State v. Barry J. Krull

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.
June 2, 2020
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. 2019AP370-CR Cir. Ct. No. 2016CT155

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BARRY J. KRULL,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Shawano County:
WILLIAM F. KUSSEL, JR., Judge. Affirmed.

¶1 STARK, P.J.1 Barry Krull appeals a judgment convicting him of
third-offense operating a motor vehicle while intoxicated (OWI). Krull argues the
circuit court erred by denying his motion to suppress. Specifically, he contends

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP370-CR

the court should have granted his motion because law enforcement violated his
Fourth Amendment rights by: (1) unlawfully detaining him on private property
without a warrant; and (2) subjecting him to a warrantless blood draw. We reject
these arguments and affirm.

BACKGROUND

¶2 The following facts are taken from the testimony at the hearing on
Krull’s suppression motion. At approximately 8:38 p.m. on May 22, 2016,
sheriff’s deputies Jessica Bartz and David Rogers were on patrol on Highway 156
in Shawano County. They observed a vehicle, whose driver was later identified as
Krull, traveling eastbound on Highway 156 at a speed of sixty-seven miles per
hour in a fifty-five-mile-per-hour zone. The deputies turned their vehicle around
and followed Krull onto Old 47 Road and into the driveway of a residence, which
was owned by Krull’s friend and co-worker, Brett Blooma.2

¶3 Krull drove his vehicle approximately thirty to forty feet into the
driveway and then stopped. He exited the vehicle and started walking toward
some individuals who were socializing near a garage. Bartz exited her vehicle and
asked Krull to come back and talk to her, at which point she observed that Krull
smelled of intoxicants and had slurred speech and bloodshot eyes. Krull admitted
to Bartz that he had consumed four beers between 4:00 p.m. and approximately
fifteen minutes before the stop. Bartz determined that Krull had two prior OWI
convictions and administered field sobriety tests. After the field sobriety tests,

2
The parties dispute whether Bartz activated her squad car’s red and blue flashing lights
before or after she turned into Blooma’s driveway. However, that dispute is not material to our
analysis of the issues raised on appeal.

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No. 2019AP370-CR

Bartz asked Krull to submit to a preliminary breath test (PBT), and Krull refused
to do so. Bartz placed Krull under arrest and put him in the back of her squad car.3

¶4 After he was placed in the squad car, Krull expressed concerns to
Bartz about his two-year-old son, whom his cousin was babysitting. Krull told
Bartz that his cousin expected to leave at some point, and he needed to make
different child care arrangements. Krull asked several times if he could use his
phone to arrange child care. Bartz told Krull he would be allowed to make phone
calls if he was cooperative.

¶5 The deputies then transported Krull to a nearby hospital for a blood
draw. On the way, they allowed Krull to make phone calls to arrange child care
for his son. Krull testified he could have called his wife and asked her to leave
work early to watch their son, but he did not want to do so because he had “other
options” and did not want to interrupt her. Krull therefore arranged for his brother
to watch the child instead. However, he described that arrangement as a
“temporary fix” because his brother would need to leave at 4:00 the following
morning. Krull testified that if he did not get home by then, his brother “would
have to call in or be late” to work.

¶6 After Krull and the deputies arrived at the hospital, Bartz read Krull
the Informing the Accused form and asked whether he would submit to a chemical
test of his blood. Krull consented to the blood draw. While at the hospital, Krull

3
The parties dispute whether Bartz stated her intention to place Krull under arrest before
or after she asked him to submit to a PBT. Again, that dispute is not material to our analysis of
the issues raised on appeal.

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No. 2019AP370-CR

again asked to make phone calls to arrange child care and repeatedly expressed
concern about that issue.

¶7 In his suppression motion, Krull argued evidence obtained following
his detention by the deputies should be suppressed because: (1) the deputies
unlawfully detained him on private property without a warrant; and (2) he was
unlawfully subjected to a warrantless blood draw. Following the suppression
hearing, the circuit court denied Krull’s motion in an oral ruling. As to Krull’s
first argument, the court concluded Krull was not unlawfully detained on private
property because the area where he was seized was not part of the curtilage of
Blooma’s home and Krull had no reasonable expectation of privacy in that area.
With respect to Krull’s second argument, the court concluded Krull had
voluntarily consented to the warrantless blood draw.

¶8 After the circuit court denied his suppression motion, Krull entered a
no-contest plea to third-offense OWI. The court sentenced Krull to forty-five days
in jail, but it stayed that sentence pending appeal, pursuant to the parties’
stipulation. Krull now appeals, arguing the court erred by denying his suppression
motion.

