State v. Martwick

Plаintiff-Respondent-Petitioner, Wisconsin, State Defendant-Appellant. Thomas Martwick, G. Supreme Court argument September No. 98-0101-CR. Oral January 1999. Decided 2000 WI 5 (Also 552.) reported in 604 N.W.2d plaintiff-respondent-petitioner For the the cause by argued Marguerite Moeller, was M. attor- assistant ney general, with whom on the briefs was James E. attorney Doyle, general. by defendant-appellant there was a brief

For the S.C., Law Office, P. and Rusch & Rusch Robert Rusch by argument P. and oral Robert Rusch. Medford CROOKS, state, The PATRICK J. as N. unpublished petitioner, of decision of seeks review an appeals, Martwick, court State v. No. 98-0101- of (Ct. 1998), July unpublished slip op. App. 21, judgment. CR, County Court reversed a Price Circuit which court, Honorable Patrick J. Madden The circuit respondent, presiding, Thomas G. convicted (hereinafter Martwick), manufacturing Martwick 961.41(1)(h)1 (1995-96).1 contrary § THC, Stat. to Wis. appeals holding reversed, circuit court erroneously suppression motion con court denied cerning marijuana plants seized sheriff s evidence curtilage2 deputies of Martwick's home. from the op. Slip 1—2. Martwick, curtilage ¶ 2. We hold that a deter- We reverse. subject question fact mination two-step of constitutional is a circuit court's historical standard review: clearly findings of fact are reviewed under a erroneous question standard, of constitutional while the ultimate subsequent All Statutes are to references to Wisconsin text otherwise noted. the 1995-96 unless immediately buildings land sur A is the Dunn, rounding a house. See United States U.S. Dictionary Law notes that the word Black's (a yard) place and eohors enclosed around derived from Latin today cortilliage courtillage which cor- the old French or has been court-yard. Originally, rupted it and referred land into adjacent outbuildings immediately to a castle that were in turn high by a stone wall... . surrounded (6th 1990). Dictionary ed. Black's Law applying We fact reviewed de novo. further hold that process, marijuana two-step plants this the five initially deputies were found outside of the of Accordingly, Martwick's home. we reverse court appeals' decision, which overturned Martwick's conviction.

i ¶ 3. The record before the circuit court reflects County 1997, on 9, Roush, June Brian a Price Deputy conveyed by Sheriff, leаrned of information regarding drug activity confidential informant occur- ring May at the Martwick On residence. apparently large processed informant saw amounts unprocessed marijuana, plants as well as live in (R. 35:5-6.) According Martwick's house. to complained informant, Martwick that he needed keep plants his inside because weather was too cold May transplant them outdoors. reviewing report

¶ 4. After the written with fel- Deputy Deputy Jarosinski, low Sheriff Chris Roush inquired possibility obtaining about the a search warrant of the residence with assistance of the County Attorney's Price District office. District Attor- ney Schilling thought Patrick G. the confidential probably information was stale because the informant marijuana observed the Martwick's residence May. attorney Because district was concerned potential Deputy staleness, about the information's investigate by viewing Roush decided to further Martwick's himself. reading.the

¶ 5. even Before confidential inform- Deputy report, suspected ant's growing marijuana. Roush had Martwick years drug county before,

Two Deputy officer told that he had Roush found remnants marijuana growth in Elk. the Town of Martwick's of old grow appeared pails the used to the mari- name on (R. 35:37.) during juana. Then, the summer of 1996 marijuana plant property was found on another small belong thought to to Martwick. Deputy Deputy

¶ Jarosinski Roush and drove gave neighbor to residence on June and Martwick's squad neigh- permission park their car on the them boundary property. lines of Martwick's bor's property property group is of a are unmarked. The one along year-round homes located the of recreational County. Flowage Approximately in Price Wilson a one-mile radius of Martwick's homes fall within directly neighbor home, nearest and Martwick's lives the across road. irregularly property is 7. Martwick's 1.52-acre According diagram,

shaped. to Martwick's hand-drawn long approximately property its east- his feet on edge, edge, long feet on its western 333 feet ern edge, long long and 413 feet on its on its northern 26.) (Exhibit diagram, edge. this southern On appears prop- the Martwick's house near center of Flowagе erty, approximately 100 feet from E. Wilson bounding property. At Road, the main road his edge property from the road are extreme farthest ginseng Martwick also raises worms near two sheds. gravel driveway up ginseng A sheds. leads house from road. 8. Martwick does not cultivate traditional As defense counsel admitted to the circuit

mowed lawn. his would not a Martha court, "client's home win Stew- (R. 35:48.) twenty-foot Instead, a art award." only low-lying clearing the house which surrounds grow. weeds, brush, and wildflowers Woods cover the past clearing. footpath A remainder of begins within ten feet ofthe house and extends into the leading ginseng wooded section sheds. Martwick occasionally path the with clears a brush cutter. parking squad depu-

¶ car, 9. After their the two property ties walked onto Martwick's neighboring from the According property. to Martwick's hand- diagram, deputies property drawn the his entered from edge point the southern at a the between house and the (Exhibit 26.) ginseng Deputy woods, sheds. In the tripped thought Roush what over he was some sort of placed ground. wire no than more one foot above the deputies marijuana plants Then,' the observed five five-gallon plastic pails. Deputy four Roush estimated pails that the were located between and feet from along path leading ginseng the house the the to sheds. plants approximately The were two and one-half to Deputy Deputy three and one-half feet tall. Roush and slip suspected Jarosinski cut a leaf off of one of the marijuana plants immediately and returned to the dis- attorney's Duquenois-Levine trict office to conduct a slip produced positive indicating test. The leaf result ingredient THC, it the contained active marijuana.

