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Warrants – Scope – Physical Proximity Test

State v. Delano J. O’Brien, 223 Wis.2d 303, 588 N.W.2d 8 (1999), reconsideration denied, 225 Wis.2d 247, 591 N.W.2d 846 (1999), affirming State v. O’Brien214 Wis.2d 327, 572 N.W.2d 870 (Ct. App. 1997)
For O’Brien: Martin E. Kohler, John C. Thomure, Jr.

Holding: A search warrant was obtained for O’Brien’s residence (a farmstead including a duplex), and during the course of the search evidence was seized from his truck, parked 200 feet from the duplex. O’Brien argues that the vehicle wasn’t part of the curtilage. The trial court found that the area outside the residence was not exclusively allocated to one tenant or the other, but was a common area and therefore part of the curtilage. The finding that the truck was parked in a common area is reviewed deferentially and upheld, underpinning a conclusion of reasonableness with respect to the search:

¶19     In the case of a premises warrant, the warrant generally authorizes the search of all items on the premises so long as those items are plausible receptacles of the objects of the search.  Id. at 389 (citing United States v. Ross, 456 U.S. 798, 820-21 (1982)).  Courts have utilized different approaches for determining the proper scope of a premises search warrant.  Andrews, 201 Wis. 2d at 391 (primary approaches are “relationship,” “notice” and “physical proximity or possession” tests).

¶20     In Andrews, this court adopted the physical proximity test.  Under the physical proximity test,

police can search all items found on the premises that are plausible repositories for objects named in the search warrant, except those worn by or in the physical possession of persons whose search is not authorized by the warrant, irrespective of the person’s status in relation to the premises.

Andrews, 201 Wis. 2d at 403.  Under this test, the cornerstone of the Fourth Amendment, the reasonableness of the search, remains.  Id.

¶21     The premises warrant in this case authorized the search of the upper flat of the defendant’s premises in order to locate a pair of underpants and blue jeans, as well as other items described by the victim.  Those two items were not located in the residence, so the detectives extended the search to the buildings nearby.  The vehicle was parked next to one of the buildings, approximately 200 feet from the home.  The detectives knew that the vehicle was registered to the defendant, and that the items were small enough to fit inside of it.  Because the vehicle was a plausible repository for the objects named in the search warrant, and because the vehicle was in close proximity to the home, we conclude that the detectives search of the vehicle was reasonable.

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