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COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                                          98-3131-CR
                                                                                                                                                 † Petition for Review Filed
Complete Title
of Case:
                                                                   STATE OF WISCONSIN,
                                                                   † PLAINTIFF-RESPONDENT,
                                                                   V.
                                                                   MICHAEL WILSON,
                                                                   DEFENDANT-APPELLANT.
Opinion Filed:                                                     June 2, 1999
Submitted on Briefs:                                               April 5, 1999
JUDGES:                                                            Cane, C.J., Myse, P.J., and Hoover, J.
Concurred:
Dissented:
Appellant
ATTORNEYS:                                                         On behalf of the defendant-appellant, the cause was submitted on the brief
of Martha K. Askins, assistant state public defender of Madison.
Respondent
ATTORNEYS:                                                         On behalf of the plaintiff-respondent, the cause was submitted on the brief
                                                                   of James E. Doyle, attorney general, and Stephen W. Kleinmaier, assistant
attorney general.




COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
June 2, 1999
A party may file with the Supreme Court a
                                                                                      Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                      Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                      of Wisconsin              STATS.
No.                                                                                   98-3131-CR
                                                                                      STATE OF WISCONSIN        IN COURT OF APPEALS
STATE OF WISCONSIN,
                                                                                      PLAINTIFF-RESPONDENT,
V.
MICHAEL WILSON,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and  an order  of  the circuit court for
Langlade County:   JAMES P. JANSEN, Judge.   Reversed and cause remanded
with directions.
Before Cane, C.J., Myse, P.J., and Hoover, J.
MYSE, P.J.    Michael Wilson appeals a judgment of conviction for
unlawful possession of THC, contrary to § 961.41(3g)(e), STATS., second offense.
He also appeals an order denying his motion to suppress evidence seized before
his arrest and a statement made following his arrest.   Wilson claims the officer’s




No. 98-3131-CR
unlawful invasion of his home’s curtilage and unlawful search, after detecting the
odor of burning marijuana emanating from the basement, tainted both the seized
evidence and his subsequent statements.   Because we conclude that officer Kevin
Ison  unlawfully  penetrated  the  curtilage  of  Wilson’s  home  and  unlawfully
searched him, the evidence obtained from the unlawful search must be suppressed.
Because we further conclude that Wilson’s statement, made after his arrest, was
related to the illegally seized evidence, it must also be suppressed.   Accordingly,
we reverse.   We vacate the judgment of conviction and remand for a new trial with
directions to suppress the evidence Ison obtained against Wilson.
Officer  Kevin  Ison  of  the  Antigo  Police  Department  went  to
Wilson’s home looking for a female juvenile, S.J., for whom he had an arrest
warrant.   Ison believed S.J. might be at the Wilson home because Ison knew that
they had been associated in the past.   As Ison approached the Wilson home, he
observed children playing in the backyard.   Ison had recently visited the Wilson
home.   Although Wilson and Kristina Gormley, Wilson’s girlfriend, claim they
instructed Ison to use  the front door henceforth, Ison nevertheless parked his
vehicle in the driveway adjacent to the home and walked to the backyard.   He
asked a young girl whether she had seen S.J., and when she denied having seen
S.J. that day, Ison asked the girl if her parents were home.   The girl then proceeded
to the back door of the house, opened the door and called out,  “[t]he cops are
here.”
Ison followed the child to the back door and claimed to be able to
smell the odor of burning marijuana from just outside the house.   Ison entered the
doorway; when Kristina opened the kitchen door, she found Ison standing on a
landing within the threshold of the back entrance of the home. From this inside
landing, the kitchen is accessed by walking up a staircase and the basement is
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No. 98-3131-CR
accessed by walking down a staircase.   Ison heard several people in the basement
and  observed  smoke  and  smelled  the  odor  of  marijuana  emanating  from  the
basement.   Almost immediately, Wilson approached Ison from the basement and
Ison inquired about S.J.’s whereabouts.   Because Ison had called for backup after
detecting the marijuana odor, he decided to delay investigating the basement until
the backup arrived.
After inquiring about S.J.’s whereabouts, Ison asked Wilson about
the marijuana odor. Wilson responded by stating he had to go to the bathroom.
Ison advised him that he could not go until Ison searched his person.   Wilson
reiterated his desire to go to the bathroom immediately, and Ison again advised
Wilson that he could  not leave  without Ison conducting a search.    Ison then
performed a pat-down search and found an object in Wilson’s pocket that he could
not immediately identify.   When he withdrew the object from Wilson’s pocket, he
found a plastic baggie containing what appeared to be marijuana.   Ison then placed
Wilson under arrest. When the backup officers arrived, Ison and at least one other
officer searched the basement.   They found other people in the basement, but they
did not find other evidence of illegal conduct.
