State v. Lois M. Bertrand

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 26, 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. 2019AP1240-CR Cir. Ct. No. 2018CT1220

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LOIS M. BERTRAND,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County:
MICHAEL P. MAXWELL, Judge. Reversed and cause remanded with directions.

¶1 REILLY, P.J.1 Lois M. Bertrand appeals from a judgment of
conviction for operating a motor vehicle while intoxicated (OWI), second offense,
with a passenger under the age of sixteen pursuant to WIS. STAT. §§ 346.63(1)(a)

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1240-CR

and 346.65(2)(f)2. Bertrand argues that the circuit court erred in denying her motion
to suppress based on her unlawful seizure within the curtilage of her home. As the
officer’s intrusion into Bertrand’s attached garage occurred without a warrant and
without probable cause or exigent circumstances, we conclude that the circuit court
erred in denying Bertrand’s motion to suppress. We reverse.

BACKGROUND

¶2 On September 6, 2018, Bertrand was called by her son’s school to
pick him up because he missed the bus. She did exactly that, took him to the store,
and then drove him to her ex-husband’s house—who has primary, but not sole,
custody—to drop him off. The OWI investigation in this case began when a school
employee smelled the odor of alcohol on Bertrand when she encountered her at the
school, which the employee relayed to her supervisor, who relayed it to the principal
of the school, who then called police. No one from the school reported any other
signs of impairment related to Bertrand, such as impaired driving, slow or slurred
speech, or bloodshot or glassy eyes.

¶3 A police officer drove to Bertrand’s house and knocked on the door,
but no one answered. The officer then parked outside of Bertrand’s home and called
Bertrand, who reported that she had picked up her son from school and was on the
way to drop him off at her ex-husband’s home. The officer testified that he noticed
no signs of impairment during the conversation. Apparently, the call disconnected
and the officer called Bertrand back. Her phone must have unknowingly picked up
because the officer could hear her having a “normal conversation” with her son
about “school and other matters.” The officer then heard a conversation between
Bertrand and her ex-husband, which the officer described as “an angry, older male
voice.” There was never any mention of alcohol heard during this conversation.

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No. 2019AP1240-CR

¶4 The officer then called Bertrand’s ex-husband “to confirm that he had
his son.” Bertrand’s ex-husband told the officer “he was angry that the school called
[Bertrand] and not him as he is the primary custodian of the child. [The ex-husband]
also stated he was upset that they would allow his ex-wife to be driving around with
their son at what he described as likely a .15 BAC” and “highly intoxicated.”

¶5 Bertrand arrived home, and the officer observed her drive down the
street, into her driveway, and into her garage, without any indication of impaired
driving. The officer pulled his squad car into the driveway behind Bertrand and
entered Bertrand’s attached garage to speak with her.2 After a brief conversation
where Bertrand answered all the officer’s questions appropriately and the officer
did not observe any indicators of impairment, Bertrand, presumably in an attempt
to end the encounter, reached for and placed her hand on the handle of the door
leading to the inside of her home. The officer grabbed Bertrand’s left arm and
prevented her from entering her home. It is at this point that the officer testified he
smelled an odor of alcohol. The officer asked Bertrand to remove her sunglasses,
and he observed Bertrand’s eyes to be bloodshot and glassy.

¶6 After conducting field sobriety tests, Bertrand was arrested for OWI.
Bertrand filed a Motion to Suppress Fruits of an Unreasonable Search and Seizure,
which was denied by the circuit court after a hearing. The State did not argue any
exceptions to the warrant requirement, either at the hearing or in briefing to this
court, and the circuit court, in its oral ruling, did not address the fact that Bertrand’s

2
The officer originally testified that Bertrand parked her car in the driveway and they “had
a short discussion in the driveway” during which time they were standing “in the driveway in front
of the garage.” After the officer refreshed his recollection with his police report that he made
shortly after the arrest, he corrected his testimony, indicating that Bertrand pulled into her garage
and that he approached her and began talking to her in her garage. Based on the officer’s corrected
testimony, we conclude that he entered the garage and engaged Bertrand in her garage during all
applicable time periods for the purpose of this decision.

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No. 2019AP1240-CR

seizure occurred in the curtilage of Bertrand’s home. Bertrand pled guilty. This
appeal follows.

