State v. Martwick

2000 WI 5, 604 N.W.2d 552, 231 Wis. 2d 801, 2000 Wisc. LEXIS 4

• Court: Wisconsin Supreme Court
• Decided: January 19, 2000
• Docket: 98-0101-CR
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. The state, as petitioner, seeks review of an unpublished decision of the court of appeals, State v. Martwick, No. 98-0101-CR, unpublished slip op. (Ct. App. July 21, 1998), which reversed a Price County Circuit Court judgment. The circuit court, the Honorable Patrick J. Madden presiding, convicted the respondent, Thomas G. Martwick (hereinafter Martwick), of manufacturing THC, contrary to Wis. Stat. § 961.41(1)(h)1 (1995-96).¹ The court of appeals reversed, holding that the circuit court erroneously denied a suppression motion concerning evidence of marijuana plants seized by sheriff s deputies from the curtilage² of Martwick's home. Martwick, Slip op. at 1 — 2.

¶ 2. We reverse. We hold that a curtilage determination is a question of constitutional fact subject to a two-step standard of review: a circuit court's historical findings of fact are reviewed under a clearly erroneous standard, while the ultimate question of constitutional fact is reviewed de novo. We further hold that applying this two-step process, the five marijuana plants the deputies initially found were outside of the curtilage of Martwick's home. Accordingly, we reverse the court of appeals' decision, which overturned Martwick's conviction.

i

¶ 3. The record before the circuit court reflects that on June 9, 1997, Brian Roush, a Price County Deputy Sheriff, learned of information conveyed by a confidential informant regarding drug activity occurring at the Martwick residence. On May 3, 1997, the informant apparently saw large amounts of processed and unprocessed marijuana, as well as live plants in Martwick's house. (R. at 35:5-6.) According to the informant, Martwick complained that he needed to keep his plants inside because the weather was too cold in May to transplant them outdoors.

¶ 4. After reviewing the written report with fellow Deputy Sheriff Chris Jarosinski, Deputy Roush inquired about the possibility of obtaining a search warrant of the residence with the assistance of the Price County District Attorney's office. District Attorney Patrick G. Schilling thought the confidential information was probably stale because the informant observed the marijuana at Martwick's residence in May. Because the district attorney was concerned about the information's potential staleness, Deputy Roush decided to investigate further by viewing Martwick's property himself.

¶ 5. Before even reading.the confidential informant's report, Deputy Roush had suspected Martwick of growing marijuana. Two years before, a county drug officer told Deputy Roush that he had found remnants of old marijuana growth in the Town of Elk. Martwick's name appeared on the pails used to grow the marijuana. (R. at 35:37.) Then, during the summer of 1996 another small marijuana plant was found on property thought to belong to Martwick.

¶ 6. Deputy Roush and Deputy Jarosinski drove to Martwick's residence on June 9, and a neighbor gave them permission to park their squad car on the neighbor's property. The boundary lines of Martwick's property are unmarked. The property is one of a group of recreational and year-round homes located along the Wilson Flowage in Price County. Approximately 20 homes fall within a one-mile radius of Martwick's home, and Martwick's nearest neighbor lives directly across the road.

¶ 7. Martwick's 1.52-acre property is irregularly shaped. According to Martwick's hand-drawn diagram, his property is approximately 122 feet long on its eastern edge, 260 feet long on its western edge, 333 feet long on its northern edge, and 413 feet long on its southern edge. (Exhibit 26.) On this diagram, Martwick's house appears near the center of the property, approximately 100 feet from E. Wilson Flowage Road, the main road bounding his property. At the extreme edge of the property farthest from the road are two ginseng sheds. Martwick also raises worms near the ginseng sheds. A gravel driveway leads up to the house from the road.

¶ 8. Martwick does not cultivate a traditional mowed lawn. As defense counsel admitted to the circuit court, his "client's home would not win a Martha Stewart award." (R. at 35:48.) Instead, a twenty-foot clearing surrounds the house in which only low-lying weeds, brush, and wildflowers grow. Woods cover the remainder of the property past the clearing. A footpath begins within ten feet of the house and extends into the wooded section leading to the ginseng sheds. Martwick occasionally clears the path with a brush cutter.