¶ 10. Based on their observations and the test day deputies applied results, that same the for and approximately obtained a search warrant. Within deputies three hours the executed search warrant the plastic pails marijuana and seized with the five plants, marijuana plants, baggies 29 smaller with green plant marijuana plant seeds, material and products, among Deputy cultivation other items. рhotographs property. Roush also took of Martwick's Deputy vantage point Roush testified from the potted plants, top see he could of Martwick's 35:9.)(Exhibit 27.) (R. at How-

house in the distance. plants. person house, a ever, could not see the from charged Martwick with manufac- state marijuana contrary turing Wis. Stat. to 961.41(l)(h)2. August § Martwick moved On deputy suppress obtained the evidence sheriffs to for his residence on the basis that the search warrant by supported probable depu- cause, since the was supporting probable improperly evidence ties obtained by illegally entering the entire cause search Martwick later moved to of his residence. suppress that the search warrant was not on basis magistrate.3 and detached issued a neutral The circuit court denied defendant's deputies' suppress, stating that the ini- first motion premises Martwick's was tial warrantless search on they property's had valid because searched outside they curtilage. Therefore, search warrant subse- by supported probable quently properly obtained was retaining right appeal,4 his Martwick cause. While pleaded manufacturing guilty to and was convicted of 961.41(l)(h)l.5 marijuana § in Stat. violation of Wis. his The circuit court withheld sentence and ordered 18 probation.6 months of

3This second motion was filed with the circuit court on 16,1997, days hearing motion September six after the about the curtilage Martwick seems not to have taken further issue. regarding action the second motion. record also does not any, place proceedings, pertaining if took to this disclose what Martwick, however, appeal. does not raise this issue on motion. 971.31(10). 4See Wis. Stat. § 5 charge The record indicates that Martwick's was amended (R. 25.) lesser to a offense. 6 pay probation, As Martwick was to a fine and conditions costs, jail privileges, spend days in with work release appealed

¶ 13. Martwick the conviction. The appeals scope court of first held that "the purposes question for Fourth Amendment is a of consti tutional fact reviewed without deference to the trial Slip op. court." at 3. The court relied on State v. Ken (Ct. nedy, App. 578, 583, 193 Wis. 2d 535 N.W.2d 1995), reasoning, though Kennedy for its even relied on Lange, v. 609, 617, State 158 Wis. 2d 463 N.W.2d (Ct. 1990), App. a case that left issue of stan Slip. op. Citing dard of review unanswered. at 3. Cook (1997), Cook, 166, 189, 208 Wis. 2d 560 N.W.2d 246 explained prior the court it is bound its own Slip op. decisions. at 3. slip

¶ 14. The court then concluded that the leaf part was seized in an area that was surrounding Slip op. coming In Martwick's home. at 4. analyzed conclusion, to this the court the four factors curtilage surrounding that determine the extent of Dunn,7 home as forth in set United States v. (1987). Slip regard op. 294, 300 In4. to the Dunn marijuana factors, court felt that the was in close proximity marijuana home, and because the grew garden setting, growing appeared a it " use[d] an area for intimate activities of home.'" 619). Slip op. (quoting Lange, at 5-6 2d at Wis. overgrown Moreover, the nature of the indi- Additionally, make restitution. his driver's license sus- was (R. 26.) pended for six months. following 7The are the four factors: home, proximity curtilage of the area claimed to be surrounding whether the area included within is an enclosure home, put, steps nature оf the uses to which the area and the protect by peo- taken to the resident the area from observation by. ple passing Dunn, United States v. 480 U.S. at 301. public prevent to that Martwick wished

cated Finally, Slip op. at the court stated that 6. observation. heavy than flora of a barrier more formal the "lack overgrowth" diminish Martwick's was insufficient "to privacy." Slip op. expectation of appeals of concluded court curtilage marijuana pails of within the were deputies improp- Therefore, had Martwick's home. erly slip, as the the leaf and it could serve seized probable for cause to obtain a search warrant basis for premises. invalid, the search warrant was Because failing suppress to all of the circuit court erred Slip op. seized. at 7. evidence

II. the issue of standard 16. We first address in a case. We conclude that review presents fact. determination an issue constitutional question An fact is a mixed issue of constitutional subject two-step review. law and fact standard of Phillips, 180, 189, 2d 577 N.W.2d 794 State v. 218 Wis. recently explained Phillips, 218 Wis. As we determining court an issue of consti 2d at a circuit regarding tutional fact must first make decisions evidentiary pertinent Law or historical facts. Black's "[tjhose ‍‌​‌​‌​‌​​‌​‌​​‌​‌​‌‌‌‌‌​‌‌​​‌‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‍Dictionary evidentiary as facts defines facts necessary for of the ultimate which are determination they premises upon which facts; are the conclusions Dictionary Law ultimate facts are based." Black's (6th 1990). ed.

¶ 17. Resolution of an of constitutional fact issue requires apply then circuit court to constitutional evidentiary principles or historical facts. State v. (1986). Fry, 153, 171, 131 Wis. 2d 388 N.W.2d 565 A constitutional fact is one whose "determination is 'deci rights.'" sive of constitutional William R. Bishin and Christopher reprinted Facts, Stone, D. Constitutional Ruggero J. Aldisert, in 703, Judicial Process 704 (1976). Justice Frankfurter elaborated that constitu though are which, tional facts "issues in cast the form very fact, of [for] of determinations are the issues to review Indiana, which this Court sits." Watts v. 338 U.S. 49, 51 appeal, appellate applies