Wilson was transported to the police station.   While at the station,
Wilson  gave  a  statement  after  being  advised  of  his  Miranda1  rights.  In  his
statement, Wilson acknowledged that he was in possession of marijuana.
Wilson  was charged  with one  count of  possession of  marijuana,
second offense.   He moved to suppress the evidence seized from his person and
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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No. 98-3131-CR
his statements made following his arrest.   The trial court denied the motion to
suppress based upon its conclusion that when Ison smelled the burning marijuana,
he was not within the home’s curtilage.   According to the court, Ison’s presence on
the  home’s  back  stoop,  outside  the  back  door,  was  not  subject  to  Fourth
Amendment protection. The court then addressed whether Ison unlawfully entered
the home without a search warrant.   The court found that Ison had “progressed to
the threshold or just slightly inside of the threshold of the porch” and determined
that these facts constituted an unlawful entry.   The court concluded, however, that
the intrusion into the home was so minor as to not justify suppressing the seized
evidence.
Following the trial court’s denial of Wilson’s suppression motion,
Wilson  pled  guilty  to  possession  of  marijuana,  second  offense.  The  court
sentenced him to sixty days in jail, six months license revocation and imposed
costs and fees.  This appeal ensued.
In reviewing the denial of a suppression motion, this court upholds
the  trial  court’s  findings  of  fact  unless  they  are  clearly  erroneous.    Section
805.17(2), STATS.; see also State v. Eckert, 203 Wis.2d 497, 518, 553 N.W.2d
539, 547 (Ct. App. 1996).   However, the application of constitutional principles to
the facts as found is a question of law this court decides independently.   State v.
Patricia A.P., 195 Wis.2d 855, 862, 537 N.W.2d 47, 49-50 (Ct. App. 1995).
Here, because the fact are essentially undisputed, we apply the trial
court’s  factual  findings  to  the  constitutional  principles  underlying  claims  of
unlawful search and seizure in violation of United States Constitution’s Fourth
Amendment and the Wisconsin Constitution, art. I, § 2.  See State v. Gaulrapp,
207 Wis.2d 598, 603 n.2, 558 N.W.2d 696, 698 n.2 (Ct. App. 1996) (Wisconsin
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No. 98-3131-CR
Supreme court follows United States Supreme Court’s interpretation of Fourth
Amendment’s  search  and  seizure  provision).  When  a  search  is  conducted  in
violation  of  the  constitutional  prohibitions  against  unreasonable  search  and
seizure, the evidence seized must be suppressed.   State v. Phillips, 218 Wis.2d
180, 204-05, 577 N.W.2d 794, 805 (1998).   Statements subsequently made based
upon such unlawfully obtained evidence are also inadmissible unless they are
sufficiently attenuated so as to be independently admissible.  Id.
We  begin  by  considering  whether  the  evidence  seized  must  be
suppressed because it was discovered after Ison unlawfully invaded the home’s
curtilage.   Wilson contends that Ison was within the home’s curtilage, which is
extended Fourth Amendment protection, when he stood near the back door and
smelled marijuana.   The State argues that this area does not qualify as curtilage.
Alternatively, the State asserts that even if it is curtilage, the place where Ison
stood is not entitled to the same protection afforded the house itself.2
Curtilage is the area immediately adjacent to the home to which a
person extends the intimate activities associated with the privacies of life.   Oliver
v. United States, 466 U.S. 170, 180 (1984).   The extent of a home’s curtilage is
“determined  by factors  that  bear  upon  whether  an  individual  reasonably may
expect that the area in question should be treated as the home itself.”   United
States v. Dunn,  480 U.S.  294,  300  (1987).    The factors to be considered are:
(1) the  proximity of  the  area  to the  home;  (2)  whether  the  area  is within  an
enclosure surrounding the home; (3) the nature and uses to which the area is put;
2 Because the State fails to fully develop this argument, we do not consider it.   State v.
West, 179 Wis.2d 182, 195-96, 507 N.W.2d 343, 349 (Ct. App. 1993).
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No. 98-3131-CR
and  (4)  the  steps  the  resident  takes  to  protect  the  area  from  observation  by
passersby.   Id. at 301.   These factors are not to be mechanically applied; rather,
they are useful analytical tools.   Id.; see also State v. Walker, 154 Wis.2d 158,
183-84, 453 N.W.2d 127, 137-38 (1990).
