Seizures – Curtilage – Parking Garage
State v. Dumstrey, 2016 WI 3 (filed 15 Jan. 2016)
HOLDING: The stop of the defendant’s car in an apartment complex’s parking garage did not implicate his Fourth Amendment rights.
SUMMARY: Dumstrey was arrested for operating while intoxicated (OWI) based on his erratic driving. He challenged the lawfulness of the stop, which occurred in the basement parking garage of his apartment complex. The circuit court denied his motion. In a published decision, the court of appeals affirmed, agreeing Dumstrey had no protected privacy interest in the parking garage. See 2015 WI App 5.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
The supreme court affirmed in an opinion authored by Chief Justice Roggensack. (Justice Rebecca Bradley did not participate.) At issue were whether the apartment building’s parking garage was within the curtilage of the defendant’s home and whether he had a reasonable expectation of privacy “in the parking garage” (¶ 3). The court held that the garage was not within the curtilage and the defendant had no reasonable expectation of privacy in the garage.
The defendant was clearly seized by police when they stopped and arrested him in the parking garage (see ¶ 19). First, the court extensively discussed the doctrine of “curtilage” under Wisconsin case law, finding some of it “inconsistent” with more recent case law (see, e.g., United States v. Jones, 132 S. Ct. 945 (2012)) recognizing a Fourth Amendment right when police trespass on a defendant’s property (¶ 30).
Curtilage is assessed in light of four factors: 1) the area’s proximity to the home, 2) the area’s relation to enclosures that surround the home, 3) the “nature of use” of the area, and 4) any steps taken to protect the area from observation (see ¶¶ 34-46). Applying the facts to these elements, the court held that the basement parking garage did not fall within the apartment’s curtilage (see ¶ 46).
Second, the defendant had no reasonable expectation of privacy in the parking garage under the governing six-factor test (see ¶ 47). Although the defendant established several factors, (property interest, lawfully on the premises), he fell short on most others (for example, no dominion and control, steps taken to secure his privacy) (see ¶ 49).
Concurring, Justice Prosser disagreed with the majority’s “broad principle that police may not arrest [without a warrant] a person on probable cause when the person is within the person’s own curtilage but not within the home.” This poses, he contended, a “serious mistake of law and an impractical hardship for law enforcement” (¶ 55).
Justice Ann Walsh Bradley dissented, joined by Justice Abrahamson. They contended that the majority’s approach creates serious inequities based on the types of dwellings in which people live (see ¶ 73). The dissent concluded that the parking garage fell within the defendant’s curtilage (see ¶ 76).
Guilty Pleas – Failure of Circuit Court to Advise Defendant of Immigration Consequences – Withdrawal of Plea When Conviction Is Likely to Result in Exclusion from Admission to United States
State v. Valadez, 2016 WI 4 (filed 28 Jan. 2016)
HOLDING: The defendant established under Wis. Stat. section 971.08(2) that it was likely that she would be excluded from admission to this country on the basis of her controlled-substances
SUMMARY: Defendant Valadez is not a U.S. citizen. She became a lawful permanent resident in 2001. In 2004 and 2005, she entered guilty pleas to various controlled-substances crimes. At the plea hearings, the circuit judge failed to advise her about the immigration consequences of these convictions as required by Wis. Stat. section 971.08(1)(c). In these circumstances, the court must permit a defendant to withdraw the pleas if he or she shows that the pleas are “likely” to result in deportation, exclusion from admission to this country, or denial of naturalization. See Wis. Stat. § 971.08(2).
The issue before the supreme court in this case, which was accepted on certification from the court of appeals, was whether the defendant demonstrated that her pleas were “likely” to result in her exclusion from admission to this country. [Editors’ Note:This decision does not involve the kind of showing required to obtain plea withdrawal because the pleas are likely to result in deportation (see, e.g., State v Negrete, 2012 WI 92, 343 Wis. 2d 1, 819 N.W.2d 749) or denial of naturalization.] Valadez contended that even though she is a lawful permanent resident, if she were to leave the United States and seek to return, she would be excluded from admission as a result of her convictions. The circuit court denied her motion to withdraw her pleas. In a majority decision authored by Justice Abrahamson, the supreme court reversed.
Valadez’s convictions are explicitly listed in the federal statutes as grounds for exclusion from admission to this country. “Based on the federal statutes, if Ms. Valadez leaves the United States and attempts to gain readmission to this country, the federal government will ‘likely’ exclude her from admission because of her convictions” (¶ 44). “In other words, the immigration and naturalization statutes demonstrate the likelihood that Ms. Valadez will be excluded from admission” (¶ 45).
The circuit court mistakenly required Valadez to show that the federal government had actually taken steps to exclude her from admission (see id.). Accordingly, the supreme court reversed the order of the circuit court denying the defendant’s motion to withdraw her pleas. “We remand the matter to the circuit court with directions to vacate the judgments of conviction and permit Ms. Valadez to withdraw her guilty pleas and enter other pleas” (¶ 54).
A second issue before the court was whether there is a time limit within which to file a motion to withdraw a plea based on Wis. Stat. section 971.08(2). The court “[did] not respond to the second question. Although both parties discussed the time limit issue in their briefs, neither party argued in this court for a time limit for plea withdrawal under Wis. Stat. § 971.08(2), and both parties agreed that even if the court were to adopt a time limit, Ms. Valadez’s motion is timely” (¶ 11).
Justice Ziegler, joined by Justice Gableman, filed an opinion concurring in part and dissenting in part. They joined the majority in concluding that the defendant had established that her guilty pleas were likely to result in her exclusion from admission to this country but did not join the decision to remand the matter to the circuit court with directions to vacate the convictions and permit withdrawal of the guilty pleas “because there may be other impediments to the withdrawal of Valadez’s pleas” (¶ 58), such as the timeliness issues identified in the dissent of Justice Prosser in which Chief Justice Roggensack joined.
Justice Rebecca Bradley did not participate in this decision.