State of Wisconsin, Plaintiff-Respondent, v. Faith N. Reed, Defendant-Appellant-Petitioner.
CASE NO.: 2016AP1609-CR (L.C. No. 2015CM545)
SUPREME COURT OF WISCONSIN
December 7, 2018
2018 WI 109 | 375 Wis. 2d 328 | 897 N.W.2d 68
SHIRLEY S. ABRAHAMSON, J.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 375 Wis. 2d 328, 897 N.W.2d 68 (2017 – unpublished). Oral Argument: September 7, 2018. Source of Appeal: Circuit Court, Monroe County, J. David Rice, Judge. Concurred: ZIEGLER, J., concurs. Dissented: ROGGENSACK, C.J., dissents.
For the defendant-appellant-petitioner, there were briefs filed and an oral argument by Joseph Ehmann, state public defender.
For the plaintiff-respondent, there was a brief filed by Clayton P. Kawski, assistant attorney general, Scott E. Rosenow, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Clayton Kawski.
REVIEW of a decision of the Court of Appeals. Reversed and cause remanded.
¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of an unpublished decision of the court of appeals affirming a judgment of conviction of the Circuit Court for Monroe County, David Rice, Judge.1 The case was decided by one judge, Judge Brian Blanchard, pursuant to
16).
¶2 In the circuit court, Reed claimed that the officer‘s warrantless entry into her apartment, sometimes referred to here as Unit 206, violated her rights under the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. Reed argued that the warrantless entry into her apartment was not justified under any of the well-recognized exceptions to the Fourth Amendment‘s warrant requirement. Specifically, Reed contended that the officer did not have consent to enter her apartment and that exigent circumstances did not exist justifying entrance to her apartment. Consequently, she argued that the evidence obtained during the searches of her apartment and her person should be suppressed.
¶3 The circuit court denied Reed‘s motion to suppress the evidence. The circuit court concluded that the law enforcement officer had consent to enter Reed‘s apartment, that the consent was never revoked, and that exigent circumstances justified the officer‘s pushing open the apartment door. The court of appeals affirmed the circuit court‘s denial of Reed‘s motion to suppress. The court of appeals agreed with the circuit court
¶4 The instant case presents the following issues: (1) whether the officer had consent to enter Reed‘s apartment; (2) if consent was initially given to the officer, whether that consent was revoked before the officer‘s entry into Reed‘s apartment; and (3) whether exigent circumstances justified the officer‘s pushing open Reed‘s apartment door.
¶5 We conclude as follows: (1) the law enforcement officer did not have consent to enter Reed‘s apartment; (2) even if the officer had initially been given consent to enter the apartment, which he was not, consent would have been unequivocally revoked before the officer‘s entry into the apartment; and (3) exigent circumstances did not justify the officer‘s opening Reed‘s apartment door.
¶6 The following principles of law apply in the instant case.
¶7 A warrantless search does not violate the Fourth Amendment of the United States Constitution or Article I, Section 11 of the Wisconsin Constitution if the search is conducted with consent3 or is justified by exigent circumstances.4
¶8 Consent to search must be unequivocal and specific,
¶9 In the instant case, the law enforcement officer neither requested nor obtained consent to enter Reed‘s apartment. Kirk Sullivan, who was staying with Reed at her apartment and led the officer to Reed‘s apartment, never told the officer that the officer was allowed to enter the apartment. In leading the officer to the threshold of Reed‘s apartment, Sullivan was merely following the directives and commands of the officer. Sullivan‘s conduct falls far short of unequivocal and specific consent that was freely and voluntarily given.
¶10 Moreover, even if Sullivan had initially given the
¶11 Additionally, a warrantless search may also be justified by exigent circumstances.9 “The objective test for determining whether exigent circumstances exist is whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life . . . or greatly enhance the likelihood of the suspect‘s escape.”10
¶12 We conclude that no exigent circumstances justified the officer‘s pushing open Reed‘s apartment door. Under the circumstances known to the officer at the time he pushed the door open, there were no facts upon which to base a reasonable belief that the delay in procuring a search warrant would gravely endanger life or greatly enhance the likelihood of the suspect‘s escape.
¶13 Accordingly, we conclude that the searches at issue violated the United States and Wisconsin constitutions. We
I
¶14 The following facts are drawn primarily from the body camera footage of Officer Steven Keller of the Tomah Police Department.
¶15 On December 13, 2015, at 1:20 p.m., Officer Keller was dispatched to 308 Murdock Street in Tomah, Wisconsin. Officer Keller was responding to a report of an altercation between two individuals that had taken place in the street. When Officer Keller arrived at the scene, he encountered two men later identified as Daniel Cannon and Kirk Sullivan. Officer Keller asked Cannon and Sullivan what was going on, and Cannon responded, “They were fighting over stupid shit.”11 Officer Keller asked, “Where are they?” Cannon pointed ahead, saying “One of them went back the house that way——” Cannon turned around, but before he could say anything else, Officer Keller asked Cannon if he and Sullivan were involved in the altercation. Cannon responded, “We were trying to stop it.”
