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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.
February 8, 2012
A party may file with the Supreme Court a
A. John Voelker                                                                                                                                             petition to review an adverse decision by the
Acting Clerk of Court of Appeals                                                                                                                            Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                            and RULE 809.62.
                                                                                                                                                            Cir. Ct. No.   2007CF474
Appeal No.                                                                             2010AP3080-CR
STATE OF WISCONSIN                                                                                                                                          IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ROBERT I. ROBINSON,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Racine County:
EMILY S. MUELLER, Judge.   Affirmed.
Before  Neubauer,  P.J.,  Reilly,  J.,  and  Neal  Nettesheim,  Reserve
Judge.
¶1                                                                                     PER  CURIAM.      Robert  I.  Robinson  appeals  from  a  judgment
convicting  him  of  thirty-eight  counts  of  possessing  child  pornography.    He
contends that the circuit court erred in denying his motion to suppress evidence




No.   2010AP3080-CR
gathered at his home.   Because we conclude that the police’s initial discovery of
the child pornography was authorized under the plain view exception to the Fourth
Amendment, we affirm.
¶2                                                                                         On April 23, 2007, Officer Christopher Paulson visited Robinson’s
home in response to an “unwanted party” complaint from a local church.   Paulson
was following up with Robinson to inform him that he was no longer welcome at
that church.   According to Paulson, such notification needed to be made in person
because  if  Robinson  were  to  return  to  the  church,  he  would  be  arrested  for
trespassing.
¶3                                                                                         Paulson first arrived at Robinson’s home in the afternoon of April
23.   As he approached the front door, he saw a note on it telling visitors “to go
around to the back and use that door, knock on that door.”   Paulson proceeded to
walk through the lawn to the back of the home, where he knocked and rang the
doorbell but received no response.   Paulson left his business card on the back door,
called and left a message on the answering machine, and then left.
¶4                                                                                         Six or seven hours later, Paulson again attempted to make contact
with Robinson at his home.   As he approached the front door, he saw the same
note  directing  visitors  to  the  back  of  the  home.    Paulson  proceeded  to  walk
through the lawn to the back of the home, where he knocked and rang the doorbell
but received no response.   He noticed, however, that his business card had been
removed.
¶5                                                                                         Paulson  returned  to  the  front  of  the  home  and  saw  through  the
unobstructed front window that the television was on and that someone was lying
under a blanket on a couch.   Paulson attempted to get that person’s attention by
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No.   2010AP3080-CR
knocking on the front door and directing his flashlight on the couch through the
front window.   His efforts were unsuccessful.
¶6                                                                                        Undeterred, Paulson walked to the unobstructed east window of the
home, which was situated next to the couch, to try to get the person’s attention.
While illuminating his flashlight on the person, Paulson could see on a table right
below the window what appeared to be a pornographic picture of an underage girl.
After seeing that image, Paulson shined his light on other portions of the room and
saw two large posters featuring what appeared to be two nude underage girls.
¶7                                                                                        Following  his  discovery,  Paulson  called  an  investigator  and
explained what he saw.   The investigator arrived with at least one other officer,
and  Paulson  directed  them  to  the  east  window  of  the  home  to  confirm  his
observations.   They did so, and that information led to police obtaining a warrant
to  search  Robinson’s  home.                                                             The  subsequent  search  yielded  numerous
photographs and downloaded images of child pornography.
¶8                                                                                        Before  trial,  Robinson  filed  a  motion  to  suppress  the  evidence
gathered  at  his  home.    Specifically,  he  complained  that  before  obtaining  the
warrant to search his home, Paulson entered the curtilage of Robinson’s home—an
illegal vantage point that allowed him to see inside—which in turn provided the
basis for the warrant.
¶9                                                                                        The  circuit  court  rejected  Robinson’s  argument,  concluding  that
Paulson  was  justified  in  being  where  he  was  when  he  made  his  discovery.
Accordingly, it denied Robinson’s motion under the plain view exception to the
Fourth Amendment.
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No.   2010AP3080-CR
¶10    The case proceeded to trial, and the jury returned guilty verdicts on
the thirty-eight counts it considered.    The circuit court subsequently sentenced
Robinson to a total of eighteen years of initial confinement and twenty-four years
of extended supervision.   This appeal follows.
