author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Matthew J. Trecroci, Defendant-Respondent. [Case No. 00-1079-CR] State of Wisconsin, Plaintiff-Appellant, v. Ryan J. Frayer, Defendant-Respondent. [Case No. 00-1080-CR] State of Wisconsin, Plaintiff-Appellant, v. Ronnie J. Frayer, Defendant-Respondent. [Case No. 00-1081-CR] State of Wisconsin, Plaintiff-Appellant, v. Scott E. Oberst, Defendant-Respondent. [Case No. 00-1082-CR] State of Wisconsin, Plaintiff-Appellant, v. Amy L. Wicks, Defendant-Respondent. [Case No. 00-1083-CR]
    Court of Appeals

      Nos. 00-1079-CR, 00-1080-CR, 00-1081-CR, 00-1082-CR, 00-1083-CR.

      Submitted on briefs March 9, 2001.

    Decided May 2, 2001.

    2001 WI App 126
    (Also reported in 630 N.W.2d 555.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and David J. Becker, assistant attorney general.
    On behalf of the defendants-respondents, the cause was submitted on the brief oí Robert E. Henak of Henak Law Office, S.C. of Milwaukee.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   NETTESHEIM, J.

¶1. The State of Wisconsin appeals from a trial court order granting a motion to suppress evidence filed by the defendants, Matthew J. Trecroci, Ryan J. Frayer, Ronnie J. Prayer, Scott E. Oberst and Amy L. Wicks. The police made a warrant-less entry into an interior stairway off of an enclosed porch entry to the building. The stairway led to Trecroci's second-floor apartment and to an attic area leased by the Frayers and Oberst. We hold that the defendants had a reasonable expectation of privacy in the stairway, thereby rejecting the State's argument that the stairway was a "common area" not entitled to Fourth Amendment protection. As a result, we uphold the trial court's determination that the ensuing searches of the attic and the apartment were invalid. We also reject the State's argument that Trecroci and Wicks, a guest, did not have standing to challenge the attic search. We affirm the suppression order.

FACTS

¶ 2. Although the State does not agree with some of the trial court's findings of fact, it does not challenge them given our "clearly erroneous" standard of review. "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Wis. Stat. § 805.17(2) (1999-2000).

¶ 3. The searches occurred at a building located at 2510 48th Street in the city of Kenosha. The building is a two-story residence that had been subdivided into two apartment units — one on the first floor and the other on the second floor. An attic is located above the second floor. The defendant Trecroci owns the residence and he lived in the second-floor apartment.

¶ 4. During the late evening hours of October 17, 1998, City of Kenosha Police Officer Russell Davison was investigating a hit-and-run accident. Davison learned that Edward Echols was involved in the accident, that he may have left the scene in a blue Pontiac motor vehicle, and that his last known address was 2510 48th Street in Kenosha. Davison and a fellow officer, Kenneth Clelland, traveled to that location.

¶ 5. Upon arrival, the officers observed a blue Pontiac parked near the residence. The officers also saw a man, later identified as defendant Ryan Frayer, exit from the back area of the property. The officers asked Ryan who owned the Pontiac. Ryan replied that the owner was his brother's friend and they were in the upper apartment of the residence. Davison told Ryan that he wished to speak with the owner of the vehicle. Ryan then turned around and proceeded back towards the residence with the officers following. The group walked through a gate in the fence that enclosed the rear of the property, up a short set of exterior steps, and into an enclosed porch area. Two doors led off of this area — one to the first-floor apartment unit and the other to a stairway which serviced the second-floor apartment and the attic area. The stairway door was equipped with a deadbolt lock and a spring hinge that kept the door closed. A doorbell button serviced the upstairs apartment.

¶ 6. While Ryan and the officers were in the enclosed porch area, Clelland said that he smelled marijuana. At this remark, Ryan stopped. Davison told Ryan to move out of the way. When Ryan failed to obey, Davison proceeded through the door and into the stairway area. As he climbed the stairs, Davison continued to smell marijuana and also observed a fan venting to the outside of the building. Davison knew from his experience that fans are sometimes used to vent marijuana.

¶ 7. At the top of the stairs, Davison heard voices coming from the attic area and he observed a door leading to this area. This door was equipped with a padlock, but the door was partially ajar. Davison opened the door by pulling outward, revealing a further stairway leading to the attic area. Davison observed marijuana leaves in the stairway. He also saw a man, later identified as defendant Oberst, coming down the stairs with his hand in his pocket. Davison told Oberst to remove his hand, but Oberst did not obey. When the two met, Davison conducted a pat down of Oberst and discovered a cutting shears in Oberst's pocket. When Davison reached the top of the attic stairs, he observed defendants Ronnie Frayer and Wicks. Later investigation revealed that Wicks was on the premises as a guest of her fiance, Ronnie Frayer.

¶ 8. All of the subjects were placed under arrest. Additional officers were called to the scene and a search of the attic turned up evidence that the attic was being used for drying and processing marijuana.

¶ 9. Trecroci was not present at the time of the events we have described. However, after the police learned that Trecroci owned the residence, Officer Michael Wilkinson, who knew Trecroci, was dispatched to look for him. Wilkinson located Trecroci and transported him back to the residence. About the same time, Officer Thomas Vieth, the field supervisor of the Kenosha County Controlled Substances Unit, arrived on the scene. Vieth and Trecroci had a conversation, after which Trecroci talked with Wilkinson. Trecroci told Wilkinson that he had been asked to consent to a search of his apartment and he wanted Wilkinson's advice. Wilkinson told Trecroci to look around, and that they (the officers) were not going anywhere. The police also told Trecroci that if he did not consent to the search, they would obtain a search warrant. Trecroci then consented to the search of his apartment, which turned up additional marijuana evidence.

¶ 10. Oberst later gave a written statement at the police department indicating that he and the Frayers had rented the attic area from Trecroci. In exchange, they provided marijuana to Trecroci. Oberst also stated that Trecroci knew that the attic area was used to process marijuana.

TRIAL COURT PROCEEDINGS

¶ 11. Following a preliminary hearing, the State filed an information charging all the defendants with party to the crime of the manufacture of a controlled substance pursuant to Wis. Stat. §§ 939.05 and 961.41(l)(h)3 and party to the crime of possession of a controlled substance with intent to deliver pursuant to §§ 939.05 and 961.41(lm)(h)3.

¶ 12. All of the defendants filed motions to suppress, challenging the search of the attic. Trecroci additionally filed a motion to suppress, challenging the search of his apartment. These motions challenged each sequential step of the police procedure, starting with the entry into the curtilage of Trecroci's backyard and ending with the search of Trecroci's apartment. The trial court conducted lengthy evidentiary hearings on the motions. The court also received written briefs from the parties.

¶ 13. On March 2, 2000, the trial court issued a written decision granting the motions to suppress. The court rejected the State's argument that the warrant-less police entry into the stairway was valid based on Ryan's consent. Instead, the court held that Ryan's consent terminated when he stopped at the door leading to the stairway in response to Clelland's statement that he smelled marijuana. The court also held that the search could not be justified under the law of "plain view" because the police were actively engaged in investigating the possible presence of marijuana based on their observations.

¶ 14. In addition, the trial court rejected the State's arguments that the defendants did not have standing to challenge the attic search. Instead, the court held that the defendants had a reasonable expectation of privacy in the attic area. Finally, the trial court ruled that Trecroci's consent to the search of his apartment was involuntary.

