COURT OF APPEALS
DATED AND FILED
February 1, 2011
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
IN COURT OF APPEALS
Robert L. Stokes,
from a judgment of the circuit court for
¶1 CURLEY, P.J. Robert L. Stokes appeals a judgment convicting him of possession with intent to deliver marijuana, contrary to Wis. Stat. § 961.41(1m)(h)2. (2005-06). Stokes contends that because the police did not have valid consent to search his residence without a warrant, the trial court erred in denying his motion to suppress the 275 grams of marijuana found in his basement. Specifically, he argues that the consent given by his mother, Deborah Stokes, to search their residence was involuntary because: (1) police tricked her into thinking they had authority to search the residence for evidence of dog fighting when they had no such authority; (2) she was intimidated by the large number of police officers requesting entry into her home; (3) she initially refused consent to enter the residence; and (4) she was “seized” when she gave consent. Stokes additionally argues that regardless of whether Deborah’s consent was valid, the trial court erred in denying his suppression motion because police unlawfully entered the yard and front porch of the residence before gaining consent to enter. We affirm.
¶2 Approximately eight
¶3 What occurred after police apprehended the suspicious sprinter and began interviewing Robert is in dispute.
Police Sergeant’s Version of Events
¶4 According to a sergeant who was on the scene, he noticed what
appeared to be a marijuana cigarette lying on a pillar in the front yard. He and other officers also noticed a number
of unchained pit bull puppies in the yard at
¶5 Robert’s mother, Deborah, who also lived at
¶6 Once inside the residence, one of the officers observed what appeared to be a small amount of marijuana on top of a bedroom dresser in plain view. Upon learning about the marijuana, the sergeant asked Deborah for written consent to further search the residence. He handed Deborah a notebook on which he had drawn a signature line with an “X” next to it; below the signature line was writing that read, “consent to search residence.” (Capitalization omitted.) He explained that her signature in the notebook was to confirm that police would be doing a further search of the residence. Deborah signed the notebook and allowed the officers to search her home.
¶7 While searching the basement, one of the officers discovered approximately 275 grams of marijuana, along with a digital scale and traffic printouts for “Robert Stokes.” Robert was consequently arrested and charged.
Stokes’ Version of Events
¶8 According to Robert, his mother did not give police consent to enter their residence. When police first spoke to him in the front yard, they noticed his electronic monitoring bracelet and demanded to see identification. Robert explained that it was in the house. The officers made him knock on the door and ask his mother for his identification card. She went inside to get the ID, and when she came back to the door, the officers barged inside without permission. Robert did not see or hear what went on in the residence after that point because he remained outside the house.
¶9 Deborah also denied giving police consent to enter her home. According to her, she told police that there were no dogs in the house—that she does not like dogs—and said that they could not come in. But according to Deborah, the officers “paid no attention.” As she went to hand Robert his ID, they “snatched the screen door open” and “just came on in” without permission.
¶10 According to Deborah, once the officers were in her home they did not ask for her consent to search, either. She acknowledged that an officer asked her to sign his notebook before the basement was searched and the 275 grams of marijuana were discovered, but according to her, there were no words indicating that she gave “consent to search residence.” Deborah explained that an officer had asked her to sign the notebook and provide her contact information as a precaution to prevent her from filing a lawsuit against the police department claiming police had stolen personal property.
Motion to Suppress and Appeal
¶11 After Robert was arrested and charged, he filed a motion to suppress the marijuana that was discovered during the June 28, 2006 search of his mother’s home based on the fact that the officers did not have a warrant and there was no consent for the search. The trial court denied the motion, and Robert pled guilty. He now appeals.
¶12 Robert bases his appeal primarily on one issue: whether his mother, Deborah, gave voluntary consent for police to search their residence without a warrant.
¶13 Although searches inside a home without a warrant are
presumptively unreasonable, see, e.g., State v. Phillips, 218
¶14 Consent must be voluntary; in other words, it must be given in
the “‘absence of actual coercive, improper police practices designed to
overcome the resistance of a defendant.’”
