                                                                     2016 WI 3

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:              2013AP857-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Brett W. Dumstrey,
                                 Defendant-Appellant-Petitioner.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                         (Reported at 359 Wis. 2d 624, 859 N.W.2d 138)
                                   (Ct. App. 2014 – Published)
                                      PDC No: 2014 WI App 5

OPINION FILED:         January 15, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 8, 2015

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Waukesha
   JUDGE:              Donald J. Hassin, Jr.

JUSTICES:
   CONCURRED:          PROSSER, GABLEMAN, J.J., concur. (Opinion Filed)
   DISSENTED:          A.W. BRADLEY, ABRAHAMSON, J.J., dissent.
                       (Opinion Filed)
  NOT PARTICIPATING:   R.G. Bradley, J., did not participate.

ATTORNEYS:
       For the defendant-appellant-petition, there were briefs by
Anthony      B.     Cotton   and   Jeffrey   J.   Szczewski,   and   Kuchler   &
Cotton, S.C., Waukesha, and oral argument by Anthony B. Cotton.




       For the plaintiff-respondent, the cause was argued by David
H. Perlman, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
                                                                          2016 WI 3
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.   2013AP857-CR
(L.C. No.   2012CT508)

STATE OF WISCONSIN                             :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,
                                                                      FILED
      v.                                                         JAN 15, 2016

Brett W. Dumstrey,                                                  Diane M. Fremgen
                                                                 Clerk of Supreme Court

            Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                 Affirmed.



      ¶1    PATIENCE       DRAKE    ROGGENSACK,        C.J.      We      review       a

published decision of the court of appeals,1 which affirmed the

Waukesha    County       Circuit   Court's2   denial      of    defendant       Brett

Dumstrey's (Dumstrey) motion to suppress evidence acquired after
a stop and subsequent arrest.           Dumstrey's motion challenged the

legality of the stop and subsequent arrest on Fourth Amendment

grounds.


      1
       State v. Dumstrey, 2015 WI App 5, 359 Wis. 2d 624, 859
N.W.2d 138.
      2
       The Honorable Donald J. Hassin, Jr. of Waukesha County
presided.
                                                                            No. 2013AP857-CR



       ¶2         After being followed by police for erratic driving,

Dumstrey      drove     inside     of    the       parking    garage   underneath       his

apartment          building,     where     he       was   stopped      by     police    and

subsequently         arrested     for    operating        while     intoxicated      (OWI),

contrary to Wis. Stat. § 346.63(1)(a) (2013-14).3                           Dumstrey does

not challenge the fact that police had reasonable suspicion to

stop       him.      However,     he     argues      that     the   officers'      conduct

violated the Fourth Amendment's prohibition against unreasonable

searches and seizures because it occurred during a warrantless

entry into a constitutionally protected area, curtilage of his

home.

       ¶3         Therefore, the central question before us is whether

the parking garage underneath the apartment building constitutes

curtilage of Dumstrey's home such that it is protected by the

Fourth Amendment.         We also consider whether Dumstrey has shown a

reasonable expectation of privacy in the parking garage, thereby

warranting Fourth Amendment protections.

       ¶4         We conclude that the parking garage underneath this
apartment building does not constitute curtilage of Dumstrey's

home.       We further conclude that Dumstrey has shown no reasonable

expectation of privacy in the garage.                        Consequently, Dumstrey's

stop and subsequent arrest in the garage did not violate the

Fourth      Amendment's        prohibition         against    unreasonable       seizures.

Stated otherwise, the seizure did not occur after a warrantless

       3
       All further references to the Wisconsin Statutes are to
the 2013-14 version, unless otherwise indicated.


                                               2
                                                                               No. 2013AP857-CR



entry into a constitutionally protected area.                                Accordingly, we

affirm the decision of the court of appeals.

                                      I.    BACKGROUND

    ¶5      On    the     night       of     Friday,          April 20,        2012,       Officer

DeJarlais, of the City of Waukesha Police Department, was off

duty and was wearing plain clothes while operating his unmarked,

personal     vehicle.            At        approximately            10:30     p.m.,        Officer

DeJarlais observed a vehicle, later determined to be driven by

Dumstrey,    pass   him     at    a        high       rate    of    speed    and    then      begin

tailgating      another    vehicle.               Officer          DeJarlais       subsequently

passed     both    of     these       vehicles,              at    which     point       Dumstrey

accelerated and began tailgating Officer DeJarlais.                                      Dumstrey

continued speeding and changing lanes, and at one point, he was

straddling both lanes.

    ¶6      After       watching       Dumstrey's             vehicle       for     some      time,

Officer DeJarlais called the police department dispatcher and

requested a squad response to a possible intoxicated driver.

Around   that     same    time,       Officer          DeJarlais      pulled       up    next    to
Dumstrey at a red light, rolled down his window, and made eye

contact with him.         Dumstrey likewise rolled down his window, at

which point Officer DeJarlais displayed his police badge and

photo    identification          card.            Officer          DeJarlais       pointed      out

Dumstrey's erratic driving and instructed him to pull over and

wait because the police were coming.                              Dumstrey stared back at

him with a "blank look" and "appeared to be very intoxicated."

His eyes were "sleepy looking" and "kind of glassy."                                    After the
light    turned     green,        Dumstrey              continued       to        sit    at     the
                                                  3
                                                                      No. 2013AP857-CR



intersection.        When the light turned yellow, he proceeded to

drive through the intersection.

    ¶7      After      driving      through        the     intersection,      Dumstrey

stopped in the middle of the traffic lane, and Officer DeJarlais

again pulled up next to him and told him to wait for the police.

Dumstrey continued to stare at Officer DeJarlais and then drove

off toward his apartment complex, consisting of five or six

apartment buildings.          Officer DeJarlais followed Dumstrey to a

parking    lot     outside    one     of    the      apartment      buildings    where

Dumstrey continued to drive around, as though "trying to lose"

the officer.        Subsequently, Dumstrey turned toward the parking

garage underneath his apartment building, raised the garage door

with his remote controlled opener, and "drove down beneath the

apartment building into the parking garage."

    ¶8      Officer       DeJarlais       followed       Dumstrey   and   parked    his

personal vehicle underneath the garage door so that the door

would not come down and lock out the police response that he had

requested.       Officer DeJarlais then exited his vehicle and walked
into the parking garage, toward where Dumstrey had parked in his

assigned     parking       place.           As     Officer     DeJarlais        started

approaching Dumstrey's vehicle, Dumstrey exited the vehicle and

the two made contact.          Officer DeJarlais instructed Dumstrey to

stay put because the police were coming.                    He also displayed his

police     badge    and     photo     identification,         to     which    Dumstrey

indicated disbelief that Officer DeJarlais was actually a police

officer.      Upon     showing      his    badge     and    identification       again,
Dumstrey     finally      stopped     and        appeared    to     believe     Officer
                                            4
                                                                           No. 2013AP857-CR



DeJarlais.        Shortly thereafter, the responding officer, Officer

Lichucki, arrived on the scene.

       ¶9      Officer Lichucki entered the parking garage through

the garage door under which Officer DeJarlais had parked his

vehicle.          Officer     Lichucki       immediately        made       contact        with

Dumstrey and began asking him investigative questions.                              Dumstrey

stated that he had driven home from a Milwaukee Brewers baseball

game at Miller Park and denied having consumed any alcohol.

Upon his questioning, Officer Lichucki observed that Dumstrey

was    swaying     back     and   forth   and      his      "eyes    were        glassy    and

somewhat bloodshot."            His speech was also "slurred," and Officer

Lichucki could smell "an odor of intoxicants coming from his

person."        Officer Lichucki requested that Dumstrey submit to

various      field     sobriety     tests,       all   of    which     he        refused    to

perform.       At that point, Officer Lichucki arrested Dumstrey for

OWI.     Later, Dumstrey consented to an evidentiary blood test,

which revealed that his blood alcohol level was .178.

       ¶10     Dumstrey moved to suppress, challenging the legality
of the stop and subsequent arrest on the basis that his seizure

occurred after a warrantless entry, in violation of the Fourth

Amendment.        At the hearing, testimony established that Dumstrey

lives in the apartment building under which the parking garage

is     located.        Approximately      30      tenants      live        in     Dumstrey's

apartment building, and the parking garage has approximately 30

parking      places.      The     residents,      including         Dumstrey,       pay    for

their assigned parking places in the garage and use the garage
only     for    parking     rather    than       for     storage      or        other   uses.
                                             5
                                                                  No. 2013AP857-CR



Dumstrey testified that he can enter the parking garage only

through the remote controlled garage door or through a locked

door on the inside of the apartment building.                   All of the other

tenants have access to the parking garage through these same

means.     In order to get from the parking garage to his home,

Dumstrey    uses    the    building's        elevator.     This     elevator     is

likewise utilized by all other tenants.

    ¶11     The circuit court ultimately denied Dumstrey's motion,

and he pled guilty to OWI, second offense, in violation of Wis.

Stat. § 346.63(1)(a).            The court of appeals affirmed, holding

that there was no Fourth Amendment violation because the parking

garage   underneath       the    apartment    building    did    not     constitute

curtilage of Dumstrey's home, and he did not have a reasonable

expectation    of    privacy      in   the    parking    garage.4        State   v.

Dumstrey, 2015 WI App 5, ¶14, 359 Wis. 2d 624, 859 N.W.2d 138.

We granted Dumstrey's petition for review.

                           II.    STANDARD OF REVIEW

    ¶12     "[A]    curtilage      determination     presents       an   issue   of
constitutional fact," State v. Martwick, 2000 WI 5, ¶16, 231

Wis. 2d 801, 604 N.W.2d 552, as does the general question of

"whether police conduct violated the constitutional guarantee

against unreasonable searches and seizures," State v. Griffith,

2000 WI 72, ¶23, 236 Wis. 2d 48, 613 N.W.2d 72.                     Questions of

    4
       One judge dissented, indicating that he would hold that
the parking garage constituted both curtilage and an area
protected by a reasonable expectation of privacy. Dumstrey, 359
Wis. 2d 624, ¶18.


                                        6
                                                                           No. 2013AP857-CR



constitutional      fact     are     subject       to    a    two-step       standard       of

review.      Id.

       ¶13    We uphold a circuit court's findings of historic fact

unless they are clearly erroneous.                     State v. Fonte, 2005 WI 77,

¶11, 281 Wis. 2d 654, 698 N.W.2d 594.                         A finding is clearly

erroneous      if   "it     is     against       the     great      weight       and     clear

preponderance of the evidence."                  State v. Sykes, 2005 WI 48, ¶21

n.7, 279 Wis. 2d 742, 695 N.W.2d 277 (internal quotation marks

omitted)     (quoting      State    v.   Tomlinson,          2002    WI    91,    ¶36,     254

Wis. 2d 502, 648 N.W.2d 367).             We then "apply the constitutional

principles to the facts at hand to answer the question of law."

