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Motor Vehicles – OWI – trespass

By: WISCONSIN LAW JOURNAL STAFF//December 23, 2014//

Motor Vehicles – OWI – trespass

By: WISCONSIN LAW JOURNAL STAFF//December 23, 2014//

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Wisconsin Court of Appeals

Criminal

Motor Vehicles – OWI – trespass

It did not violate the Fourth Amendment for a police officer to enter an apartment’s locked parking garage to pursue an OWI suspect.

“Jones, Jardines, and State v. Popp, 2014 WI App 100, ___ Wis. 2d ___, 855 N.W.2d 471, all involved constitutionally protected areas. Jones involved a car, an undisputed ‘effect’ under the Fourth Amendment. Jones, 132 S. Ct. at 949 (noting that Fourth Amendment protects the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures). Jardines addressed a drug-sniffing dog coming onto Jardines’ front porch—‘the classic exemplar of an area adjacent to the home and to which the activity of the home life extends.’ Jardines, 133 S. Ct. at 1415 (citation omitted). And Popp was about police walking onto the curtilage surrounding a trailer home and peering in the window. Popp, 855 N.W.2d 471, ¶20. Rather than support Dumstrey’s position, Jones, Jardines, and Popp reaffirm that a trespass by a government agent ‘is of no Fourth Amendment significance’ unless it is on one of those protected areas enumerated in the Fourth Amendment. See Jones, 132 S. Ct. at 953; see also Conrad v. State, 63 Wis. 2d 616, 624-25, 218 N.W.2d 252 (1974) (holding that protection of Fourth Amendment does not extend beyond curtilage even when government agent committed an ‘outrageous trespass’). Dumstrey has not established that his parking garage was a constitutionally protected area. See Cruz Pagan, 537 F.2d at 558 (‘Whether or not the agents’ entry was a technical trespass is not the relevant inquiry.’); Terry, 454 P.2d at 48 (‘Even if such an entry constitutes a trespass, a simple trespass without more does not invalidate a subsequent search and seizure.’); Nguyen, 841 N.W.2d at 681 (‘That the law enforcement officers were technical trespassers in the common hallways is of no consequence because Nguyen had no reasonable expectation that the common hallways of the apartment building would be free from any intrusion.’).”

Affirmed.

Recommended for publication in the official reports.

2013AP857-CR State v. Dumstrey

Dist. II, Waukesha County, Hassin, J., Neubauer, J.

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