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2001  WI  App  126
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
00-1079-CR
00-1080-CR
Case No.:                       00-1081-CR
00-1082-CR
00-1083-CR
†Petition for Review Filed
Complete Title of Case:
NO. 00-1079-CR
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,†
V.
MATTHEW J. TRECROCI,
DEFENDANT-RESPONDENT.
NO. 00-1080-CR
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,†
V.
RYAN J. FRAYER,
DEFENDANT-RESPONDENT.
NO. 00-1081-CR
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,†
V.
RONNIE J. FRAYER,




DEFENDANT-RESPONDENT.
NO. 00-1082-CR
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,†
V.
SCOTT E. OBERST,
DEFENDANT-RESPONDENT.
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,†
V.
AMY L. WICKS,
DEFENDANT-RESPONDENT.
Opinion Filed:                                                     May 2, 2001
Submitted on Briefs:     March 9, 2001
JUDGES:                                                            Brown, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS:                                                         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.
Respondent
ATTORNEYS:                                                         On behalf of the defendants-respondents, the cause was submitted on the
brief of Robert E. Henak of Henak Law Office, S.C. of Milwaukee.




COURT OF APPEALS                                        2001  WI  App  126
DECISION
DATED AND FILED                                         NOTICE
This  opinion  is  subject  to  further  editing.  If
May 2, 2001
published, the official version will appear in the
bound volume of the Official Reports.
Cornelia G. Clark
A  party  may  file  with  the  Supreme  Court  a
Clerk, Court of Appeals
petition  to  review  an  adverse  decision  by  the
of Wisconsin
Court of Appeals.   See WIS. STAT. § 808.10 and
RULE 809.62.
Nos.  00-1079-CR
00-1080-CR
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00-1083-CR
STATE OF WISCONSIN                                      IN COURT OF APPEALS
NO. 00-1079-CR
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
MATTHEW J. TRECROCI,
DEFENDANT-RESPONDENT.
NO. 00-1080-CR
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
RYAN J. FRAYER,
DEFENDANT-RESPONDENT.
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NO. 00-1081-CR
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
RONNIE J. FRAYER,
DEFENDANT-RESPONDENT.
NO. 00-1082-CR
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
SCOTT E. OBERST,
DEFENDANT-RESPONDENT.
NO. 00-1083-CR
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
AMY L. WICKS,
DEFENDANT-RESPONDENT.
APPEALS from an order of the circuit court for Kenosha County:
DAVID M. BASTIANELLI, Judge.   Affirmed.
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Before Brown, P.J., Nettesheim and Snyder, JJ.
¶1                                                                                                    NETTESHEIM, J.      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. Frayer, Scott E. Oberst and Amy L.
Wicks.   The police made a warrantless 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.1                                                                                           “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).2
1   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).
2 All references to the Wisconsin Statutes are to the 1999-2000 version.
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¶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.
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¶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 fiancé, Ronnie Frayer.
¶8                                                                                            All of the subjects were placed under arrest.3   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.
3  Another person who was in the attic was also arrested and later charged.  That person is
not involved in this appeal.
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¶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.4   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(1)(h)3 and
4 Trecroci was not under arrest at this time.
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party to the crime of possession of a controlled substance with intent to deliver
pursuant to §§ 939.05 and 961.41(1m)(h)3.5
¶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
warrantless 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.6
5   Ronnie Frayer was further charged with possession of a controlled substance pursuant
to WIS. 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.
6    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.”
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¶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
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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 concluded
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
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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
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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
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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 warrantless 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
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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.”).
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¶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
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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 building 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).
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¶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
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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
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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,
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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,
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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.7
7 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.
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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
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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
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catalysts  for  Trecroci  giving  consent.    Moreover,  as  the  next  portion  of  our
discussion will reveal, the police improperly advised Trecroci 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 Trecroci’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
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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 fiancé,
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  financé,  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.
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¶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
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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 fiancé.
¶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.
26

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