On Point: 8. Curtilage

State v. Steven T. Delap, 2016AP2196-CR, 4/20/17, District 4 (one-judge decision; ineligible for publication), petition for review granted 7/18/17, affirmed, 2018 WI 64; case activity (including briefs)

Police tried to arrest Delap outside his home on warrants for fleeing from a couple of traffic stops, but when they approached and said “stop, police,” Delap fled into his home. The police followed and arrested him inside. (¶¶3-6). Delap’s challenge to his arrest is no more successful than his attempt to flee.

State v. Steven J. Schaefer, 2015AP2555-CR, District 3, 11/1/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Schaefer challenged evidence seized after he was arrested outside his home. He argued the arresting officer entered the curtilage of his home without a warrant. The court of appeals holds the area was not curtilage under the four-factor test established by United States v. Dunn, 480 U.S. 294 (1987).

State v. Andrew S. Sato, 2015AP1815-CR, 10/18/2016, District 1 (not recommended for publication); case activity (including briefs)

Police investigating an armed robbery the previous evening learned their suspect was at home in his apartment. One officer initiated a “knock and talk,” banging on the front door of the apartment and yelling for five to ten minutes while another officer positioned himself outside near the apartment’s bedroom window. After that second officer heard loud noises, the first kicked in the door and arrested Sato. The officers then went and got a search warrant for the apartment, which turned up evidence of the crime.

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.

Oconto County v. Joseph R. Arndt, 2014AP2955, District 3, 7/21/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Arndt was not arrested within the curtilage of his home under the test established by United States v. Dunn, 480 U.S. 294 (1987).

State v. Rachael A. Dickenson, 2015AP277-CR, District 2, 7/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The police didn’t enter the curtilage of Dickenson’s home or commit a trespass by walking up her driveway toward the back of her house.

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.