DISCUSSION

¶9 Our review of a circuit court’s decision on a motion to suppress
presents a mixed question of fact and law. State v. Casarez, 2008 WI App 166,
¶9, 314 Wis. 2d 661, 762 N.W.2d 385. We accept the circuit court’s findings of
historical or evidentiary fact unless they are clearly erroneous. Id. The
application of constitutional principles to those facts, however, presents a question
of law that we review independently. Id.

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No. 2019AP370-CR

I. Detention on private property

¶10 Krull first argues suppression is warranted because the deputies
unlawfully detained him on private property without a warrant, in violation of his
Fourth Amendment rights. The Fourth Amendment to the United States
Constitution protects against unreasonable searches and seizures. State v. Baric,
2018 WI App 63, ¶17, 384 Wis. 2d 359, 919 N.W.2d 221. In this case, Krull
argues that although the deputies initially stopped his vehicle for speeding, they
converted the initial stop into an investigatory detention—i.e., a Terry stop4—
when they began investigating whether he had committed an OWI offense. Krull
asserts that a Terry stop can never occur on private property.

¶11 The State concedes—and we agree—that Krull was detained
pursuant to a Terry stop. Nonetheless, we reject Krull’s assertion that a Terry stop
can never occur on private property, as none of the authorities he cites support that
proposition. For instance, Krull cites WIS. STAT. § 968.24, which states that “a
law enforcement officer may stop a person in a public place for a reasonable
period of time when the officer reasonably suspects that such person is
committing, is about to commit or has committed a crime.” The fact that § 968.24
authorizes law enforcement to stop a person “in a public place” does not, however,
mean that such a stop cannot occur on private property. Those terms are not
mutually exclusive, as any number of locations—for example, restaurants or
shopping malls—may be both private property and public places.

4
See Terry v. Ohio, 392 U.S. 1 (1968).

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No. 2019AP370-CR

¶12 Krull also cites State v. Munroe, 2001 WI App 104, ¶13 n.4, 244
Wis. 2d 1, 630 N.W.2d 223, which states that “both Terry and [WIS. STAT.]
§ 968.24 authorize [investigatory] stops in public places, not in homes or hotel
rooms.” Similarly, he cites State v. Stout, 2002 WI App 41, ¶1, 250 Wis. 2d 768,
641 N.W.2d 474, where we held that Terry “only applies to stops made in a public
place and police may not enter an abode based on Terry.” Again, however, the
fact that a Terry stop must occur in a public place does not mean that it may not
occur on private property. Moreover, the stop at issue in this case did not occur
inside a home or a hotel room. We therefore reject Krull’s argument that the stop
violated his Fourth Amendment rights merely because it occurred on private
property.

¶13 Krull next argues the stop violated his Fourth Amendment rights
because he was detained within the curtilage of Blooma’s home. “[T]he United
States Supreme Court has recognized that all warrantless searches and seizures
inside a home are presumptively unreasonable.” State v. Larson, 2003 WI App
150, ¶8, 266 Wis. 2d 236, 668 N.W.2d 338 (citing Welsh v. Wisconsin, 466 U.S.
740, 748-49 (1984)). “The protection provided by the Fourth Amendment to a
home also extends to the curtilage of a residence.” State v. Martwick, 2000 WI 5,
¶26, 231 Wis. 2d 801, 604 N.W.2d 552. The term “curtilage” refers to “the land
and buildings immediately surrounding a house.” Id., ¶1 n.2. We consider four
factors when analyzing whether an area falls within a home’s curtilage: (1) the
area’s proximity to the home; (2) whether the area is included within an enclosure
surrounding the home; (3) the nature of the uses to which the area is put; and
(4) the steps taken by the resident to protect the area from observation by people
passing by. Id., ¶30 (citing United States v. Dunn, 480 U.S. 294, 301 (1987)).

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No. 2019AP370-CR

¶14 Applying the Dunn factors in the instant case, we conclude Krull
was not seized within the curtilage of Blooma’s home. With respect to the first
factor, we observe that Krull was detained after he stopped his vehicle in a
driveway about thirty to forty feet from the road and began walking toward a
garage on Blooma’s property. A photograph of the area in Krull’s brief-in-chief
shows that the driveway directly abuts the garage. A house is located on the
opposite side of the driveway, but the driveway is not directly connected to it.

¶15 As for the second Dunn factor, no portion of the driveway is
included within an enclosure surrounding Blooma’s home. Although Krull
contends the driveway “is enclosed on three sides by the residential home, a barn,
and the garage,” we reject this assertion, as the photograph Krull provided clearly
shows that the three buildings are situated some distance apart and do not
constitute an enclosure.

