author: SNYDER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Brandon L. Wheat, Defendant-Appellant.

    Court of Appeals

      No. 01-2224-CR.

      Submitted on briefs April 12, 2002.

    Decided May 15, 2002.

    2002 WI App 153
    (Also reported in 647 N.W.2d 441.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Steven A. Koch and Bradley J. Lochowicz of Seymour, Kremer, Nommensen, Morrissy & Koch, L.L.E, Elkhorn.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jennifer E. Nashold, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, EJ., Anderson and Snyder, JJ.

       Petition to review denied 7-26-02.

   SNYDER, J.

¶ 1. Brandon L. Wheat appeals from a judgment of conviction for possession of cocaine with intent to deliver and an order denying his request for postconviction relief based upon ineffective assistance of counsel. Wheat argues that his trial defense counsel was ineffective because he failed to timely file a motion to suppress evidence found during a probation search of Wheat's home. We conclude that trial defense counsel's performance did not prejudice Wheat's defense and therefore does not amount to ineffective assistance of counsel. We therefore affirm the judgment of conviction and order denying postconviction relief.

FACTS

¶ 2. On May 30, 2000, Kenosha county probation agent Jennifer Merlin received a phone message from City of Kenosha police officer Twain Robinson concerning Wheat. At that time, Wheat was on probation and Merlin was his probation agent.

¶ 3. Robinson informed Merlin that he had had contact with Wheat that day. Sometime between 3:00 and 4:00 p.m., Robinson was driving á marked squad car eastbound on 57th Street in Kenosha, a known drug trafficking area, and saw a man later identified as Wheat leaning inside a car window. When Wheat and the occupant of the car saw Robinson, they both immediately went their separate ways. Robinson noticed that as Wheat was walking east on 57th Street, he was "walking kind of strange. His left arm wasn't moving. It wasn't swinging normally like in a normal walk." Robinson thought perhaps Wheat was trying to conceal something under his jacket so he continued to observe him.

¶ 4. Robinson circled around the block while Wheat continued northbound on 16th Avenue. By the time Robinson completed the circle around the block, Wheat had "disappeared." Robinson thought perhaps Wheat had done something illegal and was trying to avoid police contact so he circled the block again. Wheat had reappeared, headed in the same direction. Robinson then decided to stop Wheat and question him. Robinson conducted a pat-down for weapons and instead of weapons found 75 to 100 baggies, a cell phone and a pocket calculator/organizer in Wheat's possession. Robinson did not find any weapons or illegal drugs on Wheat and released him. During this phone call, Robinson did not ask Merlin to do anything but merely provided her with the information.

¶ 5. As part of the rules of Wheat's probation, he agreed not to possess or consume any controlled substances; he also agreed to contact his probation agent if he had any police contact. Wheat had a history of drug use and during a previous search of his home, Merlin had discovered items commonly used to package drugs, several beepers and one or two cell phones. Based upon Wheat's history and Robinson's phone call, Merlin discussed with her supervisors the appropriate action to take and received approval to conduct a search of Wheat's home.

¶ 6. On June 6, 2000, Merlin met with Wheat at the Department of Probation and Parole and discussed Robinson's phone call with him. She informed Wheat that she wanted a urine sample from him and instructed him to wait in the lobby area while she completed the appropriate paper work. After completing the paper work, approximately ten minutes later, Merlin returned to the lobby to discover that Wheat was gone. Merlin updated her supervisor, called law enforcement's gang unit to inform them of what occurred and asked them to pick up Wheat. She also informed law enforcement that she and probation agent Lori Wells were going to Wheat's residence to see if he was there. Officer Wilkinson indicated that he and officer Falk would meet Merlin and Wells at Wheat's home.

¶ 7. After meeting the officers at Wheat's house, Merlin received a message that Wheat had returned to Merlin's office. Merlin returned to her office and a urine sample was obtained from Wheat. Merlin then took Wheat back to his residence to conduct a home search. Merlin viewed Wheat's flight as suspicious and as a factor in deciding to conduct a search of his home.

¶ 8. When Merlin arrived at Wheat's home, the officers were still there. Merlin, Wells and the officers entered the house and Merlin searched Wheat's bedroom; between his mattresses, Merlin found a bag that contained several gem bags, commonly used for packaging drugs. In the speaker on his dresser, she found an empty baggie and in another speaker, she found approximately $140 cash.

¶ 9. At no time did the officers search the residence but instead stood in the kitchen with Wheat. While in the kitchen, Wilkinson informed Merlin and Wells that whenever anyone got near the basement, Wheat appeared nervous. Based upon that, Wilkinson recommended that the agents consider searching the basement but did not order the agents to do so. Merlin later testified that she intended to search the basement prior to Wilkinson's comment. Merlin and Wells, accompanied by officer Falk, searched the basement where, inside another speaker, they found a bag of crack cocaine and a cell phone. Merlin then placed a probation hold on Wheat and the officers assisted her in taking Wheat into custody.

¶ 10. On June 16, 2000, Wheat was charged with possession of cocaine with intent to deliver within 1000 feet of a school as a drug repeater. A June 26, 2000 information charged the same. On September 6, 2000, Wheat filed a motion to suppress all the evidence discovered during the search of his home. The trial court did not address the motion because it was untimely filed. On September 11, 2000, Wheat's trial defense counsel, Attorney William E Michel III, moved to withdraw as counsel for providing Wheat ineffective assistance of counsel. However, after discussions with Wheat, Michel remained as counsel.

¶ 11. A jury trial was held on October 16 and 18, 2000. Before the conclusion of the jury trial, Wheat accepted the State's plea offer and pled guilty to possession of cocaine with intent to deliver. Wheat was sentenced to one year in prison and eight years' extended supervision, consecutive to a sentence in another case.

¶ 12. On May 8, 2001, Wheat filed a motion for postconviction relief alleging ineffective assistance of counsel. After a hearing, the trial court denied Wheat's motion.

DISCUSSION

¶ 13. Wheat alleges that his trial defense counsel's failure to file a timely suppression motion constitutes ineffective assistance of counsel. Wheat specifically asserts that trial defense counsel's failure to file a suppression motion resulted in actual prejudice because the results of an illegal search of his residence were introduced as evidence at trial. Wheat contends that the probation search conducted at his residence was illegal because Merlin was a "stalking horse" for the police who initiated the search based upon evidence discovered during an illegal pat-down search. We disagree.

¶ 14. Wheat has a Sixth Amendment right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); State v. Eckert, 203 Wis. 2d 497, 506, 553 N.W.2d 539 (Ct. App. 1996). In order to prove that he has not received effective assistance of counsel, Wheat must show two things: (1) that his lawyer's performance was deficient; and (2) that this deficient performance prejudiced his defense. Eckert, 203 Wis. 2d at 506. The issues of performance and prejudice present mixed questions of law and fact. Id. at 507. Findings of historical fact by the trial court will not be upset unless they are clearly erroneous. Id. The questions of whether counsel's behavior was deficient and whether it was prejudicial to Wheat are questions of law in which we need not defer to the trial court. State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985). Wheat has the burden to establish both components. State v. Smith, 207 Wis. 2d 258, 273, 558 N.W.2d 379 (1997). Failure to raise an issue of law is not deficient performance if the legal issue is later determined to be without merit. See State v. Reynolds, 206 Wis. 2d 356, 369, 557 N.W.2d 821 (Ct. App. 1996).

¶ 15. The determination of whether a search is a police or probation search is a question of constitutional fact reviewed according to a two-step process. State v. Hajicek, 2001 WI 3, ¶ 2, 240 Wis. 2d 349, 620 N.W.2d 781. First, we review the circuit court's findings of historical fact under the clearly erroneous standard. Id. Second, we review the circuit court's determination of constitutional fact de novo. Id.