¶ 9. After parking their squad car, the two deputies walked onto Martwick's property from the neighboring property. According to Martwick's hand-drawn diagram, the deputies entered his property from the southern edge at a point between the house and the ginseng sheds. (Exhibit 26.) In the woods, Deputy Roush tripped over what he thought was some sort of wire placed no more than one foot above the ground. Then,' the deputies observed five marijuana plants in four five-gallon plastic pails. Deputy Roush estimated that the pails were located between 50 and 75 feet from the house along the path leading to the ginseng sheds. The plants were approximately two and one-half to three and one-half feet tall. Deputy Roush and Deputy Jarosinski cut a leaf slip off of one of the suspected marijuana plants and returned immediately to the district attorney's office to conduct a Duquenois-Levine test. The leaf slip produced a positive result indicating that it contained THC, the active ingredient in marijuana.

¶ 10. Based on their observations and the test results, that same day the deputies applied for and obtained a search warrant. Within approximately three hours the deputies executed the search warrant and seized the plastic pails with the five marijuana plants, 29 smaller marijuana plants, baggies with green plant material and marijuana seeds, and plant cultivation products, among other items. Deputy Roush also took photographs of Martwick's property. Deputy Roush testified that from the vantage point of the potted plants, he could see the top of Martwick's house in the distance. (R. at 35:9.)(Exhibit 27.) However, from the house, a person could not see the plants.

¶ 11. The state charged Martwick with manufacturing marijuana contrary to Wis. Stat. § 961.41(l)(h)2. On August 21, 1997, Martwick moved to suppress the evidence the deputy sheriffs obtained on the basis that the search warrant for his residence was not supported by probable cause, since the deputies improperly obtained evidence supporting probable cause to search the entire property by illegally entering the curtilage of his residence. Martwick later moved to suppress on the basis that the search warrant was not issued by a neutral and detached magistrate.³

¶ 12. The circuit court denied the defendant's first motion to suppress, stating that the deputies' initial warrantless search on Martwick's premises was valid because they had searched outside the property's curtilage. Therefore, the search warrant they subsequently obtained was properly supported by probable cause. While retaining his right to appeal,⁴ Martwick pleaded guilty to and was convicted of manufacturing marijuana in violation of Wis. Stat. § 961.41(l)(h)l.⁵ The circuit court withheld his sentence and ordered 18 months of probation.⁶

¶ 13. Martwick appealed the conviction. The court of appeals first held that "the scope of curtilage for Fourth Amendment purposes is a question of constitutional fact reviewed without deference to the trial court." Slip op. at 3. The court relied on State v. Kennedy, 193 Wis. 2d 578, 583, 535 N.W.2d 43 (Ct. App. 1995), for its reasoning, even though Kennedy relied on State v. Lange, 158 Wis. 2d 609, 617, 463 N.W.2d 390 (Ct. App. 1990), a case that left the issue of standard of review unanswered. Slip. op. at 3. Citing Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997), the court explained that it is bound by its own prior decisions. Slip op. at 3.

¶ 14. The court then concluded that the leaf slip was seized in an area that was part of the curtilage surrounding Martwick's home. Slip op. at 4. In coming to this conclusion, the court analyzed the four factors that determine the extent of curtilage surrounding a home as set forth in United States v. Dunn,7 480 U.S. 294, 300 (1987). Slip op. at 4. In regard to the Dunn factors, the court felt that the marijuana was in close proximity to the home, and because the marijuana grew in a garden setting, it appeared to be growing in an area " use[d] for intimate activities of the home.'" Slip op. at 5-6 (quoting Lange, 158 Wis. 2d at 619). Moreover, the overgrown nature of the property indicated that Martwick wished to prevent public observation. Slip op. at 6. Finally, the court stated that the "lack of a barrier more formal than heavy flora overgrowth" was insufficient "to diminish Martwick's expectation of privacy." Slip op. at 6.