¶ 18. On an court dif a step ferent standard of review each in circuit appel court's determination of constitutional fact. An applies cleаrly deferential, late court erroneous findings evidentiary standard to circuit court's or Phillips, (quoting historical fact.8 218 Wis. 2d at 190 v. Woods, 701, State 117 2d 715, Wis. 345 N.W.2d 457 (1984)). appellate ques An court then determines independently. tions of constitutional fact Id. ¶ 19. We base our conclusion that a question determination is a of constitutional fact on (1996), States, Ornelas v. United 699 8Phillips actually evidentiary stated that or historical find " ings contrary would not be they overturned 'unless are great weight preponderance and clear of the evidence.1"State v. (1998) 180, 190, Phillips, (quoting 218 Wis. 2d 577 794 N.W.2d (1984)). Woods, 701, 715, State v. 117 Wis. 2d 345 N.W.2d 457 may rely standard, however, We on this articulation apply 'great weight prepon because "cases which and clear .may . explanation derance' test. [the referred to for an clearly erroneous] [since] standard review the two tests essentially Inc., this state are Noll the same." v. Dimiceli's 1983). (Ct. 641, 643, App. Wis. 2d N.W.2d See also State 90, 414 N.W.2d (Ct. 1987). Michels, App. 141 Wis. 2d Supreme held that on United States Court which the judge's appeal, of reasonable ultimate determination suspicion probable be reviewed de and cause should findings fact novo, of historical should while only Ornelas, In the Court for clear error. reviewed independent appellate prevents explained that review " any signifi '[i]n results" even the absence of "varied supporting judge's difference the facts'" cant Moreover, Id. the Court stated determinations. at 697. legal probable rules cause and reasonable that "the for only through application. suspicion acquire content necessary appellate Independent if review is therefore clarify of, to and to are maintain control courts legal principles." (citing Fenton, Id. Miller v. 474 U.S. (1985)). explained Finally, the Court that "de 114 unify provide precedent" to law review tends novo guide them clear rules that enforcement officers with acting making legally before to correct decisions privacy. Id. invade someone’s Similarly, grants "indepen this court also appellate matters fact dent [in order] review of of constitutional provide uniformity deci

to in constitutional sion-making." By Phillips, 2d at 194. 218 Wis. independently applying principles, an constitutional meaning appellate court is able to add substance and (quoting constitutional rule. Id. State v. a skeletal McMorris, 156, 165, 2d N.W.2d 384 213 Wis. 570 (1997)). traditionally applies Moreover, this court two-step standard of review to constitutional inquiries.9 seizure Whether an officer has

search and 824, 829, 9See, Jackson, v. e.g., State Wis. 2d State, 639, 646, (1999); Isiah B. v. 176 Wis. 2d N.W.2d 386 Anderson, (1993); 441, 447, 477 Wis. 2d N.W.2d 637 State illegally person's searched within the of a res idence is search and seizure issue under the Fourth Amendment, States, Oliver v. United (1984), §I, 180-81 and art. 11 of the Wisconsin Consti keeping preference independent tution. In with our for fact, review of issues constitutional and our use of two-step standard of review for other search and inquiries, two-step seizure we hold that the standard of applies review determinations. clearly

¶ 22. The state advocates the use of a erroneous standard review for the ultimate determi support, nation of constitutional fact. In the state cites circuits, to cases from several federal which have held inquiry, curtilage that as a factual a determination clearly should reviewed under a erroneous stand genеrally although ard.10 These cases reason that a curtilage question determination ais mixed of law and " 'essentially inquiry," fact, because it is an factual' clearly apply. See, erroneous standard of review must (9th e.g., Traynor, 1153, 1156 United States v. 990 F.2d 1993)(quoting McConney, Cir. United States v. 728 Whitrock, v. (1991); 960, 973, 468 State N.W.2d 277 161 Wis. 2d N.W.2d 696 10 See, e.g., Reilly, United States v. 1271, 1275, 76 F.3d aff’d (2d reh'g, Friend,

on United States v. 1996); 91 F.3d 331 Cir. 50 (8th grounds, 548, 1995), other 552 vacated on F.3d Cir. 517 (3rd Benish, 20, 24 United States v. 5 F.3d (1996); 1152 U.S. Cir. (10th 1993); 1026, United States v. Knapp; 1 F.3d 1029 Cir. (9th Traynor, 1993); 1153, United States v. 990 F.2d 1156-57 (11th Hatch, 1478, United States v. 1993); Cir. 931 F.2d 1480 denied, cert. rel. 1991), (1991); United States ex Cir. 502 U.S. 883 (7th Bensinger, Saiken v. 1292, 1976), cert. 546 F.2d 1297 Cir. denied, States, Hodges (1977); United 431 U.S. 930 243 F.2d (5th (Pet. 10.) 1957). 281, 283 Cir. Br. at

813 Cir.)(en (9th banc), denied, cert. F.2d (1984)). U.S. 824 reasoning unpersua 23. We find this line determination is A circuit court's

sive. requires essentially inquiry it review a factual because Phillips, questions of law fact.11 See mixed (stating "[t]his tradition court has 2d at 189 Wis. ally questions fact as mixed of constitutional treated two-step applied questions it law, and has fact and reviewing court determinations lower standard when fact.") The initial determination of constitutional important evidentiary than fact is no more historical or of constitutional fact. the ultimate determination imply once a circuit court answers federal cases analysis factors, Dunn court's the four individual e.g., Swepston, complete. See, F.2d (10th 1993)(stating test that the Dunn four-factor Cir. determinations"). purely However, "involves factual answering individual Dunn factor does not com each apply analysis. plete The court must still principles to the facts at hand to answer constitutional inquiry question such, of law. As the Dunn cannot inquiry. purely abe factual sum, In determination involves apply fact. an of constitutional We therefore issue two-step review a standard review which we first for of the individual Dunn factors court's evaluation contrary findings error, clear whether such are preponderance great weight of the evidence. and clear court's ultimate determination of Then we review a curtilage de novo. extent 11 Moreover, the state cites were decided before the cases Ornelas, decided in 1996. which was

814 Ill. Next, we address whether the five mari- juana plants deputies growing found on Martwick's property lay curtilage outside the of his residence. We marijuana plants cоnclude that the five were located curtilage residence, outside the of the therefore, and deputies part could enter that of the and slip plants during seize a leaf from one of the their initial warrantless search. provides "peo

¶ 26. The Fourth Amendment ple [are] persons, papers, houses, be secure their against and effects, unreasonable searches and [that] upon seizures.. .and issue, no Warrants shall but probable protec cause.. .." U.S. Const. amend. IV. The provided by tion Amendment the Fourth ato home also curtilage extends to Oliver, of a residence. 466 U.S. actually part at 180. The "considered [the] purposes," home itself for Fourth Amendment id. 180, and is defined at common law as "the area to activity which extends the intimate associated with the 'sanctity privacies of a and man's home of life.’" Id. (quoting Boyd States, United U.S. (1886)). protections

