State v. Kirby
State v. Kirby
Opinion of the Court
¶ 1. Cordarol Kirby appeals his conviction for possessing a sawed-off shotgun, arguing that the evidence of it should be suppressed because a police officer entered the premises containing the shotgun without a warrant, without consent, and without exi
Facts
¶ 2. On September 19, 2011, at about 4:10 p.m., a Racine police officer was dispatched to the area of 16th Street and Packard Avenue in response to "a report of a large group fighting." When the officer got to the corner, there was no active fighting, and she drove around the area to see "if anybody would flag me down that needed assistance or had been assaulted." No one did. There were pedestrians walking around outside because it was a busy time of day in the neighborhood.
¶ 3. While the officer was completing this "area check," she received a phone call from an investigator with information from an informant "that the main aggressor in the fight was a black male wearing a black sweatshirt and ... a black Chicago Bulls baseball hat." This same informant also reported that the aggressor "was threatening to come back to the area with a gun."
¶ 4. At some point around the same time the officer got a second dispatch telling her that the landlord of an apartment building at 1652 Washington Avenue "thought that maybe some of the juveniles that had been fighting had gone into" that building. Another
¶ 5. The two officers proceeded to 1652 Washington Avenue, where a female tenant let them in. Inside the building the officers found a man walking down the hallway away from apartment number 1. They stopped the man, who identified himself and said that he was leaving from apartment number 3. When one of the officers pointed out that apartment number 3 was right behind them, where they were currently standing, the man agreed to show them the apartment he actually came from, which turned out to be apartment number 1, not apartment number 3.
¶ 6. The door to apartment number 1 was already "wide open" when they reached it. There were five men inside, one of them standing in the doorway. The officers noticed that one of the men inside was wearing a Chicago Bulls cap. The female officer then called the investigator who had told her that the aggressor in the fight wore a Chicago Bulls cap. It turned out that the particular cap worn by the individual in apartment number 1 matched the informant's description of the aggressor's hat: " 'Chicago' in large letters written across the front and . . . the Chicago bull in the center."
¶ 7. At that point, the officers asked the man wearing the Chicago Bulls cap to step into the hallway for questioning, and he complied. The officers also decided to identify the men in the apartment, in case later someone reported that they were assaulted during the fight earlier that day. The man in the Chicago Bulls cap, Kirby, spoke to one officer in the hallway while the other officer interviewed the rest of the men in the apartment.
¶ 9. The officer who was inside the apartment testified at the suppression hearing that she told the men "to knock it off and behave, basically," and was just about to leave, when she received another phone call with more information about the fight. The investigator who called asked whether there was a black backpack in the apartment because an informant said that if there was a black backpack present, it had "a sawed-off shotgun and a handgun" inside. The officer testified that when she received this call about the shotgun, she was standing a few steps inside the apartment. She
¶ 10. She testified that when she saw the backpack there, she thought, "there are five people .. . and two police officers," which made her fear that the officers were "vulnerable." She "was concerned [one or more of the men] would either run or . . . try to grab at the backpack and if there was a weapon in there, get the weapon." She "decided that the safest thing to do would be to place everybody in handcuffs until I could check the backpack" for weapons. She was short one pair of handcuffs and therefore let Armstrong continue speaking on the phone to his mother, directing him "not to make any sudden movements."
¶ 11. After cuffing the men and instructing Armstrong to do as told, the officer picked up the backpack and asked if it belonged to anyone. In response "[everybody said that it was not their backpack." She asked again, and "[a]gain everybody said the backpack was not theirs." Kirby claimed that the backpack belonged to someone named "Quincey," but neither Kirby nor anyone else had any more details about Quincey: "it was just some guy who dropped the backpack off."
¶ 12. The officer announced her intention to open the backpack, if it belonged to no one there. No one objected. When she opened it, she found a loaded sawed-off shotgun inside. She then called for backup to help transport the men from the scene. Later, going through the backpack more thoroughly, she found a pair of pants inside and a medical card in the pocket with Kirby's name on it. Additionally, one of the other men identified Kirby as the owner of the backpack.
¶ 14. Thereafter Kirby pled guilty to possession of the sawed-off shotgun. He challenges the ruling on his suppression motion.
Analysis
¶ 15. Kirby makes much of the fact that the officer stepped over the threshold of the apartment during the initial discussion with the men. He claims that he has standing to assert a reasonable expectation of privacy in the apartment because he was a good friend of the host and stayed there often. Thus, he asserts, any search and seizure was unlawful and must be suppressed.
