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Search & Seizure: Warrantless Entry (Duplex, Common Hallway) – Third-Party Consent – Exigent Circumstances

State v. Anthony D. Guard, 2012 WI App 8 (recommended for publication); for Guard: Richard L. Zaffiro; case activity

Warrantless Entry – Duplex, Common Hallway

Guard, a resident of a duplex upper flat, had a reasonable expectation of privacy in a hallway by which his unit was accessed, such that warrantless police entry into that hallway without consent or exigent circumstances violated the fourth amendment; factors enunciated by State v. Rewolinski, 159 Wis. 2d 1, 12, 464 N.W.2d 401 (1990), applied:

¶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;[5] (4) the only entrance to his dwelling was the side entrance, which also provided access to the back entrance to the lower unit and gave both units access to the basement; (5) the existence of a closed exterior security door blocking entrance from the outside to the common hallway demonstrates control of access to his dwelling; (6) there is no evidence the tenant in the lower unit had a key to access the back hall through the security door and the interior door; and (7) Guard’s possible allowance of others to enter with his permission (e.g. a pizza delivery person, or a UPS delivery person) does not transfer the only entrance to his dwelling to an area freely accessed by all in the duplex, much less by the general public.  See Trecroci, 246 Wis. 2d 261, ¶39 (Allowing “third parties to enter and use the stairway” with the consent of the owner or tenant “alone does not negate a reasonable expectation of privacy.”); see also State v. Peck, 143 Wis. 2d 624, 638, 422 N.W.2d 160 (Ct. App. 1988) (An inquiry into a person’s reasonable expectation of privacy should focus not on “the ability of third parties to gain access to or view the property[,] but rather the manner in which the possessor holds the property out to the public.”).

Several other factors militating in favor of privacy noted: closed (if unlocked) exterior door; private, as opposed to commercial, use of unit (exemplified by “social encounter” at time of police entry), notwithstanding possible illicit enterprise at site; overriding respect for sanctity of home, ¶¶19-21.

Third-Party Consent 

When the officers approached the duplex, they found two women on the front porch, one of whom said, “You can use the hallway there” (in the back) to get to the upper flat. However, before proceeding to the back, the officers failed to “make even minimal efforts to verify that one of the women was, in fact, a resident of the duplex …. The record does not establish that the officers knew of any connection between the woman identifying the side entrance and Guard; in fact, she did not even know Guard’s name,” ¶25. The record does not support reasonable belief by the police that they had received consent to enter from someone having joint control or access, applying State v. Kieffer, 217 Wis. 2d 531, 542, 577 N.W.2d 352 (1998):

¶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 before 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, 246 Wis. 2d 261, ¶¶6, 39-40 (In the context of an identifiable marijuana smell apparently emanating from an attic, the owner/occupant of a residential building did not have the authority to consent to a search of the locked attic rented to third parties but accessed from the same locked stairway as two other apartments.); see also Kieffer, 217 Wis. 2d at 542-47 (father-in-law had no actual authority to consent to search of loft area rented by daughter and son-in-law where there was no established mutual use of the loft area and where officers made no inquiries as to father-in-law’s access to the area).

Nor, given the paucity of police efforts to investigate the women’s connection to the duplex, could the officers reasonably rely on apparent authority to consent, ¶28.

Exigent Circumstances 

Probable cause coupled with exigent circumstances support warrantless entry but, assuming (from the smell of burning marijuana) the existence of probable cause, the police lacked exigent circumstances for their entry, applying State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621 and State v. Garrett, 2001 WI App 240, 248 Wis. 2d 61, 635 N.W.2d 615:

¶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 that 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 testified that he did not “find anything that … concerned [him] with them.”  Nor does the record suggest that Guard could have escaped from the duplex without the officers’ knowledge because the officers had control of the only means of access to the upper unit.

¶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. … 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.

That last paragraph is a seeming, if veiled, reference to the idea that knowledge of the police presence greatly increases the occupants’ incentive to destroy the drugs;  Hughes and Garrett embody the point, as does State v. Antonio K. Phillips, 2009 WI App 179. Though the court is less than explicit, it follows that ignorance of police presence cuts against the idea of exigency.

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