¶ 27. The of the Fourth Amendment beyond do not attach to land of a home. States, See Hester v. United 265 U.S. public

Such land includes areas and been what has "open described as fields." See id. open concept

¶ 28. The fields was observed in explained Hester, in which Justice Holmes that "the special protection accorded the Fourth Amendment people 'persons, papers houses, in their open effects,' is not extended to the fields. The distinc- tion between the latter and the house is as old as the (citation omitted). Hester, common law." jug police of ille- seized a and bottle Hester, officers In gal whiskey held Id. at 58. The Court Hester's land. on trespassed though police on Hes- officers had that even illegally jug land, were not seized the and bottle ter's they in the area of the were seized because by open designated at as fields. Id. 58-59. the Court the in reaf observed Hester was 29. distinction "[t]he distinction Oliver, which stated that firmed curtilage, neighboring only implies the that protections Amendment fields, warrants the Fourth Open Oliver, 466 U.S. at 180. that attach to the home." literally at n.11. to fields. Id. fields are not confined expectation legitimate Further, no "an individual has open will remain free from warrantless fields by government fact, In officers." Id. 181. intrusion poliсe difference between is no constitutional "there public place and while in a conducted observations standing open Dunn, fields." while in the Supreme Dunn, In 480 U.S. at should refer Court articulated four factors that court curtilage: defining the of a home's to when extent to to proximity of the area claimed home, is within an whether the area included home, the nature of the surrounding enclosure put, steps by and the taken uses to which the area area from protect the resident to observation by.12 people passing

12The also cautioned that Court finely suggest combining produces a these factors [w]e do not that, mechanically applied, yields a when 'correct' tuned formula Rather, extent-of-curtilage questions. these factors answer all any case, only degree that, given analytical are useful tools they upon centrally bear relevant consideration-whether question intimately tied the home itself that it area in is so application We now the examine of the Dunn factors to the facts of this case.

¶ 31. We for rеview clear error the circuit court's findings September suppres At 10, 1997, of fact. the hearing, findings sion the circuit made court few evidentiary However, or historical fact. if circuit finding court fails to make a record, that exists the appellate an court can assume that the circuit court supports determined the fact in a manner that cir cuit court's ultimate Jensen, decision. See Sohns v. (1960). 2d 449, 453, 105 Wis. N.W.2d 818 Moreover, the deputies court stated that the area where the found the marijuana plants posted five was not or fenced, and expectation privacy that Martwick had reduced (R. 35:38.) part property.13 Finally, that of his at court concluded:

I all provided, look at the information all the testimony provided, all the evidence provided, and I find that the interests of law in curbing enforcement illegal activity sufficiently Court, is a concern of this that the Court proceeded reiterates that this officer placed should be under the home's 'umbrella' of Fourth Amend- protection. ment Dunn, 480 U.S. argues deputies Martwick also ‍‌​‌​‌​‌​​‌​‌​​‌​‌​‌‌‌‌‌​‌‌​​‌‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‍violated his rea expectаtion privacy sonable in the area 50-75 feet from his 14-16.) (Resp. However, home. Br. [open "[t]he fields doc respect trine] is with expectations consistent for 'reasonable Oliver, privacy.’" fashioning U.S. In factors, Supreme clearly Dunn the United States Court took an right privacy. Dunn, into consideration individual's See such, privacy 480 U.S. at 300. As issue is interwoven with determination and need not be considered separately. cautiously with information which proceeded with — previous private, He had

he believed to be reliable. verify proceeded his He information of own. information. Court Appeals let the opinion,

I of the and am fit, open are no fields they as see but there proceed is This area. This a wooded area. particular in this like, northwoods, it and that's what looks is the curtilage. is this outside and based on the clearly opinion, I of the am I'm further of the Schilling as Mr. case law cited curtilage. There no this is outside opinion area, and privacy particular in that expectation of sought, appropriately warrant then was that the еxecuted, drafted, and appropriately appropriately the motion. then and therefore denies the Court 35:52.) (R. nothing presented been which There has any Judge Madden's us conclude that would lead to clearly findings are erroneous. analysis

¶ of Dunn factors leads 32. Our own the marijuana plants were that the five us to conclude Martwick's home. outside the indeed deputies legitimately leaf a Therefore, the could seize pro- slip plants, tested, which, when from of the one subsequent probable of a for the issuance vided cause property. covering warrant the entire Martwick search pails the ¶ record indicates that First, 33. If 75 the house. 50 and feet from were located between proximity sole factor examined factor would be the analysis, How- this a close case. in the Dunn would be ascertaining bright-line when a ever, no rule exists for proximity, are in and cases often distance is close regard. Soliz, v. See States inconsistent this United (9th variety 1997)(comparing 499, a 129 F.3d 502 Cir. held in which similar distances were of federal cases curtilagе). outside the be either within or helpful Further, it is to examine the dis property. tance in relation to total size of the See (2d Reilly, 1271, United 1996). v. States 76 F.3d Cir. property, prop On a smaller such as Martwick's erty, curtilage may very well extend for less larger property, distance than on a where owner has more room to or conduct his her "intimate activit[ies] Simply Oliver, of. . .life." 466 U.S. at 180. property small, because a and the relative distances large property, involved are less than that of a it does virtually mean whole must curtilage. Therefore, within the while the distance marijuana plants between Martwick's home and the inquiry vast, was not our does not end with this factor. distinguish We also our recent analysis O'Brien, in State 223 Wis. 2d (1999), parked N.W.2d which we found that a truck approximately feet from farmhouse was within curtilage. Although obviously the greater that distance is case,

than the distance in this other factors strongly indicated the truck was still within the curtilage. significantly, parked Most the truck was outbuilding complex. O'Brien, next farm complex 223 Wis. 2d at 303. The farm consisted of "duplex, outbuilding, backyard barn, an a small driveways." at two Id. 310. This court stated that in the setting," a 316, context of extending "rural id. area outbuilding curtilage. was in the Id. (Brennan, Dunn, J., 316. See also 480 U.S. at 307-09 joined by dissenting)(pointing J., Marshall, out that many farm, the context state and federal courts curtilage hold that the of the farmhouse often extends outbuildings). to barns and

