State v. St. Martin
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While she was present in defendant's apartment, police obtained consent from defendant Brian St. Martin's girlfriend to search the attic in defendant's apartment. Defendant, who was in police custody in a police van parked nearby, refused to consent to the search. The police proceeded to search the attic and found cocaine and currency. A warrant was subsequently obtained and after a second search police seized cell phones, currency, a scale, and documents. Defendant was later charged based on the evidence seized in the searches. Defendant pleaded guilty and was convicted. Defendant then appealed the court's order denying his motion to suppress the evidence. The Supreme Court affirmed, finding that the rule regarding consent to search a shared dwelling in Georgia v. Randolph, which states that a warrantless search cannot be justified when a physically present resident expressly refuses consent, does not apply where the resident remains in close physical proximity to the residence but was not physically present at the residence. Instead, the applicable rule is the one stated in United States v. Matlock, which holds that a co-tenant's consent to search is valid as against the absent, nonconsenting co-tenant.
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2011 WI 44 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2009AP1209-CR State of Wisconsin, Plaintiff-Respondent, v. Brian T. St. Martin, Defendant-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: June 22, 2011 March 9, 2011 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Court Racine Charles H. Constantine JUSTICES: CONCURRED: DISSENTED: BRADLEY, J., dissents (opinion filed). ABRAHAMSON, C.J., joins dissent. NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant, there were briefs and oral argument by Michael K. Gould, assistant state public defender. For the plaintiff-respondent the cause was argued by Sarah K. Larson, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general. 2011 WI 44 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2009AP1209-CR (L.C. No. 2006CF747) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUN 22, 2011 v. A. John Voelker Acting Clerk of Supreme Court Brian T. St. Martin, Defendant-Appellant. APPEAL from a judgment and an order of the Circuit Court for Racine County, Charles H. Constantine, Judge. ¶1 N. PATRICK CROOKS, J. certification from the court Affirmed. This case comes before us by of appeals and concerns the constitutionality of a warrantless search of an apartment attic. Police obtained consent from Brian St. Martin s girlfriend, who was present in the apartment, to search the attic. They then asked the same question of St. Martin, who was by that point in police custody in a police van parked nearby. police proceeded currency. search was to search the attic and He refused. found cocaine The and A warrant was subsequently obtained, and a second then conducted, and currency, a scale, and documents. police seized cell phones, St. Martin was later charged No. based on the evidence seized in the searches. 2009AP1209-CR He pleaded guilty and was convicted after the circuit court denied his suppression motion, which argued that the warrantless search violated state and federal constitutional protections against unreasonable search and seizure because under the rule set forth in Georgia v. Randolph, his co-tenant s consent could not trump his express refusal.1 ¶2 This appeal certified question and the is stated regarding consent to search certification as a follows: shared followed. "Whether the The rule dwelling in Georgia v. Randolph, 547 U.S. 103 (2006), which states that a warrantless search cannot be justified when a physically present resident expressly refuses consent, applies where the physically present resident is taken forcibly from his residence by law enforcement officers residence but remains such that in the close physical refusal enforcement on the scene?" is made proximity to the directly to law The answer to the question is that the rule in Randolph does not apply in such a case although the language supports therein our explaining analysis. the holding Unlike 1 the is very Randolph helpful and defendant's St. Martin also argued that the search warrant was invalid because it was issued based in part on two kinds of tainted evidence the evidence seized from the warrantless search and statements police inaccurately attributed to St. Martin s girlfriend that overstated her knowledge of St. Martin s drug involvement and that because the warrant was defective the second search was illegal as well. He therefore argued that the evidence seized in both searches must be suppressed under the exclusionary rule. 2 No. 2009AP1209-CR objection, St. Martin's objection to the search was not made when he was physically present at the residence. Instead, the applicable rule is the one stated in another shared-dwelling consent search case, United States v. Matlock, which holds that a co-tenant's consent to search is valid "as against the absent, nonconsenting [co-tenant]." United States v. Matlock, 415 U.S. 164, 170 (1974). ¶3 We consider this case in light of Matlock and Randolph, two United States Supreme Court cases examining the legality of warrantless searches based on slightly different shared-dwelling cases. consent in two In the first case, Matlock, the Supreme Court upheld a warrantless search where only one resident had given consent. It held that "the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared." Earl Matlock had been Matlock, 415 U.S. at 170. "arrested in the yard in William front of the . . . home" where he lived, and a woman who also lived there gave consent to police to search the house while the defendant was detained "in a squad car a distance from the home." 166, 179. search. ¶4 is the Id. at Police never asked Matlock for his consent for the Id. The second case, Randolph, established the rule that focus of the certified question. In Randolph, a warrantless search was conducted pursuant to the consent of one resident even though the second threshold and objected. resident was present on the There the United States Supreme Court 3 No. held that the protections, warrantless on the grounds search that violated "the 2009AP1209-CR constitutional cooperative occupant's invitation adds nothing to the government's side to counter the force of an objecting individual's claim to security against the government's intrusion into his dwelling place." U.S. at 115. Randolph, 547 The Randolph Court noted it was drawing a fine line between the Matlock and Randolph fact patterns such that "if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out." thus struck tenant, a but colloquy," pragmatic only the shared-dwelling Id. at 121 (emphasis added). one power to search. balance who is negate The that gives present a for a co-tenant s Court observed The Court non-consenting the "threshold consent that for "there a is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it." Id. at 121-22. ¶5 As other courts have recognized, the "simple clarity" of those