¶ 15. Following the trial court's ruling, the State filed a motion for reconsideration arguing, for the first time, that the police entry into the stairway leading to the second story was justified by the combination of probable cause based on the smell of marijuana and exigent circumstances based on the presence of some of the defendants in the dwelling. In support, the State cited to State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, a decision released after the trial court's ruling. The trial court distinguished the Hughes case and denied the State's motion for reconsideration.

¶ 16. The State appeals. However, the State's notice of appeal embraces only the trial court's initial order granting the defendants' motions to suppress. The notice does not reference the court's later order denying the State's motion for reconsideration.

DISCUSSION

Scope of Our Review

¶ 17. In large measure, the State relies on the argument it made on the reconsideration motion — that the circumstances confronting the police established both probable cause and exigent circumstances under Hughes to justify the police entry into the stairway and the subsequent entry into the attic. See id. at ¶ 18. The defendants respond that we should not countenance the State's arguments under Hughes because those issues were first introduced into this case by the State's motion for reconsideration, and the State has not appealed from the order denying the reconsideration motion.

¶ 18. In Ver Hagen v. Gibbons, 55 Wis. 2d 21, 197 N.W.2d 752 (1972), the appellant appealed from an order denying a motion for rehearing of a prior grant of summary judgment to the respondents. Id. at 23. The supreme court dismissed the appeal saying, "it has frequently been held that an order entered on a motion to modify or vacate a judgment or order is not appealable where, as here, the only issues raised by the motion were disposed of by the original judgment or order." Id. at 25. The court further said that in order for such an order to be appealable, "[the movant] must present issues other than those determined by the order or judgment for which review is requested ...." Id. at 26.

¶ 19. In Harris v. Reivitz, 142 Wis. 2d 82, 417 N.W.2d 50 (Ct. App. 1987), the appellant also appealed from an order denying a motion for reconsideration. Id. at 85. In analyzing the Ver Hagen "new issues" test, the court of appeals held that the test should be liberally applied. Harris, 142 Wis. 2d at 88—90. Viewing the reconsideration motion in that light, the court con-eluded that the reconsideration motion raised new issues, and the court proceeded to review the order denying the reconsideration on its merits. Id. at 89-90.

¶ 20. The State acknowledges that its reconsideration motion probably injected new issues into this case under Ver Hagen and Harris and that, under ordinary circumstances, it would be required to appeal the denial of the reconsideration order. However, the State says that it is "arguable" whether it could have appealed the order under the facts of this case since the basis for its reconsideration motion was a recent decision. In support, the State cites to Mack v. Joint School District No. 3, 92 Wis. 2d 476, 285 N.W.2d 604 (1979). There, the appellants appealed from an order granting summary judgment and from an order denying their motion for a rehearing. Id. at 479. Applying the Ver Hagen "new issues" rule, the court said:

In the present case appellants, in their motion for a rehearing, merely cited a recent case and argued that the case required the trial court to withdraw its decision, and thus, they presented the same issues which the trial court decided when granting summary judgment. Those issues can be reviewed on that portion of this appeal which challenges the judgment granting respondent's motion for summary judgment. Thus, the appeal from the order of the trial court denying appellants' motion for a rehearing is dismissed.

Id. at 485.

¶ 21. We disagree with the State that this language "arguably" creates a different rule when the basis for a reconsideration motion is a recent decision. While the basis for the reconsideration motion in Mack was a recent decision, the court did not carve out a different rule for that circumstance. Instead, the court applied the Ver Hagen rule. Although the appellants in Mack were armed with a recent case, the core issues remained the same. Here, like Mack, the State is also armed with a recent case — Hughes. But unlike Mack, the State also introduced new issues into the case — probable cause and exigent circumstances.

¶ 22. In summary, when the basis for a reconsideration motion is a recent decision, the test for appellate jurisdiction is still the Ver Hagen rule. Here, the State's motion for reconsideration injected an entirely new issue into the case — a claim that the combination of probable cause and exigent circumstances served to justify the police conduct under Hughes. If the State wanted to complain about the trial court's rejection of that claim on reconsideration, it was duty bound to appeal that ruling. It has not. Therefore, the Hughes issue is not properly before us. We accordingly limit our review to the matters covered by the trial court's original order suppressing evidence.

Standard of Review

¶ 23. 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. Knight, 2000 WI App 16, ¶ 10, 232 Wis. 2d 305, 606 N.W.2d 291, review denied, 234 Wis. 2d 177, 612 N.W.2d 733 (Wis. Apr. 26, 2000) (No. 99-0368-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. State v. Rodgers, 119 Wis. 2d 102, 108-09, 349 N.W.2d 453 (1984). As we have noted, the State does not dispute the trial court's factual findings. Instead, the State disputes the court's ultimate rulings that the searches did not pass constitutional muster.

Stairway Leading to the Second Floor and Attic: Reasonable Expectation of Privacy

¶ 24. As noted, the defendants' constitutional challenges targeted each level of the police conduct: the initial entry into the backyard, the entry into the enclosed porch, the entry into the stairway leading to the second floor, the entry into the attic area, the search of the attic, and the search of Trecroci's apartment. The trial court's opinion did not discuss the first two levels of the police conduct — the entries into the backyard and the enclosed porch. Instead, the court began its analysis with the police entry into the stairway leading to the second floor of the dwelling. Rejecting the State's argument that Ryan had not terminated his consent prior to this entry, the court held that the warrantless police entry into the stairway was not permitted.

¶ 25. We begin our analysis at the same point because we agree with the trial court that the warrant-less entry of the police into the stairway area was illegal. However, the basis of our holding is different than that of the trial court because the State does not pursue its consent or "plain view" arguments on appeal. Instead, the State argues that the stairway was a common area not protected by the Fourth Amendment.

¶ 26. The trial court's written decision did not expressly address the validity of the police entry into the stairway area in terms of "common area." Instead, the court addressed this issue in terms of whether the defendants had standing to challenge the attic search. During that discussion, the court properly focused on whether the defendants had a reasonable expectation of privacy in the stairway area leading to the upper levels of the residence. When assessing a defendant's standing to challenge a search under the Fourth Amendment, the critical inquiry is "whether the person . . . has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143 (1978); accord State v. Fillyaw, 104 Wis. 2d 700, 710, 312 N.W.2d 795 (1981). So we read the court's decision to have answered the State's "common area" argument even though the court did not expressly invoke that phrase.

¶ 27. The State likens the stairway to the common areas of a multi-unit apartment complex. According to the State, a tenant does not have a reasonable expectation of privacy in such common areas. The defendants argue otherwise, particularly in a case such as this where the dwelling houses only a few rental units. This issue presents a matter of first impression in Wisconsin. The parties cite to cases from other jurisdictions in support of their competing positions. We set out some of them for illustration purposes.

¶ 28. The cases cited by the State include the following holdings. A tenant does not have a reasonable expectation of privacy in the hallway of an apartment building such that a police officer could not testify about observations he made and conversations he overheard in the hallway. United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977). A tenant does not have a reasonable expectation of privacy in the hallway of a twenty-seven story apartment complex housing seven apartments on each level. United States v. Nohara, 3 F.3d 1239, 1240, 1242 (9th Cir. 1993) (citing Eisler favorably and also noting a series of cases with similar holdings). A tenant has no reasonable expectation of privacy in the hallway of an apartment complex even though a locked door guarded the area. United States v. Barrios-Moriera, 872 F.2d 12, 14-15 (2nd Cir. 1989).