Martwick, 231 Wis. 2d 801, ¶23.

                                  III.   DISCUSSION

       ¶14    The Fourth Amendment of the United States Constitution

provides:

            The right of the people to be secure in their
       persons,   houses,   papers,   and  effects,  against
       unreasonable searches and seizures, shall not be
       violated, and no Warrants shall issue, but upon
       probable cause, supported by Oath or affirmation, and
       particularly describing the place to be searched, and
       the persons or things to be seized.
U.S. Const. amend. IV.             Article 1, Section 11 of the Wisconsin

Constitution contains a substantively identical provision that

we    have   historically        interpreted       in    accord     with     the       Supreme

Court's interpretation of the Fourth Amendment.                           State v. Arias,

2008 WI 84, ¶20, 311 Wis. 2d 358, 752 N.W.2d 748.

       ¶15    "Although our legal lexicon often presents 'searches
and    seizures'      as     an      inseparable          tandem,         the      two     are


                                             7
                                                                         No. 2013AP857-CR



constitutionally           and       analytically       distinct."            Id.,     ¶25.

Therefore,         we   first    determine         whether   Dumstrey        underwent    a

search or seizure for purposes of our Fourth Amendment analysis.

                                A.    Search and Seizure

       ¶16    Searches      affect         privacy    interests,       such    as    bodily

integrity      and      invasion      of     those    places    that     a    person   has

reserved for his or her individual use.                         See Katz v. United

States,      389    U.S.    347,      361    (1967)    (Harlan,    J.,       concurring).

Seizures, on the other hand, affect personal liberty interests

such as the freedom of movement and the possession of one's

property.      See Delaware v. Prouse, 440 U.S. 648, 657 (1979).

       ¶17    We have recognized two types of seizure.                          State v.

Young, 2006 WI 98, ¶20, 294 Wis. 2d 1, 717 N.W.2d 729.                               First,

we have recognized the investigatory stop pursuant to Terry v.

Ohio, 392 U.S. 1 (1968).                    Under Terry, a police officer may,

under    certain        circumstances,        temporarily      detain    a    person     for

purposes of investigating possible criminal behavior even though

there is not probable cause to make an arrest.                         Id. at 22.      Such
an     investigatory        stop      must     be    preceded     by    the     officer's

reasonable suspicion that a crime has occurred, or is about to

occur.       Id. at 21; State v. Houghton, 2015 WI 79, ¶30, 364

Wis. 2d 234, 868 N.W.2d 143.                   Second, an arrest is a seizure.

State v. Ferguson, 2009 WI 50, ¶17, 317 Wis. 2d 586, 767 N.W.2d

187.     Generally, if the police have probable cause to make an

arrest, they may not need a warrant.                     United States v. Watson,

423 U.S. 411, 417-23 (1976).


                                               8
                                                                            No. 2013AP857-CR



       ¶18      Officer DeJarlais followed Dumstrey into the parking

garage    in    order        to    effectuate      an     investigatory         stop    as    to

whether he was operating while intoxicated.                               Once inside the

garage, Officer DeJarlais stopped Dumstrey after he had exited

his    vehicle,       displaying       his    police      badge     and    identification.

Dumstrey       does     not       challenge     whether      Officer        DeJarlais         had

reasonable suspicion to stop him; therefore, we assume, without

deciding, that reasonable suspicion for the investigatory stop

existed.             Once     Officer        DeJarlais      stopped        Dumstrey          with

reasonable suspicion, Officer Lichucki questioned Dumstrey and

observed his physical characteristics, including his swaying,

slurred      speech,        glassy   and     bloodshot      eyes,     and    the       odor    of

intoxicants emanating from his person.                       Dumstrey similarly does

not challenge whether these observations gave rise to probable

cause for his arrest; therefore, we likewise assume, without

deciding, that probable cause existed.                      Accordingly, we conclude

that    Dumstrey       was    seized    in     the    parking     garage     when       he    was

stopped        and     subsequently           arrested       for      operating          while
intoxicated.

       ¶19     We further conclude that Dumstrey was not subjected to

a     search    while        stopped     in     the       parking     garage.           Visual

observation in the context of a lawful stop "does not constitute

an     independent          search    because        it    produces       'no    additional

invasion       of    [the     suspect's]       privacy      interest.'"            State       v.

Angiolo, 186 Wis. 2d 488, 497, 520 N.W.2d 923 (Ct. App. 1994)

(alteration in original) (quoting Arizona v. Hicks, 480 U.S.
321, 325 (1987)); see also United States v. Jones, __ U.S. __,
                                               9
                                                                      No. 2013AP857-CR



132 S. Ct. 945, 953 (2012) (acknowledging that "mere visual

observation does not constitute a search").

     ¶20    As    set    forth     above,         after    Dumstrey   was     stopped,

Officer    Lichucki      arrested      him       based    on   observations     of   his

physical   characteristics            without     further      invading   his   bodily

integrity.       Therefore, aside from the stop and arrest, there was

no   additional         invasion       of     Dumstrey's        privacy     interest.

Consequently, the officers effectuated a seizure of Dumstrey,

but no independent search occurred at that time.5

     ¶21    We now consider whether Dumstrey's seizure occurred

within a constitutionally protected area, thereby constituting a

warrantless entry in violation of the Fourth Amendment.

                                 B.    Garage Entry

     ¶22    "It is a 'basic principle of Fourth Amendment law'

that searches and seizures inside a home without a warrant are

presumptively unreasonable."                Payton v. New York, 445 U.S. 573,

586 (1980).       "Indeed, '[i]t is axiomatic that the physical entry

of the home is the chief evil against which the wording of the
Fourth Amendment is directed.'"                  State v. Richter, 2000 WI 58,

¶28, 235 Wis. 2d 524, 612 N.W.2d 29 (alteration in original)

(internal quotation marks omitted) (quoting Welsh v. Wisconsin,


     5
       However, after Dumstrey was arrested, a search occurred
when he consented to the blood draw at the hospital.         As
Dumstrey does not challenge the blood draw on McNeely grounds,
we need not address it. Missouri v. McNeely, __ U.S. __, 133 S.
Ct. 1552 (2013) (discussing Fourth Amendment protections from
nonconsensual, warrantless blood draw).


                                            10
                                                                          No. 2013AP857-CR



466   U.S.    740,    748       (1984)).            Given    this     heightened       Fourth

Amendment     protection,            where    police        effectuate    a     warrantless

arrest      inside   of     a    home,        the    State     must     prove       that    the

warrantless      entry         was    justified        by     exigent     circumstances.

Ferguson, 317 Wis. 2d 586, ¶¶19-20.

      ¶23    "The protection provided by the Fourth Amendment to a

home also extends to the curtilage of a residence."                                 Martwick,

231 Wis. 2d 801, ¶26; State v. Walker, 154 Wis. 2d 158, 183, 453

N.W.2d 127 (1990), abrogated, in part, on other grounds by State

v. Felix, 2012 WI 36, ¶42, 339 Wis. 2d 670, 811 N.W.2d 775.

"[T]he   curtilage        is    the     area    to    which     extends       the    intimate

activity associated with the sanctity of a [person's] home and

the privacies of life and therefore has been considered part of

[the] home itself for Fourth Amendment purposes."                                   Oliver v.

United   States,      466      U.S.    170,     180    (1984)       (internal       quotation

marks and citation omitted).                   The Fourth Amendment's protection

against warrantless entry for arrest also has been reasoned to

extend to places where the person "has a legitimate expectation
of privacy in the invaded place."                     Minnesota v. Olson, 495 U.S.

91, 95 (1990) (internal quotation marks and citation omitted);

United   States      v.   Gooch,       6     F.3d    673,    676-77    (9th     Cir.       1993)

(recognizing reasonable expectation of privacy in a tent located

on public campgrounds such that warrantless arrest of inhabitant

requires       exigent          circumstances).                  We      consider          both

constitutional contentions in turn.




                                               11
                                                                      No. 2013AP857-CR



                                  1.    Curtilage

    ¶24     Prior      to     undertaking      a     case     specific      curtilage

analysis, however, it is necessary to first discuss existing

Wisconsin   and     Supreme     Court    law   with        respect   to   the   Fourth

Amendment's protection of a home's curtilage.                        Dumstrey points

us to Conrad v. State, 63 Wis. 2d 616, 633, 218 N.W.2d 252

(1974), in support of the proposition that common space in the

basement    of    an   apartment        building      is     "clearly     within   the

curtilage" of the home.            In Conrad, we considered whether the

police conducted an unconstitutional search when they excavated

a dead body approximately 450 feet from the defendant's house on

his 40 acre farm.           Id. at 620-21.         We rejected any trespassory,

curtilage analysis in favor of a reasonable expectation analysis

and held that there was no unconstitutional search because the

defendant harbored no reasonable expectation of privacy in the

area of his property in question.              Id. at 633-34.

    ¶25     In so holding, we relied on the Supreme Court's Katz

decision, wherein the Court held that a search need not result
from a physical trespass in order to be unreasonable under the

Fourth Amendment.           Katz, 389 U.S. at 352.           Rather, a search may

be unconstitutional in an area where a person holds a reasonable

expectation of privacy.            Id.    at 352-53, 360-61 (Harlan, J.,

concurring).

    ¶26     We stated in Conrad that "[t]he importance of Katz is

. . . that it foretold the possibility that, even in a place

traditionally thought to be an area protected by the [F]ourth
[A]mendment, protection would not be afforded in the absence of
                                          12
                                                                           No. 2013AP857-CR



a   subjective      intent    to    exercise      a   reasonable          expectation     of

privacy."          Conrad,     63    Wis. 2d        at     627.       Based       on     this

proposition, we stated that Katz modified the previous curtilage

analysis      and    effectively        held        that     there        could     be    no

unconstitutional search of curtilage unless the defendant also

held a reasonable expectation of privacy in that same area.                               Id.

at 630-31.      As further support for this proposition, we cited a

previous opinion, Watkins v. State, 59 Wis. 2d 514, 208 N.W.2d

449 (1973)      (per curiam),         wherein we held that a warrantless

search   of    a    storage    room     in    the     basement       of    an     apartment

building did not violate the Fourth Amendment.                            Id. at 514-15.

In Watkins, we did not relate a curtilage analysis but, rather,

held that the defendant harbored no reasonable expectation of

privacy in the area.          Id.

