Nearby defendant not considered "physically present" to
refuse warrantless search
Police took the defendant into custody after entering the home he
shared with his girlfriend. While sitting in the squad car outside the
home, he objected to a warrantless search of the attic. The Wisconsin
Supreme Court said this objection did not invalidate the consent
given by his girlfriend, a co-tenant.
By Joe Forward, Legal Writer,
State Bar of Wisconsin
June
22, 2011 – In warrantless shared dwelling cases, police cannot
search a home if a “physically present” tenant objects, even
if the other physically present tenant consents. Recently, the Wisconsin
Supreme Court held that a co-tenant in police custody outside the home
is not physically present.
Brian St. Martin lived with his girlfriend (Latoya). After a domestic
dispute, Latoya approached police to report assault and battery and
mentioned her suspicion that St. Martin was selling cocaine and hiding
the drugs in the attic. Police visited the home, and Latoya used a key
to let them inside.
St. Martin was near the door when police entered, and said nothing
immediately in objection to the entry. Police took St. Martin into
custody based on the assault and battery allegation, and placed him in a
police vehicle outside the home.
Police then obtained consent from Latoya to search the attic. When they
asked St. Martin, seated in the vehicle outside, he refused to give
consent to the search. Police found cocaine and money in the attic.
After obtaining a search warrant, police found more incriminating
evidence.
St. Martin moved to suppress the evidence obtained in both searches,
the first based on invalid consent and the second because the affidavit
in support of a search warrant referenced the cocaine seized improperly.
The Racine County Circuit Court concluded that the first search was
improper, but denied the motion because police still had probable cause
absent reference to the seized cocaine.
The appeals court certified the case to the Wisconsin Supreme Court. In
State
v. St. Martin, 2011 WI 44 (June 22, 2011), the supreme court
ruled 5-2 that St. Martin’s objection to the search, given outside
the home, was not valid to override Latoya’s consent.
Randolph does not apply,
Matlock does
St. Martin argued that under the U.S. Supreme Court’s decision in
Georgia v. Randolph, 547 U.S. 103 (2006), his objection was
valid and therefore the search violated his Fourth Amendment right to be
free of unreasonable searches and seizures.
Under Randolph, a warrantless search cannot be justified when
a physically present resident expressly refuses consent, Justice N.
Patrick Crooks explained in the majority opinion.
But this case departs from Randolph, the majority concluded,
because “St. Martin’s objection to the search was not made
when he was physically present at the residence” and there was no
evidence that police apprehension of St. Martin was a pretext to
invalidate his objection to the search.
The majority found that U.S. v. Matlock, 415 U.S. 164 (1974),
controls. In Matlock, the U.S. Supreme Court ruled that
“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.”
Physical presence and immediate objection are required to invalidate a
co-tenant’s consent under Randolph, the majority
explained. Although he was nearby, “St. Martin was not physically
present at what the United States Supreme Court called the
‘threshold colloquy,’” the majority concluded.
Dissent
Justice Ann Walsh Bradley wrote a dissenting opinion (joined by Chief
Justice Shirley Abrahamson), asserting that St. Martin was physically
present when he objected to the search.
“The majority 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,” Justice Bradley wrote. “Because I determine that
St. Martin was physically present when he refused to consent to the
search, I respectfully dissent.”
Quoting language from Randolph, Justice Bradley explained that
Randolph only requires that a co-tenant be “present at
the scene” in order for an express objection to be valid. Justice
Bradley argued that the majority’s ruling will lead to arbitrary
results.
“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,” Justice Bradley wrote.
Attorneys
Assistant State Public Defender Michael K. Gould represented Brian St.
Martin. Assistant Attorney General Sarah K. Larson represented the
state.