rules is lost if the requirement that the resident is "physically present" is not actually applied. Circuit Court of Appeals has 4 endorsed While the Ninth a more flexible No. 2009AP1209-CR application of the Randolph rule,2 we are persuaded that the better approach is the one taken by the federal circuit courts that focus on the rule s requirements for an express objection while the objecting co-tenant is physically present with the police at the dwelling s threshold. For example, the Seventh Circuit Court of Appeals stated, "[W]e see the contemporaneous presence of the objecting and consenting cotenants as indispensible to the decision in Randolph." United States v. Henderson, 536 F.3d 776, 783 (7th Cir. 2008). requirements, the court deemed a tenant Considering these "absent" where the tenant had expressly objected to a search while on the scene and had been arrested and jailed. Id. at 777. The Henderson court held that "[a tenant's] objection is not enough if he is absent from the later entry by authorities with the voluntary consent of his cotenant." Appeals narrow held that holding defendant's he "this where had which presence the been The Eighth Circuit Court of ['social Randolph, physical inapplicable" because of Id. at 784. and objecting lawfully custom'] rationale repeatedly immediate co-tenant arrested." for the referenced the objection, "was United not [is] present States v. Hudspeth, 518 F.3d 954, 960 (8th Cir. 2007). ¶6 The question then is whether a resident seated in a nearby vehicle is "physically present" such that his express 2 The Ninth Circuit Court of Appeals held a warrantless search unconstitutional under Randolph where a search was conducted after a defendant "refused consent and was subsequently arrested and removed from the scene." United States v. Murphy, 516 F.3d 1117, 1124 (9th Cir. 2008). 5 No. refusal to notwithstanding consent the would consent bar given a by 2009AP1209-CR warrantless a co-tenant. persuaded that Randolph is to be construed narrowly. search We are Although the language therein explaining the holding is very helpful, the rule stated in Randolph does not apply in this case because we conclude that St. Martin was not physically present at what the United States Supreme Court Randolph, 547 U.S. at 121. called the "threshold colloquy." This case closely resembles the facts presented in the Matlock case. The consent given by St. Martin s co-tenant was valid, and as in the Matlock case, that consent rendered the search constitutionally permissible because it cannot be trumped by an objection from an absent tenant. The cocaine and currency seized in the initial search of the attic is therefore admissible evidence. Having resolved that question, we merely note that there is no reason to exclude that evidence from consideration by the Racine County Circuit Court, which subsequently issued a warrant for a second search. As a different branch of the circuit court later found after hearing St. Martin's motion to suppress the evidence, portions of the search warrant affidavit and the circuit court had contained correctly inaccurate proceeded to statements, evaluate the affidavit to determine whether the untainted information alone would have established probable cause to issue a search warrant.3 3 State v. O'Brien, 70 Wis. 2d 414, 424, 234 N.W.2d 362 (1975) (where a search warrant is issued based on both tainted and untainted evidence, a reviewing court "independently can determine that the [untainted evidence was] sufficient to support a finding of probable cause to issue the search warrant . . . "). See also United States v. Karo, 468 U.S. 705, 6 No. With the addition affidavit s of the sufficiency fruits cannot of be the 2009AP1209-CR first search, the questioned. There is therefore no basis on which to suppress the scale, currency, cell phones and documents seized in the second search.4 ¶7 We therefore answer the certified question by holding that the rule regarding consent to search a shared dwelling in Randolph does warrantless not search, apply given in these that circumstances there is no to bar allegation a or evidence that the removal of St. Martin from the apartment was pretextual. Our holding that the first search was constitutional has the effect of putting beyond question the sufficiency of the affidavit for the warrant and the resulting evidence gained in the second search. We affirm the judgment and the order of the circuit court denying St. Martin's post- conviction motion. I. BACKGROUND 721 (1984) (where sufficient untainted evidence is presented in the warrant affidavit to establish probable cause, the warrant is valid) and Franks v. Delaware, 438 U.S. 154, 156 (1978) (stating that a search warrant must be voided and seized evidence excluded where "with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause . . . ."). 4 The circuit court that reviewed the affidavit for the search warrant agreed with the state that the warrantless search had been improper; however, our answer to the certified question means that the warrantless search was constitutionally sound; therefore, the evidence seized in it was properly considered in the search warrant affidavit. There is no dispute that if the cocaine evidence were properly included, the affidavit would establish probable cause for a search warrant to be issued. 7 No. ¶8 2009AP1209-CR St. Martin s girlfriend, Latoya M. (Latoya), arrived at the police department at 11:30 p.m. on June 8, 2006, and asked to speak to an officer. She told the officer she had been battered by St. Martin, with whom she shared an apartment. She described being hit in the face and head and having her head slammed down on the headboard of the bed, and said that when St. Martin allowed her to leave the apartment, she had come directly to the police. police she While she was at the station, she also told suspected that St. Martin was selling cocaine. Specifically, she mentioned that about six days earlier, she had walked into the bathroom and had seen him with what looked like cocaine in a plastic sandwich bag. She said that before that occurred, St. Martin had asked her if she had taken something of his, which she denied; she said he had eventually told her he had found the lost item and that it was a "kilo." She also said she suspected he hid cocaine in their apartment s attic because she had seen him go up there. ¶9 Latoya showed officers a driver's license that gave an address that matched the apartment address, and she agreed to go back to the apartment with the police. When they arrived at the apartment, they knocked and got no answer. Latoya used her key to let standing police near into the St. door Martin's when residence. police nothing in objection to their entry. opened St. it, Martin and he was said Once police entered, they took St. Martin into custody based on the allegation of assault and took him out to a police van. arrest. He was then placed under After St. Martin was taken outside, the officers asked 8 No. 2009AP1209-CR Latoya for her consent to search the attic where she had said that drugs might be hidden. the attic. Latoya consented to the search of Officers