State v. Brooke K. Eder

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.
February 28, 2023
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. 2021AP485-CR Cir. Ct. No. 2019CF121

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BROOKE K. EDER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Barron County:
JAMES C. BABLER, Judge. Reversed and cause remanded for further
proceedings.

¶1 HRUZ, J.1 Brooke Eder appeals from a judgment convicting her of
possession of amphetamine. Eder contends that the circuit court erred by denying

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2021AP485-CR

her motions to suppress evidence that was found during a search of her apartment.
The search in question was conducted pursuant to a warrant. The search warrant
affidavit, however, relied on evidence that was discovered during a prior
warrantless search of the basement of Eder’s apartment building. The warrantless
search of the basement followed an initial search of Eder’s apartment, which was
conducted pursuant to a warrant that authorized police to enter the apartment to
find a man named Joshua Estes.

¶2 In her first motion to suppress, Eder argued that the initial warrant to
search her apartment was not supported by probable cause. She further argued
that the evidence discovered during the execution of the second warrant derived
from the initial illegal search and should therefore be suppressed as fruit of the
poisonous tree. In her second suppression motion, Eder argued that even if the
initial search warrant was supported by probable cause, the subsequent warrantless
search of the building’s basement violated the Fourth Amendment. Because the
second warrant relied on evidence discovered during the warrantless search of the
basement, Eder argued that the evidence discovered during the execution of the
second warrant should be suppressed.

¶3 The circuit court denied Eder’s first suppression motion, concluding
that there was probable cause for the initial warrant to search her apartment. The
court denied Eder’s second suppression motion on the grounds that Eder lacked
standing to challenge the warrantless search of her apartment building’s basement.
As such, the court did not address the merits of Eder’s second suppression motion.

¶4 We agree with the circuit court that the initial warrant to search
Eder’s apartment was supported by probable cause. We conclude, however, that
the court erred by determining that Eder lacked standing to challenge the

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warrantless search of her apartment building’s basement. Accordingly, the court
erred by denying Eder’s second suppression motion based on Eder’s alleged lack
of standing. We therefore reverse Eder’s judgment of conviction and remand for
further proceedings on the merits of Eder’s second suppression motion.

BACKGROUND

¶5 On April 24, 2019, Detective Michael Carroll of the Barron County
Sherriff’s Department applied for and received a warrant to search an upper level
apartment in an apartment building in the Village of Brill, Wisconsin. On appeal,
it is undisputed that Eder lived in that apartment. The search warrant identified
Estes as the object of the search.

¶6 The affidavit in support of the search warrant stated that on April 19,
2019, a records check showed that Estes had “a felony warrant through Barron
County Circuit Court for bail jumping and a felony warrant through the Wisconsin
Department of Corrections.” The affidavit further stated that Carroll had observed
Estes outside of the apartment in question on April 19. The affidavit stated that
Carroll knew Estes from prior law enforcement contacts “and was familiar that he
lived at the residence due to drug[-]related tips and observing his girlfriend[’s]
(Brooke Eder) vehicles parked at the residence.”

¶7 The search warrant affidavit also alleged that the “Barron County
RMS system” listed the apartment as Estes’ address. In addition, the affidavit
stated that on April 24, 2019, Carroll “received information from a United States
Postal Inspector that … Eder receives her mail” at the apartment. Finally, the
affidavit alleged that Carroll had spoken with the Barron County Health and
Human Services Department, “who advised [that] … Estes is not to be on the

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No. 2021AP485-CR

property due to a child protective services agreement and that [Eder] lives in the
upstairs apartment.”2

¶8 On April 25, 2019, law enforcement executed the April 24 warrant
to search Eder’s apartment for Estes. After entering the apartment and arresting
Estes, officers entered and searched the apartment building’s basement. In the
basement, Carroll observed a large bag of suspected methamphetamine, digital
scales, and multiple smoking devices.

¶9 Later that day, Carroll applied for and received a second search
warrant, which permitted law enforcement to search Eder’s apartment for
methamphetamine, drug paraphernalia, firearms, and other evidence associated
with the manufacture and sale of illegal drugs. The affidavit in support of the
second search warrant relied on the evidence that Carroll had observed in the
apartment building’s basement earlier that day. Law enforcement executed the
second search warrant on April 25. During that search, they discovered a
crystal-like substance, which field tested positive for methamphetamine, inside a
jewelry box in Eder’s bedroom.