      ¶27     In Conrad, we reasoned that the Katz test limited the

curtilage test.       We said,

      [I]t appears that the rule of Katz, as explained by
      Wattenburg, is an explication or modification based on
      present-day concepts of the ancient curtilage test.
      It is also a limitation of it.       Under the strict
      curtilage test, the subjective element of a reasonable
      expectation of privacy was omitted.     There was, in
      effect, a legal presumption that all within the
      curtilage was protected.
Conrad, 63 Wis. 2d at 630.            Conrad was a search case.

      ¶28     Recently,      however,    the      Supreme     Court       has     clarified

that "Fourth Amendment rights do not rise or fall with the Katz

formulation."        Jones, 132 S. Ct. at 950.                    Rather, "the Katz
reasonable-expectation-of-privacy test has been                           added to, not


                                             13
                                                                       No. 2013AP857-CR



substituted for, the common-law trespassory test."                          Id. at 952.

Like Conrad, Jones is a search case.

       ¶29    In Florida v. Jardines, __ U.S. __, 133 S. Ct. 1409

(2013), another search case, the Supreme Court confirmed that

the    curtilage      of    a    person's   home   remains      a   constitutionally

protected      area     without      consideration     of   whether     a    reasonable

expectation of privacy exists.                 There, the Court held that the

front porch of a home constitutes curtilage and that officers

executed      an   unconstitutional          search    when     they    conducted          a

trespassory dog sniff on that constitutionally protected area.

Id. at 1415-17.            In so holding, the Court harkened back to the

reasoning behind the Fourth Amendment's heightened protection of

the home, stating that at its "very core stands the right of a

[person] to retreat into his [or her] own home and there be free

from       unreasonable         governmental     intrusion."           Id.     at        1414

(internal quotation marks omitted) (quoting Silverman v. United

States, 365 U.S. 505, 511 (1961)).

       ¶30    Given     the      Supreme    Court's    recent       emphasis       on    the
distinction between the trespassory, curtilage analysis and the

reasonable expectation analysis, we conclude that our statements

in     Conrad,     63      Wis. 2d     at   627,     630-31,    may     be        read    as

inconsistent       with     that     distinction.6      However,       if    we    are    to
       6
       Similarly, in State v. Martwick, 2000 WI 5, ¶31 n.13, 231
Wis. 2d 801, 604 N.W.2d 552, we stated that "the privacy issue
is interwoven with the curtilage determination and need not be
considered separately."    While it may be true that the two
inquiries sometimes overlap, this approach may not accurately
relate the current state of the law.


                                            14
                                                                   No. 2013AP857-CR



employ the same trespassory, curtilage analysis to a seizure as

has been applied to a search, we must consider separate and

distinct from a reasonable expectation of privacy whether the

area in question is constitutionally protected curtilage.

      ¶31    We previously have conducted a curtilage analysis to

determine whether an arrest occurring within curtilage of a home

violates the Fourth Amendment's protection against warrantless

entry.      Walker, 154 Wis. 2d at 182.       In Walker, police entered a

resident's     fenced-in     backyard    without    a    warrant    in     order    to

arrest him.      Id.   In determining whether the arrest was lawful,

we stated:

           Read together, Payton and Oliver require that
      police obtain a warrant before entering either the
      home or its curtilage to make an arrest absent
      probable cause and exigent circumstances.      Under
      Payton and Oliver, therefore, absent probable cause
      and    exigent   circumstances,   [the  defendant]'s
      warrantless arrest, although not occurring in his
      home, was unlawful if his fenced-in backyard falls
      within the curtilage of his home.
Id. at 183.      We went on to conclude that the fenced-in backyard

constituted curtilage of the home, thereby warranting the Fourth
Amendment's     protection     against    warrantless      entry     for    arrest.

Id. at 184.      Other states and federal courts are in accord with

this approach, holding that an arrest occurring outside of the

home may be unlawful depending upon the nature of the area in

question.      See, e.g., United States v. Struckman, 603 F.3d 731,

739   (9th    Cir.   2010)   (recognizing    that       curtilage    garners       the

home's protection against warrantless entry for arrest); United
States v. Brown, 510 F.3d 57, 64 (1st Cir. 2007) (conducting

                                        15
                                                               No. 2013AP857-CR



curtilage    analysis   with       respect   to   driveway   and   noting   the

principles    applicable      to    driveways     when   determining   whether

resident     was   arrested    in     violation     of   protection    against

warrantless entry); State v. Lewis, 675 N.W.2d 516, 523-26 (Iowa

2004) (conducting curtilage analysis for an unsecured driveway

in determining whether defendant was arrested in violation of

Fourth Amendment's protection against warrantless entry); State

v. Karle, 759 N.E.2d 815, 819-20 (Ohio Ct. App. 2001) (holding

that arrest "immediately outside" of defendant's house violated

Fourth Amendment); Jefferson v. Commonwealth, 497 S.E.2d 474,

480-81 (Va. Ct. App. 1998) (holding that arrest by the back door

of defendant's house was unlawful); State v. Mierz, 866 P.2d 65,

70-71 (Wash. Ct. App. 1994) (holding that arrest in backyard

violated Fourth Amendment).7           We now turn to the discussion of



    7
       We recognize that there may be an eventual difficulty in
reconciling the notion that curtilage is afforded the same
protections as the home against warrantless entry for arrest
with the Supreme Court's holding in United States v. Santana,
427 U.S. 38 (1976).    In Santana, the resident of a home was
initially seen by police while standing in the doorway of her
home, which the Court characterized as a "public place" because
she was "exposed to public view, speech, hearing, and touch as
if she had been standing completely outside her house." Id. at
42. The police had probable cause to arrest the resident prior
to seeing her in the doorway and began to approach her, at which
time she "retreated into the vestibule of her house."     Id. at
40.    The police followed the resident into her house and
arrested her.   Id. at 40-41.    The Court held that, since the
police initially saw the resident standing in a "public place"
and then hotly pursued her into the home, the in-home arrest was
justified by exigent circumstances. Id. at 42-43. Santana is a
seizure case.

                                                                   (continued)
                                       16
                                                                    No. 2013AP857-CR



whether the parking garage constitutes curtilage of Dumstrey's

home.

       ¶32   We previously have adopted four factors set forth by

the Supreme Court, United States v. Dunn, 480 U.S. 294, 301

(1987), relevant to conducting an analysis of whether an area

constitutes curtilage of a home.                We consider (1) "the proximity

of the area claimed to be curtilage to the home"; (2) "whether

the area is included within an enclosure surrounding the home";

(3) "the nature of the uses to which the area is put[;] and" (4)

"the    steps   taken   by    the    resident      to    protect   the   area      from

observation by people passing by."                 Martwick, 231 Wis. 2d 801,

¶30    (quoting   Dunn,      480    U.S.   at    301).     However,      we   do   not

"mechanically" apply these factors as part of a "finely tuned

formula."       Dunn, 480 U.S. at 301.             Instead, the factors "are

useful analytical tools only to the degree that, in any given



     In spite of the Supreme Court's characterization of the
front doorway as a "public place" without any reference to
curtilage, the Supreme Court also has stated that the front
porch is the "classic exemplar" of a home's curtilage. Florida
v. Jardines, __ U.S. __, 133 S. Ct. 1409, 1415 (2013). Jardines
is a search case. This causes us to wonder whether there may be
instances   in  which   an  area   constitutes  constitutionally
protected curtilage for one purpose, such as a warrantless
search, while not for another purpose, such as a warrantless
arrest.

     While we note this interesting dichotomy and recognize that
there may be potential difficulty in reconciling Walker's
protection against warrantless arrest on curtilage with Santana,
see State v. Walker, 154 Wis. 2d 158, 184 n.16, 453 N.W.2d 127
(1990), Dumstrey's case does not present the proper factual
scenario for us to define these specific contours today.


                                           17
                                                                            No. 2013AP857-CR



case,    they      bear      upon     the    centrally        relevant     consideration—

whether the area in question is so intimately tied to the home

itself that it should be placed under the home's 'umbrella' of

Fourth Amendment protection."                    Id.

       ¶33    As   indicated        above,        Dumstrey     relies     on    our   passing

statement in Conrad that the common storage area in an apartment

building's basement was "clearly within the curtilage" of the

home.        Conrad,      63    Wis. 2d      at       633.    We    are   not    persuaded.

Notably, the apartment's common storage area was not at issue in

Conrad.      See generally Conrad, 63 Wis. 2d 616.                        Rather, we held

in Watkins that such an area was not protected given the lack of

a reasonable expectation of privacy.                          Watkins, 59 Wis. 2d at

514-15.       In Conrad, we engaged in no analysis of why such an

area    would      "clearly"        constitute          curtilage.        See    Conrad,     63

Wis. 2d at 633.           Additionally, it is important to note that this

statement in Conrad was prior to the Supreme Count's delineation

of the Dunn factors.                Therefore, we decline to rely upon this

passing      remark    in      Conrad       to   support      the   proposition       that    a
common area beneath an apartment building constitutes curtilage

of the home.        Rather, we consider the Dunn factors as set forth

by the Supreme Court.

                               a.   proximity to the home

       ¶34    First, we look to the proximity of the parking garage

to Dumstrey's home.             The United States Court of Appeals for the

First    Circuit       has     held     that,      in    an   apartment        building,     "a

tenant's [home] cannot reasonably be said to extend beyond his
[or her] own apartment and perhaps any separate areas subject to
                                                 18
                                                                       No. 2013AP857-CR



his [or her] exclusive control."                   United States v. Cruz Pagan,

537 F.2d 554, 558 (1st Cir. 1976).                 We tend to agree.

       ¶35    It is important to distinguish between the apartment

building and Dumstrey's actual home.                     While the parking garage

is located directly beneath the entire apartment building, it

does    not    follow      that    it   is   therefore      closely    proximate        to

Dumstrey's        home.      His     home     cannot     reasonably        be    said    to

constitute        the   entire     apartment       building.     Rather,          Dumstrey

occupies only one of the 30 units located within the building.

This is a far cry from a single family home's attached garage,

which courts have consistently held constitutes curtilage.                              See

State v. Davis, 2011 WI App 74, ¶12, 333 Wis. 2d 490, 798 N.W.2d

902 (collecting cases and citing State v. Leutenegger, 2004 WI

App 127, ¶21 n.5, 275 Wis. 2d 512, 685 N.W.2d 536 (recognizing

that cases consistently "hold that an attached garage is part of

the curtilage")).

