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Warrantless Entry: Curtilage (Implied Invitation Doctrine) – Attached Garage

State v. Ralph H. Davis, 2011 WI App 74 (recommended for publication); for Davis: Chandra N. Harvey, SPD, Madison Appellate; case activity

Warrantless Entry – Curtilage – Implied Invitation Doctrine

9      The protections of the Fourth Amendment extend beyond the walls of the home to the “curtilage.” Oliver v. United States, 466 U.S. 170, 180 (1984). “[C]urtilage is the area to which extends the intimate activity associated with the sanctity of a [person]’s home and the privacies of life, and therefore has been considered part of the home itself for Fourth Amendment purposes.” Id. (citation omitted). The extent of the curtilage depends upon the nature of the premises, and might be interpreted more liberally in the case of a rural single-owner home, as opposed to an urban apartment.4 See 1WAYNE R. LAFAVE, SEARCH AND SEIZURE § 2.3(d), 587 n.135 (4th ed. 2004) (citing Commonwealth v. Thomas, 267 N.E.2d 489 (Mass. 1971)).

¶10      Law enforcement is not, however, completely prohibited from entering the curtilage. See Edgeberg, 188 Wis. 2d at 347 (“Police with legitimate business may enter the areas of the curtilage which are impliedly open to use by the public and in doing so are free to keep their eyes open.”) (citations omitted). Thus, “if police use normal means of access to and from the house for some legitimate purpose, it is not a [F]ourth [A]mendment search for police to see from that vantage point something in the dwelling.” Id. “Regarding protected areas in residential premises, a sidewalk, pathway, common entrance or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there.” Id. (citations omitted).

The “implied invitation” doctrine: the subject of surprisingly little Wisconsin litigation, despite its potentially recurrent nature. The legal dimensions are pretty simple, as suggested by the discussion in ¶10 – did the police gain entry along a pathway you’d expect the public to use? The battle is thus going to be fought on the facts, as in this case. Note, in this regard, the court’s reproduction of and reliance on a photo, ¶3. Nothing like a demonstrative aid to drive your point home, which is a recurrent point all its own. Don’t take On Point’s word for it, take the Chief Justice’s, in another suppression case, State v. Robert E. Post, 2007 WI 60 (Abrahamson, CJ, conc. and diss.):

¶58  This case … turns on the details.  Yet the parties did not create a careful record of the facts at the suppression hearing.  They were too focused on the legal issue ….  Judge Richard Posner’s comment in a recent case in which the parties failed to present concrete facts to support their respective positions fits the present case: “This case illustrates the curious and deplorable aversion of many lawyers to visual evidence and exact measurements (feet, inches, pounds, etc.) even when vastly more informative than a verbal description.” [22]

Words to guide much of suppression litigation. Something as simple as a photo of the exterior of Davis’s home may not have been decisive, but it undoubtedly made the court’s task easier.

Warrantless Entry – Attached Garage

Warrantless entry of Davis’s attached garage was an unlawful intrusion of his home’s curtilage, the court rejecting the State’s argument that, because the garage and foyer doors were open, the public had an implied invitation to enter. State v. Edgeberg, 188 Wis. 2d 339, 524 N.W.2d 911 (Ct. App. 1994) (recognizing implied invitation doctrine) and State v. Leutenegger, 2004 WI App 127, 275 Wis. 2d 512, 685 N.W.2d 536 (recognizing that entry under the doctrine might be gained via attached garage), synthesized:

¶14      We see no conflict between the Edgeberg and Leutenegger tests.  Leutenegger effectively applies the Edgeberg test to the limited circumstance of an attached garage.  As a general matter, it is unacceptable for a member of the public to enter a home’s attached garage uninvited.  We do not think this premise is subject to reasonable disagreement.  This premise is true regardless whether an overhead or entry door is open.[6] Thus, generally, under Edgeberg, an attached garage will never be impliedly open to public, i.e., police, entry.  Leutenegger, however, recognizes that there may be an exception to that general rule if, in a given circumstance, it reasonably appears that entry into the attached garage is the least intrusive means of attempting contact with persons inside the home.

¶15      Therefore, Zahn’s warrantless entry into Davis’s attached garage violated the Fourth Amendment under Edgeberg, and as the State concedes, the intrusion is not saved by the potential Leutenegger exception.  There is no dispute that the front entry door appeared to be a less intrusive means of attempting contact.  Moreover, even if we assumed, arguendo, that entry through the open door of an attached garage was generally permissible under Edgeberg, it was unreasonable for Zahn to proceed to the rear of the garage to a door that was not visible from outside.  In fact, it was even more unreasonable because Zahn had to utilize a flashlight to find his way through the dark garage.  Given these facts, no person could reasonably conclude that the open overhead garage door was an open invitation for the public to enter and make contact with Davis inside the home.

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