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Warrantless Arrest – Curtilage – Porch

State v. Gary F. Wieczorek, 2011AP1184-CR, District 3, 11/8/11

court of appeals decision (1-judge, not for publication); for Wieczorek: James R. Koby; case activity

Warrantless arrest of Wieczorek on his front porch for OWI, after he answered the officer’s knock was constitutional. The record doesn’t show that Wieczorek had a reasonable expectation of privacy in the porch. ¶¶10-11, distinguishing State v. Walker, 154 Wis. 2d 158, 184-85, 453 N.W.2d 127 (1990) (expectation of privacy in fenced-in backyard). Moreover, the officer didn’t enter the house, ¶13, contrasting State v. Larson, 2003 WI App 150, ¶24, 266 Wis. 2d 236, 668 N.W.2d 338; and, Wieczorek consented to the officer’s presence on the porch, ¶15. Finally, the arrest was supported by probable cause:

¶17      We conclude that, irrespective of any alleged impropriety in Mork’s investigatory detention, after Wieczorek came outside to talk to Mork, Mork had probable cause to arrest Wieczorek for operating while intoxicated. Probable cause exists when the officer has “reasonable grounds to believe that the person is committing or has committed a crime.”  State v. Popke, 2009 WI 37, ¶14, 317 Wis. 2d 118, 765 N.W.2d 569 (citation omitted).  Here, prior to making contact with Wieczorek, Mork knew Wieczorek’s vehicle had just been involved in a hit and run causing property damage and the reported driver was male.  Mork responded to Wieczorek’s address and found the damaged vehicle in Wieczorek’s driveway.  Mork knew Wieczorek was the only adult male living at the residence.  When Mork made contact with Wieczorek, Wieczorek appeared intoxicated—he could not stand straight, used the door for stabilization, had slurred speech and red glassy eyes, and smelled like alcohol.  Based on his observations and knowledge, Mork had probable cause to believe Wieczorek operated his vehicle while intoxicated.

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