¶ 1. Anthony D. Guard appeals a judgment of conviction after pleading guilty to one count of being a felon in possession of a firearm and one count of cocaine possession with the intent to deliver. Guard argues that the trial court erred in denying his motion to suppress evidence because evidence against him was obtained by a warrantless entry, without exigent circumstances, without consent to enter his duplex, and without plain view of criminal activity prior to the warrantless entry. Because we conclude that evidence against Guard was obtained as a result of an unlawful warrantless entry, we reverse the trial court and remand for further proceedings.
¶ 2. According to testimony from Guard's suppression hearing, Police Officers Ryan DeWitt and Eric Rom went to the duplex located at 2432 N. 35th Street in Milwaukee on June 17, 2009, in response to a dispatch about armed drug dealing. Rom testified that a complaint had been called in to Milwaukee police naming Guard as the suspected armed dealer at the duplex. Rom testified that upon approaching the duplex, he saw two women sitting on the front porch with the front door open:
[Rom]: As we approach the house, I believe it was two women sitting on the front porch with their front door open.
Right away I'm like "How are you doing? Is there an Anthony here?"
And they're like, "Anthony?"
I'm like, 'Yeah. We got sent here for an Anthony. Is there an Anthony here?"
And she's like, "No, it's just us. You probably want the back door," and reaches back and just kind of points over her head.
[Prosecutor]: What did you do after she did that?
[Rom]: Well, first like I thought there was only one door. I was like, "Where is the door?"
She's like, "Oh, it's around back. You can use the hallway there."
So we proceed to walk towards the side of the house.
On cross-examination, Rom testified as follows:
[Defense counsel]: You talked to that woman on the front steps. Did you ever find out if she lived in that apartment?
[Rom]: I actually talked to two women—
[Defense counsel]: Did you find out if either one of them-
[Rom]: I know initially one of them said she lived there. I'm not sure if the other one did, or not.
[Defense counsel]: After all this was done, was there any further disсussion or talk with these women [from the front step]?
[Rom]: ... Honestly, no[.]
Rom's testimony does not establish whether the woman who directed him to the side entrance is the woman who claimed to be a resident of the duplex. DeWitt testified that he did not speak to the women at all and was unsure of the conversation between Rom and the women. Neither woman testified at the hearing.
¶ 3. While approaching the side of the house, the officers encountered three individuals who had exited from the side entrance. Rom testified that the officers stopped the three individuals because they had "a cloud of smoke around [them]. You could just seе it and you could just smell all the odor of burnt marijuana from these three individuals ... as they're walking out the door." After the officers asked the individuals whether any of them was Anthony — they all responded "[n]o"— and whether any of them had weapons in their possession, the individuals consented to a search. The officers patted the individuals down. Nothing was found during the pat downs. A third dispatched officer stayed with the individuals as DeWitt and Rom then proceeded to the side entrance, the only entrance for the upper unit.
¶ 4. Both officers testified that they could smell burnt marijuana outside of the duplex as they approached the side entrance. DeWitt testified that the side entrance consisted of two doors — a solid interior door and a security door with metal bars in front of the interior door. The metal bars extended over the entire length of the interior door. Dewitt further testified
¶ 5. The officers opened the closed security door, further opened the interior door, and entered the back hallway of the duplex. The hallway connected both the upper and lower units with the basement. DeWitt went into the basement. He stated that "[i]t was clear that that wasn't the point where the marijuana smoke was coming from." He tried to open the door to the lower unit of the duplex, which was locked.
¶ 6. The officers then went up the stairs to the upper unit. DeWitt stated that the staircase leading to the upper unit "[wound] around," and that the marijuana odor got stronger as the officers went up the stairs. He further stated that the officers continued to hear a "party ruckus" as they proceeded up the stairs. Rom stated that the occupants of the upper unit were probably unaware of police presence "because it sounded like normal conversation. The tone didn't change from like normal conversation .... It continued actually as we werе going up the stairs." Upon reaching the landing, the officers saw that the door to the upper unit was fully open. Four people were seated around a kitchen table, with Guard seated closest to the door.
¶ 7. DeWitt entered the unit first. He saw Guard holding a marijuana cigarette and two green "gem packs"
¶ 8. Guard was taken into custody. DeWitt found twenty suspected corner cuts of cocaine while patting Guard down. Guard was subsequently charged with possession of a firearm by a felon and possession of cocaine with intent to deliver. Guard filed a motion to suppress all evidence obtained as a result of the officers' warrantless entry into the duplex. The trial court denied the motion, finding the officers' warrantless entry reasonable "under all the circumstances." Specifically, the trial court made findings as to the nature of the back hallway, whether the officers had consent to enter the duplex, and whether the officers had probable cause to enter the duplex without a warrant.
