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Challenges to seizure at apartment door and protective sweep of apartment rejected

State v. Jordan Bennett Micklevitz, 2018AP637-CR, District 1, 1/23/19 (not recommended for publication); case activity (including briefs)

The court of appeals rejects Micklevitz’s challenges to the search of his apartment.

Police went to Micklevitz’s apartment on a misdemeanor domestic violence battery “want.” Micklevitz answered the officers’ knock on his door, and police determined he matched the description of the person in the want. They also noticed a strong odor of marijuana. Micklevitz tried unsuccessfully to close the door; the police blocked that attempt, pepper sprayed him, arrested him, and then did a “protective sweep” of the apartment, during which they noticed marijuana residue, baggies, pill bottles, and guns and ammo. They secured the scene and got a search warrant based on what police saw during the sweep. A search pursuant to the warrant turned up 40 grams of pot and hundreds of prescription pills, among other things. (¶¶4-13).

Micklevitz moved to suppress, arguing the protective sweep was unlawful because he’d been arrested in the hallway and police had no reason to believe anyone else was inside the apartment. But the trial court’s fact findings doom this challenge: the odor of marijuana, Micklevitz’s resistive behavior, the loaded gun police found on Micklevitz when they arrested him, the spent shell casings they saw, and the inability to see all the rooms in the apartment from the hallway—all supported the officers’ concerns there might be another person present who could stage an ambush or destroy evidence and thus made the sweep reasonable under Maryland v. Buie, 494 U.S. 325, 337 (1990). (¶¶18-23).

Micklevitz also raised new challenges in a postconviction motion, arguing trial counsel was ineffective for failing to make them. (¶¶17, 31). These fail, too, so counsel wasn’t deficient for not raising them.

The first challenge is that the police were illegally entered on his “curtilage”—that is, the hallway of the apartment building, which is accessible only through locked doors. But there’s no evidence in the record about how the police entered the building. Moreover, State v. Dumstrey, 2016 WI 3, 366 Wis. 2d 64, ¶35, 873 N.W.2d 502, forecloses an argument that the entire apartment building is automatically curtilage; Micklevitz doesn’t otherwise develop an argument using the factors under United States v. Dunn, 480 U.S. 294 (1987); and Kentucky v. King, 563 U.S. 452, 469-70 (2011), says police can go on the curtilage to knock at the front door. (¶¶32-34).

Second, he argues the officers’ actions in blocking him from closing the door amounted to a warrantless entry of his apartment. Maybe so, but they had probable cause and exigent circumstances given the odor of marijuana and Micklevitz’s knowledge that the police were there, so under State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, the warrantless entry was lawful. (¶¶35-38).

Finally, he complains the police were in the apartment for four hours before the search warrant was issued. But that’s of no moment, says the court, as there’s no evidence they searched the apartment further while awaiting the warrant. Securing the scene and documenting evidence in plain view is not unlawful. La Fournier v. State, 91 Wis. 2d 61, 68-70, 280 N.W.2d 746 (1979). (¶¶39-40).

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