¶ 15. The court of appeals concluded that the marijuana pails were within the curtilage of Martwick's home. Therefore, the deputies had improperly seized the leaf slip, and it could not serve as the basis for probable cause to obtain a search warrant for the premises. Because the search warrant was invalid, the circuit court erred in failing to suppress all of the evidence seized. Slip op. at 7.

II.

¶ 16. We first address the issue of standard of review in a curtilage case. We conclude that a curtilage determination presents an issue of constitutional fact. An issue of constitutional fact is a mixed question of law and fact subject to a two-step standard of review. State v. Phillips, 218 Wis. 2d 180, 189, 577 N.W.2d 794 (1998). As we recently explained in Phillips, 218 Wis. 2d at 190, a circuit court determining an issue of constitutional fact must first make decisions regarding pertinent evidentiary or historical facts. Black's Law Dictionary defines evidentiary facts as "[tjhose facts which are necessary for determination of the ultimate facts; they are the premises upon which conclusions of ultimate facts are based." Black's Law Dictionary 557 (6th ed. 1990).

¶ 17. Resolution of an issue of constitutional fact then requires a circuit court to apply constitutional principles to the evidentiary or historical facts. State v. Fry, 131 Wis. 2d 153, 171, 388 N.W.2d 565 (1986). A constitutional fact is one whose "determination is 'decisive of constitutional rights.'" William R. Bishin and Christopher D. Stone, Constitutional Facts, reprinted in Ruggero J. Aldisert, The Judicial Process 703, 704 (1976). Justice Frankfurter elaborated that constitutional facts are "issues which, though cast in the form of determinations of fact, are the very issues to review [for] which this Court sits." Watts v. Indiana, 338 U.S. 49, 51 (1949).

¶ 18. On appeal, an appellate court applies a different standard of review to each step in a circuit court's determination of constitutional fact. An appellate court applies a deferential, clearly erroneous standard to a circuit court's findings of evidentiary or historical fact.⁸ Phillips, 218 Wis. 2d at 190 (quoting State v. Woods, 117 Wis. 2d 701, 715, 345 N.W.2d 457 (1984)). An appellate court then determines the questions of constitutional fact independently. Id.

¶ 19. We base our conclusion that a curtilage determination is a question of constitutional fact on Ornelas v. United States, 517 U.S. 690, 699 (1996), in which the United States Supreme Court held that on appeal, a judge's ultimate determination of reasonable suspicion and probable cause should be reviewed de novo, while findings of historical fact should be reviewed only for clear error. In Ornelas, the Court explained that independent appellate review prevents "varied results" even " '[i]n the absence of any significant difference in the facts'" supporting a judge's determinations. Id. at 697. Moreover, the Court stated that "the legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify the legal principles." Id. (citing Miller v. Fenton, 474 U.S. 104, 114 (1985)). Finally, the Court explained that "de novo review tends to unify precedent" and provide law enforcement officers with clear rules that guide them in making legally correct decisions before acting to invade someone’s privacy. Id.

¶ 20. Similarly, this court also grants "independent appellate review of matters of constitutional fact [in order] to provide uniformity in constitutional decision-making." Phillips, 218 Wis. 2d at 194. By independently applying constitutional principles, an appellate court is able to add substance and meaning to a skeletal constitutional rule. Id. (quoting State v. McMorris, 213 Wis. 2d 156, 165, 570 N.W.2d 384 (1997)).

¶ 21. Moreover, this court traditionally applies the two-step standard of review to constitutional search and seizure inquiries.⁹ Whether an officer has illegally searched within the curtilage of a person's residence is a search and seizure issue under the Fourth Amendment, Oliver v. United States, 466 U.S. 170, 180-81 (1984), and art. I, § 11 of the Wisconsin Constitution. In keeping with our preference for independent review of issues of constitutional fact, and our use of the two-step standard of review for other search and seizure inquiries, we hold that the two-step standard of review applies to curtilage determinations.

