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2010AP2191-CR State v. Davis

By: WISCONSIN LAW JOURNAL STAFF//April 26, 2011//

2010AP2191-CR State v. Davis

By: WISCONSIN LAW JOURNAL STAFF//April 26, 2011//

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Search and Seizure
Cartilage

Where an officer entered a home’s attached garage uninvited, the fruits of the search must be suppressed.

“We see no conflict between the Edgeberg and Leutenegger tests. Leutenegger effectively applies the Edgeberg test to the limited circumstance of an attached garage. As a general matter, it is unacceptable for a member of the public to enter a home’s attached garage uninvited. We do not think this premise is subject to reasonable disagreement. This premise is true regardless whether an overhead or entry door is open. Thus, generally, under Edgeberg, an attached garage will never be impliedly open to public, i.e., police, entry. Leutenegger, however, recognizes that there may be an exception to that general rule if, in a given circumstance, it reasonably appears that entry into the attached garage is the least intrusive means of attempting contact with persons inside the home.”

“Therefore, Zahn’s warrantless entry into Davis’s attached garage violated the Fourth Amendment under Edgeberg, and as the State concedes, the intrusion is not saved by the potential Leutenegger exception.  There is no dispute that the front entry door appeared to be a less intrusive means of attempting contact.  Moreover, even if we assumed, arguendo, that entry through the open door of an attached garage was generally permissible under Edgeberg, it was unreasonable for Zahn to proceed to the rear of the garage to a door that was not visible from outside.  In fact, it was even more unreasonable because Zahn had to utilize a flashlight to find his way through the dark garage. Given these facts, no person could reasonably conclude that the open overhead garage door was an open invitation for the public to enter and make contact with Davis inside the home.”

Reversed and Remanded.

Recommended for publication in the official reports.

2010AP2191-CR State v. Davis

Dist. III, Oconto County, Delforge, J., Hoover, J.

Attorneys: For Plaintiff: Aaron R. O’Neil, Madison; For Defendant: Patrick M. Donnelly, Chandra N. Harvey, Madison.

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