¶ 16. The trial court found that the search was instigated by the probation officer and not by law enforcement. Information was provided by Robinson to Merlin regarding Robinson's contact with Wheat merely as a courtesy and as part of normal operating procedure. Wheat had a history of controlled substance use; in the past, Merlin had discovered similar items in his possession and had conducted previous searches based on controlled substance use. At that time, Wheat had indicated that these items were from his past drug dealing days but he was no longer engaged in that activity. Wheat had a prior positive urinalysis; Merlin had brought Wheat in for another urinalysis and asked him to wait in the lobby but Wheat fled. Merlin talked the situation over with her supervisors and the search of Wheat's residence was done at the insistence of the probation officer. The trial court found that Wilkinson and Falk were there for the sole purpose of securing the premises and while Falk may have gone downstairs at some point, in essence law enforcement just stood around and did not participate in the search. There is support in the record for all of these findings and they are not clearly erroneous.

¶ 17. We now apply de novo review to the trial court's conclusion that the search of Wheat's residence was a probation search. See id. at ¶ 29. As part of the rules of Wheat's probation, he agreed not to possess or consume any controlled substances; he also agreed to contact his probation agent if he had any police contact. Wheat had a history of drug use and a past positive urinalysis; during a previous search of Wheat's home, Merlin discovered items commonly used to package drugs, several beepers and cell phones. Based upon Wheat's history and Robinson's phone call, Merlin discussed with her supervisors the appropriate action to take and received approval to conduct a search of Wheat's home.

¶ 18. Merlin met with Wheat and discussed Robinson's phone call with him. She informed Wheat that she wanted a urine sample from him and instructed him to wait in the lobby area while she completed the appropriate paper work. After completing the paper work, less than ten minutes later, Merlin returned to the lobby to discover that Wheat was gone. After receiving approval for the search, Merlin then called law enforcement to let them know what happened and ask them to pick up Wheat. She also informed law enforcement that she and probation agent Wells were going to Wheat's residence. Wilkinson indicated that he and Falk would meet Merlin and Wells there. Merlin viewed Wheat's flight as suspicious and it was a factor in deciding to conduct a search of his home.

¶ 19. When Merlin and Wells arrived at Wheat's home, the officers were there and had not entered the house. Merlin searched Wheat's bedroom. At no time did the officers search the residence but instead stood in the kitchen with Wheat. While in the kitchen, Wilkinson informed Merlin and Wells that whenever anyone got near the basement, Wheat appeared nervous. Wilkinson did not order the agents to search the basement and Merlin intended to search the basement prior to Wilkinson's comment. While Falk accompanied Merlin and Wells into the basement, only Merlin and Wells searched the basement.

¶ 20. Despite Wheat's contentions, there is no credible evidence that Merlin was a "stalking horse" of the Kenosha police department. A "stalking horse" is " [something used to cover up one's true purpose; a decoy." Id. at ¶ 22 (citation omitted). In determining whether a search is a police or probation search, a "stalking horse" is a probation officer who uses his or her authority to help the police evade the warrant requirements of the Fourth Amendment. Id.

¶ 21. Here, the search was instigated by the probation officer, not by law enforcement; a probation officer cannot be a "stalking horse" of law enforcement if the probation officer instigated the search. Information was provided by law enforcement to Merlin regarding Robinson's contact with Wheat merely as a courtesy and as part of normal operating procedure; Robinson did not ask that Merlin search Wheat's home. A search is not rendered unlawful merely because law enforcement provided some of the information that led to the search. See State v. Flakes, 140 Wis. 2d 411, 427, 410 N.W.2d 614 (Ct. App. 1987).

¶ 22. While law enforcement and probation may have cooperated with one another, cooperation does not transform a probation search into a police search. Hajicek, 2001 WI 3 at ¶ 32. Cooperation with law enforcement for the purpose of preventing crime is a specific goal of probation supervision. Id. at ¶ 33; see also Wis. Admin. Code § DOC 328.01(5). The regulations in the Wisconsin Administrative Code provide that a specific goal of probation supervision is "[t]o cooperate with other public and private agencies in activities for the purpose of prevention of crime and to provide alternatives to institutionalization." Id.

¶ 23. The trial court's findings of fact, coupled with the remaining facts of record, demonstrate that probation officer Merlin conducted the search and law enforcement officers Wilkinson and Falk were present only for protective purposes. Contrary to Wheat's assertions, we conclude that the search of his residence was a lawful probation search, not a law enforcement search. A suppression motion asserting that the search was an unlawful law enforcement search would have been unsuccessful. Trial counsel's failure to bring a meritless motion does not constitute deficient performance. See State v. Harvey, 139 Wis. 2d 353, 380, 407 N.W.2d 235 (1987); State v. Cummings, 199 Wis. 2d 721, 747 n.10, 546 N.W.2d 406 (1996).

¶ 24. Wheat also argues that the search was illegal because the evidence that formed the basis for the search, the information in Robinson's phone message to Merlin, was illegally obtained, which then contaminated the subsequent search. He specifically contends that when Robinson encountered him on the street, Robinson had no reasonable suspicion to believe that he was armed or dangerous and therefore the pat-down search should not have been conducted. We disagree that this evidence tainted the subsequent probation search of the house.

¶ 25. Assuming without deciding that the. evidence was, in fact, obtained in violation of the Fourth Amendment, Wheat fails to provide any authority that holds that a reasonable probation search is unlawful when the probation officer relies, in part, on such information. Such evidence is admissible at a probation revocation hearing. Wis. Admin. Code § HA 2.05(6)(c) ("Evidence gathered by means not consistent with ch. DOC 328 or in violation of the law may be admitted as evidence at the hearing."). If evidence obtained in violation of the Fourth Amendment is admissible to determine whether probation should be revoked, it should also be acceptable to consider whether to conduct a probation search.

¶ 26. Furthermore, the United States Supreme Court has held that the exclusionary rule does not bar the introduction of evidence seized in violation of a parolee's Fourth Amendment rights at a parole revocation hearing. Pa. Bd. of Probation and Parole v. Scott, 524 U.S. 357, 359 (1998). We see little reason to distinguish between illegally obtained evidence leading to a parole revocation proceeding and illegally obtained evidence leading to a probation search. See, e.g., Flakes, 140 Wis. 2d at 426; State v. Griffin, 131 Wis. 2d 41, 53 n.4, 388 N.W.2d 535 (1986), aff'd, 483 U.S. 868 (1987) (holdings of each case apply equally to parolees and probationers).

¶ 27. The exclusionary rule is a judicially created means of deterring illegal searches and seizures but does not prohibit the introduction of illegally seized evidence in all proceedings or against all persons. Pa. Bd. of Probation and Parole, 524 U.S. at 363. Such application of the exclusionary rule would both hinder the functioning of state probation systems and alter the traditionally flexible, administrative nature of probation proceedings. See id. at 364.

¶ 28. Furthermore, application of the exclusionary rule to probation searches would have little deterrent effect upon an officer who is unaware that the subject of his or her search is a probationer. See id. at 367. The officer will likely be searching for evidence of criminal malfeasance with an eye toward the introduction of the evidence at a criminal trial. Id. The likelihood that illegally obtained evidence will be excluded from trial provides deterrence against Fourth Amendment violations but the remote possibility that the subject is a probationer and the evidence could be used to search his or her home will have little, if any, effect on the officer's incentives. See id. (the remote possibility that the subject is a parolee and that the evidence may be admitted at a parole revocation proceeding has little effect on the officer's incentives).

