attached garage was curtilage, they propose different standards for determining whether Zahn's entry violated the Fourth Amendment. The State proposes the general Edgeberg test, which asks whether there is "implied permission to the public to enter." Edgeberg,
[I]n a particular case, a house and attached garage maybe situated such that entry through an open garage door to an "exterior" house door within the garage may appear to be the least intrusive means of establishing contact with an occupant. Under such circumstances, [police entry into] an attached garage might be [permissible] for the limited purpose of making contact with an occupant, similar to some porches.
Leutenegger,
¶ 14. We see no conflict between the Edgeberg and Leutenegger tests. Leutenegger effectively applies the Edgeberg test to the limited circumstance of an attached garage. As a general matter, it is unacceptable for a member of the public to enter a home's attached garage uninvited. We do not think this premise is subject to reasonable disagreement. This premise is true regardless whether an overhead or entry door is open.
¶ 15. Therefore, Zahn's warrantless entry into Davis's attached garage violated the Fourth Amendment under Edgeberg, and as the State concedes, the intrusion is not saved by the potential Leutenegger exception. There is no dispute that the front entry door appeared to be a less intrusive means of attempting contact. Moreover, even if we assumed, arguendo, that entry through the open door of an attached garage was generally permissible under Edgeberg, it was unreasonable for Zahn to proceed to the rear of the garage to a door that was not visible from outside. In fact, it was even more unreasonable because Zahn had to utilize a flashlight to find his way through the dark garage. Given these facts, no person could reasonably conclude that the open overhead garage door was an open invitation for the public to enter and make contact with Davis inside the home.
¶ 16. Because Zahn had no right to enter the garage, the plain view doctrine cannot apply to allow evidence of the firearm he later observed inside the foyer. See Edgeberg,
By the Court. — Judgment reversed and cause remanded with directions.
Notes
The State describes the foyer as a porch. While the actual term used is ultimately unimportant, we observe that in common parlance, porch would not typically refer to a windowless room with a windowless exterior door. Here, the foyer might also be described as a hallway or an enclosed breezeway.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
Davis also asserted the probable cause for the search warrant was stale. Although there was argument at the initial motion hearing, the court did not rule on the issue and Davis did not renew the argument. Davis does not raise the issue on appeal.
Where the issue is disputed:
[Cjurtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. .... [T]hese factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration — whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection.
United States v. Dunn,
Davis further argues that the good faith exception cannot apply. However, the State explicitly abandons that rationale in its response brief.
Leaving a garage door open might reduce the resident's privacy interest and permit plain view observations from outside the garage, but that is a matter distinct from physical intrusion.