*1 Wisconsin, Plaintiff-Respondent-Petitioner, State Fillyaw, Defendant-Appellant. Ronald
Supreme Court Argued No. October 7, 1981. 79-840-CR. 1, 1981. Decided December (Also reported 795.) in 312 N.W.2d *2 argued by Sally petitioner For L. the cause was attorney general, Wellman, assistant with whom on Follette, attorney general. Bronson C. La brief was and oral defendant-appellant was a brief For there Schairer, pub- argument by state E. senior assistant Jack lic defender. *3 of a
COFFEY, review decision is a J. This reversing judgment and order appeals court B. county, HAROLD HON. circuit court for Milwaukee Defendant-appellant Ronald JACKSON, JR., presiding.1 contrary first-degree murder, Fillyaw was convicted of claiming that the 940.01, appealed, Stats. sec. refusing suppress items various trial court erred of his allegedly in violation physical obtained evidence 1 this was Although appeals' that decision indicates the court judgment order, appeal the record a review of an from both a 4, order December In an dated demonstrates that this incorrect. appeal 1979, appeals from the court of the defendant’s dismissed denying post-conviction motions. The basis order appeal after the dismissal was the fact that the order was entered Upon perfection of the judgment from was filed. conviction jurisdiction appeal, sec. initial 974.02, lost to decide the the trial court Engel, Stats., v. 243 N.W. See: State Wis. motion. Jakubowski, (1937), 212 N.W.2d 61 Wis. 2d and State properly only Therefore, appeal an from this is judgment procedural inaccuracy not affect This does conviction. appeal. on issues raised rights refusing constitutional suppress and in state- allegedly by Fillyaw ments made without the benefit of warnings. his Miranda2 appeals reversed, The court of holding prejudicial error was committed the trial court when it admitted into evidence the bloodstains during found on the floor a warrantless search of the murder victim’s as the search and seizure were appellate unconstitutional. The court determined that standing challenge the search and thus held the search and seizure unconstitutional. February 2, 1977, a.m.,
On approximately 11:45 dispatched garage Officer Robert Drakos was to a investigate 1820 North 1st Street in Milwaukee to report body garage. that a dead had been found investigation Drakos’ confirmed that there awas dead lying body female on some cement blocks and rubbish garage. He summoned the Detective Bureau to in- vestigate. February p.m.
Sometime between noon and 12:30 on 2, 1977, securing garage area, while he Drakos was approached by Fillyaw stay- was who stated ing at 116-C East Vine and saw all the commotion Street going and wanted to find out what He was on.3 girl missing concerned because his friend was he was taking care of explain her children. He went on to girl he was at his p.m. friend’s mother’s house at about February 1, 1977, girl when he received a call from his friend, Jarrett, Wanona who lived at E. 116-C Vine Street, who asked him if he would come over and “watch *4 go her kids” because she wanted to out. Wanona Jarrett’s mother Fillyaw lived at 204 East Vine Street. further stated that he went over to watch the children and fell asleep before evening. she went out for the Arizona, Miranda v. 384 U.S. 436 only yards 116-C East Vine Street is located five to ten from garage. Fillyaw conversation, point this Drakos asked
At girl description Fill- his a friend. address and for yaw replied at this time that he lived at 204 East Vine stayed with Jarrett’s mother and sometimes 116-C gave girl description East He a of his friend Vine Street. wearing evening February and what she was description body fit found 1977. This and the clothes body garage. time, on found in At in- this Drakos Braun, present Blackburn at the formed Detectives and Fillyaw. scene, his with conversation Fillyaw approached Braun Detectives Blackburn and replied for a second where he and asked lived Fillyaw repeated the same then time at 204 East Vine. matching de- girl description his friend garage. then asked The detectives ceased found Fillyaw go Adminis- if with them to the Police he would regarding building they him tration could interview so girl acquaintances. Fill- his friend’s recent activities get yaw agreed go that he first wanted to but said babysitter girl baby upstairs left for his friend’s he had apartment. went and Braun Detectives Blackburn Fillyaw babysitter. with to wait for the Fillyaw baby. neighbor asked a to watch over Fillyaw arrived,
After the sitter went with the detec- Building tives to the 1:15 Police Administration about p.m. Fillyaw did not advise of his constitu- rights point they tional at this as testified that he was suspect custody not a or in at this time. gave
During Fillyaw as address the interview his girl stayed with East Vine and that he also stated continued, friend at As the interview 116-C East Vine. appeared be blood noticed what to them to detectives during spots Fillyaw’s It was coat shoes. he had interview that showed the officers a note just up written to with her after Wanona Jarrett to make argument. They cut an also noticed that questioned this, on his hand. about ex- When *5 plained finger glass cut he had his on earlier that day. February 2, p.m.