¶ 29. A reasonable probation search, as conducted here, is lawful even if the probation officer relies, in part, on information from law enforcement officials in violation of the Fourth Amendment. Any motion to suppress by trial defense counsel would have been unsuccessful on these grounds as well.

CONCLUSION

¶ 30. Trial defense counsel was not ineffective for failing to bring a meritless motion. The search of Wheat's house was a probation search, not a law enforcement search. Furthermore, a reasonable probation search is lawful even if premised, in part, on information obtained in violation of the Fourth Amendment by law enforcement. We therefore affirm the judgment of conviction and order denying postconviction relief.

By the Court. — Judgment and order affirmed.


source: Caselaw Access Project

author: NETTESHEIM, EJ.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Timothy J. Helm, Defendant-Appellant.

    Court of Appeals

      No. 01-2398.

      Submitted on briefs March 21, 2002.

    Decided May 15, 2002.

    2002 WI App 154
    (Also reported in 647 N.W.2d 405.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy J. Helm, pro se.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, Gregory M. Weber, assistant attorney general.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.

       Petition to review denied 9-26-02.

   NETTESHEIM, EJ.

¶ 1. Timothy J. Helm appeals pro se from an order denying his motion for postcon-viction sentence modification pursuant to Wis. Stat. § 974.06 (1999-2000) on grounds of due process and double jeopardy. Helm argues that the circuit court erred when, in the process of correcting an unlawful sentence, it increased Helm's sentence without just cause.

¶ 2. While we agree with Helm that the circuit court increased Helm's sentence on resentencing, we disagree that it lacked authority to do so. We conclude pursuant to State v. Martin, 121 Wis. 2d 670, 360 N.W.2d 43 (1985), that the circuit court had authority to resentence Helm to correct his prior invalid sentence and that the circuit court's corrected sentence was properly based upon a desire to implement the original dispositional scheme as manifested by the sentencing proceeding that produced the invalid sentence. We affirm the order denying postconviction relief.

FACTS

¶ 3. Based upon his pleas of guilty, Helm was convicted on July 20, 1995, of two counts of burglary pursuant to Wis. Stat. § 943.10(l)(a). The circuit court withheld sentence and placed Helm on two concurrent five-year terms of probation. This was a valid sentence, and it is not at issue in this case. Thereafter, Helm's probation was revoked and on April 9, 1998, the circuit court sentenced Helm to a six-year prison term on the first count of burglary and a consecutive ten-year prison term, stayed with ten years of probation on the second count. The parties agree that the sentence on the second count was invalid because a sentencing court may not again impose probation once probation has been revoked. See State v. Balgie, 76 Wis. 2d 206, 208, 251 N.W.2d 36 (1977). Relying on this law, Helm filed a postconviction motion requesting that the court resen-tence him on count two.

¶ 4. At the hearing on Helm's motion, the circuit court conceded that it lacked authority under Balgie to impose another term of probation following revocation of Helm's original probation. Therefore, the court granted Helm's motion for resentencing. The court resentenced Helm by vacating the illegal term of probation and changing the ten-year term from a consecutive sentence to a concurrent sentence.

¶ 5. Helm responded with a further postconviction motion contending that the circuit court's resen-tencing had improperly increased his sentence in violation of due process and his protection against double jeopardy. The court denied Helm's motion, and Helm renews his argument on appeal.

DISCUSSION

¶ 6. Resentencing occurs when a court imposes a new sentence after the initial sentence has been held invalid. State v. Carter, 208 Wis. 2d 142, 146-47, 560 N.W.2d 256 (1997). Whether the final sentence in this case violates Helm's constitutional rights is a question of law which we review de novo. State v. Klessig, 211 Wis. 2d 194, 204, 564 N.W.2d 716 (1997) (We review de novo the issue of whether an individual's constitutional rights have been denied.).

¶ 7. Asa threshold issue, we address whether the circuit court actually increased Helm's sentence at the resentencing. The State argues that the court did not increase the sentence because the structure of the illegal sentence would have retained Helm under supervision of the department of corrections for a longer period of time (sixteen years: six years of imprisonment followed by ten years of probation) than the resentencing (ten years of concurrent sentences). We do not disagree with this technical analysis, but common sense teaches that the practical and real effect of the final sentence on Helm was an increased prison sentence from six years to ten years. In State v. Oakley, 2001 WI 103, ¶ 20, 245 Wis. 2d 447, 629 N.W.2d 200, our supreme court noted that a sentence of probation preserved much of the defendant's liberty as compared to the more punitive option of imprisonment. Under the illegal sentence, Helm was deprived outright of his liberty for six years. Under the resentencing, Helm is deprived outright of his liberty for ten years. We hold that Helm received an increased sentence.

¶ 8. Therefore, we move to the question of whether the increased sentence violated Helm's constitutional protection against double jeopardy. The State contends that no double jeopardy violation occurred pursuant to the supreme court's decision in Martin. Helm argues that Martin does not apply because it was overruled by State v. Carter, 208 Wis. 2d 142, 560 N.W.2d 256 (1997).

¶ 9. In Martin, our supreme court held that there is an exception to the applicability of the double jeopardy clause to increased sentences — "a trial court may increase the sentence if the initial sentence is illegal." Martin, 121 Wis. 2d at 678. In doing so, the court cited to Bozza v. United States, 330 U.S. 160 (1947), for the proposition that "the court's correction of an invalid sentence by increasing the punishment did not constitute double jeopardy; the initial sentence being invalid, the second, more severe sentence was the only valid sentence imposed." Martin, 121 Wis. 2d at 677. However, the Martin court placed an important limitation on a circuit court's sentencing in such a setting: an increased sentence is permissible at a resentencing only when it is "based upon a desire to implement the original dispositional scheme as manifested by the record in the first sentencing proceeding." Id. at 687 (citation omitted).

¶ 10. Next, we turn to Helm's argument that Carter overruled Martin. In Carter, our supreme court clarified that Martin "applies only when the initial conviction is valid, the initial sentence is invalid, the resentencing court has no new information or newly known information, and the resentencing court seeks to impose a greater sentence." Carter, 208 Wis. 2d at 156. Therefore, while Carter limited Martin's application, it clearly did not overrule the case, and we reject Helm's argument to the contrary.

¶ 11. The question therefore is whether the facts of this case satisfy the four conditions set out in Carter for the limited application of Martin. We conclude that they do. Helm's initial conviction is valid, his initial sentence is invalid, the resentencing court had no new information and, as the above discussion reveals, the court imposed a greater sentence.

¶ 12. However, this satisfaction of the four Carter factors does not end our inquiry since Martin has an added factor that must be satisfied. As we have noted, Martin additionally instructs that when an initial sentence cannot be carried out because it was not authorized by law, an increased sentence is permissible only when "based upon a desire to implement the original dispositional scheme as manifested by the record in the first sentencing proceeding." Martin, 121 Wis. 2d at 687 (citation omitted). We therefore look to the various sentencing proceedings in this case to determine if the increased sentence was properly based upon the circuit court's desire to implement its original dispositional scheme.

¶ 13. The record of the sentencing hearing on April 9,1998, that produced the illegal sentence reflects that the circuit court considered the seriousness of the offense, Helm's potential for rehabilitation and the need to protect the public. The court noted that Helm had not taken advantage of the rehabilitation offered by his original probation and that if placed in jail instead of prison, the necessary services would not be available to him. Finally, in ordering Helm to serve an imposed and stayed ten-year prison sentence consecutive to the straight sentence on count one, the court stated:

And that I consider to be a break, Mr. Helm; that you should know, once you are released, if you again violate, you're going back for an additional ten years. That's how serious these kinds of offenses are, and that's how dangerous I regard you until you determine that your freedom is more important than drugs and alcohol and living on others and manipulating others ....

