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Defense win! Warrantless search in attached garage held unlawful

State v. Lois M. Bertrand, 2019AP1240-CR, 2/26/20, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs).

The 4th Amendment prohibits a warantless entry into the curtilage of a home unless it is supported by probable cause and exigent circumstances. State v. Weber, 2016 WI 96, ¶19, 372 Wis. 2d 202, 887 N.W.2d 554. In this case, the officer lacked a warrant, probable cause and exigent circumstances when he seized Bertrand in the garage attached to her house. Thus, the circuit court should have granted the motion to suppress evidence obtained as a result of her seizure.

A school employee smelled alcohol on Bertrand when she picked up her son. The employee told her supervisor, who told the principal, who told the police. An officer went to Bertrand’s home, saw her drive into the garage attached to her home, and entered the garage in order to speak with her.  She answered his questions and then put her hand on the door to her home to leave. The officer grabbed her arm, smelled alcohol, saw her bloodshot, glassy eyes, conducted FSTs and arrested her.

It is well-settled that an attached garage is part of a home’s curtilage. See State v. Davis, 2011 WI App 74, ¶12, 333 Wis. 2d 490, 798 N.W.2d 902; State v. Dumstrey, 2016 WI 3, ¶35, 366 Wis. 2d 64, 873 N.W.2d 502.  Nevertheless, Weber upheld a warrantless entry into a garage and an arrest of the defendant because the defendant’s illegal conduct provoked a hot pursuit.

In Bertrand’s case, the State did not argue that the officer had either probable cause or exigent circumstances to arrest her in her garage. Opinion, ¶12. Instead, the State argued that the officer had reasonable suspicion to conduct a Terry stop inside Bertrand’s garage. The court of appeals rejected this argument because the State did not identify any case law allowing police to detain a person for investigation after she has entered her home. Opinion, ¶14. Furthermore: “Even if the officer had reasonable suspicion of an OWI for a brief Terry investigation, he did not have probable cause to arrest for that offense and, therefore, had no basis for entering Bertrand’s home/curtilage without a warrant.” Opinion, ¶18.

State also tried to argue that a garage attached to a home is impliedly open to the public, so Bertrand had no expectation of privacy there. But Wisconsin law is clear on this point “[A]n attached garage will never be impliedly open to public, i.e., police entry.” Davis, ¶17.


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