Jan. 15, 2016 – A Wisconsin Supreme Court majority recently ruled that a warrantless police stop in a private parking garage was legal because police had reasonable suspicion to make the stop and the garage was not a constitutionally protected area.
Brett Dumstrey, who was later convicted for operating while intoxicated (OWI), had argued that the police stop was unconstitutional because the private parking garage was a constitutionally protected area that police could not enter without a warrant.
In State v. Dumstrey, 2016 WI 3 (Jan. 15, 2016), a majority (4-2) upheld the conviction, concluding that the stop was constitutional. Justice Rebecca Bradley did not participate
“We conclude that the parking garage underneath his apartment building does not constitute curtilage of Dumstrey’s home,” wrote Chief Justice Roggensack. “We further conclude that Dumstrey has shown no reasonable expectation of privacy in the garage.”
Two justices dissented. Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson, said the majority opinion’s analysis is “infirm” because people who live in apartments, with shared but private garages, have the same rights as homeowners.
“Perhaps its biggest infirmity is that it ignores the collective right that residents of apartments or condominiums have to exclude all individuals that do not have a legitimate purpose on their property,” Justice. A. Bradley wrote.
An off-duty police officer was on his way home from a Milwaukee Brewers game, where he had a couple beers, when he observed Dumstrey driving erratically. He was not uniformed and was driving his own vehicle when he pulled up next to Dumstrey.
The officer flashed his badge and told him to pull over and wait for police. Dumstrey stared blankly at the officer and did not stop as directed. The officer followed Dumstrey, who entered an underground parking garage and used a remote control to activate a locked gate. But the officer parked his car under the door, preventing it from closing.
The parking garage was accessible only to tenants of the attached apartment complex. Tenants, who paid for the spots, used an elevator to access the parking garage from their apartment residences. The locked garage was not accessible to the general public.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The off-duty officer then walked into the garage and approached Dumstrey, who questioned whether the officer, wearing plain clothes, was an actual police officer. But the officer showed him his badge and identification, and Dumstrey acquiesced.
A second officer arrived on scene. He entered the garage through the open garage door, which was still blocked from closing. The officers began questioning Dumstrey and observed his bloodshot eyes, slurred speech, and an odor of intoxicants.
Dumstrey denied consuming alcohol and refused field sobriety tests. He was arrested. A blood test revealed that Dumstrey had a blood alcohol level of 0.178, well over the legal limit of 0.08. Charged with second offense OWI, Dumstrey moved to suppress all evidence, arguing it was inadmissible as the product of an unconstitutional police stop.
The circuit court in Waukesha County denied his motion and he ultimately pled guilty. The appeals court affirmed, concluding the garage was not constitutionally protected.
Parking Garage Not “Curtilage”
The majority noted that the Fourth Amendment protects individuals from unreasonable searches and seizures. It was legal for police to stop Dumstrey, the majority noted, who conceded that the officer had reasonable suspicion to believe he was driving drunk.
But could police pursue him into his private garage to investigate without a warrant?
The majority opinion, by Chief Justice Roggensack, said the central question “was whether the parking garage underneath the apartment building constitutes curtilage of Dumstrey’s home such that it is protected by the Fourth Amendment.”
The Fourth Amendment protects the “curtilage” of a person’s home – like garages, front porches, or yards – as well as places where a person would have a reasonable expectation of privacy. The majority noted that the “curtilage” of one’s home can be protected, regardless of whether the person has a reasonable privacy expectation there.
But the majority concluded that the apartment’s parking garage was not the “curtilage” of Dumstrey’s home, in part because of the garage’s proximity to his apartment.
“This is a far cry from a single family home’s attached garage, which courts have consistently held constitutes curtilage,” Chief Justice Roggensack wrote.
“In Dumstrey’s case, the garage is not similarly attached to his home itself but, rather, his home could be located anywhere within the entire 30-unit apartment building.”
Although the parking garage could be considered as included within the enclosure that surrounds Dumstrey’s home, another factor in determining the curtilage, the majority noted that the homes of 29 other tenants were also included within that enclosure.
“[I]t cannot be reasonably contended that each of these tenants’ homes constitutes part of Dumstrey’s home for purposes of the Fourth Amendment,” the chief justice wrote.
The majority also reviewed the “nature of use” in determining whether the parking garage was curtilage. It ruled, in line with other courts, that parking alone is not associated with the “intimate activity of the home” or “the privacies of life.”
“Dumstrey’s use does not warrant curtilage designation, [but] we do not foreclose the possibility that some additional use of a somewhat comparable garage could constitute use associated with intimate activity of the home or privacy of life,” Roggensack wrote.
Finally, the majority ruled that Dumstrey never took steps to protect the garage from observation by passersby, another factor in determining curtilage. Dumstrey argued that he paid money to park in a locked garage that was protected from public view.
“The relevant inquiry … is not whether the parking garage is generally shielded from the public at large,” the chief justice wrote. “[W]e are concerned with whether Dumstrey has taken steps to shield the parking area from the view of passersby within the garage.”
No Reasonable Expectation of Privacy Either
Although the majority concluded that the parking garage was not “curtilage” entitled to protection, it also considered whether Dumstrey had a reasonable expectation of privacy in the garage area that would warrant Fourth Amendment protection.
The majority said Dumstrey did not have a protectable expectation of privacy.
“Under the totality of the circumstances, we doubt that Dumstrey harbors any actual expectation of privacy in the parking garage, and if he does, such an expectation is surely not reasonable,” Chief Justice Roggensack wrote.
“However, we do not foreclose the possibility that a person may exhibit a reasonable expectation of privacy in a smaller, more intimate multi-unit building.”
Concurrence and Dissent
Justice David Prosser wrote a concurring opinion, joined by Justice Michael Gableman. Prosser agreed that the garage was not curtilage and Dumstrey had no expectation of privacy. But he challenged a broad principle that prohibits arrests within the curtilage.
“In my view, a broad principle to this effect would constitute a serious mistake of law and an impractical hardship for law enforcement,” Justice Prosser wrote.
Justice Ann Walsh Bradley wrote a dissent, joined by Justice Abrahamson, concluding the parking garage was curtilage and was thus protected by the Fourth Amendment.
“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,” wrote A. Bradley, concluding the officers were trespassing without a warrant.
“[The garage] was in close proximity to his home, was used for the intimate activities of home, and was protected from public view,” she wrote.