then went outside to the police vehicle and asked St. Martin for his consent to search the residence. He refused. ¶10 After accompanied officer her noticed obtaining to the money Latoya's attic and sticking out consent, searched from the the under officers attic. some One clothes, moved the clothes, saw two bags with what looked like cocaine, and seized the bags and the money. Chemical tests showed that the substance was cocaine. ¶11 The officers who spoke with Latoya relayed what she had told them to a drug investigator who immediately drafted an affidavit in support of a search warrant for a second search. This warrant contained some inaccurate statements regarding what Latoya had told police. The statements attributed to her included some statements that indicated she had knowledge about St. Martin apartment. "regularly" and "often" having drugs at the The circuit court later found that Latoya had not made those statements. The affidavit also stated that police had seized a large amount of cocaine as a result of the initial search. ¶12 In the initial, warrantless search, police had seized cash and bags of cocaine. In the second search conducted after police obtained a warrant, police had seized cash, a scale, cell phones and documents. St. Martin moved to suppress the evidence seized in both searches. 9 No. ¶13 St. Martin argued that the evidence 2009AP1209-CR seized in the first search should be suppressed because police did not have valid consent to search his apartment without a warrant. He argued that the evidence seized in the second search should be suppressed because the warrant was invalid because it was based on an affidavit that referenced the cocaine seized in the first search and that included the inaccurate statements.5 ¶14 warrant The State conceded at the circuit court that the presearch improper6 was but argued that the evidence gathered in the initial search was still admissible under the independent source doctrine because the subsequently issued warrant would have been an independent source of the evidence.7 It argued that the warrant was valid notwithstanding the 5 "Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion." Segura v. United States, 468 U.S. 796, 804 (1984). 6 This court is of course "not bound by the parties' interpretation of the law or obligated to accept a party's concession of law." State v. Carter, 2010 WI 77, ¶50, 327 Wis. 2d 1, 21, 785 N.W.2d 516 (citing Bergmann v. McCaughtry, 211 Wis. 2d 1, 7, 564 N.W.2d 712 (1997)). 7 "In [Murray v. United States], the [United States] Supreme Court held that evidence initially discovered during an illegal search, but subsequently acquired through an independent and lawful source, is admissible." State v. Lange, 158 Wis. 2d 609, 624, 463 N.W.2d 390 (Ct. App. 1990). The State acknowledges in its brief to this court that "no direct testimony was taken on either prong of Murray s two-part test for the independent source doctrine: whether Investigator Sorenson would have sought either warrant had the illegal entry not been made; or whether the information obtained in the attic search affected the magistrate s decision to issue either warrant." Resp. Br. at 40. The independent source doctrine does not come into play here, and we need not consider it further. 10 No. 2009AP1209-CR reference to the evidence seized in the warrantless search and the inaccurate statements provided to obtain it. It argued that there was a sufficient basis to establish probable cause for the warrant even if the inaccurate information was redacted. In other words, it argued that all of the evidence seized in both searches was admissible because there were sufficient facts in evidence even omitting the tainted evidence for the warrant to have been validly issued. It argued that the warrant was valid and would have served as an independent source for the discovery of the evidence in the apartment attic. ¶15 After a hearing, the circuit court concluded that the affidavit in support inaccurate statements of the search but that police falsify the affidavit. motion to suppress. warrant did not did contain intentionally The circuit court denied St. Martin's The circuit court held, with no opposition from the State, that the first search was illegal because St. Martin had "specifically not consented to the search." the court including held that a redacted only the accurate version of representations the of However, affidavit, Latoya's statements made to the police, would have provided sufficient probable cause for the issuance of the warrant; and the motion 11 No. 2009AP1209-CR to suppress was denied as to all evidence from both searches.8 St. Martin pleaded guilty, was convicted, and appealed court's order denying his motion to suppress evidence.9 the The court of appeals certified the question above to this court and this court accepted the certification. II. ¶16 STANDARD OF REVIEW AND PRINCIPLES OF LAW The following constitutional challenge principles to a govern search and our our review review of of a the sufficiency of an affidavit for a search warrant, both of which are presented in this case. "Whether police conduct has 8 The record does not state with specificity under which doctrine the circuit court would have found the first search s evidence admissible; it can be inferred from the motion hearing transcript and the decision that the court considered that the evidence seized in the warrantless search would have come in under the inevitable discovery doctrine and the evidence from the second search would have come in because the warrant was deemed valid. We note that under our analysis, the evidence seized in the warrantless search is admissible because it was seized in a valid consent search; the subsequently issued warrant is not the basis for its admissibility, and neither the inevitable discovery doctrine nor the independent source doctrine come into play. See Nix v. Williams, 467 U.S. 431, 434 (1984)(fruits of an illegal search nonetheless may be admitted if the evidence "ultimately or inevitably [would] have been discovered even if no violation of any constitutional or statutory provision had taken place") and State v. Schwegler, 170 Wis. 2d 487, 499-500, 490 N.W.2d 292 (Ct. App. 1992) ("The proponent of the doctrine must show by a preponderance of the evidence that the tainted fruits inevitably would have been discovered by lawful means."). 9 Wis. Stat. § 971.31(10) states, "An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the judgment or order was entered upon a plea of guilty or no contest to the information or criminal complaint." 