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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                               This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
July 3, 2012
A party may file with the Supreme Court a
Diane M. Fremgen                                                                                                                                              petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                                     Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                              and RULE 809.62.
                                                                                                                                                              Cir. Ct. No.   2010CM1610
Appeal No.                                                                                    2012AP223-CR
STATE OF WISCONSIN                                                                                                                                            IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
GREGORY J. HOLUB,
DEFENDANT-APPELLANT.
APPEAL  from  a  judgment  of  the  circuit  court  for  Washington
County:  JAMES K. MUEHLBAUER, Judge.   Affirmed.
¶1                                                                                            GUNDRUM, J.1      Gregory J. Holub appeals from a judgment of
conviction  for  possession  of  drug  paraphernalia,  WIS.  STAT.                            § 961.573(1).
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2009-10).
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.




No.   2012AP223-CR
Gregory2 contends the deputy who found the paraphernalia, along with marijuana,
exceeded the scope of the search warrant he executed when he searched the utility
room where the contraband was found, a room he accessed from a bathroom
attached to the bedroom specified in the warrant.   We conclude that the warrant
authorized the search of the utility room and therefore affirm.
¶2                                                                                     The  following  facts were  testified to by the  only witness at the
suppression  hearing  in  this  case,  Washington  County  Deputy  Sheriff  Eric
Essinger.   Essinger responded to the residence at 1766 County Highway A, in the
town of Farmington, for a “family trouble complaint” from Becky Holub.   Becky
told Essinger that she was in an argument with her daughter-in-law, Charveilla
Holub.   Becky owned the home, and her son Gregory and his wife Charveilla had
recently moved in with their three children.    Essinger and Becky went to the
basement bedroom on the west side of the house to discuss her complaint.   Becky
showed Essinger an electric heater that she was concerned was in an unsafe place,
at  which  point  Essinger  realized  that  he                                         “was  most  likely  not  in  Becky’s
bedroom.”   Essinger asked if they were in Charveilla’s bedroom, and when Becky
said they were, Essinger left the bedroom and continued the conversation with
Becky  in  Becky’s  bedroom  across  the  hall.    While  in  Charveilla’s  bedroom,
Essinger smelled marijuana, observed what appeared to be three burned ends of
marijuana cigarettes, and noticed a door to another room.
¶3                                                                                     Essinger subsequently talked to Charveilla about the circumstances
surrounding Becky’s complaint, as well as the odor of marijuana he had noticed in
2  Because we reference Gregory Holub, Charveilla Holub, and Becky Holub throughout
this decision, we will distinguish them by use of their first names.
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No.   2012AP223-CR
her bedroom.   Charveilla denied a request from Essinger for a consensual search
of her bedroom that she shared with Gregory.
¶4                                                                                    Essinger  obtained  a  search  warrant,  which  he  executed  at  the
residence.   When he searched Charveilla and Gregory’s bedroom, Essinger seized
the burned marijuana cigarettes, a digital scale and rolling papers from within the
bedroom itself.   He also detected an odor of marijuana, which became stronger as
he neared the open door he had noticed on his earlier visit.   The door led to a
bathroom, which Essinger entered.   While in the bathroom, he observed another
door which was open and led to a walk-in utility closet.    The marijuana odor
became stronger as he neared and entered the closet.   There was only one doorway
into the bathroom, which was from Gregory and Charveilla’s bedroom, and one
doorway into the utility closet, which was from the bathroom.   Thus, the only way
to access the bathroom and utility closet was through Gregory and Charveilla’s
bedroom.   Essinger found marijuana and drug paraphernalia in the utility closet.
¶5                                                                                    The State charged both Charveilla and Gregory with possession of
marijuana and drug paraphernalia.   Both moved to suppress the evidence seized
from the utility closet on the grounds that Essinger exceeded the scope of the
warrant in his execution of it.   The circuit court held a combined hearing on the
motions.
¶6                                                                                    Relying on State v. O’Brien, 214 Wis. 2d 328, 572 N.W.2d 870 (Ct.
App. 1997), aff’d, 223 Wis. 2d 303, 588 N.W.2d 8 (1999), the circuit court ruled
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No.   2012AP223-CR
that the search warrant authorized the search of not only the bedroom but also the
utility closet.   Gregory challenges this ruling on appeal.3
¶7                                                                                     On review, we uphold the circuit court’s findings of fact unless they
are clearly erroneous.    Id. at  335-36.    Whether a search and seizure satisfies
constitutional standards is a question of law we review de novo.   Id. at 336.   The
search warrant in the present case reads as follows:
WHEREAS, Eric Essinger has this day complained to
the said court upon oath and by affidavit that ... in and upon
certain premises in the Town of Farmingham ... occupied
by Charveilla Holub, commonly described as 1766 County
Highway A, and more particularly described as follows:
the west side basement bedroom of 1766 Highway A—a bi-
level single-family residence on the north side of Highway
A, with brown vertical wood siding, with dark brown trim,
and  the  number  “1766”  affixed  to  a  metal  stake  at  the
entrance to the driveway at  1766 Highway A,  Town of
Farmington,  Washington  County,  Wisconsin,  with  small
wooden deck located on the Southwest corner of the 2nd
floor of the residence, and a sliding glass patio door located
on the south wall of the lower level west bedroom, there are
now   located   and   concealed   certain   things,   to-wit:
tetrahydrocannabinols                                                                  (“THC”),    drug    paraphernalia,
contraband which are fruits of a crime, which were used in
the commission of a crime and/or which may constitute
evidence of a crime ... and prays that a search warrant be
issued to search said bedroom of said premises for said
property, including any locked boxes such as safes.
NOW,  THEREFORE,  in  the  name  of  the  State  of
Wisconsin you are commanded to within 5 days search the
said premises for said things, and if the same or any portion
thereof are found, to safely keep the same, and return this
warrant ... along with an inventory of any property taken
….   (Emphasis added.)
¶8                                                                                     The parties discuss O’Brien and other cases.   We need not address
those because we find the language of the warrant to be straightforward and in
3  Gregory does not challenge the validity of the warrant itself.
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No.   2012AP223-CR
need of little analysis.   The search actually authorized by the warrant, as identified
in its second paragraph, was not limited to the “said bedroom of said premises.”
Rather, the warrant more broadly authorized the search of “the said premises for
said things,” namely marijuana and drug paraphernalia.   The search authorization
did not limit the deputy’s search authority to just the bedroom, since  “the said
bedroom of said premises” identifies the bedroom as an area within the broader
premises, here the premises located at 1766 County Highway A.   The references to
the “west side basement bedroom of 1766 Highway A” and “the said bedroom of
said  premises”  in  the  warrant  do  act  to  more  specifically  identify  the  areas
Essinger  sought  to  search;  however,  the  actual  search  authorization  granted
broader authority to search “the said premises,” not just the bedroom.   The court
could  have  limited  the  search  authorization  in  the  second  paragraph  to  “said
bedroom of said premises,” but it did not.   No one disputes, nor could anyone
reasonably do so, that the utility closet searched by Essinger was part of  “said
premises” at  1766 County Highway A.    Thus, Essinger’s search of the utility
closet was within the scope of the warrant.
By the Court.—Judgment affirmed.
                                                                                           This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                  (b)4.
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