At Detectives about 2:45 on that the vic- Blackburn and Braun information received garage tim in the The officers received had been stabbed. they approximately had same time information questioned Fillyaw the cut his hand. noticed and about upon had been Based the information that the victim cut, Fillyaw’s stabbed hand was and the fact that therefore, Fillyaw suspicious and, officers became rights. After Detective Braun read him his constitutional being rights, Fillyaw repeated the advised of his Miranda concerning information his activities Wanona’s and own given previously approxi- At- which he had the officers. mately p.m., placed was under arrest time, again murder of Wanona Jarrett. At he was rights. being placed advised of Miranda under his After coat, arrest, Fillyaw’s gray Detective Braun took leather along person, placed with other items on his them police inventory. February 2, 1977, evening was
Later in the photographs taken to where the Bureau of Identification finger. injured trans- He then were taken of his ported County Hospital to have to Milwaukee General conveyed being finger Before laceration to his treated. hospital, Fillyaw a third time was advised for rights. hospital, a in the his constitutional While he was and, finger injured nurse asked how presence Sliwinski, Fillyaw responded of Detective finger that he had cut his with a knife. Detective Sliwin- question. ski After had not the nurse to ask this asked treated, the defendant’s cut Detective Sliwinski “give asked the defendant if he would us some blood sam- ples” Fillyaw agreed separate hospital A do so. prepared by hospital personnel consent form was request, signed by Fillyaw Detective Sliwinski’s *6 although presence the detective’s the did not consent form specifically taking state that the consent was for a blood sample. Detective not inform Sliwinski did right require police get he had a the a search war- right rant for the blood nor his to refuse consent. De- personally tective Sliwinski if he asked the defendant give sample” object. would “us blood and he did not police doctor also informed the defendant sample acquiesced. wanted a Further, blood and he Fill- yaw present sample was when the nurse turned the blood police over object to the detective and did not at that time either. was returned station and was
interrogated by Rea- James Mallette and Fred Detectives early morning B, February in horst 1977. Prior to interrogation, he advised was for a fourth time of his rights completeness constitutional and he denies the sufficiency warnings given of the Miranda time. Fillyaw, response questions to the officers’ advice and replied attorney that he did not an and he continued need questions. to answer the officers’ being At the time interviewed on February 2, 1977, afternoon of at the officers scene purse containing found the victim’s her identification garage. p.m. p.m. Somewhere between 1:30 February 2, being on 1977, the victim was identified as body Wanona Jarrett. After the victim’s was removed garage, County from the it was taken to the Milwaukee morgue medical examiner’s where Dr. Elaine Samuels having determined that Wanona Jarrett died after been strangled repeatedly investigation stabbed. The garage during area continued the afternoon Feb- ruary 2, During investigation, 1977. the officers nothing found indicating garage inside or outside of the struggle. approximately At p.m. afternoon, De- Douglas tective Paulos spotting discovered red blood step in the snow from the base of the first garage. East Vine Street address to the This led someplace detectives to believe that the murder occurred garage body other than and that car- then garage. ried into the spots leading
After the Vine blood to 116 East St. approximately February 2, p.m. discovered at investigation the detectives on the extended their scene apartment. Andewenter, Detective Andrew the offi- charge, cer in went to Jarrett’s Wanona investigation. baby- course of his He was let in during sitter with several other after- officers the late February 2, noon of All 1977. of the officers testified *7 investigation they nothing that as a result of their found apartment Fillyaw any to indicate that or other man pointed resided there. It should be out that none of apartment officers who entered Wanona’s on Febru- ary 2, 1977, present Fillyaw, day, were when earlier that “staying advised Officer apart- Drakos he was at the Further, investigation ment.” their substantiated their only belief that Wanona Jarrett and her children lived there. apartment, While Detective Paulos was in the belts, seized two one brown and one black. detective, p.m. February 2, 1977,
About 4 another Quosig, Alan dispatched was to the 116-C East Vine anything Street address to look for else' in victim’s apartment investigation. which would aid in the murder Quosig apartment When Detective at about entered the p.m. he observed several officers and relatives already present. Quosig victim apartment searched the ragtop mop, appeared seized a knife which to have meaty blade, substance on the a bath towel which appeared to have blood on it. pointed
It investigating should be out that the officers February 2, the scene of the crime on the afternoon of 1977, knowledge had no of the fact that the detectives police building suspicious administration had become placed had him under arrest about day.
p.m. February When left the victim’s flat on guard protect posted premises no or garage. area around the approximately p.m. day following,
At 2:30 Detec- tive phone Jackelen received a call from the victim’s mother, Peters, Rose who said she in the vic- had been suspected tim’s and had found what she were spots. blood Detective Jackelen went to Mrs. Peters’ home. accompany She invited Detective Jackelen to her apartment. apart- victim’s Mrs. Peters entered ment pointed spots door and suspected out the that she being as blood to Detective Jackelen. The detective then police photographer called a per- as well as crime lab sonnel. permission, photographs With Mrs. Peters’ portions taken and various of the floor tile were removed spots examination to determine if the were blood. Detective Jackelen did not have a search warrant. Al- though he testified that he was aware that been February 2, 1977, arrested on for the murder Jarrett, Wanona knowledge he testified that he had no any way was in “connected” to Wanona Jar- apartment. rett’s 10, 1977, Fillyaw charged
On March in a criminal *8 complaint first-degree with the crime of and murder causing the Jarrett, requested death of Wanona and preliminary hearing. hearing, After the the defendant first-degree was bound over for trial on the crime of prior trial, murder filed, among motions, and he other suppress: motions (1) the evidence seized from Wa- nona apartment February Jarrett’s 2, 1977; (2) on the apartment evidence seized from February 3, the same on 1977; (3) all statements police; obtained from him the (4) clothing person February 2, seized from his on 1977; (5) sample and taken from him. Exten- blood hearings regarding suppression sive items these hearings, After the held. the court issued order an denying request by all the motions. After a coun- defense sel, agreed findings the trial court to make and of fact explain reasoning authority conclusions of law to its Fillyaw’s for the motions, denial do the but failed to same. jury guilty trial,
After of first- was found degree Judgment Fillyaw was murder. was entered and imprisonment. appealed to life sentenced judgment appeals court of which conviction holding reversed, Jar- the search made of Wanona 1977, February 3, apartment rett’s on the seizure containing samples apartment floor from the tiles blood and, therefore, at that time were unconstitutional admis- samples sion of evidence made on of tests these blood holding prejudicial constituted error. to this Central appellate court’s determination that standing challenge the searches and seizures made apartment. Wanona Jarrett’s As the court found the admission of evidence derived from the search containing samples apart- seizure of floor from blood February premises ment on prejudi- constituted error, appeals cial the court of did not reach the remain- ing by Fillyaw. errors raised
Issues
1. standing legitimate Did the defendant have and a expectation apartment murder victim’s such challenge was entitled to search victim’s ? taking
2. Did defendant consent to the of the blood sample hospital February 2, ? refusing suppress
3. Did trial court err in both the statements made defendant at sta- *9 710 Mira/nda his was advised prior the time he
tion during search the custodial rights seized and the evidence ? time he was arrested at the made of the defendant Mallette Detective James in which the manner 4. Was February rights Miranda on of his the defendant advised so, err in 1977, inadequate and, the trial court if did defendant refusing suppress made statements rights even being in that manner advised of after those though he was advised the fourth occasion it was first-degree rights murder? crime of for the Standing Illinois, v. Court, Rakas Supreme
The United States ques- approach its (1981), refocused U.S. challenge the consti- person is entitled tion of when a view than tutionality Rather and seizure. search concept of traditional question falling within the as one analysis “the whether “standing,” its the court focused Amend- the Fourth challenged violated search and seizure to exclude rights who seeks criminal defendant ment of a ap- during This Id. at 140. it.” the evidence obtained recognition the fact proach upon based rights rights which personal are Fourth Amendment inquiry may Id. at 133. The not be another. asserted rights “re- personal violated as to whether these disputed quires search a determination whether the infringed the defendant and seizure on an interest of has designed protect.” which the Amendment was Fourth making determination, Id. at 140. In the relevant question to be answered is whether the defendant legitimate place. expectation privacy in the invaded Supreme As the Court noted a recent United States applying Rakas : decision Rakas, illegal only “In held that an vio this Court search rights legitimate expecta
lates the tion of of those who have ‘a id., place.’ Rakas, invaded Ct., DeForte, supra. S. 430. See also Mancusi Salvucci, U.S., 83, United States v.
