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Defense win – tenant had standing to challenge unlawful search of basement

State v. Brooke K. Eder, 2021AP485, 2/28/23, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Officers got a warrant to arrest one Estes. The warrant permitted them to search Eder’s apartment for Estes; the affidavit gave various reasons to believe that Estes would be there. Estes was there, and they arrested him. After they arrested him, though, they searched the basement of the three-unit building. You can’t do that! “A search may not be continued after the objects identified in the search warrant have been located and seized.” State v. Starke, 81 Wis. 2d 399, 414, 260 N.W.2d 739 (1978). This unlawful search turned up contraband that led police to get a new warrant to search Eder’s apartment; Eder seeks to suppress the evidence found in this second search on the ground that it was the fruit of the basement search.

The trial court found that Estes lacked a reasonable expectation of privacy in the shared basement, and therefore had no standing to challenge the search. The question isn’t whether Estes subjectively held an expectation of privacy; all agree that she did. The question is whether her subjective expectation was “legitimate or justifiable in that it is one that society is willing to recognize as reasonable.” State v. Dixon, 177 Wis. 2d 461, 468, 501 N.W.2d 442 (1993).

The Dixon court set out six “relevant” factors bearing on whether a privacy expectation is reasonable, but said they were “not controlling or exclusive.” Id. at 469. In this case, the court of appeals notes, the trial court erred by treating the six enumerated factors as a set of six mandatory conditions, all of which a defendant must satisfy. (¶33). This six factors are:

(1) whether the accused had a property interest in the premises; (2) whether the accused is legitimately (lawfully) on the premises; (3) whether the accused had complete dominion and control and the right to exclude others; (4) whether the accused took precautions customarily taken by those seeking privacy; (5) whether the property was put to some private use; [and] (6) whether the claim of privacy is consistent with historical notions of privacy.


The circuit court (again, misunderstanding the factors as necessary elements) found that Eder had failed to establish the third and sixth factors. But applying the proper test, the court of appeals holds that Eder’s expectation of privacy was reasonable. (Smrekar is the building’s owner, Johnson the downstairs tenant):

Eder’s apartment building had three units, but only two of those units were occupied on the dates at issue in this case. The building’s basement was part of Johnson’s lease, but Johnson and Smrekar allowed Estes and Eder to use the basement. Estes and Eder used the basement regularly, they stored items in the basement, and Estes used the basement to “work on projects.” Estes and Eder paid “a little bit of rent” to Johnson in order to use the basement. The basement could be accessed both from an exterior door and from Johnson’s apartment. Estes put a lock on the basement’s exterior door, locked it, and gave one of the two keys to Johnson. Although Johnson could access the basement through his apartment, he did not use the basement regularly “because it was wet.”


Given these facts, the court of appeals says, not only were the third and sixth factors not fatal to the reasonableness of Eder’s expectation of privacy: they weighed in its favor. As to “dominion and control,” the opinion observes that a reasonable expectation of privacy can be a shared expectation. That is, Estes, Eder and Johnson didn’t exclude each other from the basement, but their actions (such as locking it to the outside) showed they intended to exclude the rest of the world (save for potential guests). The court cites Minnesota v. Olson, 495 U.S. 91, 99-100 (1990), for the notion that the  “untrammeled power to admit and exclude” is not “essential to Fourth Amendment protection.” (¶37).

Further, this sort of privacy is “consistent with historical notions of privacy”:

Eder and Estes lived in the apartment building and paid rent to use the building’s basement. They used the basement for multiple purposes, and although Johnson had the ability to access the basement, the court found that he did not use it regularly. Under these circumstances, we agree with Eder that her expectation of privacy in the basement—an area that she and Estes paid rent to use and that was accessible to a limited number of people—was consistent with historical notions of privacy.


Having held that Eder had standing to challenge the basement search, the court remands so that the circuit court may assess whether it in fact tainted the second search of Eder’s apartment. (¶40).

Eder had also argued that police lacked sufficient reason to believe Estes was in her apartment when they executed the warrant. The court of appeals rejects Eder’s claims of staleness and other deficiencies, holding the first apartment entry justified. (¶¶22-28).

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