¶ 9. Regarding the back hallway, the trial court stated: "that certainly is a common hallway. It is not exclusive to any resident. There was an access to the common basement. There was access to the first floor. There was access to the second floor apartment; and so that is a common hallway." The trial court also found that the side entrance to the duplex had both a closed security door and a solid interior door, the latter of which was open enough
¶ 10. Regarding whether the officers had consent to enter the back hallway, the court said:
And the women outside on the porch didn't know an Anthony and pointed to go around to the back . .. they kind of pointed back and up to other tenants.
[T]he fact that it was a common hallway [,] if there was any consent, certainly I think the action of the women on the front porch could be interpreted as consent.
I think it [is] reasonable to conclude they said, "Go ahead, go in the back. That is where you would find the upper apartment,"[2 ] and since this is a common hallway, they would have []the ability to consent also.
¶ 11. The trial court also found that probable cause existed to allow the officers to enter the duplex, stating:
[T]hey had already confronted the women on the front porch and knew that the subject of their complaint was not in that location.
They had encountered three individuals who had come out of that door who had a strong odor of marijuana who said they had been smoking ....
1 think they had probable cause to enter to follow that and to follow both the dispatch and to follow the odor that they smelled.
¶ 12. Guard pled guilty to the charges. He was sentenced to three years of initial confinement and four years of extended supervision on each count, concurrent with each other but consecutive to any other sentence. This appeal follows pursuant to Wis. Stat. § 971.31(10) (2009-10) (motion to suppress may be challenged on appeal after entering guilty plea).
¶ 13. On appeal, Guard argues that the police were not authorized to enter the duplex because he had a reasonable expectation of privacy in the only entrance to his dwelling. He also argues that the officers entered the hallway without a search warrant, without consent to enter the building, and without exigent circumstances. The State responds that Guаrd did not have a reasonable expectation of privacy in the common area of the duplex, thus permitting police entry regardless of whether police had a warrant. The State also contends that the officers had valid third-party consent to enter the hallway from the woman on the porch. Once inside, the State contends that exigent circumstances (the plain view of contraband and a weapon from the top of the stairs) justified the warrantless entry into the upper unit of the duplex.
STANDARD OF REVIEW
¶ 14. "When we review a [trial] court's ruling on a motion to suppress
DISCUSSION
¶ 15. It is undisputed that Rom and DeWitt did not have search warrants prior to entering the only entrance to Guard's unit. Consequently, the State had the burden of proving an exception to the warrant requirement at the time the police opened the exterior security door and entered the back hallway. See Smiter,
A. Reasonable Expectation of Privacy.
¶ 16. In order for the Fourth Amendment's warrant requirement to apply, the defendant must first have a reasonable expectation of privacy in the prоperty or location. See State v. Rewolinski,
¶ 17. "[A] criminal defendant bears the burdеn of establishing both that he manifested a subjective expectation of privacy that was invaded by government action and that that expectation was legitimate. The burden of proof applicable is by a preponderance of the credible evidence." Rewolinski,
(1) whether the defendant had a proрerty interest in the premises; (2) whether he was legitimately (lawfully) on the premises; (3) whether he had complete dominion and control and the right to exclude others; (4) whether he took precautions customarily taken by those seeking privacy; (5) whether he put the property to some private use; and (6)whether the claim of privacy is consistent with historical notions of privacy.
Id. at 17-18 (parenthesis in Rewolinski). "This list of factors is neither controlling nor exclusive. Rather, the totality of the circumstances is the controlling standard." State v. Thompson,
¶ 18. Applying those relevant factors, the facts in the record establish that: (1) Guard, as a resident of the duplex, had a property interest in the premises; (2) Guard was lawfully in the duplex; (3) Guard, as a resident, had the same right as other residents to control access to his dwelling;
¶ 19. The doors also manifest a reasonable precaution of privacy. The reasonable precaution of a closed exterior security door, and its evidence of an expectation of privacy, is not negated by the fact that the interior entrance door happened to be open a few inches. An opening of four or five inches between an interior solid door and an exterior barred security door hardly creates an open invitation of "unfettered access" tо the general public. See Trecroci,
¶ 20. Further, Guard put the duplex unit to private use as his dwelling. At the time of these events, he was involved in a social encounter. His possible use of the premises for an illicit commercial enterprise does not necessarily trump an otherwise legitimate expectation of privacy. In Trecroci, we discussed the defendant's expectation of privacy in a locked attic used for the illegal growing оf marijuana. See id., ¶ 42. We held that parties involved in a commercial enterprise — even an illicit one — may have a reasonable expectation of privacy subject to Fourth Amendment protection. See id. ("The commercial use of a property reduces, but does not eliminate, the expectation of privacy.").