¶ 29. The defendants counter with cases such as United States v. Carriger, 541 F.2d 545, 548-50 (6th Cir. 1976), where the court held that a tenant had a reasonable expectation of privacy in the corridor of an apartment building. The defendants also cite to Justice Jackson's concurring opinion in McDonald v. United States, 335 U.S. 451, 458 (1948) ("[I]t seems to me that each tenant of a building, while he has no right to exclude from the common hallways those who enter lawfully, does have a personal and constitutionally protected interest in the integrity and security of the entire building against unlawful breaking and entry.").

¶ 30. More germane to this case, the defendants point to cases which have drawn a distinction between larger apartment complexes and duplexes or smaller dwellings. In United States v. Fluker, 543 F.2d 709 (9th Cir. 1976), the court held that a tenant had a reasonable expectation of privacy to an outer doorway leading to an entry way or corridor which, in turn, led to the doors of the two living units. Id. at 714-17. The court stated:

We begin with the fact that this building was not one containing many individual apartment units, but rather was comprised of only two apartments on the basement level and the landlord's living quarters on the upper floor. Thus, the entry way was one to which access was clearly limited as a matter of right to the occupants of the two basement apartments, and it is undisputed that the outer doorway was always locked and that only the occupants of the two apartments and the landlord had keys thereto. In light of the size of the building, then, we find significant the fact that the door to the hallway giving access to the two apartments was locked; the two lower-level tenants thus exercised considerably more control over access to that portion of the building than would be true in a multi-unit complex, and hence could reasonably be said to have a greater reasonable expectation of privacy than would be true of occupants of large apartment buildings.

Id. at 716. Interestingly, the Eisler and Nohara decisions, which held that a corridor of an apartment complex was a common area not entitled to Fourth Amendment protection, distinguished Fluker on the basis of the size of the dwellings. Eisler, 567 F.2d at 816 (noting that in Fluker the defendant's apartment was isolated from other areas of the building); Nohara, 3 F.3d at 1242.

¶ 31. The defendants also cite to People v. Killebrew, 256 N.W.2d 581 (Mich. Ct. App. 1977): "Generally, a hallway shared by tenants in a private multiple-unit dwelling is not a public place. ... In the case at bar there were only two apartments sharing a common hallway, entry to which was limited by right to the occupants. These occupants certainly could expect that a high degree of privacy would be enjoyed in that area." Id. at 583. In Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974), the court determined that a tenant of a four-unit apartment braiding had a reasonable expectation of privacy in a backyard. Id. at 484. While that expectation was not as great as if it were a purely private residence, the court also held that the area "is not as public and shared as the corridors, yards or other common areas of a large apartment complex... Id.

¶ 32. The State, however, has duplex cases that support its argument. In United States v. McCaster, 193 F.3d 930 (8th Cir. 1999), the court held that a hall closet in the back of a duplex was a common area not entitled to Fourth Amendment protection. Id. at 933. The court noted that the two other tenants, as well as the landlord, also stored items in the closet and the defendant had not taken steps to exclude others from the area. Id. In United States v. Holland, 755 F.2d 253 (2nd Cir. 1985), the court reached a similar result stating:

[W]e never have held that the common areas must be accessible to the public at large nor have we required a quantified amount of daily traffic through the area as a basis for determining that a common area is beyond an individual's protected zone of privacy.
This rule gives tenants the benefit of much-needed police protection in common hallways . . . while it preserves for them the privacy of their actual place of abode, their apartments. It also lays down a clearly-defined boundary line for constitutionally permissible police action, which is readily apparent to an officer in the field, without a need for counting apartments, analyzing common-hallway traffic patterns or interpreting the mental processes of a suspect relating to an area used in common with others.

Id. at 256 (citations omitted).

¶ 33. In resolving the issue, we are tempted to adopt bright-line rules in this unsettled area of search and seizure law. Under such rules, the police could better regulate their conduct and we could more easily gauge the legality of such conduct. This is true whether the rule would favor the State or the individual. However, we conclude that the interests of the Fourth Amendment are better served by assessing each case on its individual facts. This 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. See United States v. King, 227 F.3d 732, 744 (6th Cir. 2000) ("Whether a legitimate expectation of privacy exists in a particular place or item is a determination to be made on a case-by-case basis.").

¶ 34. We therefore turn to the particular facts of this case and look to whether the defendants had a reasonable expectation of privacy in the stairway leading to the upper levels of the dwelling. We exempt Wicks from this discussion because of her status as a guest. We will speak to her circumstances later when we address her standing to challenge the attic search.

¶ 35. The defendants bear the burden of establishing their reasonable expectation of privacy by a preponderance of the evidence. State v. Whitrock, 161 Wis. 2d 960, 972, 468 N.W.2d 696 (1991). Whether a person has a reasonable expectation of privacy depends on (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. State v. Thompson, 222 Wis. 2d 179, 186, 585 N.W.2d 905 (Ct. App. 1998). Here, we have little difficulty concluding that the defendants exhibited an actual subjective expectation of privacy. They so testified and their actions in equipping the doorway leading to the entrance to the stairway with a deadbolt lock supports that testimony. Nor is there any suggestion from the evidence that third parties had unfettered access to the stairway. We do not understand the State to dispute this first element of the test.

¶ 36. Instead, the State rests its argument on the second prong of the test: whether society is willing to recognize the defendants' subjective expectation of privacy as reasonable. Id. This is an objective test. Id. On this element of the test, 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.

¶ 37. The first two factors support the defendants' claim of a reasonable expectation of privacy in the stairway leading to the upper levels. Trecroci owned the building, he lived in the second-floor apartment and the stairway served as access to his apartment. The other defendants, save Wicks, had rented the attic area and the stairway also served as their access to those quarters. As such, all of the defendants had a property interest in the stairway and further had a legitimate right to use and be present in the stairway.

¶ 38. Next we address the third and fourth factors: the degree of dominion and control which the defendants exercised over the stairway area and the nature of the precautions they took to assure privacy. The door in the enclosed porch area that controlled entry into the stairway was equipped with a spring hinge which kept the door closed. More importantly, the door was equipped with a deadbolt lock that required the use of a key to unlock. Trecroci had provided the other defendants with a key to this lock. Thus, the only occupants who had access to the stairway were Trecroci as the owner and a resident, and the other defendants as tenants. The first-floor tenant did not have a key to this door.

¶ 39. While Trecroci and the other defendants undoubtedly allowed third parties to enter and use the stairway with their consent, that alone does not negate a reasonable expectation of privacy. See, e.g., O'Connor v. Ortega, 480 U.S. 709, 721-24 (1987) (access by others to an employee's work area does not negate an employee's reasonable expectation of privacy to his or her work area), Chapman v. United States, 365 U.S. 610, 616-17 (1961) (a landlord's limited right to enter a tenant's dwelling did not negate the tenant's reasonable expectation of privacy where the landlord's entry exceeded that limited right). The deadbolt lock revealed that use of the stairway by third parties was not unbridled. Instead, the defendants regulated and controlled the use of the stairway by such persons.

¶ 40. We reject the State's argument that simply because Trecroci rented the attic area to the other defendants and thereby allowed them to use the stairway, all of the defendants, including Trecroci himself, forfeited any reasonable expectation of privacy to the stairway. As we have noted, this dwelling was not a large apartment complex in which many persons would be coming and going through the common areas on a regular basis. Instead, Trecroci and the other defendants were the only ones entitled to unlimited use of the stairway and they otherwise regulated the use of the area by third parties. Moreover, unlike a conventional apartment complex where all tenants would have access to all the common areas, here the first-floor tenant did not have access to the stairway. These factors support the defendants' reasonable expectation of privacy claim.

