BENCH BLOG: Apartment parking garage is not curtilage

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The Wisconsin Supreme Court has ruled that a parking garage that lies beneath an apartment building and has locked entrances is not protected curtilage under the Fourth Amendment.

The case stems from an off-duty police officer’s decision to follow a car driven by Brett Dumstrey, who had been speeding and driving erratically the night of a Brewers game. The officer suspected the driver might be drunk and called for a squad’s assistance.

Dumstrey drove to his apartment complex and used his remote-control opener to raise the garage door. The officer followed him and parked his car beneath the door in order to keep it open for the squad he had summoned.

Shortly afterward, the squad arrived and entered the garage through the still-open door. After a brief investigation, Dumstrey was arrested for driving while intoxicated.

Suppression motion

Dumstrey did not contest that there was reasonable suspicion for the stop. Rather he challenged his stop and arrest on the grounds that it was a warrantless entry into space protected by the Fourth Amendment.

At a hearing before Waukesha County Circuit Judge Donald Hassin, Dumstrey testified that he was a tenant of an apartment in the 30-unit building and paid to use an underground parking space. Important to note here is that the garage has only two entrances. One is through the remote-controlled door and the other through an interior key-locked door.

All 30 tenants can pay for assigned parking spaces and all use the single elevator to get from the garage to their apartments. There were no storage spaces in the garage, only parking spaces.

Judge Hassin concluded that the parking garage was not curtilage and denied the motion. Dumstrey pleaded guilty to OWI second and then appealed the denial of his suppression motion.

Court of Appeals

On appeal, the state conceded that if the underground garage were indeed curtilage, then the stop and arrest in the garage had violated the Fourth Amendment. Thus, the issue was narrow: whether the parking garage was curtilage.

In an erudite opinion from District 2 Court of Appeals Presiding (now Chief) Judge Lisa Neubauer, the court gave much weight to Dumstrey’s “lack of complete dominion and control and inability to exclude others, including the landlord and dozens of tenants and their invitees.” Largely for that reason, the court ruled that the parking garage was not curtilage of his home.

Judge Paul Reilly dissented. “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 from government intrusion.

Supreme Court

Chief Justice Pat Roggensack wrote for the majority who analyzed whether the parking garage should be considered curtilage according to the four factors laid out in the 1987 case of United States v. Dunn.

The first factor is proximity of the area to the home. Quoting from another case, the court “tend(ed) to agree” that “a tenant’s (home) cannot reasonably be said to extend beyond his (or her) own apartment and perhaps any separate areas subject to his (or her) exclusive control.”

The second factor is whether the area is included within an enclosure surrounding the home. “That the parking garage is included within the enclosure of the entire apartment building could tend to favor the garage being part of his home’s curtilage.” But then, by the same reasoning, the 29 other apartment units would also be curtilage and that doesn’t make sense under the Fourth Amendment.

The third factor is the nature of the uses to which the area is put. Here, the sole purpose is parking. Curtilage is “the area to which extends the intimate activity associated with the sanctity of a (person’s) home and the privacies of life.” The majority of courts considering the question did not associate parking with an intimate activity of the home or the privacies of life.

The last of the four factors is the steps taken by the resident to protect the area from observation by passers-by. The majority did not consider this only from the perspective of those passing by the apartment building but also of other tenants and their guests, who might pass through the parking garage itself. Nothing shields them from observing the parking spaces.

The majority therefore concluded through this four-step analysis that the underground parking garage did not constitute Dumstrey’s curtilage.

Nor did Dumstrey have a reasonable expectation of privacy under the totality of circumstances associated with a large, common parking area frequented by other tenants and their invitees. “However, we do not foreclose the possibility that a person may exhibit a reasonable expectation of privacy in a smaller, more intimate multi-unit dwelling.”

Dissent

As did Reilly, Justice Ann Walsh Bradley noted that the decision would have adverse effects on those who live in multi-family buildings rather than single-family homes.

She also opined that the Dunn factors were based on a suburban-rural set of facts, and were not as well suited to an urban setting.

She criticized the majority’s analysis of curtilage as being skewed toward the perspective of persons authorized to be on the premises. “The proper analytical framework ought to be whether the area is protected from government intrusion, not whether other tenants also have a right to use the garage.”

She concluded that the Dumstrey’s parking garage is curtilage because it was in close proximity to his home, enclosed, used for the intimate activities of home, and protected from public view. “Thus, the officers’ entry into Dumstrey’s garage was a trespass in violation of the Fourth Amendment.”

Commentary

This was a hard-fought case, and not only by the litigants but also among the judges and justices.

At first blush, the outcome of the case is surprising, especially given some compelling points raised by the dissents. But after thoughtful legal analysis, the courts have reached a difficult but correct conclusion.

Communal living in apartments and condominiums has its advantages, but also its drawbacks, one of which is a tightly contained curtilage.