¶ 16. Certainly, the law is clear that unreasonable searches and seizures violate the state and federal constitutions. U.S. Const. amend, IV, Wis. Const. art. I, §11. Whether a guest has a reasonable expectation of privacy while in another's home depends upon how "firmly rooted" the guest's relationship is with the host
¶ 17. For brevity's sake, we assume without deciding that Kirby had a reasonable expectation of privacy in the apartment.
¶ 18. In the case at hand, exigent circumstances that developed during this investigation justified the warrantless search and seizure of the backpack with the sawed-off shotgun in it. This officer was in the midst of completing her interview of several men suspected of involvement in a fight nearby. She was even readying to leave with the admonition to tell the men to "knock it off." Then, she received information that the men possessed a black backpack with weapons in it — a sawed-off shotgun and a handgun.
¶ 19. Therefore, it is immaterial that, as it so happened, the officer had already stepped into the apartment when the exigent circumstances arose. Whether or not the men's behavior constituted consent to the officer's entry,
¶ 20. The remaining question is whether the officer violated Kirby's reasonable expectation of privacy by seizing and opening the backpack once she saw it close by. Even if one of the men had objected, which did not occur, exigent circumstances justified this intrusion as well. Once she visually confirmed that there was a backpack matching the description of the one that the informant said contained loaded weapons, sitting right next to the men, the officer was justified in checking the backpack. If there were no weapons, the possible danger to safety would be alleviated and the men could be released from their handcuffs with a minimum of intrusion. But for that to happen, the officer had to see if there were dangerous weapons at hand.
¶ 21. So, the exigent circumstances continued through the search of the backpack. But, there is a cogent alternative reason justifying the seizure and search of the backpack. Kirby disavowed any connection with the backpack, as did the other men. When asked, Kirby not only disclaimed any ownership interest in it, he claimed that it belonged to the elusive "Quincey." Although property interests are not determinative of privacy rights, disclaiming any right to control an item or any interest in it undermines one's privacy interest in the item. See State v. Whitrock, 161 Wis. 2d 960, 977, 468 N.W.2d 696 (1991) (noting that the defendant failed to demonstrate a reasonable expectation of privacy in stolen stereo equipment when he "did not assert dominion or control over [it]" and left it sitting in the residence from which his friend had been evicted). Kirby brought the backpack to an apartment from which he quite arguably had no right to exclude
¶ 22. We have discussed the centerpiece of Kirby's argument — that the officer stepped over the threshold without a warrant — and rejected it on exigent circumstances grounds. This is not to say that the "implied consent to enter" and "no expectation of privacy" approaches lacked merit. But it is an important point to make that, while exigent circumstances may justify entry, the fact that entry has already been made does not necessarily invalidate reliance on the exigent circumstances doctrine.
Judgment affirmed.
On appeal the State argues that Kirby lacked any reasonable expectation of privacy in the apartment. In support, the State cites State v. Whitrock, 153 Wis. 2d 707, 452 N.W.2d 156 (Ct. App. 1989), aff'd, 161 Wis. 2d 960, 468 N.W.2d 696 (1991). In Whitrock, the defendant was a guest of an evicted tenant of the apartment, and the tenant himself was not there at the time of the police encounter. See Whitrock, 161 Wis. 2d at 965-67. Here, in contrast, the uncontested testimony indicates that Kirby and Armstrong (who was one of the tenants of the apartment and whose mother spoke to the officers) had known each other since childhood and that at the time of this encounter, Kirby visited Armstrong's apartment approximately three times a week, staying for eight or nine hours at a time. In any case, in the end, our holding is such that this issue does not matter.
Though the informant's call mentioned both types of weapons, only a sawed-off shotgun was found in the backpack.
While mere acquiescence is not equivalent to consent, State v. Johnson, 177 Wis. 2d 224, 233-34, 501 N.W.2d 876 (Ct. App. 1993), consent can be implied, rather than expressed verbally, via "non-verbal form through gestures and conduct," State v. Tomlinson, 2002 WI 91, ¶ 37, 254 Wis. 2d 502, 648 N.W.2d 367. A strong argument can be made that, because the door was open, the men seemed very willing to discuss the matter with police and were freely cooperating, and the man who lived in the apartment asked the officer to speak to his mother who was on the telephone, the officer had at least limited consent to enter a few steps into the apartment so as to be able to hear the men who were giving her their names.
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent v. Cordarol M. Kirby
- Cited By
- 4 cases
- Status
- Published