711 Thus, determining Fillyaw whether is entitled challenge constitutionality sei- searches and zures apartment, made at must the victim’s one determine legitimate expectation privacy in whether he had of a apartment specific Wanona Jarrett’s at time that searches were trial made. Since the court failed to make findings Fillyaw’s sup- of fact when it denied motions to press, record, necessary it becomes for us to review the novo, appellate de as did the In court. the absence of such findings, independently this court will review the record to make its own determination of this See: issue. State Kraimer, 319, 306, 99 2dWis. 298 568 N.W.2d question party standing of whether a has chal- lenge constitutionality of a search and seizure based given upon question and, set facts of is a of law there- fore, on review this court need not defer either appellate trial court’s or the court’s determination of that issue. case, upon de review this
Based its own novo of standing appeals court concluded that challenge the searches of victim’s the murder stayed regularly slept as he there rather with and, victim; babysat ;4 he for the victim’s children often neighbor at stayed one least knew with the vic- there argues, however, tim.5 The state this conclusion as, among factors, appellate erroneous other court overemphasized subjective question of the defendant’s expectations ignored objective question more legitimate.6 expectations whether the defendant’s fact, Fillyaw In was the father one of the children. 5 Unpublished Appeals, Slip Op. decision the Court of at (December 1980). appeals in Rctkas The court of discussed summarized elements which are one has relevant to the determination of whether legitimate expectation note as is seen below. We summary may determining as it useful be to courts stand Jar- hearing, Peters, suppression Rose Wanona
theAt continually resided mother, testified that rett’s time East Vine before at at her home at fact, babysitting. murder, In daughter’s except when her death, she prior months to Wanona’s for two three Fill- Department money from received Welfare his all yaw’s received rent. testified that She also Vine, and received never at home at East mail her Fillyaw kept clothes apartment. atmail Wanona’s although there, slept frequently apartment and Peters’ *11 any Fillyaw paid stay never times he at Wanona’s. did rent, including apartment, at of bills Wanona’s appliances phone and or bill. The furniture utilities purchased and apartment were Wanona at Wanona’s no inspection knew after Mrs. testified she Peters belonging apartment item in the furniture or household Fillyaw. Fillyaw stayed at Wa- that Peters did state addition, night apartment nona’s the murder. In during January, and Peters months of December Fillyaw babysitting responsibilities for Wa- shared the apartment while nona’s children at Wanona’s Wanona vacationing city. out of hearing suppression Detective Paulos testified at the apartment on that when he searched Wanona Jarrett’s February 2, nothing that that he indicated .found Fillyaw there. lived ing point cases, although in other that defendants we out controlling
list elements is neither nor exclusive. property premises; “1. Whether one had a interest in the legitimately premises; (lawfully) “2. Whether one on the complete “3. one Whether had dominion control and the right others; to exclude person precautions customarily “4. Whether taken took seeking privacy; those put private property use; “5. Whether to some privacy “6. Whether claim is consistent with historical privacy.” notions of Fillyaw not Wanona Jarrett’s sister testified that did key any apartment have a to the and that time he wanted gain keys get entry apartment, he from return them to Wanona and her. hearing
Fillyaw suppression at the testified gave the address E. a of 204 Vine because it was condi- there, probation tion of his that he live but he was actu- ally living at 116-C with East Vine Wanona Jarrett and slept her children. He further victim’s stated he at the apartment babysitting, pay often but he while did not any rent and owned none of the therein. Fill- furniture yaw stated he had some and a clothes broken radio in apartment. gave (cid:127)closet He admitted that he Department Welfare address as 204 E. his Vine he also received mail there.