The Fourth Amendment protects the home and the area around it, to
the extent that an individual has a reasonable expectation of privacy.   Dunn, 480
U.S. at 300-01.   This is the central consideration of the Dunn inquiry.   Id.   In
determining where Ison was located, the trial court found that Ison “could smell
the marijuana from several feet away from the home and smelled it before the door
was even open.”   Specifically, Ison testified that he was “[b]y the entrance of the
door on the pavement, probably two feet away” or far enough so that the young
girl  could  open  the  door.    Additionally,  Ison  testified  that  he  was  getting
suspicious when he and the girl walked up to the back door.    Here, Ison was
standing on the pavement immediately adjoining the back door entrance. This
close proximity supports a finding that Ison was within the home’s curtilage, and
the State concedes this factor.
In addition to the proximity factor, the nature and use of Wilson’s
property demonstrates that the area where Ison was standing was one of intimate
activity  and  that  there  was  a  reasonable  expectation  of  privacy.    The  State
concedes that a backyard area where children are playing is associated with the
privacies of life.   In addition, the back door of the home is intimately related to the
home itself and to home activities because it provided access and egress to the
backyard and garage.
While  there  were  no  apparent  enclosures  surrounding  the  home,
pictures indicate that the back door of Wilson’s home cannot be seen from the
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No. 98-3131-CR
front of the house or from the street or sidewalk.   Ison could only see the back
door after walking the length of the driveway into the backyard.   While the rear
door could perhaps be seen from other areas outside Wilson’s property, this in
itself does not mean that there is no expectation of privacy.   Whether an area is
protected or can be observed by others is but one indicia whether the area is
intimately associated with the privacies of life.     Dunn, 480 U.S. at 300.   In a
smaller urban community, it is not unusual for others to be able to see into the rear
yard of a house.   Curtilage is not to be defeated merely because the subject area
may be observed by some.   Fourth Amendment protection would be reduced to
only the home itself and any area other than the home would be subject to search
without warrant or probable cause.    We have said that  “[t]he emphasis on the
[Fourth Amendment] inquiry … is not the ability of third parties to gain access or
view the property but rather the manner in which the possesser holds the property
out to the public.”   State v. Grawien, 123 Wis.2d 428, 436-37, 367 N.W.2d 816,
820 (Ct. App. 1985).
We  also  consider  steps  Wilson  took  to  protect  the  area  from
observation.   Wilson claims that on a previous occasion he asked Ison to use the
front door if he ever came to the home again.   Despite those instructions, Ison
entered the area immediately adjacent to the home without a warrant and without
any probable cause to believe such an intrusion was necessary.   Ison went to the
back of Wilson’s home to investigate whether S.J. was there.   Before approaching
the back door, he had determined that S.J. was not among the children playing in
the backyard and had been informed that S.J. had not been seen that day.   Ison
made no effort to go to the front door to speak to Wilson.   Having determined that
S.J. was not present, Ison was without legal authority to move into the backyard
and stand at the rear door’s threshold merely because a child, at his request,
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No. 98-3131-CR
advised the adults that the police wished to speak to them.   There are no facts
indicating that Ison was invited to the location where he detected the marijuana
odor.
These factors support the conclusion that the location where Ison
was standing when he detected the marijuana odor was part of or sufficiently close
to be considered part of the home itself and was intimately related to Wilson’s
home activities.   We conclude that this area immediately outside the home’s back
door entrance was part of the home’s curtilage and therefore subject to Fourth
Amendment protection.   Ison’s intrusion into this area at the rear of the home was
without legal authority and consequently his discovery of the marijuana odor was
without legal justification.
Next,  we  consider  whether  Ison’s  search  of  Wilson’s  pocket
resulting in the discovery of a baggie containing marijuana was lawful because it
was incident to a lawful arrest.   We conclude that Ison’s search was unlawful.
Ison did not formally arrest Wilson until he discovered the plastic
bag of marijuana in Wilson’s pocket.   We conclude, however, that Wilson was
effectively arrested when Ison twice refused to allow him to leave to use the
bathroom.   The standard to determine the moment of arrest is whether a reasonable
person  in  the  defendant’s  position  would  have  considered  himself  to  be        “in
custody” given the degree of restraint under the circumstances.   State v. Swanson,
164  Wis.2d  437,  446-47,  475 N.W.2d  148,  152  (1991).    Under  this test, the
circumstances  of  the  situation  control,  including  what  the  police  officers
communicate by their words or actions.   See id. at 447, 475 N.W.2d at 152.   A
reasonable  person  in  Wilson’s  position  would  believe  he  had  been  placed  in
custody after twice being refused the opportunity to use the bathroom until frisked.