¶ 21. Finally, the demonstrated assertion of control of physical access to entry to Guard's dwelling is consistent with historical notions of privacy. Regardless of
¶ 22. Under all the circumstances present here, considering particularly the relevant factors identified in Rewolinski, we conclude that Guard had a reasonable expectation of privacy not merely in his unit, but also in the only entrance to his unit, which was the back hallway. Consequently, in the аbsence of consent to the entry or exigent circumstances, the warrantless entry by the police into that back hallway was a violation of Guard's rights under the Fourth Amendment of the United States Constitution and article I, section 11 of the Wisconsin Constitution.
B. Consent.
¶ 23. Once a reasonable expectation of privacy has been established by the defendant, a warrant is required to justify a search, unless the State can establish a recognized exception to the warrant requirement. See State v. Payano-Roman,
¶ 24. The authority to consent to search does not depend on legal property rights, but rather on the "consenting individual's relationship to the premises to be searched." Id. at 542. The authority " 'rests ... on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.' "Id. (citation omitted). Determining whether police had consent to enter is measured by an objective standard: " 'would the facts available to the officer at the moment. . . warrant a (person) of reasonable caution in the belief that the consenting party had authority over the premises?'" Id. (citation omitted; ellipses and parentheses in Kieffer).
¶ 25. Rom admitted that he was unsure whether both women on the porch resided at the duplex and that no further conversation took place with them after Rom was directed to the side entrance. DeWitt neither spoke with the women, nor heard the conversation between Rom and the women. The officers did not ask either woman her name, nor did they make evеn minimal efforts to verify that one of the women was, in fact, a resident of the duplex. Nor does the record establish that the woman who may have lived in the duplex is the same person who said the door to the upper unit was "around back," and the officers could "use the hallway there." The record does not establish that
¶ 26. Nor does the record support the trial court's conclusion that the woman had the authority to consent to the search because the stairs leаding to the upper unit were contiguous with a stairway to the basement shared with the lower unit, making the entire stairway "a common stairway."
¶ 27. There is no evidence in the record before us that the woman actually used either the side entrance or the back stairs. The side entrance provided access to the back stairs, according to the record beforе us, which was the only means of access to the upper unit. The side entrance, as we have discussed, was actually two doors — a solid interior door and a full-size exterior security door with metal bars. There is no evidence in the record that the woman providing directions to the side entrance had a key to those doors, or that she ever used those doors to access the basement, much less to access the upper unit or the first-floor unit. The State has not established on this record by clear and convincing evidence that the woman who gave the police information about the back stairs as the way to access the upper unit also had the authority to consent to police entry to the only means of access to that upper unit. See Trecroci,
¶ 28. "The United States Supreme Court has recognized that even if a third party lacks actual common authority to consent to a search of the defendant's residence, police may rely upon the third party's apparent common authority to do so, if that reliance is reasonable." Kieffer,
[I said to the woman] "[w]e got sent here for an Anthony. Is there an Anthony here?"
And she's like, "No, it's just us. You probably want the bаck door," and reaches back and just kind of points over her head.
Well, first like I thought there was only one door. I was like, "Where is the door?"
She's like, "Oh, it's around back. You can use the hallway there."
So we proceed to walk towards the side of the house.
¶ 29. We conclude that the record does not establish by clear and convincing evidence that the information known to the officers about the women at the time the officers moved toward the side entrance supports an objective reasonable belief that the unidentified woman, who may or may not have lived in the duplex, had the apparent authority to give permission to enter the duplex.
C. Probable Cause and Exigent Circumstances.
¶ 30. Wisconsin and thе United States Supreme Court "have recognized exceptions to the warrant requirement where the government can show both probable cause and exigent circumstances that overcome the individual's right to be free from government interference." Hughes,
¶ 31. The State relies on the second and third types of exigent circumstances, arguing that when the officers were at the top of the stairs to the upper unit, their plain view of a weapon and drugs demonstrated exigent circumstances because Guard had easy access to a gun, which posed a threat to the safety of police and others, and because the drugs observed could be destroyed easily.