¶10 The State charged Eder with possession of methamphetamine. Eder
then moved to suppress the evidence that law enforcement had discovered in her
bedroom. She argued that the first search warrant was defective because it was

2
The search warrant affidavit also alleged that a confidential informant had reported that
Estes “lives in the upper level with his girlfriend (Brooke Eder) and keeps methamphetamine and
stolen goods in the lower level which is accessed through a south[-]facing locked door that only
[Estes] has access to.” The circuit court did not rely on these allegations in reaching its decision
regarding probable cause, concluding that there was nothing in the search warrant affidavit
indicating that the confidential informant was reliable or that Carroll had corroborated the
information that the informant provided. We likewise do not rely on the confidential informant’s
information in reaching our decision regarding probable cause.

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No. 2021AP485-CR

not supported by probable cause, and she further argued that the evidence found in
her bedroom was discovered “as a direct result of [that] Fourth Amendment
violation.”

¶11 The circuit court held a nonevidentiary hearing on Eder’s
suppression motion in order to determine whether there was probable cause for the
issuance of the first search warrant. The court ultimately issued a written decision
denying Eder’s motion. It determined that the information in the first search
warrant affidavit gave rise to probable cause to believe that Estes “would be at the
property named in the search warrant on April 24, 2019 due to [his] ongoing
relationship with Ms. Eder.” The court rejected Eder’s argument that information
in the first search warrant affidavit was stale.

¶12 Eder then filed a second suppression motion, arguing that even if the
first search warrant was supported by probable cause, law enforcement violated
the Fourth Amendment by entering and searching the apartment building’s
basement without a warrant after they had completed the execution of the first
search warrant by locating and seizing Estes. Eder further argued that the second
search warrant affidavit was defective because it relied on evidence discovered
during the illegal warrantless search of the basement. In response, the State asked
the circuit court to hold a hearing to determine whether Eder had standing to
challenge the warrantless search of the basement.

¶13 The circuit court held an evidentiary hearing on the issue of
standing, during which Estes, Eder, Tom Smrekar (the owner of the apartment

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No. 2021AP485-CR

building), and John Johnson (the building’s downstairs tenant) testified. Based on
the testimony of those witnesses, the court made the following findings of fact.3

¶14 Eder’s apartment building had three units, but only two of those
units were occupied on the dates at issue in this case.4 The building’s basement
was part of Johnson’s lease, but Johnson and Smrekar allowed Estes and Eder to
use the basement. Estes and Eder used the basement regularly, they stored items
in the basement, and Estes used the basement to “work on projects.” Estes and
Eder paid “a little bit of rent” to Johnson in order to use the basement. The
basement could be accessed both from an exterior door and from Johnson’s
apartment. Estes put a lock on the basement’s exterior door, locked it, and gave
one of the two keys to Johnson. Although Johnson could access the basement
through his apartment, he did not use the basement regularly “because it was wet.”

¶15 Based on these factual findings, the circuit court denied Eder’s
second suppression motion, concluding that she did not have a reasonable
expectation of privacy in the apartment building’s basement and therefore lacked
standing to challenge the warrantless search of the basement. Eder subsequently
entered a guilty plea to an amended charge of possession of amphetamine,
pursuant to a plea agreement. She now appeals, arguing that the court erred by
denying her suppression motions. See WIS. STAT. § 971.31(10) (stating that an

3
On appeal, neither Eder nor the State argues that any of the circuit court’s factual
findings are clearly erroneous. See State v. Dearborn, 2010 WI 84, ¶13, 327 Wis. 2d 252, 786
N.W.2d 97 (when reviewing a circuit court’s decision on a motion to suppress evidence, we
accept the court’s factual findings unless they are clearly erroneous).
4
Although the circuit court did not make a specific finding as to which apartment Eder
and Estes occupied, Eder and Estes both testified that they lived in an upstairs unit. Johnson
testified that his apartment was on the ground floor of the building.

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No. 2021AP485-CR

order denying a motion to suppress evidence may be reviewed on appeal
notwithstanding the defendant’s entry of a guilty or no-contest plea).