DISCUSSION

¶7 We review an order granting or denying a motion to suppress as a
question of constitutional fact. State v. Dearborn, 2010 WI 84, ¶13, 327 Wis. 2d
252, 786 N.W.2d 97. We review the circuit court’s findings of fact under a clearly
erroneous standard, but “[t]he application of constitutional principles to those facts
is a question of law that we review de novo.” Id.

¶8 A police officer’s warrantless entry into a private residence, either to
make an arrest or to search, is presumptively prohibited. See Payton v. New York,
445 U.S. 573, 586 (1980); State v. Reed, 2018 WI 109, ¶¶52, 54 & n.27, 384
Wis. 2d 469, 920 N.W.2d 56. “It is axiomatic that the ‘physical entry of the home
is the chief evil against which the wording of the Fourth Amendment is directed.’”
Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (citation omitted); see also
Silverman v. United States, 365 U.S. 505, 511 (1961) (“At the very core [of the
Fourth Amendment] stands the right of a man to retreat into his own home and there
be free from unreasonable government intrusion.”). Payton makes clear that “police
officers need either a warrant or probable cause plus exigent circumstances in order
to make a lawful entry into a home.” Kirk v. Louisiana, 536 U.S. 635, 638 (2002).

¶9 It is well settled that “[t]he 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. An attached garage
is considered the home’s curtilage. See State v. Davis, 2011 WI App 74, ¶12, 333
Wis. 2d 490, 798 N.W.2d 902 (collecting cases); see also State v. Dumstrey, 2016
WI 3, ¶35, 366 Wis. 2d 64, 873 N.W.2d 502 (explaining that “courts have

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No. 2019AP1240-CR

consistently held” single family home’s attached garage “constitutes curtilage”).
Bertrand was seized by the officer in the curtilage of her home when the officer
grabbed her arm to prevent her from entering her home’s interior. California v.
Hodari D., 499 U.S. 621, 626 (1991) (explaining that a person is seized when there
is “a laying on of hands or application of physical force to restrain movement” and
the person submits).

¶10 Our supreme court recently had occasion to address a similar issue
involving warrantless entry into a garage in State v. Weber, 2016 WI 96, 372
Wis. 2d 202, 887 N.W.2d 554. There, a deputy attempted to conduct a traffic stop
on Weber by activating his emergency lights after observing that he had a defective
brake lamp and was weaving over the fog line on the highway. Id., ¶¶2, 4. Weber
failed to yield to the deputy, instead pulling into his own driveway and attached
garage. Id., ¶4. The deputy pulled into the driveway behind Weber with his
emergency lights still activated. Id. Weber exited his vehicle and proceeded toward
a door leading into his house. Id., ¶5. The deputy ran toward Weber telling him to
stop, Weber ignored the instructions, and the deputy “entered the garage and
‘secured [Weber’s] arm’ as Weber was ‘just inside his [house’s] door’ at the top of
the steps.” Id. (alterations in original). The question was “whether the deputy’s
warrantless entry into Weber’s garage and subsequent arrest of Weber violated the
Fourth Amendment of the United States Constitution and Article I, Section 11 of
the Wisconsin Constitution, or whether the need for a warrant was obviated by the
exigent circumstance of the deputy’s ‘hot pursuit’ of a fleeing suspect who had
committed jailable offenses.” Weber, 372 Wis. 2d 202, ¶2.

¶11 The court in Weber accepted that the garage “was protected under the
Fourth Amendment as curtilage of [the] home.” Id., ¶18 n.5. It then determined
that in order to uphold a warrantless entry into the attached garage, the state “must

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No. 2019AP1240-CR

show[] that the warrantless entry was both supported by probable cause and justified
by exigent circumstances.” Id., ¶19 (alteration in original; citation omitted).
Ultimately, the court determined that the deputy’s actions were constitutional as the
exigent circumstance3 of hot pursuit justified the warrantless entry.4 Id., ¶3. Our
supreme court explained that the deputy “was attempting to apprehend Weber, who
was fleeing [the deputy’s] lawful traffic stop on a public highway. There was no
delay between Weber’s illegal actions and [the deputy’s] pursuit of Weber.” Id.,
¶36. The court also noted that the deputy’s entry and apprehension of Weber
accomplished no more than was absolutely necessary to halt Weber’s escape and
was a last resort as he had already attempted to stop Weber by activating his
emergency lights and calling after him. Id., ¶38. It was Weber’s actions that forced
the officer to enter the garage, and the officer ended the intrusion promptly by
staying in the garage no longer than needed. Id.

