State v. Kieffer
| Decision Date | 12 May 1998 |
| Docket Number | No. 96-0008-CR,96-0008-CR |
| Citation | 217 Wis.2d 531,577 N.W.2d 352 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. John M. KIEFFER, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the plaintiff-respondent-petitioner the cause was argued by Daniel J. O'Brien, Assistant Attorney General with whom on the briefs was James E. Doyle, Assistant Attorney General.
For the defendant-appellant there was a brief by John A. Birdsall, and Gonzalez, Saggio, Birdsall & Harlan, S.C., Milwaukee and oral argument by John A. Birdsall.
Amicus curiae brief was filed by Robert T. Ruth, Madison, for Wisconsin Association of Criminal Defense Lawyers.
This review of a published decision of the court of appeals 1 presents two questions regarding authority to consent to a warrantless police search: First, did the defendant's father-in-law have actual authority to consent to a search of the loft area above the father-in-law's garage where the defendant and his wife were living? Second, even if the father-in-law lacked actual authority to consent, could the police reasonably rely upon his apparent authority to consent to a search of the defendant's living quarters in the loft? The circuit court for Walworth County, Michael S. Gibbs, presiding, inferentially concluded that the father-in-law, Robert Garlock lacked actual authority to consent, but expressly concluded that the officers acted reasonably under the circumstances in believing that the father-in-law had apparent authority to consent to the search. The circuit court therefore denied the defendant's motion to
suppress evidence based on the warrantless search. The court of appeals reversed. We first conclude that the father-in-law lacked actual authority to consent to a search of the defendant's living area. Second, we conclude that the [217 Wis.2d 534] police made insufficient inquiry and thus could not reasonably rely upon the father-in-law's apparent authority to consent to a search of the defendant's living area. We therefore affirm the decision of the court of appeals.
¶2 We first consider those facts known to the arresting officers at the time of the search. Early in the morning of April 9, 1995, Whitewater police arrested Scott Garlock for possession of psilocybin mushrooms, a controlled substance. See Wis. Stat. § 161.41(1m)(g)1. 2 Scott Garlock informed the police that he had purchased the mushrooms from John Zattera, and that Zattera had more mushrooms in his possession. Scott Garlock gave the police an address where Zattera was staying, the residence of Scott's father, Robert Garlock. Without obtaining a search warrant, Officer Scott Priebe and Sergeant Thomas Bushey of the Whitewater Police Department, and Deputy Timothy Otterbacher of the Walworth County Sheriff's Department, went to that address to look for Zattera. When they arrived at approximately 8:45 a.m., they spoke to Robert Garlock (Garlock), who identified himself as the owner of the property, including the garage and loft area.
¶3 The police informed Garlock that his son Scott had been arrested on a drug charge. They also told Garlock of their suspicion that there might be drugs in the (Garlock) residence, or in the area where Zattera was staying. Garlock became upset and readily consented to let police search anywhere on the premises because "he didn't want any drugs on his property." Garlock told the officers that his daughter and son-in-law, Dawn and John Kieffer, slept in a loft area above Garlock's garage. Garlock also reported that Zattera was staying with them.
¶4 Before proceeding to the garage loft, the three officers asked Garlock about the living arrangements. Deputy Otterbacher asked Garlock what he owned, to which he responded the house and the loft or barn. The officers asked whether the Kieffers paid rent. Garlock replied that the Kieffers sometimes helped pay the electric bills but that there was no written lease. The police also learned that there was no plumbing in the loft, and no telephone. Later, at the suppression hearing in this case, Officer Bushey testified that he understood this information to mean that although the Kieffers slept in the loft, they used the entire house as their home 3:
The way I understood it they used the entire house and the loft area. The loft area is where they slept, but they came in the house to take their showers, go to the bathroom, use the phone, and I would assume it's where they would eat dinner. The loft area was a place that they stayed and slept.