¶ 41. Next, we address the fifth and sixth factors: the use of the property by the defendants and whether their claim of privacy is consistent with historical notions of privacy. As to Trecroci, our analysis will be brief. Trecroci owned and lived on the property. He used the stairway to access his living quarters and, as such, it was an essential adjunct to those quarters. The Fourth Amendment accords the highest degree of protection to a person's home. See New York v. Burger, 482 U.S. 691, 700 (1987); State v. Schwegler, 170 Wis. 2d 487, 495, 490 N.W.2d 292 (Ct. App. 1992). Trecroci's use of the property was clearly private and his claim of privacy is in keeping with historical notions of privacy. These factors support Trecroci's reasonable expectation of privacy claim.

¶ 42. As to the other defendants, however, the question is closer. These defendants rented the attic space from Trecroci for the principal purpose of conducting their criminal enterprise, although the trial court also found that they used the area for socializing. However, we bear in mind that the Fourth Amendment protects people, not property. Katz v. United States, 389 U.S. 347, 351 (1967). And, just as with a residence, a warrantless search of a commercial premise is presumed unreasonable. Marshall v. Barlow's, Inc., 436 U.S. 307, 312 (1978); Schwegler, 170 Wis. 2d at 495-96. The commercial use of a property reduces, but does not eliminate, the expectation of privacy. See Schwegler, 170 Wis. 2d at 495.

¶ 43. By its very nature, the criminal enterprise of these defendants was not conducted or promoted in the public sphere. Instead, the defendants housed their operation in the covert attic setting of a residential dwelling. They secured and controlled access to the attic by a deadbolt lock at the stairway entrance leading to the second floor and by a padlock on the door leading to the attic itself. Although these defendants used the attic for a commercial and criminal enterprise, the use was secretive and private. That conduct is consistent with historical notions of privacy attendant to such activity. Under these facts, we conclude that the reduced expectation of privacy which these defendants held in the stairway did not serve to justify the warrantless police entry under the facts of this case.

¶ 44. On this basis, we uphold the trial court's order suppressing the evidence garnered from the attic search.

Search of Trecroci's Apartment

1. Fruit of the Poisonous Tree

¶ 45. The next question is the effect of the illegality of the attic search on the later search of Trecroci's apartment under the "fruit of the poisonous tree" doctrine. See Wong Sun v. United States, 371 U.S. 471, 488 (1963); State v. Phillips, 218 Wis. 2d 180, 204-13, 577 N.W.2d 794 (1998). The State correctly observes that the trial court did not invalidate the search of Trecroci's apartment under the "fruit of the poisonous tree" doctrine. Instead, the court held that Trecroci's consent to the search was involuntary. However, we are entitled to affirm a trial court's ruling on different grounds if the effect of our holding is to uphold the trial court's ruling. State v. Holt, 128 Wis. 2d 110, 124, 382 N.W.2d 679 (Ct. App. 1985).

¶ 46. A "fruit of the poisonous tree" inquiry focuses on whether the discovery of the tainted evidence has come at the exploitation of the illegal entry or was sufficiently attenuated as to dissipate the taint caused by that entry. Phillips, 218 Wis. 2d at 204. Here, Trecroci gave his consent after he was confronted with the fruits, of the attic search and the option of consenting to a search of his apartment or having the police obtain a search warrant.

¶ 47. Assuming for purposes of this discussion that Trecroci's consent was voluntary, "[t]he mere fact that consent to search is voluntary . . . does not mean that it is untainted by prior illegal conduct." Id. When considering whether the casual chain has been sufficiently attenuated from the illegal police conduct, we look to: (1) the temporal proximity of the official misconduct and the seizure of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Id. at 205.

¶ 48. As to the first factor, we do not deem the temporal proximity factor as very helpful to the discussion because Trecroci was not present when the police entered the dwelling. Instead, he was brought to the scene later and the record is silent as to whether he knew when the police had actually entered his building. However, we will assume that this factor supports the State.

¶ 49. The third factor also supports the State. The police were initially investigating a hit-and-run incident. This matter did not convert into a drug investigation until the police were already in the enclosed porch entry and Clelland smelled marijuana. Moreover, there is no evidence of violence, threats, or physical abuse by the police to gain entry into the stairway. See id. at 211. We see no evidence of purposeful or flagrant police conduct.

¶ 50. However, it is the second factor which most heavily weighs against the State and which, in our judgment, controls the issue. Trecroci's consent was the direct product of the evidence and information obtained as a result of the illegal entry and search. This is unlike Phillips where the illegal entry had not produced any evidence before the police obtained the defendant's voluntary consent to search the defendant's bedroom. Id. at 210. Thus, the defendant's consent in Phillips was not tainted or influenced by any information or evidence improperly obtained by the police. Therefore, the supreme court held that the police did not exploit their unlawful entry into the defendant's home. Id. at 212. Just the opposite occurred here. The fruits of the illegal entry and search were the tools employed by the police to obtain Trecroci's consent and they were the catalysts for Trecroei giving consent. Moreover, as the next portion of our discussion will reveal, the police improperly advised Trecroei that they could obtain a search warrant for his apartment if he did not consent to the search.

¶ 51. In summary, there were no intervening circumstances that attenuated the official misconduct from Trecroci's consent. Therefore, we uphold the court's order suppressing the evidence obtained as a result of the search of Trecroci's apartment on this ground.

2. Voluntariness of Trecroei's Consent

¶ 52. Alternatively, we uphold the trial court's ruling that Trecroci's consent to the search of his apartment was involuntary. Consent is not lightly inferred and the burden is on the State to show a free, intelligent, unequivocal and specific waiver. Rodgers, 119 Wis. 2d at 107.

¶ 53. According to the trial court's findings, Oberst was still on the scene or had just left when Wilkinson delivered Trecroci to the scene. At this time, the police advised Trecroci that if he did not consent to a search of his apartment, they would obtain a search warrant. However, the police did not have probable cause to search Trecroci's apartment until Oberst later implicated Trecroci in a written statement he provided at the police department following his arrest.

¶ 54. The police may not threaten to obtain a search warrant when there are no grounds for a valid warrant. State v. Kiekhefer, 212 Wis. 2d 460, 473, 569 N.W.2d 316 (Ct. App. 1997). The trial court's findings establish that when the police threatened Trecroci with a search warrant, they did not, as yet, have probable cause. Therefore, under Kiekhefer, Trecroci's consent was not voluntary.

Standing of Amy Wicks

¶ 55. We separately address the standing of Wicks to challenge the attic search. As noted, Wicks was present on the premises as a guest of her fiance, Ronnie Frayer.

¶ 56. We start with the proposition that "a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place." Rakas, 439 U.S. at 142. In addition, an overnight houseguest has a legitimate expectation of privacy in his or her host's home. Minnesota v. Olson, 495 U.S. 91, 98 (1990).

¶ 57. However, in this case, the attic area was not used as a residence and Wicks was not an overnight guest. Instead, she was temporarily on the premises as an invitee of her fiance, Ronnie Frayer. If we were to assess Wicks's relationship to the premises separate and apart from her relationship to the other defendants, it is apparent that she comes up short under the Thompson factors. Wicks had no property interest in the premises, she had no dominion or control over the premises, she had no right to exclude others, and she took no precautions to assure privacy. The only factors in her favor were that she was legitimately on the premises and she was using the property for a private, albeit commercial, purpose.