¶ 22. The state advocates the use of a clearly erroneous standard of review for the ultimate determination of constitutional fact. In support, the state cites to cases from several federal circuits, which have held that as a factual inquiry, a curtilage determination should be reviewed under a clearly erroneous standard.¹⁰ These cases generally reason that although a curtilage determination is a mixed question of law and fact, because it is an " 'essentially factual' inquiry," the clearly erroneous standard of review must apply. See, e.g., United States v. Traynor, 990 F.2d 1153, 1156 (9th Cir. 1993)(quoting United States v. McConney, 728 (9th Cir.)(en banc), cert. denied, 469 U.S. 824 (1984)).

¶ 23. We find this line of reasoning unpersuasive. A circuit court's curtilage determination is not essentially a factual inquiry because it requires review of mixed questions of law and fact.¹¹ See Phillips, 218 Wis. 2d at 189 (stating that "[t]his court has traditionally treated questions of constitutional fact as mixed questions of fact and law, and it has applied a two-step standard when reviewing lower court determinations of constitutional fact.") The initial determination of historical or evidentiary fact is no more important than the ultimate determination of constitutional fact. The federal cases imply that once a circuit court answers the four individual Dunn factors, the court's analysis is complete. See, e.g., Swepston, 987 F.2d 1510, 1513 (10th Cir. 1993)(stating that the Dunn four-factor test "involves purely factual determinations"). However, answering each individual Dunn factor does not complete the analysis. The court must still apply the constitutional principles to the facts at hand to answer the question of law. As such, the Dunn inquiry cannot be a purely factual inquiry.

¶ 24. In sum, a curtilage determination involves an issue of constitutional fact. We therefore apply a two-step standard of review in which we first review a court's evaluation of the individual Dunn factors for clear error, whether such findings are contrary to the great weight and clear preponderance of the evidence. Then we review a court's ultimate determination of the extent of curtilage de novo.

Ill.

¶ 25. Next, we address whether the five marijuana plants the deputies found growing on Martwick's property lay outside the curtilage of his residence. We conclude that the five marijuana plants were located outside the curtilage of the residence, and therefore, the deputies could enter that part of the property and seize a leaf slip from one of the plants during their initial warrantless search.

¶ 26. The Fourth Amendment provides that "people [are] to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.. .and [that] no Warrants shall issue, but upon probable cause.. .." U.S. Const. amend. IV. The protection provided by the Fourth Amendment to a home also extends to the curtilage of a residence. Oliver, 466 U.S. at 180. The curtilage is actually "considered part of [the] home itself for Fourth Amendment purposes," id. at 180, and is defined at common law as "the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life.’" Id. (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).

¶ 27. The protections of the Fourth Amendment do not attach to land beyond the curtilage of a home. See Hester v. United States, 265 U.S. 57, 59 (1924). Such land includes public areas and what has been described as "open fields." See id.

¶ 28. The open fields concept was observed in Hester, in which Justice Holmes explained that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law." Hester, 265 U.S. at 59 (citation omitted). In Hester, police officers seized a jug and bottle of illegal whiskey on Hester's land. Id. at 58. The Court held that even though police officers had trespassed on Hester's land, the jug and bottle were not illegally seized because they were seized in the area of the property designated by the Court as the open fields. Id. at 58-59.

¶ 29. The distinction observed in Hester was reaffirmed in Oliver, which stated that "[t]he distinction implies that only the curtilage, not the neighboring fields, warrants the Fourth Amendment protections that attach to the home." Oliver, 466 U.S. at 180. Open fields are not confined literally to fields. Id. at n.11. Further, "an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers." Id. at 181. In fact, "there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields." Dunn, 480 U.S. at 304.

¶ 30. In Dunn, 480 U.S. at 301, the Supreme Court articulated four factors that a court should refer to when defining the extent of a home's curtilage:

the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.¹²

We now examine the application of the Dunn factors to the facts of this case.