¶11    The  Fourth  Amendment  to  the  United  States  Constitution  and
Article I,  Section                                                                    11  of  the  Wisconsin  Constitution  protect  persons  from
unreasonable searches and seizures.   Whether a police officer’s conduct violates
the prohibition on unreasonable searches and seizures is a question of law we
review without deference to the circuit court.   State v. Davis, 2011 WI App 74, ¶8,
333 Wis. 2d 490, 798 N.W.2d 902.   However, we will uphold the circuit court’s
factual findings unless they are clearly erroneous.   Id.
¶12    Whether  police  conduct  constitutes  an  unreasonable  search  and
seizure  “depends, in the first place, on whether the defendant had a legitimate,
justifiable  or  reasonable  expectation  of  privacy  that  was  invaded  by  the
government action.”   State v. Rewolinski, 159 Wis. 2d  1,  12, 464 N.W.2d  401
(1990).   A person has no reasonable expectation of privacy in an item that is in
plain view of an officer who has a right to be in the position to have the view.
State v. Edgeberg, 188 Wis. 2d 339, 345, 524 N.W.2d 911 (Ct. App. 1994).
¶13    The plain view exception has three prerequisites:                               (1) the officer had
a prior justification for being in the position from which he or she made the plain
view discovery, (2) the evidence was in plain view, and (3) there is probable cause
to believe that the item viewed is connected to criminal activity.   See Edgeberg,
188 Wis. 2d at 345.
¶14    On  appeal,  Robinson  does  not  challenge  the  circuit  court’s
conclusions that the second and third prongs of the plain view exception were met
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No.   2010AP3080-CR
(i.e.,  that  the  picture  on  the  table  was  within  plain  view  and  that  it  was  a
pornographic picture of an underage girl).   However, he does challenge the court’s
conclusion that Paulson had a prior justification for being at the east window when
he made his plain view discovery.   According to Robinson, Paulson had no reason
to be in the position he was in and his actions violated Robinson’s reasonable
expectation of privacy.
¶15    It  is  true  that  the  protections  of  the  Fourth  Amendment  extend
beyond the walls of the home to the “curtilage” or “land immediately surrounding
and associated with the home.”    State v. Walker,  154 Wis. 2d  158,  182,  453
N.W.2d 127 (1990) (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)).
However, law enforcement is not completely prohibited from entering this area.
Davis, 333 Wis. 2d 490, ¶10.   Officers approaching a residence with legitimate
police business may access any area of the curtilage impliedly available to the
public.   See Edgeberg, 188 Wis. 2d at 347.   Thus, it is not a Fourth Amendment
search for police to see from that vantage point something inside the home.   Id.
¶16    Examining the actions of Paulson in this case, we conclude that his
presence  within  the  curtilage  of  Robinson’s  home  did not violate  Robinson’s
reasonable expectation of privacy.   As the circuit court found, Paulson went to
Robinson’s home on legitimate police business to inform him of his unwanted
status at a local church and the potential consequences (i.e., arrest for trespass) if
he returned to the church.   During his visits, Paulson saw a note on the front door
directing visitors to the back of the home.    That note provided Paulson with
implied permission to access the back door by walking through the yard and
around the home next to the window at issue.
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No.   2010AP3080-CR
¶17    We further conclude that Paulson’s position at the east window was
justified under the circumstances.   During his second visit to Robinson’s home,
Paulson had reason to believe that someone was inside.   Not only did he see that
his business card had been taken from the back door, but he also saw through the
unobstructed front window that the television was on and that someone was lying
under a blanket on a couch.   Because that person was unresponsive to Paulson’s
earlier knocks, doorbell rings, and illuminating flashlight, it was reasonable—and
consistent with this purpose of making contact with Robinson—for Paulson to
attempt to contact the person from the window nearest the couch.   Again, Paulson
had implied permission to approach this window based on the note on the front
door.   It was from this position, while illuminating his flashlight on the person on
the couch, that Paulson made his plain view discovery.
¶18    Based on the foregoing, we conclude that the requirements of the
plain view exception were satisfied and, therefore, the information obtained from
Paulson’s  discovery  was  properly  included  in  the  subsequent  search  warrant.
Accordingly,  the  circuit  court  did  not  err  in  denying  Robinson’s  motion  to
suppress.
By the Court.—Judgment affirmed.
                                                                                        This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                               (b)5.
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