State v. Johnson

501 N.W.2d 876, 177 Wis. 2d 224, 1993 Wisc. App. LEXIS 563

• Court: Court of Appeals of Wisconsin
• Decided: May 18, 1993
• Docket: 92-0225-CR
• Status: Published

Opinions

SCHUDSON, J.

Donnell Johnson pled guilty to possession of a controlled substance (cocaine) with intent to deliver, while armed, party to a crime. On August 26, 1991, he was sentenced to three years in prison and a $1000 fine. Johnson appeals, challenging the trial court's denial of his motion to suppress evidence. Because the police entry to Johnson's apartment was unconstitutional, we reverse.

I. FACTUAL BACKGROUND

The facts central to our decision are not in dispute. According to the testimony at the suppression hearing, on December 19, 1989, Milwaukee Police Officers Timothy Klug and. Robert Paluso were on duty inside the apartment building at 3004 W. Wells Street in the City of Milwaukee. They had been assigned to a "Directed Patrol Mission" "to field interview anyone in the apartment building or the surrounding areas" because of the extremely high drug dealing in the building. The building owners and manager had given the police permission to patrol the building.

At about 9:10 or 9:15 p.m., Officers Klug and Paluso stopped Johnson inside the hallway as he entered the building. Klug explained that Johnson exhibited no suspicious behavior but that he and Paluso stopped him because he "just happened to come in the building." They frisked Johnson, finding no weapons or drugs, and questioned him in the hallway for five to ten minutes about his identity and reason for being in the building.

Johnson cooperated with the officers, doing and saying nothing that aroused further suspicion during the five to ten minutes in the hallway. He told them his name and explained that he was visiting his girlfriend. He did not have identification with him, but said it was inside his girlfriend's apartment. The police did not place Johnson under arrest, but explained that during this period of questioning, they "probably" would not have allowed him to leave.

Still wanting verification of Johnson's identity and reason for being in the building, they accompanied Johnson to the second floor apartment where he said his girlfriend lived. Officer Klug knocked on the door but no one answered. Johnson then held up the key and Klug "grabbed" the key. When Johnson then said, "let me do it," Klug returned the key to him and Johnson opened the door. At this point, Johnson still had said and done nothing to arouse suspicion and, Klug acknowledged, his continuing investigation of Johnson related only to the general information the officers had regarding the drug dealers in the building, together with the police effort "to field interview anyone in the apartment building."

Klug said that Johnson entered the apartment indicating that he was going to check for some identification. Klug did not ask for Johnson's permission to enter, and Johnson did not ask him to come in. Klug entered anyway, without a warrant, "[r]ight on the threshold . . . [approximately four to six inches maybe," "so that he couldn't slam the door shut on me."

Johnson then entered the bedroom and remained partially within Klug's view from the threshold. Klug testified: "[Johnson] was fumbling with something and keeping an eye on me. Now, I am suspicious." Officer Klug further testified that he became "afraid" "[bjecause I felt he was reaching for a gun. I honestly did. Just the look in his eye, just the look he had, I had an immediate fear." Klug then entered the bedroom and recovered a gun that was in plain view in the closet where Johnson had been reaching, ten bindles of cocaine from underneath the gun, and approximately $260 cash from next to the gun.

On appeal, Johnson argues, first, that the threshold entry was improper and, second, that even if that entry was lawful, the bedroom entry was not.¹ Agreeing with his first contention, we only address the threshold entry.

II. TRIAL COURT DECISION

The trial court denied Johnson's motion to suppress evidence, emphasizing that this drug-infested location was "one of the worst areas and worst buildings in the city" encountered by the police and, further, "that over fifty percent of the people . . . had no legitimate reason to be there, . . . gave false names ... to evade and avoid the police and frustrate their activities and actions." "This isn't an apartment building in Brookfield!,]" the court explained and, therefore, as "the target of the Direct Patrol Mission," its occupants were subject to stops, frisks, and searches absent any specific, individualized, police suspicion:

[T]hey had a right to pat him down and ask him his name. They have a right under these circumstances to do that to anybody they found in that hallway.... .. . Officer Klug followed the defendant up,. .. [Johnson] is now in his domicile and his home, but the officer doesn't know that, and what occurs is the officer stands in the doorway now waiting for the verification of the identification, and the reason the officer stands in the doorway is for those reasons he stated, gave rise to his presence in the building in the first place and that is people have been deceitful, they have given wrong names, they've been found to be drug dealers, found to be people who committed criminal damage to property.