It is clear from these comments that the court sought to retain Helm under the supervision of the State for an extended period of time.

¶ 14. When the circuit court learned at the resen-tencing hearing that the option of probation was not available, the need for the extended controls over Helm did not magically disappear. To the contrary, the circuit court still saw the need to keep Helm under the control of the State for a period beyond the six-year sentence on count one. The ten-year sentence on count two, amended from a consecutive to a concurrent term, was in keeping with the court's original sentencing scheme. Therefore, the requirements of Martin were satisfied in this case.

¶ 15. Helm also relies on North Carolina v. Pearce, 395 U.S. 711 (1969), in support of his contention that the circuit court's final sentence violated his due process rights. In Pearce, the Supreme Court recognized the power of a resentencing court to impose a greater sentence than the one imposed initially. See Carter, 208 Wis. 2d at 148. However, the Pearce Court stressed that vindictiveness on the part of the sentencing court may not play a part in the resentencing after a new trial, and the defendant must not be placed in fear of such retaliatory motivations on the part of the sentencing judge. Martin, 121 Wis. 2d at 686.(citing Pearce, 395 U.S. at 725). To protect a defendant against potential vindictiveness of the sentencing court, the Pearce Court held that an increase in the sentence must be supported by reasons set forth on the record "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the .time of the original sentencing proceeding." Pearce, 395 U.S. at 726.

¶ 16. We see no Pearce violation in this case. Martin protects against the prospect of vindictiveness prohibited by Pearce by requiring that a resentencing, following an invalid sentence, implement the court's original dispositional scheme. Since we have held that the resentencing comported with the requirements of Martin, we reject Helm's argument under Pearce.

¶ 17. For this reason, we also reject Helm's reliance on State v. Dean, 111 Wis. 2d 361, 330 N.W.2d 630 (Ct. App. 1983). There, after the court of appeals ruled that a condition of probation was invalid, the circuit court resentenced the defendant to prison. Id. at 362-63. The court of appeals invalidated the prison sentence, holding that, absent a revocation of probation, the protection against double jeopardy barred the imposition of a prison sentence after the defendant had validly been placed on probation. Id. at 365. In short, the only defect was the condition of probation, not the probation itself. Here, unlike Dean, the reinstatement of Helm's probation following the revocation of that probation was invalid ab initio. Helm's resentencing occurred to correct that invalid sentence. In such a setting, Martin holds that the circuit court has the authority to resentence without violating double jeopardy protections so long as the resentence is consistent with the dispositional scheme of the invalid sentence. Martin, 121 Wis. 2d at 687. Since the resentencing in this case satisfied the requirements of Martin, we reject Helm's argument under Dean.

CONCLUSION

¶ 18. We conclude that the resentencing increased Helm's original sentence. However, since the increased sentence satisfied the conditions set out in Carter and otherwise satisfied the requirements of Martin by adhering to the circuit court's original dispositional scheme, we conclude that the resentence did not violate Helm's due process rights and double jeopardy protections. We uphold the order denying Helm's motion for postconviction relief.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       Our analysis is assisted by the fact that the same judge presided at all of the sentencing proceedings in this case.

       For this same reason, we reject Helm's reliance on State v. Pierce, 117 Wis. 2d 83, 342 N.W.2d 776 (Ct. App. 1983), in support of his contention that North Carolina v. Pearce, 395 U.S. 711 (1969), controls the issue on appeal. There, as in Pearce, the court increased the defendant's sentence at resen-tencing based on two batteries committed after the initial sentencing. Pierce, 117 Wis. 2d at 88.


author: NETTESHEIM, PJ.

text:
    Town of Neenah Sanitary District No. 2, a Wisconsin Sanitary District, Plaintiff-Appellant, v. City of Neenah, a Wisconsin Municipal Corporation, Defendant-Respondent.
    Court of Appeals

      No. 01-2520.

      Submitted on briefs April 12, 2002.

    Decided May 15, 2002.

    2002 WI App 155
    (Also reported in 647 N.W.2d 913.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John A. St. Peter of Edgarton, St. Peter, Petak, Massey & Button, of Fond du Lac.
    On behalf of the defendant-respondent, the cause was submitted on the brief of John E. Thiel, Esq. of Godfrey & Kahn, S.C. of Appleton.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   NETTESHEIM, PJ.

¶ 1. The Town of Neenah Sanitary District No. 2 (the District) appeals from a summary judgment in favor of the City of Neenah. The District filed this action after the City refused to consent to the District's request to extend sewer service without stating objective reasons for doing so. Based on the clear and unambiguous language of the parties' written agreements regarding wastewater treatment, the circuit court held that the City was not required to state objective reasons for withholding consent. The court further determined that the City's actions did not violate Wisconsin's antitrust provision, Wis. Stat. § 133.03 (1999-2000). We affirm both rulings.

Background

¶ 2. The District and the City are parties to a Wastewater Treatment Service Contract dated September 28, 1982. Both the District and the City receive sanitary treatment services from the regional treatment plant and regional interceptor system created pursuant to the 1982 contract. The treatment plant is owned and operated by the Neenah-Menasha Sewerage Commission. The commission received a federal construction grant award of $18,222,878 in September 1984. The Federal Construction Grant Program required intermunicipal agreements for the construction and operation of a proposed treatment works serving two or more municipalities. The program additionally prohibited a central city from requiring annexation as a prerequisite for sewer service.

¶ 3. Following the 1982 Agreement, the District sued the City for access to the City's interceptor. On June 16, 1988, the parties entered into an agreement settling all issues between them. Under the agreement, the commission allocated to the District certain interceptor capacity in, or access to, the City's interceptors that connect the District to the Neenah-Menasha sewer plant. The District paid the City $295,000 for the capacity or access in the interceptor.

¶ 4. On July 3, 1998, the District requested permission from the City to access the City's interceptor for future expansion of sewer territory within the City's boundaries. The District proposed to extend sewer service to a business and several individual property owners. The proposed sewer extension is known as the "Muttart Road Extension." The commission reviewed and approved the District's request subject to the City's approval of the use of its collection system for transportation purposes. The area that will be served by the proposed Muttart Road Extension is within the boundaries of the District and of the East Central Wisconsin Regional Planning Commission Sewer Service Area. On July 24, 1998, the City refused to consent to the proposed Extension.

¶ 5. In response, the District filed this action against the City, alleging breaches of the 1982 and 1988 agreements and a violation of Wis. Stat. § 133.03, Wisconsin's antitrust statute. The City moved for summary judgment. The circuit court granted the motion, ruling that the 1982 and 1988 agreements unambiguously permitted the City to withhold its consent to sewer extension for any reason. The court additionally found that pursuant to Town of Hallie v. City of Chippewa Falls, 105 Wis. 2d 533, 314 N.W.2d 321 (1982), the City's actions did not violate the antitrust provisions of § 133.03. The District appeals.

Discussion

¶ 6. The District contends that the circuit court erred in granting summary judgment dismissing its breach of contract and antitrust claims. As to the contract claim, the District argues that the parties' agreements instruct that the City may withhold its consent to sewer extension only for objective engineering, financial or regulatory reasons. As to the antitrust claim, the District argues that Town of Hallie does not govern this case because the facts here are different.

¶ 7. We review a circuit court's grant of summary judgment de novo. Weigel v. Grimmett, 173 Wis. 2d 263, 267, 496 N.W.2d 206 (Ct. App. 1992). Pursuant to Wis. Stat. § 802.08(2), summary judgment must be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The inferences to be drawn from the underlying facts contained in the moving party's material should be viewed in the light most favorable to the party opposing the motion, and doubts as to the existence of a genuine issue of material fact are resolved against the moving party. L.L.N. v. Clauder, 209 Wis. 2d 674, 684, 563 N.W.2d 434 (1997).

