State v. Brian T. St. Martin

• Decision Date: 22 June 2011
• Docket Number: No. 2009AP1209–CR.,2009AP1209–CR.
• Citation: 2011 WI 44,334 Wis.2d 290,800 N.W.2d 858
• Parties: STATE of Wisconsin, Plaintiff–Respondent,v.Brian T. ST. MARTIN, Defendant–Appellant.
• Court: Wisconsin Supreme Court

334 Wis.2d 290

800 N.W.2d 858

2011 WI 44

STATE of Wisconsin, Plaintiff–Respondent,

v.Brian T. ST. MARTIN, Defendant–Appellant.

No. 2009AP1209–CR.

Supreme Court of Wisconsin.

Argued March 9, 2011.Decided June 22, 2011.

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.

ON CERTIFICATION FROM THE COURT OF APPEALS

N. PATRICK CROOKS, J.

This case comes before us by certification from the court 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. He refused. The police proceeded to search the attic and found cocaine and currency. A warrant was subsequently obtained, and a second search was then conducted, and police seized cell phones, currency, a scale, and documents. St. Martin was later charged based on the evidence seized in the searches. 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

This appeal and the certification followed. The certified question is stated as follows: “Whether the rule regarding consent to search a shared dwelling in Georgia v. Randolph, 547 U.S. 103 [126 S.Ct. 1515, 164 L.Ed.2d 208] (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 but remains in close physical proximity to the residence such that the refusal is made directly to law enforcement on the scene?” The answer to the question is that the rule in Randolph does not apply in such a case although the language therein explaining the holding is very helpful and supports our analysis. Unlike the Randolph defendant's 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, 94 S.Ct. 988, 39 L.Ed.2d 242 (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 consent in two slightly different shared-dwelling cases. 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.” Matlock, 415 U.S. at 170, 94 S.Ct. 988. William Earl Matlock had been “arrested in the yard in 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.” Id. at 166, 179, 94 S.Ct. 988. Police never asked Matlock for his consent for the search. Id.

¶ 4 The second case, Randolph, established the rule that is the focus of the certified question. In Randolph, a warrantless search was conducted pursuant to the consent of one resident even though the second resident was present on the threshold and objected. There the United States Supreme Court held that the warrantless search violated constitutional protections, on the grounds that “the 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.” Randolph, 547 U.S. at 115, 126 S.Ct. 1515. 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.” Id. at 121, 126 S.Ct. 1515 (emphasis added). The Court thus struck a pragmatic balance that gives a non-consenting tenant, but only one who is present for the “threshold colloquy,” the power to negate a co-tenant's consent for a shared-dwelling search. The Court observed that “there 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, 126 S.Ct. 1515.

¶ 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. While the Ninth Circuit Court of Appeals has endorsed a more flexible 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). Considering these requirements, the court deemed a tenant “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.” Id. at 784. The Eighth Circuit Court of Appeals held that “this [‘social custom’] rationale for the narrow holding of Randolph, which repeatedly referenced the defendant's physical presence and immediate objection, [is] inapplicable” where the objecting co-tenant “was not present because he had been lawfully arrested.” United States v. Hudspeth, 518 F.3d 954, 960 (8th Cir.2007).

The question then is whether a resident seated in a nearby vehicle is “physically present” such that his express refusal to consent would bar a warrantless search notwithstanding the consent given by a co-tenant. We are persuaded that Randolph is to be construed narrowly. 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 called the “threshold colloquy.” Randolph, 547 U.S. at 121, 126 S.Ct. 1515. 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 had contained inaccurate statements, and the circuit court correctly proceeded to evaluate the affidavit to determine whether the untainted information alone would have established probable cause to issue a search warrant.³ 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.⁴

¶ 7 We therefore answer the certified question by holding that the rule regarding consent to search a shared dwelling in Randolph does not apply in these circumstances to bar a warrantless search, given that there is no allegation 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

¶ 8 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. While she was at the station, she also told police she 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...