¶ 31. We review for clear error the circuit court's findings of fact. At the September 10, 1997, suppression hearing, the circuit court made few findings of evidentiary or historical fact. However, if a circuit court fails to make a finding that exists in the record, an appellate court can assume that the circuit court determined the fact in a manner that supports the circuit court's ultimate decision. See Sohns v. Jensen, 11 Wis. 2d 449, 453, 105 N.W.2d 818 (1960). Moreover, the court stated that the area where the deputies found the five marijuana plants was not posted or fenced, and that Martwick had a reduced expectation of privacy in that part of his property.¹³ (R. at 35:38.) Finally, the court concluded:

I look at all the information provided, all the testimony provided, all the evidence provided, and I find that the interests of law enforcement in curbing illegal activity is sufficiently a concern of this Court, that the Court reiterates that this officer proceeded with — proceeded cautiously with information which he believed to be reliable. He had private, previous information of his own. He proceeded to verify that information.

I am of the opinion, and let the Appeals Court proceed as they see fit, but there are no open fields in this particular area. This is a wooded area. This is the northwoods, and that's what it looks like, and this is outside the curtilage.

I am clearly of the opinion, and based on the case law as cited by Mr. Schilling I'm further of the opinion this is outside the curtilage. There is no expectation of privacy in that particular area, and that the warrant then was appropriately sought, appropriately drafted, appropriately executed, and the Court then and therefore denies the motion.

(R. at 35:52.) There has been nothing presented which would lead us to conclude that any of Judge Madden's findings are clearly erroneous.

¶ 32. Our own analysis of the Dunn factors leads us to conclude that the five marijuana plants were indeed outside the curtilage of Martwick's home. Therefore, the deputies could legitimately seize a leaf slip from one of the plants, which, when tested, provided probable cause for the subsequent issuance of a search warrant covering the entire Martwick property.

¶ 33. First, the record indicates that the pails were located between 50 and 75 feet from the house. If the proximity factor would be the sole factor examined in the Dunn analysis, this would be a close case. However, no bright-line rule exists for ascertaining when a distance is in close proximity, and cases are often inconsistent in this regard. See United States v. Soliz, 129 F.3d 499, 502 (9th Cir. 1997)(comparing a variety of federal cases in which similar distances were held to be either within or outside the curtilage).

¶ 34. Further, it is helpful to examine the distance in relation to the total size of the property. See United States v. Reilly, 76 F.3d 1271, 1277 (2d Cir. 1996). On a smaller property, such as Martwick's property, the curtilage may very well extend for less distance than on a larger property, where the owner has more room to conduct his or her "intimate activit[ies] of. . .life." Oliver, 466 U.S. at 180. Simply because a property is small, and the relative distances involved are less than that of a large property, it does not mean that virtually the whole property must be within the curtilage. Therefore, while the distance between Martwick's home and the marijuana plants was not vast, our inquiry does not end with this factor.

¶ 35. We also distinguish our recent curtilage analysis in State v. O'Brien, 223 Wis. 2d 303, 316, 588 N.W.2d 8 (1999), in which we found that a truck parked approximately 200 feet from a farmhouse was within the curtilage. Although that distance is obviously greater than the distance in this case, other factors strongly indicated that the truck was still within the curtilage. Most significantly, the truck was parked next to the outbuilding of the farm complex. O'Brien, 223 Wis. 2d at 303. The farm complex consisted of a "duplex, a barn, an outbuilding, a small backyard and two driveways." Id. at 310. This court stated that in the context of a "rural setting," id. at 316, the area extending to the outbuilding was in the curtilage. Id. at 316. See also Dunn, 480 U.S. at 307-09 (Brennan, J., joined by Marshall, J., dissenting)(pointing out that in the context of a farm, many state and federal courts hold that the curtilage of the farmhouse often extends to barns and outbuildings).

¶ 36. In contrast, Martwick's property is not a farm. As such, our analysis in O'Brien¹⁴ is not analogous to this case. Moreover, because Martwick's property is not a farm, the curtilage does not automatically extend to his ginseng sheds.

¶ 37. Second, Martwick did not erect any fence or other enclosure surrounding his home. Deputy Roush tripped over some wire on the property, but that wire apparently did not surround the home.