¶ 32. We assume without deciding that the combination of the information in the dispatch, the burnt marijuana odor emanating from the duplex, and the encounter with the three individuals who had admitted to smoking marijuana, combine to constitute probable cause to enter the duplex. However, prior to entering the duplex and going up the only access way to the upper unit, there were no exigent circumstances. Both probable cause and exigent circumstances are necessary for a warrantless entry. See Garrett,
¶ 33. The record demonstrates no exigent circumstances at the time the officers opened the closed security door, pushed the interior door open beyond the four or five inch opening thаt existed, and entered the back hallway. The officers were not in "hot pursuit" of anyone. Nothing in the record suggests that the three individuals the officers encountered outside of the duplex had any connection to Guard. In fact, the officers did not believe the individuals presented a threat to their safety. Rom
¶ 34. There is no evidence in this record that Guard or his companions were aware of police presence when the officers opened the closed security door, when they explored the basement, when they checked the door to the first floor, or when they climbed the stairs. Both officers testified that Guard and his companions seemed unaware of police presence until the officers actually entered the upper unit and announced themselves. DeWitt testified that he heard loud voices and conversation while he and Rom were outside of the duplex, that he could continue to hear the "party ruckus" while procеeding up the stairs, and that Guard and his companions looked "pretty shocked" upon seeing the officers. Rom testified that he could hear "people having fun, a little laughter ... [and] conversation" before entering the duplex, that "[i]t continued... as we were going up the steps," and that this "normal conversation" led him to believe that none of the occupants of the upper unit were aware of police presence. He further stated that Guard and the other occupants appeared "startled" when the officers announced themselves. The record establishes by clear and convincing evidence that the occupants of the upper unit were unaware of the officers' presence, and that neither a reasonable perception of a threat to the officers' safety, nor a reasonable concern about the destruction of evidence, existed until the officers actually reached the top of the stairs leading to the upper unit and announced themselves.
¶ 35. Neither officer claims to have seen either weapons or contraband in the duplex before they reached the top of the stairs leading to the upper unit. The officers were not even certain that Guard was in the upper unit of the duplex, thus could hardly have been concerned that he might flee. Thus, the State has not established exigent circumstances that excuse the need for a warrant at the time the police opened the security door and entered the back hallway.
¶ 36. We agree with the State that by the time the officers reached the upstairs landing and were outside of Guard's unit, what they saw in plain view (a weapon and contraband) constituted exigent circumstances which justified a warrantless search at that point in time. However, those exigent circumstances were solely the result of the officers' earlier warrantless entry into the duplex through the side entrance. That entry was their intentional act. The record does not establish by clear and convincing evidence that a person with authority— actual or apparent — consented to police entry into the duplex. The record does not provide any reason why police, who had control of the only means of entry or exit from the upper unit, could not have obtained a warrant.
CONCLUSION
¶ 37. For all the foregoing reasons, we reverse the judgment of conviction and remand for further proceedings consistent with this opinion.
Judgment reversed and cause remanded for further proceedings.
Notes
Gem packs "are small translucent. . . plastic bags used to package cocaine base." See United States v. Robinson,
We have searched the record and find no evidence that either woman ever said, "Go ahead, go in the back. That is where you will find the upper apartment!.]" The only evidence of what was said is Rom's testimony. Consequently, the trial court's conclusion as to the specific statement is not supported by the record.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
We agree with the State to this extent: If the police had a right to be in the back hall, they encountered exigent circumstances when they discovered, in plain view inside Guard's dwelling, illegal activity (the consumption of marijuana), probable contraband (the packets they believed contained marijuana) and a weapon within Guard's reach. The issue in this appeal, however, is whether the officers had a right to enter the building and thus to be in the back hall.
There is evidence Guard lived in the duplex unit with his girlfriend and her cousin. This does not impact the analysis of Guard's Fourth Amendment rights or whether he had a reasonable expectation of privacy in the only entrance to the upper unit.
See State v. Rutzinski,
The trial court concluded with respect to the back entrance and related stairs: "It is not exclusive to any resident. There was an access to the common basement. There was access to the first floor. There was access to the second floor apartment; and so that is a common hallway." The trial court made no findings relative to the use to which the area was actually put.