¶16 Cannon then explained that “homeboy,” referring to the other individual involved in the altercation, “went back to his
¶17 Officer Keller asked Cannon, “Which apartment they in?” Cannon said that “they” were in number 11. Dispatch12 could be heard saying that as the parties to the altercation were leaving, a female and male in a white T-shirt went to “apartment number 11.” Cannon was heard off-screen chuckling and saying, “Yep, they‘re in number 11.”
¶18 Referring to the individual who went back to Sullivan‘s apartment to cool off, Cannon reappeared on screen and began talking to Officer Keller again, stating, “And he‘s——”
¶19 At this time, Officer Keller noticed that Sullivan, now a short distance away, was walking away towards his apartment building.
¶20 Officer Keller said loudly to Sullivan, “Hey, why don‘t you come back here. Don‘t just leave.” Sullivan turned around and walked back towards Officer Keller with his hands in his pockets as Cannon reiterated that the other individual went back to Sullivan‘s apartment to cool off. After a few seconds, Officer Keller told Sullivan to “[k]eep your hands out of your pockets for me, OK?” Sullivan removed his hands from his pockets and showed his open palms to Officer Keller.
¶22 Officer Keller then asked Sullivan, “So you were involved with this?” Sullivan responded, “I was just trying to break it up. That‘s it.”
¶23 Officer Keller then asked Cannon and Sullivan for identification. Describing Cannon and Sullivan as “witnesses,” Officer Keller radioed their names to Dispatch for a warrant check. While waiting to hear back from Dispatch, Officer Keller confirmed with Cannon and Sullivan that the altercation was a verbal argument about shoes that never got physical.
¶24 As Cannon and Sullivan were describing the altercation in greater detail, another male officer could be heard on Officer Keller‘s radio speaking with a female officer. The male officer said that he and “Andy” were “not having any luck” at apartment number 11. The female officer responded, “I have a Jerome Harris at that location. Contact with him on November 11th. Reference: a warrant.” As to Sullivan, the female officer commented, “Reference: a commitment.” The male officer asked the female officer to “run Jerome” and “look for a Brandon——maybe same last name.”
¶25 Officer Keller then asked Cannon and Sullivan, “Can you guys stick around this area for a moment?” Sullivan asked,
¶26 At this time, Cannon turned to Sullivan and said, “Well, cause he went to your house, he‘s at your apartment.” Sullivan responded, “Yeah, he supposed to go to my——my apartment to watch football.” Cannon then said to Officer Keller, “So, I mean, if you want to go with him and I can stand by where I live——” Officer Keller then asked Sullivan, “Who‘s at your house right now, one of the guys involved?” Cannon responded, “Yes.” Sullivan said, “Yeah he‘s supposed to——he was supposed to come to my house. He‘s supposed to.”
¶27 Officer Keller asked Sullivan, “All right, and he‘s over there right now?” Sullivan responded, “I——I don‘t know he was supposed to go.” Cannon said that he saw Jerome head towards Sullivan‘s apartment building after the argument ended and that Jerome “might be there already.”
¶28 Dispatch could be heard telling Officer Keller that Sullivan was on probation for battery, strangulation, and suffocation. Dispatch also told Officer Keller that Sullivan had contact restrictions with the defendant, Faith Reed.
¶29 Officer Keller asked Sullivan if “that” is where he was, referring to Reed‘s apartment. Sullivan said, “Mm-hm.” Officer Keller asked, “Is she there?” Sullivan answered, “Yeah,
¶30 Officer Keller asked Sullivan, “Who‘s over at your house right now that was involved with this? What‘s his name?” Sullivan responded, “Ah, Jerome. He was supposed to——he was supposed to go over there. I stood out here and me and him was talking about it.”
¶31 The same male officer from before could again be heard stating over the radio that nobody was answering the door at apartment number 11. This male officer asked if they thought Jerome was in number 11 and Brandon took off. Officer Keller responded into his radio, “Kirk‘s advising that Jerome might be at his residence over here and the others in number 11 there.” Officer Keller then asked, “Is it Brandon that was involved?” It is not clear to whom this question was directed, and nobody responded to it.
¶32 Officer Keller again confirmed with Cannon and Sullivan that the argument was verbal and not physical. Officer Keller then communicated that information into his radio. Over the radio, a male officer can be heard saying, “We‘re looking
¶33 Officer Keller then gestured towards an apartment building and said to Sullivan, “All right, let‘s go——ah——let‘s go look over——see if he‘s over there. If anything we could just talk to him.” Officer Keller told Cannon that he was “good to go.”
¶34 Officer Keller and Sullivan began walking towards Reed‘s apartment building with Sullivan walking to Officer Keller‘s left. As they walked, Dispatch could be heard saying that Jerome had two “body only” warrants, one of which was related to “operating while revoked.” After about 30 seconds, Officer Keller told Sullivan, “Hey, do you want to step over here with me. I‘m going to see if this other party‘s here.” Sullivan then began to walk in front of Keller such that he was clearly visible in the body camera footage.
