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SCOW: No 4th Amendment protection for locked, underground parking garage

State v. Brett W. Dumstrey, 2016 WI 3, 1/15/16, affirming a published court of appeals decision; case activity (including briefs)

Residents of multi-family dwellings, beware! According to the dissent, this decision “creates a great inequity” between those who live in houses and those who don’t (e.g. SPD clients). The majority holds that a locked, parking garage beneath an apartment building is not curtilage protected by the 4th Amendment, and an apartment dweller has no reasonable expectation of privacy in the private parking space for which he pays rent. Attorney Anthony Cotton, counsel for Dumstrey, offers his thoughts on the decision.

Off-duty officer DeJarlais saw Dumpstrey driving erratically, pulled up next to him at a red light, flashed his badge and told him to pull over because police were on their way.  Dumstrey didn’t obey. He drove erratically all the way to the underground parking garage of his apartment complex. Using a remote control, he opened the garage door and pulled in. To prevent the garage door from closing, DeJarlais quickly drove his car just over the threshold and stopped. On-duty officer Lichucki arrived, observed signs that Dumstrey was intoxicated, and asked him to submit field sobriety tests. Dumstrey refused and was arrested him for OWI. Later tests showed he had a .178 BAC.

Dumstrey challenged the legality of the stop and subsequent arrest on the grounds that his seizure occurred after a warrantless entry in violation of the 4th Amendment. The majority held that Dumstrey was never “searched” while in his garage. He was simply “stopped” and “seized” based on reasonable suspicion of OWI and then arrested based on observations supporting that suspicion. Slip op.¶¶19-20.

Warrantless searches and seizures inside a home and its curtilage are presumptively unreasonable under the 4th Amendment. Slip op.¶¶21-21 (citing Payton v. New York, 445 U.S. 573. 586 (1980) and Oliver v. U.S., 466 U.S. 170, 180 (1984)). There are 2 tests for determining whether property qualifies as curtilage: (1) trespassory curtilage analysis and (2) the reasonable expectation of privacy anaylsis. See Katz v. U.S., 389 U.S. 347 (1987). Applying the 4-factor test for curtilage in U.S. v. Dunn, 480 U.S. 294 (1987), the majority held that the enclosed, locked parking garage here did not measure up because:

  • While a garage attached to a single-family home is curtilage, a garage beneath an apartment building is not. Dumstrey’s home is his apartment, not the entire apartment building.  Slip op.¶35. He has to take an elevator from the garage and walk through locked hallways to get to his home. The garage is not in close enough proximity to his home to be curtilage. Slip op.¶37.
  • The parking garage is not surrounded by an enclosure because, even though it is enclosed beneath the building and locked, it is shared with 29 other tenats. “[I]t cannot reasonably be contended that each of these tenants’ homes constitutes part of Dusmtry’s home for purposes of the Fourth Amendment. Slip op.¶39. [Editor’s note: ?????]
  • The enclosed, locked garage where Dumstrey parks his car is not “associated with intimate activity of the home or privacy of life.” Slip op.¶42.
  • Dumstrey “has taken no steps to protect the parking garage from observation by passersby within the garage.”  Slip op.¶45.

Dumstrey’s garage also fails the “reasonable expectation of privacy” test because even though he has a personal property interest in his parking space and has a legal right to be there, he has no dominion or control over the entire garage, has not sought privacy within the garage, and has not put the garage to some private use (other than parking his car there). Moreover, his claim to privacy is not consistent with historical notions of privacy because he uses it the same way his 29 co-tenants use it.  Slip op.¶49.

Yes, the 19-page dissent by A.W. Bradley (joined by Abrahamson) had a field day with the majority’s reasoning.  Here’s the thumbnail:

¶75 The analysis of the majority is infirm in a number of ways: (1) it conflates curtilage with a reasonable expectation of privacy; (2) it skews the analysis by shifting the focus onto the other tenants in Dumstrey’s building, rather than on the government; and (3) it disregards controlling Supreme Court precedent. Perhaps its biggest infirmity is that it ignores the collective right that residents of apartments or condominiums have to exclude all individuals that do not have a legitimate purpose on their property.

¶84 The State acknowledged that if the garage door had closed before DeJarlais forced it to remain open, it would have been unreasonable under the Fourth Amendment for the State to forcibly break and enter through the garage door to search.

Bradley explains that the majority’s analysis rests on U.S. v. Cruz Pagan, 537 F.2d 554 (1st Cir. 1976), which relied upon Katz’s “reasonable expectation of privacy” test, which no longer applies to a curtilage analysis under DunnSlip op.¶94. See  U.S. v. Jones, 132 S.Ct. 945, 952-953 (2012) and Florida v. Jardines, 133 S. Ct. 1409 (2103). Plus, she cites a lot of non-Wisconsin decisions that contradict the majority opinion. On Point looks forward to Dumstrey’s cert. petition (hint, hint) and reminds readers of great resources for filing cert. petitions here.

Note Justice Prosser’s separate, concurring opinion. He agrees with the majority’s decision. He is worried that some of its broad statements of law suggest that “police may not arrest a person on probable cause when the person is within the person’s own curtilage but not within the home. In my view, a broad principle to this effect would constitute a serious mistake of law and an impractical hardship for law enforcement.” ¶55. He says State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990) “is too broad and that some courts that ‘talk the talk’ do not ‘walk the walk’ because walking the walk would make little sense in light of other United States Supreme Court precedent. When the Payton rule is followed, the law is clear. When the Payton rule is extended to curtilage, the law will be open to constant dispute.” ¶70.

Dumstrey’s lawyer, Anthony Cotton, gave On Point, his perspective on the decision:

The majority continues to ignore Justice Scalia and the clear holdings issued by the United States Supreme Court in Jones and Jardines. It was clear at oral argument (which can still be viewed online) that those justices who would rule against us, were having trouble analyzing this case under the trespass framework that SCOTUS has resurrected. If the issue were analyzed under the old Katz “reasonable expectation of privacy framework” we have a much tougher argument. But SCOTUS has made clear that Katz did not replace traditional trespass considerations. In short, if law enforcement trespass to an area which is constitutionally protected, the derivative evidence is suppressed. For that reason, as the dissent points out, Jardines is right on point.

There are other interesting issues to think about in this decision and it will be fascinating to see if SCOTUS grants review. First, there have been no curtilage cases like this in recent history. Second, more and more people continue to reside in multi-family dwellings. Shouldn’t those individuals have the same protection against the government as those who can afford (or choose) to live in a single family home? Curtilage is certainly an area over which a defendant enjoys constitutional protection, and an honest application of the Dunn factors ought to result in a finding that a locked underground garage (tethered to one’s home) is curtilage.

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