DISCUSSION

¶16 Both the Fourth Amendment to the United States Constitution and
article 1, section 11 of the Wisconsin Constitution protect against unreasonable
searches and seizures. State v. Dearborn, 2010 WI 84, ¶14, 327 Wis. 2d 252, 786
N.W.2d 97. A search conducted pursuant to a warrant is reasonable only if the
warrant stems from a judicial finding of probable cause. State v. DeSmidt, 155
Wis. 2d 119, 131, 454 N.W.2d 780 (1990). A warrantless search, in turn, is
presumptively unreasonable unless an exception to the warrant requirement
applies. State v. Dalton, 2018 WI 85, ¶38, 383 Wis. 2d 147, 914 N.W.2d 120.

¶17 Generally, we employ a two-step analysis when reviewing a circuit
court’s decision on a motion to suppress evidence. See Dearborn, 327 Wis. 2d
252, ¶13. We accept the court’s findings of fact unless they are clearly erroneous,
but the application of constitutional principles to those facts is a question of law
that we review independently. Id.

I. Probable cause for issuance of the first search warrant

¶18 On appeal, Eder argues that the circuit court erred by denying her
first suppression motion. Specifically, she contends that the court erred by
rejecting her claim that the first search warrant was not supported by probable
cause. She then argues that the evidence discovered during the execution of the
second search warrant should have been suppressed because “the information
gained from the execution of the illegal first warrant was critical” to the issuance
of the second warrant.

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No. 2021AP485-CR

¶19 When reviewing whether probable cause existed for the issuance of
a search warrant, “we are confined to the record that was before the
warrant-issuing judge.” DeSmidt, 155 Wis. 2d at 132. “The person challenging
the warrant bears the burden of demonstrating that the evidence before the
warrant-issuing judge was clearly insufficient.” Id. We do not independently
review the warrant-issuing judge’s determination of probable cause; instead, we
give “great deference” to that determination. Id. The question before us on appeal
is whether the warrant-issuing judge had a “substantial basis” for concluding that
probable cause existed. Id. at 133 (citation omitted). Probable cause requires a
“practical, common-sense decision” that “there is a fair probability that contraband
or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462
U.S. 213, 238 (1983).

¶20 Here, the information in the first search warrant affidavit provided a
substantial basis for the warrant-issuing judge to conclude there was a fair
probability that Estes would be found in Eder’s apartment. The affidavit alleged
that: (1) Carroll had observed Estes outside the apartment on April 19, 2019—five
days before Carroll applied for the warrant; (2) Eder was Estes’ girlfriend, and
Carroll had seen Eder’s vehicles parked outside the apartment; (3) the “Barron
County RMS system” listed the apartment as Estes’ address; (4) on the day Carroll
applied for the warrant, a United States Postal Inspector confirmed that Eder
received her mail at the apartment; and (5) according to the Barron County Health
and Human Services Department, Eder lived in the apartment, and Estes was not
allowed to be on the property “due to a child protective services agreement.”

¶21 Collectively, these allegations gave rise to reasonable inferences
that: Estes and Eder were in an ongoing romantic relationship; Eder lived in the
apartment; and Estes either lived in, or was a frequent visitor to, the apartment.

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No. 2021AP485-CR

These reasonable inferences, and the fact that Carroll saw Estes outside the
apartment five days before applying for the search warrant, provided a substantial
basis for the warrant-issuing judge to conclude there was a fair probability that
Estes would be found in the apartment.

¶22 Eder argues that the facts alleged in the first search warrant affidavit
did not give rise to probable cause because “the information was stale.” “[S]earch
warrants may not rest on stale evidence.” State v. Loranger, 2002 WI App 5, ¶24,
250 Wis. 2d 198, 640 N.W.2d 555 (2001). The facts set forth in a warrant
affidavit must be “so closely related to the time of the issue of the warrant as to
justify a finding of probable cause at that time.” State v. Ehnert, 160 Wis. 2d 464,
469, 466 N.W.2d 237 (Ct. App. 1991) (citation omitted). Timeliness, however, is
not determined by counting “the days or months between the occurrence of the
facts relied upon and the issuance of the warrant.” Id. Instead, the timeliness of
the information depends upon the nature of the underlying circumstances. Id.
Ultimately, whether the information in a search warrant affidavit is stale “must be
determined by the circumstances of each case.” Id. (citation omitted).