¶35 With Sullivan in front of Officer Keller, the two entered an unlocked entryway to a stairwell in the apartment building. They climbed a set of stairs to the second story of the building. At the top of the stairs was another unlocked door. Sullivan opened the door, exited the stairwell, and looked back while holding the door open for Officer Keller. Sullivan then led Officer Keller to Reed‘s apartment, Unit 206, about halfway down the hallway on the left. Just as they reached the threshold of Reed‘s apartment, Officer Keller stated into his radio, “Andy, I‘ll be in apartment number 206.”
¶37 Reed was arrested for possession of marijuana. During the booking process, a single Adderall pill was found in Reed‘s sock. Reed was charged with one count each of possession of an illegally obtained prescription drug in violation of
¶38 On February 9, 2016, Reed filed a motion to suppress the evidence on the basis that the warrantless searches violated her rights under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. A hearing was held on March 15, 2016, at which Officer Keller testified and the prosecutor played relevant portions of Officer Keller‘s body camera footage.
¶39 At the hearing, Officer Keller admitted that Sullivan had not given him permission to go into Unit 206. Officer Keller testified that Sullivan “did not tell me that I had to stay out of the apartment nor did he tell me to just come right in, either.” Officer Keller testified that “[a]t no point did [Sullivan] tell me I could not follow him into the residence.” Officer Keller further testified that he pushed opened the door to the apartment in part out of concern for his own safety.
¶40 The circuit court denied Reed‘s motion to suppress. The circuit court concluded that “by his conduct Mr. Sullivan freely and voluntarily implied that the officer could follow him to [Unit 206] and that he was going to locate and identify Mr. Harris who was one of the suspects in connection with this altercation so that the officer could talk with him.” The circuit court found that it was not clear who closed the door
¶41 After the motion to suppress was denied, Reed pleaded no contest to possession of a controlled substance in violation of
¶42 The court of appeals, Judge Brian Blanchard sitting alone pursuant to
[T]o a typical, reasonable person, both of the following were unequivocally and specifically expressed: (1) Keller‘s request that Sullivan permit Keller to talk to Jerome in Unit 206, including proposing that “we could just talk to him,” and (2) Sullivan‘s consent, expressed through an extended course of conduct, that Keller enter Unit 206.17
¶43 The court of appeals disagreed with the circuit court‘s finding that it was ambiguous who closed the door. The court of appeals stated that “[i]t is clear that neither Jerome nor Reed pushed on the door from the inside,” such that “the only logical deduction from the video is that as Sullivan entered Unit 206 he applied slight to moderate pressure to the make [sic] the door slowly swing toward the closed position.”18
¶44 The court of appeals characterized Sullivan‘s attempted closing of the door as “a nuanced attempt to momentarily delay Keller‘s entrance, by slipping into the apartment and giving the door a soft backward push.”19 The court of appeals acknowledged that Sullivan‘s “last-second, soft backwards push on the door . . . suggests the possibility that Sullivan had last-second concern about agreeing to allow Keller to enter Unit 206[,]” but ultimately, the court of appeals
¶45 Reed petitioned this court for review in April 2017. The State did not file a formal response. After being ordered to do so by this court, the State filed a response in August 2017. In its response, the State agreed with Reed that Sullivan did not give unequivocal and specific consent for Officer Keller to enter the apartment. Rather, according to the State, Sullivan merely acquiesced to Officer Keller‘s request to broker a meeting with Jerome, and Sullivan did so by leading Officer Keller through areas that Officer Keller did not need consent to enter: a parking lot, the unlocked exterior door to a multi-unit apartment building, a set of stairs, and an unlocked hallway. The State wrote in its response that when they reached the apartment door, Sullivan “did nothing to suggest that entry was permitted. He did the opposite. Sullivan knocked, opened the door only wide enough to enter, slipped in, and attempted to push the door close[d]——indicating that he did not want Officer Keller to follow him.”
¶46 The State agreed with Reed that the court of appeals’ decision should be reversed, recommending that this court summarily reverse and remand the cause to the circuit court with an instruction to suppress the challenged evidence.
¶48 Nine days after we remanded the cause to the court of appeals for reconsideration, the court of appeals, Judge Blanchard again sitting alone pursuant to
Following the supreme court‘s October 10, 2017 order, I asked the parties to inform me whether new or supplemental briefing is necessary for purposes of resolving the reconsideration issue or instead whether I may rely on their submissions in the supreme court. They inform me that no new submissions are necessary.
I am not persuaded by the State‘s new legal argument on appeal and therefore do not accept the State‘s new concession.
IT IS ORDERED that reconsideration is denied.
¶49 In November 2017, Reed again petitioned this court for review, “reviv[ing] the issues raised in her initial petition for review.” As it did in response to Reed‘s first petition for review, the State responded to Reed‘s second petition by agreeing that Sullivan did not give express or implied consent
II
¶50 We begin by setting forth the applicable standard of review of the court of appeals’ decision affirming the circuit court‘s denial of Reed‘s motion to suppress evidence.