12 No. violated the constitutional guarantees against 2009AP1209-CR unreasonable searches and seizures is a question of constitutional fact." State v. Tomlinson, 2002 WI 91, ¶19, 254 Wis. 2d 502, 648 N.W.2d 367. While deferring to the circuit court's findings of evidentiary and historical fact, "we independently apply those historical facts to the constitutional standard." Id. In deciding whether probable cause exists for the issuance of a search warrant, the reviewing court examines the totality of the circumstances presented to the warrant-issuing commissioner to determine whether the warrant-issuing commissioner had a substantial basis for concluding that there was a fair probability that a search of the specified premises would uncover evidence of wrongdoing. State v. Romero, 2009 WI 32, ¶3, 317 Wis. 2d 12, 765 N.W.2d 756. The standard of review for a challenge to the issuance of a search warrant has been stated by this court as follows: [T]his court must determine whether the magistrate was apprised of sufficient facts to excite an honest belief in a reasonable mind that the object sought is linked with the commission of a crime. The magistrate's finding must stand unless the proof is clearly insufficient. This review is necessarily limited to the facts before the magistrate. The evidence necessary for a finding of probable cause is less than that required at a preliminary examination or for a conviction. Although the finding cannot be based on the affiant's suspicions and conclusions, the magistrate may make the usual inferences reasonable persons would draw from the facts presented. Bast v. State, 87 Wis. 2d 689, 692-93, 275 N.W.2d 682 (1979) (internal citations omitted). ¶17 In this case, we review an affidavit that the circuit court found to contain both tainted and untainted evidence. 13 No. 2009AP1209-CR The United States Supreme Court has held that where there is sufficient untainted evidence presented in the warrant affidavit to establish probable cause, the warrant is valid. Similarly, in State v. O'Brien, where a search warrant was issued based on both tainted and untainted evidence, [the] supreme court held that it could independently determine that the [untainted evidence was] sufficient to support a finding of probable cause to issue the search warrant for a search of the entire [premises]. State v. Herrmann, 2000 WI App 38, ¶21, 233 Wis. 2d 135, 608 N.W.2d 406 (internal citations omitted). III. ANALYSIS ¶18 The question certified to this court is whether the rule set forth in Randolph applies under the circumstances of this case. St. Martin argues that the Randolph rule does apply and argues that all evidence and information obtained in both the first search and the second search must be suppressed because the first search was a warrantless search to which he expressly objected, and the second search was authorized by a warrant that was obtained illegally gained evidence. based on false statements and The State asserts that Randolph does not apply because it is factually distinguishable; instead, the 14 No. State argues, it is Matlock that sets forth 2009AP1209-CR the applicable rule.10 ¶19 govern an As noted above, analysis First, search by of a consent there claimed is an are certain Fourth principles Amendment established that violation. exception to the general requirement for a warrant, a requirement rooted in the Fourth Amendment corollary to provision the United in the States Wisconsin Constitution Constitution.11 and the Consent 10 The State advances a series of additional arguments in the alternative; because we answer the certified question by holding that Matlock applies and that Randolph is properly read narrowly, we need not address each of the State s arguments in the alternative. In addition, St. Martin raises, but does not really develop, an argument that Latoya's consent was not valid because she was not a co-occupant. This argument lacks any merit. Third-party consent is valid, assuming no present objection, if given by a co-occupant with "actual or apparent authority" over the residence, which may be shown by facts including: (1) "possession of a key"; (2) the third-party's admission that she lives there; and (3) "possession of a driver's license listing the residence as the driver's legal address." United States v. Groves, 530 F.3d 506, 509 (7th Cir. 2008). All of these facts were present in this case, and thus Latoya was authorized to give consent to search. St. Martin has cited no authority to the contrary. 11 The Fourth Amendment to the United States Constitution states that people have the right "to be secure in their persons, houses, papers, and effects" from "unreasonable searches and seizures" and that probable cause is required for a warrant to be issued. Article I, sec. 11 of the Wisconsin Constitution provides as follows: "Searches and seizures. SECTION 11. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." 15 No. searches are "a constitutionally 2009AP1209-CR permissible and wholly legitimate aspect of effective police activity." Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). Second, the State bears the burden of proving, by clear and convincing evidence, "that a warrantless search was reasonable and in compliance with the Fourth Amendment." State v. Kieffer, 217 Wis. 2d 531, 541-42, 577 N.W.2d 352 (1998). Third, within the so-called "shared dwelling" category of warrantless consent searches, the United States Supreme Court has spelled out how to proceed when there is not unanimous consent. It has said that "the consent of one who possesses common authority over premises or effects is valid as against the absent, authority is shared." nonconsenting person with Matlock, 415 U.S. at 170. whom that It has further stated that a "physically present inhabitant's express refusal of consent to a police search is dispositive regardless of the consent of a fellow occupant." U.S. at 122. as to him, Randolph, 547 As applied to cases, the interaction of these rules can appear formalistic, as the United States Supreme Court has acknowledged. It has recognized the "fine line" drawn in shared-dwelling consent cases and has stated that "the formalism is justified." Randolph, 547 U.S. at 121. It is helpful that the Court has made that point clear because this is a case where it comes down to applying the rule set forth in Randolph with such justified formalism. ¶20 We arguments. first search have already set forth the parties essential St. Martin argues that the evidence seized in the must be suppressed 16 because under Randolph, his No. 2009AP1209-CR objection to the search from nearby trumps the consent granted by a co-tenant and renders a warrantless search illegal. The State argues that St. Martin was not Randolph physically does not present in govern the here because apartment when he objected to the search of the attic. ¶21 When we are in territory where fine lines are drawn and the law is unapologetically formalistic, we must look at the facts as they have been found by the circuit court and accept that small differences often become dispositive. The decision here turns on where this case falls in relation to the fine line drawn by the United States Supreme Court in Randolph.12 Martin was "a potential defendant with St. self-interest in objecting [to a search]." Randolph 547 U.S. at 121. If he was "in fact at the door and object[ing]," Latoya s consent was not sufficient for a consent search of the apartment. If he was "nearby but not invited to take part in the threshold colloquy," the United States Supreme Court has said, he "loses out." 12 Id. Justice Bradley accuses the majority of "sidestep[ping] Randolph's holding" and "handpick[ing] the language from Randolph" that supports a narrow reading of the case. Dissent, ¶48. Naturally, we focus on the language that seems to us most significant to the resolution of this particular case, and Justice Bradley does the same; we disagree about which language that is. As to the implication that the majority "advance[s] a more restrictive interpretation of the federal constitution" than the United States Supreme Court's, Dissent, ¶54, we note that other courts likewise bound by United States Supreme Court precedent have also read Randolph narrowly, as we do. See infra, ¶25. 