A testimony sup- presented review of all of the pression hearings demonstrates did legitimate expectation Jarrett’s Wanona respective at the time of the Fur- searches. ther, it should present be noted that was not the time of either of the if searches and we are to believe testimony all of the officers’ in contrast to that of Fill- yaw’s, the mere fact that had some clothes and *12 a broken apartment radio in the closet of the is of not give legitimate itself sufficient expectation him a of privacy in apartment. the Supreme As the United States Court noted in Rawlings its recent decision in v. Ken- tucky, 448 (1980) U.S. 98 : “Petitioner that, contends nevertheless because he ownership drugs claimed be entitled to of purse, in Cox’s he should challenge regardless the search of his ex-
pectation privacy. disagree. of petitioner’s We While ownership considered in drugs undoubtedly of the is be one fact case, emphatically rejected this Rakas concepts notion that property ought ‘arcane’ of law ability protections 149-150, control the to claim the of the Fourth U.S., Ct., Amendment. 439 See at n. S. U.S., Salvucci, 434, n. also United States 17. at See . Prior 90-91, 2552-2553. . . Ct., S. ante at ‘standing’ in given might
Rakas, petitioner have been drugs challenge would those a ‘search’ that netted such a case to merits. probably his claim on lost but merge inquiries whether Rakas, into one: the two After legitimate any expecta- governmental officials violated by petitioner.” Id. at 105-06. privacy held tion of regular of occupant was not a The fact that apart- property premises had no interest bills, bills, utility owned pay rent, ment, did food furniture, key apartment to the had no none of gained apartment only when Jarrett Wanona access there, to- gave key taken him to be him a and wanted any expectation privacy he gether, which diminish possessions on few from fact that he had a old infers nothing premises. Essentially, more part-time paramour and a than Wanona Jarrett babysitter expectation privacy His for her children. may relationship. have had a is limited While expectation privacy present while he limited apartment babysitting, question searches apartment. conducted while he was from the Fill- absent yaw freely premises voluntarily left after invit- ing acquainting the officers into them with apartment February 2, Thus, Fillyaw longer 1977. no any retained control or dominion over the might which he part-time babysitter. have asserted as a Too, presented the extent that the evidence some of hearings suppression might support subjective ex- pectation expecta- part Fillyaw, on the “legitimate” is not which tion one this court considers “society prepared recognize it nor is one that as Supreme reasonable.” As noted the United States v. Maryland, (1979) Smith Court 442 U.S. : Katz, uniformly “Consistently has held this Court with depends application Fourth Amendment *13 person invoking- protection on whether the claim its can ‘reasonable,’ ‘justifiable,’ ‘legitimate expectation a or a action, government privacy’ of that been has invaded inquiry, as Mr. Harlan This Justice [citations omitted]. aptly normally concurrence, noted Katz his embraces questions. two discrete The whether individ first is ual, expectation conduct, (subjective) his has an actual ‘exhibited privacy,’ U.S., whether, of at 361— majority, words of the Katz that the individual has shown preserve [something] ‘he private.’ Id., seeks to as at question 351. The second is whether the individual’s sub jective expectation privacy society pre of ‘one is is ’ pared recognize “reasonable,” id., as at 361—wheth er, in majority, the words Katz the individual’s ‘justifiable’ expectation, circumstances. U.S., objectively, viewed is under Id., Illinois, at 353. See Rakas v. 143-144, 12; id., ; at (concurring opinion) n. at 151 White, (plurality United States v. U.S., opin at 752 ion).” Mat 740-41. babysitter doWe not find it reasonable that a houseguest expectation would privacy have an of of con- magnitude stitutional in the home of Nor do another. we paramour find it reasonable for a whose access to the premises is at the whim expecta- of his lover to claim an privacy tion premises. in those Fillyaw paid fact that no rent and for public purposes all another claimed residence at only location adds claim his refutation his expectation “legitimate.” privacy Fillyaw, based on totality concerning facts and circumstances his alleged residency, rep- must held be to the more accurate resentations he made to a officers, number of department, probation others, welfare officers and during except investigation the crime it when was to his advantage to assert that lived elsewhere. therefore, hold, did not have a reason-
We expectation apart- able Wanona Jarrett’s expectation ment time it was nor an searched *14 716 recognize “society prepared to as reason-
privacy that is challenge the and, therefore, to he entitled able” is not constitutionality of those searches. of either necessary holding, fur- for us it is not
Because of our constitutionality the ther of either to examine the apartment. made searches of Wanona Jarrett’s Fillyaw light In is without of our determination standing challenge to the and thus not entitled constitu- question, tionality in we the seizures searches and analyze appeals not next the court did issues which dispose appeal. reach in order of this case on to Sample Blood failing
Fillyaw court claims trial erred suppress relating blood the evidence to the defendant’s type intelligent voluntary was con- because there no or taking sample sent blood Milwaukee County Hospital.
Although taking with a seizure of blood constitutes meaning Amendment, v. Schmerber of the Fourth Driver, ; 59 California, (1966) 384 State U.S. 35, 43, not (1973), a warrant Wis. 2d 207 N.W.2d freely required if for a or the defendant search seizure voluntarily to the and seizure. consents search Bustamonte, Schneckloth v. U.S. question a fact of whether consent search was in
“voluntary” question is a to be determined from totality of all the circumstances. Id. at 227. case, sample
In from was taken the blood shortly after his constitutional he had been advised of rights. of his cut It was taken after the treatment and the doctor and he asked the detective finished give police” sample if he blood “for the would acquiesced. presence Later, remained nurse and the nurse when the turned detective object to sample police. blood did over police request or officers’ the doctors’ for a blood sample giving for the nor nurse’s the blood sample Although Fillyaw officer. speci- was not fically give sample, told he could refuse to this fact is of question. Schneckloth, itself not determinative of the supra at 227. *15 significant “The fact all of decisions about these presence
that a of or of none turned on the absence them single controlling criterion; each reflected a careful scrutiny surrounding Mi of all the circumstances. See J., randa Arizona, (Harlan, v. 384 U.S. dissent ing) ; id., J., dissenting). (WHITE, In none 534-535 of them did the rule that the Process Court Due Clause required prosecution prove part of the as its initial right burden that the defendant he to refuse knew had questions to of the put. answer the that were While the state mind, police to to accused’s the and the failure of rights, certainly advise the accused of his factors assessing be cused’s determinative, ac evaluated ‘voluntariness’ of an the responses, they of were not themselves and v. Schneckloth [citations omitted].” supra Bustamonte, at 226-27. Fillyaw hearing suppression testified the thought sample the part was taken as the treatment finger. however, his testimony credibility, This lacks when Fillyaw initially it is considered that did not recall signing hospital all, the form at the the treatment of finger taken, was sample finished before the blood was day earlier the questioned same he had been as spots blood shoes, found on his coat and Detective Sliwin- specifically ski give Fillyaw asked if he would the blood sample and police told doctor that the wanted sample comply blood asked if he would with request acquiesced. and he light viewing totality