¶5 Garlock then led the officers to the detached garage, approximately 15 to 20 feet behind the house. The outside door to the garage was unlocked. Garlock opened the outside garage door. There were no outside steps leading directly to the loft. Deputy Otterbacher asked Garlock how he normally entered the loft. Garlock told police that he usually knocked before entering the loft, "out of respect." With Garlock leading the way, the three officers and he then climbed up the ¶6 Additional facts about the use of the loft area as living space, but not relayed to the police at the time of the search, came out in testimony at the suppression hearing. The Kieffers had converted the loft area into a living space with their own money. They did so with Garlock's permission. The Kieffers considered Garlock their landlord, and were living there by Garlock's rules. As part of their agreement, Garlock would not go into loft area without asking their permission. The Kieffers had the only keys to the loft. Dawn felt that as part of the agreement, she and her husband had the right to exclude anyone, including her parents, from the loft area. Garlock testified that the Kieffers paid the utilities monthly. 4
interior stairs to the Kieffers' living quarters. At the top of the stairs was a door with a lock; it was unlocked at the time.
¶7 At this point, the testimony diverges regarding the manner of entry and sequence of conversation. Officer Bushey testified that Garlock poked his head in the door, and yelled to the Kieffers that the police were there and wanted to talk to them. According to Deputy Otterbacher's testimony, someone said in response to Garlock's knock "come in" or words to that effect. At the hearing Garlock testified that he didn't knock, he simply opened the door and walked into the loft. Garlock entered first. The officers followed. When Garlock entered, he took hold of the dog that was in the loft.
¶8 At the suppression hearing, Garlock testified as to his custom in entering the loft, and also the manner in which he entered the loft area on the day of the search:
¶9 Once inside the loft, the officers found Zattera sleeping on a couch in the living room area. The officers also found a marijuana pipe and rolling papers on or near the coffee table in front of the couch.
¶10 There was a door from the living room area to a small bedroom. Garlock said "come on out," several times. Then the officers asked Kieffer and Dawn to come out. The three officers stood outside the door until Kieffer and eventually his wife walked out of the bedroom. Dawn Kieffer testified that she immediately asked whether the officers had a search warrant. 5 Officer Bushey, according to Dawn, told her they did not obtain a search warrant but relied on the consent given by her father, Robert Garlock, to enter and search the loft area. Consequently, the officers did not ask either John or Dawn Kieffer for their consent to search the living quarters.
¶11 The officers questioned both Zattera and John Kieffer. Kieffer initially denied knowing anything about the mushrooms. After this initial questioning, Kieffer went back into the bedroom. Officer Priebe followed him. While in the bedroom, Priebe conducted a search and found several bags containing psilocybin mushrooms. Kieffer then admitted ¶12 Without giving Kieffer Miranda 6 warnings, the officers continued to question him about his involvement with the mushrooms. Kieffer made several incriminating statements. The officers arrested Kieffer, handcuffed him and transported him to the Whitewater police station. At the station an officer read Kieffer his Miranda rights, which Kieffer then waived. Officer Bushey then interrogated Kieffer. Following that interrogation, Kieffer was charged with one count of possession with intent to deliver psilocybin mushrooms in violation of Wis. Stat. § 161.41(1)(g)1. 7
having purchased the mushrooms from Zattera.
¶13 Kieffer filed motions to suppress the physical evidence obtained in the search of the loft and to suppress the statements he made when questioned by police at both the loft and the police station. After hearings on these motions in June, 1995, the circuit court first denied Kieffer's motion to suppress the physical evidence and the motion to suppress his post-Miranda statement given at the police station. The court inferentially concluded that Garlock lacked actual authority to consent to a search of Kieffer's living area, but expressly held that Garlock had...
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...v. Gonzalez, 667 N.E.2d 323, 326-27 (N.Y. Ct. App. 1996); Riordan v. State, 905 S.W.2d 765, 771 (Tex. App. 1995); State v. Kieffer, 577 N.W.2d 352, 359-60 (Wis. 1998). We We have often noted that the touchstone of the Fourth Amendment is reasonableness. See, e.g., Bryant, 39 Va. App. at 471......
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