17 No. 2009AP1209-CR The facts as found by the circuit court13 are that St. ¶22 Martin was in the house when the police arrived. He did not expressly object to their entry as he stood at the door. taken into Martin custody. into custody There was was a no pretext evidence to that remove He was taking St. from the him premises so that police could search for the cocaine. He was detained and arrested validly in response to an alleged battery. (St. Martin does not dispute that the arrest was valid, nor does he allege that his removal from the apartment was pretextual.) Latoya had a driver s license showing the apartment s address and had possession of a key. She was in the apartment when she consented to the search of the attic. St. Martin had left the apartment in the custody of the police, and was inside a police vehicle when police asked him for consent. He expressly refused to consent, and the police searched the attic anyway. ¶23 St. objecting." Martin was clearly not "at the door and In fact, when he was "at the door" and the police entered, he did not object. As St. Martin noted in his motion to the circuit court, "One difference between Randolph and St. Martin s case is that St. Martin was absent at the time of [Latoya s] consent." It is undisputed that St. Martin was "nearby." 13 Because we decide only the case before us and do not speculate about the application of this holding to the facts of other cases, the dissent's consideration of various hypothetical fact patterns, Dissent, ¶¶49-50, is not useful to the analysis. 18 No. ¶24 2009AP1209-CR We next turn to whether he was "invited to take part in the threshold colloquy," a point disputed by the parties. St. Martin argues that he was invited to take part because the officer came to him and asked for his consent. that the "threshold colloquy" referenced The State argues by the Court in Randolph cannot be rightly construed to include a colloquy that occurs outside the home. ¶25 have We have considered the decisions by other courts that examined and applied We Randolph. find persuasive the careful analysis conducted by the Seventh and Eighth Circuit courts of appeals. Those courts have held that the Randolph Court made clear its intention that its holding be applied in narrow terms. The Seventh Circuit so held significant similarity to the one before us. defendant had been at his home when the response to a report of domestic violence. at 777. in a case with In Henderson, the police arrived in Henderson, 536 F.3d Henderson met the police at the threshold and, in "unequivocal terms," refused consent to their presence in his home. Id. He was arrested for battery and taken to jail. Id. Immediately thereafter, the police searched his house, having obtained a signed consent-to-search form from his wife. Id. holding that "both presence and objection by the tenant In are required to render a consent search unreasonable" as to a nonconsenting co-tenant, the court noted, In United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008), an en banc majority of the Eighth Circuit determined that Randolph's holding is case specific and extends no further than its particular facts. 19 No. 2009AP1209-CR . . . Randolph itself, we observed in Groves, "expressly disinvites" any reading broader than its specific facts. Like the Eighth Circuit, we see the contemporaneous presence of the objecting and consenting cotenants as indispensable to the decision in Randolph. Henderson, 536 F.3d at 781-83. ¶26 In Hudspeth, the situation was similar. The defendant had told police that he had "downloaded the [child pornography] images from the internet" onto his computer at work, and police had found the images on that computer. 955. Hudspeth, 518 F.3d at Officers asked to search his home computer, and he refused to consent. Id. Hudspeth was arrested and taken to jail, and officers went to his home, where they spoke with his wife and ultimately obtained her consent for a search of the home computer without informing her of his earlier refusal. Id. Eighth majority Circuit first noted that the Randolph The "consistently repeated it was Randolph's physical presence and immediate objection to Mrs. Randolph's consent that distinguished Randolph from prior case law," which the Court "reinforced . . . in its conclusion" with a focus on "the express refusal of consent by a physically present resident." Id. at 959. The Eighth Circuit then turned to application of the rule to the facts: [U]nlike Randolph, the officers in the present case were not confronted with a "social custom" dilemma, where two physically present co-tenants have contemporaneous competing interests and one consents to a search, while the other objects. Instead, when [the officer] asked for Mrs. Hudspeth's consent, Hudspeth was not present because he had been lawfully arrested and jailed based on evidence obtained wholly 20 No. 2009AP1209-CR apart from the evidence sought on the home computer. Thus, this rationale for the narrow holding of Randolph, which repeatedly referenced the defendant's physical presence and immediate objection, is inapplicable here. Hudspeth, 518 F.3d at 960. ¶27 We agree with those courts that the Randolph Court incorporated an express requirement of physical presence in its shared-dwelling consent rule. An approach that reads the phrase "threshold colloquy" metaphorically would not be consistent with either the "physically present" requirement or the "fine line" framework set forth by the United States Supreme Court. Such an approach cannot be reconciled with the clear statement of the Court that minor factual differences will be dispositive. The Seventh Circuit's analysis in Henderson noted that the Randolph concurrence by Justice Breyer stressed the fact-intensive nature of the analysis in this type of case. at 781 (citing concurring)). Randolph, 547 U.S. See Henderson, 536 F.3d at 127 (Breyer, J., In cases where the United States Supreme Court has drawn what it acknowledges are fine lines, the facts matter, and slight factual differences different directions. the facts would persuasive. a difference. may take the analysis in far The argument that a slight variation in require an opposite result is therefore not Slight differences in facts do actually often make We therefore agree with the State that under the justified formalism of the rules set forth by the United States Supreme Court, St. Martin was "nearby" and "not invited to take part in the threshold colloquy," and that he therefore does not fall within the rule stated in Randolph such that the search 21 