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Warrantless Entry – Curtilage – Attached Garage

State v. Michael C. Christofferson, 2012AP571-CR, District 3, 10/30/12

court of appeals decision (1-judge, ineligible for publication); case activity

The officer didn’t develop probable cause (for OWI arrest; Christofferson was getting out of his car when the officer first saw him) until after illegal entry of the attached garage, therefore the ensuing arrest was unlawful.

¶10      Under the Fourth Amendment, police are prohibited from making a warrantless and nonconsensual entry into a suspect’s home absent probable cause and exigent circumstances.  Attached garages are consistently held to be part of curtilage and are therefore subject to the warrant requirement.  State v. Leutenegger, 2004 WI App 127, ¶21 n.5, 275 Wis. 2d 512, 685 N.W.2d 536. …

¶11      In its brief, the State concedes that “probable cause was not established until Hundt made contact with the defendant” and observed Christofferson’s unsteady balance, glassy eyes, and odor of intoxicants.  However, Hundt had already entered Christofferson’s attached garage when he made observations about Christofferson’s glassy eyes and odor of intoxicants.  See State v. Davis, 2011 WI App 74, ¶13, 333 Wis. 2d 490, 798 N.W.2d 902 (“As a general matter, it is unacceptable for a member of the public to enter a home’s attached garage uninvited …. This premise is true regardless whether an overhead or entry door is open.”).[2]  Because Hundt’s entry into the attached garage was not supported by probable cause to arrest, his entry was unlawful.[3]


[2]  We recognize that law enforcement officers do not invade the privacy of a home when using the normal means of access to and egress from a residence.  See State v. Edgeberg, 188 Wis. 2d 339, 347, 524 N.W.2d 911 (Ct. App. 1994).  However, the State has not established that, pursuant to Edgeberg, it was reasonable for Hundt to enter Christofferson’s attached garage.

[3]  When arguing Hundt unlawfully entered his house, it is unclear whether Christofferson’s use of the word “house” means the entire structure, which would include the attached garage, or simply Christofferson’s interior living quarters.  We conclude this is a distinction without difference because, in either case, Hundt lacked exigent circumstances to make a warrantless arrest.   See infra, ¶¶12-13; see also State v. Martwick, 2000 WI 5, ¶26, 231 Wis. 2d 801, 604 N.W.2d 552 (officer needs probable cause and exigent circumstances for warrantless entry into suspect’s house).

Good language re: attached garage and curtilage, but don’t be misled into thinking that “attached” necessarily concludes the issue, any more than “porch” would. As footnote 2 indicates, the more refined question relates to the “normal means of access,” which itself implicates the “implied invitation” doctrine. It’s unlikely, but not beyond the realm of possibility, that “normal access” is through an attached garage; in other words, it’s a fact-specific inquiry. See Davis post for further discussion of point, indicating that “a general matter, it is unacceptable for a member of the public to enter a home’s attached garage uninvited [but] that there may be an exception to that general rule if, in a given circumstance, it reasonably appears that entry into the attached garage is the least intrusive means of attempting contact with persons inside the home.”

The court, it should be noted, separately rejects the idea of exigent circumstances:

¶13      We, however, reject the State’s arguments.  Hundt was not in “hot pursuit” of Christofferson when he arrived at Christofferson’s residence.  See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (A claim of hot pursuit was unconvincing because there was no immediate or continuous pursuit from the scene of the crime.).  Rather, Hundt came to the residence to investigate the driving complaint.  Additionally, there is nothing in the record that suggests Christofferson was a flight risk or that he was a threat to himself or the public after he arrived home.  See Smith, 131 Wis. 2d at 243 (The flight risk exigency “must arise by clear evidence of a likelihood that the suspect would flee.”); see also State v. Larson, 2003 WI App 150, ¶21, 266 Wis. 2d 236, 668 N.W.2d 338 (because impaired defendant had arrived home and parked his car, he was little threat to public safety).  Finally, although the State asserts an immediate arrest was necessary to prevent the destruction of blood-alcohol level evidence, in Welsh, the United States Supreme Court held that a warrantless arrest cannot be upheld simply because evidence of a defendant’s blood alcohol level might dissipate while police obtain a warrant.  See Welsh, 466 U.S. at 753; see also Larson, 266 Wis. 2d 236, ¶22.   The State has not shown exigent circumstances justified Christofferson’s warrantless arrest.

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