Breach of Contract

¶ 8. The District first argues that the City-breached the terms of the 1982 and 1988 contracts by withholding consent for the sewer extension without stating an objective reason for doing so. The City contends that the unambiguous language of the contracts, which was the result of significant negotiations between the parties, permits the City to withhold its consent for any reason without having to state any objective reasons for doing so.

¶ 9. The interpretation of a written contract, including the determination of whether its terms are ambiguous, is a legal matter that we decide independently. Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653 (Ct. App. 1990). The law in Wisconsin is that unambiguous contractual language must be enforced as it is written. Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 38, 284 N.W.2d 692 (Ct. App. 1979), aff'd, 100 Wis. 2d 120, 301 N.W.2d 201 (1981). Contractual language is ambiguous only when it is "reasonably or fairly susceptible of more than one construction." Borchardt, 156 Wis. 2d at 427.

¶ 10. We begin with the 1982 Wastewater Treatment Service Contract which includes the following provision in Article IV( Section 401:

[I]n no event shall the Wastewater, delivered into the Regional System by a Contracting Municipality be delivered into the Regional System through the Local Sewer System of any other Contracting Municipality without the written consent of the Commission and such other Contracting Municipality.

Under this language, the consent of the City is clearly required before the District may deliver wastewater from the Muttart Road Extension into the City's sewer system.

¶ 11. However, the District argues that other provisions of the 1982 contract limit the City's authority to withhold consent under this section. The District cites to Section 402 of the contract which provides: "Notwithstanding the provisions of Section 401 of this Article, no Contracting Municipality shall be permitted or required to deliver and discharge into the Regional System [wjastewater which the commission by rule or regulation exempts and/or prohibits from delivery and discharge into the Regional System." This provision assures that a contracting municipality may not deliver or discharge wastewater into the system where the commission has directed otherwise. The provision further explains that the municipality's authority to withhold consent under Section 401 does not override the commission's authority to exempt or prohibit delivery or discharge of wastewater.

¶ 12. Section 402 has no application under the facts of this case. The City did not propose to deliver or discharge wastewater into the system contrary to any rule, regulation or other action by the commission. To the contrary, by withholding its consent, the City has barred the introduction of wastewater into the system. Moreover, the commission's approval of the District's request to connect to the Muttart Road Extension was given subject to the City's approval of the proposal. The City's refusal to consent to the project does not pit it against any action by the commission.

¶ 13. For the same reasons, we reject the District's reliance on Section 403, which governs the commission's right to refuse to accept any wastewater if it is of such type or characteristics as to be deleterious to the operation and maintenance of the regional system. The City's right to withhold consent has nothing to do with this separate authority of the commission to refuse to accept wastewater into the system.

¶ 14. The District additionally argues that a number of provisions in the 1982 contract emphasize the "spirit of regional cooperation for the provision of sanitary services." The District then cites to Save Elkhart Lake, Inc. v. Village of Elkhart Lake, 181 Wis. 2d 778, 787, 512 N.W.2d 202 (Ct. App. 1993), for the proposition that every contract carries an implied condition or covenant of good faith and fair dealing in the performance of its terms. We have no quarrel with the facts and the law cited by the District. But there is nothing in the summary judgment record that supports a claim or inference that the City's withholding of consent was grounded in bad faith. The District would have us hold that because the City did not offer objective reasons for withholding its consent, a material issue of fact exists as to the City's good faith. Recognizing that we must view the summary judgment evidence in a light most favorable to the District, we nonetheless conclude that the District's inference of bad faith (or a material issue of fact on that question) by the City is too much of a stretch.

¶ 15. Again, there is nothing in the terms of the agreement that requires the City to provide the consent sought by the District. The agreement unambiguously provides that such consent is required before the District may provide service to an additional territory through the City's sewer system.. Here, the District requested consent and the City refused to grant it. We decline to rewrite the parties' agreement to provide something that the District failed to include.

¶ 16. Next we turn to the 1988 contract which is similarly unambiguous. The 1988 contract provides at ¶ 12, addressing sewer service for annexed areas and detachment:

This paragraph shall not prohibit the DISTRICT from increasing its size or boundaries pursuant to [Wis. Stat. §§ 60.785 and 60.71]. The parties specifically agree that in the event the DISTRICT adds territory, the DISTRICT shall not be allowed to serve added territory through the CITY interceptor without specific authorization from the CITY. "Added territory" is defined to mean territory not in the DISTRICT at this time as shown on Exhibit "1" (the map). The CITY has no objection to an alteration of the legal boundaries of the DISTRICT to conform to the DISTRICT as shown on Exhibit "1" (the map). (Emphasis added.)

The Muttart Road Extension area is "added territory" as it is not within the territory shown on Exhibit "1" of the 1988 agreement. The agreement clearly requires specific authorization from the City before the District may serve added territory through the City interceptor.

¶ 17. Relying on affidavits and statements made after the fact and for purposes of litigation by those who negotiated the agreement, the District argues that the "veto" power given to the City in the 1988 agreement was in response to the District's attempt during the negotiations to have "unlimited access" to the City's interceptor. Therefore, the District reasons that the City may withhold its consent only where the District seeks such "unlimited access." Since the Muttart Road Extension will not exceed the purchased capacity in the interceptor, the District concludes that the City was not entitled to withhold its consent.

¶ 18. But here again, the plain and unambiguous language of the 1988 agreement dooms the District's argument. While the object of contract construction is to determine the contracting parties' intent, we begin by looking to the language the parties used to express their agreement. Bank of Barron v. Gieseke, 169 Wis. 2d 437, 455, 485 N.W.2d 426 (Ct. App. 1992). When the contract's language is plain and unambiguous, we construe it as it stands. Id. Here, the contract language is unambiguous. The substance of the negotiations underlying the contract is not persuasive as the express terms of the contract are unambiguous.

The Antitrust Law, Wis. Stat. § 133.03

¶ 19. The District contends that the circuit court erred in its determination that the City's decision to withhold consent did not violate Wis. Stat. § 133.03. The District argues that the City's action illegally "tied in" wastewater collection and transportation services with other municipal services in violation of the antitrust provisions of § 133.03. The City argues that the supreme court's ruling in Town of Hallie controls the issue and authorized the City's actions. The District disagrees, noting the different facts of Town of Hallie.

¶ 20. The Wisconsin Antitrust Law, modeled after the federal Sherman Act, 15 U.S.C. § 1 et seq., provides in relevant part:

133.03 Unlawful contracts; conspiracies. (1) Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce is illegal. Every person who makes any contract or engages in any combination or conspiracy in restraint of trade or commerce may be fined not more than $100,000 if a corporation, or, if any other person, may be fined not more than $50,000 or imprisoned for not more than 7 years and 6 months or both.

Pursuant to Wis. Stat. § 133.02(3), the City is a "person" for purposes of § 133.03(1).

¶ 21. In Town of Hallie, the Town of Hallie proposed to construct its own sewage collection system and connect it to the City of Chippewa Falls' treatment system. The city rejected the proposal and instead offered to allow the town to use its treatment facility if the town agreed to allow the city to provide for the collection of sewage and other municipal services. Town of Hallie, 105 Wis. 2d at 534. The town then sued the city, claiming, as does the District in this case, that the city's refusal was an "anti-competitive tie-in," thereby preventing it from being able to compete with the city as a potential competitor in the market for sewage collection services. Id. at 535-36.