In these facts and surrounding sample, circumstances the blood we hold that taking voluntarily to the consented the blood which sample police under use. The conditions support sample conclusion that taken was being purposes sample taken for the knew that was investigation police consent and thus his sample properly requested taken. before volun- proving the defendant state has its burden of met convincing tarily by clear to the search consented 492-98, State, evidence. Gautreaux Wis. 2d N.W.2d analysis issue, reject part we as must As of our of this spurious Fillyaw’s nurse claim that statement regarding be manner in he cut which himself should being suppressed as fruit of an unconstitutional circumstance, any note, however, search. under We gratui- the statement was unsolicited way regarded In tous. no can it be as derived from taking sample. of the blood Pre-Arrest Interview and Search Custodial *16 refusing to argues that the court erred in trial suppress concerning the his and Wanona statements night made Jarrett’s the her death which he activities February police prior p.m. at the 2:45 station rights. He 1977 when he was of his Miranda advised illegal product contends that the are the of an statements custodial arrest and in of his were obtained violation rights. Fillyaw argues Miranda that not also it was error suppress during the evidence the custodial seized upon search his made arrest because this evidence alleged illegal the fruit of his detention. subjected reject Fillyaw’s that he was contention
We illegal to an the record demon- custodial arrest because Fillyaw voluntarily accompanied strates officers the reason to the and that he did station custody custody actually believe he was in nor was until time and waived Miranda the that he was read his rights prior arrest. holding Fillyaw voluntarily accompanied police
In participated subsequent station inter- to the view, rely we on the recent of the United decision States Supreme Mendenhall, Court United States U.S. approached The in that defendant case was by walking through law enforcement officers while an airport concourse because the her officers observed that unlawfully carry- persons conduct was characteristic ing briefly narcotics. After the defendant inter- officers, they viewed if asked she would accom- pany them airport. to their office in the defendant The although so did the record did not indicate verbal re- sponse request. arriving office, After defendant to a consented search and heroin was discov- person. arguing ered on her In evidence of heroin suppressed trial, should be the defendant con- tended that an unconstitutional person seizure of her occurred when the accompany officers invited her to them from the concourse law enforcement office. Supreme rejected argument Court because voluntarily evidence demonstrated that the defendant had accompany consented to office. In officers to the determining that the consent vol- defendant’s was indeed untary, following applied the Court test: question ac respondent’s “The consent to whether the company voluntary agents or was was in fact product coercion, implied, is to be express or duress or circumstances, totality determined Schneckloth v. of all U.S., and is Bustamonte, 412 prov matter which the has burden of Government ing.” Mendenhall, supra United States v. at 557. *17 applied The court to the evidence standard following manner and concluded that the defendant’s voluntary: consent was respondent the that evidence showed Government’s “The office, go was but to the had to
was not told that she There accompany the officers. simply if she would asked re- any of force. show nor neither threats briefly, ticket only her questioned and spondent had been was before she to her were returned and identification accompany the officers. asked to would argued hand, the incident that other it is “On the respondent, who reasonably appeared coercive high graduated from years been was old and had not respondent, additionally suggested the It school. unusually Negro, may threat have felt a female and a these officers, males. While by Were white ened who Busta irrelevant, see Schneckloth factors were not decisive, monte, they supra, at neither were adequate plainly totality to in of the evidence this case respon finding support the District Court’s accompany voluntarily the officers consented dent the DEA office.” Id. at 557-58. Applying the United States set out standard totality Supreme Court, of the circum- we that the hold Fillyaw case, support stances that in this the conclusion voluntarily accompany the officers to consented to police participate in interview. station and case, undisputed
In this who it is it was initially approached differs from the officers. This Mendenhall in situation United States v. which approached This fact defendant was the officers. indicates that between encounter coercive, officers was not the least unlike the situa- presented addition, tion in Mendenhall. in this case In agreed expressly accompany it is clear that in Mendenhall officers whereas the defendant did express her consent. Before the defendant taken police station, apart- he invited the officers into the baby- ment and waited with them he obtained a while voluntarily accompanied sitter then them building. Fillyaw administration was not in cus- tody, any way, handcuffed or restrained manner or *18 accompanied police form he when the officers to the station, place which an was a more convenient to hold interview. facts,
Besides these record demonstrates objectives gather police at in this time were any may concerning formation information he have hours, acquaint about deceased’s last friends prior ances. It clear is from this court that decisions of general questioning finding process in citizens the fact rights. Kraimer, is not a violation Miranda v. State supra 330; State, 109, 170 v. Britton 2d N.W.2d Wis. (1969) : “ hamper ‘Our decision not is intended tradi- police investigating tional function of in officers crime. See Escobedo v. Illinois. . . . in an individual When is custody probable cause, police may, course, seek out Such against evidence in the field be him. used at trial investigation may inquiry persons include not under questioning restraint. General on-the-scene toas surrounding general questioning a crime or other facts of our in fact-finding process citizens the It is not affected holding. responsible citizenship is an act of give they may individuals to whatever information to aid in law enforcement. In such the com- situations pelling atmosphere in-custody process inherent interrogation necessarily present.’ [emphasis not original]. Miranda, supra, pp. 477, 478.” State supra Kraimer, at 329-30. absolutely
There is no evidence that wished to prevented leave doing and was from Even so. when in- formed of rights, Fillyaw his constitutional waived them. light In of the facts discussed and the decision in United States v. Mendenhall, we conclude that volun- tarily consented to police the interview at the station. reason, For this subjected illegal to an cus- todial arrest. holding
Our voluntarily consented to initial compels interview at the station the conclu- rights during
sion that Miranda were not violated necessary they interview as were not in that he was not custody. at that time warnings required, however,
Miranda *19 Fillyaw subjected interroga- time that was to “custodial supra Miranda, Fillyaw subjected tion.” at 478-79. investigation police to “custodial time that began therefore, suspect and, no to consider him a would longer permit him to leave if he Detective desired to. Fillyaw Braun testified that he would allowed up leave the station until the man- time described the finger ner in which he cut his and he learned from other sources that the victim had been stabbed. Braun testi- regarding fied that the statement the manner in which finger just cut his was made before he advised rights. of his hold that We this conclusion supported by and, therefore, requirements the record Miranda were satisfied.
