State v. Reed
| Decision Date | 07 December 2018 |
| Docket Number | No. 2016AP1609-CR,2016AP1609-CR |
| Citation | 384 Wis.2d 469,920 N.W.2d 56,2018 WI 109 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Faith N. REED, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner, there were briefs filed and an oral argument by Joseph Ehmann, state public defender.
For the plaintiff-respondent, there was a brief filed by Clayton P. Kawski, assistant attorney general, Scott E. Rosenow, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Clayton Kawski.
¶ 1 This is a review of an unpublished decision of the court of appeals affirming a judgment of conviction of the Circuit Court for Monroe County, David Rice, Judge.1 The case was decided by one judge, Judge Brian Blanchard, pursuant to Wis. Stat. § 752.31(2)(f) (2015-16).2 Faith Reed, the defendant, was convicted of possession of a controlled substance in violation of Wis. Stat. § 961.41(3g)(b) and bail jumping in violation of Wis. Stat. § 946.49(1)(a), both misdemeanors.
¶ 2 In the circuit court, Reed claimed that the officer's warrantless entry into her apartment, sometimes referred to here as Unit 206, violated her rights under the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. Reed argued that the warrantless entry into her apartment was not justified under any of the well-recognized exceptions to the Fourth Amendment's warrant requirement. Specifically, Reed contended that the officer did not have consent to enter her apartment and that exigent circumstances did not exist justifying entrance to her apartment. Consequently, she argued that the evidence obtained during the searches of her apartment and her person should be suppressed.
¶ 3 The circuit court denied Reed's motion to suppress the evidence. The circuit court concluded that the law enforcement officer had consent to enter Reed's apartment, that the consent was never revoked, and that exigent circumstances justified the officer's pushing open the apartment door. The court of appeals affirmed the circuit court's denial of Reed's motion to suppress. The court of appeals agreed with the circuit court that the officer had consent to enter Reed's apartment and that the consent was never revoked. The court of appeals did not address the issue of exigent circumstances.
¶ 4 The instant case presents the following issues: (1) whether the officer had consent to enter Reed's apartment; (2) if consent was initially given to the officer, whether that consent was revoked before the officer's entry into Reed's apartment; and (3) whether exigent circumstances justified the officer's pushing open Reed's apartment door.
¶ 5 We conclude as follows: (1) the law enforcement officer did not have consent to enter Reed's apartment; (2) even if the officer had initially been given consent to enter the apartment, which he was not, consent would have been unequivocally revoked before the officer's entry into the apartment; and (3) exigent circumstances did not justify the officer's opening Reed's apartment door.
¶ 6 The following principles of law apply in the instant case.
¶ 7 A warrantless search does not violate the Fourth Amendment of the United States Constitution or Article I, Section 11 of the Wisconsin Constitution if the search is conducted with consent3 or is justified by exigent circumstances.4
¶ 8 Consent to search must be unequivocal and specific,5 and it must be freely and voluntarily given.6 Consent is not freely and voluntarily given if it is the result of mere "acquiescence to a claim of lawful authority."7 Once given, consent may be revoked. Revocation of consent need not be communicated through particular "magic words," but intent to revoke consent must be made by unequivocal acts or statements.8
¶ 9 In the instant case, the law enforcement officer neither requested nor obtained consent to enter Reed's apartment.
Kirk Sullivan, who was staying with Reed at her apartment and led the officer to Reed's apartment, never told the officer that the officer was allowed to enter the apartment. In leading the officer to the threshold of Reed's apartment, Sullivan was merely following the directives and commands of the officer. Sullivan's conduct falls far short of unequivocal and specific consent that was freely and voluntarily given.
¶ 10 Moreover, even if Sullivan had initially given the officer consent to enter Reed's apartment (which, we emphasize, he did not), consent would have been unequivocally revoked when Sullivan opened the apartment door just enough to allow himself entry and attempted to shut the door behind him to prohibit the officer from entering the apartment.