       ¶36    In such cases, the garage is quite literally attached

to   the     resident's     home    itself.        For   example,     in    Davis,      333
Wis. 2d      490,   ¶3,    the     garage    was    attached    to    the       resident's

single family trailer home by a connecting foyer.                          The court of

appeals accepted the garage's characterization as curtilage, and

noted      that   "[t]he    extent      of   the    curtilage    depends         upon   the

nature of the premises, and might be interpreted more liberally

in the case of a rural single-owner home, as opposed to an urban

apartment."         Id., ¶9; see also State v. O'Brien, 223 Wis. 2d

303, 316, 588 N.W.2d 8 (1999) (acknowledging importance of rural


                                             19
                                                                               No. 2013AP857-CR



setting in determining that car parked 200 feet away from home

was located on curtilage).

      ¶37    In     Dumstrey's      case,     the     garage         is     not       similarly

attached     to    his    home    itself    but,     rather,        his    home        could      be

located anywhere within the entire 30-unit apartment building.

Dumstrey takes an elevator from the parking garage, potentially

up several levels, to gain access to the floor on which his home

is located.        We do not consider this to be closely proximate for

Fourth Amendment purposes.                Surely, his 29 fellow tenants would

not   consider      their       individual       apartments         to     be     a    part       of

Dumstrey's        home,    and    Dumstrey       could    not       reasonably             contend

otherwise.

                     b.     enclosure surrounding the home

      ¶38    Second,       we    consider    whether          the   parking           garage      is

included     within       an    enclosure    that     also      surrounds          Dumstrey's

home.       According to testimony, the parking garage is located

within the same overall structure as the apartment building in

which   Dumstrey's        home    is    located.         Tenants         may     gain       direct
access to the parking garage through a door located within the

apartment     building.          From     there,     tenants        have    access          to    an

elevator     that     allows      them     more     convenient            entry       to    their

individual homes.

      ¶39    That     the       parking     garage       is    included          within          the

enclosure of the entire apartment building could tend to favor

the garage being part of his home's curtilage.                            However, we note

that, under this same rationale, Dumstrey's 29 fellow tenants'
apartments are likewise included within the same enclosure as
                                            20
                                                                              No. 2013AP857-CR



his own apartment.            As indicated above, it cannot reasonably be

contended that each of these tenants' homes constitutes part of

Dumstrey's      home         for     purposes          of      the    Fourth        Amendment.

Therefore, we are not persuaded by the parking garage being

included     within       the      overall       enclosure       that      encompasses         the

entire apartment building.

                                    c.     nature of use

       ¶40   Next,      we    look       to    the    nature    of   the    uses     to    which

Dumstrey puts the parking garage.                      The overall curtilage inquiry

is   directed      at     protecting           "the    area     to   which     extends         the

intimate activity associated with the sanctity of a [person's]

home   and   the     privacies        of      life."        Oliver,     466    U.S.       at    180

(internal quotation marks and citation omitted).

       ¶41   Dumstrey        relies       on    the    dissent       from     the    court       of

appeals decision, suggesting that he utilizes the parking garage

in the same manner as other Wisconsinites use attached garages

on their single family homes.                        Dumstrey, 359 Wis. 2d 624, ¶23

(Reilly, J., dissenting).                 Namely, Dumstrey parks his car in the
parking garage in order to be free from the elements, including

frigid winters.           Id.        The dissent from the court of appeals

characterizes this use as one associated with the "privacies of

life."        Id.            However,          to     the      contrary,       courts          seem

overwhelmingly       to      hold    that       parking     alone     constitutes         a    use

associated with neither an intimate activity of the home nor a

privacy of life.             See, e.g., Mack v. City of Abilene, 461 F.3d

547 (5th Cir. 2006) (collecting cases and indicating that common
parking area is not a use associated with curtilage of home);
                                                21
                                                                                  No. 2013AP857-CR



Commonwealth v. McCarthy, 705 N.E.2d 1110 (Mass. 1999) (noting

that regular and intended use for tenant parking does not give

rise    to    curtilage        designation);          State       v.    Harnisch,        931   P.2d

1359,    1364      (Nev.       1997)    (holding       that       parking         in    designated

parking      space      open     to     view    does    not        constitute           "'intimate

activities         of   the     home'     or    the    'privacies            of    []     life'"),

disapproved of on other grounds by State v. Lloyd, 312 P.3d 467

(Nev. 2013); State v. Williford, 767 S.E.2d 139, 142-43 (N.C.

Ct. App. 2015) (collecting parking lot cases).

       ¶42    The uncontroverted testimony establishes that Dumstrey

utilizes the parking garage solely for parking his vehicle.                                      He

puts    the     area     to     no     other    use     such           as   storing       personal

belongings in an exclusively controlled area or conducting other

personal      activities         such    as    we     would       equate         with    a   garage

attached      to    a   single        family    home.         While         we    conclude     that

Dumstrey's use does not warrant curtilage designation, we do not

foreclose the possibility that some additional use of a somewhat

comparable         garage      could     constitute           a    use       associated        with
intimate activity of the home or privacy of life.

                         d.     protection from observation

       ¶43    Finally, we look to the steps Dumstrey has taken to

protect the parking garage from observation by passersby within

the garage.         Dumstrey asserts that the entire parking garage is

generally      not      open    to     the    public    since          it   is     enclosed     and

accessible only through either the remote controlled garage door

or the locked door on the inside of the apartment building.                                      He
contends that, since he pays for his assigned parking place in
                                               22
                                                                   No. 2013AP857-CR



the garage, he has taken affirmative steps to protect the area

from observation by people passing by the apartment building and

enclosed garage.

    ¶44     The   relevant   inquiry,      however,     is   not    whether    the

parking garage is generally shielded from the public at large.

Rather, we are concerned with whether Dumstrey has taken steps

to shield the parking area from the view of passersby within the

parking garage.     As the Supreme Court of Massachusetts has noted

with respect to an apartment building's enclosed parking area,

"it is an enclosure encompassing a common area utilized by all

the tenants and visitors of the building."               McCarthy, 705 N.E.2d

at 1113.    In holding that such an enclosed parking area did not

constitute curtilage of the home, the court noted that there was

nothing preventing anyone entering the lot from observing the

individual parking places.          Id.    Therefore, no steps were taken

to protect the vehicle or the parking place from observation.

See id.

    ¶45     Similarly,   all   of    Dumstrey's    29    fellow      tenants    and
their guests are free to enter the parking garage.                    Upon their

entrance,     Dumstrey   cannot       prevent     such       individuals       from

observing the parking area within the interior of the parking

garage.     Each day, countless tenants are not only free to, but

are required to, pass through the parking garage in order to get

from their own vehicles to the elevator to access their homes.

Of course, this is in addition to any visitors of the 29 other

tenants or of the landlord.           Consequently, Dumstrey has simply


                                      23
                                                                     No. 2013AP857-CR



taken no steps to protect the parking garage from observation by

passersby within the garage.

       ¶46   The    foregoing        factors    do    not    weigh    in    favor    of

curtilage     designation.             Accordingly,     we    conclude      that     the

parking garage is not so intimately tied to Dumstrey's home that

it    warrants     Fourth     Amendment    protection        as   curtilage    of   his

home.     We now proceed to determine whether Dumstrey harbors a

reasonable expectation of privacy in the parking garage for some

other reason, such that it warrants Fourth Amendment protection

against warrantless entry for arrest.                   See Olson, 495 U.S. at

95.

                   2.   Reasonable expectation of privacy

       ¶47   To make this determination, we consider two questions:

(1)     whether     the       person     exhibits      an     actual,       subjective

expectation of privacy in the area; and (2) whether society is

willing to recognize such an expectation as reasonable.                            Smith

v. Maryland, 442 U.S. 735, 740 (1979); State v. Rewolinski, 159

Wis. 2d 1, 13, 464 N.W.2d 401 (1990); State v. Eskridge, 2002 WI
App 158, ¶11, 256 Wis. 2d 314, 647 N.W.2d 434.                          The ultimate

inquiry depends on the totality of circumstances.                          Rewolinski,

159    Wis. 2d     at   17.     In     answering     these    questions,      we    have

identified six factors as relevant:                  "(1) whether the defendant

had a property interest in the premises; (2) whether he [or she]

was legitimately (lawfully) on the premises; (3) whether he [or

she] had complete dominion and control and the right to exclude

others; (4) whether he [or she] took precautions customarily
taken by those seeking privacy; (5) whether he [or she] put the
                                           24
                                                                   No. 2013AP857-CR



property    to   some    private    use;    and   (6)    whether   the    claim   of

privacy is consistent with historical notions of privacy."                        Id.

at 17-18; Eskridge, 256 Wis. 2d 314, ¶15.

     ¶48     We are satisfied that the first two factors cut in

favor   of       Dumstrey's      reasonable       expectation       of     privacy.

Specifically, Dumstrey has a personal property interest in his

parking place in the garage because he lives in the apartment

building and pays for his assigned parking location.                      There is

likewise no dispute over whether Dumstrey was lawfully on the

premises.     He opened the garage door with his remote controlled

opener and parked his vehicle in his assigned place prior to

being   seized     by    Officer    DeJarlais.          The   remaining    factors,

however, are not similarly helpful to Dumstrey.

     ¶49     Dumstrey has shown no dominion and control over the

parking garage.         As set forth above, he has no right to exclude

the 29 other tenants or their guests, all of whom have the same

right of access as he.           This is the antithesis of dominion and

control over the premises.            Moreover, while the parking garage
is   shielded     from     the     public    at   large,      he   has    taken   no

precautions to seek privacy within the garage from the countless

strangers that could be present daily.                   Additionally, Dumstrey

puts the garage to no use in addition to parking his vehicle.

With the 29 other tenants putting the garage to this same use,

Dumstrey's use can in no way be considered "private."                      Finally,

we are convinced that historical notions of privacy are simply

not consistent with such a large number of people having the
same right of access to the parking garage as Dumstrey himself.
                                        25
                                                                             No. 2013AP857-CR



"[C]ommon    areas        in    apartment      buildings            are,    by   their     very

definition, not private but shared areas, accessible to and used

by other tenants."             Eskridge, 256 Wis. 2d 314, ¶19.

    ¶50     Under    the        totality      of   circumstances,           we   doubt     that

Dumstrey    harbors        any      actual    expectation            of    privacy    in   the

parking garage, and if he does, such an expectation is surely

not reasonable.           However, we do not foreclose the possibility

that a person may exhibit a reasonable expectation of privacy in

a smaller, more intimate multi-unit dwelling.                                See     State v.

Trecroci, 2001 WI App 126, ¶40, 246 Wis. 2d 261, 630 N.W.2d 555

(distinguishing between large apartment complex and a smaller

apartment        house     for       purposes       of     reasonable            expectation

analysis).