¶ 22. In determining whether the city's actions were illegal under Wis. Stat. § 133.03, the supreme court held that "the test as to the applicability of the state antitrust law is whether the legislature intended to allow municipalities to undertake such actions." Town of Hallie, 105 Wis. 2d at 539. After an analysis of the home rule powers of cities, the type of conduct undertaken by the city, and the general statutory framework set up by the legislature, the supreme court concluded that "the legislature intended to allow a city to tie the provision of sewage services to an area outside the city to the acceptance by the area's inhabitants of the city's other services." Id.

¶ 23. The supreme court noted that the cities are granted broad home rule powers by the state constitution and also by Wis. Stat. § 62.11(5). Town of Hallie, 105 Wis. 2d at 539. That statute provides:

(5) POWERS. Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language.

Sec. 62.11(5). The court cautioned that cities may not ignore the state antitrust law in all cases merely by relying on the home rule powers, especially when the home rule powers conflict with matters of state-wide concern. Town of Hallie, 105 Wis. 2d at 540. However, after an analysis of the legislative enactments dealing with cities and their powers to provide sewage services, the court concluded that the antitrust laws did not apply to the city's conduct. Id.

¶ 24. The supreme court also looked to both Wis. Stat. §§ 66.069(2)(c) and 144.07(lm) (1979-80). Town of Hallie, 105 Wis. 2d at 541. The court observed that pursuant to § 66.069(2)(c) (1979-80), the legislature provided that a city may fix the area outside its boundaries in which service will be provided and has no obligation to serve beyond that area. See Town of Hallie, 105 Wis. 2d at 541. The court further noted that § 144.07(lm) (1979-80) similarly supported a city's right to annexation; that statute provided that in certain cases the department of natural resources (DNR) may order a city to connect its sewer service to an adjoining unincorporated area, but the city may then commence a proceeding to annex the area to which it is required to provide service. See Town of Hallie, 105 Wis. 2d at 541. If the inhabitants of that area rejected the annexation by referendum, then the DNR order is void and the city is not required to provide sewer service to the area. Id.

¶ 25. Guided by these statutes, the supreme court reasoned:

[T]he legislature seems to view annexation as an appropriate prerequisite to the provision of sewage service outside the limits of a city. This seems reasonable because establishing and maintaining sewage treatment facilities can be a very substantial financial burden upon the city taxpayers and residents. If an area is to have the benefit of such services, it may be appropriate for it to be annexed in order to add to the city's tax base and help pay for the cost of providing such services.
The city, in providing sewage services, is performing a governmental rather than a proprietary service. Its primary objective is to help ensure health and sanitation for its residents. This service resembles other governmental services such as police and fire protection which are monopolies for the public good. There is no profit motive involved and a monopoly exercised by the city is more appropriate than competition in the furnishing of such public services, even though, as here, the service can be extended beyond the geographical boundaries of the city.

Id. at 542.

¶ 26. The District acknowledges the holding in Town of Hallie but contends it does not apply to the circumstances of this case. Specifically, the District argues that Town of Hallie is distinguishable because it concerned a city-owned treatment plant rather than a regional facility constructed to serve multiple municipalities. However, the District's argument overlooks that it is seeking permission to transport sewage through interceptors that are owned by the City. Regardless of whether the treatment plant is a regional facility, access to the City's interceptors is necessary and integral to providing the Muttart Road Extension with sewer services. We reject the District's attempt to distinguish Town of Hallie.

¶ 27. We conclude that the supreme court's analysis of the applicable statutes and reasoning in the Town of Hallie govern the issue presented in this case. We therefore conclude that the circuit court properly granted summary judgment to the City as there is no genuine issue of material fact as to whether the City's denial of consent violated Wis. Stat. § 133.03.

Conclusion

¶ 28. We conclude that there is no genuine issue of material fact as to whether the City breached the terms of the parties' 1982 and 1988 written agreements by withholding its consent to the Muttart Road Extension. Based on the unambiguous language of the agreements, it was entitled to do so. We further conclude that there is no genuine issue of material fact as to whether the City's action violated Wis. Stat. § 133.03. Town of Hallie authorizes a municipality to deny the extension of sewer service without running afoul of the antitrust law. We therefore affirm the judgment of the circuit court.

By the Court. — Judgment and order affirmed.

       We note that all statutory references are to the 1999-2000 version unless otherwise indicated.

       We note that the parties dispute whether the agreement granted the District capacity or access in the City's interceptors. Although the circuit court found that the agreement granted access to the District, we need not resolve this factual dispute on appeal as it is not germane to the outcome.

       The commission is not a party to this action.

       The District additionally argues that the City failed to establish its additional defense based on claim or issue preclusion. Although the District asserted this defense in the circuit court, the circuit court did not grant summary judgment on this basis. Nor does the City renew this issue on appeal. Therefore, the issue is not before us.

       The District additionally cites to Section 604 of the 1982 agreement which prohibits a contracting municipality from making or permitting any new connection to or extension of its local sewer system which is designed or permits entrance of inflow into the regional system without first submitting plans to the commission and to a provision requiring payment for the use of the local sewer system. We summarily reject these additional arguments. These provisions do not conflict with the City's authority under Section 401 to withhold consent.

       The District cites to a letter from the City's attorney in support of this argument.

       Both of these statutory sections have since been renumbered. Wisconsin Stat. § 66.069(2)(c) (1979-80) was renumbered to Wis. Stat. § 66.0813(3)(a) (1999-2000) by 1999 Wis. Act 150, §§ 189, 240. The language of the statute.has remained substantially the same as that considered by the court in Town of Hallie v. City of Chippewa Falls, 105 Wis. 2d 533, 314 N.W.2d 321 (1982). It provides:
      Notwithstanding s. 196.58(5), a city, village or town may by ordinance fix the limits of utility service in incorporated areas. The ordinance shall delineate the area within which service will be provided and the municipal utility has no obligation to serve beyond the delineated area. The delineated area may be enlarged by a subsequent ordinance. No ordinance under this paragraph is effective to limit any obligation to serve that existed at the time that the ordinance was adopted.
      Sec. 66.0813(3)(a).

        Wisconsin Stat. § 144.07(lm) (1979-80) was renumbered to Wis. Stat. § 281.43(lm) (1999-2000) by 1995 Wis. Act 227 § 408. Again, the language of the statute is substantively the same as that considered by the court in Town of Hallie. It provides:
      (lm) An order by the department for the connection of unincorporated territory to a city or village system or plant under this section shall not become effective for 30 days following issuance. Within 30 days following issuance of the order, the governing body of a city or village subject to an order under this section may commence an annexation proceeding under s. 66.0219 to annex the unincorporated territory subject to the order. If the result of the referendum under s. 66.0219(4) is in favor of annexation, the territory shall be annexed to the city or village for all purposes, and sewerage service shall be extended to the territory subject to the order. If an application for an annexation referendum is denied under s. 66.029(2) or the referendum under s. 66.0219(4) is against the annexation, the order shall be void. If an annexation proceeding is not commenced within the 30-day period, the order shall become effective.
      Sec. 281.43(lm).