No. should have been barred and the evidence addressed the certified 2009AP1209-CR gained from it suppressed. ¶28 Having question, we briefly turn to the second category of evidence at issue in this case, the evidence seized in the second search. search was conducted pursuant to a warrant. As noted above, that If the warrant was defective, as St. Martin argues, the items seized in that search would have to be excluded.14 ¶29 There are two grounds on which St. Martin attacks the validity of the warrant. The first basis for the challenge is that the affidavit used in support of the warrant application contained reference to the cocaine seized in the initial search, which St. Martin had challenged as illegal. We have determined that there was no constitutional violation as to the initial search, so the consideration of that evidence constitutes no flaw. As St. Martin's counsel acknowledged before the circuit court during his challenge to the validity of the warrant, if the initial search was constitutionally valid and there was no bar to the consideration of the cocaine seized in that search, 14 Because the validity of the warrant is relevant only to the admissibility of the evidence seized in the second search, and not to the evidence seized in the first one, we need not address the arguments concerning the inevitable discovery doctrine and the independent source doctrine; they do not come into play. As noted previously, our holding that the initial search was a valid consent search makes it unnecessary to consider alternative theories on which the evidence seized in that search could be admitted. 22 No. 2009AP1209-CR there would be no basis on which to challenge the warrant. That analysis is correct. ¶30 The second basis for the challenge is that the affidavit contained both tainted and untainted evidence. As noted above, the inclusion of tainted evidence in an affidavit does not alone invalidate the warrant issued. See O'Brien, 70 Wis. 2d at 424 (where a search warrant is issued based on both tainted and untainted "determine that support finding a the warrant . . . ."). sufficient untainted evidence, this [untainted of See evidence probable cause Karo, also evidence court is 468 can was] to sufficient issue U.S. presented independently the search 719 (where at in to the warrant affidavit to establish probable cause, the warrant is valid) and Franks, 438 U.S. at 156 (stating that a search warrant must be voided and evidence seized excluded where "with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause . . . ."). The circuit court heard testimony 23 concerning the tainted No. evidence provided in the affidavit and made the 2009AP1209-CR following findings15: Paragraph 4 of the search warrant states as follows: ["]That your affiant states that Officer A. Matsen was approached by [Latoya] after St. Martin was in custody. [Latoya] told A. Matsen that St. Martin regularly has large amounts of cocaine in the apartment and that he regularly brings kilograms of cocaine into the apartment, where he would divide it up into smaller pieces and rebags [sic] it into smaller bags for resale. [Latoya] further stated that St. Martin often hides that cocaine in the attic.["] As noted at the close of the evidentiary portion of the hearing, those statements were not true. (Emphasis added.) The circuit court then redacted the inaccuracies (which mainly consisted of exaggerating the number of times Latoya had seen St. Martin with cocaine) from the fourth paragraph of the affidavit based on the testimony and findings of fact, arriving at the following version: 15 The affidavit also contains reference to the cocaine seized in the initial search. In considering St. Martin's challenge to the warrant, the circuit court excised the reference to the cocaine, noting, "The statements [by the officers] were made after they had discovered a large amount of cocaine in the attic. Unfortunately, as conceded by both the State and argued by the Defense, the search of the attic was illegal because Mr. St. Martin had specifically not consented to the search." The circuit court therefore evaluated the sufficiency of the affidavit without consideration of that evidence, whereas we have held that the initial search was proper and that the cocaine found did not have to be excluded from consideration. 24 No. 2009AP1209-CR "That your affiant states that Officer A. Matsen was approached by [Latoya] after St. Martin was in custody. [Latoya] told A. Matsen that St. Martin may have cocaine in the apartment. That she had seen St. Martin divide cocaine into smaller pieces and rebag it into smaller bags. [Latoya] further stated that St. Martin may hide cocaine in the attic." Given that information, the circuit court held that the affidavit's untainted evidence still established probable cause for a search of the attic. Restoring the discovered cocaine to that affidavit, as our holding would do, merely strengthens the circuit court's basis for the conclusion that the affidavit was sufficient, that the warrant was valid, and that the evidence from the second search should not be suppressed. IV. CONCLUSION ¶31 The question then is whether a resident seated in a nearby vehicle is "physically present" such that his express refusal to notwithstanding consent the would consent bar given a by warrantless a co-tenant. persuaded that Randolph is to be construed narrowly. search We are Although the language therein explaining the holding is very helpful, the rule stated in Randolph does not apply in this case because we conclude that St. Martin was not physically present at what the United States Supreme Court Randolph, 547 U.S. at 121. called the "threshold colloquy." This case closely resembles the facts presented in the Matlock case. The consent given by St. Martin s co-tenant was valid, and as in the Matlock case, that 25 No. 2009AP1209-CR consent rendered the search constitutionally permissible because it cannot be trumped by an objection from an absent tenant. The cocaine and currency seized in the initial search of the attic is therefore admissible evidence. Having resolved that question, we merely note that there is no reason to exclude that seizure from consideration by a different branch of the Racine County Circuit Court, which subsequently issued a warrant for a second search. the search warrant statements, evaluate As the circuit court later found, portions of and the affidavit the circuit affidavit to had court contained correctly determine inaccurate proceeded whether the to untainted information alone would have established probable cause to issue a search warrant. With the addition of the fruits of the first search, the affidavit s sufficiency cannot be questioned. There is therefore no basis on which to suppress the scale, currency, cell phones and documents seized in the second search. ¶32 We therefore answer the certified question by holding that the rule regarding consent to search a shared dwelling in Randolph does warrantless not search, apply given in these that circumstances there is no to bar allegation a or evidence that the removal of St. Martin from the apartment was pretextual. Our holding that the first search was constitutional has the effect of putting beyond question the sufficiency of the affidavit for the warrant, and the resulting evidence gained in the second search. We affirm the judgment and the order of the circuit court conviction motion. 