¶51 Whether evidence should be suppressed is a question of constitutional fact.21 When presented with a question of constitutional fact, this court engages in a two-step inquiry. First, we review the circuit court‘s findings of historical fact under the clearly erroneous standard.22 Second, we independently apply constitutional principles to these historical facts.23
III
The parties disagree about whether to apply the clearly erroneous standard or the de novo standard to the circuit court‘s findings of historical fact, given that the circuit court‘s findings were based on Officer Keller‘s body camera footage. See State v. Jimmie R.R., 2000 WI App 5, ¶39, 232 Wis. 2d 138, 606 N.W.2d 196 (1999) (when the only evidence on a factual question is reflected in a video recording, the court of appeals is in the same position as the circuit court to determine a question of law based on the recording).
We decline to address this disagreement because doing so is unnecessary in the instant case. As we explained above, even under the more deferential clearly erroneous standard, we reject the circuit court‘s finding with respect to who closed the apartment door.
¶53 In Boyd v. United States, 116 U.S. 616, 635 (1886), the United States Supreme Court issued the following guidance: “It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”26
¶54 Because “the warrant procedure minimizes the danger of needless intrusions” by the government, “[i]t is a ‘basic principle of Fourth Amendment law’ that searches and seizures
¶55 The instant case presents issues related to two of those well-recognized exceptions to the warrant requirement: consent29 and exigent circumstances.30
A
¶56 We now address whether Officer Keller obtained consent to enter Reed‘s apartment.
¶57 Consent to search need not be expressed by words. Consent may be given or inferred through gestures or conduct.31 Whether consent is verbal or inferred from one‘s actions,
¶58 Consent must be freely and voluntarily given; it is not enough to show mere “acquiescence to a claim of lawful authority.”34 The State bears the burden of proving consent by clear and convincing evidence.35
¶59 In the instant case, the State failed to meet its burden.
¶60 Simply put, Sullivan‘s conduct throughout the entire interaction between him and Officer Keller, including leading Officer Keller to the threshold of the apartment and entering the apartment, does not imply that Sullivan granted Officer Keller consent to enter Unit 206. Sullivan unequivocally demonstrated that he did not consent to Officer Keller entering Reed‘s apartment when Sullivan attempted to prohibit Officer Keller‘s entry by shutting the apartment door behind him.
¶61 Sullivan‘s conduct is more properly characterized as “mere acquiescence” to Officer Keller‘s show of authority than
¶62 It is noteworthy that at the very beginning of the interaction, Sullivan tried to leave without talking to Officer Keller. In fact, Sullivan had gotten several yards away before Officer Keller noticed that Sullivan was leaving, prompting him to loudly tell Sullivan, “Hey, why don‘t you come back here. Don‘t just leave.” Without a word, Sullivan complied with Officer‘s Keller‘s directive. As Sullivan was returning, Officer Keller said to Sullivan, “Keep your hands out of your pockets for me, OK?” Again, without a word, Sullivan complied with Officer Keller‘s directive and showed Officer Keller his palms.
¶63 After learning that Jerome might be at Unit 206, Officer Keller said to Sullivan, “All right, let‘s go——ah——let‘s go look over, see if he‘s over there. If anything we could all just kind of talk to him.”
¶64 Given Sullivan‘s pattern of complying with Officer Keller‘s previous commands, it is unsurprising that Sullivan did not verbally respond to Officer Keller‘s statement and instead simply departed towards the apartment building with Officer Keller in tow.
¶65 None of this conduct, viewed together or in isolation, implies that Officer Keller had Sullivan‘s consent to enter Unit 206. After reaching the second floor of the apartment building, Sullivan held the door between the stairwell and the hallway open behind him, implying that Officer Keller was to follow Sullivan into the hallway. However, Sullivan unequivocally implied that Officer Keller did not have his consent to enter the apartment when Sullivan attempted to prohibit Officer Keller‘s entry by attempting to shut the apartment door in Officer Keller‘s face.
¶66 Moreover, we observe that Officer‘s Keller‘s statement was not an unequivocal request to enter Unit 206. There is nothing about Officer Keller‘s statement that suggests that he meant to physically enter Unit 206——the statement could just as readily imply that Officer Keller intended to follow Sullivan to the threshold of Unit 206 while Sullivan entered to see if Jerome was present in the apartment.
¶67 We further observe that Officer Keller‘s statement was not a request at all. Officer Keller was not asking a question or asking for Sullivan‘s permission to accompany him into Unit 206.37 There is no reasonable way to interpret Officer Keller‘s statement other than as a directive to Sullivan to lead Officer Keller to Unit 206, a directive with which Sullivan complied as he had complied with Officer Keller‘s previous commands.
B
¶69 We could end our consent analysis here, having concluded that consent to enter Reed‘s apartment was never given. However, in light of both the circuit court and court of appeals’ conclusions with regard to the revocation of consent, we address whether consent would have been revoked had Sullivan initially given consent (which, we emphasize, he did not).
¶70 We conclude that Sullivan would have unequivocally withdrawn consent, had he initially given it, by attempting to shut the door to the apartment, prohibiting Officer Keller‘s entry.
