STATE of Wisconsin, Plaintiff-Appellant, v. Herman R. SCHWEGLER, Defendant-Respondent. [Case No. 91-2636-CR.] STATE of Wisconsin, Plaintiff-Appellant, v. Debra L. SCHIER-SCHWEGLER, Defendant-Respondent. [Case No. 91-2637-CR.]
Nos. 91-2636-CR, 91-2637-CR
Court of Appeals
August 5, 1992
490 N.W.2d 292
Oral argument July 2, 1992.
Before Nettesheim, P.J., Anderson and Snyder, JJ.
SNYDER, J. The state appeals from orders1 suppressing all evidence obtained as a result of a warrantless administrative inspection of the defendants’ property by a county humane officer. The state argues that the humane officer acted within her inspection authority, resulting in a search that, although warrantless, was permissible under
Debra Schier-Schwegler and her husband, Herman Schwegler (the Schweglers), operate a horse-breeding operation in Waukesha county. The stable is licensed as a commercial stable pursuant to
On August 8, 1990, Humane Officer Anne Winkel went to the property to conduct a routine inspection, as she had done approximately every three months for the past several years. Officer Winkel determined that no one was present on the property, as sometimes was the case during prior inspections. On at least one prior occasion when the Schweglers were not on the premises, Officer Winkel left a calling card on a bulletin board in the barn to indicate that she had conducted an inspec-
As soon as she opened the barn doors further and “lean[ed] in,” Officer Winkel could smell, in her words, an “overwhelming” manure stench. The barn was hot, with little ventilation. Upon going to the individual stalls, she found the horses standing deep in manure with no food in evidence. Their hooves were substantially overgrown and many of the horses’ bone structures were showing. Officer Winkel determined that well over half of the horses needed immediate medical care.
Officer Winkel went back to her vehicle, retrieved a camera, and returned to the barn to document the condition of the animals. She then left. After consulting with a veterinarian and law enforcement personnel, Officer Winkel made arrangements to remove the horses. She was informed that, because of the ordinance, no warrant was necessary to accomplish this. Herman was present when Officer Winkel arrived the next day with the necessary equipment and personnel. Thirty-six horses were removed.
The Schweglers each were charged with being party to a crime of nineteen counts of cruelty to animals, fourteen counts of failing to provide sufficient food to animals, and three counts of failing to provide sanitary shelter to animals, contrary to
In reviewing an order to suppress evidence, we will sustain the trial court‘s factual findings unless they are against the great weight and clear preponderance of the evidence. State v. Murdock, 155 Wis. 2d 217, 225, 455 N.W.2d 618, 621 (1990). We independently review, however, whether the facts as found satisfy the constitutional standard of reasonableness. Id. at 226, 455 N.W.2d at 621.
In Waukesha county, all barns or stables rented out for the purpose of keeping horses are required to be licensed by the county.
It shall be a condition of the issuance of a license under this division that the licensed premises shall be open to inspection at any time by the sheriff or the county humane agent who is duly vested with police power pursuant to section 58.07, Wisconsin Statutes.
The fourth amendment reasonableness standard applies to administrative inspections of commercial premises. See See v. City of Seattle, 387 U.S. 541, 545-46 (1967). The expectation of privacy in commercial premises is somewhat less than that in a person‘s home. New York v. Burger, 482 U.S. 691, 700 (1987). Nonetheless, an owner or operator of a business has an expectation of privacy in commercial property which society is prepared to consider to be reasonable. Id. at 699. This expectation exists with respect to traditional police searches conducted for the gathering of criminal evidence as well as to administrative inspections designed to enforce regulatory statutes, id. at 699-700, because a person‘s privacy interest suffers regardless of the government‘s motivation. Marshall v. Barlow‘s, Inc., 436 U.S. 307, at 312-13 (1978).
As with searches of private residences, a warrantless search of commercial premises is presumptively unrea-
In See, the Supreme Court upheld an owner‘s refusal to permit a warrantless inspection of his locked commercial warehouse. The attempted inspection was not founded on probable cause to believe that any violations existed; rather, it was part of a program of routine, periodic administrative inspections meant to achieve compliance with the city‘s fire code.4 The Court acknowledged that governmental regulation of businesses depends upon effective investigative techniques and that that “[o]fficial entry upon commercial property is a technique commonly adopted by administrative agencies at all levels of government to enforce a variety of regulatory laws.” See, 387 U.S. at 543-44.
Nonetheless, the Court disagreed with the city that the ordinance established a reasonable scheme for the warrantless inspection of commercial premises. Id. at 542-43. The Court saw “no justification for so relaxing Fourth Amendment safeguards where the official inspection is intended to aid enforcement of laws prescribing
Our next question, therefore, must be whether the Schweglers consented to the inspection. The state vigorously contends that the Schweglers did consent. It argues that the Schweglers consented by annually renewing their license under an ordinance which clearly states that, as a condition of licensure, their premises “shall be open to inspection at any time.” The state also contends that consent can be inferred from the Schweglers’ failure to object to prior inspections conducted in their absence.
