State v. Rodgers

• Decision Date: 12 June 1984
• Docket Number: No. 82-1930-CR,82-1930-CR
• Citation: 119 Wis.2d 102,349 N.W.2d 453
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Michael Paul RODGERS, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 453

349 N.W.2d 453

119 Wis.2d 102

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Michael Paul RODGERS, Defendant-Respondent.

No. 82-1930-CR.

Supreme Court of Wisconsin.

Argued March 29, 1984.

Decided June 12, 1984.

Stephen W. Kleinmaier, Asst. Atty. Gen. (argued), for plaintiff-appellant-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

Jerold W. Breitenbach, Kenosha (argued), for defendant-respondent; Breitenbach & Zievers, Kenosha, on brief.

STEINMETZ, Justice.

The issue in this case is whether the defendant's mother voluntarily consented to the entry into her home by sheriff's deputies who arrested her son. The deputies asked the defendant's mother whether the defendant was home and whether they could talk to him. After entering, they placed the defendant under arrest without questioning him. Although the deputies did not have a warrant to arrest the defendant, they did have probable cause for the arrest.

The defendant, Michael Paul Rodgers, was charged with one count of false imprisonment in violation of sec. 940.30, Stats.

At the preliminary hearing, the defendant was bound over for trial, and thereafter, an information was filed charging the defendant with false imprisonment.

The defendant filed a motion to dismiss on the ground the trial court lacked jurisdiction since the arrest was illegal. The parties stipulated that there was probable cause for the arrest and the state did not rely on exigent circumstances to justify the entry into the home. The parties also stipulated that the testimony taken at the preliminary hearing could be used by the trial court to decide the motion. The trial court, the Kenosha county circuit court, Honorable Michael S. Fisher, granted the motion to dismiss finding that the warrantless arrest of the defendant in his home was unconstitutional. The trial court concluded that: "[T]he entry into the defendant's home was not obtained by consent that could be considered a free, intelligent, unequivocal and specific waiver." The state appealed the trial court's order.

The court of appeals, in a published decision, affirmed the trial court's order holding that the consent to enter the home was invalid because it was obtained from the defendant's mother by deception since the deputies did not tell her that they intended to arrest the defendant. State v. Rodgers, 115 Wis.2d 118, 339 N.W.2d 605 (Ct.App.1983).

Detective Mielke testified that on June 10, 1982, he was assigned to a follow-up investigation in reference to assault and false imprisonment charges involving the defendant. Detective Mielke said that shortly after noon on June 11, 1982, he and Detective Vena went to the defendant's home where the defendant's mother met them at the door. Mielke said that they identified themselves, told her they wanted to talk to her son, and asked whether he was home. Neither deputy told the mother that he was there to arrest the defendant. The mother said he (the defendant) was seated in the living room on a couch and let them into the home; the detectives could see the defendant from the outside. ¹ The detectives told the defendant they wanted to talk to him and when the defendant got up and started to say something, Mielke told him he was under arrest. Mielke estimated that he was in the house one or two minutes before arresting the defendant. Mielke told the defendant they were there in connection with an incident involving Carmen Karau on June 9, 1982, who complained of a fight with the defendant and that she had been hurt and forced to ride with him from Kenosha to a point approximately 45 miles from Green Bay and back to Kenosha. Mielke told the defendant he was under arrest for battery and false imprisonment. After the defendant was arrested he was taken to the squad car and advised of his rights. Enroute to the sheriff's department the defendant gave a verbal statement, and after they arrived at the sheriff's department, the defendant gave a written statement.

The defendant moved to dismiss the action on the ground that his warrantless arrest in his home was in violation of SEC. 968.07, STATS., ART. I², secs. 8 and 11 of the Wisconsin Constitution, ³ and the fourth fifth and fourteenth amendments of the United States Constitution. ⁴

The law governing warrantless arrests in a person's home has been set forth in Payton v. New York, 445 U.S. 573, 576, 590, 100 S.Ct. 1371, 1374, 1382, 63 L.Ed.2d 639 (1980), and Laasch v. State, 84 Wis.2d 587, 596, 267 N.W.2d 278 (1978). The police can make a valid warrantless arrest in the person's home if the police possess probable cause and exigent circumstances exist to justify entry into the home or they have consent to enter the home. Neither Payton nor Laasch dealt directly with entry into a home with consent. ⁵ Laasch did recognize that consent to enter the home was an exception to the exigent circumstances requirement.