¶71 Once given, consent to search may be withdrawn. “Withdrawal of consent need not be effectuated through particular ‘magic words,’ but an intent to withdraw consent must be made by unequivocal act or statement.”38 “The standard for measuring the scope of a suspect‘s consent under the Fourth Amendment is that of ‘objective’ reasonableness——what would the typical reasonable person have understood by the exchange between the officer and the suspect?”39
¶73 In the instant case, although Sullivan never provided consent for Officer Keller to enter Unit 206, Sullivan would have unequivocally revoked consent, had it initially been given, by attempting to shut the door to the apartment before Officer Keller pushed it open.
¶74 Immediately prior to arriving at the threshold of Unit 206, Sullivan led Officer Keller out of a stairwell and into the hallway of the apartment building. In doing so, Sullivan looked back and held the door between the stairwell and the hallway open behind him, as one does when he or she anticipates someone will be following him or her through the doorway.
¶75 Sullivan‘s actions between the stairwell and the hallway are in stark contrast to Sullivan‘s actions after arriving at the threshold of Unit 206. Upon arriving at Unit 206, Sullivan briefly knocked on the door, opened the door just enough to facilitate his own entry into the apartment, began to close the door behind him with Officer Keller still in the hallway, and called out for Jerome. The door was within inches
¶76 The body camera footage is unambiguous and conclusive. There is perhaps no action that could more clearly communicate “Do Not Enter” than attempting to shut a door in someone‘s face. Shutting the door is akin to slamming shut the trunk of a car during a search or grabbing back the item to be searched by the officer, actions that courts have recognized as unequivocal revocations of consent to search.42
C
¶77 We conclude by addressing whether exigent circumstances existed that justify Officer Keller‘s pushing open of Reed‘s apartment door.
¶78 Both this court and the United States Supreme Court have identified several exigencies that may justify a warrantless search of a home. We have explained that “[t]he objective test for determining whether exigent circumstances exist is whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of the suspect‘s escape.”43
¶80 The State argues that Officer Keller‘s pushing open Reed‘s apartment door without a warrant was justified because (1) Officer Keller reasonably believed that Sullivan and Jerome were dangerous; and (2) Officer Keller could reasonably have thought that Jerome would likely try to escape.
¶81 The totality of the circumstances known to Officer Keller at the time he pushed open door to Reed‘s apartment does not establish exigent circumstances. Officer Keller was repeatedly told that the altercation that he was investigating had been verbal, not physical, in nature. Officer Keller knew that the altercation was over. He knew that Brandon and Jerome Harris left in opposite directions, i.e., that they were no longer together, and that Jerome had been “cooling off” in Sullivan‘s apartment.
¶82 Furthermore, Sullivan was cooperating with Officer Keller throughout Officer Keller‘s investigation. Sullivan returned to Officer Keller and removed his hands from his pockets when directed to do so by Officer Keller. He answered all of Officer Keller‘s questions. Although the State points out that Sullivan was on probation for violent crimes, it fails to connect that fact with its assertion that it was objectively reasonable for Officer Keller to believe that Sullivan had a
¶83 Likewise, there was no objective, reasonable basis for believing that Jerome had a weapon or would become violent. Although Jerome had two outstanding body warrants, Officer Keller knew that at least one of those warrants stemmed from a non-violent crime, and there was no indication that Jerome posed any greater risk of attempting to evade arrest than any other individual with an outstanding warrant.
¶84 An outstanding warrant for a suspect‘s arrest, by itself, does not give rise to exigent circumstances justifying the warrantless entry into someone else‘s home in which the suspect does not reside.46
¶85 The State relies on State v. Kirby, 2014 WI App 74, 355 Wis. 2d 423, 851 N.W.2d 796, for its assertion that exigent circumstances justified Officer Keller‘s pushing open the door to Unit 206.
¶87 The State also argues that State v. Ayala, 2011 WI App 6, 331 Wis. 2d 171, 793 N.W.2d 511, supports its position that
¶88 In Ayala, police officers lawfully entered the defendant‘s bedroom without a warrant because of the chance that he could try to escape or violently resist arrest.53 Noting that “the risk of danger, the gravity of the crime[,] and the likelihood that the suspect is armed” are all proper considerations in determining whether exigent circumstances existed, the court of appeals summarized what was known to the officers when they entered the defendant‘s bedroom without a warrant:
(1) [T]here had been what appeared to be an intentional homicide using a gun; (2) officers had information from the other robbery/homicide participants that Ayala was the shooter; (3) Ayala was believed by officers to be a Latin Kings gang member; (4) the weapon used in the homicide had not been recovered, leading officers to believe Ayala might still have the gun in his possession; (5) the gun might be evidence of a crime; (6) if Ayala possessed the missing gun, it put the officers at risk of being shot by Ayala if they announced themselves or asked Ayala for consent to enter the bedroom; (7) the tavern below the apartment was frequented by Latin King members; (8) [a resident of the apartment] operated the tavern below the apartment; and (9) because there were civilians in the apartment as well as the tavern below, all were at risk if Ayala began shooting while police procured a warrant.54
¶90 The State points out that Officer Keller found it suspicious that Sullivan would knock on the door to his own apartment, and that in doing so, Sullivan may have been attempting to alert those inside the apartment that he was accompanied by a police officer. The most succinct response to the State‘s argument is, so what if Sullivan was attempting to alert those inside that he was accompanied by a police officer? Police officers frequently knock on doors and announce their presence and identities.
