State of Wisconsin,
Brian T. St. Martin,
JUL 28, 2010
Acting Clerk of Supreme Court
BY WISCONSIN COURT OF APPEALS
Before Neubauer, P.J., Anderson and Snyder, JJ.
Pursuant to Wis.
Stat. Rule 809.61 (2007-08)
this court certifies the appeal in this case to the Wisconsin Supreme Court for
its review and determination.
Whether the rule regarding consent to search a shared
dwelling in Georgia v. Randolph, 547 U.S. 103 (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?
On June 8, 2006, Latoya M. made a complaint of domestic
abuse against Brian T. St. Martin at the Racine
police department. She spoke with
Officer Andrew Matson, who then called Officer John Spieker to accompany him to
the apartment that Latoya shared with St. Martin.
Spieker was driving the transport van,
and he anticipated picking up St. Martin for
further investigation or possibly making an arrest.
When Matson, Spieker and Latoya arrived at the apartment,
they encountered a locked door. No one
responded when they knocked. Latoya
provided a key to Matson and, as he opened the door, they all observed St. Martin standing in the doorway. The officers then handcuffed St. Martin and took him into custody for domestic
abuse. They placed St.
Martin in the transport van parked outside.
After St. Martin was
secured in the van, Spieker talked to Latoya.
Latoya told Spieker that she and St. Martin
had recently “broken up” and that she “had suspicions that [he] was dealing
drugs.” She said that on June 2, 2006, she
had seen St. Martin “cutting out a kilo of
cocaine in the bathroom probably about a week before” the domestic violence
incident. Latoya stated that St. Martin had split up the cocaine and put it into
plastic sandwich bags. She said she
thought there might still be cocaine in the apartment. Latoya told Spieker that St.
Martin was “making trips back and forth in the attic” and, if
there was cocaine on the premises, it would be up in the attic. Latoya did not say she saw cocaine in the
Latoya told Matson that she wanted to cooperate with a
drug investigation and she gave her consent to search the attic. Matson then went to talk to St.
Martin, who was outside in the transport van. Matson asked for
St. Martin’s consent to search and St. Martin
Matson, Spieker and Latoya then went into the attic
together. Matson recalled that they were
not in the attic very long and that he “basically just walked through … [and]
didn’t see anything.” Spieker described
the attic as “messy” and in “disarray.”
As they were getting ready to go down the stairway from the attic,
Spieker “noticed money beneath some clothing.”
Spieker “moved the clothing from above the money and below the clothing
[were] two bags of cocaine.”
After they found the cocaine, Matson took it to be tested
and weighed. Spieker stayed at the
apartment and waited for investigators to arrive and obtain a search
warrant. Spieker talked to Investigator
Sorenson, who prepared an affidavit to support the warrant. Sorenson’s affidavit, paragraph Nos. 3-6,
stated as follows:
affiant states that Officers A. Matson and Spieker responded to 1012 College Avenue #4
with the intention of arresting St. Martin on
domestic abuse related charges based on the statements provided by
[Latoya]. When the officers arrived St. Martin was arrested on domestic abuse related charges.
your affiant states that Officer A. Matson was approached by [Latoya] after St. Martin was in custody. [Latoya] told A. Matson that St. Martin
regularly has large amounts of cocaine in the apartment and that he regularly
brings kilograms of cocaine into the apartment, where he would divide it into
smaller pieces and re-bag it into smaller bags for resale. [Latoya] further stated that
St. Martin often hides that cocaine in the
your affiant reports that with [Latoya’s] permission both Officers A. Matson
and Spieker entered the attic from apartment
#4. [I]n plain
view in the attic A. Matson recovered a plastic baggie that contained a white
powdery substance and that this baggie was next to a large amount of U.S. currency.
your affiant reports that A. Matson transported this baggie to the Racine
Police Department where he [weighed] it and conducted a field test for
cocaine. The total gross weight was 64.9
grams and the field test was positive for cocaine.
The circuit court issued the
search warrant. The police then searched
the premises and seized cash, a scale, cell phones and documents.
The State charged St. Martin
with one count of battery, contrary to Wis.
Stat. § 940.19(1) and one count of possession of cocaine with
intent to deliver, contrary to Wis.
Stat. § 961.41(1m)(cm)4. St. Martin moved to suppress all evidence obtained in the
warrantless home entry and the subsequent search pursuant to the warrant.
The circuit court held a hearing on the motion.
The State conceded at the hearing that
its initial search of the attic was improper. In its written decision, the circuit court
summarized its factual findings. It
acknowledged the State’s concession that the warrantless “search of the attic
was illegal because
Mr. St. Martin had specifically not consented to the search.” With regard to the subsequent search, the
court explained that statements made in paragraph No. 4 of Sorenson’s affidavit,
which provided the probable cause to issue a search warrant, “were not
true.” The State asked the court to
“reform” paragraph No. 4 of Sorenson’s affidavit to read:
That your affiant states that Officer A. Matson was
approached by [Latoya] after St. Martin was in
custody. [Latoya] told A. Matson that
St. Martin has large amounts of cocaine in the apartment and that he brings
kilograms of cocaine into the apartment, where he would divide it into smaller
pieces and re-bag it into smaller bags for resale. [Latoya] further stated that St. Martin hides that cocaine in the attic.
The revision removed the terms
“regularly” and “often” from Latoya’s description of St.
Martin’s drug activities.
The court rejected the State’s new version and concluded that it could
not “simply reform” paragraph No. 4, but instead would redact all untrue
statements from the paragraph and then assess what remained to determine whether
it supported probable cause for a search warrant. Thus, the court considered the following
That your affiant states that Officer A. Matson was
approached by [Latoya] after St. Martin was in
custody. [Latoya] told A. Matson that St. Martin may have cocaine in the apartment. That she had seen St.