                                     IV.     CONCLUSION

    ¶51     In     light       of   the    foregoing,          we    conclude      that    the

parking    garage        underneath        this    apartment          building     does     not

constitute curtilage of Dumstrey's home.                            We further conclude

that Dumstrey has shown no reasonable expectation of privacy in
the garage.       Consequently, Dumstrey's stop and subsequent arrest

in the garage did not violate the Fourth Amendment's prohibition

against unreasonable seizures.                     Stated otherwise, the seizure

did not occur after a warrantless entry into a constitutionally

protected area.           Accordingly, we affirm the decision of the

court of appeals.

    By     the    Court.—The         decision      of    the    court       of   appeals     is

affirmed.
    ¶52     REBECCA G. BRADLEY, J., did not participate.
                                              26
                                                                       No.    2013AP857-CR.dtp


    ¶53        DAVID    T.     PROSSER,       J.      (concurring).           The    majority

opinion       concludes        that    "the       parking     garage       underneath      this

apartment building does not constitute curtilage of Dumstrey's

home."    Majority op., ¶4.                 I join the majority opinion in this

conclusion and agree with its analysis in reaching it.                                    In my

view, the opinion does not preclude a different conclusion if

there were materially different facts.

    ¶54        The majority opinion also concludes that "Dumstrey has

shown    no    reasonable           expectation       of    privacy"    in    this   parking

garage.         Id.        I    also       join    the     majority    opinion       in    this

conclusion.

    ¶55        I   write       separately         because    the    opinion     states      the

central question to be "whether the parking garage underneath

the apartment building constitutes curtilage of Dumstrey's home

such that it is protected by the Fourth Amendment."                                  Id., ¶3

(emphasis added).              Implicit in this question is the principle

that police may not arrest a person on probable cause if the

person is found within the curtilage of the person's home unless
the police have an arrest warrant or there is a well-recognized

exception          to   the         warrant       requirement         such     as    exigent

circumstances.          I      do    not    agree     with    a    broad     principle     that

police may not arrest a person on probable cause when the person

is within the person's own curtilage but not within the home.

In my view, a broad principle to this effect would constitute a

serious       mistake   of      law    and    an      impractical      hardship      for    law

enforcement.



                                                  1
                                                       No.   2013AP857-CR.dtp


    ¶56    "[W]hat the Constitution forbids is not all searches

and seizures, but unreasonable searches and seizures."               Elkins

v. United States, 364 U.S. 206, 222 (1960).             As the majority

recognizes, "It is a 'basic principle of Fourth Amendment law'

that searches and seizures inside a home without a warrant are

presumptively unreasonable."       Majority op., ¶22 (quoting Payton

v. New York, 445 U.S. 573, 586 (1980)).           "It is axiomatic that

the 'physical entry of the home is the chief evil against which

the wording of the Fourth Amendment is directed.'"                Welsh v.

Wisconsin, 466 U.S. 740, 748 (1984) (quoting United States v.

United States District Court, 407 U.S. 297, 313 (1972)).

    ¶57    In State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127

(1990),   our   court   extended   the   Fourth   Amendment's   protection

against unreasonable seizures to curtilage:

         In deciding whether Walker's arrest was lawful,
    we begin by examining the nature of the protection
    that the fourth amendment provides to the home and the
    land next to the home.    In Payton v. New   York, 445
    U.S. 573 (1980), the United States Supreme Court held
    that the fourth amendment, made applicable to the
    states by the fourteenth amendment, prohibits police
    from making a warrantless and nonconsensual entry into
    a felony suspect's home to arrest the suspect, absent
    probable cause and exigent circumstances.    The Court
    has   also  determined   that  the   fourth  amendment
    protections that attach to the home likewise attach to
    the curtilage, which is defined generally as "the land
    immediately surrounding and associated with the home."
    Oliver v. United States, 466 U.S. 170, 180 (1984). In
    Oliver, the Court reasoned that the curtilage receives
    the fourth amendment protections that attach to the
    home because, "[a]t common law, the curtilage is the
    area to which extends the intimate activity associated
    with the 'sanctity of a man's home and the privacies
    of life.'"   Id. (quoting Boyd v. United States, 116
    U.S. 616, 630 (1886)).

                                     2
                                                                   No.    2013AP857-CR.dtp

          Read together, Payton and Oliver require that
     police obtain a warrant before entering either the
     home or its curtilage to make an arrest absent
     probable cause and exigent circumstances.      Under
     Payton and Oliver, therefore, absent probable cause
     and   exigent   circumstances, Walker's  warrantless
     arrest, although not occurring in his home, was
     unlawful if his fenced-in backyard falls within the
     curtilage of his home.
Walker, 154 Wis. 2d at 182-83 (footnote omitted).

     ¶58   In     my     view,    the     Walker       opinion     took    considerable

liberty with       Oliver, which was a search case involving open

fields,    and     was      striving      to    distinguish      open      fields      from

curtilage.       The Oliver Court noted that "the common law implies,

as   we    reaffirm         today,       that     no    expectation         of    privacy

legitimately attaches to open fields."                   Oliver, 466 U.S. at 180.

     ¶59   Surely,          no   expectation           of     privacy      legitimately

attaches   to     a    person's      driveway      or    front     yard,     or    even   a

backyard without special fencing, that is completely open to

public view.          "[T]he warrantless arrest of an individual in a

public place upon probable cause [does] not violate the Fourth

Amendment,"      and     "[w]hat     a    person       knowingly    exposes       to    the

public, even in his own house or office, is not a subject of

Fourth Amendment protection."                   United States v. Santana, 427

U.S. 38, 42 (1976) (first citing United States v. Watson, 423

U.S. 411 (1976); then quoting Katz v. United States, 389 U.S.

347, 351 (1967)).

     ¶60   Even       the    Walker      court,    in       distinguishing        Santana,

recognized that police might make an arrest on curtilage if the

curtilage is open to public view:

     The threshold of one's house is a place[,] although on
     private property, that is used by various members of
                                3
                                                       No.     2013AP857-CR.dtp

    the public and is visible to any person that passes by
    the house.   A fenced-in backyard, on the other hand,
    is not an area accessible to the public, and one is
    normally not visible to those passing by the front of
    the house.
Walker,   154    Wis. 2d at   184   n.16.      Consequently,     the   law   of

arrest may well be different from the law of search in relation

to curtilage.

    ¶61    The    Wayne   LaFave    treatise    on   search     and    seizure

discusses curtilage arrests in a section entitled "Basis for

Entry to Arrest":

         The cases involving arrests made on the premises
    (in the broad sense of that term) outside rather than
    inside the threshold deserve some attention at this
    point, for quite similar considerations govern there.
    Typically by reliance upon the Payton declaration that
    ordinarily the "threshold may not reasonably be
    crossed without a warrant," the courts have upheld
    warrantless arrests made in such places as the common
    hallway of an apartment building, or the yard191
    driveway,192 or porch193 or carport194 of a house.
    (There are conceivably special circumstances, however,
    in which some such place would carry with it such a
    high expectation of privacy that the Payton rule
    should govern.)
3 Wayne R. LaFave, Search & Seizure § 6.1(e), at 405-06 (5th ed.

2012) (footnotes omitted).

    ¶62    Footnotes 191-194 list multiple cases.               Footnote 191

reads in part: "Contra: State v. Walker, 154 Wis. 2d 158, 453

N.W.2d 127 (1990)" and quotes a sentence from Walker.

    ¶63    In a later supplement to footnote 191, LaFave states:

    Walker does not stand alone, as there is other
    authority to the effect that the on-curtilage lawful
    arrest limitations are just as stringent as those
    applicable to in-premises arrest. See note 57 supra.
    But, while the in-premises analogy arguably makes
    sense when the arrest occurs upon a part of the
    curtilage not open to visitors generally, e.g., the
                              4
                                                                         No.   2013AP857-CR.dtp

    back yard in Walker, it hardly follows that the same
    should be true regarding the arrest of someone who,
    e.g., steps out onto his front porch at police request
    and then is apprehended there.
3 LaFave § 6.1(e) n.191, at 52 (Supp. 2015).

    ¶64        The        majority     opinion           cites     six     cases     for     the

proposition      that        the     Fourth     Amendment         prohibits        entry    onto

curtilage for the purpose of making a warrantless arrest: United

States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010); United

States    v.    Brown,       510     F.3d 57,       64    (1st    Cir.     2007);    State     v.

Lewis, 675 N.W.2d 516, 523-26 (Iowa 2004); State v. Karle, 759

N.E.2d 815,          819-20        (Ohio      Ct.        App.     2001);       Jefferson       v.

Commonwealth, 497 S.E.2d 474, 480-81 (Va. Ct. App. 1998); and

State    v.    Mierz,        866    P.2d 65,        70-71       (Wash.   Ct.    App.       1994).

Additional cases may be cited.                      See 3 LaFave § 6.1(b) n.57, at

50 (Supp. 2015).

    ¶65        The ambiguity in some of these cases requires comment.

Despite       making       broad     statements          regarding       Fourth      Amendment

protections          on    curtilage,      these          courts     have      hesitated      to

foreclose all arrests on curtilage that is open to public view.
For example, in the Brown case, the court dutifully observed:

         The   Fourth  Amendment   protects  persons   from
    warrantless arrest inside their homes or other places
    where they have a reasonable expectation of privacy.
    One such place is the curtilage of the home.     Bilida
    v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000). Brown
    argues that he was standing in the curtilage of his
    home when he was arrested, and since the police lacked
    a warrant, the arrest violated the Fourth Amendment.
Brown, 510 F.3d at 64 (citations omitted).

    ¶66        However, Brown was standing in his driveway, and the
court concluded that the driveway adjacent to his garage next to

                                                5
                                                                  No.    2013AP857-CR.dtp


his trailer home was not part of the home's curtilage: "[O]ur

past cases reveal a number of general principles with respect to

driveways.        If    the   relevant        part   of   the   driveway      is   freely

exposed to public view, it does not fall within the curtilage."

Id. at 65.

    ¶67      In the Lewis case from Iowa, the court stated that

"[t]he   protection        provided      by    the   Fourth     Amendment      has   been

extended to the curtilage."              Lewis, 675 N.W.2d at 523.              However,

concerning the driveway adjacent to Lewis's home, "[W]e find the

driveway was not within the curtilage."                   Id.

    ¶68      In the Karle case, the Ohio Court of Appeals found an

arrest of the defendant "immediately outside his house" unlawful

because the police did not have an arrest warrant.                           Karle, 759

N.E.2d at 820.         However, the court was quick to add:

         As   this   court  has  held,   "[a]n  arrest   in
    contravention of the Fourth Amendment will not a
    fortiori   preclude subsequent criminal proceedings
    predicated upon the arrest.    Rather, the exclusionary
    rule provides only that evidence derived from an
    illegal seizure——fruit of the poisonous tree——is
    subject to exclusion at trial.
Id. at 821 (citation omitted).

