Search and Seizure — intrusion or trespass

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Wisconsin Court of Appeals

Criminal

Search and Seizure — intrusion or trespass

Where a search warrant was based on observations made by police when they trespassed on the defendants’ property and peered into their windows, the search was illegal, and the evidence must be suppressed.

“Applying the intrusion or trespass standard, we conclude that Lieutenant Marks and Corporal Zientek trespassed on the defendants’ property when they, without permission, went up the back steps and onto the porch on the west side of the defendants’ trailer to peer into the window and when they peered into the window on the north end of the trailer. As noted, Thomas expressly told the officers that they could not search the trailer, but the officers went up to the windows, occupied areas that were indisputably protected, see Jardines, 133 S. Ct. at 1414 (no question that areas ‘immediately surrounding’ a house constitute curtilage, which ‘enjoy[] protection as part of the home itself’), and used their flashlights to peer inside, anyway. Moreover, this was not a situation where the officers went to the areas in question to simply knock on the door and ask a few questions. See id. at 1416 (‘a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do”’) (citation omitted). As the defendants point out in their briefs, the officers walked into the yard and onto the back porch ‘with the sole, express purpose of peering inside … the windows.’ ‘They had no other reason for being in those areas,’ and ‘candidly acknowledged that they could not have seen what they saw within the trailer if they had not been standing’ in the yard or on the back porch. Cf. Jardines, 133 S. Ct. at 1416 (‘To find a visitor knocking on the door is routine … to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police.’). Consequently, the officers conducted an illegal search of the defendants’ property.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1916-CR & 2014AP166-CR State v. Popp

Dist. I, Milwaukee County, Fiorenza, J., Curley, J.

Attorneys: For Appellant: Bizzaro, Amelia L., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison