State v. Douglas

• Decision Date: 03 April 1985
• Docket Number: No. 84-453-CR,84-453-CR
• Citation: 365 N.W.2d 580,123 Wis.2d 13
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Aaron P. DOUGLAS, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 580

365 N.W.2d 580

123 Wis.2d 13

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Aaron P. DOUGLAS, Defendant-Respondent.

No. 84-453-CR.

Supreme Court of Wisconsin.

Argued Oct. 31, 1984.

Decided April 3, 1985.

Barry M. Levenson, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., on briefs, for plaintiff-appellant-petitioner.

Milton Rosenberg (argued), David H. Bennett, Bennett & Bennett, Portage, for defendant-respondent.

DAY, Justice.

This is a review of an unpublished decision of the court of appeals, 120 Wis.2d 673, 353 N.W.2d 844, affirming a pretrial order of the Circuit Court for Sauk County, Honorable J.R. Seering, Circuit Judge, suppressing admission into evidence of a written note found on the defendant's bedroom floor by police approximately forty-five hours after their initial permissive entry into the defendant's home. The issue on review is: If the defendant impliedly consented ^{1 1} to a search of his home by police, did they need a warrant to reenter that home for further investigation approximately forty-five hours after the implied consent was given and twenty-two and one-half hours after other investigative activities in the home had ceased?

We hold that under the circumstances of this case, the state did need a warrant to reenter the defendant's home and that evidence seized in such subsequent reentry was properly suppressed by the trial court. We therefore affirm the court of appeals decision which sustained the trial court's action.

Shortly after 9:00 p.m. on the night of Monday, November 7, 1983, the defendant, Aaron Douglas, placed a phone call on the 911 emergency number and requested police assistance at his home. When asked what the problem was, the defendant responded, "I shot my mother." Later in that conversation, the defendant said he "killed everyone;" that he had also shot his two sisters and said, with respect to all three victims, "They're dead. Hurry." When asked if he wanted the police to come down to the basement of the home where he was, the defendant said, "Tell them to come down here." Pursuant to the defendant's request, the police entered the defendant's home and found the slain bodies of the defendant's mother and two sisters. The defendant was taken into custody by police.

Technicians from the Wisconsin State Crime Laboratory were called and arrived at 11:50 p.m. and stayed on the scene until 3:30 a.m. the following morning, November 8, 1983. The police returned about 6:30 a.m. on November 8th to remove the bodies. The crime laboratory technicians also returned later that day to continue their investigation and left the house for the last time at approximately 8:00 p.m. that night.

The following evening, Wednesday, November 9, 1983, at 6:30 p.m., two police officers returned to the defendant's home to review the scene of the crime and to "re-create" from the known facts the sequence of events that culminated in the slayings. In the defendant's bedroom, the officers found and seized a handwritten note which was lying in an open area of the bedroom floor. In its pretrial order, the trial court ordered that evidence of the note be suppressed. ²

Guards had been placed at the front and rear entrance of the defendant's home on the night of November 7th. Those guards remained at the home until about 8:00 p.m. the night of November 9th.

No search warrant was ever obtained or sought.

In its memorandum decision filed February 3, 1984, on the defendant's pretrial motion to suppress as evidence the note seized on November 9, 1983, the trial court held that the entry into the defendant's bedroom on November 9th was in violation of the defendant's constitutional rights under the fourth amendment and suppressed the evidence. The state appealed pursuant to sections 974.05(1)(d)1. and 2., Stats.1981-82. ³ In its decision filed June 15, 1984, the court of appeals affirmed that portion of the trial court's order which dealt with the note seized November 9, 1983. The defendant is awaiting trial on three counts of first-degree murder in violation of section 940.01. ⁴ This court accepted review to determine whether the November 9th reentry of the defendant's home by police violated his constitutional rights.

The fourth amendment to the United States Constitution provides:

"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 Warrants 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."