Our review of the evidence demonstrates that consented to police the initial interview at the station and properly rights advised of his Miranda at the time suspect he became subject and became the interrogation.” “custodial Therefore, we hold that trial court refusing did not err in suppress the state- by Fillyaw during ments made this initial interview. Fillyaw argues gathered subsequent the evidence police his initial interview at the be station should suppressed illegal because it is the fruit of an detention. Fillyaw’s rights Because we hold that constitutional were during interview, reject not violated the initial we Fillyaw’s arguments poisonous “fruit of the tree” as meritless.
Regarding Fillyaw’s claim that his coat and other illegally arrest, items were seized after his we note that clearly the seizure of these items was constitutional as a As we stated Warrix search after arrest. custodial 368, (1971) State, : 50 Wis. 2d N.W.2d “But, 2d (1965), 26 court in State v. Stevens Wis. this 451, 502, upheld search has a custodial N.W.2d safety ground the law enforcement person required of of for the on the it was prisoner officers and jail. operation of a Such efficient and administration re- custodial search a reasonable after arrest must bear purposes lationship, arrest, jail not to the but to custodial inventorying requirements and one of the custodial is the possessions belonging placing of in them to the accused and safekeeping during custody jail. If contraband process, or evidence or fruits of a crime are found discovery the Id. does not make the search unreasonable.” 376. Thus, inventory his coat and entitled shoes which had them. blood on Adequacy February Warnings Miranda *20 refusing in contends that the trial court erred suppress gave February to the statement he to Detectives the recital Mallette and Reahorst because interrogation warnings given prior of Miranda was inadequate they properly to did not alert right right prior stop his to counsel to to trial answering questions anytime. considering In this argument, we note that this was the fourth occasion on rights. which was Miranda informed of his Fill- yaw challenge adequacy any not did of Miranda warnings given on those earlier occasions. considering contention,
In that the exact we note wording warnings given by Mal- James Officer February early morning lette in the hours of testi- controverted at trial. Officer Mallette state Miranda, warnings to defend- fied that he recited the following ant in the manner: “Q. rights you specifically Mr. did advise Fill- What yaw charges. A. I of? first him of the advised He
charged possession with murder and of a controlled sub- stance. “Q. any response A. Did he make He he to that? said going knew that. Then I I to him advised him was ask questions right several to and that he had the remain completely him or questions silent and that all of I these asked right them, them, he had the all to answer some of my questions any questions none them. And he — answered and the could court. answers be used in right “He him he had to an [sic “I”] advised attorney present talking while I was him. I also told to him stated attorney go he could call an I to before talked him and charges when he did court if were issued against him, the pro- State of Wisconsin would have to attorney vide an him if couldn’t afford one.” Reahorst, however,
Officer testified that Officer Mal- lette following language reciting used the the Miranda rights Fillyaw. Rights “A. He advised him his Constitutional stat- ing Anything of Fillyaw, right to Mr. ‘You have a remain silent. you say against you will be held a court right attorney present law. You have a have an dur-
ing any questioning. you attorney, If an cannot afford one appointed you.’ will be stated, any ques- “He also ‘You do have to answer may answer, you tions. You can all answer of them you just or pick can some them.’ then we And asked him rights, if he understood these and he stated that he did.” warnings given adequate conclusion that the were supported by the record. assuming warnings given
Even as testi- that the *21 they fied Mallette, to Officer we hold that are suffi- rights. apprise Fillyaw cient to of his Our constitutional State, decision in v. Grennier Wis. 2d N.W.2d governs (1975) clearly compels this case and warnings conclusion that the were sufficient: warning the Miranda version of “The Oak Creek substantially contained the correct statement: but “ you way giving you lawyer if can- no ‘We you, you one, may appointed if not for but one be afford you go wish, if and when to court.’ argued by “It that the effect is the defendant that no counsel statement was to inform the defendant during interro- appointed for him the custodial could be gation. interpreted, incor- If admonition so stated it is is duty rect, repeatedly since we have it is interroga- provide attorney state to an custodial interrogation so, that, tion and may his unless the state does proceed expressly waives unless the defendant right went present. to have counsel The admonition right on, however, say the defendant had lawyer present had if that he remain silent and he had no right answering any stop questions time.’ ‘the warning “. . . find the Miranda administered at we We, constitutionally Oak station sufficient. Creek nevertheless, 213, Id. at do not commend its continued use.” 215. support to this our Reference decision is sufficient rejection Fillyaw’s arguments. Grennier, however, chal- note, do that as
We given lenged instructions after the defendant warnings constitutionally on several sufficient received rights prior are occasions. These recitals Miranda determining significant clearly a defendant whether rights. adequately has of his been informed constitutional necessary repeatedly It warn- is not recite the Miranda ings during investigation person an same for the require- satisfy same crime order to constitutional apprised rights. ment that defendant be of his adequately holding advised Our rights supported by recent deci his Miranda also Supreme Court in States sion of the United California In that Prysock, - U.S. -, 101 Ct. S. following language in ex the Court used decision *22 726
pressly holding warnings Miranda that can be constitu tionally adequate although warnings the form of given varies somewhat from that set out in the Miranda decision: ‘rigidity’ “This Court never has that indicated of precise Miranda extends to formulation the warn- of ings given a criminal . . . defendant. “Quite contrary, no itself that Miranda indicated satisfy required talismanic its stric- incantation was tures. The Court in that warn- case stated ‘[t]he ings required necessary and the waiver in accordance opinion today are, fully with our in the absence of equivalent, any prerequisites to the admission effective statement made 476, by a defendant.’ 384 at 86 S. U.S. Ct., original). 479, (emphasis id., at 1629 in at See also Ct., considering 86 Miranda S. 1630. last in when Just Term applied we noted that that decision announced procedural safeguards including ‘the Mi- now-familiar warnings equivalent.’
