State v. Abbott, Appeal No. 2019AP21-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtGRAHAM, J.
Citation944 N.W.2d 8,2020 WI App 25,392 Wis.2d 232
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Keith M. ABBOTT, Defendant-Appellant.
Docket NumberAppeal No. 2019AP21-CR
Decision Date16 April 2020

On behalf of the defendant-appellant, the cause was submitted on the briefs of Frances Colbert, assistant state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Amy C. Miller, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Blanchard, Graham, and Nashold, JJ.


¶1 Keith Abbott appeals a judgment of conviction for second-degree intentional homicide, which the circuit court entered after accepting Abbott's Alford plea.1 Abbott argues that the circuit court erred by denying his motions to suppress two sweatshirts that police seized at his residence, a transparent "patient belongings bag" containing other clothing that police seized at a hospital, and statements that Abbott made to investigators during a custodial interrogation. We conclude that the circuit court properly denied the motions to suppress Abbott's sweatshirts and statements. We also conclude that the State did not meet its burden to prove that the seizure of the patient belongings bag falls within an exception to the warrant requirement. Nevertheless, we conclude that the circuit court's failure to suppress this evidence was harmless. Accordingly, we affirm the circuit court.


¶2 In the early morning of January 3, 2011, Abbott returned to the home he shared with his wife, Ermelinda Cruz. He told Cruz that he had been having an affair with Kristin Miller and that he thought he had killed her. Cruz called the police, and Officers Gary Kovacs and Robert Gelden arrived at the home at approximately 6:30 a.m. At that time, Cruz did not inform the officers about the incriminating statement that Abbott had made.

¶3 The officers found Abbott sitting on the living room floor, shaking and unresponsive to questioning. Medical personnel arrived and, during their examination of Abbott, they removed two sweatshirts that he was wearing and placed them on the living room floor. Abbott was transported to a hospital, and both officers left the home. Officer Kovacs escorted Abbott to the emergency room and then left the hospital.

¶4 Later that morning, Officer Kovacs received a voicemail message from a nurse indicating that Abbott had suspicious injuries and that she had observed suspicious spots on his clothing. Officer Kovacs returned to the hospital at approximately 9:30 a.m. Soon after, he called Officer Gelden and asked him to return to Abbott's home.

¶5 When Officer Gelden returned to Abbott's home, he observed what he believed to be blood on the tailgate of Abbott's pickup truck. He spoke to Cruz, who told him that Abbott had been missing for two days, that Abbott and Miller had been having an affair, that Miller had allegedly been blackmailing Abbott, and that Abbott said he may have killed Miller. Cruz also told Officer Gelden that she was seeking a divorce and that Abbott was currently living in the basement. Officer Gelden asked if he could take the sweatshirts that Abbott had been wearing, which remained on the living room floor, and Cruz assented. Later testing confirmed that Miller's blood was on the sweatshirts, and also on Abbott's pickup truck. Officer Gelden's seizure of the sweatshirts is the subject of Abbott's first claim of error in this appeal.

¶6 Meanwhile, Officer Kovacs remained at the hospital until approximately 6:00 p.m. At some point after his arrival, a hospital employee gave him a transparent plastic bag, which we refer to as a "patient belongings bag," and which contained articles of the clothing that hospital staff had removed in the course of treatment. Later testing confirmed that Miller's blood was on Abbott's shoes and socks contained in the patient belongings bag. Officer Kovacs’ seizure of the patient belongings bag is the subject of Abbott's second claim of error.

¶7 At approximately 6:00 p.m. that day, Abbott was committed pursuant to WIS. STAT. § 51.15 (2017-18),2 which permits law enforcement to involuntarily detain individuals on an emergency basis due to mental health concerns. After Abbott was released, he continued to receive outpatient mental health treatment and exhibited physical ticks and shaking, apparent memory loss, and apparent emotional distress.

¶8 Miller's body was discovered on January 31, 2011. Police arrested Abbott on February 1 and conducted an interrogation. The officers read Abbott his Miranda rights and repeatedly asked whether he would answer questions without an attorney present.3 They considered his responses to the questions about whether he wanted an attorney to be ambiguous and did not cease the interrogation. The officers’ failure to cease questioning is the subject of Abbott's third claim of error, and additional facts related to the custodial interrogation are set forth in the discussion section below.

