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Wisconsin Supreme Court Rules on OWI Stop in Private Parking Garage

The area around a person's home, in legal terms, is called the curtilage. This area is constitutionally protected from warrantless search and seizure. For example, a police officer would generally need a warrant to enter and search your yard, your private garage or another area around your home where you have a reasonable expectation of privacy.

The question of what constitutes curtilage is a recurring issue in criminal law, and the Wisconsin Supreme Court recently ruled on the matter in a Waukesha OWI case.

A quick breakdown of the traffic stop:

In 2012 an off-duty police officer followed a Waukesha man who had allegedly been driving erratically. The officer, who was not in uniform, pulled his vehicle up alongside the man and flashed a police badge, but the man didn't stop.

Instead, he drove to the underground parking garage beneath his apartment building. The officer followed, and after the man had opened the garage door and driven inside, the officer parked his personal vehicle beneath the door to keep it from closing.

Then the officer entered the garage on foot and approached the man. Eventually, another officer arrived, and while questioning the man, the officers claim to have observed signs of intoxication.

The man refused field sobriety tests and was arrested, and a blood test later showed that his blood-alcohol level was 0.178 -- over the legal limit.

The question before the high court: does a private parking garage constitute curtilage?

After being charged with second-offense OWI, the man moved to the have the evidence against him suppressed, claiming that it was inadmissible because it was the result of an unlawful police stop.

He argued that the private parking garage, which was accessible to 30 apartments, constituted curtilage.

The majority of the court disagreed, though, concluding that the parking garage was not part of the curtilage of the man's home. Why? In part because the garage was not attached to the man's apartment itself.

Additionally, the court ruled that the man did not have a reasonable expectation of privacy in the garage. However, in the majority opinion, Chief Justice Roggensack wrote, "we do not foreclose the possibility that a person may exhibit a reasonable expectation of privacy in a smaller, more intimate multi-unit building."

In other words, a person may have a reasonable expectation of privacy in a private parking garage, but not in this instance.

The ruling illustrates the case-by-case basis on which searches and seizures are deemed legal or illegal.

If you have been charged with drunk driving in Wisconsin, then don't hesitate to go with your best possible defense. What you should never do is assume that a conviction is automatic. An experienced and results-driven criminal defense attorney will explore every available option to have the charge reduced or entirely dismissed.

For more on these matters, please see Kim & LaVoy's OWI overview. Our attorneys have a strong record of success in defending the rights of individuals charged with drunk driving in Wisconsin. 

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