¶ 38. It is significant that the marijuana plants did not stand in the area of low-cut weeds and brush surrounding the house. Oliver noted that the curtilage of most homes is clearly marked. Oliver, 466 U.S. at 182, n.12. Similarly, in United States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997), the Sixth Circuit found that the curtilage of the home only extended to the portion of the property that was maintained as a backyard in contrast to the rest of the property, which was a wooded field.¹⁵

¶ 39. In this case, the curtilage is clearly marked by the low-cut weeds and brush. The photographs introduced into evidence of Martwick's property indicate that the low-cut weeds extend approximately twenty feet from the house. The tree line then suddenly appears at twenty feet, and the trees further continue to the property's border and beyond. Moreover, from the photographs, there is no way to differentiate between the edge of Marwick's property and the property of his abutting neighbors. (Exhibits 1-25, 27-28.)

¶ 40. Martwick argues that trees and shrubs that surround a house can fulfill the enclosure requirement. (Resp. Br. at 11.) For this proposition Martwick cites Lange, 158 Wis. 2d at 618. We disagree. The facts in Lange actually support our conclusion. The court of appeals explained that "the house and garden stood alone in the middle of farm fields, surrounded except for the driveway entrance on all four sides by trees_" Lange, 158 Wis. 2d at 618-19 (emphasis added). In this case, the point where the woods begin also marks the boundary of the curtilage. However, the wooded area is not within the curtilage because the trees begin at a point twenty feet from the house, and therefore, mark the end of the twenty-foot clearing surrounding the house.

¶ 41. Third, Martwick did not use the area where the marijuana plants were found for anything in particular. While the marijuana was found near the rough footpath on the property, we do not consider that fact significant. Martwick also argues that the footpath leads to a "garden." (Resp. Br. at 12-13.) We agree with the state that the sheds where Martwick cultivated ginseng and worms do not constitute a garden, "as that term is commonly understood." (Pet. Reply Br. at 10.) Moreover, no witness characterized the ginseng sheds as a garden at the suppression hearing. Nothing indicates that the area was used for "intimate activity associated with the 'sanctity of a man's home and the privacies of life.'" Oliver, 466 U.S. at 180 (quoting Boyd, 116 U.S. at 630).

¶ 42. Fourth, the photographs introduced into evidence indicate that the trees at the edge of Marwick's property were fairly dense. By placing the marijuana among the dense trees, Martwick was able to protect the marijuana from observation from the street. However, as we noted above, Martwick seems to live in a naturally wooded area. He did not plant or cultivate the trees that grow on his property. Martwick therefore did not create this protected area, as opposed to an individual who plants a tree line around his or her property, or builds a high wall or fence. Martwick simply has not exercised dominion over his woods, so as to make the woods an intimate part of his home. If the entire lot were curtilage, then this court would be creating an observation-free zone for criminal activity on all wooded property, greatly undercutting legitimate law enforcement efforts. Therefore, this final factor supports the other evidence that the marijuana was found outside of the curtilage of the home.

IV.

¶ 43. In conclusion, we hold that a curtilage determination is a question of constitutional fact subject to a two-step review. The findings of evidentiary or historical fact are reviewed for clear error, to determine whether such findings are contrary to the great weight and clear preponderance of the evidence. The ultimate determination of constitutional fact is reviewed de novo. We further hold that applying this two-step process, the five marijuana plants the deputies initially found were outside of the curtilage of Martwick's home. Because they were outside the curtilage, the deputies could seize a leaf sample. The leaf sample, when tested, provided probable cause for the search warrant, and therefore, the deputies' subsequent search and seizure of the evidence of marijuana cultivation was proper. Accordingly, we reverse the court of appeals' decision, which overturned Martwick's conviction.

By the Court. — The decision of the court of appeals is reversed.

1 All subsequent references to the Wisconsin Statutes are to the 1995-96 text unless otherwise noted.

2 A curtilage is the land and buildings immediately surrounding a house. See United States v. Dunn, 480 U.S. 294, 300 (1987). Black's Law Dictionary notes that the word curtilage is

derived from the Latin eohors (a place enclosed around a yard) and the old French cortilliage or courtillage which today has been corrupted into court-yard. Originally, it referred to the land and outbuildings immediately adjacent to a castle that were in turn surrounded by a high stone wall... .

Black's Law Dictionary 384 (6th ed. 1990).