    ¶69      In    State      v.     Mierz,       from    Washington,        the     court

determined    that      there      was   an    unlawful    arrest       in   defendant's

backyard that "was clearly not open to public use."                          Mierz, 866

P.2d at 71.        However, the court stated that "the police may

enter areas of the curtilage that are impliedly open," and it

cited a Washington Supreme Court decision, State v. Solberg, 861

P.2d 460 (Wash. 1993), in which the court "upheld a warrantless


                                              6
                                                                   No.    2013AP857-CR.dtp


arrest on a front porch of a home."                       Mierz, 866 P.2d at 71 &

n.7.

       ¶70    This      concurrence         does     not        attempt     to        be    a

comprehensive exegesis of the subject of warrantless arrest on a

defendant's curtilage.             It is, however, intended to suggest that

the language in the Walker case is too broad and that some

courts     that    "talk    the    talk"    do     not   "walk    the     walk"   because

walking      the   walk    would    make    little       sense   in   light      of   other

United States Supreme Court precedent.1                    When the Payton rule is

followed, the law is clear.             When the Payton rule is extended to

curtilage, the law will be open to constant dispute.

       ¶71    I    am   authorized     to    state       that    Justice    MICHAEL        J.

GABLEMAN joins this concurrence.




       1
       One post-2009 unpublished case by the Wisconsin court of
appeals, citable for persuasive purposes, seems to limit Walker.
In State v. Wieczorek, No. 2011AP1184-CR, unpublished slip op.
(Wis. Ct. App. Nov. 8, 2011), an officer responded to a driver's
home after receiving a dispatch regarding a hit and run.
Wieczorek, unpublished slip op., ¶¶3-5.   After knocking on the
front door and engaging with the suspected drunk driver, the
officer arrested the suspect on the suspect's porch.    Id., ¶6.
The circuit court concluded that the officer unconstitutionally
seized the driver "because the seizure took place in the
curtilage of his home," id., ¶8, but the court of appeals
reversed, reasoning that the circuit court "erred by determining
by reason of analogy that [the driver] had the same reasonable
expectation of privacy in his front porch as the defendant in
Walker had in his fenced-in backyard," id., ¶12.     Rather than
treating Walker as creating a per se rule prohibiting arrest on
curtilage, the Wieczorek court preferred a case-by-case analysis
of the privacy interests that would support or prohibit an
arrest. Id., ¶¶11-12.


                                             7
                                                                         No.2013AP857-CR.awb


      ¶72   ANN WALSH BRADLEY, J.                    (dissenting).        The majority's

application      of    the    Fourth       Amendment's        protections        creates   a

great    inequity      among    the       people      of     Wisconsin.         The    Fourth

Amendment protects the "right of the people to be secure in

their person, houses, papers, and effects, against unreasonable

searches and seizures..."

      ¶73   It does not distinguish among the types of dwellings

we call home, giving one more protection than another.                            There is

no   room   in    the    language         for       this    court   to     do   otherwise.

Nevertheless, under the majority opinion, the protections of the

home now apparently depend on whether an individual lives in a

single-family or multi-family dwelling.

      ¶74   The        majority          concludes         that     Dumstrey's         locked

underground parking garage that is attached to his apartment

building is not curtilage.                Majority op., ¶51.             As a result, it

allows    the    Government         to    forcibly         enter    Dumstrey's        locked,

underground parking garage without a warrant.

      ¶75   The analysis of the majority is infirm in a number of
ways: (1) it conflates curtilage with a reasonable expectation

of privacy; (2) it skews the analysis by shifting the focus onto

the other tenants in Dumstrey's building, rather than on the

government;      and    (3)    it    disregards            controlling     Supreme      Court

precedent.       Perhaps its biggest infirmity is that it ignores the

collective right that residents of apartments or condominiums

have to exclude all individuals that do not have a legitimate

purpose on their property.



                                                1
                                                                       No.2013AP857-CR.awb


       ¶76    Contrary to the majority, I conclude that the parking

garage       here     is     curtilage.     As       a   result,     the   government’s

warrantless,         non-consensual        intrusion         into   Dumstrey's    parking

garage and the resulting search and seizure, violated Dumstrey's

Fourth Amendment rights.                Accordingly, I respectfully dissent.

                                                I

       ¶77    The     primary      issue    presented         is    whether    Dumstrey’s

garage is curtilage.              If it is, then it is considered part of

the home for Fourth Amendment purposes.

       ¶78    "[W]hen it comes to the Fourth Amendment, the home is

first among equals.              At the Amendment's 'very core' stands 'the

right of a man to retreat into his own home and there be free

from     unreasonable            governmental         intrusion.'"            Florida   v.

Jardines, 133 S. Ct. 1409, 1414 (2013) (quoting Silverman v.

United    States,          365   U.S.    505,   511      (1961).      "[T]he    right   to

retreat would be significantly diminished if police could enter

a man's property to observe his repose from just outside the

front    window.            We    therefore         regard    the   area   'immediately
surrounding and associated with the home'——what our cases call

the curtilage——as 'part of the home itself for Fourth Amendment

purposes.'          That principle has ancient and durable roots."                      Id.

(internal citation omitted).

       ¶79    The determination of whether Dumstrey's parking garage

is curtilage presents a fact specific analysis.                                See,   e.g.,

State v. Leutenegger, 2004 WI App 127, ¶21 n.5, 275 Wis. 2d 512,

685 N.W.2d 536.            The facts of this case are not in dispute.



                                                2
                                                                              No.2013AP857-CR.awb


       ¶80       Officer DeJarlais was off-duty, on his way home from a

Milwaukee Brewers baseball game where he had a couple of beers

when   he    first        observed        Dumstrey.               After    observing      Dumstrey

tailgating and passing other cars, Officer DeJarlais pulled up

next   to    Dumstrey         at    a     red    light.          Officer    DeJarlais        was   not

wearing      a    police       uniform          and       was    driving    his    own    personal

vehicle.

       ¶81       While    both      vehicles          were       stopped    at    a    red    light,

Officer DeJarlais flashed his badge at Dumstrey, and verbally

commanded        him     to    wait     for      the       police.         Dumstrey      stared     at

Officer DeJarlais with a blank look on his face. When the light

turned green, Officer DeJarlais went through the intersection

and    pulled      over.       Dumstrey          eventually          proceeded        through      the

intersection and pulled up next to Officer DeJarlais.                                         Again,

Dumstrey did not say anything to Officer DeJarlais, stared at

him, and drove away.

       ¶82       Officer DeJarlais followed Dumstrey into the driveway

of an apartment building's parking lot.                                   He watched Dumstrey
enter an underground parking garage using a remote control to

enter the locked garage door.                         After following Dumstrey into the

underground        parking         garage,       Officer         DeJarlais       parked      his   car

directly     under       the       door    to     immobilize         it,    de-activating          the

security system.              When Officer DeJarlais exited his car and made

contact with Dumstrey in the parking garage, Dumstrey commented

that he did not believe DeJarlais was a police officer.

       ¶83       Dumstrey's parking garage is underground, locked and
secured from the general public.                                Only tenants who pay for a

                                                      3
                                                                        No.2013AP857-CR.awb


parking       spot     can    access     the        garage     or   use      the   elevator

connecting the apartment building to the underground garage.

       ¶84    The State acknowledged that if the garage door had

closed before DeJarlais forced it to remain open, it would have

been unreasonable under the Fourth Amendment for the State to

forcibly break and enter through the garage door to search.

Even the majority acknowledges that "Dumstrey has a personal

property interest in his parking place in the garage because he

lives    in    the     apartment       building       and    pays     for    his   assigned

parking location."            Majority op., ¶48.

       ¶85    At the outset of its curtilage analysis, the majority

at length discusses Katz v. United States, 389 U.S. 348 (1967).

Katz     considered          whether    government           conduct      constituted    an

unlawful search in violation of the Fourth Amendment by applying

the    reasonable       expectation      of        privacy    test.         Id.    However,

recent    United       States     Supreme      Court        precedent       requires    that

curtilage be analyzed separately from a reasonable expectation

of privacy.          See United States v. Jones, 132 S. Ct. 945, 952-953
(2012); see also Jardines, 133 S. Ct. at 1417.

       ¶86    In Jones, the Supreme Court held that the installation

of a GPS unit on an individual’s vehicle, even if he had no

reasonable expectation of privacy, was a search.                             132 S. Ct. at

949 (2012).          The court explained that "Jones’s Fourth Amendment

rights do not rise or fall with the Katz [reasonable expectation

of privacy] formulation."               Id. at 950.           Jones is clear that the

"Katz reasonable-expectation-of-privacy test has been added to,
not substituted for, the common-law trespassory test."                              Id. at

                                               4
                                                                          No.2013AP857-CR.awb


952 (emphasis in the original).                    Thus, after Jones, there are

now two separate avenues for finding a violation of the Fourth

Amendment: (1) trespass of property rights; and (2) a reasonable

expectation of privacy.

       ¶87     In    Jardines,      the     Supreme       Court    held       that    a   police

officer’s use of a trained police dog on a homeowner’s porch was

a search within the meaning of the Fourth Amendment.                                 133 S. Ct.

at 1417-18.           The court explained that                "[a]t the Amendment’s

'very core' stands 'the right of a man to retreat into his own

home     and        there    be      free     from        unreasonable          governmental

intrusion.'"         133 S. Ct. at 1414 (quoting Silverman, 365 U.S. at

511).        The    Jardines       decision    reinvigorated         a        test    based    on

trespass      of     property,      emphasizing       the    importance         of     property

rights, even in an area of the home that is semi-public.                                      See

also United States v. Burston, __ F.3d __, 2015 WL 7444379 (8th

Cir.     2015)      (concluding       that     a     grassy       area    surrounding         an

apartment was curtilage).

       ¶88     As the Jardines court acknowledged, the porch of a
home is a semi-public area.                   "[T]he knocker on the front door

"is treated as an invitation or license to attempt an entry,

justifying         ingress    to     the    home     by     solicitors,         hawkers       and

peddlers of all kinds."                   Jardines, 133 S. Ct. at 1415.                        An

implicit       license      allows    the     general       public       to    approach       the

porch, which is curtilage, and either be received or asked to

leave.       Id.     Thus, "a police officer not armed with a warrant

may approach a home and knock, precisely because that is 'no
more than any private citizen might do.'"                         Id. at 1416 (quoting

                                              5
                                                                        No.2013AP857-CR.awb


Kentucky v. King, 131 S. Ct. 1849, 1862 (2011)).                                 "The scope of

a license–express or implied–is limited not only to a particular

area    but    also    to    a     specific         purpose."         Id.         Accordingly,

curtilage may be semi-public for certain purposes and yet still

protected from government intrusion.