¶91 Indeed, the police are generally required to announce their presence and their intent to search before entering closed premises, and this obligation only “gives way when officers ‘have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or . . . would inhibit the effective investigation of
¶92 Simply put, there were no circumstances known to Officer Keller at the time he pushed open the apartment door that would give rise to a reasonable belief that he was in danger. Law enforcement is an inherently dangerous profession. In the course of investigating a crime, any individual might have a weapon, and any individual could attempt to flee. The Supreme Court recently summarized the privacy rights enjoyed by individuals in their homes:
When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. When the police knock on a door but the occupants choose not to respond or to speak, “the investigation will have reached a conspicuously low point,” and the occupants “will have the kind of warning that even the most elaborate security system cannot provide.” And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.
¶93 The test is whether there are objective facts known to the officer that would reasonably lead him to believe that the delay caused by obtaining a warrant would gravely endanger life or greatly enhance the likelihood of the subject‘s escape.57 Finding the existence of exigent circumstances in the instant case would allow the exigent circumstances exception to swallow the warrant requirements of the United States and Wisconsin constitutions.
IV
¶94 We conclude that the law enforcement officer in the instant case did not have consent justifying his warrantless entry into Reed‘s apartment. Even if consent had initially been given, which it was not, consent would have been unequivocally revoked before the officer breached the threshold of the apartment. Finally, we conclude that no exigent circumstances justified the officer‘s warrantless searches.
By the Court.—The decision of the court of appeals is reversed and the cause is remanded to the circuit court.
¶97 Moreover, the majority opinion‘s use of “unequivocal and specific” is not explained, interpreted, or analyzed. Perhaps this is because it is used incidentally and is entirely unnecessary to this case. The majority opinion correctly
¶98 More specifically, the majority opinion largely and inexplicably relies on Gautreaux for the proposition that consent must be “unequivocal and specific.” Gautreaux, 52 Wis. 2d at 492. To be clear, Gautreaux is distinguishable from the case now before the court. In Gautreaux there was no dispute that the consent was unequivocal and specific. Rather, the focus in Gautreaux was whether consent was voluntary. Gautreaux is not particularly instructive concerning the issue before our court, which is, in my view, whether consent was given in the first instance. In my view, it was not.
¶99 Furthermore, our court has distanced itself from the “unequivocal and specific” language noting that in Gautreaux, the court was without the benefit of knowing what test the United States Supreme Court would provide in Schneckloth.
¶100 One might think that our clarification in Rodgers and our more recent precedent would cause the court to pause when using subsequently exacted language of Gautreaux. In our more recent cases analyzing the consent exception to the warrant requirement, we have not used the “unequivocal and specific” language. Notably, the court does not now overrule Rodgers, the test as stated in State v. Wantland and State v. Brar, or any host of other cases, wherein, consistent with Schneckloth, we again confirmed that consent to a search has two requirements. “First, the consent must [be] ‘freely and voluntarily given.’ Second, the consent must be given by an individual having either actual or apparent authority over the place to be searched.” Wantland, 355 Wis. 2d 135, ¶23 (citation omitted); see Brar, 376 Wis. 2d 685, ¶26. Presumably then, the court today means no change be made to that test, unlike Rodgers wherein the court specifically “explained” the language of Gautreaux.
¶101 Other recent cases have similarly eschewed the “unequivocal and specific” language. They remain precedent. See, e.g., State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786 N.W.2d 430 (“The State bears the burden of proving that consent was given freely and voluntarily.“); State v. Blackman, 2017 WI 77, ¶4, 377 Wis. 2d 339, 898 N.W.2d 774 (“When the legality of a warrantless search is based on the consent of the defendant, that consent must be freely and voluntarily given.“).