819 property ¶ contrast, In Martwick's is not 36. analysis O'Brien14 is not analo- our such, farm. As gous Moreover, because Martwick's this case. to curtilage property farm, the does not automati- is not a ginseng cally his sheds. extend to any ¶ Second, erect fence or Martwick did not 37. surrounding Deputy his home. Roush enclosure other tripped property, wire wire on the but that over some apparently did not surround the home. significant marijuana plants It is that the in the area of low-cut weeds and brush

did not stand curtilage surrounding that the the house. Oliver noted clearly Oliver, marked. 466 U.S. at of most homes is Similarly, 182, Jenkins, v. n.12. in United States (6th 1997), the found 768, 773 Cir. Sixth Circuit F.3d only of the home extended to that portion backy property as a that was maintained property, rest of the which was a ard in contrast to the field.15 wooded clеarly is marked case, In this photographs the low-cut weeds and brush. property indi-

introduced into evidence of Martwick's significant differences as 14In O'Brien there were other entered onto the with search warrant well. Officers premises. search permitted them search the Because the premises, the whether the warrant extended to the issue was State v. physical proximity applied test search warrant. O'Brien, 2d 223 Wis. 588 N.W.2d by stating the contrast The Sixth Circuit described "[djefendants' backyard clearly as a demarked continuation neatly yard, one mistake the and its the home itself. No could open arrangements, unkempt for garden lawn and mowed composing remaining portion of defendants' rural fields (6th Jenkins, 768, 124 F.3d Cir. property." United States 1997). approximately that the low-cut weeds

cate extend twenty suddenly feet from house. The tree line then appears twenty feet, and the trees further continue beyond. property's Moreover, border and from photographs, way there is no to differentiate edge prop- between Marwick's and the (Exhibits 27-28.) erty abutting neighbors. of his 1-25, argues ¶ 40. Martwick trees and shrubs require that surround а house can fulfill the enclosure 11.) (Resp. proposition ment. Br. at For this Martwick Lange, disagree. cites 158 Wis. 2d at 618. We The facts actually Lange support our conclusion. court appeals explained garden that "the house and stood except alone in the middle of fields, surrounded farm trees_" driveway for the four entrance on all sides added). Lange, (emphasis 2dWis. at 618-19 In this point begin case, the where the woods also marks the boundary curtilage. However, of the the wooded area is begin not within the point because the trees at a twenty house, therefore, feet from the mark twenty-foot clearing surrounding the end of the house. Third, not Martwick did use the area where marijuana plants anything par- found for were marijuana rough

ticular. While the near was found footpath property, on the we do consider that fact significant. argues footpath Martwick also 12-13.) "garden." (Resp. agree leads to a Br. at We with the state that the sheds where Martwick cultivated ginseng garden, and worms do not constitute a "as that (Pet. 10.) commonly Reply term is understood." Br. at ginseng Moreover, no witness characterized the sheds garden hearing. Nothing suppression as indi- activity cates that the area was used for "intimate 'sanctity with the associated of man's home and the (quoting privacies Oliver, life.'" 466 U.S. at of 630). Boyd, 116 U.S. photographs introduced into Fourth, the edge the the fairly of indicate that trees

evidence By placing property were dense. the Marwick's marijuana among trees, the dense Martwick was able marijuana protect from from observation the However, above, Martwick seems to street. as we noted naturally plant He not or in a wooded area. did live grow property. that on his Martwick cultivate the trees protected opposed area, this as therefore did create plants or a tree line around his her to an individual who high property, sim- or builds a wall or fence. Martwick ply woods, his so as to has not exercised dominion over part If an intimate of his home. make woods curtilage, be cre- lot were then this court would entire activity ating an zone for criminal on observation-free greatly undercutting legitimate property, all wooded Therefore, this final factor law enforcement efforts. marijuana supports the other evidence that was curtilage home. found outside of the of the

IV. conclusion, In we hold question fact sub- determination constitutional evidentiary findings ject two-step The or to a review. error, to are for clear determine historical fact reviewed contrary great weight findings such are whether preponderance clear of the evidence. ultimate and of constitutional fact is reviewed de determination two-step pro- applying hold this novo. We further initially marijuana deputies plants cess, the five outside of the ofMartwick's home. found were they curtilage, deputies Because were outside sample. sample, tested, could seize leaf The leaf when probable provided warrant, for the cause search deputies' subsequent therefore, the search and seizure marijuana proper. of the evidence cultivation was Accordingly, aрpeals' decision, we reverse the court of which overturned Martwick's conviction.

By appeals Court.—The decision the court of is reversed. (concurring).

¶ PROSSER, 44. DAVID T. J. This important scope interprets protection case from a the warrantless under I search the Fourth Amendment. join opinion the mandate and of the court but write separately respond emphasize to to the dissent and to underlying certain elements the decision. County deputies

¶ 45. Price sheriff s had reason growing to believe that Thomas Martwick was mari- juana seeing reported his home. An informant marijuana plants house, a inside his but more than passed sighting month after this before the evidence attorney. presented was to the The district district attorney sanctity understood both the of the home and integrity process. the of the warrant He concerned was support a that the evidence to search warrant was consulting judge, stale, and after with the deferred he taking action. deputies

¶ Thereafter, two went they if Martwick to see could secure fresh They support evidеnce to the of warrant. issuance entered the and Martwick's wooded land from south marijuana plants plastic pails soon five encountered along primitive path at from situated least feet house. question