randa or ... their Island Rhode Innis, 1682, 1688, L. U.S. S. Ct. (1980) (emphasis original).” Ed. 2d Id. at 2809. hold, therefore, We trial court not err in did refusing suppress the statements made February 3, Detectives Mallette and Reahorst on 1977. appeal has been of this consideration merits significantly findings sup- hampered the absence of porting sup- the trial court’s denial of motions press. facilitating appeals In render- interest ing action, justice again parties to all to an we direct that findings the trial courts of this state make fact support conclusions of their law on mo- decisions suppress. tions to
Our compels review of the record case the con- challenge clusion not entitled to searches made of Wanona Jarrett’s because legitimate expectation did not have privacy either premises expectation the time or searched an recognize society prepared which as reason- *23 appeals Therefore, of the re- the court of able. decision versing prejudicial the to error is reversed trial court due judgment trial court’s is reinstated. and the By appeals is the of the Court. —The decision court judgment of trial reversed and the the court affirmed. ABRAHAMSON, (concurring). I J. SHIRLEY S. separately express write to I the concerns have with deciding majority’s the issue of the fourth amendment expectation from defendant’s “reasonable of freedom governmental remanding to intrusion” without the cause findings the circuit court of fact and conclusions law. cir- denying suppress, the to
In the motion defendant’s findings con- fact or cuit court failed make either majority render deci- of law. clusions Thus for the the this either sion on record it must conclude dispute, and the lack material facts are in as such not findings though irrelevant, are even the facts or that dispute find facts and draw in this court can itself the necessary from It is unclear the therefrom. inferences majority majority opinion considers that whether in or drawn are dis- the facts inferences to be therefrom pute majority un- or whether considers the facts disputed. findings, there were no court has held that where
This upon findings inadequate, and an issue were or where finding appears the record is no from there which may circuit appellate exist, court assume support its in in favor or determined the issue court Jensen, 11 Wis. 2d Sohns decision. this case helpful is not Sohns
N.W.2d rationale to set the circuit court failed forth because deny suppress. the motion for its decision might decided that the defend- circuit court have “standing,” the search was reasonable. but that ant had disputes This court would then resolve factual in favor standing against on the defendant issue and defendant on the reasonableness issue. Or the circuit might court had no concluded defendant standing might never have reached the reasonable- ness issue. In this event this court would resolve factual against disputes standing the defendant on the issue. dispute case, If there is a factual Sohns appellate rule that court can assume that facts support decided the circuit court of that applicable court’s decision is not because we do not know the decision of the circuit court. We do not know whether the circuit court suppress denied the motion to because it challenged concluded that search and seizure did infringe any rights or interests of the defendant *24 protected by which were the fourth or amendment be- cause it challenged concluded that the search and seizure did violate the fourth amendment.
If dispute case, there is a in factual Wurtz play. rule comes into In v. Fleischman, Wurtz 2d 97 Wis. 100, 108, (1980), 155 N.W.2d this court that said dispute when the facts are in and the circuit has court findings made no inadequate findings or has made “the only appropriate appellate course” for an court “is to necessary remand the cause to the court trial for the findings.” again
This case court illustrates the circuit unless findings law, states its of fact and of mean- conclusions ingful appellate urge hampered. review is I therefore findings circuit courts set forth their of fact con- deciding clusions of law in suppress. motions to majority Since the does not remand the cause findings, circuit majority court 1 conclude that must mean i.e., facts, place, what took the historical physical therefrom, facts factual inferences undisputed. are majority’s Thus novo de of review undisputed have the record must been to determine the facts.
If facts are undis- I assume for the moment law, i.e., facing puted, question one this court is of significance legal the facts. To state what is the of question constitu- way, do the facts fulfill another DILHR, 2d Nottleson v. 94 Wis. tional standard. 115-116, N.W.2d whether determine
The must court this case legiti- gives rise a totality that it of the facts is such defend- part of the expectation on the mate reasonable or governmental intru- privacy, from ant to i.e. to free be Illinois, (1981). The ma- sion. Rakas v. 439 U.S. Supreme jority Court opinion States of United privacy expectation legitimate Rakas neither defined specifically nor which are determinative listed the factors privacy asserted the reasonableness of the defendant’s say however, did, expectations. majority Rakas The legitimate privacy “more expectation of means that a being subjective expectation than of not discovered.” “legiti- majority explained that the in Rakas further by macy expectations privacy law must Amendment, either ref- source outside of the Fourth concepts personal property of real or law or erence understandings recognized permitted that are law, regard society.” concepts property In majority “expectations pro- Rakas said that by the . . . be based tected Fourth Amendment need not *25 personal property,” on real or common-law interest altogether “the not of but that Court has abandoned use determining property concepts presence or absence privacy protected that Amendment.” interests regard understandings 144, at n. 12. In to “the U.S. recognized by society,” permitted the Rakas are and majority did not tell us how determine we these under- standings. every-
Admittedly, the determinations of what are the
day expectations
privacy
and what
of
which we all share
easy
expectations
The
facts fit these
are
to make.
majority,
dissenting
concurring,
opinions
of
acknowledge
Supreme
United
States
Rakas
Court
provide
Rakas
test “will not
law
offi-
enforcement
bright
protected
cials with a
line
between
unprotected.”
Illinois,
168;
Rakas
see also
U.S.