¶23 In this case, the first search warrant affidavit alleged that Carroll had
seen Estes outside the apartment five days earlier. Eder concedes that five days
“is not a particularly long time.” She argues, however, that “people are highly
mobile,” and “[a] single observation that a particular person was in a particular
place at a particular time says very little about whether they will be there five days
later.”

¶24 This argument is unpersuasive because the first search warrant
affidavit did not contain merely a “single observation” that Estes was outside the
apartment on a particular date. Instead, the affidavit contained information

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No. 2021AP485-CR

supporting reasonable inferences that Eder lived in the apartment and that Eder
and Estes were in an ongoing romantic relationship. The affidavit also stated that
Barron County’s RMS system listed the apartment as Estes’ address.5 This
information, when combined with Carroll’s observation of Estes outside the
apartment five days earlier, supported a reasonable inference that Estes was at the
apartment with some regularity and was not merely an occasional visitor at that
location. Thus, the information in the search warrant affidavit gave rise to a fair
probability that Estes would be found in the apartment. Under these
circumstances, we reject Eder’s argument that the information in the search
warrant affidavit was stale.

¶25 Eder also argues that the child protective services agreement
prohibiting Estes from being on the property made it “substantially unlikely” that
he would be there on April 24, 2019—the date the first warrant was issued.
Although Carroll had observed Estes outside the apartment only five days earlier,
on April 19, Eder asserts there is “no proof that the prohibition on Estes’ presence
there was in place on April 19.” Eder therefore suggests that Estes’ presence at
the property on April 19 did not give rise to a reasonable inference that he would
be present at the property on April 24, while the child protective services
agreement was in effect.

5
Eder observes that the search warrant affidavit contains “no information about what
Barron County RMS is or proof that the address listed there was accurate or up-to-date even on
April 19.” Despite the lack of this additional information, the warrant-issuing judge could
reasonably infer that “the Barron County RMS system” referenced in the search warrant affidavit
was an information system maintained by Barron County. In the absence of any evidence that the
address listed for Estes in that system was out of date, the judge could also reasonably infer that
the information in the system was current.

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No. 2021AP485-CR

¶26 Eder is correct that the search warrant affidavit contains no specific
information about when the child protective services agreement went into effect.
Given the absence of any information to the contrary, however, the
warrant-issuing judge could reasonably infer that the agreement had been in effect
five days earlier, on April 19, when Carroll observed Estes outside the apartment.
Given that reasonable inference, the judge could reasonably conclude there was a
fair probability that Estes would be in the apartment on April 24, even though the
child protective services agreement prohibited him from being there.

¶27 Eder also observes that Carroll could have arrested Estes on April 19
pursuant to Estes’ outstanding warrants, but Carroll chose not to do so. To the
extent Eder intends to suggest that Carroll’s failure to arrest Estes on April 19 is
relevant to our probable cause analysis, we reject that notion. Again, the question
before the warrant-issuing judge was whether the information in the search
warrant affidavit gave rise to a fair probability that Estes would be found in the
apartment. See Gates, 462 U.S. at 238. Whether Carroll could have arrested Estes
on an earlier date has no bearing on that analysis.

¶28 For all of these reasons, we conclude there was a substantial basis
for the warrant-issuing judge’s determination that the first search warrant affidavit
established probable cause to search Eder’s apartment for Estes. Because we
reject Eder’s claim that the first search warrant was invalid, we need not address
her argument that the evidence found in her bedroom must be suppressed because
it was derived from information obtained as a result of the first warrant.

II. Standing to challenge the warrantless search of the basement

¶29 As Eder correctly notes, the State conceded in the circuit court that
the first search warrant did not authorize law enforcement’s initial search of her

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apartment building’s basement.6 In her second suppression motion, Eder argued
that the warrantless search of the basement violated the Fourth Amendment. She
further argued that the evidence discovered during the subsequent search of her
bedroom, which was conducted pursuant to the second search warrant, should be
suppressed because the affidavit in support of the second search warrant relied on
evidence discovered during the warrantless search of the basement. The circuit
court did not address the merits of Eder’s second suppression motion. Instead, the
court denied the motion on the grounds that Eder lacked standing to challenge the
warrantless search of the basement.