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No. 98-3131-CR
Because the degree of restraint Ison exerted over Wilson is sufficient to constitute
an arrest, we evaluate the legality of that arrest based upon the information Ison
knew when he precluded Wilson from leaving to use the bathroom.
A warrantless arrest must be supported by probable cause.   United
States v. Navarro, 90 F.3d 1245, 1252 (7th Cir. 1996).   Probable cause to arrest
exists if the facts and circumstances known to the police officer would warrant a
reasonable  officer  to  conclude  that  the  defendant  has  committed  or  is  in  the
process of committing an offense.   State v. Drogsvold, 104 Wis.2d 247, 254, 311
N.W.2d 243, 247 (Ct. App. 1981).   The information available to the officer must
lead a reasonable officer to believe that “guilt is more than a possibility.”   Id. at
255, 311 N.W.2d at 247 (quotation omitted).
Ison lacked probable  cause to arrest Wilson when he refused to
allow Wilson to use the bathroom because at that time, Ison could not identify
Wilson as the source of the marijuana odor emanating from the basement. The
Wisconsin Supreme Court recently held that “the odor of a controlled substance
provides probable cause to arrest when the odor is unmistakable and may be
linked to a specific person or persons because of the circumstances in which the
odor is discovered or because other evidence links the odor to the person or
persons.”   State v. Secrist, 224 Wis.2d 201, 204, 589 N.W.2d 387, 389 (1999).
Although Ison had identified the odor of marijuana, he acknowledged that several
people could be heard in the basement.   There was no greater basis to believe that
Wilson was the source of the odor than any of the other individuals present in the
basement.   Applying Secrist, because there was no way Ison could identify the
source of the odor from among those individuals in the basement, he was without
probable  cause  to  arrest  Wilson  when  Wilson  was  detained.    Consequently,
because Ison was unlawfully arrested prior to the search, the search cannot be
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No. 98-3131-CR
justified as contemporaneous to the arrest.   Swanson, 164 Wis.2d at 450-51, 475
N.W.2d at 155.
Next, we consider whether Wilson consented to the search.   When
the State attempts to justify a warrantless search based on consent, the Fourth
Amendment requires that the State demonstrate that the consent was voluntarily
given.   Phillips, 218 Wis.2d at 197, 577 N.W.2d at 802.   The test for voluntariness
is  whether,  considering  the  totality  of  the  circumstances  and  the  defendant’s
characteristics, consent to search was given in the absence of duress or coercion,
either express or implied.   Id.   No single criterion controls the decision.  Id.
Depriving a defendant of necessities is an indicia that consent is
involuntary.   Phillips, 218 Wis.2d at 199-200, 577 N.W.2d at 803.3   The absence
of more aggravating conditions such as threats, physical intimidation or personal
characteristics making Wilson susceptible to improper influence is insufficient for
us to conclude that Wilson voluntarily consented to the search of his person.
Phillips, 218 Wis.2d at 212-13, 577 N.W.2d at 808. Considering the totality of
circumstances  present  here,  Wilson  had  no  choice  but  to  allow  the  search.
Acquiescence to an unlawful assertion of police authority is not equivalent to
consent.   Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968).   Therefore, we
conclude Wilson did not consent to the search.   Because we conclude that the
search was unlawful, the fruits of the search must be suppressed.   See Wong Sun
v. United States, 371 U.S. 471, 488 (1963).
3 Ison could not have known when he denied Wilson the opportunity to use the bathroom
that Wilson would not use the bathroom after the search.
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No. 98-3131-CR
Because Ison unlawfully penetrated the curtilage of Wilson’s home
and  because  Ison  unlawfully searched  Wilson,  his  conduct  violated  state  and
federal prohibitions against unreasonable searches and seizures.    The evidence
seized must therefore be suppressed.   Id.
We   next consider the admissibility of Wilson’s statement made after
he was arrested, transported to the police station and informed of his Miranda
rights.  The  State  does  not  argue  that  Wilson’s  statement  was  sufficiently
attenuated to be independently admissible.   We therefore do not address this issue
but  conclude  that  because  the  confession  was  related  to  the  illegally  seized
evidence, the inculpatory statement given to the police must also be suppressed.
Accordingly, the court’s order denying Wilson’s suppression motion
and the judgment of conviction are reversed.   We vacate the judgment and remand
for a new trial with directions to suppress the evidence Ison obtained against
Wilson.
By the Court.—Judgment and order reversed and cause remanded
with directions.
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