State v. Christopher D. Wilson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 11, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1014-CR Cir. Ct. No. 2017CM2829

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHRISTOPHER D. WILSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: DAVID L. BOROWSKI, Judge. Affirmed.

¶1 DONALD, J.1 Christopher D. Wilson appeals a judgment
convicting him of operating a motor vehicle while intoxicated (OWI) as a second

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP1014-CR

offense and endangering safety by use of a dangerous weapon while under the
influence of an intoxicant. Wilson argues that the police unlawfully entered his
backyard and seized him, and the circuit court erred in denying his motion to
suppress the evidence. We conclude that Wilson’s motion to suppress was
properly denied because the officers’ entry into the backyard and interaction with
Wilson were covered by the “knock and talk” exception to the Fourth
Amendment’s warrant requirement. Accordingly, we affirm.

BACKGROUND

¶2 The record before the circuit court reflects that on January 16, 2017,
around 1:43 p.m., Officer Nathan Siefert and another officer were dispatched to
the 1400 block of Rawson Avenue in Milwaukee to investigate a reckless driver
complaint from a 911 caller.

¶3 Upon arrival, Officer Siefert saw an unoccupied silver BMW
matching the caller’s description in an alley. The car was running and had the
back hatch open. Officer Siefert ran the car’s license plate and found that the car
was not registered to any nearby address. Officer Siefert observed that the
residence’s fence was “ajar.”

¶4 Officer Siefert contacted the 911 caller. The caller stated that the car
was “all over the roadway … changing speeds, just driving very erratically.” The
caller observed the car pull into the area where Officer Siefert eventually located
it. The caller stated that the driver climbed onto the fence, reached over the fence,
opened it, and entered the backyard. The caller described the driver to be a white
male wearing bright orange shoes.

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No. 2020AP1014-CR

¶5 At that point, Officer Siefert believed he was dealing with either a
burglary or an operating while intoxicated driver, or both. Officer Siefert thought
it was a burglary because the car was not registered to a nearby address and was
left running. He further thought the hatch was open for a quick getaway.

¶6 Officer Siefert moved a garbage can out of the way, entered the
fenced backyard, did not see anyone, walked to the side door of the garage, and
knocked. Officer Siefert’s partner accompanied him.

¶7 Wilson, a white male wearing glasses, an orange shirt, bright orange
shoes, and a black hat, opened the door. Officer Siefert asked Wilson about his
driving, whether he had been drinking, smoking, or taking medications, and if he
lived at the house. According to Officer Siefert, Wilson had a slurred speech and
stumbled on the concrete garage floor, which was dry and level at that time.

¶8 Wilson asked to return to the BMW so he could get his
identification. When they returned to the car, Wilson tried to open the front
passenger door, but it was locked. Officer Siefert observed a hand gun inside the
car and then patted Wilson down for weapons. During the pat down, the officer
found a pill bottle in Wilson’s pocket.

¶9 After discovering that Wilson’s driver’s license was revoked, Officer
Siefert arrested Wilson. Later, a blood test came back positive for methadone and
alprazolam.

¶10 Wilson filed a motion to suppress all of the evidence the police
obtained after the “unlawful seizure” of Wilson in the backyard.

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No. 2020AP1014-CR

¶11 The circuit court held a motion hearing.2 Testimony was taken from
Officer Siefert, and Siefert’s body camera video was moved into evidence. The
circuit court ultimately denied Wilson’s motion to suppress. The court concluded
that the warrantless entry into Mr. Wilson’s backyard was “justified by exigent
circumstances of a hot pursuit of a fleeing suspect who had committed jailable
offenses.” The court also found that Officer Siefert had probable cause to believe
that the jailable offenses of either criminal trespass or burglary was being
committed.

¶12 On May 23, 2019, Wilson pleaded guilty to OWI as a second offense
and endangering safety by use of a dangerous weapon while under the influence of
an intoxicant. Possession of a prescription drug without a valid prescription was
dismissed and read in. Wilson was sentenced to a total of four months in jail.

DISCUSSION

¶13 The Fourth Amendment to the United States Constitution and
article I, section 11 of the Wisconsin Constitution protect “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.”

¶14 The protections that attach to the home also extend to the “curtilage
of a residence.” State v. Martwick, 2000 WI 5, ¶26, 231 Wis. 2d 801, 604 N.W.2d
552. “[T]he curtilage is the area to which extends the intimate activity associated
with the ‘sanctity of a [person’s] home and the privacies of life’ and therefore has
been considered part of [the] home itself for Fourth Amendment purposes.”

2
The Honorable Jean Kies presided over the motion hearing.

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No. 2020AP1014-CR

Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735 (1984) (citation
omitted). This includes “the land immediately surrounding and associated with
the home.” Id.