¶30 An individual must have standing in order to challenge the
constitutionality of a search. State v. Bruski, 2007 WI 25, ¶¶21-22, 299 Wis. 2d
177, 727 N.W.2d 503. There is no bright-line test for determining whether an
individual has standing to assert a Fourth Amendment violation, “but standing
exists when an individual has a reasonable expectation of privacy.” Id., ¶22. The
determination of whether an individual has a reasonable expectation of privacy
depends on: “(1) whether the individual has by his or her conduct exhibited an
actual (subjective) expectation of privacy in the area searched and in the seized
item, and (2) whether such an expectation is legitimate or justifiable in that it is
one that society is willing to recognize as reasonable.” State v. Dixon, 177
Wis. 2d 461, 468, 501 N.W.2d 442 (1993).

6
According to the second search warrant affidavit, the initial search of the basement
occurred after officers had entered Eder’s apartment and arrested Estes, who was the sole object
of the first search warrant. “A search may not be continued after the objects identified in the
search warrant have been located and seized.” State v. Starke, 81 Wis. 2d 399, 414, 260 N.W.2d
739 (1978).

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No. 2021AP485-CR

¶31 In this case, the circuit court concluded—and the State does not
dispute—that Eder had a subjective expectation of privacy in the apartment
building’s basement.7 The disputed issue on appeal is whether Eder’s subjective
expectation of privacy in the basement was objectively reasonable under the
second prong of the Dixon test.

¶32 The Dixon court stated that the following factors are “relevant” to
determining whether an individual’s subjective expectation of privacy is
objectively reasonable:

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

Id. at 469.

¶33 As an initial matter, we agree with Eder that the circuit court failed
to apply the correct legal standard when analyzing the second prong of the Dixon
test. Citing State v. Eskridge, 2002 WI App 158, 256 Wis. 2d 314, 647 N.W.2d
434, the court stated that in order to satisfy the second prong of the Dixon test,
“there is a requirement that all six factors must be found.” The Dixon court
expressly stated, however, that the six factors listed therein are “not controlling or
exclusive.” Dixon, 177 Wis. 2d at 469. Instead, “[t]he totality of the

7
The circuit court concluded that Eder had a subjective expectation of privacy in the
basement because she and Estes used the basement regularly, Estes put a lock on the basement’s
exterior door, and Johnson knew about their use of the basement and did not object to that use.

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No. 2021AP485-CR

circumstances is the controlling standard.” Id. Our supreme court has since
reiterated that the list of factors in Dixon is “neither controlling nor exclusive” and
that courts “consider the totality of the circumstances when evaluating the latter
prong of the reasonable expectation test.” Bruski, 299 Wis. 2d 177, ¶24. Because
the list of factors in Dixon is not controlling or exclusive, and because the totality
of the circumstances is the controlling standard, it necessarily follows that a
defendant may be able to satisfy the second prong of the Dixon test without
establishing all six of the factors listed in that case.8

¶34 We further agree with Eder that, considering the totality of the
circumstances, her subjective expectation of privacy in the apartment building’s
basement was objectively reasonable and therefore satisfies the second prong of
the Dixon test. As the circuit court correctly held, Eder satisfied the first Dixon
factor because she and Estes paid rent to Johnson to use the basement and
therefore had a property interest in that area. See Dixon, 177 Wis. 2d at 469.
Applying the second Dixon factor, the court also correctly ruled that Eder’s
presence in the basement was legitimate. See id. Again, Eder and Estes paid rent
to use the basement, and both Johnson and Smrekar had consented to their use of
that area.

¶35 The circuit court also determined that Eder had satisfied the fourth
Dixon factor because she and Estes took precautions customarily taken by those
seeking privacy. See id. Specifically, the court noted that Estes had put a lock on

8
In Eskridge, this court stated, “If Eskridge satisfies all six factors, he prevails on the
second prong of the [Dixon] test.” State v. Eskridge, 2002 WI App 158, ¶16, 256 Wis. 2d 314,
647 N.W.2d 434. Stating that a defendant who satisfies all six of the Dixon factors will prevail
on the second prong of the Dixon test is not tantamount to stating that a defendant must satisfy all
six factors to prevail on the second prong of that test.