¶ 58. But in Minnesota v. Carter, 525 U.S. 83 (1998), the Supreme Court explained that the standing of a guest to challenge a search is measured by the guest's relationship to the property and the host. In Carter, two guests were in an apartment bagging cocaine with the tenant. Id. at 86. Holding that the guests had no reasonable expectation of privacy, the Court said, "[A]n overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not." Id. at 90.

¶ 59. The State takes this language to mean that only an overnight guest has standing to challenge a search and therefore Wicks lacks standing. But the later language of the Supreme Court in Carter shows otherwise:

Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with [the tenant], or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household. While the apartment was a dwelling place for [the tenant], it was for these respondents simply a place to do business.

Carter, 525 U.S. 90. This additional language tells us that the holding of Carter is not as broad as the State contends. Rather, we read Carter to say that, under the facts of that case, the guests had not established a reasonable expectation of privacy in the apartment. But this language also reveals that if the guest's relationship with the host and the host's property is more firmly rooted, a guest may have standing to challenge a search.

¶ 60. That also is how the trial court read Carter. And the court's findings of fact reveal the kind of relationship between Wicks and the other defendants and the property which allows for standing under Carter. The trial court noted that the defendants, including Wicks, had used the attic area on prior occasions for both their criminal enterprise and for socializing. In addition, Wicks was Ronnie Frayer's fiance.

¶ 61. In summary, we agree with the trial court that factors absent in Carter are present in this case. For that reason, we affirm the trial court's determination that Wicks had standing to challenge the search.

CONCLUSION

¶ 62. We hold that the issue raised in the State's reconsideration motion is not properly before us on appeal. As to the trial court's original suppression order, we hold that Trecroci, the Frayers and Oberst had a reasonable expectation of privacy in the stairway leading to the second level of the dwelling. As such, these defendants had standing to challenge the police entry into this area. Since the police entry was conducted without a search warrant, the entry was invalid and the ensuing searches of the attic and Trecroci's apartment were illegal. Alternatively, we uphold the trial court's ruling that Trecroci's consent to the search of his apartment was not voluntary. Finally, we hold that Wicks had standing to challenge the search of the attic. We affirm the suppression order.

By the Court. — Order affirmed.

       We commend the State for its concession on this standard of review question, and we wish more appellate litigants would do likewise. While an appellate challenge to factual findings and credibility determinations may occasionally be appropriate, in the vast majority of cases such determinations are unassailable. In fact, such a challenge can be frivolous. See Lessor v. Wangelin, 221 Wis. 2d 659, 669, 586 N.W.2d 1 (Ct. App. 1998).

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

       Another person who was in the attic was also arrested and later charged. That person is not involved in this appeal.

       Trecroci was not under arrest at this time.

       Ronnie Frayer was further charged with possession of a controlled substance pursuant to WlS. STAT. §§ 961.41(3g)(c) and 961.48(1). This charge resulted from a search of Frayer at the jail. The parties do not address the effect of the trial court's ruling on this charge. Neither do we.

       We agree with the State that the trial court's ruling on this particular point was incorrect. In State v. Guy, 172 Wis. 2d 86, 101, 492 N.W.2d 311 (1992), the supreme court eliminated the "inadvertence" element of former plain view law. However, this error is of no consequence because, on appeal, the State does not argue that the entry and searches were justified under the law of "plain view."

       By a separate argument, the State challenges Trecroci's standing to challenge the attic search. That argument focuses on Trecroci's reasonable expectation of privacy in the attic. However, as our discussion reveals, we deem the controlling question to be whether Trecroci had a reasonable expectation of privacy in the stairway leading to the second floor. Since he did and since the police entry into the stairway was therefore illegal, we end the analysis at that point.


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Gary Tate, Petitioner-Appellant, v. David H. Schwarz, Administrator, Division of Hearings and Appeals, Respondent-Respondent.
    Court of Appeals

      No. 00-1635.

      Submitted on briefs March 21, 2001.

    Decided May 2, 2001.

    2001 WI App 131
    (Also reported in 630 N.W.2d 761.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Pamela S. Moorshead of Buting & Williams, S.C., Brookfield.
    On behalf of the respondent-respondent, the cause. was submitted on the brief of William C. Wolford, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P. J., Nettesheim and Anderson, JJ.

      Petition to review granted.

   ANDERSON, J.

¶ 1. Gary Tate appeals from a circuit court order affirming a decision of the Administrator of the Division of Hearings and Appeals, David H. Schwarz (Schwarz), and dismissing his petition for certiorari. For reasons discussed below, we affirm the circuit court on very narrow grounds.

Facts

¶ 2. Tate was charged with repeated sexual abuse of a child in violation of Wis. Stat. § 948.025 (1997-98) in a criminal complaint filed on November 3, 1997. He was accused of sexually assaulting his former stepdaughter on at least three occasions between August 1993 and August 1996. He denied guilt. On December 8, 1998, following a jury trial, Tate was convicted. The circuit court imposed and stayed a sentence of twenty-five years and placed Tate on probation for twenty years. As a condition of probation, he was required to serve one year in the county jail with Huber privileges. As a second condition, Tate was ordered into sex offender treatment.

¶ 3. Tate filed a Notice of Intent to Seek Post-Conviction Relief with the circuit court on February 3, 1999, and a motion for postconviction relief on June 25, 1999. On February 16, 1999, Tate began sex offender treatment with Joe Henger, a treatment provider under contract with the Department of Corrections (DOC). According to Henger, the purpose of sex offender treatment was to "overcome [Tate's] denial stance." As part of the treatment program, Henger required Tate to sign a release authorizing the disclosure of "information of all contact between the signed and Henger Enterprises to the offender's probation and parole agent, the Department of Corrections and any officer of court, or any court proceedings that involve the sex offender."

¶ 4. In treatment, Tate continued to maintain his innocence just as he had done while under oath at trial. He refused to give any details regarding the specific allegations against him. Tate believed that any admissions made during counseling could be used against him if he won a new trial. He testified that his fear was based both on the release he was required to sign by Henger and the presence of six or seven other group participants in the treatment sessions, any of whom could have acted as witnesses against him in future court proceedings. Tate told Henger that, upon the advice of his counsel, he would not be able to discuss the allegations against him.

¶ 5. On April 13, 1999, Henger terminated Tate from the program after eight sessions, noting that he was resistant to admitting sexual misconduct with the victim and that he refused to give any details of sexual inappropriateness with the victim. Tate filed a Motion to Modify Probation Conditions on April 19, 1999. In his motion, Tate asked that the circuit court stay any counseling requirements until the time for a direct appeal expired or an appeal or motion for postconviction relief had been denied. He argued that under State v. Marks, 194 Wis. 2d 79, 89, 92, 533 N.W.2d 730 (1995), continued counseling during postconviction review jeopardized his right against self-incrimination. In a written decision, the circuit court denied his motion on June 18,1999.

¶ 6. While his motion to modify probation conditions was pending, Tate's probation agent started revocation proceedings on May 4, 1999. The agent alleged that Tate's dismissal from the sex offenders group violated the condition of probation that he cooperate and complete sex offender treatment. On July 26, 1999, the hearing examiner, Administrative Law Judge Charles R. Guokas (the ALJ), issued a decision revoking Tate's probation. The ALJ found that Tate "violated his probation by failing to cooperate and complete Sex Offender treatment." On October 8, 1999, Tate filed an administrative appeal with Schwarz asking Schwarz to overturn his revocation. Schwarz sustained the ALJ's decision to revoke Tate's probation.

