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Terry stop in co-worker’s private driveway is lawful

State v. Barry J. Krull, 2019AP370-CR, 6/2/20, District 3, (1-judge opinion, ineligible for publication); case activity, (including briefs)

Deputies noticed Krull speeding and followed him to his co-worker’s residence. Krull drove 30-40 feet into the driveway when the deputies stopped him, noticed the usual signs of intoxication, conducted FSTs and then took him to the hospital for a blood draw. He moved to suppress arguing that the stop was unlawful and his consent to the blood draw wasn’t voluntary. He lost and appealed.

Krull argued that a Terry stop can never occur on private property under §968.24, State v. Munroe, 2001 WI App 104, ¶13 n.4, 244 Wis. 2d 1, 630 N.W.2d 223 (§ 968.24 authorizes [investigatory] stops in public places, not in homes or hotel rooms”), and State v. Stout, 2002 WI App 41, ¶1, 250 Wis. 2d 768, 641 N.W.2d 474 (Terry “only applies to stops made in a public place and police may not enter an abode based on Terry.”)

The court of appeals held that just because a Terry stop must occur in a public place does not mean it may not occur on private property. Opinion, ¶12.

Krull also argued that he was unlawfully detained on the curtilage of his colleague’s home. Applying United States v. Dunn, 480 U.S. 294, 301 (1987), the court of appeals held that the colleague’s driveway was not part of the curtilage because it was not connected to or included within an enclosure surrounding the home. Opinion, ¶¶14-18. Nor did Krull have any expectation of privacy in his collaeage’s driveway. Opinion, ¶¶19-23.

Krull conceded that he had consented to the blood draw. He argued that his consent was involuntary because as the police drove him away and detained him at the hospital he was very worried about his 2 year old son. He felt pressured to submit to the blood draw in order to make calls to arrange for child care. The court of appeals held that the record did not support this argument. Krull was arrested around 9:00 p.m. the deputies allowed him to make calls regarding his son. Plus Krull told them he had child care coverage at least until 4:00 a.m. so there was no chance that his young son would be left unattended if he did not submit to a blood draw. Opinion, ¶28.

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