¶102 Our court has the ability to engage in new federalism if it so chooses. See Diane Sykes, “Reflections on the Wisconsin Supreme Court,” Marquette Lawyer, Summer/Fall 2006, at 52-63, https://law.marquette.edu/assets/marquette-lawyers/pdf/marquette-lawyer/2006-summer/Summer06pp52-63.pdf. If the majority now wished to invoke additional constitutional protections under our State constitution, as advocated by the majority opinion writer‘s then-dissent in Rodgers, it would plainly do so. See Rodgers, 119 Wis. 2d at 125 (Abrahamson, J., dissenting) (“Although the majority concludes that
¶103 And so I write to question why, despite the court‘s clarification in Rodgers and our adoption of the Schneckloth test, the majority opinion nonetheless chooses the language from Gautreaux. In addition, instead of turning to our own precedent, United States Supreme Court precedent, or even precedent from the Seventh Circuit, our court now reaches for distinguishable cases from the Sixth and Ninth Circuits in support of the terms “unequivocal and specific.” See Andrews v. Hickman Cty., 700 F.3d 845, 854 (6th Cir. 2012) (holding that officer‘s alleged warrantless entry into parents’ home after being told to wait outside cannot be justified on the basis of consent); United States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir. 1997) (concluding that defendant‘s failure to respond verbally to officer‘s request to search his truck supports the argument that defendant did not voluntarily consent the search). If the majority intended to adopt a specificity requirement in addition to the established Schneckloth test, it should so indicate. It
¶104 Courts which have used “unequivocal and specific,” nonetheless leave that phrase undefined and unexamined. The legal analysis and conclusions employed do not analyze the “unequivocal and specific” requirement but instead continue to rest on whether consent was given in terms of being free and voluntary. See, e.g., United States v. Salas, 756 F.3d 1196, 1203 (10th Cir. 2014) (reciting language from a prior case requiring consent to be “unequivocal and specific,” yet deciding that consent was voluntarily given without subsequently using the words “unequivocal” or “specific“); Andrews, 700 F.3d at 854 (stating that consent must be “voluntary, unequivocal, specific,” and then concluding that there was actually no consent at all). I am unaware of any case wherein the Schneckloth test is met, but consent was nonetheless deemed insufficient because it was too equivocal or lacked sufficient specificity. Thus, even when the suspect phrase has been used, the analysis of Schneckloth seems to be the test. We should strive to clarify legal standards, rather than sow seeds of confusion.
¶105 To be sure,
¶106 The United States Supreme Court has repeatedly held that consent must be “freely and voluntarily given” by someone with authority in order to satisfy the
¶107 Further, any requirement that consent to search be “unequivocal and specific” appears to be at odds with other United States Supreme Court precedent. In Florida v. Jimeno, 500 U.S. 248 (1991), a suspect gave the police officer consent to search his car. Id. at 249-50. Without receiving consent to
¶108 Following the United States Supreme Court‘s lead, many jurisdictions, including the Seventh Circuit, have concluded that consent be as required in Schneckloth. See, e.g., United States v. Sabo, 724 F.3d 891, 893-94 (7th Cir. 2013) (concluding that consent to search is implied where officer requested to enter residence and defendant stepped back and to side to allow entry; further, that “[c]onsent can come in many forms, but it must always be given voluntarily“); United States v. Jones, 701 F.3d 1300, 1317, 1320-21 (10th Cir. 2012) (stating that
¶109 When considered in the broader context of the United States Supreme Court‘s jurisprudence surrounding consent searches, it makes sense that courts consider the circumstances which concern whether consent was freely and voluntarily given. “As with other factual determinations bearing upon search and seizure, determination of consent to enter must be ‘judged against an objective reasonable person standard.‘” Illinois v. Rodriguez, 497 U.S. 177, 188 (1990); Jimeno, 500 U.S. at 251. The United States Supreme Court has long recognized that this objective standard protects citizens from police overreach, as “[a]nything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.” Terry v. Ohio, 392 U.S. 1, 22 (1968). Because we interpret our constitution‘s provisions governing searches and seizures coextensively with the United States Supreme Court‘s interpretation of the Fourth Amendment, Floyd, 377 Wis. 2d 394, ¶19, I would not fuel confusion by using this additional, undefined, unanalyzed phrase.
¶110 As a result, I respectfully concur.
PATIENCE DRAKE ROGGENSACK, C.J.
I. BACKGROUND
¶112 Officer Steven Keller of the Tomah Police Department responded to a call that two men were causing a disturbance. When he arrived, the altercation had stopped. He met two men, neither of whom was involved in the altercation. One of the men was Kirk Sullivan who said that the disturbance involved two brothers. Sullivan said that he thought that one of the brothers, Jerome Harris, was in Sullivan‘s apartment watching a football game.
¶113 Officer Keller, in a very conversational tone according to the record produced by the audio-video camera he was wearing, asked Sullivan if they could go to his apartment to talk with Harris. Sullivan did not verbally respond, but began walking toward an apartment building. Keller did not know in which apartment Sullivan lived; therefore, in response to Keller‘s request, Sullivan led the way to his apartment.
¶114 Sullivan opened the ground floor door of a nearby apartment building, and Keller followed him into the building. Sullivan led the way up the stairs to the second floor. Keller
¶115 Sullivan knocked on his apartment door and then immediately opened it. Sullivan stepped inside and partially closed the door behind him. Keller then pushed the partially open door, saw Reed and Jerome Harris, and entered the apartment. Keller saw Sullivan sticking something into his pocket. He told Sullivan to put the object he had stuck in his pocket on the counter.
¶116 The object was marijuana. More marijuana was found, and Reed, who was also in the apartment, and Harris were arrested. Reed moved to suppress the marijuana based on the allegation that Keller did not have consent to enter the apartment that she shared with Sullivan.
¶117 The circuit court found that by his conduct of “leading the way to the apartment” Sullivan freely and voluntarily consented to Keller‘s entry into his apartment and that his partial closing of the apartment door was not an unequivocal withdrawal of consent. Accordingly, the circuit court denied Reed‘s motion to suppress. The court of appeals affirmed.