¶ 7. On October 20, 1999, Tate brought a certio-rari action petitioning the circuit court to review Schwarz's decision sustaining Tate's revocation. Tate asserted that his probation was revoked solely due to his exercise of his privilege against self-incrimination. Tate argued that the revocation of his probation for refusing to admit to child sexual assault while he was pursuing an appeal of the judgment of his conviction constitutes an error of law because such revocation punished him for exercising his privilege against self-incrimination guaranteed to him by the Fifth Amendment to the United States Constitution and article I, section 8(1) of the Wisconsin Constitution.

¶ 8. Tate further argued that the ALJ made numerous findings that were not supported by the record and were the product of an arbitrary and discriminatory decision-making process. Finally, Tate argued that his proposal for an alternative to revocation should have been adopted and implemented by the DOC to avoid punishing Tate for exercising his Fifth Amendment privilege.

¶ 9. On March 28, 2000, the circuit court issued a decision which denied Tate's petition for certiorari and affirmed the decisions of the ALJ and Schwarz. Tate appeals this decision.

Standard of Review

¶ 10. On review of an administrative agency's decision, this court owes no deference to the decision of the circuit court. Rather, this court reviews the decision of the administrative agency. Doersching v. State Funeral Dirs. & Embalmers Examining Bd., 138 Wis. 2d 312, 322, 405 N.W.2d 781 (Ct. App. 1987). Our review of a probation revocation determination is limited to the following inquiries: (1) whether the agency kept within its jurisdiction; (2) whether the agency acted according to law; (3) whether the agency's actions were arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that the agency might reasonably make the order or determination in question. Von Arx v. Schwarz, 185 Wis. 2d 645, 655, 517 N.W.2d 540 (Ct. App. 1994). Whether the agency acted according to law is a question of law that is reviewed de novo. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 629, 579 N.W.2d 698 (1998). Appellate review of a circuit court's certiorari decision is de novo. State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 340, 576 N.W.2d 84 (Ct. App. 1998). Whether a condition of probation violates a defendant's constitutional rights is a question of law which we review de novo. State v. Miller, 175 Wis. 2d 204, 208, 499 N.W.2d 215 (Ct. App. 1993).

Analysis

¶ 11. The issue here is whether a probationer with a pending direct appeal can be revoked for failing to admit the details of the crime for which he or she was convicted and placed on probation. We hold that a probationer with an active direct appeal on the merits cannot be revoked for refusing to admit to the crime. We further note that this does not work a hardship because, at most, treatment would be delayed until the direct appeal is disposed of and, if the term of probation is expiring, the term could be extended until treatment is completed. Certainly the circuit court's order of participation in treatment must be given effect; however, a delay until the disposal of the appeal will not lessen the authority of the circuit court.

¶ 12. The Fifth Amendment guarantees that a defendant may refuse to answer questions "where the answers might incriminate him in future criminal proceedings." Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (citation omitted). Where a realistic threat of incrimination in a separate criminal proceeding does exist, a probationer can invoke his or her Fifth Amendment privilege. We believe that it is important that the trial bench and criminal bar be made aware that there is a Fifth Amendment right which survives conviction and is very much alive and active while a direct appeal is pending. Thus, while we agree that a convicted sex offender with a pending appeal should have appropriate treatment, the remedies ordered must be fashioned to ensure that these Fifth Amendment rights are protected.

¶ 13. Tate's direct appeal of his criminal conviction was pending. The DOC, following a circuit court order, placed Tate in sex offender treatment counseling. As part of this treatment, Tate was expected to admit to the sexual assaults of his stepdaughter. He did not want to admit guilt because he feared that any admissions might be used against him if he won a new trial. Tate asserted his Fifth Amendment rights in petitioning the circuit court for a delay in his sexual offender treatment while his appeal was pending. The circuit court denied this motion.

¶ 14. At this point, Tate's obligation, if he wanted to preserve his rights, was to appeal to this court. He failed to do so. Therefore, we affirm, holding that there is waiver. We emphasize that the appropriate vehicle to seek a remedy is a motion to the circuit court to amend the conditions of probation before there is a revocation hearing. A writ of certiorari, coming after a probation revocation hearing, will result in waiver of a challenge to probation conditions.

¶ 15. While we affirm based on the narrow grounds of waiver, we emphasize that the Fifth Amendment protects Tate from being forced to self-incriminate. The State argues that our affirmance should be based on other grounds. The State would have us believe that Tate is in the same position as the probationer in State v. Carrizales, 191 Wis. 2d 85, 528 N.W.2d 29 (Ct. App. 1995). We disagree. In Carrizales, the probationer was charged with two counts of second-degree sexual assault. Id. at 91. Carrizales entered into a plea agreement and part of that agreement stated that the sentence recommendation would include "counseling as deemed necessary by agent." Id. The circuit court withheld Carrizales's sentence and placed him on probation for a period of three years. Id. As a condition of probation, Carrizales was to receive "any counseling as deemed appropriate by [his] probation agent." Id. at 91-92. For some time, Carrizales complied with his probation conditions. Id. at 92. However, after about one and one-half years, Carrizales was terminated from treatment because he refused to admit that he committed the sexual assault. Id. At this point, Carrizales filed a Petition for Review of Sentence and for a Temporary Injunction asking the circuit court to prohibit the DOC from revoking his probation for his refusal to admit guilt. Id. Carrizales argued that the DOC had added a specific condition of probation not ordered by the circuit court and that his refusal to admit guilt resulted in the imposition of a penalty and violated his Fifth Amendment right against self-incrimination. Id. We held that Carrizales had no right against self-incrimination with regard to admitting the facts surrounding this conviction. Id. at 97.

¶ 16. Carrizales is factually distinguishable. It is true that both Tate and Carrizales argued that the conditions of probation violated their Fifth Amendment right against self-incrimination. However, Carrizales did not have a direct appeal pending. Tate did. While Carrizales may have faced a loss of liberty because of his refusal to comply with his conditions of probation, this is the bargain to which he agreed. Id. at 96. If his probation was revoked and Carrizales was sentenced, the circuit court could not base its sentence exclusively upon Carrizales's refusal to admit guilt.. Id. at 97. Unlike Tate, Carrizales was not at risk of self-incrimination. Here, Tate's admissions could be used against him in a subsequent criminal proceeding.

¶ 17. The State disputes this and argues that even though Tate may win a new trial, he faced no real threat of any admissions being used against him at that trial because he was provided with a grant of immunity under State v. Evans, 77 Wis. 2d 225, 235, 252 N.W.2d 664 (1977). Again, we disagree. Evans is distinguishable on the facts as well. Evans holds that admissions to a probation or parole agent are inadmissible against a probationer during subsequent proceedings except for purposes of impeachment or rebuttal. Id. at 235-36. At issue here is whether admissions to a treatment counselor and others in group counseling can be used against a probationer in a subsequent criminal proceeding.

¶ 18. In short, a new trial is a subsequent criminal proceeding. Our supreme court has held that if an appeal is pending on the very case in which a probationer is asked to make an admission, it is a legitimate fear that an admission may later be used against him or her if awarded a new trial. Marks, 194 Wis. 2d at 92. Tate had (and continues to have) a direct appeal pending. If Tate wins a new trial, there is nothing that would stop the State from using any admission Tate made during treatment against him.

By the Court. — Order affirmed.