State v. Giebel, 2006 WI App 239, ¶12, 297
¶15 Whether consent is voluntary is a mixed question of fact and
law. State v. Vorburger, 2002
WI 105, ¶88, 255
¶16 As the trial court correctly noted, whether Deborah’s consent
was voluntary in this case was ultimately a credibility issue. Under the police sergeant’s version of
events, Deborah gave oral consent to enter her home—saying “sure, come on
in”—and written consent to search her home.
There was no duress or coercion of any kind. See Giebel, 297
¶17 The trial court listened to and analyzed the testimony given at
the suppression hearing and found the police sergeant’s version of events more
credible. See McCallum, 208
¶18 Moreover, we are not persuaded by Robert’s arguments on appeal
that even if Deborah did consent to the entry and/or search, that her consent
was not voluntary. Of those four
arguments—(1) that police tricked Deborah into thinking they had authority to
search the residence for evidence of dog fighting when they had no such
authority; (2) that she was intimidated by the allegedly large number of police
officers requesting entry into her home; (3) that Deborah initially refused
consent to enter the residence; and (4) that she was “seized” when she gave
consent—three, namely, the first, second, and fourth arguments, are unpersuasive
and not sufficiently developed, and we will not consider them. See
Fin. Servs. Co. of Wis., Inc. v. Brown, 2002 WI App 300, ¶4 n.3, 258
Wis. 2d 915, 656 N.W.2d 56. As for the
third argument, that Deborah’s consent was invalid because she initially
refused to allow police to enter the residence, we again note that whether
Deborah gave valid consent to enter the residence (or whether she instead told
police they could not enter before they barged in) was a credibility determination
that the trial court found in favor of the State. See McCallum, 208
¶19 Finally, we are not convinced by Robert’s argument that the
trial court erred in denying his suppression motion regardless of whether
Deborah’s consent was valid because police had no lawful reason to be in the Stokes’
yard and on their porch. Robert’s
argument ignores the fact that police initially came into the yard in pursuit
of a suspicious subject, saw what appeared to be an illegal substance (a
marijuana blunt) in the yard, and went to the porch to ask permission to search
for evidence of illegal activity—dog fighting—that they had reason to believe
was going on given their observations in the yard. Furthermore, Robert’s citation to State
v. Wilson, 229 Wis. 2d 256, 263‑66, 600 N.W.2d 14, which held
that the area near the back of an arrestee’s house was protected curtilage
under the Fourth Amendment, does not persuade us that the front yard and porch in this case constituted protected curtilage
under the Fourth Amendment. In Wilson,
several factors convinced us that the area near the back of the defendant’s
house enjoyed a reasonable expectation of privacy and thus protection under the
Fourth Amendment, including: the nature
and use of the area as a place for family activities; the fact that the area
was not viewable from the front of the house, nor from the street or sidewalk;
and the fact that the defendant took steps to protect the area from
observation. See id. Robert does not explain how the factors we
found persuasive in
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
 Because Robert Stokes and his mother, Deborah, share the same last name, we refer to them hereafter primarily by their first names for clarity’s sake.
 Stokes also presents an additional basis for appeal which we do not consider in this opinion; namely, that the trial court erroneously denied his motion to dismiss based on vindictive prosecution. We do not consider this argument because it is waived. After Stokes filed his appeal, he filed a motion seeking to waive his vindictive prosecution claim. In this motion, Stokes requested that this court “decide his appeal based solely on the first issue regarding the search of his residence.” Pursuant to an order of this court, the trial court conducted a hearing at which Stokes testified that he wanted to waive the vindictive prosecution clam. Finding that Stokes, “freely, voluntarily,” and “knowingly” waived his right to pursue the vindictive prosecution issue, the trial court accepted Stokes’ waiver. While we owe no deference to the trial court on this issue, see State v. Kelty, 2006 WI 101, ¶13, 294 Wis. 2d 62, 716 N.W.2d 886 (questions involving waiver are questions of law reviewed de novo), we agree that Stokes waived his right to appeal on the basis of vindictive prosecution, and we therefore do not consider this argument, see Village of Trempealeau v. Mikrut, 2004 WI 79, ¶15, 273 Wis. 2d 76, 681 N.W.2d 190.