¶16 Turning to the third Dunn factor, we must consider the nature of the
uses to which the area is put and, specifically, whether the area is used “for
intimate activities of the home.” Dunn, 480 U.S. at 302. As already noted, Krull
was detained in or near a driveway. Krull does not dispute that the driveway was
used to access Blooma’s property. Instead, he emphasizes that he and Blooma
store their work tools in the garage. He also notes that the garage is “used as a
place for social gatherings.” Notably, however, Krull was not inside the garage
when the deputies detained him; he was in or near the driveway leading to the
garage. Krull has not cited any evidence indicating that the driveway itself was
used “for intimate activities of the home” to such a degree that it should be
deemed a constitutionally protected area for purposes of the Fourth Amendment.

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No. 2019AP370-CR

¶17 With respect to the fourth and final Dunn factor, we observe that the
area where Krull was seized was not concealed from public view in any way. To
the contrary, the photograph provided in Krull’s brief shows that the driveway is
clearly visible from the road. It is not protected by a fence, vegetation, or anything
else that would prevent its observation by passersby.

¶18 Considered in their totality, the Dunn factors do not support a
conclusion that the area where Krull was seized is part of the curtilage of
Blooma’s home. Furthermore, we agree with the State that even if the area in
question fell within the curtilage of Blooma’s home, Krull would lack standing to
challenge the validity of his seizure there. “To have a claim under the Fourth
Amendment, the person challenging the reasonableness of a search or seizure must
have standing.” State v. Fox, 2008 WI App 136, ¶10, 314 Wis. 2d 84, 758
N.W.2d 790. To demonstrate standing, the person must establish, by a
preponderance of the evidence, that he or she had a reasonable expectation of
privacy in the area in question. Id.

¶19 Whether an individual had a reasonable expectation of privacy in an
area depends on two considerations: (1) whether the individual’s conduct
exhibited an actual, subjective expectation of privacy; and (2) whether that
expectation was legitimate or justifiable—i.e., whether society is willing to
recognize the expectation as reasonable. State v. Bruski, 2007 WI 25, ¶23, 299
Wis. 2d 177, 727 N.W.2d 503. The following factors are relevant to the second
consideration:

(1) whether the accused had a property interest in the
premises; (2) whether the accused is legitimately (lawfully)
on the premises; (3) whether the accused had complete
dominion and control and the right to exclude others;
(4) whether the accused took precautions customarily taken
by those seeking privacy; (5) whether the property was put

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No. 2019AP370-CR

to some private use; [and] (6) whether the claim of privacy
is consistent with historical notions of privacy.

Id., ¶24 (citation omitted).

¶20 On appeal, Krull does not cite any portion of the suppression hearing
transcript in which he testified that he had a subjective expectation of privacy in
Blooma’s driveway. Moreover, any subjective expectation of privacy that Krull
may have had in the driveway was not legitimate or justifiable. There is nothing
in the record to indicate that Krull had a property interest in the driveway. While
it appears Krull was lawfully in the driveway at the time he was seized, there is no
evidence that he had complete dominion or control over the driveway or the right
to exclude others. Furthermore, nothing in the record indicates that Krull took any
precautions to ensure his privacy while in the driveway. In addition, the driveway
was not put to any private use. Instead, it was used to access Blooma’s property.
Although some individuals were apparently socializing in or near the driveway at
the time of Krull’s seizure, that gathering was in plain view of the road and was
therefore not particularly private.

¶21 Finally, any expectation of privacy that Krull may have had in
Blooma’s driveway is not consistent with historical notions of privacy. A
driveway is traditionally used to access a property, and one would generally
expect a driveway that is not gated or blocked in any way to be open for use by
individuals other than the property owner—such as friends, delivery people, or
service providers like plumbers and electricians. As the State points out, even a
complete stranger may briefly enter a property owner’s driveway in order to turn
his or her vehicle around. In short, any expectation of privacy that Krull may have
had in Blooma’s driveway would be inconsistent with the traditional ways in
which driveways are used.

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No. 2019AP370-CR

¶22 The cases Krull cites in support of his argument that he had a
reasonable expectation of privacy in the driveway are distinguishable. In State v.
Trecroci, 2001 WI App 126, ¶1, 246 Wis. 2d 261, 630 N.W.2d 555, multiple
defendants challenged a warrantless entry into an interior stairway that led to an
apartment and attic rented by some of the defendants. In Jones v. United States,
362 U.S. 257, 258-59 (1960), overruled by United States v. Salvucci, 448 U.S. 83
(1980), the defendant challenged a search of an apartment in which he was a guest.
Both an apartment and an interior stairway leading to an apartment are more
private areas than a driveway that is exposed to public view. Accordingly, neither
Trecroci nor Jones compels a conclusion that Krull had a reasonable expectation
of privacy under the circumstances of this case.