      A11 references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       On November 12, 1999, Tate appealed his judgment of conviction. That appeal, No. 99-2948-CR, was placed on hold pending a supreme court decision in No. 99-2968-CR, State v. Johnson, a certification from this court. The issue is whether State v. Molitor, 210 Wis. 2d 415, 565 N.W.2d 248 (Ct. App. 1997), which holds that a jury need only unanimously agree that three or more sexual assaults occurred to constitute a "continuing course of conduct" for conviction of repeated sexual assaults of a child contrary to WlS. STAT. § 948.025, is still viable in light of Richardson v. United States, 526 U.S. 813 (1999), which holds that a jury must unanimously agree on the specific drug violations comprising a "continuing criminal enterprise" under 21 U.S.C. § 848.
      On May 30, 2001, the supreme court issued its decision on 99-2968-CR, State v. Johnson, affirming the circuit court order denying Johnson's motion for a new trial. The supreme court held that under the state and federal constitutional analyses of Molitor, Richardson, and Schad v. Arizona, 501 U.S. 624 (1991), Wis Stat. § 948.025 does not violate due process or the right to a unanimous verdict.

       While the probation revocation proceedings were pending, Tate brought a postconviction motion before the trial court on June 28, 1999. In the motion, he asserted that aggregating a "large unspecified number of sexual assaults" into one count of violating WlS. Stat. § 948.025 was a constitutional error requiring a new trial. In the alternative, he contended that his trial counsel was ineffective. The circuit court denied Tate's postcon-viction motion in a written decision dated August 31,1999.

       The additional grounds that Tate has cited on appeal need not be discussed because if a decision on another point disposes of the appeal, we will not decide other issues raised. Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).


author: SNYDER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Media DeLao, Defendant-Appellant.
    Court of Appeals

      No. 00-1638-CR.

      Submitted on briefs March 21, 2001.

    Decided May 2, 2001.

    2001 WI App 132
    (Also reported in 629 N.W.2d 825.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven P. Weiss, assistant state public defender, of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, Anderson and Snyder, JJ.

       Petition to review granted.

   SNYDER, J.

¶ 1. Media DeLao appeals from a judgment of conviction for obstructing a police officer, possession of a short-barreled shotgun and harboring/aiding a felon, and from an order denying her motion for postconviction relief. DeLao makes three arguments in favor of her appeal: (1) the State should not have been allowed to amend the information after the close of evidence; (2) the State violated discovery rules by failing to provide DeLao with her previous statements and should not have been allowed to impeach her with said statements; and (3) the jury should not have been allowed to discontinue deliberations, return home for the evening and return the next day without going on the record. We agree that DeLao's statements should not have been used to impeach her trial testimony, and we reverse the judgment and the order on that basis.

FACTS

¶ 2. On June 9, 1999, a criminal complaint was filed charging DeLao with five crimes: obstructing an officer, contrary to Wis. Stat. § 946.41(1) (1999-2000); harboring/aiding a felon, contrary to WlS. STAT. § 946.47(l)(b); two counts of possession of a short-barreled shotgun, contrary to Wis. Stat. § 941.28(2); and possession of drug paraphernalia, contrary to Wis. Stat. § 961.573(1). These charges arose from an incident at DeLao's house on June 7, 1999. While at DeLao's house, Desmond Stalsberg, DeLao's boyfriend, got into a fight with another man, John Sabala, during which Stalsberg shot Sabala in the face.

¶ 3. The charges against DeLao were the result of her behavior after the shooting. The complaint alleged that DeLao lied to the police about her presence during the shooting, misled the police about Stalsberg's whereabouts, disposed of shotgun cartridges and cleaned up blood at the crime scene. In addition, during a search of her home, police found two short-barreled weapons and a crack pipe.

¶ 4. On June 14, 1999, after a preliminary hearing, DeLao was bound over for trial on each of the felony charges. That same day, the State filed an information containing charges identical to those in the complaint.

¶ 5. Pretrial, DeLao filed a discovery demand, specifically demanding that the State provide her with written summaries of any "oral, written or recorded statements" she made, pursuant to WlS. STAT. § 971.23(l)(b).

¶ 6. A jury trial commenced on Tuesday, July 27, 1999. During opening statements, DeLao's attorney announced that DeLao would take the stand and testify on her own behalf. On the second day of trial, after the State had rested, Assistant District Attorney Sharon Riek advised the trial court that she had in her possession statements made by DeLao, previously undisclosed to the defense; Riek intended to use these statements to impeach DeLao if she testified. Riek stated that the State's primary investigator in this shooting incident, Douglas Chaussee of the Mount Pleasant Police Department, had just that day made her aware of these statements. After Chaussee testified and the State rested its case, Chaussee informed Riek about statements DeLao had made to Detective James Prioletta of the City of Racine Police Department. At Chaussee's recommendation, Prioletta interviewed DeLao on June 29, 1999, about an unrelated crime involving Stalsberg, after DeLao had been arrested and was in jail; Prioletta then told Chaussee about DeLao's statements. Chaussee testified that he learned about the statements prior to trial but did not share this information with Riek until after he had testified and the State had presented its case.

¶ 7. DeLao objected to the use of these statements, arguing that the State was in violation of discovery rules. Despite these objections, the trial court ruled that if DeLao testified, the State could use the statements for impeachment purposes. DeLao testified on her own behalf, after which the defense rested; Pri-oletta was then called as a witness to impeach DeLao's testimony.

¶ 8. After the close of evidence, during the final jury instruction conference, the State asked to file an amended information, adding a charge of harboring/aiding a felon, contrary to Wis. Stat. § 946.47(l)(a), in addition to the original harboring charge based upon § 946.47(l)(b). Despite DeLao's objections, the trial court allowed the State to amend the information.

¶ 9. In the morning on the third day of trial, Thursday, July 29,1999, the attorneys gave their closing arguments, the trial court instructed the jury, and the jury began its deliberations. The next entry in the record is the jury's verdict on Friday July 30,1999. The minutes sheet for July 29, 1999, contains a notation that the jury was excused from deliberations and allowed to return home at 4:50 p.m. that day. However, this break in deliberations was not memorialized in the record. In addition, there is no record of the jury's return to deliberations on Friday morning, July 30, 1999. The transcript begins with the taking of the verdicts, which appears to have happened at 10:45 a.m.

¶ 10. The record further indicates, by virtue of the verdict forms, that the jury reached verdicts on four of the six counts during the first day of deliberations. On July 29, 1999, the first day of jury deliberations, DeLao was found guilty of obstructing and possession of a short-barreled shotgun; she was found not guilty of the original count of harboring/aiding a felon and not guilty of the other count of possession of a short-barreled shotgun. On July 30,1999, the second day of jury deliberations, DeLao was found guilty of the amended harboring/aiding a felon charge and not guilty of possession of drug paraphernalia.

¶ 11. DeLao was sentenced to one year and one day in prison on the harboring/aiding a felon charge; the trial court also imposed and stayed maximum sentences on the obstructing and short-barreled shotgun charge and placed DeLao on three years' consecutive probation.

¶ 12. DeLao filed a motion for postconviction relief, which was heard and denied. She appeals her conviction and the denial of her postconviction motion.

DISCUSSION

¶ 13. DeLao argues that the trial court erred in three respects: (1) in allowing the State to amend the information after the close of evidence during the final jury instruction conference; (2) in allowing the State to impeach DeLao with statements that were not disclosed to the defense during discovery; and (3) in allowing the jury to stop deliberations, go home for the evening and resume deliberations the next morning without ever going on the record. Because we agree with DeLao that the trial court erred in allowing the State to impeach her with statements previously undisclosed to the defense, we need not address her remaining arguments.

