COURT OF APPEALS

DECISION

DATED AND FILED

 

January 12, 2011

 

A. John Voelker

Acting Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.If published, the official version will appear in the bound volume of the Official Reports.

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.See Wis. Stat. ß 808.10 and Rule 809.62.

 

 

 

 

Appeal No.

2010AP1431-CR

Cir. Ct. No.2009CT501

STATE OF WISCONSIN†††

IN COURT OF APPEALS

 

DISTRICT II

 

 

 

 

State of Wisconsin,

 

††††††††† Plaintiff-Respondent,

 

†††† v.

 

Chad W. Ebert,

 

††††††††† Defendant-Appellant.

 

 

 

 

 

††††††††††† APPEAL from a judgment of the circuit court for Fond du Lac County:Robert J. Wirtz, Judge.Affirmed.

 

1††††††† REILLY, J.[1]Chad Ebert appeals from a judgment of the circuit court convicting him of operating a motor vehicle with a prohibited alcohol concentration (third offense).The issue in this appeal is whether the police had consent to enter Ebertís residence while they were conducting their investigation of a possible hit-and-run accident.As we defer to the circuit courtís factual conclusion that Ebertís uncle (who is also his landlord) consented to a search of Ebertís residence, we affirm Ebertís conviction.

FACTUAL BACKGROUND

2††††††† Early in the morning on May 3, 2009, Fond du Lac County Deputies Anthony Barr and Laura Halfmann were investigating a possible hit-and-run accident.Their investigation led them to Ebertís residence after they noticed ďgougeĒ marks along the road leading to Ebertís residence and in his driveway.They also found a damaged truck parked in Ebertís driveway.

3††††††† After arriving at Ebertís residence, the deputies were met by Ebertís uncle, who is also Ebertís landlord.Ebertís uncle arrived at the residence about ten to fifteen minutes before the deputies did after his wife received a call from Ebertís wife stating that Ebert had gotten into an accident and that she needed help.Deputy Barr testified that Ebertís uncle identified himself as the owner of the property and told Deputy Barr that the driver the deputies were looking for was inside the residence and that the deputies could go inside.Similarly, Deputy Halfmann testified that Ebertís uncle stated that he was the owner of the property, and that he directed the deputies to go inside the residence.

4††††††† Conversely, Ebertís uncle claims that he never gave the deputies permission to enter the residence.The uncle testified that ď[the deputies] asked me if I was the driver of the vehicle and I said no, heís upstairs sleeping and his wife is trying to wake him up.ĒEbertís uncle stated that at his point the deputies entered the residence without consent.

5††††††† Ebert was subsequently charged with operating a motor vehicle with a prohibited alcohol concentration (third offense) and operating a motor vehicle while intoxicated (third offense).Ebert filed a motion to suppress the evidence obtained by the deputies because the deputies did not have consent to conduct a warrantless search of Ebertís residence.The circuit court denied the motion after finding that the deputies were given permission to enter the residence.The court noted that the deputiesí description of the events was ďessentially the sameĒ and that their testimony was credible.Ebert subsequently pled no contest to the operating with a prohibited alcohol concentration charge (the operating while intoxicated charge was dismissed).He appeals the denial of his motion to suppress.

STANDARD OF REVIEW

6††††††† Whether Ebertís uncle consented to the search of Ebertís residence is a question of fact.We will not set aside the circuit courtís factual findings unless they are ďclearly erroneous.ĒWis. Stat. ß 805.17(2).

 

 

DISCUSSION

7††††††† The Fourth Amendmentís warrant requirement does not apply when police have consent to enter a dwelling.State v. Douglas, 123 Wis. 2d 13, 18, 365 N.W.2d 580 (1985).The issue in this appeal is whether Ebertís uncle consented to the search of Ebertís residence, or as the State succinctly put the issue to the circuit court, ď[i]f [the uncleís] story is correct, then [the deputies] had no authority to go in.If the [deputies] are telling the truth, they had consent to go in.ĒAs the circuit court in its fact-finding capacity is the ultimate arbiter of witness credibility and the weight to be given to each witnessí testimony, we affirm the circuit court decision that Ebertís uncle consented to the search of Ebertís residence.See Pindel v. Czerniejewski, 185 Wis. 2d 892, 898, 519 N.W.2d 702 (Ct. App. 1994).

8††††††† Ebert argues that the circuit court abused its fact-finding role in numerous ways.First, he argues that the circuit court violated ďthe long held proposition that the preponderance of the proof may be with one witness and that preponderance may not go with numbers.ĒEbert argues that just because two witnesses (the deputies) testify to something does not make it true.Ebertís argument fails as there is nothing requiring the fact finder to accept one witnessí testimony over anotherís.It is the fact finderís job to determine who to believe and in this case the circuit court found the deputiesí testimony more credible than Ebertís uncleís testimony.See id.

9††††††† Second, Ebert argues that the circuit courtís decision was capricious because it referred to Ebertís uncle as a ďso-called corrections officer, who isnít a police officer.ĒEbert argues that this comment shows a bias against Ebertís uncle.Ebert takes the circuit courtís comments out of context.At the motion hearing, Ebertís attorney argued that it would make little sense for Ebertís uncleóa correctional officeróto consent to a search of Ebertís residence.The State responded that Ebertís uncle may have let the deputies in to prevent Ebert from getting a criminal conviction, and that regardless the circuit court should not make an inference that a correctional officer would never want to comply with a police investigation.

10††††† The circuit courtís full explanation provides better context:

I mean, Mr. Melowski [Ebertís trial attorney], your presumption is that the so-called corrections officer, who isnít a police officer, should ďknow betterĒ and the presumption is that he shouldnít cooperate with the police and should demand a warrant or what have you.I donít know that I should make that presumption anymore than I should make [the Stateís] presumption that members of the public who are approached by the police are cooperative and they should let the police in.I think neither of those presumptions is supported by the evidence in any of the testimony here.

The record reveals that the circuit court was not disparaging Ebertís uncle; rather, the court was making clear that the uncleís profession did not affect the courtís credibility determinations.

11††††† Finally, Ebert argues that the circuit court ďma[de] excuses for the deputies regarding their poor memory.ĒIn addition to his uncleís testimony that he did not consent to the search, Ebert cites to two more examples of the deputiesí faulty memories.First, Ebert points out that Deputy Halfmann could not remember if Ebertís uncle said ďI permit you to enter the residence.Ē Second, Deputy Barr thought there was a porch with four to five steps leading up to Ebertís residence while Deputy Halfmann remembered a porch.Ebertís residence has neither a porch nor stairs leading to its entryway.

12††††† The circuit court was entitled to consider the deputiesí testimony more credible and persuasive than Ebertís uncleís testimony.The court appropriately exercised its fact-finding capacities when it decided that the deputies were telling the truth despite their inability to remember if Ebertís residence had a porch or steps in its entryway.As witness credibility is the province of the fact finder, we decline to reverse the circuit courtís determination that Ebertís uncle consented to a search of Ebertís residence.

CONCLUSION

13††††† We hold that the circuit court acted appropriately when it found that the deputies had consent to search Ebertís residence.The circuit courtís denial of Ebertís motion to suppress is affirmed.

††††††††††† By the Court.óJudgment affirmed.

††††††††††† ††††††††††† This opinion will not be published.See Wis. Stat. Rule 809.23(1)(b)4.

 

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[1]  This appeal is decided by one judge pursuant to Wis. Stat. ß 752.31(2)(f) (2007-08).All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.