Court expands guests' 4th amendment protections.

Byline: David Ziemer

Residents in a duplex have a reasonable expectation of privacy in a common interior stairway, and a guest need not stay overnight to have such an expectation either, the Wisconsin Court of Appeals held last week.

Matthew J. Trecroci owns a two-story residence in Kenosha. The building has been subdivided into two apartment units one on the first floor and the other on the second, in which Trecroci lives. An attic is located above the second floor.

Trecroci rented the attic to Scott E. Oberst, and Ryan J. and Ronnie J. Frayer. Oberst and the Frayers dried and sold marijuana in the attic and used it for socializing. They paid Trecroci their rent with marijuana.

Amy L. Wicks, the fiancee of Ronnie Frayer, was a frequent guest in the attic.

In October 1998, Kenosha police officers investigating a hit-and-run accident and came to the residence.

They entered the stairway without a warrant or consent. Ultimately, they searched the attic and Trecrocis apartment and discovered marijuana.

Trecroci, Oberst, the Frayers, and Wicks were charged with being party to the crimes of manufacturing a controlled substance and possession of a controlled substance with intent to deliver.

Kenosha County Circuit Judge David M. Bastianelli granted the defendants suppression motions, holding that they had reasonable expectations of privacy in the stairway, that the warrantless and consentless entry into the stairway by the officers was unlawful, and that the subsequent searches were the fruit of that unlawful entry.

The State appealed, but the District II (Waukesha) Court of Appeals affirmed in a decision by Judge Neal P. Nettesheim.

Noting that the issue of whether residents in houses with only a few units have a reasonable expectation of privacy in common areas is one of first impression in Wisconsin, the appeals court examined numerous cases from other jurisdictions.

Some held that apartment dwellers have an expectation of privacy in corridors, while others held to the contrary.

Other decisions turned on whether the building had many units or was only a duplex, and some held that even duplex dwellers have no expectation of privacy in any common areas.

Despite acknowledging that a bright-line rule would best permit police to regulate their conduct, the court declined to adopt such a rule, concluding that the interests of the Fourth Amendment are better served by assessing each case on its individual facts within the framework of State v...