¶ 14. This appeal concerns the proper application of discovery statute Wis. Stat. § 971.23. The State argues that no § 971.23 discovery violation occurred here. In the alternative, the State argues, if there was a discovery violation, there was good cause for the violation. We disagree with both of these assertions.

¶ 15. On June 30, 1999, DeLao filed a discovery demand asking the State to:

1. Furnish the defendant a copy of any and all oral and written or recorded statements made by the defendant concerning the alleged crime, which are within the possession, custody or control of the state
2. Furnish the defendant with a written summary of any oral, written or recorded statements of the defendant, but not limited to those statements which the state intends to use in the course of the trial, along with the names and addresses of all witnesses to the oral, written or recorded statements. ...
19. Any and all evidence or materials not specifically or generally set forth herein which may reasonably be said to be in any way germane to or connected with the above entitled action within the letter and spirit of the laws pertaining to disclosure and discovery.

Wisconsin Stat. § 971.23 addresses discovery and states, in relevant part:

(1) What a district attorney must disclose to a DEFENDANT. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:
(a) Any written or recorded statement concerning the alleged crime made by the defendant, including the testimony of the defendant in a secret proceeding under s. 968.26 or before a grand jury, and the names of witnesses to the defendant's written statements.
(b) A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial and the names of witnesses to the defendant's oral statements.
(7) CONTINUING0 DUTY TO DISCLOSE. If, subsequent to compliance with a requirement of this section, and prior to or during trial, a party discovers additional material or the names of additional witnesses requested which are subject to discovery, inspection or production under this section, the party shall promptly notify the other party of the existence of the additional material or names.

¶ 16. The State argues that because the district attorney was unaware of these statements, the statements were not ones that the district attorney planned to use in the course of trial and thus were not discoverable under Wis. Stat. § 971.23(l)(b). We decline to adopt the State's narrow characterization of § 971.23 in this instance.

¶ 17. DeLao requested, pursuant to Wis. Stat. § 971.23(l)(b), "a written summary of any oral, written or recorded statements of the defendant, but not limited to those statements which the state intends to use in the course of the trial." (Emphasis added.) Thus, DeLao asked for all statements, not just the ones the State intended to use at trial. The statements in question fell within the purview of her discovery demand. The State made no objection to DeLao's discovery demand as overbroad or beyond the scope of § 971.23(l)(b).

¶ 18. Wisconsin courts have held that the prosecutorial unit, which includes both the district attorney's and law enforcement offices, must be viewed as one unit for the purposes of the discovery process. Jones v. State, 69 Wis. 2d 337, 348-49, 230 N.W.2d 677 (1975). A prosecutor may not avoid the pursuit of any evidence, and, in fact, it is the prosecutor's duty to acquire all relevant evidence. Id. "The test of whether evidence should be disclosed is not whether in fact the prosecutor knows of its existence but, rather, whether by the exercise of due diligence he [or she] should have discovered it." Id. at 349 (citation omitted).

¶ 19. The prosecution is obligated "to obtain all evidence in the possession of investigative agencies of the state." Id. (citation omitted). This obligation extends to material and information in the possession or control of members of the prosecution's staff and in the possession "of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported" to his or her office. Id. (citation omitted).

¶ 20. This prosecution obligation was confirmed in State v. Martinez, 166 Wis. 2d 250, 260, 479 N.W.2d 224 (Ct. App. 1991), where we held that for the purposes of the criminal discovery statutes, we view an investigative agency which holds relevant evidence as an arm of the prosecution. In many criminal cases, the evidence is collected, contained and controlled by the investigating police agency. Id. Both the courts and district attorneys' offices entrust the custody and control of such evidence to the police. Id.

¶ 21. Here, the statements in question were made on June 29,1999, prior to trial, to Prioletta of the Racine police department. Prioletta interviewed DeLao at the recommendation of Chaussee. Chaussee's name was mentioned extensively throughout Prioletta's report. As the district attorney stated when asking that Chaussee be exempted from the witness sequestration order, Chaussee was "the central investigator that ties all of the ends together." Chaussee knew of Prioletta's visit to DeLao in jail and was aware of DeLao's statements prior to trial.

¶ 22. The trial court's reasoning, that no discovery violation occurred because the district attorney was unaware of the statements, would exclude the statements in question only if the district attorney's office withheld them, but not the primary investigative agency. As we stated in Martinez, "ttjhis distinction is neither reasonable nor valid." Id. Riek and Chaussee together constitute the State in this matter. Thus, a discovery violation occurred when the State failed to provide DeLao with the statements in question.

¶ 23. Wisconsin Stat. § 971.23(7m) requires the trial court to exclude evidence that is not produced pursuant to a discovery demand unless "good cause is shown for failure to comply." This burden clearly rests with the State. Martinez, 166 Wis. 2d at 257. Whether a party has satisfied its burden is a question of law which we review without giving deference to the trial court's conclusion. Id.

¶ 24. Wisconsin Stat. § 971.23(7) requires two separate determinations by the trial court. State v. Wild, 146 Wis. 2d 18, 27, 429 N.W.2d 105 (Ct. App. 1988). First, the court must determine whether the noncomplying party (here, the State) has shown good cause for the failure to comply. Id. If good cause is not shown, the statute is mandatory — the evidence shall be excluded. Id.

¶ 25. One of the State's primary arguments that good cause exists for the discovery violation is that DeLao's statements were made during an investigation of Stalsberg, not DeLao. We disagree with this characterization of the facts. The events involving Stalsberg and DeLao were hopelessly intertwined. DeLao was not a mere citizen witness. She was a suspect. While the interview may have principally targeted Stalsberg, DeLao gave statements against her interest, insofar as the charges against her were concerned.

¶ 26. The State also argues that it acted in good faith because Chaussee told Riek about DeLao's statements as soon as he realized they might be relevant to the case, and Riek provided DeLao and the court with the statements as soon as she became aware of their existence. The State misunderstands the standard of Wis. Stat. § 971.23(7m); the State's good faith does not amount to good cause. As we stated in Martinez, negligence, or even lack of bad faith, does not constitute good cause as a matter of law. Martinez, 166 Wis. 2d at 259.

¶ 27. Chaussee knew of DeLao's statements prior to trial, yet failed to inform the district attorney because he did not think the statements were relevant. It is not Chaussee's job to determine the relevancy of evidence. Again, we view Chaussee and Riek as one prosecutorial unit, imputing the knowledge of one to the other. The State offers no acceptable justification for the withholding of the statements other than it acted in good faith. This alone is insufficient to meet its burden of demonstrating good cause under Wis. Stat. § 971.23(7m).

¶ 28. DeLao was caught on the horns of a dilemma, placed in that position by the State — either she must testify and accept the consequences of impeachment, or break her promise to the jury that she would testify and accept the consequences of her broken promise. No judicial remedy, including additional time to inspect the statements and permission to voir dire Prioletta, could eradicate this dilemma. No good cause existed for the State's withholding of the evidence and the only appropriate remedy was its exclusion.

CONCLUSION

¶ 29. The State violated discovery rules by failing to provide DeLao with the statements she made to Prioletta. The violation was not justified by good cause. The proper remedy was the exclusion of the statements and the trial court erred in allowing the State to use these statements for impeachment purposes. The judgment of conviction and the order are reversed and this matter is remanded for a new trial.

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

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