State v. Brett C. Basler, 2018AP2299-CR, District 2, 5/15/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Police entered Basler’s home looking for a driver suspected of hitting a Hardee’s® restaurant while operating while intoxicated. They didn’t have a warrant. There were no exigent circumstances. The entry was unlawful.
The police walked up the front steps of Basler’s home and, without knocking or ringing the doorbell, opened a storm door and then a “firmer, stronger door” with a “full metal handle” and walked onto an enclosed porch with furniture. They then knocked on a set of French doors. (See the photos helpfully included at the end of the decision.) Basler opened the French door and, beside exhibiting common indicia of intoxication, asked the police why they’d “broken into his house.” After taking Basler outside police eventually arrested him for OWI. (¶¶2-5).
Basler moved to suppress on the ground police unlawfully entered his curtilage. The circuit court denied the motion. Not only was the circuit court wrong; Basler’s argument doesn’t go far enough:
¶11 …[W]e conclude that the officers in this case illegally entered Basler’s home in violation of the Fourth Amendment. …[W]e find it disingenuous that the State failed to concede that at the very least the front room of Basler’s home is considered curtilage under the case law. In State v. Dumstrey, 2016 WI 3, ¶32, 366 Wis. 2d 64, 873 N.W.2d 502, we acknowledged our adoption of the [United States v.] Dunn[, 480 U.S. 294 (1987)] four-factor test, which considers “(1) ‘the proximity of the area claimed to be curtilage to the home’; (2) ‘whether the area is included within an enclosure surrounding the home’; (3) ‘the nature of the uses to which the area is put[;] and’ (4) ‘the steps taken by the resident to protect the area from observation by people passing by’” (alteration in original; citation omitted). Based on the testimony at the hearing and the photographs provided in the record, we are confident that the front room of Basler’s home satisfies all the Dunn elements and is easily considered curtilage. This finding is further supported by the clear statement from the United States Supreme Court that “[t]he front porch is the classic exemplar of an area ‘to which the activity of home life extends’” and is properly considered curtilage under the law. [Florida v.] Jardines, 569 U.S. [] 1 [(2013)] (citation omitted).
¶12 That being said, we take the analysis a step further. We conclude that the front room of Basler’s home is more than curtilage; it is properly considered part of Basler’s home. We reach this conclusion based on a number of factors. First, not only was the room attached to and located within the same overall structure of the house, but it is also surrounded by the same materials used on the outside of the rest of the home: siding and windows. Basler’s front room is not similar to, for example, an open front porch of a person’s home with a metal or wood railing surrounding it. Nor can it be compared to the screened-in porch in State v. Edgeberg, 188 Wis. 2d 339, 343, 524 N.W.2d 911 (Ct. App. 1994), where the door leading onto the porch was a wooden screen door and the porch housed laundry. Basler’s front room was designed to be a part of his home. Second, we know this because the door leading from the outside into the front room included not only a wooden screen door, but also a thicker, inner wooden door with a deadbolt. Outside this door was both the doorbell and the mailbox, indicating that visitors, including the mailperson, were to remain outside unless and until invited in. Third, the only doors separating the front room from the rest of Basler’s home were double French doors that are typically found only in the interior of a home. And finally, the items located inside Basler’s front room also make clear that this room was used in the same manner as other rooms in the rest of the house. For example, the room contained two stuffed armchairs, a television and DVD player, a wooden table and chairs, and we also note what appears to be curtains on at least two of the windows. The furnishings in this room, therefore, more closely resemble a family room or den of a home.
The court also rejects the state’s reliance on the authority of police to go up to a house to do a “knock and talk.”
¶13 …. In stepping over the threshold of Basler’s front door, into the confines of his home, the officers went beyond the “implicit license” discussed in Jardines and walked directly into a violation of the Fourth Amendment. The officers violated one of the most sacred tenets of our constitution: the sanctity of the home. It matters little whether the officers’ actions were a technical violation, albeit taken unknowingly or without bad faith. The officers were there to investigate a crime. Basler was a suspect—not a witness or a person of interest—but a suspect in that crime. The officers violated Basler’s home to advance their investigation and for the purpose of collecting evidence to establish probable cause to support his arrest.