¶15 Whether police conduct violated the constitutional guarantee against
unreasonable searches and seizures is a question of constitutional fact. State v.
Griffith, 2000 WI 72, ¶23, 236 Wis. 2d 48, 613 N.W.2d 72. When presented with
a question of constitutional fact, we engage in a two-step inquiry. See State v.
Dumstrey, 2016 WI 3, ¶12, 366 Wis. 2d 64, 873 N.W.2d 502. First, the circuit
court’s findings of historical fact will be upheld unless they are clearly erroneous.
Id., ¶13. Second, we “apply the constitutional principles to the facts at hand to
answer the question of law.” Id. (citation omitted).

¶16 On appeal, as he did in the circuit court, Wilson argues that the
police violated his Fourth Amendment rights by entering into his fenced backyard
and seizing him.

¶17 The State disagrees with Wilson and argues that exigent
circumstances—specifically “hot pursuit”—justified the officers’ entry into
Wilson’s backyard. Alternatively, the State argues that the officers’ entry into the
backyard was a permissible “knock and talk” investigation.

¶18 As discussed below, we agree with the State that the officers
conducted a lawful “knock and talk” investigation.3 Accordingly, because this

3
The circuit court did not determine whether the officers’ entry into the backyard was a
permissible knock and talk. However, we may affirm on grounds other than those upon which
the circuit court relied. See State v. Earl, 2009 WI App 99, ¶18 n.8, 320 Wis. 2d 639, 770
N.W.2d 755.

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No. 2020AP1014-CR

issue is dispositive, we do not address whether exigent circumstances justified the
entry into the backyard. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d
514 (Ct. App. 1989) (“[C]ases should be decided on the narrowest possible
ground[.]”).

¶19 To effectuate a knock and talk at a residence, police do not need
probable cause or a warrant. See City of Sheboygan v. Cesar, 2010 WI App 170,
¶9 n.5, 330 Wis. 2d 760, 796 N.W.2d 429.

¶20 In Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409 (2013), the
United States Supreme Court recognized the constitutionality of the knock and
talk exception to the Fourth Amendment’s warrant requirement. Jardines
explained that an “implicit license” exists that allows visitors to “approach the
home by the front path, knock promptly, wait briefly to be received, and then
(absent invitation to linger longer) leave.” Id. at 8. Accordingly, a police officer
without a warrant may approach a home and knock because that is no more than
what a private citizen may do. Id.; see also, State v. Edgeberg, 188 Wis. 2d 339,
347, 524 N.W.2d 911 (Ct. App. 1994) (observing that police may enter areas of
the curtilage that are impliedly open to use by the public).

¶21 Wilson argues that the officers were under “no illusion they were
approaching the front door of a home” and their path to the garage’s side door was
not “open to use by the public.”

¶22 Although Jardines referred to an approach to the home by “the front
path,” courts have recognized that there are instances in which officers are
justified in approaching by an alternative or back entryway. See, e.g., Alvarez v.
Montgomery Cnty., 147 F.3d 354, 356 (4th Cir. 1998) (stating that the Fourth
Amendment does not prohibit police from entering into a backyard when

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No. 2020AP1014-CR

circumstances indicate they might find the homeowner there); United States v.
Garcia, 997 F.2d 1273, 1279-80 (9th Cir. 1993) (stating that “[i]f the front and
back of a residence are readily accessible from a public place, like the driveway
and parking area ... the Fourth Amendment is not implicated when officers go to
the back door reasonably believing it is used as a principal entrance to the
dwelling”).

¶23 Under the specific facts of this case, we conclude that an “implicit
license” existed for the officers to enter the backyard in the middle of the day from
the alley, walk to the side garage door, and knock. Although the backyard was
surrounded by a fence, the gate was open. It was not latched or locked shut. As a
result, there is no clear indication that visitors were intended to be excluded from
entering. See Edgeberg, 188 Wis. 2d at 346-47 (distinguishing the entry of a
porch with an unlocked screen door leading to an interior front door from the entry
of a locked hallway that was only accessible to a limited group).

¶24 Moreover, there was reason to believe that someone was in the
backyard. Prior to entering the backyard, Officer Siefert spoke to the 911 caller
who stated that the driver of the car that was “all over the roadway … changing
speeds, just driving very erratically” had opened the fence and entered the
backyard. See Alvarez, 147 F.3d at 358-59 (finding that there was no Fourth
Amendment violation when officers received a 911 call about an underage
drinking party and proceeded to the backyard of a residence after seeing a sign
indicating the party was in the back).

¶25 Thus, here, we conclude that the officers conducted a permissible
knock and talk investigation. Wilson had no obligation to open the door or speak
with the officers. See Kentucky v. King, 563 U.S. 452, 469-70, 131 S. Ct. 1849

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No. 2020AP1014-CR

(2011). It was not until after Wilson left the backyard and returned to the car that
any seizure occurred.

¶26 Therefore, for the reasons above, we reject Wilson’s argument that
he was unlawfully seized in the backyard and we affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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