"[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed...." United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972). A basic principle of fourth amendment law is that searches and seizures inside the home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). Because, in the instant case, the house searched was the defendant's home and because he was the one against whom the search was directed, the defendant has standing to challenge the lawfulness of the search. Bumper v. North Carolina, 391 U.S. 543, 548, n. 11, 88 S.Ct. 1788, 1791, n. 11, 20 L.Ed.2d 797 (1968). The defendant had a reasonable expectation of privacy in his home. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

One of the established exceptions to the warrant and probable cause requirements is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). The defendant does not dispute that the initial entry into his house was with his consent. The issue is whether the state could justifiably rely upon that consent to reenter the defendant's home without a search warrant on the evening of November 9, 1983, approximately forty-five hours later.

This court had occasion to pass on the effect of an earlier implied consent to search on a second search made less than twenty-four hours later in Kelly v. State, 75 Wis.2d 303, 308-309, 249 N.W.2d 800 (1977). In that case, the defendant told a neighbor that "a man had been shot" at her place of residence. The defendant then went to another neighbor's house and that neighbor called the police. Kelly, 75 Wis.2d at 307, 249 N.W.2d 800. That evening the police went into the home which the defendant and the victim shared, they discovered the body of the victim and they took the defendant into custody shortly thereafter. The police then made "a complete search inside the house." Kelly, 75 Wis.2d at 308, 249 N.W.2d 800. In the afternoon of the next day, the police returned and again searched the home. The home had been guarded through the night. Kelly, 75 Wis.2d at 309, 249 N.W.2d 800. As in the case at bar, no warrant to search the home was ever obtained. The defendant moved to suppress the evidence seized. Kelly, 75 Wis.2d at 304, 249 N.W.2d 800.

This court, in Kelly, upheld the trial court's conclusion that under the facts and circumstances, the defendant had given her consent to this first search of the premises. Kelly, 75 Wis.2d at 311, 249 N.W.2d 800. This court stated:

"Under such circumstances there was an implied consent not only to aid the victim but to determine what had caused the death or injury and who was responsible... In the case before us the presence of the officers was by the implied consent of the defendant, not only to help the victim but to investigate." Kelly, 75 Wis.2d at 313, 249 N.W.2d 800.

However, this court, in Kelly, also upheld the trial court's conclusion that although the implied consent justified the warrantless search of the home on the night that consent was given, this consent did not carry over to justify another warrantless search of the home by police on the following day. Kelly, 75 Wis.2d at 313, 249 N.W.2d 800. ⁵

As in Kelly, the consent to search the home given in the instant case was implied from the conduct of the defendant. The trial court in the case before us, in finding that the defendant impliedly consented to a search of his home, focused on several factors. First, the defendant summoned the police to his home when he called for police assistance on the 911 emergency number. Second, in that telephone conversation the defendant said that he had killed his mother and that he had "killed everyone." Third, during that conversation the defendant, who was in the basement of the home, said the police should "bring some water when they come down here." Fourth, in response to the dispatcher's question of whether the defendant wanted the police to enter the house and go to the basement where he was, the defendant said, "Tell them to come down here." As in Kelly, these facts amounted to an implied consent to enter and search the house. ⁶ Under Kelly, however, the state cannot rely upon the implied consent of November 7th to justify a second search of the defendant's home on November 9th, almost two full days after that consent was given.

The state argues that Kelly is distinguishable. First, because, in Kelly, the second search was broader in scope than the first. Second, because the defendant's status changed with her becoming a suspect between the two searches. We disagree. There is no indication in Kelly that this court considered those factors relevant in determining that the implied consent would not justify the second search. With respect to the scope of the second search in Kelly, it is doubtful that it was broader than the scope of the first search since that first search involved "a complete search inside the house." Kelly, 75 Wis.2d at 308, 249 N.W.2d 800. With respect to the status of the defendant changing, it is apparent that at the least, she was a suspect almost immediately...