State v. Brett W. Dumstrey, 2015 WI App 5, petition for review granted 3/16/15, affirmed, 2016 WI 3; case activity
The court of appeals holds that the warrantless, nonconsensual entry by police into Dumstrey’s apartment complex parking garage was not unreasonable because the area was not part of the curtilage of Dumstrey’s home. The court also holds that any trespass by the police didn’t violate the Fourth Amendment because the garage wasn’t a constitutionally protected area. But a dissenting judge concludes prior Wisconsin case law establishes the garage was part of the curtilage and that the police conduct was unreasonable.
An off-duty police officer driving his personal vehicle concluded Dumstrey might be driving while intoxicated based on Dumstrey’s driving and appearance (the “blank look on his face” and “sleepy” and “kind of glassy” eyes). The officer followed Dumstrey into the parking garage under Dumstrey’s apartment building and blocked the garage door to keep it from closing so on-duty officers dispatched by his call could come in. (¶¶2-3).
Saying the question of whether a garage in a multi-unit apartment building is curtilage “appears to be an unanswered question in Wisconsin” (¶9), the court proceeds to answer the question by reference to the factors in United States v. Dunn, 480 U.S. 294, 301 (1987), as adopted by State v. Martwick, 2000 WI 5, ¶30, 231 Wis. 2d 801, 604 N.W.2d 552, and to the reasonable expectation of privacy test in State v. Trecroci, 2001 WI App 126, ¶36, 246 Wis. 2d 261, 630 N.W.2d 555. Based on these cases, and on cases from other jurisdictions holding that tenants of multi-dwelling buildings don’t have a reasonable expectation of privacy in common or shared areas, even when those areas are inside a secure building (¶¶12-13), the court holds:
¶14 Applying the guiding principles and factors discussed above, we conclude that under the totality of circumstances the parking garage was not curtilage. The common or shared area analysis applies to this case. There was unrefuted testimony that there were thirty stalls in the parking garage, an area that was used exclusively for parking cars. While the underground garage was connected to Dumstrey’s apartment building, and the outside access was limited to tenants and shielded from the general public with entry by remote control, Dumstrey shared the garage with the landlord and the other tenants who park there and their invitees. Many others, including strangers to Dumstrey, regularly had access. Given Dumstrey’s lack of complete dominion and control and inability to exclude others, including the landlord and dozens of tenants and their invitees, we conclude that the parking garage was not curtilage of Dumstrey’s home. Such a space, open to and shared with dozens of other people for the sole purpose of parking cars, was not an area in which Dumstrey would reasonably feel free to carry on “the intimate activity associated with the sanctity of [one’s] home and the privacies of life.” Oliver [v. United States], 466 U.S. [170,] 180 [(1984)] (citation omitted). Nor did Dumstrey have a reasonable expectation that the common, shared garage would be free from any intrusion. See [United States v.] Eisler, 567 F.2d [814,] 816 [(8th Cir. 1977)] (“An expectation of privacy necessarily implies an expectation that one will be free of any intrusion, not merely unwarranted intrusions.”). Under the facts presented, the parking garage was not curtilage of Dumstrey’s apartment home.
 Neither party addresses the nature of the property interest Dumstrey had in the garage area, i.e., whether he is a licensee of the landlord, etc. We will assume without deciding that he has a property interest of some type and that the officer was trespassing.
The court also rejects Dumstrey’s argument that the police officer committed a trespass and therefore violated the Fourth Amendment under United States v. Jones, 565 U.S. 945, 132 S.Ct. 945 (2013), Florida v. Jardines, 569 U.S. ___, 133 S.Ct. 1409 (2013), and State v. Popp, 2014 WI App 100, ___ Wis. 2d ___, 855 N.W.2d 471. Not so, says the majority: Those cases “all involved constitutionally protected areas” and “reaffirm that a trespass by a government agent ‘is of no Fourth Amendment significance’ unless it is on one of those protected areas enumerated in the Fourth Amendment. See Jones, 132 S. Ct. at 953;…” (¶16). Because the garage isn’t curtilage, it isn’t a constitutionally protected area, and the trespass didn’t violate the Fourth Amendment.
Judge Reilly dissents, saying “Dumstrey’s nonpublic, locked, enclosed, underground, elevator-accessed garage is curtilage, and the government’s entry into the garage was unreasonable under the circumstances” and noting that, as the state conceded, if the garage door had closed before the officer blocked the security sensor, it would have been unreasonable for the police to have forcibly broken down the garage door. “I see little difference in the reasonableness of the government breaking through a door or breaking the door’s security system in order to gain entry.” (¶18).
Moreover, the dissent says, the issue here isn’t “unanswered” by Wisconsin law, saying that “I shall not bore the reader with pages of string cites from cases that have found garages to be curtilage; rather, I offer only two from Wisconsin that are binding on this court.” (¶24 (emphasis added)). Those case are Bies v. State, 76 Wis. 2d 457, 461-63, 251 N.W.2d 461 (1977), where the court agreed with the parties that a garage accessed through an alley and outside door was part of the curtilage of the home, and State v. Davis, 2011 WI App 74, ¶12, 333 Wis. 2d 490, 798 N.W.2d 902, where the court said it would be difficult to imagine a scenario where a typical attached garage could not be considered curtilage. The majority effectively restricts Davis to single-family homes by concluding that Dumstrey’s attached garage is not curtilage because it is shared with covenants, with this consequence: “While the eyes and ears of the government are constitutionally prohibited from roaming the private garages of single-family residences, the majority denies the ‘privacies of life’ to those who live in urban America.” (¶24).
As the dissent succinctly states its basic, and powerful, point: “The fact that Dumstrey and his cotenants share the garage does not defeat the fact that each of the tenants has secured the garage from the general public and the government through their collective actions. Dumstrey may have a lessened amount of privacy among his fellow tenants, but he and his fellow tenants retain their constitutional right to be free from unreasonable government intrusions.” (¶25).