On Point: 6. Common Hallway / Area

State v. Brooke K. Eder, 2021AP485, 2/28/23, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Officers got a warrant to arrest one Estes. The warrant permitted them to search Eder’s apartment for Estes; the affidavit gave various reasons to believe that Estes would be there. Estes was there, and they arrested him. After they arrested him, though, they searched the basement of the three-unit building. You can’t do that! “A search may not be continued after the objects identified in the search warrant have been located and seized.” State v. Starke, 81 Wis. 2d 399, 414, 260 N.W.2d 739 (1978). This unlawful search turned up contraband that led police to get a new warrant to search Eder’s apartment; Eder seeks to suppress the evidence found in this second search on the ground that it was the fruit of the basement search.

State v. Jordan Bennett Micklevitz, 2018AP637-CR, District 1, 1/23/19 (not recommended for publication); case activity (including briefs)

The court of appeals rejects Micklevitz’s challenges to the search of his apartment.

United States v. Eugene A. Sweeney, 7th Circuit Court of Appeals No. 14-3785, 5/9/16

The police officers’ search of the basement of the apartment building where an armed robbery suspect lived was neither a trespass nor an invasion of the apartment dwellers’ curtilage. Thus, the gun found during the search was lawfully seized and not subject to suppression.

United States v. Lonnie Whitaker, 7th Circuit Court of Appeals Nos. 14-3290 & 14-3506, 4/12/16

Taking a drug-sniffing dog into the locked, second-floor hallway of an apartment building where there were at least six to eight apartments without first obtaining a warrant violated the Fourth Amendment under Florida v. Jardines, 133 S. Ct. 1409 (2013), and Kyllo v. United States, 533 U.S. 27 (2001).

State v. Brett W. Dumstrey, 2016 WI 3, 1/15/16, affirming a published court of appeals decision; case activity (including briefs)

Residents of multi-family dwellings, beware! According to the dissent, this decision “creates a great inequity” between those who live in houses and those who don’t (e.g. SPD clients). The majority holds that a locked, parking garage beneath an apartment building is not curtilage protected by the 4th Amendment, and an apartment dweller has no reasonable expectation of privacy in the private parking space for which he pays rent. Attorney Anthony Cotton, counsel for Dumstrey, offers his thoughts on the decision.

United States v. Bodie B. Witzlib, 7th Circuit Court of Appeals No. 15-1115, 8/7/15

The search of the basement of the home Witzlib was living in with his grandmother was valid because the area was shared and not Witzlib’s private space. Nor was the consent affected by the fact that after Witzlib answered the officers’ knock on the front door they asked him to come out of the house onto the driveway and, after he refused consent to search, they went back to ask for his grandmother’s consent to search.

Review of a published decision of the court of appeals; case activity (including briefs)

Issue (composed by On Point)

Did the police violate the Fourth Amendment by entering the parking garage of an apartment complex without a warrant and without the consent of a resident of the complex?

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.

State v. Anthony D. Guard, 2012 WI App 8 (recommended for publication); for Guard: Richard L. Zaffiro; case activity

Warrantless Entry – Duplex, Common Hallway

Guard, a resident of a duplex upper flat, had a reasonable expectation of privacy in a hallway by which his unit was accessed, such that warrantless police entry into that hallway without consent or exigent circumstances violated the fourth amendment; factors enunciated by State v.

State v. Garry C. Eskridge, 2002 WI App 158, PFR filed 6/14/02
For Eskridge: Gregory Bates

Issue: Whether a tenant had an expectation of privacy in the basement area of a multiple unit apartment building.

Holding: A tenant’s expectation of privacy in the common areas of multiple unit buildings is decided on a case by case basis. ¶10. Because the state offered credible testimony —