(Emphasis added.) Accordingly, the trial court found that under all the circumstances, and particularly because of the purpose of the "Direct Patrol Mission" in this "den of iniquity," the police actions were reasonable.

Specifically regarding the threshold entry, the trial court added:

I find that from Officer Klug's testimony, that the defendant said, in effect, let me do it, and he opens up the door and when Officer Klug says we are there for purposes of getting the identification that there wasn't — because there wasn't any resistance by the defendant to that finding of the Court. So you understand, it was not unreasonable given the officer's prior experience to standing in the threshold to prevent the door from being closed. I would find that if it is an entry, I don't anticipate, that I wouldn't think that that was an entry under those circumstances, but if it was an entry, I think it was clearly with consent of the defendant, and if it wasn't with consent of the defendant, it was clearly as the Court I think just indicated for the purposes of guarding against what Officer Klug indicated he said he was guarding against, I didn't want the defendant to slam the door in front of me because they've done that to me before in that very building. He didn't say in that very building but they've done it to him before in that building. So regardless of how it's characterized, I think under any of the characterizations that the officer was reasonable in the actions he took.

III. STANDARD OF REVIEW

The trial court made factual findings based, in part, on its conclusion that "the credibility factor . . . weighs in favor of Officer Klug and the State's witnesses ...." For purposes of our review, we accept those factual findings, except to the extent they are against the great weight and clear preponderance of the evidence. See State v. Jackson, 147 Wis. 2d 824, 829, 434 (1989). We independently determine, however, whether those facts satisfy the constitutional requirement of reasonableness. Id.

IV. THE THRESHOLD ENTRY

The trial court concluded it "wouldn't think that that was an entry under those circumstances," when Officer Klug stepped into the doorway so that Johnson could not close the door. That conclusion was erroneous because, as a matter of law, Klug's step clearly constituted "entry." Further, at that point, prior to observing Johnson's actions in the bedroom, no "circumstances" justified the warrantless entry.

Generally, evidence seized in a warrantless search of one's home is inadmissible absent a well-delineated, judicially-recognized exception. See State v. Douglas, 123 Wis. 2d 13, 17-22, 365 N.W.2d 580, 582-584 (1985). Indeed, "the Fourth Amendment has drawn a firm line at the entrance to the house." Payton v. New York, 445 U.S. 573, 590 (1980); see also United States v. United States District Court, 407 U.S. 297, 313 (1972) (physical entry of a residence "is the chief evil against which .. . the Fourth Amendment is directed"). Moreover, as our supreme court has emphasized:

The courts, including this one, have scrutinized with the greatest care claims by the state to the use of evidence seized in warrantless searches of one's home. In Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct., 524, 534, 29 L.Ed. 746 (1886), the United States Supreme Court gave the following admonition:

"It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure_"

Douglas, 123 Wis. 2d at 21, 365 N.W.2d at 584.²

Without question, Officer Klug's step into the threshold, preventing Johnson from closing the door, was an entry. As Klug explained, even though his position in the doorway was from just the "toenails" to the "balls of [the] feet," it was an incursion that "would not have allowed [Johnson] to close that door." Even extending only from the tips of his toes to the balls of his feet, it fixed the "first footing" against which the United States and Wisconsin Supreme Courts warned.

V. CONSENT

The State argues that denial of the suppression motion was proper because Johnson consented to the warrantless search. Consent is one of the recognized exceptions to the Fourth Amendment warrant requirement. Id. at 18, 365 N.W.2d at 582. When asserting the consent exception, the State bears "the burden of proving by clear and positive evidence the search was the result of a free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied." Gautreaux v. State, 52 Wis. 2d 489, 492, 190 N.W.2d 542, 543 (1971). "[T]he proper test for volunta-riness of consent under the fourth amendment is whether under the totality of the circumstances it was coerced." State v. Rodgers, 119 Wis. 2d 102, 114, 349 N.W.2d 453, 459 (1984). Like the entry itself, however, the constitutional significance of the undisputed facts regarding the issue of consent must receive independent, appellate review. State v. Stevens, 123 Wis. 2d 303, 313-14, 367 N.W.2d 788, 794 (1985), cert. denied, 474 U.S. 852 (1985).