       ¶89     After Jones and Jardines, courts must analyze first

the    trespass       doctrine      separately         from     the    Katz           "reasonable

expectation of privacy test."                 Prior federal and state precedent

holding       that    an    area    is    not       curtilage    based           on    the    Katz

"reasonable          expectation         of     privacy       test"         is        no     longer

controlling.         Under the current state of the law, we must weigh

property rights more heavily than privacy considerations.                                      The

analysis is not whether the area is completely private.                                    Rather,

it is whether Dumstrey has a sufficient property interest that

would entitle him to be free from government intrusion in this

area.

       ¶90     In examining the contours of curtilage, courts look to

United States v. Dunn, where the court identified four factors
for determining whether an area is curtilage protected by the

Fourth Amendment: (1) the proximity of the area to the home; (2)

whether the area was within an enclosure surrounding the home;

(3) the nature of the uses to which the area was put; and (4)

the steps taken to protect the area from observation by passers-

by.    480 U.S. 294, 301 (1987).

       ¶91     The Dunn factors are not a precise formula, but are

"useful analytical tools only to the degree that, in any given
case,   they     bear      upon    the    centrally       relevant          consideration——

                                                6
                                                                   No.2013AP857-CR.awb


whether the area in question is so intimately tied to the home

itself that it should be placed under the home’s 'umbrella' of

Fourth    Amendment      protection."           Id.         Although    they      fail    to

consider    some    of     the   realities      of    modern     urban       living,     the

factors     nevertheless           are    helpful       and      Dunn        remains       a

quintessential curtilage case.

                                           A.

      ¶92   With the relevant facts and law in mind, we begin our

curtilage discussion with the first Dunn factor: proximity to

the home.        Analyzing the garage's proximity to the home, the

majority relies on United States v. Cruz Pagan, 537 F.2d 554,

558 (1st Cir. 1976), for the proposition that in an apartment

building "a tenant's [home] cannot reasonably be said to extend

beyond his [or her] own apartment and perhaps any separate areas

subject to his [or her] exclusive control."                    Majority op., ¶34.

      ¶93   In     applying      Cruz     Pagan,      the    majority     conflates        a

curtilage    analysis       with    a    reasonable         expectation      of   privacy

analysis.     Cruz Pagan rests its determination of curtilage on
the Katz reasonable expectation of privacy test.                             Cruz Pagan,

537 F.2d at 557 (citing Katz, 389 U.S. 347).                      According to Cruz

Pagan, "[t]he legal question which we must resolve is whether

the   agents'      entry    into    the     garage     defeated        the    reasonable

expectation of privacy of any of the appellants."                       Id. at 557.

      ¶94   In addition, the Cruz Pagan court explicitly rejected

the trespass analysis which we must now apply.                               Id. at 558

("Whether or not the agents' entry was a technical trespass is
not the relevant inquiry.").               Based on the Katz test which no

                                            7
                                                                                No.2013AP857-CR.awb


longer applies to a curtilage analysis under                                     Dunn, the        Cruz

Pagan court concluded that "a person cannot have a reasonable

expectation of privacy... in such a well travelled common area

of an apartment house or condominium."                            Id. at 588.

       ¶95      The majority's analysis of proximity to the home is

based on the premise, set forth in Cruz Pagan, that Dumstrey's

home       "cannot      reasonably          be    said       to    constitute          the     entire

apartment building."                 Majority op., ¶35.                 It explains that "his

29 fellow tenants would not consider their individual apartments

to    be    a    part     of     Dumstrey's         home,         and    Dumstrey       could      not

reasonably contend otherwise."                         Id., ¶37.          Rather than analyze

the distance from the apartment building to the parking garage,

the    majority         analyzes       proximity         in       terms    of     where      in    the

apartment        building       Dumstrey          has    a    reasonable         expectation           of

privacy.

       ¶96      According to the majority, if Dumstrey's individual

apartment rather than the apartment building is his home, it is

not proximate because he has to travel though shared hallways
and use a shared elevator to get to the garage.                                         Thus, the

majority concludes that "[w]hile the parking garage is located

directly        beneath    the       entire       apartment        building,       it     does     not

follow      that     it   is     therefore         closely        proximate       to    Dumstrey's

home."       Majority op., ¶35.

       ¶97      Given     that       Cruz    Pagan      is    not       controlling       as      to    a

curtilage        determination,             the    majority         missteps       in     analyzing

proximity        only     in    terms       of    Dumstrey's            individual      apartment.
Even   if       Dumstrey       has    to    travel       though         common    areas      of    his

                                                   8
                                                                              No.2013AP857-CR.awb


apartment     to     get     to   the     garage,         the    real        question    here    is

distance,     rather       than     the    privacy        he     has    in     the    hallway   or

elevator while he travels to the parking garage.                                 Additionally,

Cruz   Pagan       pre-dates      Dunn     and      the       court     did     not    apply    the

requisite Dunn curtilage factors.

        ¶98 In this case, the parking garage is located directly

underneath Dumstrey's apartment building.                             Dumstrey travels from

his apartment to the parking garage through a locked hallway and

elevator,      without       ever      going     outside.               As    this     Court    has

explained, "no bright-line rule exists for ascertaining when a

distance is in close proximity, and cases are often inconsistent

in this regard."           State v. Martwick, 2000 WI 5, ¶33, 231 Wis. 2d

801, 604 N.W.2d 552.              For example, in State v. Williford, which

is cited by the majority, the court concluded that an uncovered

parking      lot    located       in    front       of     the        defendant's       apartment

building "was in close proximity to the building." 767 S.E.2d

139, 143 (N.C. Ct. App. 2015).                      If an uncovered lot in front of

an apartment building is in close proximity to the home, then an
underground         garage    that        is   accessible             without        exiting    the

building is surely in close proximity.                           Accordingly, I conclude

that the parking garage is proximate to Dumstrey's home.

                                               B.

       ¶99    The    majority's         analysis         of     the    second    Dunn     factor,

whether the area is enclosed, is also based on the Cruz Pagan

premise that Dumstrey's home is limited to his own apartment.

It reasons that even though the underground parking garage is
part    of     the     same       enclosure          as       the      apartment        building,

                                                9
                                                                      No.2013AP857-CR.awb


"Dumstrey's 29 fellow tenants' apartments are likewise included

within the same enclosure as his own apartment."                           Majority op.,

¶39.       According to the majority's analysis, the parking garage

must       be    enclosed       within    the    same     four   walls     of   Dumstrey's

apartment only, because "it cannot reasonably be contended that

each       of    these    tenants'       homes    constitutes     part     of   Dumstrey's

home."          Id.    This logic finds no support in the law.1

       ¶100 In United States v. Perea-Rey, a post-Jones case that

applied the Dunn factors, the Ninth Circuit found that a carport

met the enclosure factor.                      680 F.3d 1179, 1184 (2012).                The

carport          was    enclosed     by    a     fence,    blocking       passersby      from

entering the driveway and carport.                        Id. at 1184-85.         Although

Dumstrey’s            parking   garage     was    not     enclosed   by    a    fence,    the

locked underground parking garage could only be accessed with a

garage door opener or a key for a locked door.                        A fence may make

sense in a rural environment, but a locked garage door serves

the same purpose in an urban environment.2

       1
       Although not cited in support of its "enclosure" analysis,
the majority cites to a string of cases allegedly supporting its
"nature of use" analysis that hold that unenclosed parking lots
are not curtilage. Majority op., ¶41. Not a single case cited
by the majority analyzes the enclosure in terms of whether it is
contained within the four walls of an individual tenant's
apartment.
       2
       Although we must apply the Dunn factors, I observe that
this framework is imperfect in determining curtilage in an urban
setting.   The curtilage factors in Dunn arose in, and apply
primarily to, rural dwellings. See Carrie Leonetti, Open Fields
in The Inner City: Application of the Curtilage Doctrine to
Urban and Suburban Areas, 15 Geo. Mason U. Civ. Rts. L.J. 297,
311 (2005) (explaining "[o]ne of the difficulties in the
application of the Dunn factors to urban areas is their
epistemological reliance upon a suburban conceptual framework.
                                                     (continued)
                               10
                                                              No.2013AP857-CR.awb


      ¶101 In Coffin v. Brandau, the Eleventh Circuit determined

that "entering the garage as [the defendant] attempted to close

it was a violation of the Fourth Amendment."            642 F.3d 999, 1013

(11th Cir. 2011).          The Brandau court concluded that the garage

was enclosed because "the attached garage has walls on three

sides and has the capability, if the outside door is rolled

down, of being closed to maintain privacy."            Id. at 1012.       It is

clear from Officer DeJarlais's actions that the locked garage

door blocked passersby from entering Dumstrey's parking garage.

The only reason Officers DeJarlais and Lichucki were able to

access Dumstrey's garage was because Officer DeJarlais used his

vehicle to forcibly keep the garage door open.            Thus, I conclude

that Dumstrey's parking garage is enclosed.

                                       C.

      ¶102 In analyzing the nature of the use, the third Dunn

factor, the majority cites to a string of cases that conclude

unattached, unenclosed parking garages are not curtilage.                    See

Majority Op., ¶41 (citing Williford, 767 S.E.2d at 142-43 (entry
into a parking lot directly adjacent to a multi-unit apartment

building); Mack v. City of Abilene, 461 F.3d 547, 554 (5th Cir.

2006) ("the parking space was in an open parking lot, the lot is

a   common   area   used    for   parking   with   multiple    spaces,    and   a

vehicle parked in the lot is not shielded from view by others");

Commonwealth v. McCarthy, 705 N.E.2d 1110, 1113 (Mass. 1999)

(common parking lot with guest spaces freely visible to anyone

Factors like proximity to the home or the existence of a fence
make sense only in a relatively rural area.").


                                       11
                                                                     No.2013AP857-CR.awb


entering the lot); State v. Harnish, 931 P.2d 1359, 1364 (Nev.

1997) (parking lot was open to view of the general public and

not enclosed)).       Based solely on this, the majority concludes

that "parking alone constitutes a use associated with neither an

intimate activity of the home nor a privacy of life."                             Majority

op., ¶41.