3 This second motion was filed with the circuit court on September 16,1997, six days after the motion hearing about the curtilage issue. Martwick seems not to have taken further action regarding the second motion. The record also does not disclose what proceedings, if any, took place pertaining to this motion. Martwick, however, does not raise this issue on appeal.

4 See Wis. Stat. § 971.31(10).

5 The record indicates that Martwick's charge was amended to a lesser offense. (R. at 25.)

6 As conditions of probation, Martwick was to pay a fine and costs, spend 90 days in jail with work release privileges, and make restitution. Additionally, his driver's license was suspended for six months. (R. at 26.)

7 The following are the four factors:

the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

United States v. Dunn, 480 U.S. at 301.

8 Phillips actually stated that evidentiary or historical findings would not be overturned " 'unless they are contrary to the great weight and clear preponderance of the evidence.1" State v. Phillips, 218 Wis. 2d 180, 190, 577 N.W.2d 794 (1998) (quoting State v. Woods, 117 Wis. 2d 701, 715, 345 N.W.2d 457 (1984)). We may rely on this articulation of the standard, however, because "cases which apply the 'great weight and clear preponderance' test. . .may be referred to for an explanation of [the clearly erroneous] standard of review [since] the two tests in this state are essentially the same." Noll v. Dimiceli's Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983). See also State v. Michels, 141 Wis. 2d 81, 90, 414 N.W.2d 311 (Ct. App. 1987).

9 See, e.g., State v. Jackson, 147 Wis. 2d 824, 829, 434 N.W.2d 386 (1999); Isiah B. v. State, 176 Wis. 2d 639, 646, 500 N.W.2d 637 (1993); State v. Anderson, 165 Wis. 2d 441, 447, 477 (1991); State v. Whitrock, 161 Wis. 2d 960, 973, 468 N.W.2d 696 (1991).

10 See, e.g., United States v. Reilly, 76 F.3d 1271, 1275, aff’d on reh'g, 91 F.3d 331 (2d Cir. 1996); United States v. Friend, 50 F.3d 548, 552 (8th Cir. 1995), vacated on other grounds, 517 U.S. 1152 (1996); United States v. Benish, 5 F.3d 20, 24 (3rd Cir. 1993); United States v. Knapp; 1 F.3d 1026, 1029 (10th Cir. 1993); United States v. Traynor, 990 F.2d 1153, 1156-57 (9th Cir. 1993); United States v. Hatch, 931 F.2d 1478, 1480 (11th Cir. 1991), cert. denied, 502 U.S. 883 (1991); United States ex rel. Saiken v. Bensinger, 546 F.2d 1292, 1297 (7th Cir. 1976), cert. denied, 431 U.S. 930 (1977); Hodges v. United States, 243 F.2d 281, 283 (5th Cir. 1957). (Pet. Br. at 10.)

11 Moreover, the cases the state cites were decided before Ornelas, which was decided in 1996.

12 The Court also cautioned that

[w]e do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a 'correct' answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration-whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection.

Dunn, 480 U.S. at 301.

13 Martwick also argues that the deputies violated his reasonable expectation of privacy in the area 50-75 feet from his home. (Resp. Br. at 14-16.) However, "[t]he [open fields doctrine] is consistent with respect for 'reasonable expectations of privacy.’" Oliver, 466 U.S. 170, 180 (1984). In fashioning the Dunn factors, the United States Supreme Court clearly took into consideration an individual's right to privacy. See Dunn, 480 U.S. at 300. As such, the privacy issue is interwoven with the curtilage determination and need not be considered separately.

14 In O'Brien there were other significant differences as well. Officers entered onto the property with a search warrant that permitted them to search the premises. Because the search warrant extended to the premises, the issue was whether the physical proximity test applied to the search warrant. State v. O'Brien, 223 Wis. 2d 303, 314, 588 N.W.2d 8 (1999).

15 The Sixth Circuit described the contrast by stating that "[djefendants' backyard is clearly demarked as a continuation of the home itself. No one could mistake the yard, and its neatly mowed lawn and garden arrangements, for the unkempt open fields composing the remaining portion of defendants' rural property." United States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997).