¶ 11 Additionally, a warrantless search may also be justified by exigent circumstances.9 "The objective test for determining whether exigent circumstances exist is whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life ... or greatly enhance the likelihood of the suspect's escape."10
¶ 12 We conclude that no exigent circumstances justified the officer's pushing open Reed's apartment door. Under the circumstances known to the officer at the time he pushed the door open, there were no facts upon which to base a reasonable belief that the delay in procuring a search warrant would gravely endanger life or greatly enhance the likelihood of the suspect's escape.
¶ 13 Accordingly, we conclude that the searches at issue violated the United States and Wisconsin constitutions. We therefore reverse the decision of the court of appeals and remand the cause to the circuit court with instructions to suppress the challenged evidence and vacate Reed's convictions.
¶ 14 The following facts are drawn primarily from the body camera footage of Officer Steven Keller of the Tomah Police Department.
¶ 15 On December 13, 2015, at 1:20 p.m., Officer Keller was dispatched to 308 Murdock Street in Tomah, Wisconsin. Officer Keller was responding to a report of an altercation between two individuals that had taken place in the street. When Officer Keller arrived at the scene, he encountered two men later identified as Daniel Cannon and Kirk Sullivan. Officer Keller asked Cannon and Sullivan what was going on, and Cannon responded, "They were fighting over stupid shit."11 Officer Keller asked, "Where are they?" Cannon pointed ahead, saying "One of them went back the house that way—" Cannon then turned around, but before he could say anything else, Officer Keller asked Cannon if he and Sullivan were involved in the altercation. Cannon responded, "We were trying to stop it."
¶ 16 Cannon then explained that "homeboy," referring to the other individual involved in the altercation, "went back to his house just to cool off." By "his" house, Cannon was referring to Sullivan.
¶ 17 Officer Keller asked Cannon, "Which apartment they in?" Cannon said that "they" were in number 11. Dispatch12 could be heard saying that as the parties to the altercation were leaving, a female and male in a white T-shirt went to "apartment number 11." Cannon was heard off-screen chuckling and saying, "Yep, they're in number 11."
¶ 18 Referring to the individual who went back to Sullivan's apartment to cool off, Cannon reappeared on screen and began talking to Officer Keller again, stating, "And he's—"
¶ 19 At this time, Officer Keller noticed that Sullivan, now a short distance away, was walking away towards his apartment building.
¶ 20 Officer Keller said loudly to Sullivan, Sullivan turned around and walked back towards Officer Keller with his hands in his pockets as Cannon reiterated that the other individual went back to Sullivan's apartment to cool off. After a few seconds, Officer Keller told Sullivan to "[k]eep your hands out of your pockets for me, OK?" Sullivan removed his hands from his pockets and showed his open palms to Officer Keller.
¶ 21 Cannon again reiterated that he and Sullivan were trying to defuse the situation when Sullivan, speaking for the first time, said "Yep." Cannon then explained to Officer Keller that the altercation was related to shoes. Cannon says "that was pretty much the whole argument," and that "they" were supposed to "sit there and watch football."
¶ 22 Officer Keller then asked Sullivan, "So you were involved with this?" Sullivan responded,
¶ 23 Officer Keller then asked Cannon and Sullivan for identification. Describing Cannon and Sullivan as "witnesses," Officer Keller radioed their names to Dispatch for a warrant check. While waiting to hear back from Dispatch, Officer Keller confirmed with Cannon and Sullivan that the altercation was a verbal argument about shoes that never got physical.
¶ 24 As Cannon and Sullivan were describing the altercation in greater detail, another male officer could be heard on Officer Keller's radio speaking with a female officer. The male officer said that he and "Andy" were "not having any luck" at apartment number 11. The female officer responded, As to Sullivan, the female officer commented, "Reference: a commitment." The male officer asked the female officer to "run Jerome" and "look for a Brandon—maybe same last name."
¶ 25 Officer Keller then asked Cannon and Sullivan, "Can you guys stick around this area for a moment?" Sullivan asked, "You mean stand outside?" Officer Keller pointed to a nearby building and responded, "Well, do you want to hang out in this building?" In response, Sullivan laughed and said, "I was going to watch the game, I guess." Gesturing with his hands, Officer Keller responded, "Until we can get everything straightened out."
¶ 26 At this time, Cannon turned to Sullivan and said, "Well,...
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