¶ the court is whether 47. The before marijuana plants placed within five Martwick curtilage he which house —the zone around his —in privacy. majority legitimately expect The con- could where the woods ended cludes began1 and at least —about 20 feet from the house marijuana plants. away The dissent from the feet implies except property, the entire 1.52 acres of leading driveway and from the street the area of the driveway, plain was view from that the area curtilage. is whether All that this court must decide property extended more of the Martwick deputies house, never

than 50 feet from because than within 50 feet of the house. came closer to Fourth Amendment the United 49. The provides that: States Constitution persons, in their right people of the be secure houses, effects, against and unreasonable ‍‌​‌​‌​‌​​‌​‌​​‌​‌​‌‌‌‌‌​‌‌​​‌‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‍pаpers, seizures, violated, shall not be and no searches and cause, issue, probable sup- but upon Warrants shall affirmation, particularly ported by Oath or and describing searched, persons place to be things or seized. Curtilage extension of a is treated as an

person's curtilage law, "At is the house. common the activity the area to which extends intimate associated privacies 'sanctity of the of man's home and the with (1886), Boyd States, 616, 630 life,' v. United 116 U.S. part the home and therefore has been considered ( 618, 609, Lange, 1In v. Wis. 2d 463 N.W.2d 390 State 1990), circuit court App. appeals the court of affirmed a Ct. surrounding Lange's garden marked finding that the line "tree curtilage." his purposes." for Fourth

itself Amendment Oliver v. States, 170, United 466 U.S. Courts define "by curtilage the reference to factors that determine may reasonably expect whether an individual an that adjacent immediately area to the home will remain (citations omitted). private" Id. explicitly spelled

¶ 51. These factors in were out (1987): Dunn, v. United States ^[1] the proximity ofthe area claimed to be curtilage home, ^[2] whether the area is includedwithin an enclosure surrounding the home, put, ^[3] the nature ofthe uses to whichthe area is ^[4] the steps by protect taken the resident to area the fromobser- by by. peoplepassing vation beyond dispute "proximity" ¶ 52. It is that is only determining curtilage. the factor "The distance question, from a house the area in while a useful analysis, dispositive factor in no the is means since three the other factors must also be considered." State (Vt. 1998). Hall, 719 A.2d A home's curti lage depends upon lay often the land and the what property. the homeowner done has with complains majority ¶ 53. The dissent curtilage protec- "ends the ends constitutional —and house, tion for home—at 20 feet from the far less yards, than 10 of a distance 'first down.'" Dissent at applies determination, 5. That course, to the facts stops in this case. The reason this case short of a "first down" tree line was the limit progress." of Martwick's "forward He could have pushed length an entire football field if had he made the effort—if he had moved the ungroomed, unmanaged, frontier of his uncontrolled house, his taken other action to from or woods farther improve his land. or assert control over property-

¶ of his Martwick never took control 54. curtilage. way give expansive A him an in a property that would reasonably argue that wooded cannot owner property "part of itself if the owner the home land land, or use the land land, not fence the clear the does "privacies purpose life." with the for some consistent strongly Supreme Oliver, In Court vitality "open doctrine first of the fields" affirmed States, 265 U.S. 57 in Hester v. United announced (1924). "Open fields" are antithesis may though they privately owned, because even they intimately open home, linked to the are areas psychologically. physically or See either California Ciraolo, The included a Oliver decision consolidated highly 82-1273, Thornton, relevant case, Maine v. No. The Court stated the facts as fol to the case hand. lows: anonymous tip an that marihuana receiving

After being grown respondent was the woods behind residence, police Thornton's two officers entered neigh- this and a by path woods between residence through the They footpath house. followed a boring patches they woods until reached two marihuana Later, wire. deter- fenced with chicken officers patches property on mined that were prop- to search the respondent, a warrant obtained erty, and seized the marihuana.

Oliver, court held that "No 466 U.S. at 174. trial Trespassing" signs on and the secluded patches a reasona- the "marihuana" evinced location of expectation privacy. Therefore, that the it said ble "open apply, fields" doctrine not did and the Maine Supreme Judicial Court affirmed. Id. at 175. The Supreme saying: reversed, United States Court . . . [0]pen provide setting fields do the for those intimate [Fourth] activities Amend- ment is intended to from government shelter interference or surveillance. is There no societal in protecting privacy activities, interest of those such as the cultivation in crops, open of that occur .[T]he fields. . . expectation asserted of in privacy open fields is not an expectation "society recog- nizes as reasonable." open "[a]n

Id. 179. The Court declared that field 'open' need neither as nor 'field' those terms are speech. thickly .[A] in used common . . wooded .may open . area. be an field as that term is in used construing the Oliver, Fourth Amendment." added). (emphasis n.11 Supreme

¶ 57. The Court ofVermont reached the same conclusion Hall, 719 A.2d at 437:

The Fourth interpreted Amendment has been permit entry fields," "open warrantless onto or areas outside where there is no rea- expectation . privacy. signs . .Since no sonable used, were nor were posted, other methods to indi- cate that defendant sought public exclude the from adjacent yard, the woods to his we conclude privacy that defendant had expectation no from a walk-on search the wooded area behind his house. (Ark. State,

See also Bedell v. 521 S.W.2d (Idaho 1997). 1975); Webb, State v. 943 P.2d 52 property ¶ 58. The dissent voices concern for privacy, owner's it but fails to articulate test that distinguishes part extensive woods one of Martwick's implies It entire wooded area of that the from another. (not including square-foot property 66,000 this protected directly driveway) visible from area though investigation, police even from warrantless prop- nothing of the there was to mark boundaries neighbors, signs excluding erty no from fencing, trespassers, no of use no evidence serious gin- rough path except of the for a between woods seng lot the house. sheds at the back of the and five-gallon pails placement of 59. The several along marijuana plants path containing the was no escape activity criminal and intended to conceal doubt privacy expectation not, was attention. Martwick's by required "legitimate in the the however, sense Society Oliver, Amendment." 466 U.S. at 182.2 Fourth willing recognize "expectations" privacy to all is not People property can- own wooded as reasonable.3 who 2 from photographs The officers of the Martwick house took spot they pails. the The officers could see the where discovered If to no only top the of the the officers were able see more house. house, eyes" "prying top their did not invade than privacy. Martwiсk's 3 Fourth Supreme The United States Court observed that "first, analysis hinges has questions: on two Amendment privacy in subjective expectation a individual manifested Second, society willing object challenged of the search? to v. recognize expectation as reasonable?" California (1986) Ciraolo, Maryland, (citingSmith v. 207, 211 (1979)). inquiry, For first Martwick no doubt U.S. illegal plants subjective expectation that his manifested inquiry, privacy. remain in For the second would concealed "reasonable," privacy expectation of was we whether Martwick's " infringes government's intrusion must 'whether consider protected the Fourth upon personal and societal values States, Id. Oliver United (citing Amendment.'" expect grow illegal crops to woods, their free from doing considerably surveillance, without more to privacy property secure their than their leave in a nat- ural state. place any