26 denying St. Martin's post- No. 2009AP1209-CR By the Court. Certified question from the court of appeals answered and judgment and order of the Circuit Court for Racine County affirmed. 27 No. ¶33 Randolph,1 ANN WALSH BRADLEY, J. the United States 2009AP1209-CR.awb (dissenting). Supreme Court In Georgia v. set forth a rule governing circumstances in which one inhabitant consents to a search and another inhabitant objects. The Court held that "a physically present inhabitant's express refusal of consent to a police search is dispositive consent of a fellow occupant." ¶34 The majority as to him, regardless of the 547 U.S. 103, 122-23 (2006). appears, at times, to construe "physically present" to mean that the objecting inhabitant must be standing squarely under the doorframe when he registers his objection to the search. To the extent that the majority limits the holding from Randolph, it endorses a test that will yield arbitrary results and impermissibly affords citizens fewer Fourth Amendment protections than does the United States Supreme Court. ¶35 Contrary to the majority, I conclude that this case falls squarely within the rule enunciated in Randolph. I determine that St. Martin was physically present Because when he refused to consent to the search, I respectfully dissent. I ¶36 In its certification memorandum, the court of appeals asked whether the rule from Randolph applies when "a physically present resident is taken forcibly from his residence by law enforcement officers but remains in close physical proximity to the residence[.]" defendant is not 1 Majority op., ¶2. physically present The State argues that a when he Georgia v. Randolph, 547 U.S. 103 (2006). 1 is "outside the No. home." of Id., ¶24. Randolph 2009AP1209-CR.awb At times, the majority embraces the dictates and concludes that the dispositive question is whether the defendant was "physically present at the residence." Id., ¶2. ¶37 When applying the rule, however, the majority appears to conclude that "physically present" means that the defendant must be standing under the doorframe of the residence when he lodges his objection. It notes that St. Martin "did not expressly object to [the officers'] entry as he stood at the door," id., ¶22, and that when St. Martin refused to consent to the search, he was "not at the door and objecting," id., ¶23. Therefore, present it at concludes what the that United 'threshold colloquy.'" "St. Martin States Id., ¶6. was Supreme not Court physically called the Even though St. Martin was on hand and registered an express, contemporaneous objection to the search, the majority determines that he was "absent" and that "the rule stated in Randolph does not apply in this case." Id., ¶6. II ¶38 "The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585-86 (1980). searches of homes are presumptively unreasonable. Warrantless Welsh v. Wisconsin, 466 U.S. 740, 748-49 (1984). ¶39 There are several recognized exceptions to the warrant requirement. These "narrow and well-delineated" exceptions are to be "jealously and carefully drawn," and the State bears the 2 No. burden of proving by clear and convincing 2009AP1209-CR.awb evidence that any warrantless search was reasonable and in compliance with the Fourth Amendment. Flippo v. W. Virginia, 528 U.S. 11, 13 (1999); Jones v. United States, 357 U.S. 493, 499 (1958); State v. Kieffer, 217 Wis. 2d 531, 541-42, 577 N.W.2d 352 (1998). rationale for construing exceptions narrowly is that The "the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers." Randolph, 547 U.S. at 117 (quoting United States v. Lefkowitz, 285 U.S. 452, 464 (1932)). ¶40 exception The voluntary consent of the occupant of a home is one to the warrant requirement. In United States v. Matlock, 415 U.S. 164 (1974), the Supreme Court held that "the consent of one premises . . . is who valid possesses as against common the absent, person with whom that authority is shared." ¶41 authority over nonconsenting Id. at 170. This holding was recently reexamined by the Supreme Court in Georgia v. Randolph, 547 U.S. 103. In that case, the defendant's their wife consented to a search of home. The defendant, who later sought to suppress the evidence, met the officers at the door and expressly objected to the search. ¶42 warrant In keeping with the principle that exceptions to the requirement are construed narrowly to protect the privacy of the home, the Court held that "a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow 3 No. occupant." 547 U.S. at 122-23. It 2009AP1209-CR.awb explained that the cooperative occupant's "disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all." Id. at 114. ¶43 When applying its holding to the facts of the case before it, the Court noted that Randolph was "at the door" when he expressed his objection to the search. It explained that "if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out." ¶44 holding, Id. at 121. When setting however, not the be forth the Court's at the question language door to presented clarifies be deemed and its that the defendant need physically present. The Court explained that the question presented was whether a search was lawful when a resident "is present at the scene and expressly refuses to consent." added). Later, the Court differentiated between residents who are "on hand" and those who are "absent." ¶45 Id. at 106 (emphasis Id. at 121-22. The rule set forth in Randolph appears to be motivated by the concern that officers need not "take affirmative steps to find a potentially objecting co-tenant." the Matlock rule regarding "absent" Id. at 122. co-tenants, Retaining the Court concluded that "it would needlessly limit the capacity of the police . . . if we were to hold that reasonableness required the 4 No. 2009AP1209-CR.awb police to take affirmative steps to find a potentially objecting co-tenant before received." ¶46 acting on the permission they had already Id. at 122. A different situation is presented when the co-tenant is "present at the scene" and "expressly refuses consent." at 106. for In such a case, "[d]isputed permission is [] no match [the] central value cooperative occupant's government's side individual's claim to of the Fourth invitation counter to security Amendment," adds nothing force the of against intrusion into his dwelling place." ¶47 Id. the an and "the to the objecting government's Id. at 115. In so concluding, the Randolph Court emphasized that "there is practical value in the simple clarity of complementary rules[.]" Id. at 121. One rule "recogniz[es] the co-tenant's permission when there is no fellow occupant on hand, the other accord[s] dispositive weight to the fellow occupant's contrary indication when he expresses it." Id. at 121-22. III ¶48 In making the determination that St. Martin was not physically present, the majority sidesteps Randolph's holding. Instead, it handpicks