       The supreme court's ruling in Town of Hallie was later supported by the United States Supreme Court's holding in Town of Hallie v. City of Eau Claire, 471 U.S. 34 (1985). In that case, four unincorporated townships located adjacent to the City ofEau Claire sought injunctive relief against the city. Id. at 36. The townships claimed that the City violated the Sherman Act by acquiring a monopoly over the provision of sewage treatment services in Eau Claire and Chippewa counties and by tying the provision of such services to the provision of sewage collection and transportation services. Id. at 36-37. The Supreme Court rejected the township's arguments holding that the State of Wisconsin "has specifically authorized Wisconsin cities to provide sewage services and has delegated to the cities the express authority to take action that foreseeably will result in anticompetitive effects." Id. at 43. It concluded that "the Wisconsin statutes evidence a 'clearly articulated and affirmatively expressed state policy to displace competition with regulation in the area of municipal provision of sewage services." Id. at 44 (citation omitted).
      We note that a later federal case, Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d. 1285, 1288 (9th Cir. 1985), indicates that much of the force of the United States Supreme court cases such as Town of Hallie v. City of Eau Claire, which hold that municipalities are not immune from antitrust liability unless acting pursuant to a clearly articulated and affirmatively expressed state policy to displace competition, have been prospectively overruled with the enactmant of the Local Government Antitrust Act of 1984, Pub. L. No. 98-544, 98 Stat. 2750 (1984). The effect of this act on the issues on appeal has not been raised by the parties and is not addressed in this decision.


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Garry C. Eskridge, Defendant-Appellant.

    Court of Appeals

      No. 01-2720-CR.

      Submitted on briefs April 12, 2002.

    Decided May 15, 2002.

    2002 WI App 158
    (Also reported in 647 N.W.2d 434.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Gregory Bates of Bates Law Office, Kenosha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Stephen W. Kleinmaier, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, RJ., Brown and Anderson, JJ.

       Petition to review denied 9-26-02.

   ANDERSON, J.

¶ 1. Garry C. Eskridge appeals from a judgment of conviction based on a warrantless search of a common area located in the basement of a four-unit apartment building in which he resided. On appeal, he claims that he had a reasonable expectation of privacy and that the evidence was seized in violation of his rights under the Fourth Amendment to the United States Constitution. We disagree. Therefore, we affirm.

¶ 2. On August 28, 2000, Eskridge was charged with possession of cocaine as a second or subsequent offense contrary to Wis. Stat. §§ 961.41(3g)(c) and 961.48(2) (1999-2000). In the ensuing prosecution, Eskridge moved to suppress the evidence. A suppression hearing was held on October 17, 2000. Both sides gave testimony, which was uncontroverted except for disagreement as to whether on August 21, 2000, the front door of the building was locked or unlocked.

¶ 3. At the suppression hearing Eskridge testified that he and his wife were renters of a second-floor apartment in the building and had lived there "a few weeks." Eskridge claimed that the front door to the building was "usually locked" and that the door to the basement was "supposed to be locked." However, Es-kridge also stated that the lock on the basement door might have been broken on that day. Eskridge acknowledged that there was a common area of the basement open to all tenants of the building. He said that on August 21 the front door was locked when he came home after work.

¶ 4. Next, the court heard testimony from the two officers involved in the case, Peter Falk and Booker Bennett. Their testimonies explained that on August 21, 2000, the City of Kenosha Police Department received a tip from an informant that "a guy named D was dealing out of one of the apartments [at 4811 - 37th Avenue, a four-unit apartment building] and that he kept his dope in the upstairs hallway closet." According to the informant, the officers would find approximately a quarter ounce of crack at this address. Acting on the tip, the officers went to the apartment building.

¶ 5. Both Falk and Bennett testified that when they arrived at the building, the front door was unlocked. Falk testified that during his five years of patrolling the area, he had been in this building ten to twelve times and the door to the building had never been locked. He and Bennett both testified that they had observed a lot of nonresidents of the building coming and leaving through its unlocked front door. Falk said that this building was in a high crime area and that ninety-five percent of the four-plexes in the area had unlocked doors. Bennett testified that from his past experiences with the activities at this building, he knew the front door would be open and unlocked. Falk said that the door to the upstairs hallway was also open. Falk and Bennett proceeded through the open doors, went upstairs, checked the hallway closet and found no drugs.

¶ 6. Falk and Bennett then returned to the first-floor foyer where they saw another open door leading to the basement stairway. Through the open door, Falk could see that a light was on in the basement. The officers thought they might find drugs in the basement because it was their experience that people in apartment buildings sometimes hide drugs in basement areas. Specifically, Falk said that from past informant tips he had learned that

in these types of four plexes people that are dealing dope lots of times keep it ip the basement because if the police hit the house, they won't find it in their house and they won't get in trouble for it supposedly. So I have found numerous types of contraband hidden in the rafters of the basement and furnaces and stuff like that.

Additionally, Bennett testified that they had decided to check the basement because "that was also in the tip."

¶ 7. When Falk and Bennett entered the basement, they saw no one else there. The basement contained a laundry area and locker bins fenced off with chicken wire. While searching the rafters with their flashlights, the officers heard someone (Eskridge) coming down the stairs. Falk said that he heard paper ripping and that he then heard Bennett confront Es-kridge. The noise Falk heard was Eskridge tearing paper away from some insulation in order to reach his hand into it. Bennett confronted Eskridge while his hand was still reaching into the insulation. Bennett asked Eskridge why he had his hand up in the insulation and he responded by stating that he was looking for the light switch. Bennett looked into the insulation area where Eskridge's hand had been and located a plastic baggie containing a rock of what appeared to be cocaine. Falk field tested the rock, which tested positive for the presence of cocaine. The officers said it was at this point that they arrested Eskridge.

¶ 8. At the conclusion of the hearing, the trial court stated that it believed the testimonies of the officers over the testimony of Eskridge. The court made a finding that Eskridge's front door was not locked when the officers arrived and entered the building on August 21, 2000. The court further found that once inside the building, the officers came upon and went through a wide open door into the basement. Finally, the court found that, under the circumstances, Es-kridge had no expectation of privacy in the common area of the apartment building basement. The trial court denied Eskridge's motion to suppress. Eskridge pled guilty and now appeals the judgment of conviction.

Standard of Review

¶ 9. When reviewing a trial court's ruling on a motion to suppress evidence on Fourth Amendment grounds, we will uphold the trial court's factual findings unless clearly erroneous. State v. Trecroci, 2001 WI App 126, ¶ 23, 246 Wis. 2d 261, 630 N.W.2d 555, review denied, 2001 WI 117, 247 Wis. 2d 1033, 635 N.W.2d 782 (Wis. Sep. 19, 2001) (No. 00-1083-CR). However, whether a search is reasonable under the Fourth Amendment is a question of law that we review de novo. Id. Whether a defendant has standing to raise a Fourth Amendment claim also presents a question of law. Id. The same is true as to whether a defendant has consented to a search. Id.

Discussion

¶ 10. On appeal, Eskridge does not dispute the trial court's factual findings. Under the clearly erroneous standard, we have no reason to upset these findings. Eskridge disputes only the trial court's ultimate ruling: that the search passed constitutional muster. We first address the State's request that we adopt a bright-line rule that a tenant in an unlocked apartment building with at least four units does not have a reasonable expectation of privacy in the common areas of the stairways, hallways and basement. The State apparently wants us to create a legal gulf between cases where officers enter a two-unit residence (Trecroci) and apartments containing four units or more (this case). In the State's view, while there may be a historical notion of privacy in the former, there is no such historical notion in the latter. This is seemingly so because Trecroci-type buildings do not usually have common stairways and hallways, while buildings of four or more units usually do. We decline to adopt such a bright-line rule because the suppositions integral to the State's claim often change with the particular facts. The number of units in a building does not define, ipso facto, all the variables that must be considered when deciding whether a tenant has a reasonable expectation of privacy in a certain area of the building. Some buildings are always locked, and some are rarely or never locked. Some buildings have common basements and some do not. Some have common areas and some do not. Some have a history of outside traffic and some do not. The number of units in a building is only one factor to consider. For these reasons, we are convinced that a bright-line rule would be inappropriate. Rather, we adhere to the reasoning we provided in Trecroci, where we explained that:

[A case-by-case approach] assures that certain cases do not slip between the cracks of a general rule, causing the suppression of evidence which, under closer scrutiny, should have been admitted, or allowing for the admission of evidence which, under similar scrutiny, should have been disallowed. Moreover, whether a person has a reasonable expectation of privacy seems by its very nature to call for an examination of the particular facts of each case.