¶ 60. Martwick did not enclosure steps discourage public around his or woods take to entry property. onto his He did not use the woods for intimately the kind of lawful activities associated with the home. Therefore, the circuit court was correct in denying suppress Martwick's motion to evidence.

¶ 61. SHIRLEY S. ABRAHAMSON, CHIEF (dissenting). JUSTICE This decision allows law enforcement officers who no have search warrant enter the residential subdivision lot and search 20 feet from the house where the defendant resides. question

¶ 62. ais one and one- platted half lot in acre residential subdivision next to public cottages. lake lined with The lot is near roads adjacent neighbors' and houses in the same subdivi- Except driveway house, sion. for the sheds property, rear of the the lot has been left in a natural drawing state. A of the lot based the on defendant's sketch is attached.

¶ I affirm would the decision the court of appeals. allowing I dissent I because conclude that a warrantless search 20 feet from the house violates the Fourth Amendment of the U.S. Constitution.1 The (1984)). 170, Here, ‍‌​‌​‌​‌​​‌​‌​​‌​‌​‌‌‌‌‌​‌‌​​‌‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‍U.S. infringing 181-83 there was no intru- upon protected sion values because Martwick failed to extend sanctity the privacy and of his to home his land. 1 provides: U.S. CONST. amend. IV right people persons, houses,

The of the to be secure their effects, papers, against seizures, and unreasonable searches and

829 proving the meet burden of has failed to its State marijuana outside the the was found was area in which protected by from war- the Fourth Amendment home The uncontroverted evidence is rantless searches. question is use of the area in the defendant's use curtilage ordinarily part the of the to considered as home. principle constitutional 64. The fundamental

governing of a is that a search this case warrantless "presumptively Wis unreasonable." Welsh v. home is (1984) (quoting Payton New consin, v . U.S. (1980)).2 York, protected by the Fourth Amend- 65. The home the The constitutional ment includes more than house. surrounding protections to land the house. The attach by protected the Fourth Amend- land around the house in the as the ofthe home.3 ment is known law opinion majority the curti- The this case ends issue, violated, upon proba- not be and no Warrants shall but shall cause, by affirmation, supported particularly or and ble Oath searched, things describing place persons bе to be and or to seized. entering the defendant's the officers Before to

attempted get search warrant but were rebuffed attorney judge, who determined that district probable have cause to believe that evidence of a officers did not property. found on the defendant's There is no crime would be suggest emergency or that evidence to that an existed legal grounds to otherwise had search the defendant's officers property. majority's may conse- have an unforeseen

The decision meaning given quence. narrowing In the court scope permissible under may narrowing be of searches also authorizing building. a search of a warrant subject curtilage may police obser Areas within the Supreme police observation Court has allowed vation. U.S.

830 lage protection ends constitutional for —and house, home —at 20 from the feet far less than 10 yards, required the distance for a "first down." 66. The U.S. Court has Supreme held that protected curtilage to the extends land that "an indi- reasonably may vidual expect. . .should be аs treated the home itself."4 The an curtilage is area so intimately tied to the home that it should under placed home's protective umbrella.5 curtilage plane navigable of a from a in public airspace. Califor (1986). Ciraolo, nia v. 476 U.S. 207 4 Dunn, United States 480 U.S.

5Dunn, 480 U.S. at 301. curtilage open relation between and fields doc-’ open appear trines is unclear. The fields cases to deal with the person may issue of whether a expectation have a reasonable privacy protection of the Fourth property Amendment in is not within the curtilage. home's See Oliver v. United (1984) ("Neither States, 170, 180 petitioner n. 11 Oliver respondent nor Thornton has contended that however, curtilage... clear, searched is within the .It is that the 'open may any unoccupied undeveloped term fields' include or curtilage."); LaFave, area Wayne outside R. Search and 2.3(d) (3d ("in 1996) applying Seizure ed. § Oliver United (1987)], States v. Dunn [480 U.S. 294 the Court ruled that merely looking search, into a barn outside the was no challenge but did not pos defendant’s assertion 'that he expectation privacy sessed an indeрendent from his home's ("Because 2.4(a) curtilage. .'"); position . . at § Oliver takes the 'open that to fall within the fields' classification the area in question meaning must be outside the curtilage, the of that concept increasingly important..."). has become murky

Also expectation relation of the reasonable privacy See, open e.g., doctrine to the fields doctrine. United (9th 1994) Maria, States v. Santa F.3d (holding Cir. although defendant's trailer was outside the proving

¶ that a State has the burden of 67. The does not violate the U.S. Constitu- warrantless search prove words, must that the In other the State tion.6 curtilage. The State in this case is not area searched Accordingly, agree I the met with has not this burden. appeals the U.S. this search violated court of Constitution.7 argues the that the use to which 68. State put is the determinative factor in determin- is curtilage

ing Brief at in this case. Petitioner's mainte- held that a homeowner's Several courts have being strong garden in searched is of a an area nance part protected the evidence that curtilage.8 the arеa is marijuana The defendant testified that the "routinely" pots path a that he traveled were on lot, rear of the his house and sheds between goldenseal plants. ginseng He contained his which in this area and in horse manure also raised worms home, protected it was still from warrantless searches Amendment). Fourth 108, 120, 396 N.W.2d Washington, 2d