    ¶103 As    the     dissent       in   the       court    of    appeals        decision

recounted, "Dumstrey uses his garage in many of the same ways

that middle America utilizes its garages in the 'privacies of

life'–the   keeping     and    storing         of    his    vehicle      in   a    secure

setting, the ability to have a relatively warm vehicle during

Wisconsin's frigid winters, the avoidance of wind and rain when

accessing his vehicle, the safety and security of an elevator

from garage to residence, and the avoidance of crime in the open

streets."      Dumstrey,       359    Wis.          2d   624,     ¶23    (Reilly,      J.,

dissenting).    None of these uses would apply to an unenclosed,

unattached lot.       Accordingly, I conclude that Dumstrey's parking

garage is used for the intimate activities of the home.
                                          D.

    ¶104 With respect to the final Dunn factor, the steps taken

to protect the area from observation by passers-by, the majority

attempts to skew the focus from the government intrusion to the

other tenants in the building.             The majority claims that "[t]he

relevant    inquiry    []     is   not    whether          the    parking     garage    is

generally shielded from the public at large.                            Rather, we are

concerned with whether Dumstrey has taken steps to shield his



                                          12
                                                                        No.2013AP857-CR.awb


assigned parking space from the view of passersby within the

parking garage."            Majority op., ¶44.

    ¶105 The majority’s shift of exclusive focus on the other

tenants finds no support in the law.                     Even the case the majority

cites for this proposition states the opposite:                            "We have held

that an area is not within the curtilage if it is open to public

view, and is one which 'visitors and tenants on the property

would    pass    on     the    way   to      the    front    door.'"    Commonwealth      v.

McCarthy, 705 N.E.2d at 1111 (Mass. 1999) (quoting Commonwealth

v. Simmons, 466 N.E.2d 85, cert. denied, 469 U.S. 861 (1984)).

Dumstrey's parking garage is not open to public view, nor is it

an entrance to the building though which visitors would pass

because it is locked and fully enclosed.

    ¶106 Under Jones and Jardines, the focus ought to be on

whether the garage is private property on which the government

cannot trespass, not whether other tenants who share private

property also have a right to be there.                       "The fact that Dumstrey

and his cotenants share the garage does not defeat the fact that
each of the tenants has secured the garage from the general

public    and    the        government       through    their       collective   actions.

Dumstrey may have a lessened amount of privacy among his fellow

tenants,        but     he     and     his         fellow    tenants       retain       their

constitutional         right    to     be    free     from   unreasonable       government

intrusion."            Dumstrey,       359     Wis.    2d    624,    ¶25     (Reilly,    J.,

dissenting).

    ¶107 In           its    attempt      to   bolster       its    skewed    focus,     the
majority relies on McCarthy, yet the actual facts of that case

                                               13
                                                                          No.2013AP857-CR.awb


make       it    readily    distinguishable.             It     addressed     a    visitor's

parking space in an open parking lot.                           In McCarthy, the court

explained that "[t]he parking space in which the defendant's car

was situated when searched is not only an area that visitors

would normally pass through on the way to the building, it is an

area specifically designed to accommodate such use by visitors."

McCarthy, 705 N.E.2d at 1113.                  The McCarthy court reasoned that

"[b]ecause         the     defendant     had        no   reasonable       expectation      of

privacy in the visitor's parking space, the space was not within

the curtilage of the defendant's apartment."3                          Id. at 1114.

       ¶108 Mistakenly, the majority twice describes the parking

lot in McCarthy as an "enclosed parking area."                              Majority op.,

¶44.        However,       in   discussing      McCarthy,        the     Supreme    Judicial

Court       of    Massachusetts        commented         that     "the    space     was   not

enclosed in any manner."               Commonwealth v. Fernandez, 934 N.E.2d

810, 816 (Mass. 2010).             In fact, none of the cases cited by the

majority         involve    a    locked,       enclosed         parking    garage.        See

Majority op., ¶41.
       ¶109 In        conclusion,        a      curtilage         analysis        with    the

application of the Dunn factors is based on property rights and

trespass, not a reasonable expectation of privacy.                                The proper

analytical framework ought to be whether the area is protected

from government intrusion, not whether other tenants also have a


       3
       As discussed above with respect to United States v. Cruz
Pagan, the McCarthy case was decided prior to Jones and is of
limited analytical value because its curtilage analysis is based
in part on the Katz reasonable expectation of privacy test.


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right to use the garage.         Based on the facts of this case as

analyzed above, I conclude that Dumstrey's parking garage is

curtilage.4    It was in close proximity to his home, enclosed, was

used for the intimate activities of home, and was protected from

public view.     Thus, the officers' entry into Dumstrey's garage

was a trespass in violation of the Fourth Amendment.

                                      II

     ¶110 From      the      outset,       the    majority      needlessly

differentiates between whether a search or a seizure occurred in

this case.5    Although it concludes that Dumstrey was seized in

the parking garage, the majority contends that "Dumstrey was not

subjected to a search while stopped in the parking                   garage."

Majority op., ¶19.        In concluding that no search occurred, the

majority opinion disregards controlling           United States Supreme

Court precedent.     See Jones, 132 S. Ct. 945.          "Jones provides

the bright-line rule: when government agents physically touch a

person's   property,      then   a   search   occurs   under   the    Fourth




     4
       After concluding that Dumstrey's garage is curtilage and
that the police trespassed in violation of the Fourth Amendment,
I do not need to reach the issue of whether Dumstrey had a
reasonable expectation of privacy in the garage.    Under Jones,
the Katz reasonable expectation of privacy test is only
applicable to cases when there was no trespass onto a
constitutionally protected area.    See, e.g., United States v.
Jones, 132 S. Ct. 945, 953-54 (2012) (explaining that situations
in which there is no trespass are still subject to the Katz
reasonable expectation of privacy test).
     5
       This issue was not briefed or argued by either of the
parties, nor is it necessary to the outcome of the case.


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Amendment."         Paul A. Clark, Do Warrantless Breathalyzer Tests

Violate the Fourth Amendment, 44 N.M. L. Rev. 89, 105 (2014).

       ¶111 In      Jones,        "[t]he        Government        physically         occupied

private property for the purpose of obtaining information."                                132

S. Ct. 945, 949 (2012).                 The Jones court determined that "[w]e

have no doubt that such a physical intrusion would have been

considered a 'search' within the meaning of the Fourth Amendment

when it was adopted."             Id.; see also United States v. Perea-Rey,

680   F.3d    1179,       1185    (2012)    ("Warrantless            trespasses       by   the

government into the home or its curtilage are Fourth Amendment

searches."); see also Florida v. Jardines, 133 S. Ct. 1409, 1417

("That the officers learned what they learned only by physically

intruding on Jardines' property to gather evidence is enough to

establish that a search occurred.").

       ¶112 The court in Perea-Rey, which is factually similar to

this case, determined that a border agent's trespass into a

carport      was    a     warrantless      search        that    violated      the    Fourth

Amendment.         680 F.3d at 1189.                 In that case, a border patrol
agent entered a carport attached to the side of a house.                              Id. at

1183.     The      border       agent    made    contact      with      Perea-Rey     in   the

carport and instructed him to wait in the carport until other

agents arrived and arrested him.                        Id.      Following the Supreme

Court's   holdings         in    Jones    and        Jardines,    the    Perea-Rey      court

applied      the    Dunn    factors.        It        determined       that    because     the

carport was curtilage, the border agent had conducted a search

in    violation      of    the    Fourth    Amendment           when    he    occupied     the
carport without a warrant.               Id. at 1189.

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    ¶113 Similarly,           in    this      case,    Officers     DeJarlais     and

Lichuki occupied private property when they entered Dumstrey's

parking garage without a warrant.                     DeJarlais deactivated the

locked     underground        garage's        security     system    by     forcibly

preventing the garage door from closing.                  As he testified:

    My vehicle was partially outside and the front end was
    inside.   That way I knew when the officers got there
    they would be able to get into the garage otherwise
    the garage door would have come down and they wouldn't
    have been able to get in. So I purposefully stayed in
    the center so the garage door wouldn't come down.
Officer Lichucki arrived and entered Dumstrey's garage through

the door that was forcibly kept open by Officer DeJarlais's car.

    ¶114 The officers also entered the garage for the purpose

of obtaining information.              Lichucki testified that he entered

the garage in order to begin "the investigation as far as what

happened."         As   the        majority     explains,     "Officer      Lichucki

questioned Dumstrey and observed his physical characteristics,

including    his   swaying,        slurred      speech,    glassy   and    bloodshot

eyes, and the odor of intoxicants emanating from his person."

Majority op., ¶18.        He asked Dumstrey to perform three field

sobriety tests and submit to a breathalyzer test.6                          Dumstrey

refused and was arrested for operating while intoxicated.

    ¶115 The majority contends that no search occurred because

Officer Lichucki arrested Dumstrey "based on observations of his

physical    characteristics         without      further    invading      his   bodily


    6
       The majority concedes that a blood draw is a search under
the Fourth Amendment, but contends that no search occurred here
because Dumstrey refused to submit to a breathalyzer test.
Majority op., ¶20 n.5.

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integrity."       Majority op., ¶20.             It incorrectly relies on the

"plain view" doctrine, which allows police to seize evidence in

plain     view    without    a     warrant      under     certain        circumstances.

Arizona v. Hicks, 480 U.S. 321, 325 (1987).                     However, the "plain

view"    exception    does    not    apply      when     officers       encroach       on    a

protected area.           See, e.g., Jones, 132 S. Ct. 945, 952 ("the

officers     in    this     case     did     more      than         conduct     a    visual

inspection...       officers       encroached       on     a        protected       area.")

(emphasis supplied).

    ¶116 The correct determination of whether a search occurred

depends    on     whether    the    parking      garage        is    curtilage.         The

majority's analysis is backwards because it concluded that no

search     occurred       before    determining         whether        the     garage       is

curtilage.       It disregards controlling Supreme Court precedent by

ignoring the rule of Jones and Jardines that trespass onto a

protected area in order to obtain information is a search in

violation of the Fourth Amendment.                  See Jones, 132 S. Ct. at

949; see also Jardines, 133 S. Ct. at 1417.                     As set forth above,
Dumstrey's garage is curtilage.                 Thus, the officers conducted a

warrantless search in violation of the Fourth Amendment when

they occupied a protected area of Dumstrey's home in order to

obtain information.

    ¶117 In sum, for the reasons set forth above, I conclude

that the parking garage here is curtilage.                           As a result, the

warrantless intrusion into Dumstrey's locked underground parking

garage,     and     the     resulting      search        and        seizure,        violated



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Dumstrey's Fourth Amendment rights.         Accordingly, I respectfully

dissent.

    ¶118 I   am   authorized   to   state    that   Justice   SHIRLEY   S.

ABRAHAMSON joins this dissent.




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