¶12 We conclude that the facts in this case fall short of those in Weber.
Critically, the State does not argue before this court that any exigent circumstances
existed nor that the officer had probable cause to arrest Bertrand at the time she was
seized in her garage. The circuit court also did not address, much less find, exigent

3
There are four well-recognized categories of exigent circumstances that authorize
“warrantless entry into a home: (1) hot pursuit of a suspect, (2) a threat to the safety of a suspect
or others, (3) a risk that evidence will be destroyed, and (4) a likelihood that the suspect will flee.”
State v. Weber, 2016 WI 96, ¶18, 372 Wis. 2d 202, 887 N.W.2d 554 (citation omitted). As
applicable in Weber, “[t]he basic ingredient of the exigency of hot pursuit is ‘immediate or
continuous pursuit of [a suspect] from the scene of a crime.’” Id., ¶28 (alteration in original;
citation omitted).
4
We note that in Weber, three justices supported the conclusion and rationale of the lead
opinion in all respects. Justice Daniel Kelly’s concurrence argued that there was a lack of probable
cause to believe Weber committed a jailable offense before entering his garage, but Justice Kelly
conceded that if probable cause existed, then the officer’s warrantless entry into the garage was
lawful under the “hot pursuit” doctrine. Weber, 372 Wis. 2d 202, ¶¶46, 54, 66 (Kelly, J.,
concurring).

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No. 2019AP1240-CR

circumstances. Instead, the State makes three arguments on appeal. First, the State
argues that the officer had reasonable suspicion to temporarily detain Bertrand
(conduct a Terry5 stop) in order to investigate a potential drunk driving incident.6
According to the State, the statements of the school principal and Bertrand’s ex-
husband created reasonable suspicion.

¶13 For the sake of our analysis, we will accept that the officer had
reasonable suspicion as it clarifies the point we wish to make,7 which is that
reasonable suspicion does not create an exception to the warrant requirement under
the Fourth Amendment for an in-home search or seizure under these circumstances.
The State cites to Terry v. Ohio, 392 U.S. 1, 22 (1968), for the proposition that
officers are allowed “to perform brief investigations with less than probable [cause]
to determine if a person has committed a crime.” Terry does not authorize an officer
to enter a private home. See, e.g., Moore v. Pederson, 806 F.3d 1036, 1054 (11th
Cir. 2015) (“Home may be where the heart is, but it cannot be where the government

5
Terry v. Ohio, 392 U.S. 1 (1968). “[A] police officer may in appropriate circumstances
and in an appropriate manner approach a person for purposes of investigating possibly criminal
behavior even though there is no probable cause to make an arrest.” Id. at 22.
6
The State also argues that the officer had reasonable suspicion to investigate for “officer
safety.” The State does not argue any statutory or case law authority for this proposition on appeal.
Accordingly, we deem this argument abandoned, Reiman Assocs., Inc. v. R/A Adver., Inc., 102
Wis. 2d 305, 306 n.1, 306 N.W.2d 292 (Ct. App. 1981), and will address it no further, except to
note that the phrase “officer safety” is not a talisman that can be invoked at anytime to avoid a
constitutional violation.
7
The State concedes that the odor of alcohol alone is not sufficient to contribute to a
finding of reasonable suspicion. See State v. Gonzalez, No. 2013AP2585-CR, unpublished slip op.
¶¶17-18 (WI App May 8, 2014); County of Sauk v. Leon, No. 2010AP1593, unpublished slip op.
¶28 (WI App Nov. 24, 2010); State v. Meye, No. 2010AP336-CR, unpublished slip op. ¶¶1, 6 (WI
App July 14, 2010); WIS JI—CRIMINAL 2663 (“Not every person who has consumed alcoholic
beverages is ‘under the influence.’”); but see State v. Powers, 2004 WI App 143, ¶13, 275 Wis. 2d
456, 685 N.W.2d 869 (“[I]n Wisconsin, a layperson can give an opinion that he or she believes
another person is intoxicated.”); State v. Mays, No. 2018AP571-CR, unpublished slip op. ¶16 (WI
App Nov. 7, 2018) (same).

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No. 2019AP1240-CR

is—at least for purposes of conducting a Terry-like stop, in the absence of exigent
circumstances.” (footnote omitted)); United States v. Perea-Rey, 680 F.3d 1179,
1188 (9th Cir. 2012) (“[T]he Terry exception to the warrant requirement does not
apply to in-home searches and seizures.” (citation omitted)).