144-148,
majority
Fortunately
majority
regards
six
lists
elements it
helpful
as
and relevant to the determination of what are
legitimate expectations
origi-
privacy.2
This list was
1While Rakas
upon
and the Fourth
Amendment
which it
protection
based determine the minimal constitutional
that state
defendants,
courts
could,
must afford
this court
the Wis
under
Constitution,
I,
consin
Art.
sec.
formulate its own standards
determining
standing
when
challenge
a defendant has
Alston,
(N.J. 10/21/81),
search. See State v.
30 Cr.
L.
Jersey Supreme
where the New
Court refused to follow Rakas
progeny,
Salvucci,
and its
(1980),
United States v.
731 reading nally appeals by from its compiled the court of opinions concurring in Rakas. Un- majority and of the appeals fortunately, opinion of the neither the court majority explicitly analyzes the facts nor that of opin- I this elements. read both case terms these six concluding ions, implicitly however, that the defendant as satisfy 2, 4, 6 5 and and failed to satisfied elements by Thus first the different result reached element. majority appeals apparently court and the turns on meaning third element whether the facts satisfy “had the third element —whether the defendant complete right dominion and control and the to exclude others.”3 majority and
Initially it should be noted that interpreting the appeals appear to be court of do not appear conclude differently. They both third element mean that there be read that this third element cannot privacy legitimate unless the expectation of can no be asserting only person who person expectation is the premises. complete has control dominion and over (1960) States, 257 makes that Jones v. United 362 U.S. may determining summary it the stand- as be to courts useful ing cases, although point out that of defendants other we controlling list of elements is neither nor exclusive. property premises; “1. one had a interest Whether premises; legitimately (lawfully) “2. one is Whether complete “3. control and the Whether one had dominion and right ; to exclude others person precautions customarily taken “4. Whether took seeking privacy; those use; put private property some “5. Whether “6. Whether claim of consistent with historical privacy.” notions appeals This element was derived the court of from Jones States, v. United of Rawl U.S. 267 For a discussion ings Kentucky, (1980), right U.S. exclude LaFave, Seizure, others, 11.3, pp. see Search 111-15 sec. (1981 Supp.). *27 clear. In legiti- Jones the defendant was held to have a expectation mate apartment in a friend’s key. which he had a Jones’ control was dominion.and tenant, with shared friend. search When present conducted premises. Jones was on the on Based Supreme these facts the United States Court concluded that complete Jones had dominion and control. Since Jones specifically the Court has not commented what by “complete it means control and dominion.” comparison A majority opinion of the with that of appeals court of reveals opinions that the authors of the have drawn different factual inferences from the testi- mony applied and have the third element to different “findings” of fact. appeals
The court of has inferred from the record that stayed regularly; apartment the defendant at the victim’s although that apartment it is not clear that the victim’s regular home, was the defendant’s the defendant used apartment frequency; with some and that the defendant apartment could exercise over control ex- and could apartment. clude others from findings On these appeals fact the court concluded that the defendant complete dominion and control and on the basis all the facts and appeals circumstances the court of con- standing. cluded that the defendant had majority on the other hand infers that the defend- regular occupant premises” ant “was not a of the and “only gained apartment access to the when Wanona Jar- gave key rett him a wanted him to be there.” Su- pra, p. Implicit majority’s 714. inference is the finding locked; apartment kept by defendant’s access to the was restricted possession only key; victim’s the defendant spent apartment only time in the when allowed to do so by by victim; only the victim and on terms set apart- that the access defendant’s to and control over the present ment was with limited to when he was the vic- findings babysitter tim’s consent as a or lover. On these maj ority of fact the concludes that the defendant did complete dominion and control and on the basis of majority all the facts and circumstances concludes standing. that the defendant did not have record, I have read the and I conclude that neither the appeals inferences drawn the court of nor those drawn majority against great weight are clear preponderance Having of the evidence. reached this con- clusion I must further conclude that neither this court nor appeals the court of *28 appropriate is the tribunal draw these inferences so essential to a decision in this case. These factual inferences must be made the cir- cuit testimony, court which heard the saw the witnesses credibility. and evaluated their I would therefore remand findings the matter to the trial court to make of fact and conclusions of law. express my
I wish to also concerns about several other arising matters in this case. mean
First,
majority opinion
be read to
should not
apartment was not defendant’s
that because the victim’s
regular,
home,
primary
or
the defendant could
usual
expectation
apartment.
privacy
of
in the
no reasonable
dwelling
person
A
can have more than one
and a reason
dwelling.
expectation
per
privacy
of
Also a
able
each
expectation
privacy
a
can
of
son
have a reasonable
dwelling.
person’s privacy
place
A
other than his own
States,
protected
room,
v.
can be
in a hotel
United
faHof
DeForte,
(1966) ;
hall,
union
Mancusi v.
Second, majority opinion not be read should expectation mean that the defendant had no reasonable privacy apartment because he and the victim used the only private purposes for a illicit as residence but for private purposes. It is clear from the record that apartment private pur- defendant used the victim’s poses. slept apartment He in the with victim children, often took care of her which included a child Although majority his own. concluded that the de- legitimate expectation fendant did not have privacy a searched, at the time it was ma- jority acknowledge does the defendant’s activities give expectation did rise to a limited at cer- Supra, p. tain times. 714. express
I majority’s final concern over the failure to explain adequately why legitimate if the defendant *29 expectation privacy apartment times, of in the at certain expéctation privacy of did not exist at the time of the question. majority acknowledges searches in The expectation defendant “a privacy limited of while present babysitting.” he was Supra, p. 714. defend- The babysitting morning ant had been of the murder and day later into the apartment when he left the to be inter- police. majority viewed apparently concludes without discussion or elaboration that either the defend- expectation privacy babysitter ant’s of as ended when found someone else to watch the children while he went expectation with the or that his by general violated search in contrast personal to a search of his effects. These are two differ- holdings, majority ent and it is unclear which one the adopts. clarity may majority’s opinion The lack findings be to the lack attributable the cir- fact cuit court. forth,
For the reasons set I concur court appeals decision should be reversed.