the language from Randolph where the Court was applying its rule to the particular facts of the case. ¶49 a Under the majority's analysis, it is unclear how close nonconsenting occupant must be considered "physically present." to the front door to be The majority notes that St. Martin "did not expressly object to [the officers'] entry as he stood at the door," majority op., ¶22, and that when St. Martin 5 No. 2009AP1209-CR.awb did object, he was "not at the door and objecting." Neither the court restrictive rule. of appeals nor A State advances straightforward a See supra, ¶36. application of the apparent holding would lead to arbitrary results. nonconsenting such Both acknowledge that the test is whether the defendant is "physically present." ¶50 the Id., ¶23. occupant is standing when he objects to the search? just beyond majority's What if the the doorframe What if he is 10 feet away? What if he is at the bottom of the stairs leading up to the door? Does it make any difference if he is standing on the second step beyond the entryway, or on the fifth? co-occupant's consent, squarely under the must the doorframe To negate his nonconsenting his of occupant and residence stand block the literally, the officers' entry as he lodges his objection? ¶51 If the majority's rule is applied reasonableness of officers' actions will not be judged by any common understanding officers' actions of what will is instead reasonable. be judged Rather, by the metaphysical determinations about the precise contours of the boundary of the "threshold" of a home. This cannot possibly be the "formalism" envisioned by the Randolph Court when it explained that "there is practical rules." value in the simple clarity of complementary Much simpler is a rule that recognizes the objection of a resident who is "on hand" and "at the scene" when he refuses to consent to the search of his private residence. ¶52 objection In drawing loses the validity "fine past 6 line" the that a threshold, co-occupant's the majority No. 2009AP1209-CR.awb expands the consent exception to the warrant requirement and undercuts the requirement that searches be reasonable. It is exceptions to the warrant requirement, rather than exceptions to the exceptions to construed narrowly. ¶53 the warrant requirement, that must be See Flippo, 528 U.S. at 13. I recognize that lower courts have split on whether Randolph should be given a broad or a narrow interpretation.2 However, if the majority opinion is construed to hold that a defendant must be standing squarely under the doorframe for his objection Federal to have any Constitution interpretation adopted weight, to by the provide the majority fewer United interprets rights States than Supreme the the Court. This, the majority may not do. ¶54 State courts are bound by the United States Supreme Court's interpretation of the Federal Constitution. Chapman v. California, 386 U.S. 18, 21 (1967); State v. Jennings, 2002 WI 44, ¶18, 252 Wis. 2d 228, 647 N.W.2d 142. A state court may interpret greater its own constitution than the Federal Constitution. 58, 62 (1967). to provide protection Cooper v. California, 386 U.S. However, a state court may not advance a more restrictive interpretation of the Federal Constitution than the interpretation adopted by the United States Supreme Court. Id. IV 2 See, e.g., Marc McAllister, What the High Court Giveth the Lower Courts Taketh Away, 56 Clev. St. L. Rev. 663 (2008); Note, Renee E. Williams, Third Party Consent Searches After Georgia v. Randolph: Dueling Approaches to the Dueling Roommates, 87 B.U. L. Rev. 937 (2007). 7 No. ¶55 2009AP1209-CR.awb Contrary to the majority, I conclude that the facts of this case fit squarely within the rule enunciated in Randolph. St. Martin and Latoya shared an apartment. According to an officer's testimony, Latoya consented to a search of the attic.3 St. Martin, who was detained in a squad car that had not yet left the scene, expressly objected to the search.4 The officers 3 From the record, it is not clear that Latoya actually consented to the search. Initially, the State advanced no argument that the search was valid pursuant to her consent. Rather, the State conceded that the search was illegal: The Court: [Y]ou would agree that prior application for a warrant] there was, in search of the attic? to [the fact, a [District Attorney]: Yes. The Court: And you would also agree you're conceding that search was improper? [District improper. Attorney]: The search of the attic was Latoya testified at the suppression hearing, but she was not asked whether she had consented. The circuit court made no finding of fact regarding Latoya's purported consent. Rather, it found: "What occurred here, unfortunately, is [the detectives] . . . went to the premises, they appropriately detained Mr. St. Martin. He did not give consent to search. In fact, he specifically said you can't search. [Latoya] made some statements . . . and then at that time they probably should have called the metro drug unit, had them involved. But instead they decided to conduct their own search." 4 By determining that "[t]his case closely resembles the facts presented in the Matlock case," majority op., ¶6, the majority fails to account for an essential fact that In United States v. distinguishes this case from Matlock. Matlock, 415 U.S. 164, 166 (1974), the defendant did not register any objection to the search. By contrast, St. Martin, who was "on hand," expressly refused to consent to the search. 8 No. knew that attempting express St. to Martin secure objection and objected. a Nevertheless, warrant, conducted 2009AP1209-CR.awb a they ignored warrantless rather St. search than Martin's of the Martin was attic.5 ¶56 Under these facts, I conclude that St. physically present when he expressly refused to consent to the search.6 ¶57 Accordingly, I respectfully dissent. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent. I recognize that the application of the law to this case might differ if St. Martin, who was detained in a nearby squad car, had not objected to the search. Under those circumstances, the facts would more closely mirror the facts presented in Matlock. As the majority asserts, "the facts matter, and slight factual differences may take the analysis in far different directions." Majority op., ¶27. 5 There is no claim that any exigency justified the warrantless entry. See Randolph, 547 U.S. at 116 n.6. St. Martin had been lawfully arrested and secured in a squad car, and he would have had no opportunity to destroy any evidence that might be contained within the apartment. Nothing but the "hurried action of [the] officers" prevented them from seeking "the informed and deliberate determination[] of [a] magistrate[] empowered to issue warrants." Randolph, 547 U.S. 103, 117 (quoting United States v. Lefkowitz, 285 U.S. 452, 464 (1932)). 6 Additionally, I conclude that the untainted evidence, consisting primarily of Latoya's equivocal statements to the police, were insufficient on their own to establish probable cause for the second search of the attic. 9 No. 1 2009AP1209-CR.awb
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