6State v. 134 Wis. (and majority appeals agree 7I also the court of with pur scope for Amendment opinion) that the Fourth poses appellate an court question a of constitutional law that legal analyses independently, benefiting from the decides the issue. other courts that have addressed 609, 618-20, 8See, e.g., Lange, v. 2d State Wis. (Ct. 1990) (marijuana App. seized was within the N.W.2d 390 garden vegetable it was next defendant's since Jenkins, sides); by a fence on three United States and enclosed (6th 1997) (holding part of a search 124 F.3d Cir. it invaded defendants' enclosed back was unlawful because line, yard, laundry garden, had a and other homelike which activities).

kept compost heap, he which used to fertilize the ginseng. kept path open He further testified thаt he with a brush cutter. investigating agreed

¶ 70. The officer there awas path leading or trail from the house toward the back According to officer, the lot. did he not follow the path beyond marijuana pails and therefore offered no evidence about use of the sheds. The State thus presented no evidence to contravene the defendant's testimony. majority opinion

¶ 71. The finds that the sheds ginseng where the defendant cultivated and worms do " garden commonly not constitute 'as that term is Majority op. (quoting ¶ understood.'" at 41 Petitioner's 10). Reply Brief at It is unclear what evidence the majority opinion finding. relies on to make this factual finding

¶ 72. The circuit court made no of fact question. about the defendant's use of the area in Fur thermore, the circuit court made no mention of how evidence fits within the test established the U.S. Supreme Dunn, in Court United States v. 480 U.S. 294 simply The circuit court concluded that "there expectation privacy particular was no in that area appropriately sought." that warrant was The findings quoted circuit court's and decision are in full majority opinion. ¶ at 31 of the majority acknowledges ¶ 73. The that the circuit findings evidentiary court made "few or historical appellate fact" but asserts that "an court can assume that the circuit court determined the fact a manner supports the circuit court's ultimate decision." Majority op. (citing ¶ Jensen, at 31 Sohns v. 2dWis. (1960)). appellate 449, 453, 105 N.W.2d This rule of practice apply present does not in the case. appellate assume that the cir- An court can only finding of fact when evidence made a cuit court support If the the "assumed fact." exists in the record to support the "assumed fact" then the record does not clearly finding erroneous and the "assumed fact" is Nothing supports a in the record cannot be sustained. finding by court that the area in factual question the circuit gardening. the circuit for Thus

was not used finding particular fact, court could not make this majority appellate assumes it made. An which the any findings I of fact.9 court as a rule cannot make has met its bur- conclude therefore that the State not curtilage. prоve den to that the area searched was relying In addition to on record majority pro factually opinion insufficient, the fails to any compelling overall rationale or theoretical vide curtilage ends 20 feet basis for its conclusion that the majority opinion that the the house. The concedes from Dunn, States four factors set forth United (1987), a search on a 198- case which involved mechanically.10 applied ranch, are acre not to majority a formalistic review nevertheless undertakes analysis engages of of the Dunn factors in no each but they interact, whole, of factors as a how or the Dunn they weigh against each how other. messages majority opinion

¶ delivers two 76. validity. majority opinion First, are of that dubious say right law has a to seems to that enforcement everyone's part at wooded resi- observe least some warrant, it "would dential lot a search or without activity creating an zone for criminal observation-free 100, 108, 293 Fleischman, 2d N.W.2d 155 Wurtz v. 97 Wis. majority op. (quoting at n.12 United States v. ¶ 10See 301). Dunn, property." Majority op. disаgree ¶

on all wooded at 42.1 suggestion with the given that law enforcement must be every an area in residential wooded lot from property which to observe without a warrant. majority suggests Second, that if home protection owners want Fourth Amendment for land they chop any around their house then must down existing plant majority opin trees and new ones. The suggests planted ion if the defendant had support expectation trees, the tree line would an privacy merely lot, on his but because the defendant standing express expectation left trees he did not an privacy. Majority op. agree ¶ 42. I cannot with this reasoning. Lange, See State v. 2d 620, 463 Wis. (Ct. (whether 1990) App. N.W.2d 390 defendant planted "merely trees or chose to live on the privacy, steps because the trees afforded he took protect by people passing the area from observation by"). agree appeals I with the court of that the support

facts in this record are insufficient to a conclu- sion that the warrantless search was constitutional. If majority unwilling suppress the evidence of marijuana plants, it should remand this case to the give prove circuit court to the State a second chance to question curtilage. the land in is outside the impinges privacy Before this court on the of home, court should demand a better record than exists present case.11

11This case is one of I several which believe the court has sufficiently protective privacy been of the of the home. For Welsh, example, in State 2d 108 Wis. 321 N.W.2d 245 (1982), this court allowed law enforcement officers to enter a suspected ‍‌​‌​‌​‌​​‌​‌​​‌​‌​‌‌‌‌‌​‌‌​​‌‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‍driving home to arrest a driver under the influence intoxicants, which a was non-criminal offense at that time

835 forth, I dissent. 79. For the reasons set JUSTICE I authorized to state that am JUSTICE ANN WALSH A. BABLITCH and WILLIAM dissent. join BRADLEY this Supreme Court overturned this under law. U.S. Wisconsin (1984). Wisconsin, 466 decision. Welsh v. U.S. (1994) 410, Stevens, In v. 181 Wis. 2d 511 N.W.2d 591 State (1996), 845, Richards, and State v. 201 Wis. 2d 549 N.W.2d entry permissible when this court declared that no-knock suspected felony search the home of a officers have a warrant to Supreme drug U.S. Court concluded that our court dealer. The categorical approach. adopting had erred in this Richards Wisconsin, 520 U.S. 385 give

Similarly majority does not sufficient considera in this protection tion to Fourth Amendment's of the home Ward, 2d and in State v. 2000 WI Wis. case N.W.2d

Drawing hot on Based the Defendant's Sketch

Case Details

Case Name: State v. Martwick

Court Name: Wisconsin Supreme Court

Date Published: Jan 19, 2000

Citation: 604 N.W.2d 552

Docket Number: 98-0101-CR

Court Abbreviation: Wis.