Id. at ¶ 33 (citation omitted).

¶ 11. We now turn to the particular facts of this case and look to whether Eskridge had a reasonable expectation of privacy in the common area of the basement in the apartment building in which he lived. Eskridge bears the burden of establishing his reasonable expectation of privacy by a preponderance of the evidence. Id. at ¶ 35. Whether a person has a reasonable expectation of privacy depends on a two-pronged test as to (1) whether the individual has exhibited an actual, subjective expectation of privacy in the area inspected and in the item seized; and (2) whether society is willing to recognize such an expectation of privacy as reasonable. Id.

¶ 12. We are guided by our decision in Trecroci, where, like here, the defendants were charged with drug offenses and moved to suppress evidence obtained during a search of an apartment building. Id. at ¶ 1. In Trecroci, we held that the defendants exhibited a subjective expectation of privacy because: (1) they so testified, (2) their actions in equipping the doorway leading to the entrance to the stairway with a deadbolt lock supported that testimony, and (3) there had not been any suggestion from the evidence that third parties had unfettered access to the stairway. Id. at ¶ 35.

¶ 13. Unlike in Trecroci, the only evidence of a subjective expectation of privacy in this case is Eskridge's testimony to this effect:

[Defense Counsel]: Mr. Eskridge is it your expectation in living in that building that the only people that come in through the steel door are you, the other three tenants and people that come in with their permission? Is that accurate?
[Eskridge]: Yes.
When comparing this evidence to the State's evidence to the contrary, we agree with the trial court that Eskridge's testimony does not stack up to proof by a preponderance of the evidence that he had a subjective expectation of privacy. The State offered the following evidence to show that Eskridge did not have a subjective expectation of privacy:
• Falk's testimony that he had been in the building ten to twelve times in the past five years and the door to the building had never been locked;
• Falk's testimony that the building was in a high crime area and that ninety-five percent of the four-plexes in the area had unlocked doors;
• Bennett's testimony that from his past experiences with the activities at the building, he knew the front door would be open and unlocked;
• Falk and Bennett's testimonies that they had ob-. served a lot of nonresidents of the building coming and leaving through its unlocked front door over the years;
• Falk and Bennett's testimonies that when they arrived at the building on August 21, the front door was in fact unlocked; and
• Falk and Bennett's testimonies that they proceeded through a wide open door leading to the basement stairway and the area inspected.

Thus, where in Trecroci there had not been any suggestion from the evidence that third parties had unfettered access to the area inspected, here the State offered credible evidence to suggest that third parties did have unfettered access to the area inspected.

¶ 14. The trial court believed Falk and Bennett's testimonies over Eskridge's testimony. The trial court made a finding that Eskridge's front door was not locked when the officers arrived and entered the building on August 21, 2000. The court further found that once inside the building, the officers came upon and went through a wide open door into the basement. Finally, the court found, and we agree, that under the circumstances, Eskridge had no expectation of privacy in the common area of the apartment building basement.

¶ 15. Given that Eskridge does not prevail on the first prong of the Trecroci test, we could end our discussion here. However, with the exception of our holding in Trecroci, there is little guidance for the trial courts on this issue. In an effort to provide some direction, we include a discussion of the second prong: whether society is willing to recognize the defendant's subjective expectation of privacy as reasonable. Id. at ¶ 36. This is an objective element of the test. Id. On this element, we look to the following factors:

1. Whether the person had a property interest in the premises;
2. Whether the person was legitimately on the premises;
3. Whether the person had complete dominion and control and the right to exclude others;
4. Whether the person took precautions customarily taken by those seeking privacy;
5. Whether the person put the property to some private use; and
6. Whether the claim of privacy is consistent with historical notions of privacy.

Id.

¶ 16. If Eskridge satisfies all six factors, he prevails on the second prong of the Trecroci test. However, Eskridge satisfies only three of the factors. Eskridge was a tenant in a second-floor apartment of the building and all the tenants shared the uncordoned-off basement area, which was the area inspected. This satisfies factors one and two; Eskridge had a property interest in the area inspected and he had a legitimate right to use and be present in the area inspected. Factor five is satisfied because Eskridge put the area inspected to some private use when he "hid" his drug stash in the insulation located in the area inspected.

¶ 17. Eskridge does not satisfy the remaining factors. He did not have complete dominion and control over the area and he did not have the right to exclude others. This was an uncordoned-off laundry area, open and available to the other tenants of the building. See United States v. McGrane, 746 F.2d 632, 633-34 (8th Cir. 1984) (no reasonable expectation of privacy in common area of basement of two-story, four-unit apartment building where the area was accessible to all tenants and the landlord). Thus, he fails on factor three.

¶ 18. Eskridge also fails on factor four because he did not take precautions customarily taken by those seeking privacy. The area inspected was available to tenants and nontenants if, as both Falk and Bennett credibly testified, the door to the building was kept unlocked. In fact, the trial court rejected Eskridge's testimony that the door was usually locked and found that the door was unlocked on the day in question. Furthermore, Eskridge never claimed that he made certain the door was locked. We cannot say that hiding drugs in an unlocked, common area, accessible to all tenants, qualifies as taking precautions customarily taken by someone seeking privacy. We add that even a recent case that seemingly supports Eskridge does not support him because, in addition to the court holding that the defendant had a reasonable expectation of privacy in an apartment building common area, it also explained that its holding did not extend to common areas of unlocked apartment buildings. State v. Titus, 707 So.2d 706, 711 (Fla. 1998).

¶ 19. Finally, Eskridge fails on the sixth factor: whether the defendant's claim of privacy is consistent with historical notions of privacy. Here, we conclude that under the facts of this case, Eskridge's claim of privacy is not consistent with historical notions of privacy. Historical notions of privacy do not seem to encompass "common areas" in apartment buildings. As pointed out earlier, common areas in apartment buildings are, by their very definition, not private but shared areas, accessible to and used by other tenants. This conclusion is supported by our examination of case law from other jurisdictions. See, e.g., Penny v. United States, 694 A.2d 872, 875 (D.C. 1997) (in holding that there was no reasonable expectation of privacy in the basement of a multi-unit building, the court relied in part on the fact that the tenant did not have the authority to exclude others from the common area of the basement that was entered and searched); United States v. Hawkins, 139 F.3d 29, 32-33 (1st Cir. 1998) (the unenclosed area of the basement of the apartment building was a common area for which the defendant as a tenant had no reasonable expectation of privacy); United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir. 1993) (court observed that "[m]ost other circuits agree a tenant does not have a reasonable expectation of privacy in an apartment building hallway or other common area.").

¶ 20. Accordingly, even if we held that Eskridge had exhibited an actual, subjective expectation of privacy, and we hold that he did not, he would have failed on the second prong of the Trecroci test: whether society is willing to recognize the defendant's subjective expectation of privacy as reasonable. The evidence seized from the common area of the basement was not seized in violation of Eskridge's rights under the Fourth Amendment to the United States Constitution. Es-kridge has not established by a preponderance of the evidence that he had a reasonable expectation of privacy. See Trecroci, 2001 WI App 126 at ¶ 35. We hold that Eskridge did not have a reasonable expectation of privacy in the common area of the basement in the apartment building in which he lived.

By the Court. — Judgment affirmed.

       The Fourth Amendment to the United States Constitution states:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.