The parties stipulated that there was probable cause for the warrantless arrest and the state does not rely on exigent circumstances to justify the entry into the home. Therefore, the issue is whether the defendant's mother gave consent to the entry of the deputies into the home so that the warrantless arrest based on probable cause was constitutional.

Laasch held at 592, 267 N.W.2d 278:

"Consent to an entry is not to be lightly inferred, but must be shown by clear and convincing evidence. Kelly v. State, 75 Wis.2d 303, 316, 249 N.W.2d 800 (1977). The burden is on the state to show a free, intelligent, unequivocal and specific waiver. Gautreaux v. State, 52 Wis.2d 489, 190 N.W.2d 542 (1971)."

The present case concerns what legal significance is to be attached to the facts over which there is no dispute. Since the case presents a question of law not fact, the trial court's decision is not entitled to any deference. State v. Felton, 110 Wis.2d 485, 504, 329 N.W.2d 161 (1983); Compton v. Shopko Stores, Inc., 93 Wis.2d 613, 616, 287 N.W.2d 720 (1980).

In reaching its decision, the trial court cited three points; they were: (1) there was nothing in the record that provided any reason for not obtaining a warrant; (2) the consent could not be valid unless it could be considered "a free, intelligent, unequivocal and specific waiver;" (3) and, the deputies did not tell the defendant's mother the real purpose for their visit, that being to arrest her son.

There is no requirement that the police or deputy sheriffs obtain a warrant to make an arrest. In Laasch, we held at 591, 267 N.W.2d 278:

"This court has rejected the argument that whenever there is time to do so, a warrant must be obtained before making a felony arrest. In Rinehart v. State, supra, [63 Wis.2d] at 766, 767, this court adopted the rationale of United States v. Millen (E.D.Wis.1972), 338 F.Supp. 747, 750, 751, that:

" ' "... as long as probable cause for an arrest exists, arrest warrants are unnecessary, even where there is time to obtain them. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)...." ' "

The trial court also said that "the deputies did not tell the defendant's mother the real purpose for their visit, that being to arrest her son." This appeared to the trial court to have been a deception. The trial court also said that the consent was not valid because it could not be considered "a free, intelligent, unequivocal and specific waiver." These statements demonstrate that the trial court applied a waiver standard to determine whether the consent was voluntary. The court of appeals also found the consent was obtained by deception and applied a waiver standard.

The standard for determining the voluntariness of consent under the fourth amendment was set forth in Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2046-47, 36 L.Ed.2d 854 (1973), where the Supreme Court used the test for voluntary confessions to determine the voluntariness of consent in fourth amendment cases. In Schneckloth, a car in which the defendant was a passenger was stopped by the police because a headlight and the license plate light were burned out. A police officer asked if the car could be searched and one of the passengers consented. The police officer did not advise the defendant of the reason for the search or that any evidence or contraband, if found, would be seized. While searching the car trunk, which a passenger had unlocked, three stolen checks were found wadded up under the left rear seat. In that case the Court stated:

" 'The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.' Culombe v. Connecticut, supra, at 602 ." [Culombe, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) ]

In Schneckloth, the Court criticized the approach taken by the Court of Appeals for the Ninth Circuit as follows:

"The approach of the Court of Appeals for the Ninth Circuit finds no support in any of our decisions that have attempted to define the meaning of 'voluntariness.' Its ruling, that the State must affirmatively prove that the subject of the search knew that he had a right to refuse consent, would, in practice, create serious doubt whether consent searches could continue to be conducted. There might be rare cases where it could be proved from the record that a person in fact affirmatively knew of his right to refuse--... But more commonly where there was no evidence of any coercion, explicit or implicit, the prosecution would nevertheless be unable to demonstrate that the subject of the search in fact had known of his right to refuse consent.

"...

"One alternative that would go far toward proving that...