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Expectation of Privacy – Stairway, Multiple Unit Building

State v. Matthew J. Trecroci, Ryan J. Frayer, Ronnie J. Frayer, Scott E. Oberst, Amy L. Wicks, 2001 WI App 126
For defendants: Robert R. Henak

Issue: Whether warrantless police entry of a stairway in a multiple unit building was lawful.

Holding: Existence of reasonable expectation of privacy in a stairway leading to the upper levels of a dwelling is decided case-by-case, rather than under bright-line rule. ¶¶33-34. The various factors listed in State v. Thompson, 222 Wis. 2d 179, 186, 585 N.W.2d 905 (Ct. App. 1998) support these defendants’ expectations of privacy:

  1. Property interest/legitimate presence: The defendants included the owner who lived on the second floor, and others who rented the attic from him. ¶37.
  2. Dominion & control/actions evincing privacy: The defendants were the only ones with unlimited access to the stairway, which they regulated with a deadbolt lock. ¶¶38-40.
  3. Use of property:
    • The owner used the stairway to access his residence, and he therefore had a clearly reasonable expectation of privacy, ¶41;
    • the question is closer for the other defendants, who rented the attic and used it for a purely commercial purpose (drugs), entitling them to less protection than for a residence, but because this use was covert and secretive, and because of the efforts undertaken to keep others out, the use “is consistent with historical notions of privacy.” ¶¶42-43.


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