¶23 Ultimately, Krull has failed to establish, by a preponderance of the
evidence, that he had a reasonable expectation of privacy in Blooma’s driveway.
As such, even if the driveway could be considered part of the curtilage of
Blooma’s home, Krull would lack standing to assert that the deputies violated his
Fourth Amendment rights by seizing him in the driveway without a warrant.

II. Warrantless blood draw

¶24 Krull next asserts that the deputies violated his Fourth Amendment
rights by subjecting him to a warrantless blood draw. A blood draw to uncover
evidence of a crime constitutes a search within the meaning of the Fourth
Amendment, and warrantless searches are presumptively unreasonable. State v.
Tullberg, 2014 WI 134, ¶¶30-31, 359 Wis. 2d 421, 857 N.W.2d 120.
Accordingly, a warrantless blood draw is constitutional only if it falls within an
exception to the warrant requirement. Id., ¶30.

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No. 2019AP370-CR

¶25 We agree with the State that the warrantless blood draw in this case
falls within the consent exception to the warrant requirement. To determine
whether the consent exception is satisfied, we first consider whether the defendant
consented in fact to the search, and we then consider whether his or her consent
was voluntary. State v. Artic, 2010 WI 83, ¶30, 327 Wis. 2d 392, 786 N.W.2d
430. Here, it is undisputed that Krull consented in fact to the blood draw. The
disputed issue is whether he voluntarily consented.

¶26 It is the State’s burden to demonstrate the voluntariness of a
defendant’s consent by clear and convincing evidence. State v. Phillips, 218
Wis. 2d 180, 197, 577 N.W.2d 794 (1998). When assessing voluntariness, we
consider whether the defendant’s consent was given “in the absence of duress or
coercion, either express or implied.” Id. In so doing, we consider the totality of
the circumstances, including both the circumstances surrounding the consent and
the defendant’s personal characteristics. Id. at 198.

¶27 Krull argues his consent to the blood draw was involuntary because
he was “extremely concerned about securing childcare for his young son”
throughout the course of his interactions with the deputies. He notes that,
following his arrest, he asked several times if he could use his phone to arrange
child care, and Bartz responded that he would be allowed to make phone calls if he
was cooperative. Krull concedes that the deputies allowed him to use his phone to
make child care arrangements on the way to the hospital. Nevertheless, he asserts
the arrangements he made were only a “temporary fix.” He therefore contends
that once he arrived at the hospital, he “felt it was necessary to submit to the blood
draw if he wished to make additional phone calls.” Thus, he argues that although
he consented to the blood draw, “he felt pressured to do so and his decision was
not the product of free and voluntary choice.” Krull further asserts that his

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No. 2019AP370-CR

consent to the blood draw was “in stark contrast” to his refusal to submit to a PBT,
which occurred before Bartz informed him that he would only be allowed to make
phone calls if he cooperated.

¶28 After considering the totality of the circumstances, we cannot
conclude that Krull’s consent to the blood draw was involuntary. Bartz never
threatened Krull, nor did she tell him that he would not be allowed to make phone
calls if he refused to consent to a blood draw. As the circuit court correctly noted,
there was no “quid pro quo” here. Moreover, the deputies allowed Krull to make
phone calls on the way to the hospital, even though he had previously refused to
submit to a PBT. Krull was therefore able to arrange child care before he had
even arrived at the hospital and before he was asked to consent to a blood draw.
Although Krull asserts the child care arrangements he made were only a
“temporary fix,” he testified at the suppression hearing that he knew his brother
would be able to stay with his child until 4:00 the following morning, and if Krull
was not home by that time, his brother would have to “call in or be late” to work.
This was not a situation in which Krull faced the prospect of his child being left
unattended if he did not consent to a blood draw.

¶29 Krull’s personal characteristics further support a conclusion that his
consent to the blood draw was voluntary. The circuit court found that Krull was
an “able-bodied, fairly young individual”5 who had “some experience with OWIs”
and was therefore “fairly aware of what the standards were.” Krull does not argue
that these findings are clearly erroneous. There is nothing in the record to suggest

5
The record shows that Krull was thirty-eight years old at the time of his arrest.

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No. 2019AP370-CR

that Krull’s personal characteristics made him particularly vulnerable to police
pressure.

¶30 Accordingly, based on both Krull’s personal characteristics and the
circumstances surrounding his consent, we conclude Krull voluntarily consented
to the blood draw. The consent exception to the warrant requirement therefore
applies, and, as such, we reject Krull’s argument that the warrantless blood draw
violated his Fourth Amendment rights.

By the Court.—Judgment affirmed.

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

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