¶9 The State charged Abbott with first-degree intentional homicide and related counts. The criminal proceedings were delayed for several years by competency evaluations, but Abbott was eventually determined competent to stand trial. Abbott then moved to suppress certain evidence. After the circuit court denied some but not all of Abbott's suppression motions, he entered an Alford plea to second-degree intentional homicide and was sentenced. Abbot appealed pursuant to WIS. STAT. § 971.31(10) and argues on appeal that his conviction should be reversed.


¶10 An order granting or denying a suppression motion presents a question of constitutional fact. State v. Howes , 2017 WI 18, ¶17, 373 Wis. 2d 468, 893 N.W.2d 812. "A question of constitutional fact is a mixed question of law and fact to which we apply a two-step standard of review. We review any challenges to the circuit court's findings of historical fact under the clearly erroneous standard, and we review independently the application of those facts to constitutional principles." State v. Tomaszewski , 2010 WI App 51, ¶5, 324 Wis. 2d 433, 782 N.W.2d 725.


¶11 Abbott argues that officers seized his sweatshirts and the patient belongings bag in violation of the Fourth Amendment, and that officers violated the Fifth Amendment during the custodial interrogation by continuing to question him after he invoked his right to counsel. We address Abbott's Fourth Amendment challenges in Section I, and then in Section II, we turn to his Fifth Amendment challenge. We conclude that the circuit court erred by denying Abbott's motion to suppress the patient belongings bag, and in Section III, we address the parties’ arguments regarding harmless error.

I. Fourth Amendment Arguments

¶12 The Fourth Amendment protects against "unreasonable searches and seizures" by the government. U.S. CONST. amend. IV. Seizures conducted without a warrant are unreasonable unless they fall within a recognized exception to the warrant requirement. See State v. Brereton , 2013 WI 17, ¶24, 345 Wis. 2d 563, 826 N.W.2d 369. The State bears the burden to prove that one of the exceptions to the warrant requirement applies. State v. Denk , 2008 WI 130, ¶36, 315 Wis. 2d 5, 758 N.W.2d 775.

A. The Sweatshirts

¶13 Abbott argues that evidence gathered from his sweatshirts must be suppressed. As noted above, Cruz told Officer Gelden that he could take Abbott's sweatshirts, which were lying on the floor in the living room of the marital home. Abbott acknowledges that Cruz consented to the seizure, but he argues that she did not have authority to give consent.

¶14 Consent is an exception to the warrant requirement. Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). A third party may consent to a search of someone else's property when the third party shares "common authority" over that property. United States v. Matlock , 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The same "common authority" standard that applies in the search context also determines whether a third party can consent to a seizure. State v. Ramage , 2010 WI App 77, ¶¶11-12, 325 Wis. 2d 483, 784 N.W.2d 746 ; see also United States v. James , 571 F.3d 707, 714 (7th Cir. 2009). And even if actual common authority is lacking, there may be apparent common authority when the information available to the police officers at the time of the search or seizure would justify a reasonable belief that the party consenting had the authority to do so. State v. Pickens , 2010 WI App 5, ¶39, 323 Wis. 2d 226, 779 N.W.2d 1.

¶15 Whether common authority exists depends on whether the third party has "joint access [to] or control" over the individual's property such that the individual has "assumed the risk" of the intrusion. Matlock , 415 U.S. at 171 n.7, 94 S.Ct. 988. Common authority to consent depends on the "totality of the circumstances," and the State has the burden of proving consent by clear and convincing evidence. State v. Tomlinson , 2002 WI 91, ¶¶21, 31, 254 Wis. 2d 502, 648 N.W.2d 367. "[W]idely shared social expectations" are an important factor in determining common authority.

State v. Sobczak , 2013 WI 52, ¶15, 347 Wis. 2d 724, 833 N.W.2d 59 (quoting Georgia v. Randolph , 547 U.S. 103, 111, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) ).

¶16 For the reasons we now explain, we conclude that Cruz had actual authority to consent to the seizure. Abbott acknowledges the presumption noted by one federal circuit court that a spouse "presumptively has authority to consent to a search of all areas of the homestead." United States v. Duran , 957 F.2d 499, 505 (7th Cir. 1992). However, he makes three arguments in an attempt to rebut this conclusion in this case. Specifically, Abbott argues that common authority was lacking because he and Cruz were "estranged," his sweatshirts were "personal effects," and the sweatshirts had been "forcibly removed" from him by...

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