COURT OF APPEALS
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 11, 2013
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. Â§ 808.10
and RULE 809.62.
Diane M. Fremgen
Clerk of Court of Appeals
Cir. Ct. No. 2010CF926
STATE OF WISCONSIN
IN COURT OF APPEALS
STATE OF WISCONSIN,
APPEAL from a judgment and an order of the circuit court for
Milwaukee County: RICHARD J. SANKOVITZ, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
Maurice Collins appeals a judgment convicting
him of four counts of armed robbery, as a party to a crime, and one count of
possessing a firearm as a felon, as a habitual criminal. Collins also appeals an
order denying his motion for postconviction relief. The issues are: (1) whether
Autumn Morgan had actual authority to grant the police permission to search the
upstairs unit of a duplex she owned; and (2) whether MorganâÄôs consent to the
search was coerced by the police. We affirm.
Collins was charged with six counts of armed robbery, as a party to a
crime, and one count of possessing a firearm as a felon. After a jury trial, he was
convicted of four counts of armed robbery and the possession charge, and
acquitted of two counts of armed robbery. In his postconviction motion, Collins
argued that evidence seized from the upstairs unit of MorganâÄôs duplex should have
been suppressed. The circuit court denied the motion.
âÄúThe Fourth Amendment to the United States Constitution and
Article I, Section 11 of the Wisconsin Constitution prohibit unreasonable searches
and seizures.âÄĚ State v. Artic, 2010 WI 83, Â¶28, 327 Wis. 2d 392, 786 N.W.2d 430.
âÄúWarrantless searches are per se unreasonable, subject to several clearly
delineated exceptions.âÄĚ Id., Â¶29. âÄúExceptions to the warrant requirement include
voluntary third-party consent.âÄĚ State v. Matejka, 2001 WI 5, Â¶17, 241 Wis. 2d 52,
621 N.W.2d 891.
âÄúThe State bears the burden of establishing, clearly and
convincingly, that a warrantless search was reasonable and in compliance with the
Fourth Amendment.âÄĚ Id.
Collins argues that Morgan did not have actual authority to grant the
police permission to search the upstairs unit of the duplex because it was his
apartment. A third party may consent to a search of another personâÄôs living area
as long as they have common authority over the area. State v. Kieffer, 217
Wis. 2d 531, 542, 577 N.W.2d 352 (1998). In determining whether a third partyâÄôs
consent to a search is reasonable under the Fourth Amendment, the issue is
whether the third party who granted consent for the search âÄúpossessed common
authority over or other sufficient relationship to the premises or effects sought to
be inspected.âÄĚ United States v. Matlock, 415 U.S. 164, 171 (1974).
Morgan owned the duplex that was searched and allowed Collins to
stay in the upstairs unit. The upstairs apartment could only be accessed through
the downstairs unit, which Morgan controlled, and Collins did not have keys for
the apartment. Collins had stayed in the upstairs unit about twice a week over
three months and left some of his personal things there, though he listed his
residence as at his motherâÄôs address when he was arrested. If Collins wanted to
stay in the apartment when Morgan was at work, he would go there to get keys
from her. Collins did not have a lease to rent the apartment from Morgan, he
received no mail there, and he paid no rent. Based on these facts, we conclude
that Morgan had actual authority over the upstairs apartment.1
Collins next argues that the police coerced Morgan into consenting
to the search. Consent is voluntary if it is âÄúan essentially free and unconstrained
choiceâÄĚ and âÄúnot the product of duress or coercion, express or implied.âÄĚ Artic,
327 Wis. 2d 392, Â¶32 (internal quotation marks and citation omitted).
determination of âÄėvoluntarinessâÄô is a mixed question of fact and law based upon an
evaluation of âÄėthe totality of all the surrounding circumstances.âÄôâÄĚ Id. (citation
Collins also argues that the police should not have relied on MorganâÄôs apparent
authority to grant them permission to search. We need not address this issue because we have
concluded that Morgan had actual authority to grant the police permission to search. See Turner
v. Taylor, 2003 WI App 256, Â¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (if a decision on one
point disposes of an appeal, we need not decide the other issues raised).
To determine whether consent is voluntary, a court should consider a
number of factors, which we will address one by one. First, a court should
determine whether the police used deception, trickery, or misrepresentation to get
consent to search. See State v. Phillips, 218 Wis. 2d 180, 198, 577 N.W.2d 794
(1998). The police officers did not deceive Morgan to obtain her consent; they
told her that Collins had been arrested for a string of armed robberies and asked
her permission to search the upstairs of her duplex where he had been
intermittently staying because they suspected that Collins may have been keeping
a gun there. While they asked Morgan to consent to the search, they also told her
that she could choose not to give it.
Second, a court should consider whether the police threatened or
physically intimidated the person to obtain consent. Id. It is undisputed that
Morgan was not deprived of anything she requested or needed. Third, a court
should consider whether the conditions attending the request to search were
congenial, non-threatening, and cooperative, or the opposite. Id. Morgan was not
restrained and the door to the interview room was kept open. Fourth, a court
should consider how the person responded to the request to search. Id. Here,
Morgan gave written consent to the officers to search her residence and did not do
anything to suggest that she felt pressured or upset by the request. Fifth, a court
should consider the personâÄôs personal characteristics like age, intelligence,
education, physical and emotional condition, and prior experience with the police.
Id. There is nothing about Morgan that suggests she was unusually susceptible to
police pressure. Finally, a court should consider whether the police informed the
person that he or she could refuse to consent. Id. The police informed Morgan
that she could refuse to consent to the search, but explained truthfully that they
would then seek a search warrant, which would delay her return home. Based on
all of these factors, we conclude that Morgan was not coerced into consenting to
the search of her upstairs apartment.
By the Court.âÄĒJudgment and order affirmed.
This opinion will not be published.
See WIS. STAT. RULE