Here, the trial court reached somewhat ambiguous conclusions that the police had not made an entry but "if it was an entry, I think it was clearly with consent of the defendant, and if it wasn't with consent of the defendant it was clearly ... for the purposes of guarding against... [Johnson] slam[ing] the door...." Even construing that conclusion as one of consent, we conclude that no evidence at the suppression hearing supports such a finding.

Johnson testified at the suppression hearing that he had not given Officer Klug or any other officer permission to come into the apartment. Officer Klug also testified that Johnson had not asked him to enter the apartment, and that he [Klug] had not asked Johnson for permission to enter the apartment. Nothing in the record provides any basis upon which consent reasonably could have been inferred.

The State contends that "[t]here was no credible testimony that defendant objected to Klug's presence in the doorway." A person need not protest, however, to gain the Fourth Amendment's protection. Consent "cannot be found by a showing of mere acquiescence . . .." See United States v. Shaibu, 920 F.2d 1423, 1426-1427, amended, 912 F.2d 1193 (9th Cir. 1990).

The State further argues that, even absent consent, the entry still was justified. In support of that argument, however, the State cites authorities that are clearly distinguishable. In Washington v. Chrisman, 455 U.S. 1 (1982), the police accompanied a suspect back to his dormitory room for identification, staying in the open doorway leaning against the dooijamb. In that case, however, the suspect already was under arrest. Id., 455 U.S. at 6. In State v. Amrine, 157 Wis. 2d 778, 460 N.W.2d 826 (Ct. App. 1990), a detective followed a suspect from his living room to the entrance of his bedroom from which position he observed a mask and gloves linking the suspect to a robbery. Id., 157 Wis. 2d at 782, 460 N.W.2d at 827. In that case, however, the defendant conceded that another resident had given the detective permission to enter the residence. Id. Here, in sharp contrast, Johnson was not under arrest, and no one had permitted police to enter the apartment. Thus, the authorities cited by the State fail to justify the warrantless entry into Johnson's apartment.

VI. CONCLUSION

From their first encounter with Johnson, to Officer Klug's step into the threshold of his apartment, police had no reason to specifically and individually suspect Johnson of anything. Only after crossing the threshold and observing Johnson's behavior in the bedroom did Klug say, for the first time, "Now, I am suspicious." Until that moment, nothing distinguished Johnson from an^ law-abiding resident of the building. We know of no authority that suggests that, under circumstances like these, a person's mere presence, even in a high crime area or drug-infested building, forms the basis for a warrantless entry.

As the trial court emphasized, this wasn't a "building in Brookfield." The Fourth Amendment, however, holds constitutional strength, whether in a peaceful suburban home or a troubled urban apartment. The warrantless, nonconsensual entry violated Johnson's Fourth Amendment rights. Accordingly, the evidence subsequently discovered should have been suppressed.

By the Court. — Judgment reversed and cause remanded.

1 At the trial court, the State first challenged but later conceded Johnson's standing. Also at the trial court, Johnson challenged the initial stop but, in his brief to this court, he abandoned that issue on appeal.

2 Ignoring these authorities, the dissent states that "[m]inor intrusions of privacy have never been regarded as fatal." Dissent at 239. Setting aside, for the moment, the question of whether a warrantless, non-consensual entry of one's home can ever be deemed a "minor intrusion of privacy," we note, of course, that these authorities are among many that resoundingly declare that, indeed, even the "mildest" violation — yes, even the "first footing" that crosses the "firm line at the entrance" — has consistently been regarded as fatal.

Accordingly, while we share the dissent's respect for the process of "split-second decisions police officers must make," dissent at 236, and while we also share the dissent's concern for "the milieu of danger," that threatens the safety of police in that process, id. at 240, we must not acquiesce in those split-second decisions that violate the Constitution.