¶14 Simply because the officer in this case had reasonable suspicion to
conduct a Terry stop and temporarily detain Bertrand in a public setting, does not
necessitate the conclusion that the officer did not need a warrant or probable cause
and exigent circumstances to enter Bertrand’s garage and seize her. See Weber, 372
Wis. 2d 202, ¶19. The State has not argued or identified case law suggesting an
exception to the warrant requirement under Terry that would allow police to detain
a person after he or she has entered his or her home. The officer in this case had
neither a warrant or probable cause and exigent circumstances; therefore, Bertrand’s
seizure inside her garage violated the Fourth Amendment.

¶15 The State next argues that the officer had “enough information” to
request that Bertrand submit to field sobriety tests. Accepting again that the officer
had reasonable suspicion matters little to our analysis as at the time of the officer’s
request Bertrand had already been seized in her garage. In summary, the resolution
of this case does not rest on whether the officer had reasonable suspicion to request
that Bertrand submit to field sobriety tests; it hinges on what happened before the
officer entered Bertrand’s curtilage and seized her and whether the officer had either
a warrant or probable cause and exigent circumstances. The State does not argue
the officer had any of these. By the time the officer requested that Bertrand submit
to field sobriety tests, the State had already violated her constitutional rights.

¶16 Finally, the State argues that there is no reasonable expectation of
privacy in an area of the curtilage that is impliedly open to the public. The State

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No. 2019AP1240-CR

also notes that the circuit court found that the officer encountered Bertrand in her
driveway and then moved into the open garage. We disagree. It is true that the
officer’s initial recollection at the hearing indicated that he encountered Bertrand in
her driveway, but upon reviewing his police report, the officer corrected his
testimony to indicate that Bertrand parked in her garage and he entered the garage
to speak with her. Further, the evidence also clearly establishes that when the officer
grabbed Bertrand to keep her from entering her home both the officer and Bertrand
were in her garage.

¶17 The State cites no cases where an attached garage is considered
impliedly open to the public, and in fact our supreme court in Weber, which actually
dealt with entry into an attached garage, never made such a suggestion. See Weber,
372 Wis. 2d 202, ¶142 & n.1 (Rebecca Grassl Bradley, J., dissenting). Instead, the
State cites to State v. Edgeberg, 188 Wis. 2d 339, 524 N.W.2d 911 (Ct. App. 1994),
which was a search case where the officers entered the front porch to conduct a
knock and talk regarding a noise complaint and saw marijuana plants. The court
found the officers were there for legitimate business in a place on the curtilage that
was impliedly open to use by the public and they were free to keep their eyes open.
Id. at 346-48. Edgeberg is inapplicable as the issue was whether the front porch
was considered curtilage. A front porch, depending on the circumstances, may be
open to the public for visitors to come and knock on the door, but an attached garage
is not open to the public in the same manner. See Davis, 333 Wis. 2d 490, ¶14 (“As
a general matter, it is unacceptable for a member of the public to enter a home’s
attached garage uninvited. We do not think this premise is subject to reasonable
disagreement. This premise is true regardless whether an overhead or entry door is
open. Thus, generally, under Edgeberg, an attached garage will never be impliedly
open to public, i.e., police, entry.” (emphasis added; footnote omitted)).

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No. 2019AP1240-CR

¶18 What is clear from this case is that the officer’s entry into Bertrand’s
attached garage for the purpose of investigating a crime was a constitutional
violation. “[S]earches and seizures inside a home without a warrant are
presumptively unreasonable.” Payton, 445 U.S. at 586. The State has not argued
nor did the circuit court find that exigent circumstances or probable cause existed,
which would have allowed the officer to follow Bertrand into her garage pursuant
to Weber. The officer was not “forced to enter the garage” as a result of Bertrand’s
actions as in Weber. See Weber, 372 Wis. 2d 202, ¶38. Even if the officer had
reasonable suspicion of an OWI for a brief Terry investigation, he did not have
probable cause to arrest for that offense and, therefore, had no basis for entering
Bertrand’s home/curtilage without a warrant.

¶19 Accordingly, we reverse the judgment of conviction and remand with
directions to the circuit court to grant Bertrand’s suppression motion.

By the Court.—Judgment reversed and cause remanded with
directions.

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

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