Martin divide cocaine into smaller pieces and rebag it into
smaller bags. [Latoya] further stated
that St. Martin may hide cocaine in the attic.
The court then posed the question of whether a neutral
magistrate would have found probable cause from the redacted statement. It characterized this as “a very close case,”
but ultimately held that “the redacted Paragraph 4 … has sufficient information
under the totality of the circumstances to justify a search of the apartment.”
The circuit court denied St. Martin’s
motion to suppress. St.
Martin pled guilty to one count of possession of cocaine with
intent to deliver and pursued this appeal.
The certified issue asks whether the Randolph rule contemplates the refusal
of a resident who has been removed from the premises by law enforcement but who
is nonetheless in close proximity and has been asked by law enforcement to
grant or refuse consent. Federal Fourth Amendment jurisprudence has
addressed warrantless search issues in the context of a shared dwelling
before. In United States v. Matlock, 415 U.S.
164, 170 (1974), the Supreme Court established that consent from one with “common
authority ... is valid as against [an] absent, nonconsenting person with whom
that authority is shared.” More
recently, the Supreme Court held that a warrantless search cannot be justified
when a “physically present resident” expressly refuses consent. Randolph, 547
at 120. The key
distinction between Matlock and Randolph is the contemporaneous
physical presence of the defendant at the time consent to search is
requested. An absent party’s refusal is
not valid; however, a “physically present resident” may effectively refuse, even
over a co-dweller’s consent.
In Randolph, the police responded to a domestic dispute and found both
Randolph and his wife at the door. Randolph,
at 107. While Randolph’s wife gave the police consent to search the
“unequivocally refused” consent. Id. The police searched the home while ignoring
his protests. Id. The Court held “that a warrantless search of a
shared dwelling for evidence over the express refusal of consent by a
physically present resident cannot be justified as reasonable as to him on the
basis of consent given to the police by another resident.” Id.
at 120. The Court reasoned that “there
is no common understanding that one co-tenant generally has a right or
authority to prevail over the express wishes of another, whether the issue is
the color of the curtains or invitations to outsiders.” Id.
Here, the facts demonstrate that St.
Martin was in a van just outside the apartment when he refused
consent to search his dwelling. He was
in the van because the officers arrested him on the domestic violence
complaint, took him from his apartment, and placed him in the van. Shortly thereafter, having talked to Latoya
about possible drugs in the apartment, the officers asked St.
Martin for consent to search his apartment. He refused.
Unlike the situation presented in Randolph,
St. Martin was not in the apartment when he
refused to consent; rather, he was nearby in the police van. He was close enough for officers to ask him
directly whether they could search his apartment. The Randolph
court anticipated some of these twists on this issue:
Id. at 121. Here, St. Martin was “nearby” and was
directly invited to take part in the “threshold colloquy” by Matson, who asked St. Martin for consent to search.
court also anticipated a problem if law enforcement preemptively removed a
resident from a dwelling for the purpose of preventing that person’s ability to
refuse consent: “[E]vidence that the
police have removed the potentially objecting tenant ... for the sake of avoiding a possible objection”
might invalidate a subsequent search with respect to that tenant. Id. at
121-22. There is no suggestion here that
the officers removed St. Martin from his
apartment to avoid a possible objection; indeed, they sought out his consent
even while he sat waiting outside in the van.
The State argues that the Randolph rule must be limited “to only
those situations where the co-tenants are both present when the consent
question is asked, with one objecting and one consenting.” It directs us to several Seventh Circuit
cases where the holding in Randolph
was construed very narrowly. See,
e.g., United States v. Groves, 530 F.3d 506, 511-12 (7th Cir. 2008) (Randolph
requires co-tenant’s objection at the door and expressly disinvites anything
other than the narrowest of readings); United States v. Henderson, 536 F.3d
776, 783 (7th Cir. 2008) (the contemporaneous presence of the objecting and
consenting co-tenants is indispensable to the decision in Randolph); United
States v. Hicks, 539 F.3d 566, 569 (7th Cir. 2008) (Randolph
requires objector’s physical presence at the time consent is originally sought
to nullify a co-occupant’s permission).
St. Martin argues that
his detention “just outside the house is a red herring.” He asserts that St. Martin was “physically
present” as contemplated by Randolph
and that the State’s narrow interpretation elevates form over substance. He emphasizes that key factors derived from
the Supreme Court’s decision in Randolph are
present here: (1) St.
Martin was nearby, (2) he refused consent after Latoya told
officers they could search the attic, and (3) his refusal was made directly to
officers on the scene. The Randolph
court summarized the rule regarding refusal of consent by a “physically present
resident” as follows:
So long as there is no evidence that the police have
removed the potentially objecting tenant from the entrance for the sake of
avoiding a possible objection, 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.
Randolph, 547 U.S. at
121-22. The question here then comes
down to what the United States Supreme Court meant by a “physically present
resident” when it introduced that element into the inquiry. See
at 120. Was St. Martin physically
present when he was forcibly removed to a van just outside his apartment, yet
was nearby and was invited to take part in the “threshold colloquy” regarding
consent to search?
The interpretation of Randolph in this context implicates
the constitutional right to be free from unreasonable search and seizure. This right is eroded when law enforcement can
manipulate a situation in a way that invalidates a resident’s refusal to
consent to a search. Likewise, the
state’s ability to investigate and prosecute criminal activity is restrained
when police officers are provided insufficient guidance regarding the proper
execution of their duties. Because Randolph
has not been interpreted or applied in the context of a resident who is removed
from his residence but remains nearby and refuses consent when asked, law
enforcement officers and the bench and bar would benefit from guidance on the
issue. We respectfully certify the
question to the Wisconsin Supreme Court.