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State v. Brett W. Dumstrey, 2013AP857-CR, petition for review granted 3/16/15

Review of a published decision of the court of appeals; case activity (including briefs)

Issue (composed by On Point)

Did the police violate the Fourth Amendment by entering the parking garage of an apartment complex without a warrant and without the consent of a resident of the complex?

As explained in greater detail in our post on the court of appeals decision, an off-duty cop who suspected Dumstrey of driving drunk followed him to his apartment complex garage and blocked the door from closing so on-duty officers dispatched to the scene could enter and look for Dumstrey. Declaring that Wisconsin law didn’t address entry into apartment complex garages, a majority of the court of appeals held that the police did not violate the Fourth Amendment by entering the garage because it wasn’t part of the curtilage of his home and thus wasn’t a constitutionally protected area.

A vigorous dissent by Judge Reilly took issue with the majority for ignoring Wisconsin precedent holding that garages are curtilage. In addition, however much Dumstrey and his fellow tenants had a lesser amount of privacy in the garage vis-a-vis each other, the fact the garage was secured from the general public and the government meant Dumstrey and his fellow tenants retained their constitutional right to be free from unreasonable government intrusions. As the dissent aptly says, “[w]hile the eyes and ears of the government are constitutionally prohibited from roaming the private garages of single-family residences, the majority denies the ‘privacies of life’ to those who live in urban America.” (¶24). We’ll see if the supreme court is more solicitous of the rights of urban (and suburban) apartment dwellers.

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