The burden is on the state to prove that the Schweglers did, in fact, consent to the search. See State v. McGovern, 77 Wis. 2d 203, 211, 252 N.W.2d 365, 369 (1977). Whether the Schweglers consented is a question of fact. See Kelly v. State, 75 Wis. 2d 303, 311, 249 N.W.2d 800, 804 (1977). We affirm the trial court‘s factual findings unless they are clearly erroneous.
Consent to search is not to be lightly inferred but must be shown by clear and convincing evidence. Kelly, 75 Wis. 2d at 316, 249 N.W.2d at 807. The only evidence in the record regarding consent is the language of the ordinance, Officer Winkel‘s testimony that she once left a calling card advising that she had visited in their absence, and Herman‘s testimony that he did not con-
The state also places great emphasis on the fact that the inspection was conducted during daylight hours and without force. If the search should not have been undertaken in the first instance, the manner in which it was carried out is immaterial.
We now turn to the seizure of the horses on August 9. Although the trial court found that the August 9 entry on the property was “clearly ... with the view to aid and assist the animals,” it also determined that this action, even with the one-day delay, was rendered illegal by the illegal search the previous day. The state contends that even if the August 8 entry was improper, the doctrine of inevitable discovery permits the seizing of the animals on August 9.5 Under this doctrine, the fruits of an illegal search nonetheless may be admitted if the tainted fruits inevitably would have been discovered by lawful means. State v. Kennedy, 134 Wis. 2d 308, 317, 396 N.W.2d 765, 768 (Ct. App. 1986). The state contends that since Herman was present on August 9, he could not have pre-
We are not persuaded. The proponent of the doctrine must show by a preponderance of the evidence that the tainted fruits inevitably would have been discovered by lawful means. To do so, the prosecution must demonstrate: (1) a reasonable probability that the evidence in question would have been discovered by lawful means but for the police misconduct; (2) that the leads making the discovery inevitable were possessed by the government at the time of the misconduct; and (3) that prior to the unlawful search the government also was actively pursuing some alternate line of investigation. United States v. Cherry, 759 F.2d 1196, 1204 (5th Cir. 1985), cert. denied, 479 U.S. 1056 (1987).
Here, Officer Winkel testified that she inspected the Schweglers’ property every few months. There is nothing in the record to indicate when a follow-up visit would have been made had she, for whatever reason, not completed the inspection on August 8. She also testified that the visit to the farm on August 8 was for a routine inspection and was not instigated by complaints or suspicions of any wrongdoing. Finally, there was no simultaneous alternate line of investigation underway.
On the contrary, no suspicions were raised until Officer Winkel entered the barn. She had to return to her vehicle to retrieve a camera. By her own admission, she photographed the condition of the horses and barn on August 8 to facilitate a criminal prosecution. Accordingly, we conclude that the state has not established by a preponderance of the evidence that, without the illegal entry on August 8, Officer Winkel would have returned
We are not unsympathetic to time and personnel constraints often faced by those in Officer Winkel‘s position. Nor are we unsympathetic to the plight of animals such as these. We believe, however, that the interests of all can be accommodated, with some compromise, while still respecting the integrity of the fourth amendment.
Having found the Schweglers absent, Officer Winkel was not without recourse. She might have sought a warrant under
By the Court.-Orders affirmed.
NETTESHEIM, P.J. (dissenting). I disagree with the majority‘s conclusion that Humane Officer Winkel‘s warrantless search of the Schweglers’ barn was unreasonable. I also disagree that See v. City of Seattle, 387 U.S. 541 (1967), governs this case.
The fourth amendment protects against unreasonable searches and seizures. As the majority correctly recognizes, the primary objective of the fourth amendment is the protection of privacy. State v. Bauer, 127 Wis. 2d 401, 405, 379 N.W.2d 895, 897 (Ct. App. 1985).
Here, the Schweglers are licensed as a commercial stable pursuant to a Waukesha county ordinance. This ordinance permits and requires regular inspections of commercial stables. The Schweglers knew of this requirement and, in fact, their premises had previously been subject to inspections by Officer Winkel, sometimes when the Schweglers were not present. On the day in question, the Schweglers left the barn doors unlocked and open sufficient to allow entry. Under these circumstances, the Schweglers nonetheless contend that Officer Winkel‘s entry into their unlocked commercial operation was unreasonable.
The majority overreads and overapplies See. The facts in See are markedly different from those in this case. There, the owner had unequivocally demonstrated and asserted his privacy expectation by locking his commercial warehouse. A greater demonstration of such a privacy expectation can hardly be imagined. In such a case, I too would require a warrant.
See recognizes that commercial premises may be reasonably inspected in many more situations than pri-
Nor was Officer Winkel‘s conduct unreasonable. Her entry was conducted during daylight hours and accomplished by unforced means through an unlocked and open door.
Notes
See v. City of Seattle, 387 U.S. 541, 541 (1967).INSPECTION OF BUILDING AND PREMISES. It shall be the duty of the Fire Chief to inspect and he may enter all buildings and premises, except the interiors of dwellings, as often as may be necessary for the purpose of ascertaining and causing to be corrected any conditions liable to cause fire, or any violations of the provisions of this Title, and of any other ordinance concerning fire hazards.