II. DISCUSSION
A. Standard of Review
¶118 Determining whether consent was given involves a question of constitutional fact to which we apply a two-step
B. Consent
¶119 The
¶120 The majority opinion inserts a new test for consent saying that consent must be “specific.”1 Asserting that consent
1. Circuit court finding
¶121 As I review the circuit court‘s decision, the first consideration is whether consent was given, as an historic fact. Consent may be given orally or through gestures or conduct. Brar, 376 Wis. 2d 685, ¶17. As we have explained, consent need not be granted explicitly but may be granted by implication after considering the totality of circumstances. Id. The context in which consent is said to have been given is an important part of our assessment of a circuit court‘s finding of consent in fact. Id., ¶22.
¶122 Here, the circuit court found that Sullivan consented
¶123 As I examine the circuit court‘s findings of historic fact, they are not clearly erroneous. The audio-visual recording from the body camera that Officer Keller wore shows he asked Sullivan if they could go and talk with Harris. Sullivan had said that Harris was in his apartment watching a football game. Although Sullivan did not verbally respond to Keller‘s request, he began leading the way to his apartment. The audio-visual recording clearly shows Sullivan leading the way. That he did so is logical because Keller did not know where Sullivan lived.
¶124 As they approached apartment 206, Officer Keller can be heard telling dispatch that he will be in apartment 206. Sullivan then knocked on the door of his own apartment. It appears Sullivan did so because he was bringing Keller into the apartment, otherwise there would have been no reason for Sullivan to knock on the door of his own apartment before entering. Therefore, in this context, where Keller wanted to talk to Harris combined with Sullivan‘s statement that Harris was in his apartment and Sullivan‘s knock on the door before entry, the circuit court‘s finding that Sullivan consented to
2. Voluntariness
¶125 When consent as a matter of historic fact has been found, we then consider whether consent was given freely and voluntarily. The State bears the burden of proving by clear and convincing evidence that consent was given freely and voluntarily. Schneckloth, 412 U.S. at 222; Phillips, 218 Wis. 2d at 197. To make this determination, we again consider the totality of circumstances surrounding the alleged consent. Artic, 327 Wis. 2d 392, ¶33. The circumstances are examined using multiple non-exclusive factors such as:
(1) whether the police used deception, trickery, or misrepresentation in their dialogue with the defendant to persuade him to consent; (2) whether the police threatened or physically intimidated the defendant or “punished” him by the deprivation of something like food or sleep; (3) whether the conditions attending the request to search were congenial, non-threatening, and cooperative, or the opposite; (4) how the defendant responded to the request to search; (5) what characteristics the defendant had as to age, intelligence, education, physical and emotional condition, and prior experience with the police; and (6) whether the police informed the defendant that he could refuse consent.
¶126 In regard to whether Sullivan‘s consent was voluntarily given, I agree with the circuit court‘s conclusion. Keller did not order or command Sullivan to take him to his apartment so he could talk with Harris. Rather, he asked Sullivan if they could go to his apartment to talk to Harris.
3. Withdrawal of consent
¶127 Consent lawfully given may be withdrawn. United States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005). Withdrawal of consent must be made by an unequivocal act or statement. State v. Wantland, 2014 WI 58, ¶33, 355 Wis. 2d 135, 848 N.W.2d 810.
¶128 Accordingly, I must determine whether Sullivan‘s partially closing the door to his apartment after he knocked to announce their entry and did not ask Officer Keller to remain in the hallway unequivocally constituted withdrawal of Sullivan‘s consent to Keller to enter his apartment. I conclude that under the totality of circumstances Sullivan‘s consent was not unequivocally withdrawn.
¶129 First, Sullivan knocked on the door to announce their entry. Second, he said nothing to Keller about waiting in the hall, and third, he did not close the door completely, but left it partially open.
¶130 Sullivan brought Keller to his apartment to talk with Harris. If Sullivan wanted Keller to wait in the hall, he could have said, “wait here” or he could have closed the door completely. He did neither. Therefore, it was reasonable for Keller to push on the door and follow Sullivan into his apartment to talk to Harris, as that was the reason for which
¶131 The majority opinion asserts that Sullivan “attempted to shut the door behind him to prohibit the officer from entering the apartment.”3 That asserted reason is pure fiction. The record contains no statement about why Sullivan partially closed the door. Sullivan did not testify nor did he state on the audio-visual recording why he partially closed the door. We do not know why he did it.
¶132 One could easily postulate that Sullivan partially closed the door because as he entered his apartment, he saw marijuana lying on the counter and he wanted to give himself a moment to stuff it into his pocket before Keller entered the apartment. Certainly, that hypothesis fits the audio-visual recording that shows Sullivan stuffing something into his pocket as he entered the apartment. The audio-visual recording was presented to the circuit court, and the “something” Sullivan stuffed into his pocket was marijuana.
¶133 I agree with the circuit court. Sullivan‘s partial closing of the apartment door was not an unequivocal withdrawal of his consent for Keller to enter.
III. CONCLUSION
¶134 The circuit court found as an historic fact that Sullivan consented to Keller‘s entry into the apartment he shared with Reed. This finding is not clearly erroneous. Furthermore, under the totality of circumstances, Sullivan‘s