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No. 2021AP485-CR

the basement’s exterior door. The court further held that the fifth Dixon factor
was satisfied because Eder and Estes put the basement to private use by storing
household items in the basement and using the basement to “work on projects.”
See id.

¶36 Thus, the circuit court determined that Eder had satisfied four of the
six Dixon factors. The court concluded, however, that Eder could not prevail on
the second prong of the Dixon test because she had not satisfied the two remaining
factors. In particular, the court held that the third Dixon factor was not satisfied
because Eder and Estes did not have “complete dominion and control and the right
to exclude others” from the basement. See id. The court reasoned that Johnson
was the only person who had the right to exclude others, as the basement was part
of his lease and Eder and Estes used the basement with his permission. The court
also noted that while Eder and Estes “did exclude some” people from the
basement, they could not exclude Johnson.

¶37 The circuit court’s analysis of the third Dixon factor is flawed
because it fails to recognize that Eder and Estes shared dominion and control over
the basement with Johnson. It is undisputed that Estes placed a lock on the
exterior door to the basement—an action that was clearly taken to exclude others
from using the basement. Johnson did not prevent Estes from placing a lock on
the exterior door, and there is no evidence in the record to suggest that Johnson
objected to Estes doing so. Thus, while Eder and Estes did not—and could not—
exclude Johnson from using the basement, it is clear that they took at least some
action to prevent others from accessing that area. We agree with Eder that while
Johnson’s ability to access the basement may have reduced Eder’s and Estes’
expectation of privacy in the basement, it did not negate that expectation. See
Minnesota v. Olson, 495 U.S. 91, 99-100 (1990) (explaining that the

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No. 2021AP485-CR

“untrammeled power to admit and exclude” is not “essential to Fourth
Amendment protection”).

¶38 Applying the sixth Dixon factor, the circuit court concluded that
Eder’s expectation of privacy in the basement was not “consistent with historical
notions of privacy” because Johnson “could have accessed [the basement] at any
time,” and “[Eder and Estes] knew that he could go in there and … allow anyone
else to do that.” See Dixon, 177 Wis. 2d at 469. While the court was correct that
Johnson could have accessed the basement at any time and could have allowed
others to do so, we are not convinced that those circumstances rendered Eder’s
expectation of privacy in the basement inconsistent with historical notions of
privacy. Eder and Estes lived in the apartment building and paid rent to use the
building’s basement. They used the basement for multiple purposes, and although
Johnson had the ability to access the basement, the court found that he did not use
it regularly. Under these circumstances, we agree with Eder that her expectation
of privacy in the basement—an area that she and Estes paid rent to use and that
was accessible to a limited number of people—was consistent with historical
notions of privacy.

¶39 Again, Eder was not required to establish all six of the Dixon factors
in order to prevail on the second prong of the Dixon test. Nevertheless, we
conclude, based upon the circuit court’s factual findings, that Eder established all
six of those factors. Under the totality of the circumstances, Eder had a legitimate
expectation of privacy in the basement, which society is willing to recognize as
reasonable. See id. at 468. Notably, the United States Supreme Court has held
that society recognizes as legitimate an overnight houseguest’s expectation of
privacy in the home of his or her host. See Olson, 495 U.S. at 98-100. If a
houseguest has a legitimate expectation of privacy in a home where he or she is

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No. 2021AP485-CR

merely spending the night, then surely Eder had a legitimate expectation of
privacy in her apartment building’s basement, which she and Estes used regularly,
paid rent to use, and took action to exclude others from using.

¶40 Because Eder had a subjective expectation of privacy in the
apartment building’s basement, and because society is willing to recognize that
expectation as reasonable, we conclude that Eder has standing to challenge law
enforcement’s warrantless search of the basement. As noted above, because the
circuit court concluded that Eder lacked standing to challenge the warrantless
search, it did not address the merits of Eder’s second suppression motion. We
therefore reverse Eder’s judgment of conviction, and, consistent with Eder’s
request, we remand this matter for the court to conduct further proceedings on the
merits of Eder’s second suppression motion.

By the Court.—Judgment reversed and cause remanded for further
proceedings.

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

17